Legal aspects of land protection

Protection for:

So far we have used the following legal instruments:


☀︎ National legislation on private property:

Acquiring land in private property was the primordial and crucial step towards its protection. When you buy land you also buy the right to protect it. The efficiency is increased by the fact that land in private property is protected by the present national legislation from use by non-owners. The property was bought for “non-use”.

У семи нянек дитя без глазу.

Russian proverb:  With seven nannies the kid is unattended.


☀︎ Chilean law 19.300 “The Environmental Framework Law” (Ley de bases de Medio Ambiente), which just authorises PPAs.

☀︎ Reforestation with native trees is done according to Chilean law - Ley sobre recuperación de bosque nativo

      y fomento forestal 20.283, and relevant management agreements with Conaf.


☀︎ Other forest law documents (.pdf) have been used as well (Decreto Ley Nº656, Decreto Ley Nº701,

     Estrategia Nacional de Biodiversidad, etc.).


☀︎ National regulations on fauna - for protection of local fauna, especially large predators.


After 12 years of work in the area, the initial fundamental actions and experience gained need to be consolidated for future by appropriate legal arrangements. These arrangements shall:


  1. Be custom-fit to the present case;

  2. Ensure effective hight quality protection of the land and be irrevocable;

  3. Ensure long-term protection, in perpetuity as a priority, corresponding to long-term intent and monitoring

      and providing reliable legal base for future rather than immediate benefits;

  1. Have, therefore, good potential for a long term life-time and flexibility in financial and institutional support;

  2. Provide for a legal scheme that embraces all aspects of the future life of the area;

  3. Privilege forest-based restoration;


  1. Correspond to the principle of personal responsibility for what we are trusted with;

  2. Protect nature for itself, not as a “resource” or “commodity”;

  3. Give space to nature’s (ecosystem’s) rights, follow the laws of nature.


Redi's adage: omne vivum ex vivo (All life comes from life)

The solutions could be:


Application of the law on the In rem Right of Environmental Conservation (.pdf), Derecho real de Conservacion,

Ley 20930 (2016) (.pdf)


Challenges:

  1. Little experience with the application of the law so far, several agreements concluded but do not correspond to

     the needs of the PPAP;

  1. To ensure stability and independence a 3-parties (at least, not bilateral) conservation agreement shall be concluded;

  2. The rights holder shall: demonstrate capacities of long-term survival, strategy, responsibility and accountability; have institutional and legal capacity to fulfill obligations it is taking; be polymathic; share interest for reforestation, forest protection and nature repair without creating assisted nature; be able to prevent any commercial use of the land such as tourism;  not be biased by market concepts (PES, valuation, etc.); operate within a comparable legal system; always transform a conflict between nature and human use into prioritising nature; share the refusal of the logical empiricism in its approach to science;

  3. Real right to conservation vs. restoration or protection;

  4. Appropriate type of in rem rights agreement (stewardship, servitude, easement, conservation covenant, use,

     partial use etc.) ?

  1. Length of agreement: 99 years or perpetual, renewable ?

  2. Zoning of land - agricultural (in land titles), but agricultural use is to be banned, de-farming use;

  3. Insurance for conservation agreements, insurance for land and forest;

  4. Effectiveness evaluation of the conservation agreement;

  5. Applicability of the concept of “conservation” to a heavily degraded regional ecosystem.

And more.

Proven best available practices (BAP) and useful for the present case experiences:


Land Stewardship (EU):

Types of land stewardship agreements: landstewardship.eu/land-stewardship/land-stewardship-agreements

(Management support or Management transfer);

Land Stewardship manual: www.landstewardship.eu//images/downloads/European_manual_LS.pdf ;

Land Stewardship networks in Europe, tools, standards and practices;

Respective rights and obligations in the land stewardship or conservation contract.


Catalonia - conservation agreements,

Finland - perpetual easements,

Belgium - private nature reserves,

Spain - Act 42/2007.


Switzerland - more than 100-years experience of the Swiss national park, its history and means of protection provide the best answer to the legal requirements for the present case + law on the Swiss National Park.

One of the three parties in the agreement is to be a Swiss foundation.


Australia - long term experience in private conservation and conservation covenants (Guide_to_Private_Conservation_AU.pdf).


Challenges:

  1. Adapt European experience: due to civil code legal systems (= Chile) and the extensive use of different types

     of conservation agreements it might provide with good solutions to the challenges above.

  1. Replicate and adjust rights and obligations in the Australian conservation covenants.

  2. Take into account requirements of international law, in particular provisions on ecological restoration

    in international agreements.

Other legal issues that require regular attention and solutions:


  1. Conservation easements or real rights vs. private protected areas.

  2. Controversy between conservation and restoration in legal instruments, conservation laws commonly impede

    nature restoration.

  1. Compensation opportunities:

-  the PPAP showed good base for compensative reforestation and rebuilding of wildlife habitat;

- potential areas for compensation are identified;

- suitable for biodiversity offsets (restored habitat of the huemul) or

- compensation biobanks and mitigation (habitat enhancement).


  1. Legal requirements for scientific research and activities, including intellectual property issues.

  2. Legal personhood of nature and land, rights of nature.

  3. Detailed regulations of the PPAP, permitted and banned uses.


Public access to wilderness:

At present Chilean law protects private property in nature areas, which probably constitutes the best environmental practice (BEP) in this field. Right of access to nature areas, whether private or public, adopted initially by some countries as part of general public rights, constitute nowadays a serious threat to natural ecosystems and is quite ofter abused.


Operational legal issues:


  1. Setting up of an independent Foundation.

  2. Monitoring of cases of exposure of private land to public domain.

  3. Taxation Chile:

- no tax incentives for land conservation;

- 40% tax on donations, makes it unlikely to donate land to a State agency for concervation.


  1. No public land property in Chile:   the land cannot be transferred for conservation to a public law entity like an NGO.

  2. Labour law : cases of misuse of the law are common in the region.

  3. Legal requirements for access rights through private properties.

  4. Pesca con devolucion : is banned in many countries as unethical. This is our approach, even though it is authorised in the region.

  5. Mining rights and concessions in the region.

December 2018

The main goal of this aspect of the project is to transform human right to private property

into nature’s right to its original property


Protection from:

Protective individual legal cases initiated by the project so far:

2 cases against tour operators;

1 case against a platform promoting outdoor hiking and riding trails;

1 case against two scientific institutions for advertising part of the property as public scientific tourist domain;

1 case for publishing of information about the project without explicit consent of the project;

1 case for trespassing the property without warning and prior agreement for exploration purposes;

Ensured that 2 trekking routes were removed from online platforms;

Some notifications to the police for camping within the property and one - for abuse of labour law.


Constant monitoring of potential registration of mining concessions and their visits by mining compagnies on the land is ensured. Monitoring of application of national wildlife law.


Part of the legal support of the project is protection of the Right to the Image : as a general rule publications, including text and images, about the project in mass and/or social media are not authorised by the project, unless  explicit consent is given by a responsible authority of the project. Any publication to which explicit informed consent has not been granted will be considered as reprehensible and therefore legally contested.