Arts, Faculty of
Geography, Department of
DSpace
UBCV
Rojas Marchini, María Fernanda
Doctor of Philosophy - PhD
University of British Columbia
In response to pressures from intergovernmental institutions, NGOs, and environmental movements, Chile is crafting new legal and policy frameworks to increase state management and financing of biodiversity conservation. In 2014, the executive branch sent to congress a bill to create a Biodiversity and Protected Areas Service (BPAS). The BPAS, which remains in the legislature, would be a game-changer in a country that has for decades prioritized a neoliberal economic model based on the export of raw nature. Moreover, since the state ratified ILO Convention 169 in 2008 and UNDRIP in 2009, the new environmental institutions must respect the rights and views of Indigenous people – a considerable challenge given Chile’s long legacy of Indigenous land dispossession, forced displacement, and genocide. This dissertation analyzes “the making of the environmental state”: a state with sufficient institutional capacity to protect biodiversity. The questions guiding this research are: What is the character of the environmental state in Chile? How does the environmental state come into being? What is its approach to generating financial resources? And how does it relate to Indigenous people? Based on interviews with state and intergovernmental officers, Indigenous representatives, and private environmental experts, along with a review of governmental documents, I scrutinize the creation of the BPAS bill and its main economic instruments. I trace the legislative history of the BPAS bill, reviewing parliamentary debates around articles which render biodiversity economic. I then focus on one of the bill’s centerpieces, a biodiversity offsets market, analyzing the actors who participated in its crafting, the discourses justifying its implementation, and the market devices in its design. Finally, I shift gears to examine the state's relationship with Indigenous people during a consultation on the BPAS. This research suggests that the state's intimate relationship with global circuits of capital accumulation and policymaking severely restricts its capacity to implement environmental reforms. Furthermore, the environmental state in Chile is invested in internal and settler colonial logics that marginalize Indigenous practices and knowledges.
MAKING THE ENVIRONMENTAL STATE IN CHILE: KNOWLEDGE, MARKETS, AND LEGAL FRAMEWORKS FOR BIODIVERSITY CONSERVATION by María Fernanda Rojas Marchini B.A., Pontificia Universidad Católica de Chile, 2011 M.A. Universidad Austral de Chile, 2015 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY in THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES (Geography) THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) October 2022 © María Fernanda Rojas Marchini, 2022 ii The following individuals certify that they have read, and recommend to the Faculty of Graduate and Postdoctoral Studies for acceptance, the dissertation entitled: Making the environmental in Chile: knowledge, markets, and legal frameworks for biodiversity conservation submitted by María Fernanda Rojas Marchini in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Geography Examining Committee: Jessica Dempsey, Professor, Geography, UBC Co-supervisor Trevor Barnes, Professor, Geography, UBC Co-supervisor Juanita Sundberg, Professor, Geography, UBC Supervisory Committee Member Jamie Peck, Professor, Geography UBC University Examiner Terre Satterfield, Professor, Institute for Resources, Environment and Sustainability, UBC University Examiner Diana Ojeda, Professor, Centro Interdisciplinario de Estudios sobre el Desarrollo, Universidad de Los Andes, Colombia External Examiner iii Abstract In response to pressures from intergovernmental institutions, NGOs, and environmental movements, Chile is crafting new legal and policy frameworks to increase state management and financing of biodiversity conservation. In 2014, the executive branch sent to congress a bill to create a Biodiversity and Protected Areas Service (BPAS). The BPAS, which remains in the legislature, would be a game-changer in a country that has for decades prioritized a neoliberal economic model based on the export of raw nature. Moreover, since the state ratified ILO Convention 169 in 2008 and UNDRIP in 2009, the new environmental institutions must respect the rights and views of Indigenous people – a considerable challenge given Chile’s long legacy of Indigenous land dispossession, forced displacement, and genocide. This dissertation analyzes “the making of the environmental state”: a state with sufficient institutional capacity to protect biodiversity. The questions guiding this research are: What is the character of the environmental state in Chile? How does the environmental state come into being? What is its approach to generating financial resources? And how does it relate to Indigenous people? Based on interviews with state and intergovernmental officers, Indigenous representatives, and private environmental experts, along with a review of governmental documents, I scrutinize the creation of the BPAS bill and its main economic instruments. I trace the legislative history of the BPAS bill, reviewing parliamentary debates around articles which render biodiversity economic. I then focus on one of the bill’s centerpieces, a biodiversity offsets market, analyzing the actors who participated in its crafting, the discourses justifying its implementation, and the market devices in its design. Finally, I shift gears to examine the state's relationship with Indigenous people during a consultation on the BPAS. This research suggests that the state's intimate relationship with global circuits of capital accumulation and policymaking severely restricts its capacity to iv implement environmental reforms. Furthermore, the environmental state in Chile is invested in internal and settler colonial logics that marginalize Indigenous practices and knowledges. v Lay Summary Biodiversity loss is one of the most complex challenges of our lifetime. It calls on states worldwide to implement institutions, laws, and policies that can protect biodiversity. Furthermore, states with colonial legacies must respect the rights of Indigenous people. This dissertation analyzes the strategies implemented by the Chilean state to improve the management and financing of biodiversity in protected areas. It identifies prominent discourses and actors involved in the creation of the Biodiversity and Protected Areas Service, a process still underway at the time of writing. Indigenous people were consulted on this service, so the dissertation examines that process as well. This research shows how environmental reforms in Chile are severely limited by the country’s present neoliberal economic model and its colonial legacy, which marginalizes Indigenous practices and knowledges. The results of this research provide an informed analysis for policymakers in the Global South. vi Preface This dissertation is an original intellectual work of the author, María Fernanda Rojas Marchini. The fieldwork reported in Chapters 2-5 received approval from the UBC Behavioral Research Ethics Board (Certificate Number H18-02460). Portions of Chapter 3 are part of the following publication: Dempsey, J., Bigger, P. Christiansen, J., DiSilvestro, A., Irvine-Broque, A., Nelson, S., Rojas-Marchini, F., Schuldt, A., Shapiro-Garza., E. (2021). Beyond the Gap: Placing Biodiversity Finance in the Global Economy. Third World Network. Available at: https://twn.my/title2/books/Beyond%20the%20Gap/BeyondTheGap%20complete%20report.pdf Chapter 3 of this dissertation draws upon the research I conducted for the publication above (Dempsey et al., 2021). As a research assistant, I conducted the literature review concerning biodiversity offsets and identified major gaps and failures among key political ecological literature. The review of biodiversity offsets is displayed in a table in page 67 and 68 of the report, titled “Biodiversity offsets may be inimical to transformative change.” The scholarly work reviewed for this report was cited in Chapter 3, Section 3.1 and 3.5. None of the text of the dissertation is taken directly from this previously published work. Dempsey J was the leading author of this work and was involved in every stage. The rest of the team covered specific themes according to their expertise and knowledge. vii Table of Contents Abstract ......................................................................................................................................... iii Lay Summary .................................................................................................................................v Preface…………………………………………………………………………………………....vi Table of Contents ........................................................................................................................ vii List of Tables ................................................................................................................................ xi List of Figures .............................................................................................................................. xii List of Equations ........................................................................................................................ xiii List of Abbreviations ................................................................................................................. xiv Acknowledgements .................................................................................................................... xvi Chapter 1: Introducing the Chilean environmental state ..........................................................1 1.1 Introduction ..................................................................................................................... 1 1.1.1 Situating this inquiry .......................................................................................................... 4 1.2 Historical and theoretical review: approaching the Chilean state ................................... 7 1.2.1 The Chilean neoliberal state........................................................................................ 8 1.2.1.1 Internal and external forces shaping the adoption of neoliberal reforms in the authoritarian state ................................................................................................................ 9 1.2.1.2 Neoliberalizing nature, extractivism, and the state relationship with Indigenous people....... ......................................................................................................................... 15 1.2.2 The environmental state ............................................................................................ 20 1.2.2.1 Rationalizing biodiversity loss through market-based instruments .................. 25 1.2.3 Weaving a conceptual framework for understanding neo-colonialism in Chile ....... 28 viii 1.2.3.1 Internal colonialism and the coloniality of power ............................................ 30 1.2.3.2 Settler colonialism and critical indigenous studies ........................................... 35 1.3 Methods: tracing environmental law and institutions in the making ............................ 37 1.3.1 Conceptual strategy: Legal geography and state-in-the-making .............................. 38 1.3.1.1 A decolonial approach to Indigenous consultation ........................................... 41 1.3.2 Methods on-the-ground ............................................................................................. 44 1.3.2.1 Interviews with BPAS officers and experts in market-based biodiversity conservation ...................................................................................................................... 44 1.3.2.2 Interviews with people related to conservation initiatives and the BPAS Indigenous consultation .................................................................................................... 46 1.3.2.3 Collection of documentation related to the BPAS legal processing ................. 49 1.3.2.4 Data processing ................................................................................................. 50 1.4 Overview of the dissertation ......................................................................................... 51 1.5 Conclusion .................................................................................................................... 53 Chapter 2: From diagnosis to transformation: tracing the making of the environmental state in Chile .................................................................................................................................54 2.1 Introduction ................................................................................................................... 54 2.2 Political ecologies of the (environmental) state ............................................................ 61 2.3 Crafting the BPAS and introducing market-based biodiversity conservation .............. 67 2.4 Internal policymaking and global environmental politics ............................................ 78 2.5 Conclusion .................................................................................................................... 82 Chapter 3: Biodiversity offsets is our government now! Salvage policy to fill the biodiversity financing gap ...........................................................................................................84 ix 3.1 Introduction ................................................................................................................... 84 3.2 Offsetting the gap .......................................................................................................... 91 3.2.1 Assembling the biodiversity financing gap............................................................... 93 3.2.2 Offsets to fill the gap: bad performances create good funding opportunities ......... 101 3.3 Regulating biodiversity offsets ................................................................................... 110 3.3.1 Shaping the legal framework .................................................................................. 114 3.3.2 Building a methodology: Copy, paste, simplify, abstract ....................................... 123 3.4 Planned degradation and slow violence ...................................................................... 130 3.5 Conclusions: Salvage policy and persistence ............................................................. 133 Chapter 4: Eco Nullius and the legal geography of Indigenous consultation ......................139 4.1 Introduction ................................................................................................................. 139 4.2 FPIC’s legal geographies ............................................................................................ 145 4.2.1 Indigenous consultation and biodiversity conservation .......................................... 150 4.3 The BPAS’s Indigenous Consultation ........................................................................ 158 4.3.1 An elusive Indigenous consultation ........................................................................ 161 4.3.2 State planning and control ...................................................................................... 168 4.4 Securing the land through the environmental state ..................................................... 176 4.5 Eco Nullius and the work of the BPAS ...................................................................... 178 4.6 Conclusion: Regenerating the territory ....................................................................... 181 Chapter 5: Conclusion ...............................................................................................................185 5.1 Arguments and contributions ...................................................................................... 187 5.2 Reflection on the project’s limits ................................................................................ 192 5.3 Future directions ......................................................................................................... 195 x 5.4 Conclusion .................................................................................................................. 199 Bibliography ...............................................................................................................................205 Appendices ..................................................................................................................................240 Appendix A Table of interviews ............................................................................................. 240 Appendix B List of interview questions ................................................................................. 242 xi List of Tables Table 1.1 Main laws enacted or reversed during the military dictatorship in relation to nature and Indigenous people (1973-1989). ................................................................................................... 16 Table 2.1 Modifications to BPAS bill 9404-12.. .......................................................................... 73 Table 4.1 Summary of the proposals made by Indigenous people during consultation on the BPAS bill. ................................................................................................................................... 172 xii List of Figures Figure 3.1 “Chile in the top 10 of the most underfunded countries in biodiversity conservation”…………………………………………………………………………………….92 Figure 3.2 Protection gaps in Chile............................................................................................. 100 Figure 3.3 Estimated Positive and Negative Flows to Biodiversity Conservation. .................... 109 Figure 3.4 Mitigation hierarchy proposed by Forest Trends and in Chile. ................................. 116 Figure 3.5 Key Components Matrix. .......................................................................................... 125 Figure 3.6 Relevance Map.. ........................................................................................................ 126 Figure 4.1 BPAS and Indigenous consultation’s timeline. ......................................................... 163 Figure 5.1 “Neoliberalism was born and now dies in Chile” ..................................................... 203 Figure 5.2 “Chile will be the tomb of neoliberalism” ................................................................. 204 xiii List of Equations Equation 3.1 (a) Biodiversity Net Gain, (b) Residual Impact, and (c) Viability of the offsetting measure. ...................................................................................................................................... 