Traditional property rights have existed for 2000 years, we are witnessing the emergence of a new kind of property right: the ´conservation right´ (the ´Conservation Right´) which has stemmed from research conducted in the UK (U. of Edinburgh) and Chile (Ubilla 2003, 2014, 2016)
The Conservation Right, already enacted as law in Chile, is a property interest that consists of the right to conserve environmental attributes or functions of a certain land or real estate. It is a direct normative power to conserve those attributes and functions and facilitates management and assigning value to the conservation of ecological attributes and functions. In contrast to traditional notions of easements or covenants, which represent restrictions on land-use, the Conservation Right enables interested parties to register, manage and conserve intangibles, including ecosystem services, as assets of a particular property.
The Conservation Right is registered akin to other property rights over land or real estate -which in Chile includes water rights, mining rights, and other concessions- and it can also be freely transferred.
The Conservation Right presents a significant shift in the way sustainable development can be funded and legislated. From the economic perspective, it facilitates the creation of novel markets for long-term investment in natural capital assets that deliver a multitude of benefits. From a social perspective, it enables the law to capture these intangible assets as the legal object of the entitlements of various groups and individuals.
The affirmative character of the Conservation Right represents a ground-breaking legislation that paths the way for economic and legal systems to affirm the value of goods, services, and benefits (the myriad values) that nature provides to a multitude of social and ecological systems.
It is envisaged that the Conservation Right is an innovative property right delivering benefits to those who own, manage, and benefit from the diffuse values provided by a given land holding.
The Conservation Right also aligns with ´compensation systems´ (including the offset system of the Environmental Impact Assessment System), because it is an adequate legal instrument for transferring the corresponding mitigation/compensation measures.
Most importantly, whereas traditional compensation measures are treated as accounting expenses, the Conservation Right enables the same compensation measures to become accounting assets. This facilitates the unfolding of new market investment opportunities.
The emergence of natural capital markets is approached from ecological, economic, managerial, methodological and scientific perspectives. The role legal systems play in implementing new social practices and markets is often forgotten.
Pre-modern legal tools, developed for extractive economies, for the implementation of traditional policy frameworks present a barrier. These ‘old’ legal instruments, such as traditional property rights, are not suited to the emerging social and environmental complexities regarding the quantification, utilisation and management of natural capital. Moreover, those old instruments do not promote the unfolding of cooperative practices between and among diverse stakeholders.
The Conservation Right is triggering new social practices, markets, and new forms of multi-disciplinary cooperation with respect to the sustainable use of nature.