Fundación Tierra Austral: The Chilean Land Trust Behind a Historic Civil Law Innovation

Lily Robinson – Program Coordinator, ILCN

Javiera Yáñez – Director of Development and Communications, Tierra Austral

In late 2021, a group of conservationists stepped out of a car in Chile’s Cerro Poqui Nature Sanctuary in the O’Higgins Region of Central Chile, less than two hours south of Santiago. They gazed out over the mountain range stretching before them. The peaks rose from intact forest and Mediterranean habitat that is among the highest priority for conservation, while also being one of the most threatened and least protected biomes in the world. One of the onlookers, Henry Tepper—an adjunct professor for the Harvard Extension School and lifelong conservation leader—was seeing the landscape for the first time since it had been protected in December of 2020. In its vastness, he saw decades of work at play and a result that, just five years prior, was a legal impossibility.

“It was an amazing exhilarating moment, to realize that the tool that we had created and worked so hard to create was working,” Tepper said.

The tool was the Derecho Real de Conservación (DRC)—or real right to conservation—which was formally created in 2016 thanks to the bootstrapped work of conservationists, policy makers, legal scholars, and philanthropists from several countries. Through land trusts, including Fundación Tierra Austral (Tierra Austral), DRCs now protect 25,000 hectares (about 61,780 acres) across Chile’s Boldo to Cantillana Corridor, Patagonia, and beyond.

Learning from abroad

In the early 2000s, a small group of conservationists trekked from Chile to the city of Providence, Rhode Island, in the United States, where the Land Trust Alliance had brought the domestic community of practice together for its annual rally. There, the group saw a wave of innovation that had yet to sweep Latin America. In the US, private land conservation was safeguarding millions of hectares of ecosystems, filling in rich pockets and crevices across the nation that could not be reached by government.

The trip was both inspiring and eye opening. Chile comprises varied and unique landscapes from the world’s driest desert to lush temperate rainforests. Its ecosystems are home to over 7,000 endemic species and these resources are under threat from industry, which has driven significant ecosystem losses in the past several decades. But over 60 percent of land in Central Chile—and about 47 percent of the nation as a whole—is privately owned and, in the early 2000s, Chile’s toolbox for private land protection was sparse, if not entirely empty.

Back home, these conservationists had a strong network of experts, swaths of richly biodiverse landscapes at risk for development, and the will to conserve them; but private conservation was stubbornly inaccessible.

Much of the work that was happening to protect private land in North America was facilitated using easements. A similar mechanism called a covenant was also at play in Australia. These countries—whose legal systems were shaped by the influence of English colonizers—practice English common law, which views land ownership as a bundle of rights over an area. It allows a landowner to give away development rights over their property or to conserve it.

“[The existence of conservation easements] is the engine that drives the land trust movement in the United States,” said Tepper.

In nations with civil, or Napoleonic, legal systems, this same function typically does not exist. Until recently, civil law did not allow people to own land for conservation purposes. That right was not part of their ownership bundle.

Despite this, conservationists were trying their best to protect private lands in Latin America, and they had the support of the international community.

Framing the future

In 2006, The Nature Conservancy of New York State sent Tepper, then its executive director, to Chile for three months on a special assignment to explore the potential of private land conservation. One of Tepper’s assignments was to help forge a partnership between The Nature Conservancy (TNC) and the Chilean-American Chamber of Commerce (AMCHAM).

Tepper, who is now the Strategic Conservation Advisor at Tierra Austral, immediately received valuable support from an informal team of Chilean conservation visionaries. Its members included AMCHAM president and lawyer Michael Grasty; TNC’s Francisco Solis and Victorio Alonso, the latter of whom is now Tierra Austral’s dynamic executive director; lawyers Roberto Peralta and Rafael Asenjo; retired computer company CEO Marcelo Ringeling; and Kathleen Barclay, a prominent business leader in Chile. Grasty is now the Chair of Tierra Austral’s Board of Directors and Asenjo and Barclay are members of the Board, while Solis is the Director of the Pew Charitable Trusts in Chile, and an important partner to Tierra Austral. 

The team worked closely with a cross-cutting group of leaders from the industrial, mining, agricultural, forestry, and fishery sectors, and government officials. Together, they began to shape the narrative of private conservation, framing it in a universally positive and results-oriented light.

The TNC-AMCHAM team told the public and private sector leaders they met with about the success and practicality of the private land conservation movement in the US, Canada, and Australia. They also noted that Chile has a strong, expanding, and export-dependent economy, and that several key global markets—such as the European Union and some US industries—were placing sustainability requirements on products, including timber, fruit, vegetables, and wine. The team went on to say that private land conservation is a way for landowners, including those in the agricultural and forestry sectors, to produce sustainable products using a voluntary, non-regulatory framework.

They also continued to collaborate with conservationists in North America. In 2009, members of the Tierra Austral team participated in the Conservation Capital in the Americas conference in Valdivia, Chile. There, Tepper and Alonso presented a paper that was later published by the Massachusetts-based land-policy think tank, the Lincoln Institute of Land Policy. Then, in 2011, members of Tierra Austral traveled to the Lincoln Insitute where then Director of Land Conservation Programs, Jim Levitt, led a study tour that visited the Boston Common and the Waverly Trail in Belmont, Massachusetts. The program served as a way to share ideas, discuss conservation history and evolution in the United States, and spark long-term working relationships.