127 xiv List of Abbreviations AIFBN: Asociación de Ingeniero Forestales por el Bosque Nativo (Association of Forest Engineers advocating for Native Forests). BBOP: Business and Biodiversity Offsets Program. BIOFIN: Biodiversity Finance Initiative. BCRC: Biodiversity Capital Research Collective. BPAS: Biodiversity and Protected Areas Service (SBAP: Servicio de la Biodiversidad y Áreas Protegidas). CBD: Convention on Biological Diversity. CMACS: Comisión de Medio Ambiente y Bienes Nacionales de la Cámara del Senado (Commission of the Environment, Chile’s Senate Chamber). CMACD: Comisión de Medio Ambiente y Bienes Nacionales de la Cámara de Diputados (Commission of the Environment, Chile’s Deputy Chamber). CONADI: Corporación Nacional de Desarrollo Indígena (National Corporation of Indigenous Development). CONAF: Corporación Nacional Forestal (National Forestry Corporation). CTPS: Comisión del Trabajo y Previsión Social (Labour and Social Prevision Commission). DRC: Derecho Real de Conservación (Conservation Real Right). ENGO: Environmental Non-governmental Organization. FAO: Food and Agriculture Organization of the United Nations. GEF: Global Environment Facility. IDB: Inter American Development Bank. INDH: Instituto Nacional de Derechos Humanos (National Institute of Human Rights). xv IUCN: International Union for the Conservation of Nature. MMA: Ministerio de Medio Ambiente (Ministry of the Environment). OECD: Organization for Cooperation and Economic Development. SNASP: Sistema Nacional de Áreas Protegidas (National System of Protected Areas). SNASPE: Sistema Nacional de Áreas Silvestres Protegidas del Estado (National System of Wildlife Public Protected Areas). TICCA: Indigenous and Community Conserved Areas Consortium. TNC: The Nature Conservancy. UNDP: United Nations Development Program. UNDRIP: United Nations Declaration on the Rights of Indigenous people. UNEP: United Nations Environment Program. WCS: World Conservation Society. WWF: World Wildlife Fund. xvi Acknowledgements Many people provided me support at different stages of this dissertation. First of all, I wrote half of this thesis on the traditional, ancestral and unceded land of the Coast Salish people– Sḵwx̱wú7mesh (Squamish), Stó:lō and Səl̓ílwətaʔ/Selilwitulh (Tsleil-Waututh) and xʷməθkʷəy̓əm (Musqueam). The other half was written on the traditional, ancestral, and violently taken land of the Mapuche-Pikunche Nation in the Maipo and Aconcagua Valleys in what is now known as central Chile, which is also my home. Thank you to these Nations for providing me with a space to live and develop as a researcher. Thanks to the UBC Department of Geography for bringing me under the same roof with Inari Sosa, Rebekah Kartal, and Daniel Gámez. Our extremely long and always-challenging talks made me grow and learn in ways I cannot summarize here (they still do!). Also, a huge thank you to Woocheol Kim and Andrew Schuldt for being the best office comrades and friends during the cold and rainy days of Vancouver. A big thank you to the wonderful people with whom I had long and enriching conversations: Nicole Molinari, Sophie Weber, Mikael Olmstead, Rachel Brydolf-Horwitz, James Rhatigan, Zoe Power, and Rachel Bok. Thank you to Marc Tadaki for reaching out and sharing walks and experiences that helped me navigate my own path to becoming a UBC grad student. Special thanks to Peter de Montmollin, for being not only a fantastic friend but also a huge support during the final stages of this dissertation. His gentle but sharp comments, as well as his historian spirit contributed greatly to improving this manuscript. I have had the fortune to be guided by brilliant and generous mentors. Jess Dempsey has not only inspired me intellectually, but she has also provided me with opportunities to engage in scholarly work beyond my PhD. Trevor Barnes is the sharpest and kindest scholar I have crossed paths with. His frank feedback improved this dissertation more than I can really tell. I miss the xvii long dinners at his house, enjoying food and sharing with Joan, their son, and the cats. Juanita Sundberg had that missing piece when I started my PhD program. She not only sheltered me (both emotionally and intellectually) when I most needed it, she also believed in my process and provided me with kind words of encouragement along the way. To the three of you: I am deeply grateful for all your support during this journey. Other scholars who have inspired me at seminars and colloquiums are Rosemary-Claire Collard, Jamie Peck, Priti Narayan, and Geraldine Pratt. Not only have I read your work closely, but I have also learned a great deal from your engaged scholarly work. I thank you for that. Thank you to the “Tracing Biodiversity Capital Collective,” led by Dr. Dempsey. Members of this team read some of the dissertation chapters closely and provided generous feedback: Patrick Bigger, Sara Nelson, Liz Shapiro-Garza, Audrey Irvine-Broque, Jens Christiansen, Andrew Schuldt. Thank you for kindly engaging with my work. In Chile, I am grateful to Ricardo Truffello at the Institute of Urban Studies at Catholic University of Chile for providing me with a space to work during my fieldwork in Santiago and creating opportunities to share my research with colleagues at IEUT-UC. Thank you to Jorge Quezada at the National Forest Corporation, for helping with the coordination of interviews in the South of Chile and for challenging some of my assumptions regarding the role of the state in the conservation of biodiversity. I also thank my colleagues from the Institute of Geography at Catholic University of Valparaíso, who have welcomed me as new faculty member. Special thanks to Andrés Moreira and Pablo Mansilla, for believing in this project and what I can bring to the PUCV. Also thank you to René Reyes and Gustavo Blanco, for supporting me when I decided to undertake a PhD program back in 2016. Carla Marchant provided me with exciting xviii collaborative work and countless conversations at Universidad Austral before and during my PhD program, thank you for that! I am grateful for being part of la banda “Lecturas 4ever:” Natalia Pérez, Elizabeth Shofner, Belén Nordeña, Mariana Velez, Pablo Moctezuma, Inari Sosa, Peter de Montmollin, Daniel Gámez, Romina Tantaleán, Andrea Vásquez, and Fabricio Teló. Reading and walking alongside you have made this journey sabroso. You are a beautiful and brilliant group of friends. Thank you to my adopted family in Vancouver: Claudia, Álvaro, Alfonsina, Magdalena, Nico, Claudia Páez, Estefa and Jose, Amancay and Rayen, Cristina, Daniel, Sara and Jordi, Lila and Maya, Romi and Pati, and Andrea, you welcomed me countless times. I will never forget our walks and dinners. I already miss them so much! Meli Rosato and her family made me feel at home in Canada when I didn’t even arrive there yet! Thank you for that, querida! Thank you to my parents and siblings, for supporting me ever since they realized I enjoyed moving around. For providing me with enriching debates since early childhood. Being the youngest of five pushed me to work harder to make myself heard. Perhaps that is the reason why I am here now. My endless gratitude goes to Rosario Oyanedel Frugone, mi compañera. For embarking with me on this project, leaving everything we knew and loved behind. For sharing your joy and for always being a soñadora. Gracias bichonquita. The following institutions provided financial assistance: The Chilean National Agency for Research and Development (ANID), of the Ministry of Science, Technology, Knowledge and Innovation, granted me with the scholarship “Becas Chile.” The UBC Public Scholars Initiative xix provided me with two grants for conducting research and developing a short film, which is now ready (stay tuned). Jess Dempsey provided funding from her SSHRC Insight Grant, “Biodiversity conservation as financial asset? Tracing for-profit conservation finance,” which covered part of my fieldwork in Chile. 1 Chapter 1: Introducing the environmental state in Chile 1.1 Introduction Biodiversity conservation is becoming unavoidable for the Chilean state, which has for decades prioritized extractive activities over the environment (Altieri & Rojas, 1999; Carruthers, 2001; Orihuela, 2014; Tecklin et al., 2011). The country has been deemed a “green laggard” for the slow pace of its environmental reforms (Orihuela, 2014) and it ranks among the 10 lowest countries in terms of state spending on biodiversity conservation (Espinoza, 2013; Waldron et al., 2013).1 Chile bears the burden of nearly 50 years of neoliberal statecraft. The Pinochet dictatorship imposed commercial rules and reforms to weaken the state's involvement in the economy and also the environment. Over the last decade, however, the state has begun to seemingly reverse this trend at least with respect to protecting biodiversity. The state established 12 public protected areas, all created to meet Aichi target 11, which calls for signatories of the Convention on Biological Diversity (CBD) to put at least 17% of their terrestrial surface under protection by 2020 (Fernández, 2018). Now, the state needs to provide funding mechanisms to manage both the public and private protected biodiversity areas (OECD, 2016), and also respond to an OECD (2005, p. 108) recommendation to have a “dedicated nature protection agency established under a single, comprehensive nature protection law.” Environmental NGOs, social movements, and scientists have called on the state to improve its environmental institutions for more than a decade. Activists across the country have 1 In Latin America, Chile ranks as third lowest in state spending on biodiversity conservation (Bovarnick et al., 2010; OECD, 2016). 2 protested pulp mills and large hydroelectric dams and demanded the state to stop promoting sacrifice zones, to name but a few examples.2 In response to international and national pressure, the state crafted a piece of legislation that aims to fix both funding deficiencies and management weaknesses. A bill to create a Biodiversity and Protected Areas Service (BPAS) entered the legislature in 2011 and, again, in 2014. With more than 120 legal articles, the BPAS bill is a game changer for the Chilean state. It touches on myriad topics, including the creation of protected areas, Indigenous peoples’ access to parks, and ecosystem services contracts. The stakes are now high. Most scientists, conservationists, and the state itself claim that the BPAS is the missing piece in the biodiversity protection puzzle.3 The bill has not yet been approved, however. Initial confusion regarding the mission of the BPAS, controversies over the administration of old parks and reserves, and a last-minute Indigenous consultation process delayed the legislative process. Indeed, new amendments remain under discussion in congress as I write these pages. Chile ratified ILO Convention 169 in 2008 and UNDRIP in 2009. Hence, the environmental reforms proposed by the state must respect its commitments on the rights of Indigenous people. Free, Prior and Informed Consent (FPIC) and Indigenous consultation are mandatory for any state procedures (such as new laws) that affect Indigenous people and territories (Ugarte, 2021). This requirement adds another challenge to the Chilean state, which has a long history of conflict with Indigenous people. After achieving independence from the 2 A good source on the number of environmental conflicts is the Environmental Justice Atlas (https://ejatlas.org/). Emblematic cases of environmental and citizens movements in Chile are analyzed in detail by Schaeffer (2017) and Sepúlveda (2016). 3 A group of state bureaucrats and environmental scientists launched a campaign in 2019 to urge the legislature to approve the BPAS bill, claiming that Chile needed the service to protect biodiversity (#YoQuieroSBAP). 3 Spanish crown, the state invaded Indigenous Mapuche territories (Marimán et al., 2006), endorsed privately led campaigns to kill the Selk-nam People of Tierra del Fuego (Harambour, 2019; Gigoux, 2020), and occupied the Rapa Nui Island (Young, 2020). Furthermore, the state has justified land usurpations to support the creation of national parks (see García & Mulrennan, 2020; Marín-Herrera, 2019). Three Indigenous land claims inside state protected areas are currently under review by the Ministry of Public Goods (Primer Informe de Comision de MMA, 2015). If Chile wants to be considered a modern democracy, as has been the case over the last three decades of post-dictatorship democratic governments (Olavarria-Gambi & Levick, 2021), then the country must demonstrate its willingness to respect Indigenous rights. This dissertation examines the latest environmental reforms to increase state funding and legal/policy reform for biodiversity, with attention to the state’s relationship with Indigenous people. It approaches these events as “the making of an environmental state,” that is, a state with sufficient institutional capacities and mechanisms to manage and protect the environment (Duit et al., 2020). I understood the environmental state as an ideal rather than as a concrete type of state, however. The environmental state offers a horizon, a political form that may not exist but still guides countries in their pursuit of institutional capacity to manage biodiversity. Institutional capacity refers to, first, the state having an ability and willingness to generate adequate funding to protect biodiversity. Second, the state’s ability to respect and co-exist with Indigenous people. In other words, how the environmental state recognises its past of colonialism and how these legacies affect Indigenous people in Chile. In this thesis, I argue that the Chilean state lacks sufficient institutions to be considered an environmental state capable of protecting biodiversity or of co-existing with Indigenous People. 4 To elaborate this argument, I address four primary questions: What is the character of Chile’s environmental state in relation to biodiversity? What is its approach to generating funding? And how does the state relate with Indigenous peoples? And finally, how does the environmental state come into being? By exploring these questions, I aim to shed light on the internal and external forces at play in the configuration of environmental institutions, laws, and regulatory frameworks in Chile. And, following from this, the state's current complicity in the dispossession of the rights and territories of Indigenous Peoples. 1.1.1 Situating this inquiry This research has three origin stories. The first begins when I moved to Valdivia in southern Chile to study for a master’s degree in rural development. With a background in territorial planning in Santiago and volunteer experience at a Canadian NGO with operations in the Atacama Desert and Guatemala, I had multiple questions regarding the notion of “development.” I remember reading Arturo Escobar’s Encountering Development during the MA, which opened my eyes to the “development work” I had done in Guatemala installing fog catchment system in Maya communities. My colleagues and I would often talk with communities about how to maintain their fog collectors, how to save water, and how to attract more development money. By turning our attention to these technical issues, we left aside the lack of hydraulic infrastructure, which the state of Guatemala should have provided years ago. Today, I understand this experience following what Tania Li (2007) defines as the work of programmers, where problems are framed in ways that invite technical solutions – in other words, a way of “rendering technical” social reality. These technical interventions obscure larger political issues turning development into an anti-politics machine (Ferguson, 1994). They also reassert colonial and 5 imperial attitudes when programmers assume that communities do not know how to solve daily difficulties and, hence, need the assistance of outside experts. The second story takes place during my MA thesis research. My fieldwork consisted of working with rural water committees in the Region of Los Rios, where I learned about water and land conflicts in southern Chile. I analyzed a water petition made by a rural water committee to a US-based environmental NGO. As the owner of one of the biggest protected areas in the region, the NGO was able to influence national environmental policies and, at a more local level, grant or deny access to water. The water committee, which included Indigenous and non-Indigenous members, had their request denied by the NGO’s headquarters in Washington, DC. They could still take water from the stream, but formally the NGO granted access through the Chilean state on the grounds that rural communities were "too weak" legally to take on such a responsibility.4 A revealing aspect of this story is that the NGO’s main funding for this protected area came – and still comes – from the mining conglomerate BHP, the 20th largest corporative emitter of carbon dioxide in the world (Griffin, 2017). The main cause of seasonal water shortages in Los Rios is climate change, the consequence in large part of GHG emitters like BHP. Ironically, if not tragically, it is corporations like BHP that fund private protected areas in Chile and determine whether rural peoples have access to and control over their water. The third story begins with my PhD at UBC. My first class in Topics in Human Geography introduced me to feminist science and technology studies, critical indigenous studies and settler colonial studies. In addition, the seminars with Juanita Sundberg introduced me to 4 Something else that struck me back then was a certain type of discourse mobilized by NGO representatives in Chile. With a highly codified vocabulary, they used terms like “basin’s water retention service” and “target of conservation” to present themselves as technically fit to administer biodiversity. My hypothesis is that the NGO framed rural water committees as unfit in part because they did not use this codified vocabulary. 6 critical race studies, Latin American scholarship on colonialism, and, in particular, to the concept of “the coloniality of being.” Drawing from the work of Quijano (2001) and Dussel (1996), the philosopher Maldonado-Torres (2007) has argued that Cartesian thought and modernity rest on the ontological separation between conquerors (white European men) and conquered (the rest). He proposed a new understanding of Descartes’ famous expression “I think, therefore I am” by inserting the distinction between conqueror and conquered: “I think (others do not think, or do not think properly), therefore I am (others are-not, lack being, should not exist, or are dispensable)” (2007, p. 252). Maldonado-Torres’s revision addresses the dehumanization triggered by the colonial encounter, which underpins several endeavors: colonialization, human mastery over nature, science, and biodiversity conservation (Sundberg et al, 2020). I read Maldonado-Torres’s work alongside others who analyze indigenous genocide as a structural outcome baked into settler societies (Wolfe, 2006; Coulthard, 2014). For example, those who examine colonialscapes and Indigenous interruptions (Hunt, 2013; Simpson, 2014). Or, who explore settler states’ strategies to reduce the risk of Indigenous disruption and sovereignty (Pasternak and Dafnos, 2018). Or again, who problematize internal colonialism in Latin America (Gonzalez-Casanova, 2003; Rivera-Cusicanqui, 2012; Lepe-Carrión, 2020). This body of literature spurred me to examine how colonial attitudes – materialized in patterns of thought and action – manifest in both Chilean environmental politics and the financing mechanisms for biodiversity conservation. These origin stories account for why I was moved to conduct research for this dissertation. But I need to answer one more question before discussing the theoretical scaffolding used to elaborate my analysis: Why am I interested in the state? After all, there are multiple private conservation initiatives in Chile (Corcuera et al., 2002; Holmes, 2013; Pliscoff and 7 Fuentes-Castillo, 2011; Rivera & Vallejos-Romero, 2015; Tecklin & Sepulveda, 2014). Why not focus on them instead? As I elaborate in detail in Chapter 2, the state is the legal space where the latest strategies to protect biodiversity are discussed. The state is rolling out legal structures and governmental units to facilitate the management and financing of both public and private protected areas. And, the state is looking to offer economic incentives for private biodiversity conservation. These innovations are part of the Biodiversity and Protected Areas Service (BPAS). The BPAS will have to co-exist with Chile’s extractive economy, that is, with an economy based on the large scale and export-oriented exploitation of natural goods (Svampa, 2019, p. 6). To analyze the intricacies of the BPAS (which will become part of the Ministry of the Environment) within the Chilean extractive economy, it is necessary to engage with the environmental state and explore how it relates to biodiversity, alongside the strategies it deploys to mobilize funding and engage with Indigenous peoples. The next subsection presents the context and theoretical approach deployed in this dissertation to comprehend the environmental state in Chile. 1.2 Historical and theoretical review: approaching the Chilean state This section reviews the historical context and theories that underpin the emergence of an environmental state in Chile. The section starts with a historical review of neoliberalism in Chile. Then it introduces the theoretical approach to the environmental state and, finally, reviews the history of colonialism in Chile and the theories I use to interpret it. The three subsections are not intended to define the state as a single, uniform entity. Furthermore, the state engages in multiple forms that are not always consistent. The state is a “multifaceted and contested” political form, with its very existence constantly negotiated (Gregory et al., 2009, p. 723). Likewise, the state 8 “is among the most pervasive but also elusive concepts in human geography” (Rogers et al., 2013). Offering a clean, unique definition of the state may thus be a futile enterprise. To navigate such an elusiveness without overlooking the power exerted by the state, this dissertation applies a post-structuralist approach. Such an approach considers the state as the result of “enduring process[es] in which the limits and contents of state action are permanently negotiated and redefined” with the final goal of administering power in more efficient ways (Lemke, 2007). 