Facts

On 18 March 2016 the government, through the State Council of Defence, filed a compensation claim for environmental damage against mining company Pampa Camarones SA. Previously, the Environmental Service had issued the company with fines of approximately $3.1 million under Resolution 80/2015, rectified by Resolution 455/2015, which were confirmed by:

  • the Santiago Environmental Court in its judgment in Case R-51-2014 (which accumulated the cases R-55-2014 and R-71-2015); and
  • the Supreme Court of Justice in its judgment in Case Docket 41,815-2016.

Pampa Camarones project

The Pampa Camarones project is located in Camarones in the Arica and Parinacota Region in northern Chile, which borders Peru. The project comprises two sub-projects:

  • The Salamanqueja mining project exploits the Salamanqueja copper mine as part of a joint project aimed at developing local mining and producing 30,000 tons of copper ore per month. The Arica and Parinacota Region Evaluation Commission (EAR) approved the project through Resolution 33 of 7 September 2011.
  • The Pampa Camarones cathode plant has a processing capacity of up to 60,000 tons of oxide ore per month. The EAR approved the project under Resolution 29 of 6 July 2012.

Claim

The compensation claim was based on the fact that the Pampa Camarones cathode plant's operations had violated a series of measures that the EAR had stipulated to protect the nearby Salamanqueja archaeological site. Pampa Camarones undertook the project without collecting the required 20% of lithic remains that would have constituted a representative sample and thus safeguarded the site's scientific, cultural and heritage value. As a result, over 15 hectares of the site were destroyed without the required measures being taken to protect the site's archaeological value. The lithic remains that Pampa Camarones destroyed included the archaeological remains of ancient human settlements from 3500BC to 900BC.

Defendant's position

The defendant claimed that it had already rescued 109 lithic remains, which met the EAR's threshold of 20% of lithic remains. In addition, Pampa Camarones highlighted the site's homogenous character, which meant that the archaeological work carried out in one section would not affect the representativeness of the sample of artefacts gathered.

Decision

In its 29 March 2018 decision, the Santiago Second Environmental Court found that the damage that had been caused was irreparable due to the following factors:

  • The EAR required the surface collection of 20% of lithic remains from the site where the project facilities were to be installed. The 15 hectares of land that were illegally developed were where the facilities had been installed, so the collection of samples in that sector could not be neglected.
  • The evaluation of the damage to the site's archaeological value was different from the management of other environmental factors. Given that the site's destruction would result in irreparable action, the impact evaluation in this regard was particularly rigorous (a specific environmental sector permit was required under Article 132 of the Environmental Impact Assessment System Regulation).
  • Only the timely fulfilment of the conditions set out in the environmental permit could have protected the relevant assets.
  • The site's supposed homogeneity did not reduce the damage caused, but could distort its overall significance. However, the court found that in this case, it would have been necessary to preserve the destroyed lithic remains or exclude the evidence of the site's heterogeneity and archaeological importance.
  • The significance of the environmental damage caused was proven by the fact that the lithic remains destroyed were unique and irreplaceable. As a result, the loss was irreparable and the information that could have been extracted can never be recovered.
  • The presumption of negligence was applicable, as the holder did not obtain Council of National Monuments approval prior to surface collection in accordance with the environmental permit and as required by the EAR.
  • If an environmental management instrument such as Resolution 29 of 6 July 2012 is infringed and damage is caused as a result, it is legally presumed that the offender is the creator of said damage.

As the damage was deemed irreparable, Pampa Camarones was ordered to repair the damage through a compensation repair programme, as set out by the court.

For further information on this topic please contact Trinidad Prieto at Montt y Cia SA by telephone (+56 22 233 8266) or email ([email protected]). The Montt y Cia SA website can be accessed at www.monttgroup.com.

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