The Origin and Theoretical Basis of the Conservation Right

The conservation right was originally proposed in Chile in 2003 by Dr. Jaime Ubilla[1] and its definitive legal form -as an affirmative and reflexive right- (as submitted to the Senate of the Republic of Chile) was developed by Dr. Ubilla on the basis of his doctoral research conducted at the University of Edinburgh, United Kingdom (Ubilla 2016b)[2].

The denomination of this new right as the ´conservation property right´ was proposed in order to differentiate it from other institutions such as the conservation easements or servitudes[3].

The challenge was not simply to create a property right for the conservation of nature –or for the private conservation of nature-. The challenge was to develop a new ´kind´ of property right that would enable the arising of new social practices in all spheres of society with respect to biodiversity and natural capital. This new paradigm would require a ´socially reflexive property right´ that would facilitate the recognition of ´natural capital´ through the reflexive interaction of different social spheres (Ubilla 2015a, Ubilla 2016a).

This effort meant that we had to break away with 2,500 years of tradition, a tradition that built all property rights on the basis of existing economic structures, a tradition that treated social and environmental considerations as belonging to the outer fringe of property, as external limitations or obligations –or as restrictions- to the right of ownership (i.e. the ´social function´ of property in the continental law tradition).

The basic socio-legal challenge and idea was to design a reflexive property right that would not only recognize the expectations of the economic sphere but also the expectations of ´other spheres of society´ –such as ecology, aesthetics, morality, spirituality, education, comunitary and indigenous practices, etc-. For this purpose, it was necessary to develop an ´active or affirmative´ legal form that would not distort the ´value observations´ of those other social spheres (by giving them the form of restrictions) (Ubilla 2016a).

Only in this way, those various observations would be taken into account in their own affirmative form, and the interactions between those other spheres and the economic system would create new natural capital assets, facilitating the arising of a new economy.

In the legislative process in Chile, we had to deal with the difficulties of the traditional paradigm. In part this was due to the important influence of the U.S. conservation movement that historically unfolded on the basis of environmental easements[4]. But this North American tradition was already facing different challenges especially with respect to ´long term stewardship´[5]. It is clear now that a model of conservation that is predominantly built on a ´philanthropic & tax breaks approach´ does not necessarily facilitate the arising of broad new social practices that recognize social and natural capital[6].

In Chile, the easements or restrictions approach was initially introduced at the lower house (Cámara de Diputados) under the influence of several groups that had in turn the support of different North American land trusts and NGO´s. However, this approach faced many theoretical obstacles and many legal issues in Chile, among which probably the most important one was that because restrictions are considered to reduce the value of ownership –and, therefore, to hinder the circulation of economic wealth- they are subject to the principle of “limitation of restrictions” [7].

As a result, the lower house established a maximum duration of 40 years for this easement in the initial draft of the law. At this stage, the conservation right was defined as a restriction or easement, and the word ´encumbrance´ was used in the very definition of it in article 2 of the draft. The establishment of the limitation of 40 years was a great disappointment for the conservation community.

It was only at the Senate that the idea of a new kind of property right -a reflexive and affirmative right of the ´reflexive paradigm´-, was proposed (Ubilla 2014).

This theoretical approach, developed and supported through research conducted in the United Kingdom (Ubilla 2016a), was presented by Dr. Jaime Ubilla of the Conservation Law Center of Chile to the Senate of Chile. This new vision took special traction because under it the conservation right would facilitate the delineation of new wealth, new natural capital. This new understanding allowed for the conclusion that natural capital would also need to circulate perpetually for the relevant markets to arise (Ubilla 2014; Ubilla 2016a). Consequently, this allowed for the elimination of the 40 years limitation.

From the theory of property perspective, the affirmative form of the conservation right has important normative implications. As James Penner explains regarding ´permissions´, we may say that affirmative property rights that are defined by reference to broad normative clauses such as the ´facultas´ or ´potestas´ (which themselves can be understood as bundles of incidents or sticks) are normative in a much more important sense than those that only contain or include specific and limited ́claim-rights ́ (-as is the case of restrictions or easements-).

In other words, we may say that a property right than contains or includes a ́broad claim-right ́ or a ́power- right ́ are more clearly a ́right to liberty ́ as they

́guide behaviour by allowing … a person to alter the normal balance of reasons which would apply when he decides how to act, usually by excluding reasons which are actually relevant but sometimes by supplementing them with reasons not normally considered relevant´[8]

Penner adds that ´permissions´ (and for our purposes ´broad empowering normative structures´) are adopted when the scope of application of a given right presents complex and varying factual circumstances or situations (Penner, 1997, pp.15).