1.2.1 The Chilean neoliberal state Chile is known as a laboratory for neoliberal experimentation facilitated by authoritarianism. Neoliberal economic ideas were first given a trial run in Chile before they were later adapted and applied in so-called “advanced industrial” countries (Brenner et al., 2009; Harvey, 2007; Salazar, 2003). This narrative must be used with caution, however, since describing a state as neoliberal may imply for some that it works only in a neoliberal manner, following and applying the abstract logic of market fundamentalism. This is not the case. As Ong has argued, neoliberalism could not exist solely as an abstract set of rules. It needs places, agents, and local realities with which to entangle (Ong, 2007). Constant interactions with the local make neoliberalism a hybrid, a consequence of its always historically situated character (Hayter and Barnes, 2012, p. 201). The Marxist economic geographer David Harvey also hinted at the importance of historical and geographical context when he claimed that a neoliberal state in theory is not the same as “the practice of neoliberalization” (Harvey, 2007, p. 64). This subsection presents a brief history of neoliberalism in Chile (borrowing from Harvey, 2007) to provide a more situated account of the neoliberal state. It exhibits the internal factors that led the military regime to embrace the neoliberal reforms and presents the external forces shaping the neoliberal program adopted. In 9 doing so, the section explains why the South American country became one of the first cases where neoliberal reforms took root. After that characterization, the section moves away from the history of neoliberalism to discuss how the Chilean neoliberal state relates to Indigenous peoples and the environment. These two points are fundamental for understanding the central arguments developed in the empirical chapters on policy rhythms, extractivism, and the neo-colonialism embedded in the environmental reforms pushed by the state. 1.2.1.1 Internal and external forces shaping the adoption of neoliberal reforms in the authoritarian state Chile’s 17-year military dictatorship fractured the country in multiple ways, some still unexamined. After the coup d’état that overthrew Salvador Allende on September 11, 1973, the military junta led by general Augusto Pinochet implemented a repressive regime of military surveillance and state terrorism to suppress left, progressive, and Indigenous voices of opposition. The junta enabled the application of the market doctrine championed by the Chicago Boys, a group of Chilean economists from the Catholic University who received training at the University of Chicago under an agreement signed in 1955 with USAID (Borzutzky, 2005, p. 658; Silva, 2008, p. 119). Led by economist Sergio de Castro,5 the Chicago Boys eventually took over key government ministries in the Pinochet dictatorship during the 1970s (Boughton, 2001; Huneeus, 2007). However, although these economists had a proposal ready for when the military seized power, the free-market doctrine was not adopted immediately. The members of the junta were divided over which economic policies to implement, with some generals advocating for a 5 De Castro joined the Mont Pelerin Society in 1982 (Fischer, 2005). 10 higher degree of state involvement in the economy (Fischer, 2009; Valdivia, 2001).6 This statist preference was aligned with the views of the Christian Democratic Party, which supported the coup but expected that the military would hold elections soon after and restore civilian control (Akram, unpublished manuscript7). According to political scientist Hassan Akram, the free-market model offered by the Chicago Boys lowered the pressure to cede power and hold elections. It provided an “ideological glue” and a “legitimizing discourse” for the military, the conceptual substance needed to justify extending the power of the military regime for almost two decades. Having a clear economic program also provided general Pinochet the strength to consolidate his power and subordinate other members of the junta.8 Moreover, Valdivia (2001) argues that the generals came to power without a political economic vision but preferred the Chilean private sector and were convinced that the Popular Unity had to be overthrown. Without a clear economic vision but with the intention of enacting a foundational transformation of the country, the junta decided to follow the advice of naval officer Roberto Kelly,9 who asked the Chicago Boys to develop an economic proposal a year before the coup. The next day after Allende was deposed, the Chicago Boys’ proposal arrived in La Moneda. Alluding to its large size, the proposal was called El Ladrillo (The Brick) (Valdivia, 2001). Two years later, the Chicago Boys officially arrived in La Moneda and occupied prominent roles in the economic management of the state (Fischer, 2009). 6 An example was general Gustavo Leigh, whose participation in the junta was curtailed after he expressed his political and economic positions. Leigh was Pinochet’s rival for control in the junta and was even called a Keynesian by a few (Fischer, 2009). He was expelled from the junta in 1978. (Casals & Estefane, 2021; Fischer, 2009; Valdivia, 2001). 7 Manuscript accessed through email correspondence with Hassan Akram. 8 Pinochet joined the coup just at the final stages. However, after the coup, he became a protagonist among the members of the junta. 9 Roberto Kelly was designated by the military Junta as Director for the National Planning Office (ODEPLAN) in September 12, 1973 and Minister of the economy in 1979 11 So, what were the main elements of the free-market doctrine championed by the Chicago School of Economics?10 First, the Chicago School took liberal ideas to a theoretical extreme by claiming that the social was an extension of the economic (Lemke, 2001, p. 197).11 According to Brown, one of neoliberalism’s features is that it pursues the economization of noneconomic aspects of life (Brown, 2015, pp. 31–32). A neoliberal economic model and statecraft promote polices that tend to infuse desires and practices of everyday life and political institutions with economic thinking. Second, the Chicago economists openly recognized that the economic model was a political program that needed to be constructed. According to Van Horn and Mirowski (2009), the Chicago economists argued that the market does not exist by some sort of magic trick or organic response. Rather, the market needs the constant involvement of the state. For these economists, “neoliberalism is first and foremost a theory of how to reengineer the state in order to guarantee the success of the market and its most important participants, modern corporations.” (Van Horn and Mirowski, 2009, p. 161). Neoliberalism is thus a particular project of statecraft, one where the conditions for markets are assembled and carefully maintained by the state, and where the private sector is responsible for meeting the most fundamental needs under a profit-oriented logic. The third feature of the liberal ideas developed in Chicago is the prominent role assigned to elites. Neoliberal statecraft depends on an elite class of experts who shape and conduct public policy (Van Horn and Mirowski, 2009, p. 162). Elites of technocrats had existed in Chile since the late 1920s and became part and parcel of the development of neoliberalism in 10 It is important to bear in mind that the Chicago School was connected to Friedrich Hayek, who influenced intellectuals in the economics program inaugurated in the University of Chicago in 1947, and Milton Friedman, who became the most popular USA representative of neoliberalism in Latin America (Von Horn and Mirowski, 2009). 11 According to Fischer (2009), the economization of the social was connected to Milton Friedman’s work in Chicago. 12 Chile (Silva, 2008). Together, these elements – an excessive role of the private sector and expert elites, and the profit-oriented approach toward fundamental needs – became crucial in the way the Chicago model unfolded in Chile. In Chile, the economists who came from the Chicago School gave flesh to the theoretical skeleton that pushed market fundamentalism into institutions. Furthermore, the Chilean adaptation of neoliberalism was even more extreme: it was “even more Friedmanite than Friedman himself” (Valdés 1995, cited in Fischer, 2009. p. 307). The economists, who were part of the Chilean elite of technocrats (Silva, 2008), proposed massive waves of privatization, elimination of price controls, and the opening of the country to capital markets through low import tariffs.12 Two phases of privatizations took place during the dictatorship. The first one occurred during 1974-83. The regime returned to their original owners 259 firms expropriated by the Allende administration, sold 112 firms, and liquidated another 33 firms owned by the state before 1970 (Fischer et al. 2005). In the second phase, from 1984 to 1989, the regime privatized strategic state-run firms in the telecommunications, electricity, and mining sectors (except for CODELCO), as well as the national airline. The state also sold the final firms acquired during the Allende administration. By the end of the dictatorship, only 19 of 65 firms acquired and/or created before the socialist government took power were still state owned (Fischer et al. 2005). And the numbers continued to decline after the democratic transition. The state completed the 12 At the backdrop of these reforms, there were religious ideals of ‘divine’ salvation. The official discourses in those days presented the economic experts as if they were saving the economy, while General Pinochet was redeeming the country from Marxism (Borsuztky, 2005, p. 660). Manipulation technics based on fear also intervened in these discourses. Curfews, arbitrary detentions, public shootings, and torture camps were complemented by a ‘Psychological Action Plan’ requested by Pinochet to the government’s general Secretary (Timmermann 2015, cited in Aravena, 2016). 13 privatization of the electric sector and sold three key water and sewage companies between 1990 and 2005. The state also lowered tariff barriers. According to Wehner (2011), average tariffs went down from 94 per cent in 1973 to 10 per cent by 1979. This cleared the terrain for Chile’s insertion into the global economy13. In 2011, Chile had 21 free trade agreements that governed commercial ties with 55 countries (Wehner, 2011). Like many countries in the Global South, Chile went through a debt crisis in the 1980s produced by shocks from the global economy (Boughton, 2001). According to Boughton (2001), there were four main shocks. First, the “oil shock” of 1979-80 more than doubled the price for oil-importing countries, pushing many to pursue external sources of credit to cover the increased import bill. Second, the “Volcker Shock,” so named for U.S. Federal Reserve Chairman Paul Volcker, who increased interest rates in the United States to stem the inflation and restore the dollar’s purchasing power. The high rates placed additional pressure on oil-importing countries, who experienced an increase in the cost of servicing their dollar-denominated external debts. Many Global South countries were also pushed into debt renegotiations due to the Volcker Shock (Mann, 2013). Third, a widespread recession in advanced industrial countries between 1981 and 1982 affected demand for the exports of so-called developing countries, further reducing their ability to service their debt. The final shock was the appreciation of the U.S. dollar by 25% from 1980 to 1982, which added even more pressure to debt-service burdens of Latin American countries (Boughton, 2001). 13 The insertion of Chile into the global economy during these decades (1970s and 1980s) is preceded by previous global dynamics and circuits of capital, however. They extend for more than five hundred years and relate to the colonization of the Americas. 14 Debt renegotiations took place between banks and borrower countries to control the crisis produced by the external shocks described above, with the International Monetary Fund (IMF) leading a new round of loans in the second half of 1980s and beginning of the 1990s. The IMF introduced the “Structural Adjustment Programs” (SAPs), a package of reforms consisting of free trade, privatization, and stabilization policies to enable and secure globalization (Mann, 2013, p. 143). For Chile, many of the measures promoted by the IMF were already in place due to the neoliberal reforms implemented by the Chicago Boys. Yet, the state received financial assistance in 1983 to control a debt crisis within the private sector as a result of the actions of foreign banks. The state took a portion of the financial deficit and borrowed from private international creditors looking to save private firms. That strategy turned out disastrously, according to the IMF, because of the “close ownership and management linkages between [local] banks and enterprises” (Boughton, 2001, p. 349) .14 To access an IMF’s loan, the state had to follow strict instructions to control the inflationary crisis by drastically cutting down wages. After several attempts to cut wages, the state was able lower the inflation, receiving in 1983 a loan from the IMF for US$1.3 billion and rescheduling its debt payments (Boughton, 2001). Perhaps partially, the IMF SAPs implemented in Latin American countries a decade later drew from the experience in Chile. In sum, the neoliberal reforms implemented during the dictatorship and after the IMF loan had material, concrete outcomes that are still very much present in Chile. Most importantly, the reforms allowed the military state along with the Chicago Boys to make Chile a resource- 14 According to IMF consultant, James Boughton, the imminent collapse of Chile’s banking system resulted from a too “cozy relationship between banks and nonfinancial corporations” (Boughton, 2001, p. 345). 15 based export economy. It is within the context of this resource-based export economy that the current environmental reforms that affect biodiversity unfold. In the next subsection, I review the main effects these reforms had on the environment and the relation between the Chilean state and Indigenous peoples. 1.2.1.2 Neoliberalizing nature, extractivism, and the state relationship with Indigenous peoples During 17 years of dictatorship, the military junta implemented neoliberal reforms directly impacting nature and Indigenous peoples. These transformations mark the context within which the environmental state is currently unfolding in Chile. Among key reforms are the creation of water markets (Budds, 2013), the privatization of mining resources and state-owned pulp mills and woodlands, massive monocultures of fast-growing tree plantations, and reforms to split indigenous and non-indigenous land tenure (Marimán et al., 2006). Table 1.1 lists the major economic and environmental laws and reforms imposed by the dictatorship, as well as their main effects. These reforms furthered Chile’s neo-extractive economy. Svampa (2019, p. 6) understands neo-extractivism as "a way of appropriating nature and a development model based on the over-exploitation of natural goods, largely non-renewable, characterized by its large scale and its orientation toward export.” Neo-extractivism in Latin America works in combination with global finance and the expansion of capital flows (Brand et al., 2016). For instance, the flows enabled by free trade agreements signed by Latin American countries in the 1990s and 2000s (Dingemans & Ross, 2012). 16 Policy (Law or Program) Period Main Effects on nature and the state relation with Indigenous peoples Agrarian counter-reform 1973-1975 Land: Suspension of the previous agrarian reform that sought to promote social justice by redistributing lands to peasants, as well as partially returning lands to the indigenous Mapuche. The counter-reform returned land to its previous owners and opened a market for low-cost land acquisition. Decree Law 701 (DL 701), and its successors 1974 – 2012 Forests: Provision of subsidies (75 percent and 90 percent of the total costs) and tax exemptions to promote afforestation. Its successors were Act 19.561 (1996 – 2010) and Act 20.488 (2011 – 2012). Decree Law 600 1974 Trade and mining: Liberalization of foreign investment. The DL 600 established equal treatment between national and foreign investments in mining. To enact DL 600, the state of Chile abandoned the Andean Pact, a controversial decision in the context of Latin American politics (Ortiz, 2020). The pact was intended to protect national and regional investments from wealthy countries. Decrease of tariffs to imports and Free trade agreements 1975-present Imports and free trade: Radical decrease of import tariffs during the dictatorship facilitated more than 45 trade agreements signed since the return to democracy (Wehner, 2011). Deregulation of raw timber 1975 Forests: Permission for the commercialization of raw timber, including the removal of the log export ban in 1975 (Reyes & Nelson, 2014). Acts 2.568 and 2.750 1979 Indigenous land: Division of indigenous “common” lands, ending the communitarian property scheme. With these laws, the state sought to incorporate Indigenous People into the same categories as the Chilean citizen, which involved converting their ancestral lands into private holdings. Labor Code 1979 Labor: Weakening of the workers’ negotiating power by allowing firms to fire permanent workers without paying benefits. Act 3.516 1980-present Land: Allowed for division of rustic estates (Ley de predios rústicos) to a minimum of 0.5 ha. This law sought to increase the dynamism of land sales. Water Code 1981 Water: Water was deemed as an economic asset expressed by water titles (derechos de aprovechamiento de agua). Water markets were created through the delivery of an unrestricted number of deeds, with perpetual ownership, and at no cost. Privatization of mineral resources and enactment of the Mining Code 1982 and 1983 Minerals: Repeal of Act 17.450 and subsequent privatization of mineral resources. Enactment of the Mining Code in 1983, which contains an instrument called “plenum mining concession,” an indefinite concession with the payment of a license for the non-use. Private mining concessions went from 15% of total concessions in 1974 to 47% in 1994, then 60% in 1999 and above 70% in 2005 (Larrain, 2013). Table 1.1 Main laws enacted or reversed during the military dictatorship in relation to nature and Indigenous peoples (1973-1989). Elaborated by author. 17 Table 1.1. summarizes some of the most important reforms, starting with land. Undergoing a new round of enclosures through the agrarian counter-reform (contra-reforma 17ntroduc), the division of indigenous common lands, and the division of rustic states, land provided the material bedrock for domestic elites and foreign investments. The counter-reform re-established rural elites’ power and authority after they had ceded vast tracts of land to the state during the Agrarian Reform, which unfolded over three different governments (1962-1973). The reform became particularly intense after Salvador Allende became President in 1970. His government expropriated nearly 5.7 million hectares – the equivalent of more than 14 million acres (Henriquez, 1987). After overthrowing Allende, the military regime took back the land from peasants at gunpoint and reversed the redistributive gains of the reform, along with establishing a new labor code, a new water code, a new mining code, and state economic subsidies for private export-oriented forest plantations and monocrops (see Table 1.1 and also Bengoa, 2013; Klubock, 2014). While some land was returned to its previous owners, the enclosures were an important mechanism for re-assigning land to different productive sectors; one of these was forestry. While the first enclosures benefited domestic investors from the elite in Santiago, the late 1980s saw an increase of foreign forestry firms from Canada, Japan, New Zealand, Switzerland, and the United States who were attracted by the state via lower tariffs, trade agreements, and state subsidies for forest plantations (Clapp, 1995). The investing boom attracted small landowners to sell their property to forestry companies, whose land base increased further (Rojas & Folch 2018). The state also conducted reforms to subdivide Indigenous land by reallocating “títulos de merced,” a special category of land title for indigenous reserves created during the nineteenth- 18 century military occupation of Mapuche lands in southern Chile. The state subdivided these lands and placed them in the hands of individuals, most of whom were lonkos, the male chiefs of Mapuche communities (Marimán et al., 2006). The consequences of this massive wave of enclosures and subdivision of Indigenous lands are still evident in rural areas of the country (Bengoa, 2016). Not only did they force peasants and Indigenous People to migrate to near cities and even next to the road to live on fiscal lands (Klubock, 2014), they also enabled the state to neglect Indigenous peoples. For instance, extreme poverty in Indigenous communities is twice the national extreme poverty (4,3% against 2,7%), while Mapuche territories concentrate 70% of dumping sites of waste disposal in the south (Samaniego & Ruiz, 2015). These outcomes have faced strong resistance and mobilization by Mapuche People (Samaniego & Ruiz, 2015). They shape the conditions of possibility for the environmental reforms taking place in the country. One last point to keep in mind is that neoliberalism directly impacted the shaping and application of environmental policies in the country. The state retreated from key areas of environmental science, cutting the budget for state-run scientific agencies and promoting private think-tanks and for-profit consultants and laboratories (Barandiarán, 2018). Consequently, government institutions in charge of evaluating environmental impacts currently lack the staff and knowledge to produce baselines and impact assessments. Extractive firms outsource their own impact assessments to private consultancies. This public-private mechanism risks projects being approved by the Environmental Impact Assessment Service (SEA) without proper evaluation. Furthermore, Barandiarán argues that Chilean state-run environmental science is 19 better represented by Fredrich Hayek’s concept of the “umpire state.”15 This refers to a state that avoids direct involvement in science and instead acts as a “broker between competing parties that produce their own knowledge claims” (p. 6). The “umpire state” is the opposite of a scientifically and politically prepared state. The umpire state “cannot legitimate [authorizations for] large industrial projects or create transparent foundations for accountability (…) Neither scientists nor officials can persuasively perform their credibility to [Chilean] society” (Barandiarán, 2018, p. 191). As I explore in the upcoming chapters, the lack of state-led science has crucial impacts on the production of environmental policies and the new financial mechanisms intended to regulate and protect biodiversity in Chile. In sum, during the dictatorship the military state created the conditions of possibility for new private property rights, nature-based markets, a domestic economy with low state involvement, and global commercial trade. All these are the principles of neoliberalism (Mann, 2013). Chile is known as a first case whereby neoliberal ideas were introduced because the generals of the Junta brought the Chicago Boys – who were shaping these reforms since the mid-1950s – on board for providing substance and justification to a military state project. Situating the origin is important because in the global north neoliberal reforms occurred via “soft power,” enacted through “best practices and legal tweaks” (Brown, 2015, p. 35), whereas in countries of the Global South like Chile these reforms occurred decades before under authoritarian governments. 