The recent approval of an article that defines water and air as inappropriate resources, by the plenary session of the Constituent Convention, will generate various conflicts that are advocated by the expert lawyer in Water Law and academic of the San Sebastián University, Tatiana Celume.
Santiago de Chile.- The plenary session of the Constitutional Convention approved this week five new articles related to the rights of nature. One of the points that will go into the draft of the new Constitution is that “water in all its states and the air are inappropriate”, recognized by international law; and those that the constitution or the laws declare as such.
In this provision, it is enshrined that the State must preserve, conserve and, where appropriate, restore inappropriate assets. One of the concerns that has arisen among experts is what will happen to those who currently have water use rights. The commission has declared that it will be defined in the transitory norms, although in any case the State may authorize people to make use of these assets.
However, as explained by Dr. Tatiana Celume, a lawyer specializing in Water Law, academic and researcher at the Faculty of Law and Social Sciences of the San Sebastián University, this rule would be contradictory, since today water is a national asset for use. public, insusceptible to private appropriation, and as a resource, they cannot be appropriated by individuals.
It should be remembered that the reform to the Water Code came into force on April 6, after a process that lasted 11 years in Congress. The new Law 21,435 provides tools to ensure the human right to water, subsistence and sanitation; and advance in water efficiency from the particularity of the regions and basins.
“The reform to the Water Code, in short, made the right of use limited. It is no longer the property right that we had before, and that is more than enough, because what you do through the law is create certain incentives so that people do not speculate with water, so that they effectively use the resource well. and do not have it hoarded ”, assures Celume.
As stated in the law, the State currently has the right to grant concessions, exploitation rights so that people can exploit the waters destined for human or productive consumption. With this new provision, explains the academic, “since water is inappropriate in all its states, it seems that rights to use these waters cannot be granted.”
According to the lawyer, this would be very detrimental, because it would be taking away people’s right to exploit the waters, establishing only a kind of precarious authorization for the purposes of being able to use it, “but to the extent that the State tells you how, where and for what and when”, indicates the lawyer.
In this sense, there are several people and companies from all areas that may be affected by not being able to receive these rights, from agriculture, mining and even sanitation, which could not use the water for the purpose of granting the service of sanitation and drinking water.
The lawyer points out that this provision, as it is proposed, creates a risk for the use of this resource, since when speaking of “authorization”, it is interpreted that there is a prior prohibition to use the resource. “What there should be is a concession and the creation of exploitation rights for the purpose of exploring and exploiting. So, for me, this statement contradicts the entire doctrine of national assets for public use.”