From a socio-legal perspective, the affirmative form of this new property right facilitates the reflexive interaction of different social spheres and the proper inclusion of diverse social interests into the property rights system (Ubilla, 2016a, Ch.9) . This involves a contrast with the socio-legal structure of traditional property rights that would solely or predominantly facilitate the interaction between the property rights system and the economic sphere, without taking into account other social spheres or social interests –but periferically-[9].

This new reflexive approach is not only politically relevant, but it was also presented as the only possible way to tackle the challenges of social and ecological complexity (Ubilla 2016 a, Ch.1, 2, 3, 4 and 9). Only if all spheres of society could cooperatively interact there would be a chance for new social practices and new ecological knowledge to unfold.

Therefore, the conservation right was also conceived as a legal instrument that would facilitate the integration of different interest groups or stakeholders into the corresponding natural spaces. This would also involve a new paradigm, in contrast to traditional approaches to conservation that would normally involve the forced migration of local communities[10] .

From the legal perspective also, this new breed of property right appears as a proper legal mechanism for the implementation of the Convention on Biological Diversity, not only with respect to ´conservation in-situ´ but also with respect to the various Aichi Targets, among which Target 19 on ´knowledge´ appeared to be the most significant in the context of the present environmental crisis. Moreover, the conservation right also appears to be flexible enough to implement the different protected areas categories developed by the IUCN, and this fact confirms that this new property right can be adjusted to different circumstances in an inclusive manner.

An Affirmative Property Right: The ´Faculty to Conserve´.

As explained, it was necessary for the conservation right to take an affirmative form because –socio-legally speaking- only an affirmative form would allow for the active representation of the various observations –value expectations- of different social spheres (Ubilla 2016a).

This affirmative legal form would facilitate, at the same time, a reflexive inclusion of the observations of different spheres of society (with respect to the value of the environmental intangibles) and an active economic valuation of those natural capital assets (Ubilla 2003, Ubilla 2016a Ch.9, Ubilla 2016b).

Therefore, as a first step, it was important to understand how traditional ´affirmative´ property rights -such as ´ownership´ and ´usufruct´- were legally designed.

It was noticed that -in the continental legal system- the structural element that rendered those rights into an affirmative form were the traditional ´facultas or potestas´ (Ubilla 2016a Ch.9, Ubilla 2016b) . As it is widely known, under this legal system, the traditional ´faculties´ of property are the faculty of use -ius utendi-, the faculty of enjoyment -ius fruendi- and the faculty of disposition -ius abutendi-..

In this context, and from a normative perspective, it is important to observe that the idea of facultas or potestas involves a broader normative idea, that is not delineated through an exhaustive and rigid list of ́incidents ́or ́sticks ́, but which is left open for its adjustment to concrete circumstances. Therefore, a facultas or potestas, as such, can be understood as a bundle of incidents, some of which are clearly delineated and some of which are left broad and open (Ubilla 2016b, Ubilla 2017).

It is also noteworthy that active or affirmative rights are those that do not require another right to exist –i.e. are legally autonomous- and are considered as separate economic or accounting assets. In turn, the passive or accessory property rights are those that depend on the existence of another principal right with respect to which they are ancillary (i.e. ownership over the dominant property in the case of easements or the right of credit in the case of mortgage or pledge) and traditionally they are not considered as separate economic or accounting assets.

It was on the basis of these socio-legal understandings that a new definition of the conservation right was suggested to the Senate of the Congress of Chile (Ubilla 2014) including a new normative element in the form of a new facultas or potestas. This new facultas or potestas was the ´ius conservandi´ or ´faculty to conserve´, which gave the conservation right its current affirmative form.

It should be understood that -in the same way as with other affirmative property rights – the ius conservandi will include all those rights –and duties- that ensure the protection and exercise of the conservation property right. Therefore, it can be understood that the faculty to conserve will include both the rights that the parties expressly agree upon as well as those that are indispensable or necessary to carry out or exercise the conservation right. In this context, Dr. Ubilla has argued that the ius conservandi includes at least –in general- the following specific incidents: (i) a right to prevent an environmental damage; (ii) a right to restore a damaged or impaired environment; (iii) a right to obtain information about the environment; (iv) a right of access to the corresponding property – in accordance with rules agreed by the parties –[11]. These specific incidents or rights give rise to the corresponding obligations or duties. In this context, the specific obligations regulated in Article 6 of Law 20.930 are part of the overall bundle claims and duties of the ius conservandi[12]. The fact that these are established as different alternatives, confirms the broad nature of the ius conservandi. The particular duties of a specific conservation property right shall be further determined and delineated in light of the specific circumstances.