15 Barandiarán (2018) argues that Chilean environmental science differs radically from the ideal image of a powerful and wealthy techno-scientific state, whereby scientific and technical understandings of natural laws drive rational design. 20 Borrowing from David Harvey’s book title (2005), the “brief history of neoliberalism” in Chile proves what Peck (2004, p. 400) defined as a problematic but present alliance or “awkward amalgamation” between “anti-statist libertarianism on the one hand, and authoritarian interventionism on the other.” Furthermore, despite Friedrich Hayek’s argument that neoliberalism was conducive to freedom (Fischer, 2009), neoliberalism in Chile revealed itself as “a class practice of the most powerful, geographically mobile capitalists, who use both state rollback and state ‘roll out’” (Peck and Tickell, 2002 cited in Glassman, 2007 p. 96). These mobile capitalists arrived from all over the world (including the Chilean elite) to be at the right place at the right time and bought vast tracts of lands, inscribed water property rights, or bought firms liquidated or sold by the military state. Both at a global and local scale, neoliberal ideas allowed proponents of this model to advance the notion that prosperity could be achieved by increasing economic growth and wealth concentration among a few individuals, firms, and countries. Such an ideology provides a comfortable space for economic elites to profit and for the state to retreat from key areas of social and economic life. It is within this context of radical reforms that the environmental state is developing. Next, I offer a brief review of the environmental state in Chile, its main elements, and my own use of the concept “environmental state” in the empirical chapters. 1.2.2 The environmental state There are two prominent approaches to the environmental state: one comes from the field of governance studies (Duit, 2016; Duit et al., 2016), while the other is a critical view, attentive to how nature is produced to facilitate capital accumulation and uneven development (Goldman, 2001, 2005). My approach combines both, the commonalities as well as the differences. 21 The first approach, which comes from the literature on environmental governance, defines the environmental state as possessing sufficient institutions, laws, and regulatory mechanisms to manage the environment (Duit et al., 2016). An increase in the state institutional and legal capacity, Duit et al. observe (2016), allows for better and more efficient environmental policies. This is the approach championed by international development institutions and followed by the Chilean state, despite its weak involvement in environmental matters.16 As I discussed in the introduction of this chapter, Chile has been an official party to the CBD since 1994, but it has been a cautious participant with many of its commitments, eliding protocols and dodging promises that require additional state spending. Moreover, globally Chile ranks among the 10 lowest countries in terms of state spending on biodiversity conservation (Espinoza, 2013; Waldron et al., 2013). Consequently, the state recently increased its protected areas to encompass 21% of the national territory (Fernández, 2018) but still lacks funding to manage old and new parks and reserves. (OECD, 2016). The creation of new environmental institutions responds to these pressures. In terms of environmental governance, Chile would be one of the weakest environmental states (see Duit, 2016).17 16 It is also the approach that drives Latin American countries’ efforts since the democratic transitions of the early 1990s. An important milestone was the 1992 Rio Earth Summit, where the Convention on Biological Diversity (CBD) was first opened for signatures. The CBD took effect the following year with three main commitments: the conservation of biological diversity, the sustainable use of nature's resources, and the equitable sharing of genetic resources (CBD, 2022). It also established a mechanism to finance these initiatives, the Global Environment Facility (GEF). After the Rio summit, countries in Latin America began adjusting their institutions to fit the new consensus (Estenssoro, 2014). Today, most have domestic offices to receive, adjust, and apply green policies aligned with the CBD and financed by the Global Environment Facility. 17 Duit (2016) developed a typology to understand the different stages of environmental states. After conducting a cluster analysis, he convened four groups of environmental states according to a score that measured the state’s success in protecting the environment. 22 The second approach to the environmental state comes from Goldman’s (2005) research. He argues that environmental states emerge alongside international banks and transnational corporations that push them to privilege the needs of markets, deemed by development institutions as the path forward to achieve “development, human rights and justice, and environmental sustainability” (Goldman, 2005, p. 184). He builds his approach by drawing from Foucault’s notion of governmentality.18 Governmentality consists of a governmental rationality that combines the management of the population as a whole – using means like statistics – with the22ntroduce22n of individual conduct – mobilizing, for instance, technologies of self-management, or what he terms “the conduct of conduct” (Foucault, 1991, p. 93; Li, 2007b). This form of government allows the state to apply management techniques to a larger population.19 To the term “governmentality,” Goldman added the prefix “eco-.” Eco-governmentality refers to a technology of government that produces truths about nature. These technologies can change across time and produce new environmental subjectivities. In most possible events, human geographers have played a prominent role revealing governmentalities’ modes of working (see, for instance, Braun, 2000, 2002; Demeritt, 2001, 2001b; Rutherford, 2011; 18 Michel Foucault developed the term “governmentality” to analyze modern European states’ growing interest in tactics of government that avoided direct disciplinary punishment. 19 The argument that human behavior can be managed by the state can quickly become a totalizing and futile assumption. First, it would entail adopting a view of the state that assumes a machinelike governmental apparatus successfully producing subjects according to its vision of society. In Foucault’s later work, he moved away from this assumption, arguing that the state cannot be taken as a machine because it has no essence, no interior. Instead, the state is “the mobile effect of a regime of multiple governmentalities” that express themselves through the practices constituting such governmental logic (Foucault, 2008, pp. 77–78). And second, to think that human conduct results from the state is to characterize power as something that is held and applied linearly to subjects. Foucault avoided such a notion of linear, monolithic power. Power is not only about domination and repression but is also productive: “it produces reality; it produces domains of objects and rituals of truth” (Foucault 1995, cited in Rutherford, 2011, p. xii). Through the production of truths, objects and reality, power also produces human conduct and techniques for self-management, dispersing the power of the state previously placed on disciplinary mechanisms. 23 Agrawal, 2005; Di Giminiani, 2016).20 For Goldman (2005, p. 308), eco-governmentality is a means to examine critically the environmental state without overlooking the “productive relations out of which new political, economic, and cultural rationalities are born and become institutionalized, resisted, and everything in between.” His approach to the environmental state through the production of truths about nature differs from the view of states as entities that lie on an environmental sustainability continuum (p. 183) – a view that includes Duit et. Al’s approach to the environmental state (2016). While these authors place states on a teleological path toward development, Goldman points out that states in the Global South are under high pressure to facilitate the circulation of transnational capital flows. For Duit et al. (2016), the environmental state is in a historical-economic continuum; it is “a system of authoritative national environmental governance that occurred first in the developed industrialized countries during the final third of the twentieth century” (p. 2). There is a teleology implicit in this account: the notion that states that achieve a certain level of development can manage environment sustainably. Underlying this account is also the notion that economic growth will somehow provide the means for a comprehensive transformation of society, and that the environmental state will eventually turn into a “green” or “eco state” (Hausknot, 2020, p. 20). Chile, as many other countries, responds to such logic; the government continues to push for more economic growth while attempting to achieve the mandates of the OECD and the UNEP. 20 Rutherford (2007) describes how geographers have been able to unpack the production of truths about the environment by analyzing practices of mapping, measuring and quantifying, as well as the circulation of these practices and knowledges among public and private spheres. 24 Apart from deviating from the teleological view of the environmental state, Goldman also echoes recent work by political economists who argue that the state is fundamentally a producer of the environment, an “environment making” institution (e.g., Parenti, 2015, p. 830). However, while the environment-making state mainly exists to facilitate capitalist accumulation – a structural view of the state – the environmental state presented by Goldman provides room for exploring the state’s heterogenous and contested character. Environmental states are, according to Goldman, “marked by the specific needs of transnational capital, which are shaping the form of legality and eco-rationality that have prevailed in Southern countries” (Goldman, 2005, p. 183). The intimate relationship with new actors who bring environmental knowledge and practices into Global South countries does not mean, however, that these institutions control countries, or that nature is produced only for commodification (p. 308). The commodification of nature co-exists within a complex web of power relations, which respond to the neoliberal belief that the nourishment of markets and the economy will bring prosperity for all. This dissertation examines the environmental state through critical perspectives like the one presented by Goldman. It analyzes how the Chilean state turned its attention to the macro-political agenda of environmental politics attuned to the expectations of international institutions such as the OECD, the UN, the World Bank, and transnational firms.21 I engage both Goldman’s and Duit et al.’s notions of the environmental state to ask: what does the environmental state look like in Chile? What might my study, which examines attempts to improve the protection of biodiversity in a Global South, neoliberal state strongly dependent on nature, offer to 21 The experts inside these institutions are not necessarily driven by capital growth and accumulation. Therefore, I take both approaches to the environmental state: the post-structuralist one presented by Goldman and the one coming from governance studies, presented by Duit (2015) and Duit et al (2016). These two approaches allow me to approach national environmental governance with its pitfalls and risks. 25 theorizations of the environmental state? Scrutinizing the character of a “neoliberal environmental state” such as Chile demands a careful engagement with one of the main strategies for dealing with biodiversity loss, namely, market-based biodiversity management and conservation. 1.2.2.1 Rationalizing biodiversity loss through market-based instruments Considering the historical relationship Chile has had with markets (reviewed in Section 1.2.1), implementing them to tackle biodiversity loss is not surprising. The Biodiversity and Protected Areas Service bill, currently under legal processing, contains an entire section on market-based instruments to foment the conservation of biodiversity. Chapter 2 introduces these instruments while Chapter 3 examines one in detail, namely, a biodiversity offsets market. These steps respond to a global trend, though. Markets are currently considered by international development institutions and states as one of the most effective and efficient strategies to protect biodiversity. Two main reasons justify the adoption of markets for tackling biodiversity loss. First, markets are said to provide the means for states to retreat from fiscal expenditures in the management of protected areas, leaving these tasks to private entrepreneurs. For this, states must produce market conditions that attract private actors into conservation; states need to turn biodiversity conservation into a profitable enterprise. Second, markets are considered as the most efficient way for the private sector to regulate itself via voluntary measures. For instance, financial institutions such as the IFC and the Equator Principles expect that private firms take steps to minimize the damage to biodiversity. These are risk management frameworks that require “minimum standards to support responsible decision-making” in terms of environmental and 26 social risks posed to development projects.22 Firms that comply with these guidelines must implement measures to avoid, mitigate, and compensate environmental and social risks to access project finance and corporate loans. These approaches to markets and the role of the private sector in the protection of biodiversity has been deemed by critical scholars as “neoliberal conservation” (e.g. Adams, 2017). The enthusiasm around markets and for-profit biodiversity conservation remains small compared to the gains from extractive activities, though (Dempsey & Suarez, 2016). Despite this, Dempsey and Suarez argue, for-profit biodiversity conservation is a powerful discourse that has concrete outcomes: “Profit driven or not, the reregulation of nature undertaken via neoliberal conservation both relies on and produces new types of territorialization (e.g., protected areas, etc.) that involve the division of resources and landscapes in ways that can displace, exclude, and dispossess” (p. 665). This is even more relevant in the case of Chile, where the initiatives proposed are still under legal discussion. As I analyze in Chapter 2, the inclusion of economic instruments was not easy nor evidently present in the discussions inside the parliament. There were discursive turns and contested debates among policymakers, as well as controversies with environmental movements who resisted key market-based instruments. It is, thus, important to analyze what is entailed in neoliberal conservation. This dissertation draws insights from the feminist and postcolonial approach advanced by scholars Collard and Dempsey (2017), Mies (1986), Plumwood (1993), and eco-Marxist historian Moore (2015; 2017) to examine the implementation of market-based biodiversity conservation in Chile. According to this body of literature, processes of capitalist accumulation 22 https://equator-principles.com/ 27 take place through the devaluation of some bodies, endowing them with a sacrificial status based on their proximity to nature or to reproductive labor. These bodies and hierarchies are embedded in political, cultural and economic institutions. Sometimes involuntarily, these institutions participate in structural forms of devaluation. Take law for instance. As Collard and Dempsey (2017) show, law affects the orientation of nonhuman natures in relation to capitalist value. Law is an “orienting device” that can produce hierarchical differences and motivate state investment and protection of certain species, while declaring others as threats, directing funds toward their reproductive control, and even carrying out extermination campaigns (Collard and Dempsey, 2017, p. 84). This interpretation of law supports the analysis I make about the design of the biodiversity offsets market. A series of mathematical equations, maps, and matrices come together to define which species are protected from, say, an open pit mine, and which ones are left to their own fate. Sustaining this calculation of biodiversity impacts and compensation measures, is law; law acts as an orienting device in the way Collard and Dempsey contend. Another approach I take to reflect on what is entailed in the devaluation of nonhuman nature is Biermann and Mansfield’s (2014) analysis of the liberal rationality underpinning conservation. The authors draw from Foucault’s notion of biopolitics to extend a critique of conservation science as a discipline that “extends the racialized logic of abnormality and death in its core notions of biological diversity, evolution, and extinction” (p. 262). These authors analyze the awareness among conservation scientists of gene flows among native species. For these scientists, impure bodies are a threat to biodiversity as they decrease the “purity” of native organisms, which can lead to species extinction (as these groups cannot be individualized as species by scientists anymore). Such an idea of purity, according to the authors, serves to secure 28 biodiversity through a selective management of death (p. 267), preventing certain species from altering the purity of others. The notion of purity in biodiversity conservation works to select and privilege certain forms of life. Biermann and Mansfield’s work serves to understand the logic by which conservation science functions. Drawing from their analysis, Chapter 3 discusses how the hierarchies among species and ecosystems are constructed via equations that distinguish those who must be prevented from being born so that others can have a prosperous life. 1.2.3 Weaving a conceptual framework for understanding neo-colonialism in Chile One of this dissertation’s central hypotheses is that the environmental state intertwines and actualizes old colonial patterns of thought and action. Consequently, I open this section with a brief history of colonialism in Chile and a conceptual framework to approach this history. 23 Here I draw insights from Latin American scholarship on “internal colonialism” and “coloniality,” as well as from settler colonial studies and critical indigenous studies. It is important to bear in mind that Latin American theories together with settler colonial and critical indigenous studies should be applied in combination to explain colonialism in Chile. These approaches offer elements to read the relationship between states and Indigenous peoples, as well as among non-indigenous peoples inhabiting former colonies. Moreover, I employ the term “neo-colonialism” to refer to logics that pertain to both internal and settler colonial patterns of thought and action. 23 My attempt to come up with a conceptual framework for understanding colonialism in Chile and how it relates to the environmental state takes inspiration from other scholars in Latin American and feminist political ecology who have called for an analytical engagement with environmental expressions of racism (Mollet, 2017; Ojeda, 2018; Sundberg, 2008). Specifically, I respond to Diana Ojeda’s (2018) call to assess environmental processes in Latin America and the Caribbean by engaging with its colonial landscapes of dispossession; that is, the identification of historical, ongoing layers of dispossession that underpin the environmental state. Such an acknowledgement entails paying special attention to how historical forms of land dispossession operate through the racialization of Indigenous People and non-indigenous campesinxs (Ojeda, 2018). A bit of history will help with weaving this framework. 