LEGAL ASPECTS OF PROTECTION OF BIODIVERSITY

IN CHILE

by Liya Khanipova, 2014

Geographic and biodiversity peculiarities of Chile

• Geographically, climatically very heterogeneous;• Extends from a latitude of 17° South to Cape Horn at 56°;• From north to south extends 4,270 km;• East to west average – 177 km;• Atacama Desert in North, Andes in East, Pacific Ocean in West and South Pole in South;• Isolated territory, comparable to an island.

• In Chile approx. 30.000 species are known which corresponds to 1,93 % of all the species described on the planet; • Chile is one of the countries with less biodiversity rates in South

America;• For example, in birds - 450 species, whereas in Bolivia and Peru

more than 1200 species, in Colombia 1.721);• High levels of endemism (~25%): 65% of amphibians, 63% of

reptiles, 55% of fishes of continental waters, 50% of plants pertaining to Chilean territory;• 13,5 millions of hectares or 87,2% of Chilean woodlands are native

forests;• 4,5 millions of hectares or 6% of Chilean territory are wetlands; • 80% of territory corresponds to mountain terrain (Chilean coastal

mountain range and the Andes).

Why shall be protected Chilean biodiversity• High levels of endemism: protection of species existing only in Chile;• Species under threat of extinction (35% of land vertebrates with problems of conservation; 100% (44 species) of fresh water fishes with serious problems of conservation; • Exotic invasive species: almost 15% of Chilean wild flora, special case of Juan Fernández Islands where almost half of species are exotic provoking problems of conservation of native species, especially endemic ones; • Unique ecosystems, like winter rainfall-Valdivian forests, Humboldt Current Ecosystem, etc;• According to different resources there are 170 000 species to discover, half of them are arthropods (Ministry of Environment).

Actual problems • Lack of information and investigations about species, their state of conservation and functioning of ecosystems;

• Protection of biodiversity only within protected areas, doesn´t extend to other territories;

• Protection of biodiversity is decentralized between many authorities. CONAF- national parks and reserves (19% of territory), native forests, fisheries and agriculture;

• Half of protected areas are glaciers and territories with minor investment capacity;

• According to the analysis prepared by Institute of Ecology and Biodiversity in 2013 55% of all the ecosystems in Chile are in danger (from 22 ecosystems 4 are critically endangered, 8 endangered; 8 vulnerable and 2 of minor concern); •Weak ecological corridors between protected areas; • Lack of financial resources and investment;

• Overexploitation of species: illegal hunting and fishing;• Air pollution: from industrial and vehicle emissions;•Water pollution: from raw sewage (by 1990 only 10% of urban wastewaters, by 2007 - 82,3%); by 2006 0,81% of Chilean territorial waters are under protection;

• Deforestation: each year 120.000 hectares of native forests are cut, and lots of non-native trees are planted (Radiata Pine) and by now replace around 300.000 acres of native forests (ex. Valdivian template forests are under threat due to non-sustainable commercial logging for firewood or timber, conversion to exotic timber plantation, wildfire, overgrazing, major infrastructure projects); firewood extraction; expansion of agricultural fields; forest fires; infringement of forest management plans; Santalum fernandezianum was cut to extinction for its wood and classified as “extinct”.

• Desertification: almost all of the Chilean territory suffers (30-40 millions of hectares), especially in north due to unsustainable mining activities; extraction of water from rivers and lakes, as well as their pollution;

• Invasive species: according to the Global Invasive Species Database by 2008 63 invasive species are registered on Chilean territory; ex. Mink (Mustela Vison) introduced in 1965-1967 in Aysen region now wide-expanded between IX region and Navarino Island in XII Region of Magallanes and Chilean Antarctica and caused depredation of native waterbird species, fish and mollusks, among others. “Control, prevention and eradication of invasive fauna in Magallanes region (2009-2011)”, Program executed by Government;

• In agriculture usage of genetically improved species threatens some native species of potato and corn. Since 1994 almost all transgenic crops are cultivated with no measure of biosafety, provoking contamination of GM-free crops (ex. 23 pre-Hispanic forms of corn are polluted, 7 of them are under threat of extinction; the same with potato, tomato and canola).

