Uncharted legal waters: The Dominga case is stirring up trouble for Chile's govt

The Totoralillo Norte artisanal fishers' union, along with shellfish harvesters and other communities in Chile's Coquimbo region, will file a complaint against the ministerial committee that rejected the Dominga mining-port project, accusing them of disobeying a court order, falsification of official records and the submission of false statements.

The complaint argues that the committee failed to comply with the conditions established by a regional environmental court in December. This court ruling followed a claim filed by Andes Iron, the owner of the US$2.5bn project, which aims to produce copper and iron, install a desalination plant and build a port in La Higuera district.

Among those accused is environment minister María Eloísa Rojas, who, along with others, could even face the prospect of imprisonment.

Additionally, the ministers issued their final resolution after the legal deadline expired on December 31, 2024, delivering the decision two weeks later.

To learn more about the case, BNamericas speaks with Marcelo Castillo, a litigation expert at Vicent & Asociados Abogados and legal representative of the fisher's union.

BNamericas: Why is the Totoralillo Norte fishers' union, along with other community groups, filing a criminal complaint against the environment minister and other officials from the ministerial committee?

Castillo: Even before the committee rejected Andes Iron's appeal, the union I represent had already raised concerns – back in January, March and June 2023 – about the committee's lack of impartiality and objectivity. Some of its members had publicly voiced their opposition to the Dominga project, creating a clear conflict of interest.

So, when the rejection came in June 2023, it was neither surprising nor unexpected. Andes Iron rightfully challenged the decision, and their claim was upheld by the first environmental court of Antofagasta. That ruling set clear deadlines and conditions for the committee to reconsider the case: they had 15 business days, with a deadline of December 31, 2024, and they had to ensure that no members with conflicts of interest participated, while also respecting previous court rulings that were already final and enforceable.

In that context, when exempt resolution No. 20259910145 was issued on January 8, 2025 – past the legal deadline – and relied on arguments that had already been settled in the environmental review process or were never raised in the appeals, the committee violated the court's order, committing the crime of contempt of court. Additionally, by knowingly misrepresenting the issues under dispute to justify another rejection, they committed the crime of falsification of official records.

BNamericas: Why do you think the committee ignored the environmental court's ruling?

Castillo: In our view, it's pretty obvious; this was a political directive from President Gabriel Boric. On the day he was elected, in his very first speech, he declared 'No to Dominga,' and his entire administration has echoed that stance ever since.

Furthermore, during his campaign, his key environmental spokespersons were María Eloísa Rojas, now the environment minister, and Ezio Costa, a lawyer for Oceana, one of the groups that challenged Dominga. This is unacceptable. A political clique is undermining basic principles of the rule of law, such as the public interest, objectivity, impartiality and compliance with judicial rulings, just to serve their political agenda.

BNamericas: What are the potential penalties or consequences of this complaint against the ministerial committee?

Castillo: The penalty for disobeying a court order ranges from medium to maximum reclusión menor, meaning a prison sentence of 541 days to five years, along with additional consequences such as disqualification from holding public office for the duration of the sentence. Meanwhile, falsification of official records carries a sentence of between three years and one day to 10 years, plus other legal penalties.

BNamericas: Does the Dominga project fully comply with Chile’s environmental laws? And what about the concerns regarding its proximity to protected areas in the Humboldt archipelago?

Castillo: Dominga unquestionably complies with all applicable environmental laws. This has been confirmed by the consolidated environmental assessment report, the executive directorate of the environmental assessment service SEA on multiple occasions, and the first environmental court of Antofagasta, which approved the project and upheld the appeals in its favor.

The claim that it’s too close to protected areas in the Humboldt archipelago is a myth. The port is planned to be 30km as the crow flies from the Humboldt penguin national reserve, with strictly defined navigation routes to prevent any impact on marine wildlife. 

As for the mine and its associated facilities, environmentally, the most significant part of the project, they cannot possibly affect the Humboldt archipelago because they are entirely land-based and have no direct interaction with the marine environment. 

The mining site is located about 14km from the coastline and 42km from Punta de Choros, the nearest land-based settlement to the reserve. There are no penguins, cetaceans or other protected marine species in the mining area.