The state as custodian of nature

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Central Valley, Chile. Photo: Ximena Salazar Central Valley, Chile. Photo: Ximena Salazar
By Pia Weber
Overexploitation of the environment, privatization, pollution, lack of access to beaches, rivers and lakes, among many other things, are signs that the current Chilean Constitution, and the laws that have been passed in accordance with it, have not been able to guarantee due protection of nature.
In response to this lack of protection, and considering the absence of a popular action on these issues, and the great interest that exists for environmental protection and the communities that develop around ecosystems, a group of lawyers specializing in environmental issues have prepared a proposal for articles to the Constitution that seeks to establish the State as the custodian of nature.
What does it mean for the State to be the custodian? Custodianship is a much higher standard than protection. It implies that it must always oversee and guarantee the integrity of ecosystems and the maintenance of their contributions to society.
This proposal, which has already been supported in social networks by Cristina Dorador, Marcelo Mena, Paulina Astroza and others, seeks to develop an approach that comprehensively addresses several of the problems that are generated around the different aspects of the environment, such as water, the marine ecosystem and the mountains. These problems refer to issues such as ownership, restrictions when allowing private uses of natural public goods -which belong to everyone-, responsible access to these spaces, and the possibility of citizen action if the State's duties as custodian of nature are not respected.
The initiative is to date the only one that comprehensively addresses all these issues. "Through this proposal, we seek to facilitate the process of drafting a norm that will allow us to harmoniously encompass several of the existing proposals and establish a general duty to protect nature, with the due identification of what are natural public goods and the conditions for their private use. All this will require a subsequent revision of the legislation that regulates each of these concession regimes or administrative titles but will avoid a case-by-case regulation at the constitutional level," commented Dominiqué Hervé, one of the creators of the initiative.
Regarding the concept of natural public goods, they understand it as the goods "common to all citizens," and with its regulation it would be possible to improve their standard of protection and establish that in case these goods are given in a privative way to certain persons or organizations, this occurs in consideration of the public interest and collective benefit. "This does not happen today. For example, state lands can be handed over for any use, without any consideration for the public interest and collective benefit," says Verónica Delgado, a lawyer and another backer of the proposal.
This proposal would make any privatization of public natural assets to be done under "custody" of the State, on a temporary basis, subject to causes of expiration and revocation, with specific conservation obligations, establishing limitations, restrictions, and fees, as long as they are justified in the public interest and collective benefit. These titles do not generate private property rights.
The preparation of this article was led by professors Dominique Hervé (Universidad Diego Portales), Veronica Delgado (Universidad de Concepción), and Matias Guiloff (Universidad Diego Portales) together with diverse contributions and support from a broad group of lawyers and specialists in environmental issues, including David Tecklin, Carl Bauer, Tomás Mckay, Javiera Calisto, Valentina Durán, Felipe Guerra, Manuel Prieto, Ignacio Martinez and Ana Lya Uriarte. All of the aforementioned have expressed their support for the drafting of the clause, understanding it as a contribution to the constituent process and the need to advance toward greater environmental protection.
In addition, several organizations have lent their support, such as the Program in Law, Environment and Climate Change of UdeC, the Environmental Law and Policy Program of UDP, the Center for Law of the Sea of PUCV, the Austral Patagonia Program of UACh, the Center for Environmental Law of Chile, Observatorio de la Costa, Oceana, Ecosistemas, Fundación Ngenko, the Sociedad de Ecología, and the Sociedad Geológica de Chile. You can see the complete list online here
This is a proposal by the Plataforma para la Custodia Pública de la Naturaleza (Platform for the Public Stewardship of Nature). To support this initiative, click the following link.