International conventions and treaties

• Convention on Biodiversity, ratified in 1994;• RAMSAR, since 1981: 9 wetlands of international importance;• CITES, since 1975; • Convention on Migratory Species, party since 1981;• Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere (1940), in force since 1967 – 96 protected areas were created on base of this convention;• UN Convention on the Law of the Sea (1982), in force since 1997: Chile adopted measures of conservation in order to ensure sustainability of hydro biological resources, measures to prevent illegal fishing;

• Convention for the Protection of the Marine Environment and Coastal Areas of the South-East Pacific (1981), ratified in 1986: prevention and control of sea pollution; • The Protocol on Environmental Protection to the Antarctic Treaty (1981),

since 1998;• The United Nations Convention to Combat Desertification in Those

Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (1994), a party since 1998: forestation, irrigation, recover of degraded soils, that allowed to recover 3 millions of hectares, whereas there are still more than 45 millions of hectares of desertified areas; • International Convention for the Regulation of Whaling (1946);• Vicuña Convention (1980);• ACAP, Agreement on the Conservation of albatrosses and petrels

(2001);• Treaty between Chile and Argentina about Restoration of Southern

Ecosystems affected by the invasion of beaver (Castor canadensis) (2008); • Etc.

*Chile didn´t ratify the Cartagena Protocol on Biosafety, nor the Nagoya Protocol.

National legislation:• Law of Environmental Basis (1994) – sets basic terms; authorization of some investment projects that may provoke environmental impact and mitigation measures that shall be considered. In 2010 an article that determines categories of conservation of species was modified to extinct, extinct in the wild, critically endangered, endangered, vulnerable, near threatened, least concern (corresponding to the IUCN´s categories). • Hunting law (1996) – prohibits hunting and capture of endangered species according to CITES and CMS, regulates commercialization of protected fauna species, operation of rehabilitation centers for wild animals, etc.• Law on fishing and aquaculture (1989) - restrictions on extractions of species, fishing methods, etc. • Law on national Monuments (1970) – defines nature sanctuaries, land and marine areas of scientific interest or public interest.

• Law on forests (1931), Law on the restoration of native forests and forestry development (2008) – restrictions on cut of trees and bushes that protect soils and waters, prohibits cut and destruction of endangered species, establishes special status of some species that are allowed to cut only under government´s permission and never for commercial purpose. • Laws on protection of Araucaria araucana, Alerce, Ruil, Queule, Pitao (native trees); Huemul deer, Chinchilla, etc. Law on protection of cetaceans (2008) – prohibits hunting and capture of cetaceans in Chilean territorial waters.• SEIA (1997) – system of environmental impact assessment; • 2005 – National Policy for the protection of endangered species, coordinated measures of recovery of endangered flora and fauna species;• 2010 – law that establishes system of initiatives for sustainable soil treatment in agriculture, aims at restoring production potential of degraded soils; other selective initiatives.

Actual work on biodiversity protection

• 2009 – decision to create “National system of protected areas (NSPA)” to manage public and private protected areas;• Decision to create Service for Biodiversity and Protected Areas (SBPA);• According to the draft law the Service would be a unique centralized authority responsible for biodiversity conservation, draw a management plan for each protected area (public and private, terrestrial and marine, which should be approved by Council of Ministries for Sustainability, including Ministry of mining, agriculture, energy);

• The new Agency would be able to impose restrictions on economic activities in protected areas, propose new areas that shall be protected and propose changes in management plans, whereas at the moment economic activities can be executed on all the Chilean territory with no exception once approved by environmental impact assessment;• The draft law focuses only on protected areas and doesn´t include measures of biodiversity protection outside the protected areas;• Draft law includes: national inventory of species, plan to protect the endangered species, plan to recover damaged ecosystems, but it doesn´t explain how these would be achieved and financed;• According to critics of the reform if 40% of Chilean territory would be protected and economic activities forbidden, half of economy would be paralyzed;

• In 1996 Chile approved Global Plan of Action for Plant Genetic Resources for Food and Agriculture; in 2001 signed the International Treaty on Plant Genetic Resources for Food and Agriculture;• INIA (Institute of Agricultural Investigations) responsible for conservation (ex situ) and sustainable use of genetic resources, collects, evaluates genetic resources and maintains plant germoplasm; according to Ministry of Agriculture actions plan for 2010-2014 INIA´s budged was increased 10 times and due to this fact germoplasm banks (5) are working in optimal conditions that correspond to international standards. • In 2013 Bank of Microbial Bioresources was launched converting Chile to the 1st country in Latin America responsible for storage of patented microorganisms. • In April 2014 newly elected president Michelle Bachelet withdrew the so called “Monsanto Law” from the Parliament (this draft law promoted transnational seed companies) aiming at protect interests of local farmers and national non-GM seeds.

