Marcela Cubillos: «This week the most serious article of the Convention was approved» | Digital medium The Northern Fox

The constituent of Chile Vamos points out: “On July 4 there will be a proposal for a Constitution for the indigenous people and one for the rest of the Chileans will be pending.” And “reviewing the entire country, all of Chile, not just the southern Macrozone” is what the article that approved the Convention on the restitution of indigenous lands would imply, maintains, for his part, the constitutionalist Germán Concha.

The norm on the restitution of indigenous lands that was approved this week in the Convention is drafted in such a broad way that it would imply “reviewing the entire country, all of Chile, not just the Macrozone,” asserts the constitutionalist Germán Concha.

The warning made regarding that same article by the conventional Marcela Cubillos, is at the same level of concern: «This week the most serious article of those that go in the Convention was voted on».

The norm that has generated multiple reactions was approved in the plenary session last Wednesday amid cheers and applause from the reserved seats and from the leftist constituents with 106 votes in favor, 37 against and 10 abstentions.

“Right to lands, territories and resources. The State recognizes and guarantees, in accordance with the Constitution, the right of indigenous peoples and nations to their lands, territories and resources. Indigenous land ownership enjoys special protection. The State will establish effective legal instruments for its cadastre, regularization, demarcation, titling, repair and restitution. The restitution constitutes a preferential mechanism of reparation, of public utility and general interest. In accordance with the constitution and the law, indigenous peoples and nations have the right to use the resources that they have traditionally used or occupied, that are found in their territories and are essential for their collective existence.”

That is the text that went into the Magna Carta draft that will be submitted to a plebiscite. “The only thing that is clear is that on July 4 there will be a proposed Constitution for the indigenous people and one will be pending for the rest of Chileans,” says Cubillos, analyzing not only this article but also all the regulations that are have approved so far, many of which, according to their perspective, imply privileges for the native peoples.

An “apartheid-style” rule

“I never thought that apartheid-style regulations would end up being approved in Chile. That is what we are doing”, points out Germán Concha.

The constitutionalist explains in detail the factual and legal problems that would arise if the draft Constitution, which already includes this article, is approved.

More than giving answers, it raised a series of questions that, from a legal point of view, remain unanswered in the article in question, as it is currently drafted.

“The norm starts by saying that the State recognizes certain rights prior to it. So: What are those rights, the ones that existed before the conquest? How do you know what they are referring to? Ancestral historical occupation? What’s that? Where is it defined? How do you register? Go back to what era? And I’m not being sarcastic, do we have to go back to Pedro de Valdivia? That is a gigantic problem », he maintains.

Concha explains the reasons why it is very difficult to answer these questions accurately: «Those who brought the logic of Law, from Western institutions, were the conquerors. It is the conquest that incorporates America into the West, it is not the other way around. Here there was no State in form, that it was said that the property was registered, that there were titles, that it was known exactly what belonged to whom and that there was a kind of gigantic usurpation, but that what was before can be rebuilt ».

In the opinion of the UC academic, there is also another matter to be resolved, whose uncertainty can generate not a little legal insecurity for the current owners of the lands to which said article could eventually be applied, an issue that is not clear either.

“When the norm says restitution, does it only mean returning in kind and therefore delivering the land in question, who knows who, or does it also mean that the current owner must be treated as an usurper and has no right to anything? It is that the land is registered today, it is not that they do not belong to anyone, they belong to someone. What is done with those rights? », the lawyer asks.

“The fair price does not guarantee anything”

The conventional Cubillos also refers to the way in which the article on expropriation should be interpreted.

The norm in the current Constitution is clear: «The expropriated (…) will always have the right to compensation for the property damage actually caused, which will be established by mutual agreement or in a sentence issued according to law by said courts. In the absence of agreement, compensation must be paid in cash in cash.

«The taking of material possession of the expropriated property will take place after payment of the total compensation, which, in the absence of an agreement, will be provisionally determined by experts in the manner indicated by law. In the event of a claim about the origin of the expropriation, the judge may, based on the background information invoked, order the suspension of the taking of possession”, specifies the current constitutional norm.

The proposal approved by the Convention indicates something else: “The owner will always have the right to be compensated for the fair price of the expropriated property. The payment must be made prior to taking physical possession of the expropriated property and the expropriated person may always claim the legality of the expropriation act, as well as the amount and method of payment before the courts determined by law.

Cubillos makes the respective comparisons. “The current norm establishes that the patrimonial damage actually caused must be paid. That was rejected. Currently expropriations are paid at market price, that was rejected and the concept of a fair price was left behind », he points out.

The warning made by the conventional in this sense is clear: «The fair price can be much lower than what the person believes his house is worth, because the public utility can be very great, so in justice you have to pay much less. The fair price does not guarantee anything.

Concha even indicates that, analyzing both articles together, the one on the restitution of indigenous lands and the one on expropriation that are foreseen in the draft, it could be understood that it would not even be necessary to enter into an expropriation process in those cases.

“Since the State recognizes the property of the indigenous peoples, who existed before the arrival of the West, the delivery of the land could be against zero because the expropriation supposes that a private domain is recognized, but if the current title is not valid, that gentleman – the until then supposed owner – is a usurper, ”says the constitutionalist.


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Marcela Cubillos: «This week the most serious article of the Convention was approved» | Digital medium The Northern Fox

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