General Features

The unique features of the conservation right are expressed in its legal definition (Ubilla 2014)[1].

Those features can be summarized as follows:

One. An Affirmative or Active Right
The conservation right is an “affirmative or active” property right, in contrast to restrictions, covenants or easements.

Two. A Right over the Environmental Patrimony
The conservation right entails a direct normative power over the environment –the environmental assets or the attributes or functions of such assets.

This is to say that, as it happens with other active property rights (i.e. ownership, usufruct), the ´legal object´ of this new property right directly refers to the interest of the right-holder -that provides the normative justification of the same right[2]-.

In other words, the direct legal object of this new property right is not the restriction of ownership but the conservation of the corresponding environmental assets[3].

All this does not exclude the fact that, as it happens with the right of 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).

Three. A Right over Intangibles
The legal object of the conservation right can be of intangible nature (attributes or functions of the environmental assets, e.g. scenic beauty, bio-genetic information, Co2 sequestration,) and can refer to diverse attributes or functions of the same environment so that several conservation rights can concur over the same space or property. The latter feature also relates to the ´reflexive nature´ of this property right because it facilitates a broader interaction and cooperation among diverse stakeholders in the same space or property.

Four. A Right over Natural Capital – Promoting the Circulation of New Wealth
The affirmative form of the conservation right also facilitates the understanding that insofar as the corresponding environmental intangibles are considered to be increasingly scarce and valuable -and, therefore, constitute a form of wealth-, this new property right makes possible the delineation and circulation of such natural capital assets. From a law-and-economics perspective this means that an ´affirmative legal form´ entails a reduction of the transaction costs for: (i) the delineation of new assets; (ii) the market circulation of these new assets[4].

In other words, this new right focuses on the delineation of new wealth rather than on the restriction of traditional property[5].

A critically important consequence of this feature of the conservation right was that this new affirmative legal design made it legally reasonable to allow for the indefinite duration of this property right –thereby, overcoming the objections based on the principle of limitation-of-restrictions[6].

Five. A Reflexive Right
The affirmative normative structure of the conservation right facilitates the linking of the system of property rights to private interests of varied nature -that include but go beyond traditional economic interests, thus extending the social reflexivity of the property rights system (Ubilla 2016a Ch.9; Ubilla 2016b ) -.

A broad understanding of “private interest” can include normative expectations from diverse social spheres (e.g. economic, aesthetic, cultural, ecological, scientific, recreational, educational, community, security interests), and the affirmative legal form of the conservation right allows for the reflexive inclusion and interaction of those diverse social expectations within the property rights system (Ubilla, 2016a Ch.9; Ubilla, 2016b).

This relates to a reflexive understanding of the idea of ​​private law that considers the interaction between law and diverse social spheres, thereby going beyond an economic understanding of ´private interest´ (Ubilla, 2016b).

Six. An Inclusive Right – Reflexivity as ‘Inclusiveness’
The reference to ´attributes´ and ´functions´ included in the definition of the conservation right -as possible objects of it- was also originally proposed as a way to facilitate the establishment of several conservation rights on the same property (-with respect to different attributes, eco-systemic services, ecological processes or natural components-) (Ubilla 2014, Ubilla 2016a, Ubilla 2016b).

This is not only important in order to provide diversified sources of financing to a given project, but also in order to facilitate the inclusion or involvement of diverse social interests -social groups and bodies- in the development and management of the corresponding project.

This new right can empower communities, neighborhoods’ associations or any kind of associations to participate in the development of sustainable projects and practices at different levels, including at the community level.

This new right may also be held by private or public legal entities and, therefore, it may also be used for the implementation of public policy agendas -within the scope of the functions of the corresponding agencies-.

This aspect of reflexivity as ‘inclusiveness’ also contrasts with other property rights -including easements- that have been traditionally used to exercise normative control as exclusion. In this sense, traditional approaches to conservation have also been blamed by causing significant forced migrations[7].

