The Conservation Right

The ‘Conservation Right’, also known as the ´Conservation Property Right´ or the ´Environmental Conservation Right´, is a new breed of property right, an affirmative right that intends to facilitate the unfolding of new social practices for the conservation of the environment.

The conservation right has already been introduced in Chile through the enactment of Law No20.930 of June 10th, 2016. Under this legislation the conservation right is defined as ´a property interest that consists in the faculty to conserve the environmental patrimony of a specified land or certain attributes or functions of such patrimony´. [1]

This property right is established voluntarily through an agreement between the land owner and a third party interested in the conservation of the corresponding environmental patrimony -or certain attributes or functions of such patrimony-.

The object and purpose of this right can be the conservation of the natural environment or of the man-made artificial environment, in rural or urban areas.

More broadly, it can be established for the conservation of ecosystems or habitats or of specific ´attributes´ and ´functions´ of the corresponding environment, which means that this new property right can be directly established with respect to specific intangibles or ecosystem services –including those of socio-cultural character-.

The conservation right involves a new paradigm, an innovation to 2,500 years of legal tradition, not only because it allows to delineate and manage ecological intangibles but because it is an affirmative property right -in contrast to traditional restrictions or easements- (Ubilla 2003; Ubilla 2016a Ch.9; Ubilla 2016b). This has consequences in two dimensions: in the economic dimension it means that this new property right facilitates the delineation of natural capital assets -and, therefore, that it facilitates the arising of natural capital markets-; and in the social dimension it means that this new property right is ´reflexive´ to diverse social spheres –and not only to the economic sphere- because it allows for the affirmative representations of broad social values in the relationship to immovable assets –and in the relationships between and among different interested parties and stakeholders that will be represented or facilitated by this legal form- (Ubilla 2016b Ch9).

Please see the section on [Our Endeavor in Chile], where we describe the initial Chilean experience through the first private conservation right and the first State owned conservation right. It should be noted that these two first cases were developed through a pro-bono effort of the Conservation Law Center of Chile, and the purpose was to clearly implement the new reflexive paradigm behind the conservation right (Law 20.930) in the sense of creating legal structures that would facilitate the inclusive and reflexive interaction between and among different stakeholders for the generation of knowledge and for the promotion of sustainability.

It is the interest of our organization to promote this new form of property right worldwide, facilitating and supporting the legislative processes for its introduction in –and adjustment to- different legal systems.

[1] This is a free translation of Article 2 of Law 20.930. This translation does not accord with the legal language of the common law tradition because: (i) The idea of ´facultas or potestas´ is idiosyncratic of the continental law tradition (See Ubilla, Jaime 2017); and (ii) The concept of ´environmental patrimony´ also follows a continental tradition whereby the idea of ´patrimony´ combines the ideas of ´heritage´ and ´assets´. The Chilean legal system provides an express definition of ´environmental patrimony´ -which basically makes reference to the broad legal definition of the ´environment´ (Law 19.300, Art.2.).