blog In environmental law center we learned of the ruling in the lawsuit brought by the Treasury against Candelaria Forestry SA and Rio Puelo Piedras Moras Company SA (Supreme Court, August 31, 2010, Docket 5027-2008). This is a case in which sentence to a couple of companies to compensate for damages resulting from environmental damage posed by the exploitation of protected tree species. Specifically, a forest clearing, contract authorized by the owner, a significant number of larch which estimates a rate of three meters in diameter could be about 3000 years. Larch ( Fitzroya cupressoides) is a rare species, typical of northern Patagonia, whose exploitation is prohibited in Chile for having the status of "natural monument", he was assigned as the rules of the Washington Convention for the protection of flora, fauna and natural scenic beauty of the Americas. Under the Convention, the natural monuments is given "absolute protection", preventing their exploitation. Decree 490 of 1976, which made the score of natural monument, commands have the "inviolable and Prohibits cutting and destruction of Larch, unless authorized, qualified and informed" of the Conaf.
So far, the face, "disputed" by the Washington Convention was known for allowing the compensation of forest companies, pursuant to its rules, had been deprived of the possibility of exploiting certain forest species. Araucaria araucana, in particular, has given rise to very important decisions on this, from Galletué jurisprudence (Supreme Court, August 7, 1984), which is roughly equivalent to the case La Fleurette in French law. In Galletué, ruling that dates from mid 1980, the Supreme Court ruled that it was right in equity compensation to a community of the Araucaria forest owners, pursuant to a decree which described this species as a natural monument, is were deprived of the opportunity to practice economic activity (involving the exploitation of these trees.) The interpretation of the law Galletué has been arduous. There were those who wanted to justify the value that the Chilean Constitution assigns the right to property, in fact, the best known result of this case, the sentence handed down in the case Lolco (Court of Appeals of Santiago, November 21 2003, uncensored by the Supreme Court, December 30, 2004), used in various paragraphs in the value of the property to explain why in this case would have led to property owners affected by the prohibition of exploitation and unusual damage particular, as required in case law to accommodate the Fleurette-compensation. The sentence
Puelo denies that the property is a concept crucial to understanding this case. The Treasury had exercised an environmental action, aimed not only to repair the damaged environment but in addition to compensation for damages caused by the exploitation of a species should remain intact. As expected, the defendants were defended by arguing that there was no harm, since the operation had involved the young of species of private property of its owner. This argument, which persuaded the Court of Appeals rejected by the Supreme Court on the basis of the logic of this responsibility is built around the idea of \u200b\u200benvironmental damage . For the Court, "the final and irreparable loss of 25 individuals of the species 'larch', protected as natural monument by the State of Chile, representing a decrease of biomass or biodiversity ..., which forms the environmental heritage of the Nation, which obviously is a damage which would allow the State to pursue compensation (cons. 17). The Court thus makes clear that the notion of harm can not be reduced to the mere existence of a property right affected.
Interestingly, the how the Supreme Court sees the effects of the declaration of a plant species as a natural monument. "It amounts to putting the species in permanent ban," said the Court, because the statement carries an inviolability or absolute protection, under which no member of the species, wherever you are, you can be involved in any way for any purpose except for scientific research (cons. 15). Then, when it was declared a natural monument species as it is subtracted from the legal trade (becomes something incomerciable).
At this point, the statement is also relevant in a dimension outside the award: to accept that in themselves operational restrictions or exploitation of certain goods be constitutive of an injury, how to quantify? The early failure Abalos (Supreme Court, December 10, 1889) and aimed at precisely on a similar circumstance, as to determine the value of sandiales destroyed (destruction in this case sought to prevent the spread of a cholera epidemic lashed to the province of Aconcagua), beyond the technical rigor associated with the opinion of experts, the Supreme Court requires that should be addressed to "benefit their owners could report them, taking into account the circumstances have been Spendius forbidden fruit to its March 8, 1887. " As can be seen, it is very difficult to value the "damage" allegedly caused an act allegedly causing the incomerciabilidad of a thing, since the thing itself is worthless, it is counterintuitive that the damage would lead to the loss of value thing.
seems that if it were necessary to identify relevant injury for purposes of liability, it would be rather than on the object to be marketed suppresses the effect that this entails in the person of its owner. Notwithstanding the need for further analysis of this question, I venture to think that this effect to some extent equivalent to a special disability enjoyment. The measure reduces a significant proportion of the personality attributes of those who have some ownership of the object become incomerciable. My impression is that Galletué failure, unlike what happened in the decision-Lolco these concepts are properly understood, to the extent that the damage was not as individual property loss of trees but rather as the loss of turn of a business unit that served only to the exploitation of Araucaria. Now if this analysis is displayed correctly, by its nature this subject would be closer to moral damages another thing, which should also have an impact on their way to recovery.
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