Legal Tools and Incentives for Private Lands Conservation in Latin America: Building Models for Success . Environmental Law Institute, Centro de Derecho Ambiental y de los Recursos Naturales, Centro Ecuatoriano de Derecho Ambiental, Comite Nacional pro Defensa de la Flora y de la Fauna, Fundacao O Boticario de Protecao a Natureza, Pronatura, A.C., Proteccion del Medio Ambiente Tarija, and Sociedad Paruana de Derecho Ambiental . 2003 . Environmental Law Institute , Washington , D.C. 216 pp . ( 206 + x ). $24.00 (paperback) . Free download at http://www.eilstore.org/book . ISBN 1-58576-059-5 .
Legal Tools is a multiauthor work that brings together the collective experience of attorneys and nongovernmental organizations (NGOs) working in the field of private-lands conservation in Latin America. Based on a comparative diagnostic framework, the book compiles and synthesizes country reports for 10 Latin American countries and somewhat gratuitously includes reports for the United States and Canada. After a brief introduction, the book describes the need for private-lands conservation in the region through landscape ecology strategies, such as corridors and buffer zones, that complement networks of public protected areas. The development of conservation easements in the common law of developed countries has stimulated considerable interest in this and related private-lands conservation tools throughout Latin America. This effort is spurred, no doubt, by the success of large NGOs such as The Nature Conservancy.
As a practical matter, the attention focused on private-lands conservation in the region far outweighs its present conservation contribution, a fact that Legal Tools concedes when it describes the role of private-lands conservation as complementary and strategic to national biodiversity conservation strategies. The book describes limitations on private-lands conservation that contributes to this conclusion, such as relative size, its ad hoc nature, enforcement, the lack of subsurface rights, and problems of intergenerational stewardship. A key and valid point of the book is that private-lands conservation did not begin to flourish in common-law countries until certain legal impediments were removed and new legal tools in the form of incentives were developed through legislation. However, the social and economic context of Latin America affords no guarantee that a similar result will follow in that region, even given enabling legislation. Moreover, despite the growing interest in private-lands conservation over the last decade, no country in the region has reformed its laws to specifically enable and incentivize conservation easements—something that should be neither difficult nor controversial.
Legal Tools is useful for lawyers new to the field and for conservation practitioners, policy makers, and donors who are assessing the merits of investments in private-lands conservation in the region. Chapter III presents a useful taxonomy for understanding the variety of legal tools for private-lands conservation, although some of these strain the meaning of the terms. For example, the taxonomy includes the novel approach of “conservation concessions,” although these refer to the conservation of public lands by private entities. Under this rationale, one would have to include other mixed approaches to conservation, such as comanagement of publicly owned protected areas. The taxonomy also includes a category for “mandatory land use restrictions,” opening the discussion to traditional command-and-control regulatory policies. The limited discussion of land-use regulation that follows does not appear to justify its inclusion in this book. The most appropriate context for this involuntary tool in the book is the declaration of protected areas that include private lands subject to the broader area's management regime, which the book refers to as “mixed public-private protected areas.” The taxonomy also provides a qualitative assessment of the relative degree of use of the various tools. According to the taxonomy, outright NGO ownership of conservation lands is used the most throughout the region, whereas statutory conservation easements are nonexistent. The taxonomy also suggests that there are no mandatory land-use restrictions in the United States and Canada, an odd conclusion at best.
Chapter IV provides the legal context for private-lands conservation and offers insights into some of the difficulties faced by advocates of private-lands conservation that are inherent in Latin American legal and political traditions, especially agrarian reform and indigenous rights movements. The book briefly discusses the “social function” doctrine in Latin American property law, a legal doctrine that was developed to promote settlement of the agricultural frontier and to assure “productive use” of land. One consequence of social function is the discouragement of large holdings by private parties, especially when lands are not being put to productive use. The impact of this doctrine on conservation policy cannot be overstated, and it has been adapted in recent years toaccomodate ecological uses in some countries (Ankersen 2003).
Chapters V–VII summarize and contextualize the variety of tools for voluntary and involuntary conservation on private lands and the economic incentives that pertain to the former. There is a long list of voluntary methods, the most notable of which are private reserves and limitations such as civil law (appurtenant) easements. In contrast to conservation easement legislation, most Latin American countries have private-reserve-enabling legislation, which appears to be the most significant of the voluntary tools described in terms of breadth of use and hectares protected. The 300,000-ha Putalin Park in Chile was established under such legislation and is a source of political controversy because of foreign ownership by a U.S. land trust.
Chapter V describes the very significant role of communally owned property in Latin America, a species of “private” property with which the United States has little experience. How these lands are managed from within the communal title remains something of an enigma that can greatly affect the future of conservation in the region (Ankersen & Barnes 2004). The book acknowledges that the lack of incentives has a great deal to do with the underutilization of voluntary land-conservationtools.
The richest and most interesting aspects of the book are the individual country studies that follow the synthesis in Chapters V–VII, especially the case studies selected for special treatment. These provide insights into the variety of ways that conservation can be accomplished in a region that includes the 12 countries surveyed, and they reveal the creativity of attorneys and conservation practitioners when faced with specific conservation challenges involving private lands. Foremost among these are carbon-sequestration contracts in Brazil, so-called “conservation communities” (limited real estate developments) in Chile, environmental service payments in Costa Rica, a conservation concession in Peru, community accords in and among Mexico's communally owned ejidos, and a successful legal defense of a private conservation easement in Vera Cruz, Mexico, based on the easement's social function. Though not included as a case study, Costa Rica also is significant for the degree to which it has been testing the private civil law of appurtenant easements, which currently require contiguous properties. Lawyers in that country reportedly have inscribed in the property registry easements that include nonadjacent lands sharing the ecological appurtenancy of seasonal animal migration, an innovative jurisprudential development in the civil law.
Legal Tools offers the first regional perspective on legal aspects of private-lands conservation in Latin America. Copious endnotes ensure that the reader can delve further into the issues presented. The book also includes model laws for private reserves and conservation easements as appendices. Despite some unevenness in its delivery, Legal Tools should be read by conservation practitioners seeking to understand the variety of tools that may be available to practice private-lands conservation in the region and the impediments totheir use.