Putting words into practice

In 2012, the group began to try its hand implementing the mechanisms that existed, using the knowledge they had networked. That year, they established Tierra Austral with the goal of protecting the 3,200-hectare (7,907-acre) of a property called Valle California, a magnificent Patagonian landscape in Chile’s Los Lagos region.

To protect Valle California, the team used a servidumbre voluntaria agreement. This was the most comparable tool to an easement available in Latin America then. But it had several drawbacks that kept it from being an efficient and permanent private land conservation mechanism.

One of the risks of using a servidumbre voluntaria to protect land was that it was potentially quite vulnerable to legal challenge. Chile Civil Law, which relies strongly on statute, does not explicitly state that this servidumbres can be used for land conservation purposes, though the team at Tierra Austral worked hard to adapt it for that use.

An unprecedented alternative

Jose Manuel Cruz, a young lawyer who was working with Tierra Austral on a pro-bono basis at the time, was aware of the risks associated with the servidumbre voluntaria. He offered an ambitious alternative: amend Chile’s Civil Law. His suggestion was to create a derecho real—real right—of conservation. At that time, Chile Civil Law had only been amended three times in the nation’s history.

Manuel Cruz’ suggestion would require only a simple change of language but would have a profound effect. If passed, Congress would revise the definition of private property ownership to enable property to be owned for conservation purposes.

“It’s elegantly simple. But that doesn’t mean it’s easy,” said Tepper.

The Tierra Austral team brought Manuel Cruz’ concept to other legal experts around the country. Each one affirmed its plausibility. Not only would the change make private land conservation legal and secure, it would also create a precedent that would be replicable for other civil law countries, potentially solving a significant roadblock for the international community of practice.

The concept of the derecho real de conservación (DRC) was immediately popular. It was brought to Congress by a bipartisan group of lawmakers in 2008, all of whom were excited about the idea.

Then the bill stalled.

For a while, it seemed like it might die as little more than a thought experiment. “There were times that we were being realistic that we thought ‘this might not happen’,” said Tepper.

Chile’s powerful mining sector was particularly wary of the bill. What would this mean for mineral exploration and extraction? Could these companies continue to work on private properties? Those in favor of the DRC reassured the sector that existing extraction claims would not be impacted on properties where the mechanism was implemented after the claim had been filed. Despite quelling those fears, the bill lay dormant for eight years.

The bill was kept alive thanks in part to private support from abroad. The New-York-based Weeden Foundation funded the work of two legal scholars who worked diligently to resuscitate the DRC. Finally, in 2016 it was passed and signed into law by then President Michele Bachelet.

The funds factor

Tierra Austral had unlocked an extremely powerful tool, but another roadblock remained: money. Unlike the North American partners it was modeling itself after, the land trust lacked the financial resources to develop meaningful and trusting relationships with private landowners who might be interested in protecting their land.

It took three years of fundraising before Tierra Austral was able to access the potential of the DRC. That milestone came in 2019, when it was awarded a substantial multi-year grant from the Australia-based BHP Foundation. The grant supported Tierra Austral’s commitment to using the DRC to protect land that was comprised of Mediterranean habitat, which is found in only five places in the world.

Tierra Austral launched, and the BHP Foundation supported, its Boldo to Cantillana land conservation initiative, which is using DRC agreements to protect a Mediterranean habitat corridor stretching from the capital city of Santiago to the Pacific Coast. The initiative also has the ambitious goals of protecting ecosystem-scale landscapes, which are resilient to the negative impacts of climate change, and connecting the Andes Mountains to the Coastal Range.

Building stamina

From here, the land trust’s work had the momentum it needed. Over the next five years, it protected 14 properties using DRC agreements. These lands span 17,000 hectares (about 42,000 acres) of Mediterranean habitat, temperate forests, and ecosystem-scale landscapes across the Boldo Cantillana corridor and Patagonia. Some are publicly accessible privately protected areas and two are in collaboration with business landowners. Each ensures unique and critical landscapes will remain intact for generations to come.

The DRC is still being finessed as conservationists become increasingly adept at maneuvering the legal system to work for the land. In 2022, after more than a decade of work, Tierra Austral and its partners had a hand in passing a tax reform bill to enable tax incentives for private land protection, a strategy that has seen great success in the United States.

Today, Tierra Austral, as an organization, and its Boldo to Cantillana Initiative, specifically, have the backing of a diverse portfolio of donors, including Chilean companies, international charitable foundations, and individuals. This strengthens its programs and illustrates a shift in how private land conservation is viewed in Latin America. Still, the organization faces significant fundraising challenges.

The next chapter of the story of Tierra Austral, the DRC, and the Chilean private land conservation initiative is still being written. Tierra Austral is actively negotiating to protect several more properties using DRCs. These projects range from large, ecosystem-scale landscapes to properties of great importance to Santiago city dwellers. The organization continues to work to increase use of the DRC and to codify the financial incentives available to landowners who protect their land using this agreement.

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