Needless to say that the ´faculty to conserve´ is the most relevant normative difference between the conservation right and the ´conservation easements´ or ´servitudes´ that are defined and characterized as ´restrictions´ -and that in the civil law system are typified as encumbrances- (Ubilla 2016b, Ubilla 2016c).

It is important to note that, just as it happens with the ´usufruct´, the conservation right shall also be qualified –but not defined– as a limitation of ownership (Art.732 No. 2 of the Civil Code of Chile) (Ubilla 2016c).

The various elements of the referred definition (Art.2 of Law No 20.930) were discussed fundamentally in the Constitutional Commission of the Senate of the Republic of Chile [13].

In the work of the aforementioned commission, the Conservation Law Center of Chile had a substantial and permanent participation through its researcher Dr. Jaime Ubilla Fuenzalida- The Conservation Law Center proposed the new definition of this property right on the basis of the ‘faculty to conserve’, through documents[14] submitted to the President (Senator Alfonso de Urresti) and other members of the aforementioned commission (i.e. Senator Antonio Horvath), providing thereby the theoretical basis for the replacement of the definition contained in the bill approved in the lower house –in this way eliminating the notion of a restrictive property right as an encumbrance or servitude-(Ubilla 2014, Ubilla,2015, Ubilla 2016b).

This change made possible to argue that this new property right would promote the circulation of new wealth and therefore, that it should be legally possible to establish this right on indefinite duration terms.

As mentioned, the original draft of the lower house had established a maximum duration of 40 years for the conservation right, but it was at the Senate that such limitation was eliminated under the understanding of the paradigm proposed by the Conservation Law Center[15].

[1] The original proposal is contained in Ubilla, Jaime (2003).

[2] The Conservation Right and its denomination was proposed by Dr. Jaime Ubilla in 2003 (Ubilla, 2003), who also designed its legal structure and proposed the new paradigm expressed in a new ‘legal definition’ (Art.2 Law 20,930) that was presented to the Senate of the Congress of Chile and became essential part of the final version of the law. This legal design was presented to the Constitutional Commission and Environmental Commission of the Senate (Boletín Nº.5823-07, 2015), particularly through the ´draft modifications´ submitted to the Senators Alfonso de Urresti and Antonio Horvath (Ubilla 2014, Ubilla 2015). In this manner, a new type of property right took legal form, as an affirmative and reflexive right, taking distance from the traditional model of servitudes or easements originally proposed to the Chamber of Deputies or House of Representatives of Chile (Note: it should be noticed that the original definition proposed by the Chamber of Deputies followed the traditional definition of servitudes or easements). The legal design finally approved in the Senate and which became the content of Law 20,930, took the proposals of Dr. Ubilla and was supported in Dr. Ubilla’s Doctoral Thesis presented at the University of Edinburgh in 2015 and approved in 2016. See in the Section in Materials: Ubilla, Jaime (2016). Reflexive Law & Reflexive Property Rights, Tackling the Regulatory Trilemma of Ecosystems Conservation, University of Edinburgh, U.K.

[3] See Ubilla 2003, and Ubilla 2016b. The issue was further discussed in the Constitutional Commission of the Senate of the Congress of Chile. It was necessary to use the name ´derecho real de conservación´ (conservation property right) because in Spanish language, the words “Law” and “Right” are both translated to the word “Derecho”. This means that if you say “Derecho de Conservación” you are also saying “Conservation Law”. See ´Boletín No. 5.823-07. del Congreso Nacional de la República de Chile, Comisión de Constitución (2015). Segundo Informe de La Comisión de Constitución, Legislación, Justicia y Reglamento, Recaído En El Proyecto de Ley, En Segundo Trámite Constitucional, que establece El Derecho Real de Conservación.

