Legal aspects of land protection

So far the Project 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 private protected areas.


☀︎ 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 13 years of work on the Project, the initial fundamental actions and experience gained need to be consolidated for future by appropriate legal arrangements. These arrangements shall:


  1. Ensure rights of live Nature, follow the laws of nature;

  2. Consider property on land as responsibility;

  3. Be custom-fit to the present case;

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

  5. 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. Nature requires long-term planning, actual

    political systems’ planning is done for 4-5 years, restoration shall be protected irrespectively of the social environment

    of the nature protected area;

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

  2. Provide for a legal holistic 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”, anti-commodification 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), also on the page of ACCh.


Challenges:

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

     the needs of the Project;

  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,


The Project is based mainly on European approach to Real Rights and land stewardship:


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.


Thanks to globalisation the land stewardship principle can be applied internationally.


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 and the Law of the Mountains. However the Law on Landscape Protection is oriented at conservation only and therefore prevents ecological restoration efforts.

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


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 Project 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 Nature protected area, permitted and banned uses.


Public access to wilderness:

At present Chilean law protects private property in nature areas, which probably constitutes one of 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. Practical application of custom-made legal programme and solutions to the area of the Project

  2. Setting up of an independent Foundation.

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

  4. Taxation Chile:

- no tax incentives for land conservation;

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


  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.

01.2018 - August 2019

One of the main goals of the Project is to transform right to private property

into Nature’s right over its own life


All legal actions are Nature-oriented, land-protective

and designed to prevent the treatment of Nature as mere commodity on the long-term basis.

Nature is considered as a major stakeholder in all legal decisions.


“Law is not created at once, and cannot be simply transplanted

from one soil to another. It grows organically, and one or the other

external circumstances can only accelerate or slow down its development”.

Anatoly Koni, “On the right of necessary defense”, 1865


There is no local national legislation that protects the decision of owners to protect their land from commercial or industrial activities. Hence the need to develop custom-made and workable legal (research and management) programme for the Project, responding to ethical needs of the Project, based on international, comparative and national law, and including the following elements:


Legal status of land: private property, all relevant laws and legal requirements to private property apply.

Nature-protective legal cases involved :

● A local newspaper;  ● 2 tour operators;  ● an online platform promoting outdoor hiking and riding trails; ● 3 scientific institutions for advertising part of the property as public scientific domain (under monitoring);  ● publishing of information about the project without explicit consent of the project; ● trespassing the property without warning and prior agreement for exploration purposes; ● 2 trekking routes were removed from online platforms;  ● notifications to the police for camping within the property; ● abuse of labour law.

Constant monitoring of potential registration of mining concessions and visits by mining companies 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.


As private area and property, it is protected by laws on trespassing, according to which it is not allowed to take photos or videos of the property without explicit consent of the landowners. General relevant legal rules:

- Straight passage through the property does not mean an authorisation to take photos of it;

- Extending a camera over a fence may be a trespass;

- Flying over a property for the purpose of taking photos may be a trespass;

- "No Trespassing" signs are not required in order to establish a space as private;

- If you have permission (sometimes called a "license") to be in a particular location or take photos there,

        do not abuse the permission.


You can be sued for “nuisance”: in terms of photography and video, a nuisance is some activity that interferes with a property owner's reasonable use of his or her own property. As well as of invasion of privacy.

Professional photography or filming is a commercial activity obeys laws on commercial activities or business. Thereby it is in no way authorised within the Project. 

Dura lex, sed lex,

“The law is harsh but it is the law”, basic principle of any legal system