29 These patterns cannot be split and reduced into what settler or internal colonialism indicate. This neo-colonial messiness shapes what we know today as “Chile.” Chile as a unified territorial idea started with the Spanish invasion of indigenous lands and the creation of a general captaincy (a military form of organization, smaller than the viceroyalties established in Peru and Mexico) that lasted nearly 300 years. The captaincy ended when patriots declared independence from the crown in a war that started in 1810. After formalizing the republic of Chile—with the declaration of independence signed in 1818 and the formal surrender of Spanish troops in 1826—a campaign to consolidate the nation-state in indigenous territories was rolled out. Perhaps the largest campaign (but not the only one) occurred in the Mapuche territory located between the Bío Bío and Toltén rivers, an area which is now recognized by most indigenous land rights activists as Wallmapu’s western half, Ngulumapu.24 The Spanish were never able to control this territory and for that reason it represented a cultural and military challenge for the newly created Chilean state, which invaded and occupied these lands in what is infamously known as the “Pacification of the Araucanía” (1861-1883). The state also established a new system of land ownership on unceded indigenous lands. After the occupation, between 1884 and 1929, the state conducted a campaign to seize and to “work” the land through a national program that offered title to European settlers and non-indigenous people from central Chile (Almonacid, 2008). It is hard to overstate the extent of the land grab that occurred within Mapuche territory: by 1930 Mapuche lands were reduced from 10 million hectares to approximately 600,000 hectares (Marimán et al., 2006, p. 11). 24 Pulumapu is located to the east in what is today Argentina. 30 The invasion of Mapuche lands intertwined with former imperial formations left by the Spanish crown, which were layered onto a structure of racism and neocolonialism still currently at the heart of Chilean politics (Richards, 2013). Concrete expressions are the contemporary militarization of Wallmapu (Hale and Millaman-Reinao, 2018), the genocide of Selk’nam People of Tierra del Fuego (Harambour, 2019; Gigoux, 2020), and conflicts with Rapa Nui People after the occupation of Eastern Island (Young, 2020). Lepe-Carrión argues the Chilean state exists through what he calls a “colonial contract,” which organizes society by applying logics of race and class in tandem (2017, p. 326). Such a co-dependency between race and class has endured since colonial rule and frequently resurfaces throughout the modern history of Chile – for instance, the various instances where the state has impeded attempts by Indigenous peoples to reclaim their sovereignty and lands (Correa, Molina, & Yáñez, 2005; Marimán et al., 2006; Nahuelpan & Antimil, 2017). In what follows I present my own reading of neo-colonialism in Chile, which results from the combination of Latin American and North American theories. The conceptual framework presented here underpins the critical examination of market-based conservation, presented in Chapter 3, as well as my analysis of Indigenous consultation in the context of the new Biodiversity and Protected Areas Service. I return to the claims I make on neo-colonialism in Chile in Chapter 5. 1.2.3.1 Internal colonialism and the coloniality of power The term “internal colonialism” can be traced to González Casanova’s 1965 book La Democracia en México (Democracy in Mexico). However, its genealogy is varied and can also be found in Africa (Bringel and Leone, 2021). González Casanova used the term to describe 31 societies that emerged after most Latin American nation-states obtained their independence from the Spanish Crown. These emergent societies rest upon former colonial structures of domination: “With the disappearance of the direct domination of foreigners over natives, the notion of domination and exploitation of natives by natives emerges” (González Casanova, 1965, p. 27). Moving away from orthodox Marxism, González Casanova argued that such relationships of domination cannot be reduced to the European dilemma between capital and labor; rather, they should be read through the combined lens of race and class struggle “since capitalism’s origins, colonial modes of exploitation have combined slavery, servant labor, and wage labor” (González Casanova, 2003, p. 9). Although each country modifies the colonial structure of domination imposed by European empires, this process occurs without altering the basic rules that structure the exploitation of a colonized “other” by criollo and mestizo elites.25 González Casanova also reflected on the ways in which dehumanization occurs. He argued that this process results from multiple forms of humiliation that constantly reveal the state’s colonial structure (Martins, 2018, p. 317). Humiliation and dehumanization associated with European racism and the colonial encounter repeat over several works discussing colonialism in Latin America (e.g., Maldonado-Torres, 2007; Rivera Cusicanqui, 2015). Different strands of theory have emerged from the theory of internal colonialism (see Martins, 2018; Bringel and Leone, 2021). Most relevant for understanding Chilean state politics and society is the work of Rivera Cusicanqui on Bolivia.26 She criticizes the archaic character of 25 According to the Merriam-Webster online dictionary (2022), criollo is a term used to refer to a person of pure Spanish descent in born in America, while mestizo was used to refer to a person of mixed blood. This use of criollo and mestizo corresponds to the one used in this dissertation. 26 Rivera Cusicanqui brings indigenous women and indigenous political movements in Bolivia into the conceptualization of internal colonialism (Rivera Cusicanqui, 1996, 2010a; see also Asher, 2017). 32 the criollo elite in Bolivia, whom she describes as promoters of “the reproduction of feudal and rentier modes of domination (…) based on the privileges granted by the colonial center of power [in this case, Spain]” (Rivera Cusicanqui, 2012, p. 97). This means that Bolivian elites produce and reproduce a network of power that is sustained by colonialism. According to her, colonialism strengthens state politics to manage indigenous populations and facilitates the alliances that elites forge with colonial empires. Although the case of colonialism in Bolivia cannot be directly transposed to Chile, elements of the former help understanding the character of colonialism in the latter. For instance, the Bolivian criollo elite echoes the Chilean one. Although Chile received waves of European immigration that reduced the Indigenous populations more than its neighboring countries (Almonacid, 2008; Quijano, 2008), an important part of the population is mestiza, that is, with a mixed heritage from Indigenous and European ancestors. This condition is present also in Chile and shapes the elites’ practices and discourses around whiteness and indigeneity, which in turn affects how they relate to European centers of power. According to Lepe-Carrión (2017), Chilean elites have always sought to expand their wealth and political hegemony based on their alleged closeness with Europe and drawing from the colonial contract. Parallel to internal colonialism, the concept of “coloniality,” coined by Quijano in his later work (Quijano, 2000), has also been central to many Latin American theorists. Coloniality differs from the more commonly applied term “colonialism.” The latter denotes a political-economic relationship between a sovereign nation and its colonies, a relationship which ended for most Latin American countries in the first half of the nineteenth century. Coloniality, according to Maldonado-Torres, arises from “long-standing patterns of power that emerged as a result of colonialism” in particular historical settings, “that of the discovery and conquest of the 33 Americas” (2007: 243). While colonialism may end, coloniality stays. The similarity between coloniality and internal colonialism is evident here because they both allude to colonial relationships extending in time and outlasting the formal relationship between the empire and its colonies. However, I argue that two prominent elements differentiate them. The first is that coloniality provides the means to analyze race as a codification device. Quijano argued that race emerged as a “new mental category to codify the differences between conquering and conquered populations” (Quijano, 2000, p. 216). Race received a biological status that naturalized the relationship between the dominating and the dominated. The term “coloniality of power” works, consequently, to understand how societies are built through a racial logic, especially when it comes to the “new structure of control of labor and its resources” (Maldonado-Torres 2007: 243). Following Quijano’s work on coloniality, race as a category received renewed attention from scholarship. The Caribbean philosopher Maldonado-Torres has developed one of these formulations. By drawing insights from Dussel and Fanon, he proposes a new model of understanding coloniality by combining race with the ontological experience of “being.” This last point is expansively developed by Lepe-Carrión (2017), who unpacks the construction of race and colonial subjects in Chile. As he observes, at the dawn of the Spanish crown, the Chilean colonial contract emerged as a “colonial matrix of power that granted race an essential role in class differentiation within the nation” (p. 326). These dynamics became embedded in the Chilean state. They are central for understanding the patterns of subordination and epistemic hierarchization applied by the state to Indigenous peoples during the environmental reforms examined in this dissertation. 34 The second element that distinguishes internal colonialism from coloniality involves the word “internal.” Internal colonialism refers to a society’s internal functioning. Even though societies inherited the European colonial relation of subordination, they also actualize versions of colonialism that cannot be reduced to this relation. In this sense, Rivera Cusicanqui prefers the concept of internal colonialism over Quijano’s coloniality. As she points out, “colonialism could not be so effective if it were not because we have stuck the enemy inside us” (Martins 2018, p. 320). Her argument responds to a need to render colonialism as contemporary, that is, as exerted by Bolivians, Peruvians, or Chileans. Along with her contemporary critique, she also values internal colonialism as a way to perform a different scholarship and praxis, one that is less obsessed with European and North American versions of national subordination and more alert to internal modes that explain how colonialism is actualized within mestizo societies. This understanding of colonialism, Rivera-Cusicanqui argues, offers opportunities for challenge and transformation. Both internal colonialism and coloniality are useful for studying the relationship between the Chilean state and Indigenous peoples because they capture two prominent dimensions by which societies in Latin America structure themselves – the use of race as a codification device and an internal mode of domination and exploitation. This literature has been expanded to consider how colonial structures of oppression combine with patriarchy (Lugones, 2016; Maldonado-Torres, 2007; Segato, 2010), and how they operate against colonized populations that may not belong to Indigenous groups but who reproduce and actualize the coloniality described. This point is key for understanding the ways in which the environmental state functions in Chile. As I review in Chapter 3, the introduction of market-based instruments to 35 foment biodiversity conservation may authorize sacrifice zones, spaces where environmental injustices are intensified, where indigenous and non-indigenous bodies become expendable and sacrificial (Svampa & Viale, 2014, p. 84). These are zones replete with hierarchies, zones “overwhelmingly inhabited by racialized peoples” (Sundberg et al., 2020). Before moving to the methods implemented in this dissertation, I review one fundamental aspect of colonialism which the Latin American literature on colonialism does not explore in enough detail. That is, the process by which modern states govern to weaken and eliminate Indigenous People. This point is key as it emerges in the Indigenous Consultation conducted by the state during the creation of the Biodiversity and Protected Areas Service. 1.2.3.2 Settler colonialism and critical indigenous studies The scholarship interrogating settler colonial states has taken up the task of understanding how modern states actively mobilize means to eliminate Indigenous People. One key concept is Wolfe’s (2006) “settler logics of elimination,” used to explain persistent attempts by states to exterminate the indigenous population and establish their societies on occupied land. Genocide is not an exceptional or mere consequence of colonialism, Wolfe underscores, but the opposite: “elimination [of Indigenous People] is an organizing principal of settler-colonial society” (p. 388). An immediate consequence of having “elimination” and “occupation” as organizing principles, Wolfe asserts, is that settler-colonial societies are land-based projects built through and upon genocidal practices. Invasion, therefore, is not a discrete event; it does not take place only once. Invasion is a structure, and it is through such a structure that settler colonialism “destroys to replace” (p. 388). 36 Dene scholar Coulthard (2014) draws from Wolfe’s insights to frame “colonialism as a form of structured dispossession” with land as its principal element (p. 7). The continuity of settler domination structures a series of hierarchical social relations that allow “dispossession of Indigenous peoples from their lands and self-determination authority” (p. 7). Coulthard insists, thus, that the core problem of colonial recognition lies in the terms in which recognition is framed—always by the hegemonic side, the settler colonial state (p. 17). Interestingly, the conceptualization advanced by Coulthard resonates with Lepe-Carrion’s concept of colonial contract and the instances where the Chilean state has sought to replace Indigenous populations with European and Chilean settlers, as occurred on Mapuche lands in the late nineteenth century. Another example is the Selk’nam genocide farther south around the same period. In that case the Chilean state facilitated the political, economic and religious arrangements that led to the civilian-driven and colonial genocide of the Selk’nam in Tierra del Fuego for the purpose of establishing sheep farming on the island (Harambour, 2019, p. 167). Persistent attempts to occupy, displace or eliminate Indigenous People define another dimension of settler colonial societies, namely, the contemporary threat of Indigenous disruption and resurgence (Simpson, 2014). Simpson argues, for instance, that the sovereignty of Indigenous peoples constitutes a danger for settler colonial states like Canada because multiple sovereignties cannot co-exist within the political framework of settler states. Another approach has come from recent scholarship analyzing the Canadian state’s role in the circulation and accumulation of capital. According to Pasternak and Dafnos, (2018), the state works in tandem with firms which need to keep supply chains secured for the access to natural resources. The state upholds institutional infrastructures that allow ongoing capital circulation, and in some 37 cases the state is also the primary investor in extractive enterprises. The case of Chile resonates with Pasternak and Dafnos’s work. Although the Chilean state is not as big an investor like the Canadian state, it actively works to secure the circuitry of capital accumulation via the global extractive economy by suppressing Indigenous ways of protecting biodiversity. This is demonstrated by my analysis on the Indigenous consultation conducted for the Biodiversity and Protected Areas Services – I expand on this point in Chapter 4. In sum, these strands of thought inform my conceptual framework for approaching the coloniality that underpins the environmental state in Chile. They do not work individually but in combination to facilitate an approach to neo-colonialism that does not overlook the role of elites nor the state’s work for securing its sovereign power via capital circulation and extractivism. This point is important because, as I review in the following chapters, the unfolding of the environmental state responds to varied logics and entanglements that cannot be reduced to only one mode of – and approach to – colonialism. 1.3 Methods: tracing environmental law and institutions in the making The question of how the environmental state materializes in Chile demands a careful exploration of state practices of institution- and law-making and how external actors influence these processes. The environmental institutions and policies that regulate conservation, as well as the relationship between the environmental state and Indigenous peoples, are contained in the Biodiversity and Protected Areas Service (BPAS) bill. However, this piece of legislation has yet to be approved and remains under discussion in the legislature. While the Chilean state possesses a legal framework that regulates the environment, this framework is in the midst of a profound transformation that will provide novel instruments – and legal attributions – for the state and the 38 private sector to enact biodiversity conservation measures. This adds another layer of complexity to the research since the laws and institutions which I analyze are not yet operational; I reflect on the temporal dimension of the BPAS in Chapter 2. In the next section, I explain how I turned that limitation into an analysis of law-in-the-making by incorporating the notion that law and space are not entities organized sequentially, but rather constantly reformulate each other. This approach to law and state-making practices proved to be fruitful for the purposes of this dissertation. This section introduces the methodological approach and the procedures implemented to understand the interactions and major hallmarks of the environmental state through the BPAS. I start by defining my conceptual strategy, which is influenced by the field of legal geography and a decolonial approach to state institutions. It is important to bear in mind that despite being one of this dissertation’s cornerstones, the BPAS is not the only site of action. Private consultants, NGOs and intergovernmental organizations have shaped this institution by means of policy reports, legal minutes, and lobbying practices. The methodology implemented for this project thus aimed to capture part of this complexity while also incorporating Indigenous knowledges, rights, and struggles. 