[4] National Conference of Commissioners on Uniform State Laws, “Unified Conservation Easement Act,” 1981. There is abundant literature on conservation easements in the U.S.A, see for instance: Korngold, Gerald (1984). Privately Held Conservation Servitudes: A Policy Analysis in the Context of In Gross Real Covenants and Easements, 63 Tex. L. Rev. 433; Korngold, Gerald (2010). Globalizing Conservation Easements: Private Law Approaches for International Environmental Protection, New York Law School, Research Paper Series 10/11 #2; Cheever, Federico (1996). Public Good and Private Magic in the Law of Land Trusts and Conservation Easements: A Happy Present and a Troubled Future, 73 Denv. U.L. Rev. 1077; Lippman Jessica O. (2006). The Emergence of Exacted Conservation Easements, 84 Neb. L. Rev. 1043;; McLaughlin, Nancy A. (2005). Rethinking the Perpetual Nature of Conservation Easements, 29 Harv. Envt’l L. Rev. 421; Morisette, Peter M. (2001). Conservation Easements and the Public Good: Preserving the Environment on Private Lands, 41 Nat. Resources J. 373; Serkin, Christopher (2010). Entrenching Environmentalism: Private Conservation Easements Over Public Land, 77 U. Chi. L. Rev. 341; Bray, Zachary (2010). Reconciling Development and Natural Beauty: The Promise and Dilemma of Conservation Easements, 34 Harv. Envtl. L. Rev. 119; McLaughlin, Nancy A. (2008). Condemning Conservation Easements: Protecting the Public Interest and Investment in Conservation, 41 U.C. Davis L. Rev. 1897; and Mahoney, Julia D. (2008). Land Preservation and Institutional Design, 23 J. Envtl. L. & Litig. 433; Olmsted, James L. (2008). Representing Nonconcurrent Generations: The Problem of Now, 23 J. Envtl. L. & Litig. 451.. For a history of the land trust movement and the use of conservation easements in the U.S.A., see Richard, Brewer (2003). Conservancy: The Land Trust Movement in America (Univ. Press of New England 2003). It is interesting to note how in Korngold (2010) there is prevention against direct exportation and introduction of common law legal forms (conservation easements) into the legislation of other countries, which according to the author could be a form of legal colonization.

[5] See among other sources for instance, Dana, Joel Gattuso (2008). Conservation Easements: the good, the bad and the ugly, in National Policy Analysis, 2008, May; Duncan, M. Greene (2005). Dynamic Conservation Easements: Facing the Problem of Perpetuity in Land Conservation, in Seattle University Law Review, 2005, Vol 28/467; Meiners, Roger and Bruce Yandle (2001). “Land Trusts: A Return to Feudalism,” in Agriculture and the Environment: Searching for Greener Pastures. T.L. Anderson and B. Yandle, eds. Stanford, CA: Hoover Institute Press, pp. 25–45; Merenlender, A. M. et al. (2004). “Land Trusts and Conservation Easements: Who Is Conserving What for Whom?” Conservation Biology 18, 1: 65–75.

[6] See Ubilla, Jaime 2016a, Ch.4 on the Regulatory trilemma of ecosystems conservation.

[7] In common law this is manifest in the idea that ´covenants are not favorites of the law´ – Quoted by Korngold referring to several precedents in the United States of America, see Korngold (2004), pp.298-99.-

[8] Penner, James, The Idea of Property in Law, Oxford University Press, 1997, pp.15.

[9] Ubilla, 2016 a; Luhmann, Niklas (2015). El Origen de La Propiedad y Su Legitimación: Un Recuento Histórico. Original Title: Der Ursprung Des Eigentums Und Seine Legitimation. In: W. Krawietz et Al (Hrsg.), Technischer Imperativ Und Legitimationskrise Des Rechts, Rechtstheorie Beiheft 11, Berlin, 1991,” Revista MAD – Universidad de Chile 33.

[10] See Agrawal y Redford (2009), pp.1-10.

[11] It should be noted that this was precisely the normative content given to the ius conservandi in the first private conservation property right as well as in the first public –State owned- conservation property right established in Chile. See our section on cases.

[12] This Article 6 establishes three alternative forms of obligations: (i) general prohibitions or restrictions to conduct development or industrial or economic projects in the corresponding property; (ii) obligations relating to the execution of certain actions or services in the property; (iii) Obligations relating to the execution or supervision of a management plan.

[13] Bulletin No. 5.823-07. del Congreso Nacional de la República de Chile, Comisión de Constitución (2015). Segundo Informe de La Comisión de Constitución, Legislación, Justicia y Reglamento, Recaído En El Proyecto de Ley, En Segundo Trámite Constitucional, Que Establece El Derecho Real de Conservación.

[14] See Ubilla, Jaime (2014).

[15] The discussion related at the same time to two principles of the system of property rights: the principle of circulation of the wealth and the principle of limitation of restrictions. The latter implies that any restriction on the right of property must, in turn, be restricted because they hinder the circulation of wealth (this principle is adopted both in continental civil law and in common law)-. Therefore, because under this new paradigm, the conservation right promotes the delineation and circulation of new wealth, there is no reason to restrict its duration. See Ubilla, Jaime (2014), and Ubilla, Jaime (2015)