Economic groups, Chilean businessmen and extractivist politics have been favoured this last week. Once again, we are surprised by the interpretation and application of a legal norm in favour of one of the most questioned companies of recent times.
On 17 February, the First Environmental Court of Antofagasta upheld the claim of the company SQM (yes, that same one) that disqualifies the INDH (National Institute of Human Rights) to be present at the inspection to be carried out in the Salar de Atacama. The judge ruled that this body cannot attend the event “as it is not a party to the trial and has not accredited any mandate to intervene in it”. Only SQM objected to the presence of the INDH in this inspection. An appeal for reconsideration presented by the Antofagasta headquarters of the affected organisation was also rejected, without considering that the INDH uses field observation as a work methodology; allowing them to diagnose potential human rights violations in specific territories, and that this is a prerogative in the law that created this body “The INDH appears on its own, not as a ‘party’ to these proceedings, in compliance with its legal mandate”, also pointing out that it has never been requested by the national courts, as a requirement to observe or appear has never been requested by the national courts to have a legal mandate from an indigenous community, in this case the Atacameño, because the objective of this observation is to know the situation of the indigenous communities on the ground, and not to carry out legal actions, exercising its functions in accordance with the law and without interrupting any proceedings.
It would seem that this company, controlled by the controversial businessman Jaime Ponce Lerou, son-in-law of the dictator Pinochet, one of the main architects of the installation of the nefarious forestry business in the centre-south of Chile, part of the business community directly related to the privatisation of pensions in Chile, and linked to the scandal of illegal political financing, has special considerations before the justice system, enjoying a gross impunity.
Its continuous involvement in acts against the law have placed it in trials of great public connotation and of long standing.
In 2013, the Court of Appeals of Antofagasta accepted an appeal for protection filed by indigenous communities against the approval of the environmental impact statement of the project: “Expansion of the potassium chloride drying and compacting plant”, presented by the company SQM S.A. This ruling states that by approving the project without an environmental impact study, the possibility for the affected indigenous peoples to be heard was left out, violating the right to equality before the law. Given that the mining operations are located in the Atacama La Grande indigenous development area, Atacameño-Lickanantay territory, the Atacameño communities filed a complaint before the First Environmental Court on 22 September 2022, given that the Environmental Superintendency (SMA) approved the company’s environmental compliance programme and suspended the sanctioning process against it.
In 2015, the so-called SQM case broke out as a result of the Penta case, led by Jorge Abbott and which opened a debate due to the lack of complaints by the Internal Revenue Service (SII). The SQM case is an emblematic case of corruption and illegal political financing, which has been under investigation for more than eight years and could be extended for at least another year and a half.
The established accusation is that Soquimich paid, through ideologically false receipts, various politicians of the time, for including in the draft Mining Royalty Law some paragraphs written by the company. Ciper in its column of 2 April 2015 details “74 people that the SII is investigating for political payments from SQM have links with the UDI and RN”. Even with this data, one of the decisions of the Public Prosecutor’s Office was not to pursue 34 defendants, even though there is evidence that 31 participated in operations to finance political activities with money from the company; why did the SII not file charges against them (without trial Rodrigo Peñailillo (PPD), two sons of Senator Jorge Pizarro (DC), Deputy Roberto León (DC), the sister of former Senator Fulvio Rossi (former PS) and a son of the Penquista leader Claudio Eguíluz (RN)). Currently, the Public Prosecutor’s Office is only prosecuting eight defendants, for example, former Economy Minister Pablo Longueira (UDI) and former presidential candidate Marco Enríquez-Ominami (PRO), whose trials are having more chapters than a soap opera.