1.3.1 Conceptual strategy: Legal geography and state-in-the-making The field of legal geography is concerned predominantly with interrogating the ways in which law and space are co-constituted, with an emphasis on how geographical phenomena are legally fabricated (Delaney, 2015). The post-structural tradition approaches law as a contested domain, destabilizing legal categories and proposing instead that legal arrangements are historically and spatially situated (Blomley & Labove, 2015; Delaney, 2015; O’Donnell et al., 2020). In a recent 39 publication, O’Donnell et al. (2020, p. 4) argue that legal geography works to “disrupt ideas about the ‘closure’ of law as a discrete, formalistic or even archaic set of institutions (statutes, courtrooms, case-law and contracts etc.).” Such a notion of law brings a fresh perspective to the legal analysis I conduct in this research by allowing me to interrogate how formalistic institutions are crafted and crystallized in the form of environmental laws. The BPAS is one such institution and thus requires careful consideration to offer a detailed and informed account of “the political nature, social relations and power relations of law-making and law enforcement” (O’Donnell et al, 2020, p. 4). Legal geography constitutes the starting point to critically examine the making of the environmental state. Implementing a legal geography lens enables the recognition of human and nonhuman agency and, therefore, a rejection of the monolithic state. As I detail in this chapter’s theoretical review and in Chapter 3, my approach to the environmental state draws from Foucauldian views of the state (Jessop, 2007; Lemke, 2007; Mitchell, 1991, Robertson, 2015). From this perspective, the state is an unfinished project, a structure in constant making. It demands paying attention to how the state achieves stability – that is, which practices and discourses shape the state’s durability. To understand the state-in-the-making, one needs to closely look at lawmaking. Laws are social practices “arranged as to produce the effect that ‘law’ [and the state] exists as a sort of abstract, formal framework, superimposed above social practice” (Mitchell, 1991, p. 94). This understanding of laws is at the core of legal geography. Practices and knowledges involved in the making of the BPAS bill are, consequently, key to the making of the environmental state in Chile. The approach to the state as a process in the making allowed me to wrestle with three main challenges that appeared during this research. First, the need to understand how Chile, as a 40 state-in-the-making, navigates internal and external forces that shape its environmental institutions and defines its approach to biodiversity conservation as market based – a point developed in Chapter 2. By not assuming the state just followed intergovernmental institutions or the needs of transnational corporations, I had more room to carefully examine the discussions, turning points, and debates among legislators and legal advisors who advocated for other strategies or who simply had other stakes in the BPAS’s approval. It also pushed me to take a closer look at intergovernmental assessments, conclusions and recommendations, as well as how Chile dealt with these reports while also attending to domestic pressures, mainly driven by economic growth and state austerity imperatives. Second, avoiding an a priori assumption of a monolithic state and turning instead to its openness made room for exploring the role of intergovernmental institutions in the crafting of the economic instruments to protect biodiversity. For instance, in Chapter 3, I scrutinize the instruments utilized to frame Chile as a state that lacks funding to conserve biodiversity. From score cards to rankings among countries to calculations to determine biodiversity’s value, these instruments assist development institutions in framing Chile and other Latin American countries as incapable of protecting nature. Countries must thus provide the means for north-based firms and NGOs to conduct conservation in tandem with development. The discursive power of these instruments contributes to producing an institutional divide between the global north and south. And finally, a focus on the state-in-the-making and laws’ productive power called for a greater consideration of how the structures that compose the environmental state shape its relationship with Indigenous peoples. The BPAS contains laws that affect various dimensions where Indigenous peoples interact with the Chilean state, some of which are key to Indigenous rights and self-determination —for instance, the access to national parks and reserves. 41 Contemporary notions of biodiversity conservation and rural development affect other aspects of this relationship as well. In Chapter 4, I analyze both dimensions by tracing the application of an Indigenous consultation to the BPAS. I look at the moments when the state encountered Indigenous peoples, their reactions, and how the state responded to their claims. Not having attended the consultation procedure (which occurred just as I was starting my PhD), I relied on reports on the consultation, press articles, interviews with people involved in the process (supporters and detractors), and parliamentary materials related to the legislation of the BPAS. The next subsection introduces my methods, but before that let me note the decolonial approach I applied to the analysis. 1.3.1.1 A decolonial approach to Indigenous consultation Producing a legal geographical analysis of Indigenous consultation entailed special care in how I interpreted the information provided by public institutions, and former and present state officers. On one level, I interpreted consultation as a contact zone between the Chilean state and Indigenous peoples (Pratt, 1991). Pratt (1991, p. 34) coined this term to describe spaces of encounter between cultures where hierarchies are prominent. She defines contact zones as “social spaces where cultures meet, clash, and grapple with each other, often in contexts of highly asymmetrical relations of power, such as colonialism, slavery, or their aftermaths.” Her reflection came after she analyzed a 1613 long letter sent by Guaman Poma de Ayala, an Indigenous Andean of noble descent, to King Philip III of Spain. The letter never arrived at its destination and was found in the Danish Royal Archive in Copenhagen in 1908. Moreover, it was not till the late 1970s that it was formally considered worthy of analysis by Western social scientists (Pratt, 1991, p. 34). Both the content of the letter and its neglect illustrate the profound 42 asymmetry inherent in the efforts to express colonialism from the perspective of the Indigenous colonized.27 I draw from the contact zone concept with two purposes in mind here. One is to understand the relationship between the state and Indigenous peoples through the creation of environmental institutions. The contact zone allows me to carefully interpret each step of consultation as a space where cultures meet and clash in asymmetrical power relations.28 My other goal is to emphasize the richness of the information provided by Indigenous organizations during consultation. This information was blatantly excluded from subsequent amendments to the BPAS (see Chapter 4), a similar fate to that of Guaman Poma de Ayala’s letter to the Spanish king. This disrespect of Indigenous views and ways of approaching nature conservation can only be understood by recognizing the historically rooted preference for the Western, liberal approach along with its colonial and racializing attitude towards Indigenous peoples. On another level, the analysis of the consultation conducted here entailed positioning myself within a decolonial tradition and maintaining a skeptical view of the state’s discourse on its relationship with Indigenous peoples. More than 500 years since the Spanish invasion and after two centuries of Chilean independence have engendered a massive, ongoing seizure of Indigenous people lands and culture – reviewed in Sections 1.2.1.2 and 1.2.3. Several claims by Indigenous peoples derive from ongoing struggles with the state, which is simultaneously articulating strategies to comply with the international commitments of ILO Convention 169 and 27 Rivera-Cusicanqui (2015) analyzed Guaman Poma de Ayala’s letter in greater depth and argued that he presented a “visual theorization of the colonial system” where the concept Pachakuti emerges throughout his illustrations to refer to the inversion of the world, a catastrophe marked by “the massive subordination of Andean people and territory to the Spanish crown” (Rivera-Cusicanqui, 2015, p. 177). 28 A similar interpretation of Indigenous consultation as contact zone can be found in Ugarte (2019). Sundberg (2006) offered a treatment of the concept “contact zone” to read conservation projects in Latin America as zones of encounter and contact where processes of subject formation take place. 43 UNDRIP. Tensions between what Indigenous peoples demand and what the government assumes as its duty are palpable in the making of the environmental state. To trace these tensions, I accessed state information through the freedom of information act and material publicly available online. I also remained attentive to the state’s triumphalist narrative regarding its relationship with Indigenous peoples. This strategy allowed me to approach state-produced information without assuming its truth. Consequently, the analysis of state material confirmed my hypothesis that the state conducted the Indigenous consultation but neglected to apply its outcomes. The documentation produced by state bureaucrats about the Indigenous consultation conducted on the BPAS allowed me to identify how the state marginalized Indigenous knowledges and views about biodiversity, which I unpack in Chapter 4. Some of my interviews were with Indigenous representatives who participated in the first stages of the BPAS legislative process, when organizations demanded an Indigenous consultation. I also interviewed Indigenous informants who currently engage in biodiversity conservation in their territories. My approach to these interviews was mediated by an “ethnographic calculus” (Simpson, 2014, cited in Zaragocin, 2018). It is a strategy to balance “what the reader needs to know” with “what the researcher refuses to write about” (p. 2). In a context of ongoing dispossession of Indigenous peoples’ lands and sovereignty, through this ethnographic equation I sought to respectfully approach Indigenous knowledge and political strategizing. To this calculus I bring my own positionality, understanding that I am a person of privilege in Chile and that my interpretations of these interviews are indeed influenced by this position, as well as by the academic training I have received over the years. To explain the composition of the interviewees and other instruments employed in this research, I turn now to my methods. 44 1.3.2 Methods on-the-ground This research was conducted from two sites: Vancouver and Chile. My fieldwork in Chile took place from January 2019 to April 2019 and from January 2020 to March 2020. The first round of fieldwork was preliminary and exploratory; I attended seminars, gathered materials, and spoke with people involved in biodiversity conservation in formal and informal settings. On the second field visit, I conducted the bulk of interviews with informants involved in the legislative processing of the BPAS, many of whom were identified during the first trip. The data collection was structured around three principal activities: a) semi-structured interviews with people involved in the BPAS and with knowledge of market-based biodiversity conservation, b) open interviews with people from Indigenous and local communities working in conservation initiatives or related to the BPAS Indigenous consultation, and c) collection of documentation related to the BPAS legal processing. In total I conducted 55 interviews with 52 people29 and reviewed extensive documentation on the BPAS. The COVID-19 pandemic interrupted my fieldwork during the final week of interviews, so seven were conducted online from Vancouver. 1.3.2.1 Interviews with BPAS officers and experts in market-based biodiversity conservation I conducted 30 semi-structured interviews with 28 informants who were involved in the legislation of the BPAS and, specifically, with the economic instruments included in the bill. They included: state bureaucrats, environmental NGO executive directors and senior staff, legal 29 The number of informants is lower than the number of interviews because I conducted follow-up interviews with two interviewees. 45 advisors (lawyers and other legal experts), private consultants, Indigenous rights activists and advocates, officials from intergovernmental institutions, and former state bureaucrats with extensive knowledge of the bill or the market-based component framing the legal approach. All participants were offered full confidentiality to help reduce vulnerability and risk. Identities were disclosed only when participants explicitly requested that I do so. Most interviews lasted between 1 and 1.5 hours, although some lasted up to 3 hours. They took place in offices, restaurants or cafes—mostly in Santiago, but also in Puerto Montt, Valdivia, and Panguipulli (see Appendix A for a complete list of interviewees profiles with coded identifications). Selecting participants was difficult at first. A seminar I attended on marine finances organized by the WCS at the end of 2018 made clear that the BPAS bill pioneered many of the state reforms conducive to market-based biodiversity conservation. Likewise, the BPAS also shed light on the relationship between the environmental state and Indigenous peoples because the bill was subjected to the consultation between 2016 and 2017. Yet, the bill lived inside the parliament for 11 years since the first version appeared in 2011 (see Chapter 2). After all those years, how to pick the most representative subjects? After the seminar on marine conservation finance, I started collecting information and identifying potential interviewees related to the bill’s aims. The selection was twofold: first, I identified authors in state and intergovernmental reports who wrote about the BPAS, as well as those who were interviewed in press articles about the BPAS and the associated institutional reforms. Second, after scheduling those interviews, I applied a snowball sampling technique, asking interviewees to identify potential participants who could speak about the BPAS bill and its economic instruments. The suggestions proved fruitful, even in cases where the connection to the BPAS was not immediately apparent. For instance, I interviewed people who led UN-BIOFIN Chile, and former state bureaucrats who produced 46 substantial technical knowledge to mobilize the “biodiversity funding gap” discourse in the country (see Chapter 3). While these interviewees were not openly advocating for the BPAS, they possessed detailed and grounded techno-scientific knowledge of market-based mechanisms and had enormous stakes in the approval of the BPAS because the instruments they designed would be deployed once the bill passes the legislature. Participants were contacted via email or approached in seminars and talks.30 The interviews were recorded and transcribed for analysis. The interviews covered various topics related to the BPAS: stories about the legislative process, controversies over the institutional reform proposed by the bill, and the techno-scientific knowledge produced alongside the legislative procedure. The last topic mainly involved minutes produced by ENGOs and delivered to lawmakers, who then used them to discuss amendments to the bill. Finally, I reviewed multiple press articles authored by environmental experts who advocated for or against the BPAS bill. This strategy allowed me to identify key lines of reasoning among policy experts and prepare specific questions for the interviews with state and non-state BPAS experts. Appendix B explains the semi-structured interviews applied to this group. 1.3.2.2 Interviews with people related to conservation initiatives and the BPAS Indigenous consultation I conducted 25 open interviews with 23 informants connected to the BPAS Indigenous consultation, or related somehow to local, private, and indigenous conservation initiatives. Some 30 For instance, I travelled to Puerto Varas, 1,100 kilometers from Santiago, to introduce myself to the executive director of one of the most influential environmental NGOs in Chile. After that introduction, I could establish a fluid communication and conduct the interview in Santiago. 47 interviewees were involved in initiatives led by Indigenous communities, while others had substantial knowledge of the relationship between the state and Indigenous peoples in southern Chile. I confined my fieldwork to Santiago and the Mapuche south mainly because I could rely on existing networks of people with whom I could interact in a respectful way. This also allowed me to conduct the interviews within the limited timeframe I had allocated for my second fieldwork trip. I am aware that the decision constitutes a limitation of the study since I did not conduct interviews with Indigenous representatives from Nations other than the Mapuche. However, I opted for avoiding helicopter research, whereby researchers from advantaged positions conduct research in territories with an agenda of rapid data gathering and then leave (as recently commented by Nature’s editorial note, see Nature, 2022). I reflect on this limitation and futures potentialities in Chapter 5. All participants were offered confidentiality unless they asked to be identified (see Appendix A for a list of participants and their profiles, with coded identities). A few participants performed two roles of interest for the study: both as key local informants and as environmental experts (see Appendix A). These participants had a vast environmental knowledge and could speak about the relationship between the state and Indigenous and local conservation initiatives. Other interviewees were part of a private protected area located in southern Chile (Panguipulli). I interviewed them at the suggestion of a local environmental expert who pushed me to reflect more on the role of private actors. These interviewees had, indeed, great insights about the unfolding of market-based biodiversity conservation in Chile (especially in terms of eco-real estate and private wildlife management). However, I left most of their accounts out of the final manuscript to maintain my focus on the environmental state and only drew from them to make general statements (supplemented with 48 bibliographic sources where possible). The richness of their accounts will undoubtedly be useful to reflect on the role of private conservation in a future research project. Regarding the selection of participants, I employed two main procedures. First, the snowball technique, which started by interviewing local environmental experts who pointed me to other participants. And second, I approached people at organizations related to biodiversity, mainly from the “Feria de Huerta Mapuche,” led by the Trafkintuwe of Panguipulli. The Trafkintuwe brings together Mapuche and non-indigenous people who want to learn about techniques to reproduce native trees, create urban gardens, and exchange seeds. Unfortunately, a fire affected the building that housed Trafkintuwe in 2020, which compounded difficulties already imposed by the COVID-19 pandemic. At this point of my dissertation, I and some friends turned our energies to a fund-raising campaign to help with the reconstruction of the building. Interviews were conducted in an open-ended format and covered personal views and experiences conducting biodiversity conservation – beyond state-led initiatives – as well as Indigenous consultation for those who were involved. Conversations with Indigenous representatives focused on Indigenous ways of protecting nature (biodiversity conservation was a term constantly challenged by my interviewees; see Chapters 4 and 5). While in the case of local environmental experts, the conversation narrowed down to concrete experiences with conservation and the role of the state, in the case of local key informants we talked about the meaning of conservation and the possibilities for engaging in conservation practices in a context where land tenure is highly concentrated. 49 1.3.2.3 Collection of documentation related to the BPAS legal processing I analyzed two BPAS bills submitted to the legislature (I include a history of the BPAS bill in Chapter 2), although I placed greater emphasis on the second bill as it corresponds to the current version. I reviewed around 1,500 pages of parliamentary discussions, dozens of minutes circulating among three ministries (Environment, Interior, and Agriculture), and several meetings (each nearly seven hours) held with at least 20 different environmental organizations and experts. To speed up the analysis of this massive volume of information, I conducted close readings of the documents dealing with the economic instruments contained in the BAPS, and also applied keyword-searches to materials unrelated to this topic but still relevant to the dissertation. For instance, I reviewed a report produced by a congressional labor commission regarding the transfer of workers from the Ministry of Agriculture to the Ministry of the Environment once the BPAS commenced (see Chapter 2). Likewise, I analyzed all the documentation pertaining to Indigenous consultation applied for the BPAS. This entailed filing a freedom of access request with the National Institute of Human Rights (INDH) and reviewing public documents produced by the Ministry of the Environment. Many sessions conducted in the lower house of congress lacked full transcripts of the parliamentary discussions. This problem was particularly acute with the amendments voted on during 2020, when the compensation banks were removed from the bill (see Chapter 3). To fill this information gap, I watched online recordings of every session related to the discussion of these articles. This strategy worked incredibly well as it gave me a better grasp of the dynamics inside the congressional sessions and each lawmaker’s arguments during the voting. Besides the legal documents pertaining to the BPAS bill, I accessed private documentation on the biodiversity offsets program, analyzed in Chapter 3. I also reviewed 50 various intergovernmental reports on Chile’s environmental institutions; for instance, the OECD’s Environmental Performance Reviews published in 2005 and 2016, and the global OECD recommendations on financial mechanisms for biodiversity. To examine these documents, I applied a hermeneutic approach, which started by reviewing the sources cited by lawmakers during the introduction of the BPAS bill to parliament. Subsequently, I took note of relevant texts mentioned by my first group of interviewees and examined those as well. After conducting a first round of document review, I went back to the primary sources and looked for data that I had missed, repeating the procedure several times until I had clarity on the most prominent discourses mobilized by lawmakers and environmental experts inside and outside of the state. 