Analysis. The Constituent Assembly approved the article, the most important achievement of the indigenous representatives so far.

Chile’s proposed constitution gives native peoples unprecedented land rights

With hugs and shouts of celebration, the representatives of the indigenous peoples in the Constitutional Convention welcomed the approval in plenary session – with 106 votes in favor, 37 against and 10 abstentions – of the article on the rights of the original peoples “to their lands, their territories and their resources.” The article, which thus becomes part of the draft text of the Constitution to be submitted to a referendum on September 4, establishes that the state will have to develop “effective legal instruments” for the regularization, reparation and restitution of land to indigenous peoples, to whom it recognizes “the right to use the resources” located in their territories and “indispensable for their collective existence.”

This is the most important achievement secured by indigenous representatives within the framework of the Convention, along with the approval of the article that will transform Chile into a “plurinational and intercultural state,” with the consequent recognition of the right of the original peoples “to autonomy and self-government.”

Now that there are only two weeks left to conclude the approval of the articles, this particular piece of great news comes at a very complicated time for the Convention, in the face of growing distrust in the constituent process revealed by the latest polls: one conducted by the Cadem Institute in the third week of April found that in terms of voting intentions in the coming referendum, “Reject” was ahead of “Approve” by as much as nine points.

This is a disconcerting fact, considering that on October 25, 2020 almost 80% of the population voted in favor of a new Constitution that would finally scrap the one from Pinochet’s era, “written by four generals,” as Gabriel Boric described it. It’s worrying for the president, whose fate is inevitably linked to the referendum of September 4.

There are many reasons for this disenchantment: the clashes and controversies among the constituents, the difficulty in building the two-thirds majority necessary for the approval of articles, the poor ability of the members of the Convention – who are engaged in feverish sessions that last until midnight and beyond, including on weekends – to keep the citizenry informed, the confusion over the articles approved by the thematic commissions, some of which have generated fears and uncertainties, and those that have obtained the final green light in plenary session; and, above all, the smear campaign promoted by the conservative parts of the spectrum, who have an interest in wrecking the entire process, and who are deploring the “antics” of the Convention, which they describe as being manned by some teenagers unwisely elected for a task much greater than they’re capable of.

Thus, particularly concerned by the constituents’ downsizing of the absolutist right to property and freedom of enterprise to which Pinochet’s Constitution subordinated every other right, the right-wingers have devoted themselves with great skill to the task of spreading fake news. They have claimed, for example, that the recognition of reproductive rights will lead to access to abortion at any stage of pregnancy, that indigenous autonomy will cause the country to split up, that each region will develop its own laws on its own.

All this despite the fact that the almost complete draft of the text remains much more tame than the most progressive demands coming from the 2019 social revolt – as shown by the rejection, thanks in part to the votes of the Socialist Party, of the 52 articles presented by the Commission on the Environment – including one that recognized air and water as “common goods that cannot be appropriated” – and which will thus have to be revised and return to the plenary session in a more moderate version.

Yet, with all its limitations and less-ambitious compromises, the text of the new Constitution represents, as Eugenio Rivera Urrutia of Fundación Chile 21 points out, “an enormous step forward in the construction of a social and democratic state under the rule of law,” securing for every person the right to health, education and social security and incorporating rights, such as the right to housing, that the 1980 Constitution avoided even mentioning; introducing mechanisms of participatory democracy; initiating a real process of regional decentralization (through the replacement of the Senate with a Chamber of Regions); recognizing the rights of nature and the obligation of the state to protect biodiversity, and laying the foundations for a new relationship with the original peoples.

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