Preserving Patagonia: The Constitutionality of Chile’s New National Park

By Angela Gamalski

In February 2018, the Republic of Chile announced a new national park system created in the region of Patagonia.[1] Currently, about one-fifth of Chilean lands are protected under its state national park system (Sistema Nacional de Areas Silvestres Protegidas).[2] Now, a total of 28 million acres of Chilean land is protected by its government. This is an increase of over 50%[3] and does not include the additional Chilean lands have been privately protected through individual and non-governmental organization (NGO) investments.[4]

Americans may feel that the national park concept was developed in the United States or perhaps attribute national conservation to figures such as Theodore Roosevelt. However, conservation is neither a uniquely American concept nor as young as the turn of the 20th century. In fact, the first national park was created in Mongolia in the 1770s.[5] Over the twentieth century, many nations have implemented national park systems.[6] These developments have not been limited only to the industrialized nations. For example, the Serengeti is jointly protected by the countries of Tanzania and Kenya.[7] However, the lack of formal infrastructure in developing world nations has been a significant challenge to achieving actual resource protection.

The International Union for the Conservation of Nature (IUCN) has developed a categorization system for defining protected areas. A national park is defined as “A clearly defined geographical space, recognized, dedicated and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values”.[8] Other categories of protected areas include: strict nature areas, wilderness areas, national parks, national monuments, species management areas, protected landscapes, and managed resource protection areas.[9] These categories are defined by the amount of human interference that is permitted within the natural area. Following this hierarchy, a national park may allow greater human interference than a strict nature or wilderness area, but less than a national monument or the other protected area types.

Patagonia boasts unique geographical features. Historically, Patagonia has experienced little human development as one of the most remote parts of South America.[10] Patagonia has faced man-made challenges as well from the competing interests of conservation, agriculture, mining, and logging.[11] As a result, the entrepreneur Doug Tompkins and his wife Linda Tompkins had been able to acquire over 700,000 acres of land in the pristine Patagonian wilderness. However, changing political dynamics made establishing legal protections for the land as a national park difficult for the Tompkinses.[12] For example, the Chilean government has veered between political parties; while the Socialist political party currently in office has been amenable to this project, the previous Christian Democratic administration actively blocked the Tompkinses’ efforts.[13] The Tompkinses’ motives, in particular, were highly questioned by various Chilean groups.[14]

In 2015, Doug Tompkins tragically passed following a kayaking accident.[15] He and his wife had been in the process of donating his then-total 1 million acres of Patagonian land holdings to the people of Chile if the government would match the donation and establish a national park system.[16] This gift was finalized as a 10-million acre park, which President Michele Bachelet announced in February 2018.[17] However, it is unclear if this was the type of legal change permitted under the Chilean Constitution, as described below. Assuming that IUCN’s legal classification is followed, Patagonia will receive some protections, but some human interference within the environment will be allowed.

In Chile, the President (Presidente de la República) is directly elected by voters.[18] The President, directly elected every four years, is empowered to appoint Ministers and enact regulation.[19] The Chilean legislative branch, known as the National Congress, is a bicameral legislature with a Senate (Senado de la República) and a Chamber of Deputies ( Cámara de Diputados).[20] The Chilean Constitution empowers its legislature to enact laws.[21] Additionally, the President has some legislative powers: he or she may initiate bills on some matters and is empowered to either endorse or veto a bill developed by the National Congress in whole or in part.[22] However, it is unclear that the Chilean Constitution permits the President to designate this level of land use.

Many groups which conduct efforts to protect natural resources tout the broad societal benefits of conservation.[23] For example, the term “national park” is a world-recognized phrase which establishes branding for the protected area and can attract tourists.[24] Ecotourism is a rapidly expanding vacation niche.[25] In particular, those individuals with interests in ecotourism are often willing to pay a premium for services that are established as environmentally friendly.

However noble, expansive legal protection for pristine land also poses social challenges. Indigenous peoples can be and have been forced away from their ancestral homes in order to protect the broader landscape. An economist might argue that NGO and private investment-driven park creation is a reasonable step as the party who most values the land’s use has paid the market’s price to establish their preferred use. However, expansive land use restriction may not be the most rational system when considering the macroeconomic environment.

For example, Patagonia is rich in mineral resources and would be a hotbed of activity for mining or logging.[26] As a result of these protections, these mineral and timber resources are forever cut off from use by the local population of Patagonia. Additionally, the jobs created by a park development may not truly stimulate the local economy and improve the quality of life for those in the region.  

This private-public conservation partnership raises some questions as to whether the sovereign controls of the Chilean Constitution have been observed.[27] Whether or not the people of Chile now agree with the new Patagonia national park system remains to be seen. Should they disagree, Chilean citizens can utilize their voting powers to ultimately express their opinion at the polls.

[1] Pascale Bonnefoy, With 10 Million Acres in Patagonia, a National Park System is Born, N.Y. Times (Feb. 19, 2018) https://www.nytimes.com/2018/02/19/world/americas/patagonia-national-park-chile.html

[2] National parks and reserves, Rough Guides (last accessed April 24, 2018) https://www.roughguides.com/destinations/south-america/chile/national-parks-and-reserves/

[3] Computation performed by the author.

[4] Brent Mitchell, Bosque Pehuén: private, voluntary protection in a Chilean forest, IUCN Blog (Mar. 28, 2018) https://www.iucn.org/news/protected-areas/201803/bosque-pehu%C3%A9n-private-voluntary-protection-chilean-forest

[5] National Park, Wikipedia (last accessed April 24, 2018) https://en.wikipedia.org/wiki/National_park.

[6] National Parks and Protected Areas, National Parks (last accessed April 24, 2018) http://www.nationalparks.gov.uk/students/whatisanationalpark/nationalparksareprotectedareas.

[7] Serengeti (last accessed April 24, 2018) http://serengeti.org/main_serengeti.html

[8] National Parks, supra note 6.

[9] Id.

[10] https://www.huffingtonpost.com/entry/chile-national-parks-trump_us_5a72dacae4b0146e594458c6

[11] Larry Rother, An American in Chile Finds Conservation a Hard Slog, N.Y. Times (Aug. 7, 2005) https://www.nytimes.com/2005/08/07/world/americas/an-american-in-chile-finds-conservation-a-hard-slog.html

[12] Id.

[13] Id.

[14] Id.

[15] Bonnefoy, supra note 1.

[16] Id.

[17] Id.

[18] http://www.nyulawglobal.org/globalex/Chile.html

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Jeremy Hance, Environment versus economy: local communities find economic benefits from living next to conversation areas, Mongobay (Jun. 12, 2011) https://news.mongabay.com/2011/06/environment-versus-economy-local-communities-find-economic-benefits-from-living-next-to-conservation-areas/

[24] Id.

[25] Paul Eagles, Trends in Park Tourism: Economics, Finance and Management, 10 J. of Sustainable Tourism, 132 (2002) http://ahs.uwaterloo.ca/~eagles/documents/TrendsbyEagles.pdf

[26] Rohter, supra note 12.

[27] Id.