1.3.2.4 Data processing Interviews were recorded when I received authorization and, in cases where I could not record, I took notes. Most interviews were transcribed by me and two other people I hired for this task. For the video sessions, I transcribed the relevant passages. All the information was processed using the qualitative analysis software, Atlas-ti 8, which I used with exploratory and organizational purposes. I coded all documents and created meta-codes to organize the information and explore it based on my research goals. This strategy translated into 90 documents and 334 codes organized under five meta-codes: 1) the BPAS bill process, 2) the BIOFIN program and related material, 3) the biodiversity offsets program, 4) the Indigenous consultation process, and 5) intergovernmental discourses about Chile’s environmental performance. These categories and codes were based on my research goals and through an inductive approach. That is, I avoided forcing primary data into existing claims. This decision 51 allowed me to navigate the material with fluidity, connect interview transcriptions with legal documents, and maintain cohesiveness among the many arguments and primary sources. 1.4 Overview of the dissertation The dissertation comprises five chapters. After this introduction and theoretical review, the second chapter examines the last decade of environmental reforms carried out by the Chilean state. In doing so, it proposes a political ecology of the environmental state, tracing domestic and international environmental policymaking. A series of market-based instruments are being crafted among the government, private consultants, and green NGOs; however, the proposed legislation, the new Biodiversity and Protected Areas Service, is not yet approved. Consequently, the chapter reflects on the policy rhythms in Chile in conjunction with the turn toward market-based biodiversity conservation in the country; how it became articulated within the Chilean environmental legislation, who were the main institutions and agents involved in this turn, and how power relations unfold amid these changes. The third chapter analyzes the central strategy proposed by the Chilean government to fill the biodiversity funding gap, namely, a biodiversity offsets market. It traces the discourses and narratives that underpin its promotion as well as the actors involved. Reviewing from state reports to private assessments and UN rankings applied to Latin American countries, the chapter claims that it was the financing gap what spurred the implementation of a biodiversity offsets market in Chile. The financing gap is a tool proposed by intergovernmental development institutions to calculate the financial resources needed by a country to achieve its environmental goals. Chile presents one of the lowest state expenditures in this matter and, hence, one of the highest financial gaps in the region. State agents together with intergovernmental institutions and 52 private consultants evaluated the financial gap in Chile and proposed the salvaging of a poorly implemented mechanism already in use but not as a market, namely, environmental compensations. Transforming the compensation mechanism into an offsets market would bring new cash into conservation, these actors argued. The fourth chapter reviews the Indigenous consultation conducted for the Biodiversity and Protected Areas Service. The chapter demonstrates how the state overlooks Indigenous knowledges and practices to protect biodiversity. In the first move, the state tried to avoid conducting Indigenous consultation altogether. Confronted by Indigenous organizations who demanded it, the state conducted the consultation but did not use the proposals made by Indigenous representatives to amend the BPAS bill. The state attempts to debilitate the consultation and ignore its main outcomes is a strategy to ignore Indigenous peoples. The state invests significant resources to secure itself, avoiding approaches to biodiversity protection that would put its jurisdictional system at risk. This explains why it represses Indigenous practices and knowledges to protect biodiversity. Appealing to land recuperations, communitarian land ownership and conservation, Indigenous strategies of taking care of biodiversity represent real fractures for a state that has been built on the dispossession of Indigenous land, from Indigenous genocide and assimilation campaigns. The last chapter presents the conclusions. It outlines five main arguments developed throughout the empirical chapters while it also reflects on the limits of this dissertation. A reflection on the legislative pace of environmental reforms is also provided. Finally, the chapter presents potential new lines of research related to Indigenous biodiversity conservation and the biodiversity offsets market in Chile. 53 1.5 Conclusion This chapter introduced the main conceptual framework of this dissertation. After presenting the research, the chapter outlined the context within which the environmental reforms articulate in Chile: the neoliberal state, the environmental state, and the neo-colonial state. Each of these approaches provided historical context as well as the theoretical and conceptual toolkit I will employ in the empirical chapters when I analyze the character of the environmental state in Chile. It is important to keep in mind that the three approaches to the state are by no means the only ones defining Chile. Rather, they serve the goal only of this dissertation in examining how the constitution of the environmental state unfolds within a profoundly neoliberalized country, with internal and settler colonial patterns carved onto the relationship between the state, Indigenous peoples and non-indigenous populations. The theoretical and conceptual framework mainly follows in the footsteps of the post-structural tradition established by Foucault and his interpreters, but it also considers scholarship from feminist political economy as means to explain biodiversity loss. The third section presented the methodological framework, drawing from legal geography and a decolonial approach to understand the relationship between the state and Indigenous peoples. It also specified the methods and main characteristics of the study’s participants. The last section offered an overview of the dissertation, focusing on the empirical chapters and the dissertation’s conclusion. 54 Chapter 2: From diagnosis to transformation: tracing the making of the environmental state in Chile Look! Here it says clearly: “A dedicated nature protection agency established under a single, comprehensive nature protection law and responsible for terrestrial and marine habitat protection, species protection (…) and biodiversity would have a better chance of success than the current arrangement, with its gaps and overlaps.” See? (State agent citing the 2005 OECD Report, interview, 2020) 2.1 Introduction What are the major events in the legal processing of the bill that creates the Biodiversity and Protected Areas Service? And what are the main market-based instruments proposed by the state of Chile to foment the conservation of biodiversity? This chapter traces the transformation of Chile’s environmental institutions. It examines the law-making practices during the legal processing of the BPAS bill. Based on interviews with state and non-state actors and the revision of grey literature and congressional reports, the chapter explains how new eco-rationalities solidify into institutional arrangements, policy frameworks and market-based managements of nonhuman life. In this chapter I argue that the environmental state is in intimate relationship with global circuits of corporate growth, in which the license of extractive enterprises plays a major role. This intimacy between the state of Chile and global circuits affects the type and pace of the environmental reforms underway. 55 The publication of the Organization for Economic Cooperation and Development report, “Environmental Performance Review,” (OECD, 2005) produced an institutional transformation in Chile.31 As my interviewee vocally expressed in the quote at the beginning of this chapter, the OECD recommended that the state create a “dedicated” environmental agency that differed from “the current arrangement, with its gaps and overlaps” (OECD 2005, p. 108). In 2014, the same quote was also cited by the Ministry of the Environment when it introduced in congress the bill that created the Biodiversity and Protected Areas Service (Ley, 2014, p. 7-8). The executive director of Chilean environmental NGO Terram, Flavia Liberona, commented the report, saying it “was well received by the environmental community; It was deemed a useful instrument because it allowed us to have a legitimate source of information, it reinforced what we were claiming, and it gave us a ground on which to discuss” (NSE1, interview, 2020). Part of a wider evaluation of the Chilean economy and the state of its democracy, the OECD Environmental Performance Review suggested that the country needed better institutions for environmental management before it could join the multilateral institution. A decade after this report, the OECD published a second that measured Chile’s capacity – and failure – to comply with the advice given in 2005 (OECD, 2016). This second assessment did not impede the entrance of Chile into the OECD, as Chilean state agents managed to keep alive the promise of transforming the state’s environmental institutions. The OECD 2005 report is a landmark in Chile’s environmental trajectory in at least two fronts. First, it fed the agendas of environmental movements; it most emblematic case was 31 I refer to the influence of the OECD in Chilean environmental transformation in further parts of this chapter, while I offer a view of its role on the world stage – both political and economic – in the Introductory chapter of this dissertation. 56 “Acción por los Cisnes” (Action for Swans), a movement created after the spillage caused by the pulp mill ARAUCO in the Rio Cruces Wetland. The movement scored a victory when the National Environmental Commission (CONAMA) closed the plant just before Chilean representatives met with OECD members in Paris to respond to the 2005 report (Sepúlveda, 2016). Second, the report put pressure on the Chilean state to restructure its environmental institutions before accessing markets with increasing demands for environmental safeguards, such as the ones in Europe and North America. The OECD’s advice was thus a form of molding Chile’s institutional compliance before the country could access new markets for selling nature-based exports and receive foreign investment. This evaluation was the first step in Chile’s entrance into what was then called “the club of the world’s most developed nations” (Charpentier, 2009). Deviating from the long-term relationship with the World Bank – commenced with the first money loan ever given to a development program, in 1948 (World Bank, 2016)32 – belonging to the OECD select club possessed a symbolic and material meaning. This was not a relationship sustained on money loans, but on access to new spaces for capital accumulation and circulation. In turn, Chile was asked to increase its environmental regulations, policies, and programs to meet the environmental rules devised in the first world. The OECD finally approved Chile’s membership in 2010, but not without pushing the country to jump through several major hoops beforehand. Before becoming the 31st OECD member country, Chile participated as viewer in world meetings organized by the OECD since in 1993. During that time, Chile also funded its first 32 This loan was the first that differed from the ones delivered for the post-war reconstruction in Europe. It was explicitly labeled for “development.” 57 environmental agency, CONAMA, and passed its most important environmental law, “Ley de Bases del Medio Ambiente” (Framework Environmental Law number 19,300). Law 19,300 was the first piece of legislation to incorporate environmental regulations under one framework. It gave CONAMA legal attributes to operate the Environmental Evaluation Service (SEA), which was in charge of the Environmental Impact Assessments. In 2007, the OECD invited Chile to apply for membership in the inter-governmental organization, valuing its past two decades of democratic stability and free-market, export-oriented economy (OECD, 2010). Three years later, the OECD evaluation committee invited Chile to join the organization, announcing that Chile’s entrance “represents a historical moment in its mission to build a stronger, cleaner and more just economy” (OECD, 2010). Whereas the stronger and more just ‘economy’ related to sustained economic growth and the reduction of poverty (OECD, 2010), the “clean” part was dependent on the state’s commitment to fulfilling OECD recommendations about the environment. Among these requests, the section on “Nature and Biodiversity” listed a series of recommendations for Chile to follow. One of them was that the country should “review institutional and legislative arrangements for the management of nature and biodiversity.” This was because “the protection of nature has so far not been given enough emphasis and resources to deal with long-term threats to Chile’s highly endemic biodiversity” (OECD, 2005 p. 6). Another point the report made was that “further mechanisms, including economic instruments, [should be put in place] for creating win-win opportunities in tourism and nature policies” (p. 7). One month after receiving the invitation to become part of the OECD, Michele Bachelet, at that time president of Chile (2006-2010), inaugurated the Ministry of the Environment and passed Act 20,417 to replace CONAMA with two new branches: the Superintendence of the 58 Environment and the Environmental Evaluation Service (SEA).33 Bachelet’s presidential speech when bill 20,417 entered the parliament emphasized that the state was closely following OECD’s recommendations, since “Chile’s entering into the OECD will demand a constant public scrutiny of our environmental policies, which will push us to act (…) with efficiency and quality.” (Ley 20,417, p. 6). Despite the swift start-up of these two branches, the Superintendence, and the SEA, a third branch was missing to have a complete environmental restructuring according to OECD’s recommendations (see Bergamini & Pérez, 2015). It was the Biodiversity and Protected Areas Service (BPAS). Moreover, the BPAS was still pending after Bachelet ended her presidential period. A major reason for this delay was that this branch consisted of a brand new “service.” Public “services” in Chile are state administrative units within ministries – their function is to apply policies, plans, and programs. The creation of a service can only take place by presidential act and after the approval of lawmakers who review, correct, and vote on the articles within the service’s statutes.34 Conversely, the Environmental Evaluation Service already existed and simply went from CONAMA to the new Ministry of the Environment. The BPAS had to go through a new cycle of legislation and, consequently, it had to face a series of long discussions on several fronts. These debates were varied, ranging from new budgetary appropriations to the elimination of an entire subdivision inside the National Forest Corporation (CONAF), which oversaw the administration of most protected areas (the SNASPE35). The path to approve and implement the new BPAS in Chile commenced in 2011 when Sebastián Piñera’s executive branch sent bill number 7,487-12 to Congress (Ley, 2011). This is 33 The SEA means Servicio de Evaluación Ambiental, and it already existed as a former branch of CONAMA. 34 According to Article 25 of Law 18,575. 35 The SNASPE corresponds to the Sistema Nacional de Areas Silvestres Protegidas del Estado (State National System of Wild Protected Areas). It is a division within CONAF, which is a branch of the Ministry of Agriculture. 59 the beginning of the BPAS’s long passage through the legislature, and of the design and deliberation over economic instruments to promote biodiversity conservation. However, despite long and enduring efforts, after nine years – and as I write these lines – the BPAS bill remains stuck in the Parliament. And so, how to tell a story – and to make sense – of the laborious work invested in crafting an environmental scaffolding for biodiversity conservation when it is still underway and incomplete? How to make sense of the conspicuous lethargy of the entire process? The OECD’s pressures on the Chilean state to strengthen its environmental institutions have not materialized into the main entity charged with taking care of the environment. Moreover, the fact that Chile is not a state with a significant amount of institutions and practices dedicated to manage the environment – that is, an “environmental state” (Duit et al. 2016) – in the eyes of the OECD and yet still it was able to enter the club suggests a particular arrangement in the political economy of global environmental politics. One where the apparent lethargy of the environmental transformation may not be the reflection of an incompetent state apparatus, but indeed a necessary part of it. This chapter reviews the transformation of the Chilean state’s environmental institutions, the effort invested and lost to turn the state into an “environmental” entity in the eyes of the OECD and the capitalist industrialized world. Specifically, I trace the legislative path of the BPAS bill through interviews with state and non-state actors combined with an extended review of grey literature and congressional reports. I place special emphasis on the market-based instruments mobilized by the second version of the bill, namely, the design of compensation banks, a biodiversity certification system, and the establishment of novel contracts for the retribution of ecosystem services. In this sense, the present chapter also works as a prelude to the 60 next one where I analyze in deeper detail the assembling of a biodiversity offsetting program and relate it to a wider agenda to promote market-based biodiversity conservation. Through this chapter I also reflect on how the Chilean state navigates amid the tensions between internal and external forces shaping its environmental trajectory. While the state must deal with its own environmental and politico-historical trajectory, it must also grapple with international mandates like the OECD. Moreover, the story remains open and even more so because one of its main pillars, the BPAS, remains stalled in the Parliament. To grasp the internal and external forces at work, as well as the unfinished character of the environmental institutional metamorphosis, I approach the case as a developing, ongoing process that is part of a wider state formation. I refer to Foucault’s analytics of government, while I also draw from some of his interlocutors (e.g. Jessop, 2007; Lemke, 2007). According to these authors, the state is not a taken-for-granted entity that pre-exist the conjunctures that affects it. Rather, it is a product of these conjunctures. The state is a structural effect that gains stability through repetitive practices, among which are legal procedures (Mitchell, 1991). I will ground my approach in the field of political ecology and its recent calls for more political ecologies of the state. Political ecologists’ insistence on the need for more engagements with the state align well with my own (e.g. Harris 2017, Loftus 2020, Robertson, 2015). They offer, likewise, a viable path to sustain an engagement with the state that does not rush into abstractions but instead remains close to a situated and ethnographic interrogation. The next section discusses the 60ntrodutual devices mentioned above in relation with political ecology. The third section presents the legal story of the BPAS bill with emphasis on the economic instruments to fund conservation and the main controversies that arose, while I 61 stress the internal and external forces playing out. In the last section I come back and re-assess the lethargy that shrouds the transformation of Chilean environmental institutions. 2.2 Political ecologies of the (environmental) state Political ecologies of the state have “gained momentum” over the past decades (Harris, 2017). Taking advantage of that trajectory, Harris argues that political ecologists may also consider a more visible connection between state-making practices and the way nature is treated by the state. She calls for more accounts bridging research questions posed by political geographers with political ecologists. As Loftus (2020) argues, the field of political ecology has looked to the state many times with attention to the various kinds of power guiding or resulting from environmental decision-making. Examples of this kind of work include those focused on the circulation and effects of power on state’s citizens (Clarke-Sather, 2017; Kelly-Richards and Banister, 2017; Meehan, 2014) and the ways modern states have engaged in forging current conceptions of the natural world (Whitehead et al., 2007). From a geopolitical perspective, there is research that engages the political agency of nonhuman actors in geopolitical processes (Sundberg, 2011) and elaborates a geopolitical ecology for interrogating the US military strategies related to climate change (see Bigger & Neimark, 2017). Outside the radar of anglophone political ecology, Latin American scholars have examined the ways in which states promote extractivism (Svampa, 2019; Svampa & Viale, 2014; Terán Mantovani, 2016), how states apply laws to treat nature as a colonial object to be exploited (Alimonda, 2011) or how more-than-human entanglements resist the state-led production of sacrifice zones (Sepúlveda, 2016). 