In recent years, Chile has begun to enact laws to take charge of our natural resources and patrimony. Our guest columnist asks what is the current state of these policies and what are the implications of this new “regulatory landscape” for our cultural development, putting on the table the importance of taking charge of these from the distinct roles in which individuals, communities, and institutions operate.
Over the past few years, the evident sentiment of different communities at a national level and political discussions with respect to environmental and energy issues have led to a series of regulatory projects that seek to change the way national territory is managed in regards to these issues (1). Since 1984, the National System of Protected Wild Areas of the State (SNASPE) has been the legal figure through which the National Forestry Corporation (CONAF) has managed natural resources, biodiversity and our landscape for conservation purposes (2). However, over time this system has not only shown weaknesses in its management and consistency with conservation objectives (3), but it has also shown that the centralized administration of Wild Protected Areas (ASP) is not sufficient to cover the challenges that our territory and society demand.
(1) Among the recent normative projects on conservation the following should be highlighted: the Law on Environmental Donations (entered in 2014, currently in the first legislative procedure in the Chamber of Representatives), the Glaciers Protection Law (of 2006), unarchived in 2010 and currently in the first constitutional procedure of the Senate Chamber), the Environmental Offenses Act (of 2014, in the first legislative procedure of the Senate Chamber), the Law creating the Biodiversity and Protected Areas Service (created 2011, withdrawn from legislative procedures in 2014) and the Law creating the Fundamental Conservation Law (of 2008, enacted as such in 2016).
(2) See Ley 18.362 (1984), “Sistema Nacional de Áreas Silvestres Protegidas del Estado” (National System of State Protected Wild Areas) , Biblioteca del Congreso Nacional <https://www.leychile.cl/Navegar?idNorma=29777&tipoVersion=0>.
(3) See column by Tomás Gárate (2015), “All about the (Un)protected Natural Heritage of Chile” for LOFscapes.<http://www.lofscapes.com/blog/2015/8/5/sobre-el-desprotegido-patrimonio-natural-de-chile>.
In conjunction with the development of SNASPE, the private sector in its different scales − individuals, NGOs, companies, etc. − have shown an interest in contributing to the conservation of our country’s natural heritage. This has added another challenge in terms of management because of the lack of regulatory safeguards to encourage and incentivate such activities. To meet this latter challenge, various political efforts have been developed to enact laws that favor private interests for natural conservation efforts (4).
(4) See list of Protected Wild Areas registered by the “Así Conserva Chile” institution and MMA report with the GEF/UNDP on the register of private conservation initiatives in Chile. In <http://asiconservachile.cl/quienes-somos/nuestros-socios-mapa.html> <http://www.proyectogefareasprotegidas.cl/2013/08/2452/>
However, the only initiative of recent years that has sought to provide regulatory tools to the private world in conservation matters and has managed to pass through both legislative chambers to become law, is the Fundamental Conservation Right (5). This regulation, approved in mid-2016, incorporates a legal framework that allows property owners interested in conserving some environmental aspect of their own lands to protect these. With this tool, the barriers to establishing this commitment to conserve an environmental aspect of private property are diminished. This occurs by not having to cede rights of use, enjoyment and usufruct to obtain this end, which means that owners can do what the Property Rights law permits on their own land, as long as it does not infringe upon the established commitment regarding conservation.
(5) Law 20.930 (2016), “Derecho Real de Conservación Medioambiental”(Fundamental Law of Envirnomental Conservation), Biblioteca del Congress Nacional <https://www.leychile.cl/Navegar?idNorma=1091906>.
(6) Concrete examples of successful projects where there would be an area of fertile growth of the Fundamental Conservation Law in Chile are the Oasis La Campana Ecological Reserve, a real estate project led by Mauricio Moreno that left more than 10,000 hectares in the 1990s for the conservation of a native forest adjacent to La Campana National Park in the Valparaíso Region (see fig.1 and http://www.reserva.cl/) and Karukinka Park, which covers 272,000 ha of private conservation park acquired by the Wildlife Conservation Society in 2004 to conserve the ecosystem of Tierra del Fuego in the Magallanes Region and the Chilean Antarctic (see Fig. 2 and http://www.karukinkanatural.cl/).
Another characteristic that makes this tool interesting is that once a property is registered, a contract establishes the clauses that protect the land in some environmental aspect for a defined amount of time (which could be perpetual) that any person can enforce, including the owner of the land, and this right is transferible. These two characteristics make the owner’s future disposition in terms of land use cease to be an unknown, no matter who holds the property rights since the agreement must be respected. For this reason, the projection of conservation objectives over the long term has become more feasible, and therefore, the potential interest in investing in these has increased.
This new legal tool makes it possible to project opportune settings for the country’s cultural development, sustained by its natural heritage, and has awakened private interest, which is the most difficult to ‘conquer’ when it comes to such intangible and long-term benefits. This encompasses from incorporating conservation into the world of real estate to motivating philanthropists who want to allocate their lands in disuse for this purpose (6). In addition, it can be a useful tool to take charge of environmental and cultural problems that until today have not found a solution, such as the protection of indigenous lands from industrial or urban development, and the fragile relationship between the National Parks and the properties that surround them.
Evaluating the pressing contingency of the forest fires of 2017 that make us indignant and at the same time move us − not only because of the social, community and productive damage but also because of the environmental devastation − it is this type of catastrophe that brings the discussion on re-evaluating settlement and migration policies to the fore, where the Fundamental Conservation Right could play a key role in the process of reconfiguring the affected zones. It is important to remember that these events are elements of a crisis that have harmed us repeatedly throughout our history. Projecting long-term solutions is a sensible proposal that could be facilitated with this new regulatory tool, capable of managing and joining public and private efforts in matters of planning and anticipation of such catastrophes.
Although one can speculate about the scenarios in which this law may contribute, one can also question how relevant it is if the practice is not put into use. What would be the point if this law is kept in a drawer because of distrust of it as legal tool that lacks legitimacy? More than planning the benefits of the Fundamental Conservation Law, what is of vital importance is the public and private role in disseminating and applying this law. The Fundamental Conservation Law has potential, as we explained here, as long as it is viewed as appropriate by the varied cultures that this country hosts and that have constantly had unresolved conflicts over the environment. These views include those from the side of those affected by loss as well as those who wish to be compensated for damage produced, or possibly those who see the opportunity to support the diverse landscapes of the far reaches of our country.
Germán Guzmán Gundermann is a student in the Master’s degree program of Landscape Architecture at the Pontifical Catholic University of Chile and member of the Fundación Legado Chile, an organization dedicated to conserving Chile’s natural heritage.