Anthropological assessment, environmental licensing processes and indigenous peoples

Abstract

The article analyses the use of anthropological assessments in environmental licensing processes. On one hand, it supports the existence of a right to anthropological assessment. On the other hand, it argues that anthropological assessments in environmental matters contribute to judicial decision-making, since they are instruments which could reveal the constitutive elements of the indigenous peoples’ cultural identities. In particular, these assessments have a role in determining whether indigenous communities are affected or susceptible to be culturally affected, as a prerequisite to proceed to the indigenous consultation. With this purpose, the paper examines: the theoretical and disciplinary antecedents of anthropological assessments; their normative sources, in particular the human right to a cultural identity and to a healthy environment; and the relevant national environmental regulation. It also presents a set of Chilean judicial decisions on environmental matters which considered anthropological findings, systematizing their diverse approaches. Methodologically, we used bibliographic review, dogmatic and hermeneutic legal methods, and the deductive method for the review of jurisprudence.