What is the New Conservation Right?

The 'Conservation Right', also known as the ´Conservation Property Right´ or the ´Environmental Conservation Right´, is a new breed of property right established in Chile by Law 20.930 enacted on June 10, 2016.

Under this legislation the conservation right is defined as ´a property interest that consists in the faculty to conserve the environmental patrimony of a specified land or certain attributes or functions of such patrimony´ .

This property right is established voluntarily through an agreement between the land owner and the third party interested in the conservation of the corresponding environmental patrimony -or certain attributes or functions of such patrimony-.

The conservation right can be established for the conservation of the natural environment or of the man-made artificial environment, in rural or urban areas.

More broadly, it can be established for the conservation of ecosystems or habitats or for the conservation of specific ´attributes´ and ´functions´ of the corresponding environment, which means that this new property right can be directly established with respect to specific intangibles or ecosystem services.

The conservation right involves a new paradigm, an innovation to 2,500 years of legal tradition, not only because it allows to delineate and manage ecological intangibles but because it is both an affirmative and a reflexive property right -in contrast to traditional restrictions or easements- (Ubilla 2003; Ubilla 2016a Ch.9; Ubilla 2016b). This has consequences in two dimensions: in the economic dimension it means that this new property right facilitates the delineation of natural capital assets -and, therefore, that it facilitates the arising of natural capital markets-; and in the social dimension it means that this new property right is ´reflexive´ to diverse social spheres –and not only to the economic sphere- because it allows for the affirmative representations of broad social values in the relationship to immovable assets –and in the relationships between and among different interested parties and stakeholders that will be represented or facilitated by this legal form- (Ubilla 2016b Ch9).

This is the ´reflexive paradigm of conservation´ –as opposed to the traditional paradigm that normally focuses on ´imposing static restrictions´ over the land –as normally easements do- (Ubilla 2016a).

Please see the section on Cases, where we describe the first privately owned conservation right and the first publicly owned conservation right, established in Chile. It should be noticed that these two first cases were developed through a pro-bono effort and by a joint team of the Conservation Law Center and Ubilla & Cia. Attorneys and Counselors, and the purpose was to clearly implement the new reflexive paradigm behind the conservation right (Law 20.930) in the sense of creating legal structures that would facilitate the inclusive and reflexive interaction between and among different stakeholders for the generation of knowledge and for the promotion of sustainability.

[1] This is a free translation of Article 2 of Law 20.930. This translation does not accord with the legal language of the common law tradition because: (i) The idea of ´facultas or potestas´ is idiosyncratic of the continental law tradition (See Ubilla, Jaime 2017); and (ii) The concept of ´environmental patrimony´ also follows a continental tradition whereby the idea of ´patrimony´ combines the ideas of ´heritage´ and ´assets´. The Chilean legal system provides an express definition of ´environmental patrimony´ -which basically makes reference to the broad legal definition of the ´environment´ (Law 19.300, Art.2.).

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