On the other hand, in 2016, local environmental organisations accused SQM and the company Rockwood of lobbying to inhibit inspections of water extraction from the Salar de Atacama. The complaint made by Alonso Barros, lawyer for the Atacama Desert Foundation, accuses “buying political will” from all sectors and officials who omit abuses, leaving actions and works that threaten the ecosystem of the area in total impunity, ignoring the deterioration caused by mining companies working in the area. This inhibition would be given through the payment to the personnel overseeing the project, which contemplates extracting millions of litres of water from the underground water table of the largest salt deposit in Chile (SQM is pumping up to 1,500 litres of water per second, and Rockwood is pumping up to 142 litres per second, according to Carlos Iriarte). Paradoxically, after the Commission of Inquiry into environmental damage to glaciers and salt flats made a visit to the Salar de Atacama, both companies announced an agreement to jointly promote an “effort” to care for the ecosystem where both companies have operations.
In 2018 we find two controversial cases involving the company: the purchase of 24% of SQM by the Chinese company Tianqui, whose agreement is being investigated by the National Economic Prosecutor’s Office to assess the possible negative effects that the transaction could have on competition in the global lithium and “white gold” market, as it jeopardises free competition and could lead to a possible monopoly on the mineral, and the contract established between the state agency Corporación de Fomento (CORFO) and SQM, where the latter hires Julio Ponce Lerou as an advisor to the board of directors, which was described as a “complex” and “imprudent” decision, provoking criticism from businessmen and politicians. Although CORFO, which oversees lithium concessions in the country, points out that the return of Julio Ponce does not violate the contract signed to extend a concession and that, although he will no longer be an advisor, the Chamber of Deputies has set up a commission that will clarify how the agreement between SQM and CORFO was handled and will investigate Ponce Lerou’s role in the company, as well as the environmental impact and repercussions on the non-metallic mineral market.
And finally, the controversy that arose in October 2020, when the Supreme Court closed the “Cascadas Case”, the name given to the fraudulent operations within SQM. This investigation had established, in 2014, the highest fine in history for Julio Ponce Lerou with 63 million dollars, which was reduced to only 3 million. These operations consisted of the “cascadas companies” selling shares in Oro Blanco, Calichera-A and SQM-B at below market price to other related companies, companies owned by Julio Ponce Lerou, Roberto Guzmán, Leónidas Vial Echeverría and Alberto Le Blanc Matthei, and then buying them back at higher prices than those at which they had sold them. The investigation carried out by the Financial Market Commission pointed to the existence of a cost overrun of 300 million dollars. It is worth mentioning that this operation also increases state revenue, given that, in the second Bachelet government, SQM was allowed to increase its extraction quota to 2030 in exchange for an upward increase in the rent charged by the state when the price exceeded 10,000 dollars per tonne.
And while the judicial system applies its rules and meets its formal and, why not say bureaucratic deadlines, the non-metallic mining company SQM reported, through a report sent to the Financial Market Commission that its profits increased by 197% reaching the figure of 1655.4 million dollars in the first half of 2022. Likewise, the second half of this 2022 reached $859.3m which implies an increase of 856.9% compared to the same period of 2021, income coming mainly from the sales of lithium and derivatives, followed by the production of potassium chloride and potassium sulphate. Such earnings are shared between leading shareholders Ponce Lerou, through the company Pampa Calichera, and Chinese company Tianqi.
Considering that Chile, they say, is one of the least corrupt countries in Latin America (a statement that both lulls and comforts us), we can see a road paved with corruption and we ask ourselves, faced with so much investigation and evidence, so many dubious economic transactions, so many unfinished judicial processes, if Chilean justice also borders on the ambits of corruption or if adherence to legal norms and subjective interpretations prevail over the defence of human rights and the protection of the common good. The mantle of impunity makes the phrases “the poor go to jail”, “justice for the rich or the poor” or “with money the monkey dances” more meaningful for citizens, who yearn for a society where the law is obeyed and where equality before the law does not depend on economic factors.
Collaborators: M. Angélica Alvear Montecinos; Sandra Arriola Oporto; Cesar Anguita Sanhueza and Guillermo Garcés Parada. Political Opinion Commission