Lacks in legislation:• Disperse and inorganic legislation; • There is no law that aims at biodiversity protection and no authority responsible for it; • No legislation on the access to genetic resources; • Conservation plays a secondary role for the institutions and authorities working in the area of biodiversity; • Lack of punitive norms in environmental issues;• Legislation sets limits of hunting, fishing, cut of forests, but doesn´t focus on the protection of habitats as a whole; • Still protecting of biodiversity is understood as prohibiting economic activities, no balance between these two.

CONCLUSIONS & RECOMMENDATIONS:

• Centralize legislation on environment, in accordance to the international treats which Chile is a party;• Create an independent integral agency that would coordinate, unify all the measures directed on biodiversity conservation and duly implement legally established procedures on national as well as on regional level (draft law on biodiversity and protected areas); • Draft law doesn´t make any relation with climate change and water conservation; neither does it regulate genetic resources; • Establish a unique system for protected areas, public and private, territorial and marine, on national and regional levels;

• Use IUCN´s categories for classification of protected areas, establish what activities could be and could not be developed in protected areas; • Measures to protect biodiversity shall also cover urban sector, agricultural and industrial areas; • Enhance practices in sustainable agriculture, sustainable use of soils, use of harsh herbicides, pesticides, avoid contamination of native species by GMO cultures, promote organic and ecologically pure production, etc; • Biodiversity protection is concentrated in public authorities, more NGOs, investigation centers, private sector shall be involved, for example through mechanisms of consultations;

• Take into consideration traditional knowledge and respect territories of indigenous groups; include consulting mechanism to indigenous groups as required by Indigenous and Tribal Peoples Convention;• Promote conservation of biodiversity and implement environmental values in younger generations through educational institutions; • Finance scientific investigations and bring qualified specialists in order to obtain knowledge on species, ecosystems and genetic resources; this knowledge is crucial for implementing effective and successful measures; • The actual task is to obtain balance and harmony between biodiversity conservation and economic development.

Bibliography:• Fourth National Report on Biodiversity (2009)

http://www.cbd.int/doc/world/cl/cl-nr-04-es.pdf

• Biodiversity in Chile, Ministry of Environment http://www.mma.gob.cl/biodiversidad/1313/w3-propertyvalue-15594.html

• http://www.biodiversity.cl/

• “Especies amenazadas de Chile”, Comisión nacional del medio ambiente, 2009 ttp://www.mma.gob.cl/biodiversidad/1313/articles-49094_LibroEspeciesAmenzadas.pdf

• http://www.businesschile.cl/es/noticia/reportaje-principal/protegiendo-la-biodiversidad-de-chile

• http://www.latercera.com/noticia/nacional/2014/05/680-577687-9-estudio-revela-que-el-55-de-los-ecosistemas-en-chile-esta-amenazado.shtml

• http://www.chiledesarrollosustentable.cl/desarrollo-sustentable/ministerio-de-medio-ambiente/gestion/convenio-sobre-diversidad-biologica/

• http://wwf.panda.org/who_we_are/wwf_offices/chile/about_chile/threats/

• http://www.terram.cl/wp-content/uploads/2014/04/minuta_servicio_de_biodiversidad_y_areas_protegidas_abril2014.pdf

• http://www.conservacionybiodiversidad.cl/

• http://www.minagri.gob.cl/wp-content/uploads/2014/03/Acciones-y-Mejoras-de-los-Bancos-de-Germoplasma-en-Chile-1.pdf

• Value of biodiversity en Chile: economic, environmental and legal aspects (2001), http://www.terram.cl/images/storiesrppublicos2.pdf

• “Chile: the new government withdraws draft law on “Monsanto” , 15/04/2014, http://www.scidev.net/america-latina/gobernanza/noticias/chile-nuevo-gobierno-retira-proyecto-de-ley-monsanto.html