This ‘inclusiveness’ also involves a challenge to the theories of property that put emphasis on ‘exclusion’ as de defining feature of property rights, because any conservation right established with respect to any specific ´attribute´ or ´function´ of the environmental patrimony of a given property will have to be integrated into a shared space of interests and management (with the land owner and with other conservation rights´ holders –representing other stakeholders-)[8] .

Finally, this also means that the conservation right should not be subject to the criticisms against ‘propertisation’[9].

Moreover, this new property right facilitates the implementation of public policies –and local municipal policies- and so it can be positively used to take into consideration social and comunitary interests of different kinds. Please see the section on Cases, where we describe the first case of a public (State owned) conservation right.

Seven. A Flexible Right
All of these features make the conservation property right a very flexible legal mechanism that can be applied in the most diverse projects, including without limitation those relating to the creation of parks, green or recreational areas, the development of plans for the management and activation of environmental intangibles, or the development of markets for compensation or mitigation of environmental impacts, among many others.

[1] The final definition adopted by Law 20.930 was originally proposed by the Conservation Law Center in 2015. The original proposal:  Ubilla, Jaime (2014).

[2] As to the normative justification of the conservation property right see Ubilla, Jaime (2016b).

[3] This has broad socio-legal consequences, see Ubilla 2016b Ch8 and Ch9.

[4] For the economic analysis of this aspect of the conservation property right see Ubilla Jaime (2003) and therein the references to Barzel, Yoram (1997). Economic Analysis of Property Rights. Cambridge University Press; North, Douglas (1990). Institutions, Institutional Change and Economic Performance, Cambridge University Press; and others.

[5] This is a consequence of the fact that the new conservation property right is defined and structured both: (i) on the basis of an active normative incident (the ´faculty to conserve´); and (ii) with respect to a new form of intangible wealth. See Ubilla, Jaime (2016a). Reflexive Law and Reflexive Property Rights. PhD Thesis, Faculty of Law of the University of Edinburgh, 2016. and Ubilla, Jaime (2016b).

[6] The original draft of the lower house –the house of representatives- had proposed the creation of an ´easement´ by defining it as an ´encumbrance´. As a result, the original bill established a maximum duration of 40 years-. This relates to the principle known in Common Law as the ´restrictions of restrictions´ which entails that any restrictions to the ownership right must be restricted because such restrictions would encumber the circulation of wealth. As we can see, the proposed change in the legal design -that allowed arguing that this new right facilitates the circulation of new wealth- was critical to the overcoming of the referred time duration restriction.

[7] See Agrawal, Arun and Redford, Kent H. (2009). Conservation and Displacement. An Overview. Conservation and Society, No. 7, pp. 1-10.

[8] This integration into a shared space radically changes the image of a simplified binary ´border-line´ between inclusion and exclusion -that predominates in traditional property rights- into an image of a transitional ´border-space´ that allows for reflexive interactions between and among different perspectives of different right holders. See Ubilla, Jaime (2016a) Ch.7.

[9] As expressed somewhere else: “It is noteworthy that it is exactly this high degree of reflexivity that allows me to say that the creation of a conservation property right does not entail a mechanism of propertisation (Sterckx, Sigrid (2006). Biodiversity under the Law: Protection or Propertisation?. Journal International de Bioéthique, No. 17(4); pp. 55-78) because through this new property right it is not the economic sphere that is expanded to other spheres of society but, instead, other spheres of society that colonize spaces – lands – where traditional property and the economy have previously reigned alone. The conservation property right is in fact a mechanism through which these other social spheres – and other stakeholders – will be able to interact in a social space where traditionally the economic discourse has prevailed. Paradoxically, I believe that in this manner this new property right may also facilitate social processes that could infuse the economy with new social and ecological meanings” (see Ubilla, Jaime (2016a), pp.236).

It should also be remembered that: “as opposed to traditional property rights, the conservation property right is inclusive of the original inhabitants or owners and does not involve their relocation or displacement” (Ubilla 2016a, pp.236).