Menores Comunidad Paynemil s/acción de amparo [ENG]
Court action seeking protection for the health of indigenous children and youth due to consumption of water contaminated with lead and mercury. The State's arbitrary failure to diligently protect the right to health. Court order to provide drinking water to the victims, to determine the existence of damages and, if required, to ensure adequate medical treatment is provided.
Neuquén Province's Official Defender of Minors filed an amparo action to protect the health of children and youth in the indigenous Mapuche community of Paynemil, because they had been exposed to water contaminated with lead and mercury. The applicant requested that the State be ordered to provide enough drinking water to ensure the survival of the affected community, to conduct the diagnosis and treatment of affected minors, and to adopt adequate measures to prevent future soil and water contamination. Division II of Neuquen's Civil Court of Appeals upheld the trial court decision favorable to the action and ordered the Provincial Executive Power: 1) to provide 250 liters of drinking water daily per inhabitant; 2) to ensure within 45 days- the supply of drinking water to those affected by any effective means; 3) to take measures within 7 days- to determine whether the population had suffered any damages caused by metal contamination and, if so; 4) to provide the necessary treatment; and 5) to take the necessary measures to prevent environmental contamination. The Court concluded that the provincial State had arbitrarily failed to act with due diligence to protect the community's and particularly, its children's- right to health and a healthy environment.
Keywords: Menores Comunidad Paynemil s/acción de amparo, Corporate, Accountability
Due to the State's failure to fully comply with the decision (the community is only supplied with drinking water on a daily basis), the applicant resorted to the Inter-American Commission on Human Rights (see Comunidades Paynemil y Kaxipayiñ (#12.010) in this database). In a parallel development, on March 27 2002, Mapuche communities filed an action against Repsol-YPF for the damages caused upon their territory by the company's oil and gas development operations.
Applicant: Neuquén’s Official Defender of Minors, Ms. Nara E. Osés, on behalf of the children and youth of Mapuche communities Paynemil and Kaxipayiñ (e-mail: naradef@infovia.com.ar).
This case is one of the most important precedents of enforceability within Argentine case law. The Court considered the seriousness of the situation, the urgency to protect the affected rights, and the vulnerability of the victims to uphold the illegitimacy of the State's actions. The defendant's response succeeded in avoiding evidence-related obstacles and the technical complexity of the matter at stake.