62 Drawing from and contributing to this body of literature, in this chapter I argue for a political ecology that pays attention to the practices that make the state. The chapter examines the contested practices that contribute to produce Chile’s environmental reforms. It examines how the law is written, discussed, and enacted, and how market-based instruments are negotiated within the state, paying attention to the legal and technical fluctuations underpinning the BPAS. The chapter draws from political ecologists’ calls for interdisciplinary approaches that embrace both macro and micro approaches to the state (e.g. Loftus, 2020, Robertson, 2015). Loftus (2020, p. 146-7) proposes, for instance, an interdisciplinary dialogue balancing state macro-level perspectives with how states are brought into being. This view should engage state theory, he points out, but only to the point that avoids highly abstracted state accounts and the consequent desertion of political ecology’s methods. Likewise, Robertson (2015, p. 463) gestures towards governmentality studies and insists in an ethnographic treatment of the state that considers “failures and successes and shortcuts of state agents in the field,” all of which brings thick substance to understand how capital circulates through nature and influences processes of hegemony. The chapter approaches the state from a post-structural stance to explain the macro and micro level forces shaping its environmental reforms. Approaching the state as a relational and always negotiated set of process and practices entails avoiding theories of the state that are, as Foucault famously expressed in his “Birth of Biopolitics” (Foucault, 2008; Jessop, 2007; Lemke, 2007) an “indigestible meal.” 36 Part of a larger and loaded answer to neo-Marxist critiques on 36 In his later work, Foucault intervenes at the level of state theory to address the problem of state phobia, which he insists must be undertaken without a state theory: “I do, I want to, I must do without a theory of the state, as one can and must forgo an indigestible meal” (Foucault 2008 p. 76-77). Foucault elaborates a critique to conventional state theory, arguing that the state is not a political universal. Therefore, investigating the problem of the state should be 63 his neglect of the state, Foucault’s metaphor reflects his skepticism toward grand theories – a lack of confidence in abstractions that can quickly accumulate and become unmanageable.37 Lemke (2007) argues, nonetheless, that Foucault’s analytics of government is a suitable frame to analyze the state. In a similar move, Jessop suggests addressing the state as the “mobile effect of a regime of multiple governmentalities,” another of Foucault’s legendary quotes.38 According to Jessop, the attention on multiple rationalities entailed in governmental practices is key to actively interrogating how the state exists without taking the state for granted (Jessop, 2007, p. 37). Goldman’s research about the World Bank’s relationship with Laos provides a good example of the analytics of government applied to analyze a state environmental transformation. He traces how the country transformed its environmental apparatus through the World Bank’s massive portfolio of development projects by deploying the notion of ‘environmental state.’ For Goldman, an environmental state can be understood as a rationality that emerged by the end of the 20th century, one focused on producing new regimes of truth and techniques to govern the environment and which includes hybrid actors beyond the state. Deviating from the ecological modernization paradigm, which couples environmental states to an inevitable and desirable trajectory toward sustainability (e.g. Mol & Spaargaren, 2000) Goldman relates the environmental states of the Global South to dynamics of transnational capital and uneven done by analyzing the ‘practices of governmentality.’ (p. 78). Such concern in how to deal with states connects with James Scott’s warnings that “we must never assume that local practice conforms with state theory” (Scott, 1998, p. 49). 37 Related to researchers’ engagement with the state, Robertson points out that political ecologists have “an ambivalent relationship with the state” (Robertson, 2015; also in Loftus, 2020). 38 Foucault argued that the state cannot not be taken as a machine because it has no essence, no interior. Instead, the state is “the mobile effect of a regime of multiple governmentalities” that express themselves through the practices constituting such governmental logic (Foucault, 2008, pp. 77–78). 64 development, which are “shaping the form of legality and eco-rationality that have prevailed in southern countries” (Goldman, 2005, p. 183). Political ecological work drawing from Foucault is abundant. Geographers doing political ecology have productively connected governmental rationalities with environmental studies. While some have focused on how different truths about nature are produced and circulated at different sites (e.g. Braun, 2000, 2002; Demeritt, 2001a, 2001b; Rutherford, 2011), others have paid attention to how changing technologies of government impact subjectivities related to the environment (e.g. Agrawal, 2005; Di Giminiani, 2016, Gould et al., 2006; Sundberg, 2006). Accounts like these unpack the production of truths about the environment by looking at practices of mapping, measuring and quantifying, while interrogating the circulation of these practices among public and private spheres (Rutherford, 2007). They offer inspiration for connecting Foucault’s work to the emerging political ecologies of the state. The (anti)state theory Foucault and his interlocutors propose, as well as geographers working with Foucault’s interrogations of governmental technologies reflect my own concerns with the incompleteness of the green institutional transformation underway in Chile. Moreover, even if the transformations were approved, an approach that takes them as unfinished re-orient my attention toward the state’s constant making. It requires a careful tracing of the practices working to give the state its stability. Lawmaking is prominent among these practices. Laws are social practices “arranged as to produce the effect that ‘law’ [and the state] exists as a sort of abstract, formal framework, superimposed above social practice” (Mitchell, 1991, p. 94). Practices and knowledges circulating inside the parliament and involved in the making of the law 65 that creates the BPAS are, consequently, key to the making of the Chilean environmental apparatus.39 Another important element to keep in mind for examining the environmental transformations underway without assuming the pre-existence of a monolithic state are the forces beyond European modern states, something Foucault unsurprisingly neglected.40 According to scholars Ferguson & Gupta (2002, p. 990), the analysis of state rationalities should incorporate modes of government configured on a global and transnational scale (also pointed by Lemke, 2007). This would include, for instance, considering structural adjustment programs or including more actors in the configuration of the state like international organizations and local communities (Ferguson & Gupta, 2002, p. 993; also see Goldman 2005). Reaffirming the arguments made by the authors cited above, Ferguson and Gupta insist in undoing the taken-for-granted state, assuming instead its condition of “precarious achievement” and viewing it as a problem worthy of ethnographic engagement (also see Mitchell, 1991; Robertson, 2015). Latin American scholars have also approached the state to destabilize its character and shape. For instance, Alimonda (2011) argues that states had to create structural conditions for the uneven consumption of nature by wealthy countries in the Global North and wealthy classes in the Global South. Likewise, Svampa’s extensive work on extractivism and development advances the argument that states invest significant resources in maintaining capital circulation via global 39 Timothy Mitchell argues that the state “should be examined not as an actual structure, but as the powerful, metaphysical effect of practices that make such structures appear to exist” (Mitchell, 1991, p. 94). 40 Pitfalls carried by Foucault’s work are commonplace among critical thinkers today. One of the most identifiable is Foucault’s Eurocentrism, which makes it difficult to take his insights outside of Europe and the so-called “advanced” industrial economies (Li, 2007b, p. 19; Stoler, 1995). I believe that paying attention to these limits is a way of expanding the analysis beyond Foucault, a way of “thinking with, against, and apart” from his grammar of government (Brown, 2015, p. 78). 66 financial circuits (see Svampa, 2015; Svampa, 2019, and Svampa and Viale, 2014). Those studies offer strong accounts of the state’s working but avoid a deep engagement with daily practices that produce the state. In sum, research that de-centers the state is useful for interrogating the environmental transformations underway in Chile. It does so by questioning the practices making the environmental state. This approach allows me to stay close to the transformation’s fragmented and incomplete character. To be clear, the approach I use does not mean that the state cannot be conceived as a real force with concrete material outcomes. The state is a thing that does things. It expresses itself as an entity through various mechanisms, among which power occupies a central role. According to Harvey (Harvey, 1976, cited in Loftus, 2020, p., 142) the state is “a process of exercising power via certain institutional arrangements.” The state possesses, for instance, the means for exerting violence against those bodies that do not conform to its mandates.41 This said, it is important to keep in mind that the state’s existence is negotiated. It is a result of an “enduring process in which the limits and contents of state action are permanently negotiated and redefined” with the final goal of administering power in more efficient ways (Lemke, 2007). The fact that the Chilean environmental institutions are in their early stage of formation, materially ‘not yet’ out there, demands an explicit engagement with the social practices involved in their crafting as well as with the motivations supporting participants’ involvement. Approaching this environmental metamorphosis as part of a wider process of state formation, thus, re-directs my attention toward encounters among lawmakers, state and non-state 41 In the case of Chile this is palpable in the way the state represses Chileans for manifesting their discomfort with its policies. This point on the state’s manifestation as a complete unit and of violence as a main way the state expresses itself was pointed out by Patrick Bigger and Jess Dempsey. 67 environmental experts and NGOs whose practices give shape and content to what will eventually be the bedrock of the new Chilean environmental institutions. I turn to this transformation now. 2.3 Crafting the BPAS and introducing market-based biodiversity conservation The orientation the OECD took for the Chilean state to conduct the transformation of its environmental institutions changed along the way. Consider the next quote from the OECD’s 2016 Environmental Performance Review: The next decade must witness rigorous reform implementation; this is the main message of the second OECD Environmental Performance Review of Chile (…) The Review encourages the swift adoption of the proposed legislation creating a new Biodiversity and Protected Areas Service and an integrated national protected areas system. This would help improve biodiversity governance and management, partly through greater use of economic instruments such as payments for ecosystem services. (OECD “Environmental Performance Review: Chile,” 2016, p. 3-4). Despite the OECD’s insistence is palpable in this new report, such determination was not as evident in the previous performance review. The OECD approach to Chilean environmental institutions went from a wider request for the state to create the new Ministry of the Environment – and accommodate several components in it – to an explicit attentiveness in the Biodiversity and Protected Areas Service and market-based conservation mechanisms, what the report refers to as “economic instruments.” Moreover, the 2005 OECD Environmental Performance Review does not even mention the concept “ecosystem services,” while it does comment on its early 68 sibling “environmental services.” The report mobilizes the notion of “rewards for environmental services” mainly to recommend how to improve forest policies, with fewer mentions to compare native forest with tree plantations.42 Yet those mentions are still vague compared to the 2016 report whereby the OECD targets two market-based instruments, ecosystem services and biodiversity offsets, in every section where it comments on the “new and innovative ways to raise revenue and leverage private sector investment” (OECD 2016, p. 44). Despite the OECD’s insistence in the swift approval of the BPAS bill, the environmental reforms are still in parliamentary rooms. As I mentioned above, the bill became stalled and, even when it shows substantial amendments compared to its original version, it lacks the approval by lawmakers, who have postponed the voting multiple times. To properly trace these changes and understand the reasons underlying the apparent lethargy of this bill, here I review the main steps the bill has taken since its first introduction to the parliament. The first bill introduced by Piñera’s administration in 2011 faced at least three fronts of sustained critique. The first came from the workers’ union at the National Forest Corporation (CONAF), who were concerned about the transfer of thousands of workers whose jobs and working contracts would arguably change when they become part of the new Ministry of the Environment (NSE1, interview, 2020). The second critique was shared among environmental NGOs and targeted an insufficient budgetary appropriation to manage the Service (SE8, interview, 2020). The third critique circled around the excessive promotion of private concessions to develop tourism inside parks and reserves; as an interviewee expressed, the bill 42 The concept “environmental services” can be found in pages 27, 142, 155 and 160-161 of the OECD’s 2005 report. 69 looked more like “a contract for tourism concessions” than a branch to manage biodiversity (NSE8, interview, 2020). After three years of heated debates around the bill introduced in 2011, Pablo Badenier, former minister of the environment during Bachelet’s second government (2014-2018), retired the bill and introduced in its place bill 9,404-12, the version currently inside the Parliament. The second bill has gone through several revisions and modifications since then, remaining inside the congress for nine years and producing around 1,455 pages of parliamentary discussions, dozens of minutes circulated among three ministries (Environment, Interior, and Agriculture), and 17 meetings of nearly seven hours each held with at least 20 different environmental organizations and experts.43 This bill also flaunts one of the largest Indigenous peoples consultations implemented in Chile since the country’s ratification of the International Labour Organization’s Convention No. 169 in year 2008 (SE8, interview, 2020) – which I analyze in detail in Chapter 4. The bill shows a remarkable record of interactions among various sectors: congress people, the academic world, private consultants, and civil society have all taken part of its legal processing. While many people were hired or invited by legislators as technical and academic advisors, not a small portion, among which were Indigenous groups’ representatives, had to invest great efforts to be included in the sessions held at the congress. Some state agents agree that the two BPAS bills, the 2011’s and the 2014’s versions resemble each other more than it would normally take to justify the replacement of the first. Moreover, one state agent currently monitoring and promoting the legal processing of the bill 43 Information extracted from the senators’ chamber website: https://www.senado.cl/appsenado/templates/tramitacion/index.php?boletin_ini=9404-12 70 commented the second version may respond to a “political maneuver” rather than a genuine re-conceptualization of the BPAS (SE8, interview, 2020). He goes as far as to claim that 70 per cent of the bill’s content is a “copy paste” of the previous one from 2011. For him, replacing the bill was necessary to renew the debate after the abrupt failure, which he ascribes to the political influence of CONAF’s workers union. Until today, CONAF’s park rangers and administrative staff have fiercely resisted the BPAS bill because of the implications to their jobs. Pinera’s first administration did not adequately address the workers’ transition from the Ministry of Agriculture to the Ministry of the Environment, provoking a widespread sentiment of distrust among CONAF’s union and allies. Some senators voting on the bill reacted to the government’s failure to look after the workers and offered them support by distending and slowing down the discussions on the bill. To avoid repeating the mistake with the BPAS bill presented in 2014, the senators commission requested a study of the repercussions the new bill will have on CONAF’s workers. The study was presented in July 2019 by the Labour and Social Prevision Commission (CTPS, 2019). The rejection of the bill during Pinera’s first period also relates to the other two critiques mentioned above, which combined caused that “the bill did not progress in the first two years of parliamentary sessions.”44 The 2011 bill did not even pass the first step of Chilean legislation, called the “idea to legislate” (“idea de legislar”). Contrasting with Pinera’s government controversial failure, the 2014 bill’s “idea to legislate” was quickly approved in the first year, giving room to a profuse debate around potential modifications before the final parliamentary endorsement. 44 Bill Number 9,404-12, 2014, page 5. 71 If we engage with the state agent’s view of the two bills and compare them, we see that they both coincide in the main purpose of regulating the environment through state instruments combined with public-private formulas to incentivize conservation. Many elemental definitions are indeed not far from each other. However, the bill introduced in 2014 brought an entire new section that substantially departed from the previous 2011 version. These changes define a distinctive approach to biodiversity management. Among these, the incorporation of Title IV in bill 9,404-12: “Biodiversity Conservation Instruments” and Paragraph 7°, termed “Economic Instruments for the Conservation of Biodiversity”.45 The Paragraph describes the creation of a certification scheme for estates that supply ecosystem services (Art. 83), the recognition of “conservation supporting areas” (Art. 84), and the creation of compensation banks (Art. 85). Furthermore, a new set of modifications came in 2017 and Title IV shifted to Title III, while Paragraph 7° changed to Paragraph 8°. While both titles and paragraphs kept their original names, the articles within the new Paragraph 8° were transformed decisively to expand compensation banks and introduce the certification and regulation of ecosystem services contracts. Table 1 presents these modifications, which I discuss next: 45 In Chilean legislation, a “Title” occupies the highest position within the hierarchy of a Law, a “Paragraph” the second, an “Article” the third, and lowercase letters a), b), c)…, the fourth position. 72 Bill introduced in 2014 (bill 9,404-12) – Title IV, Paragraph 7 After amendments to bill 9,404-12 approved in 2017 and 2019 Article 83: “The Service will promote sustainable practices in the conservation and sustainable use of biodiversity in production processes, through certification of estates that provide ecosystem services, as an opportunity for sustainable local development.” Article 50 (ex 51 in 2017): “Create the Biodiversity and Ecosystem Services Certification System, designed to certify, or recognize certificates of activities, practices or sites, for their contribution to the conservation of biodiversity and the maintenance or recovery of ecosystem services. -The certification system will be administered by the Service and will be governed by the provisions of a regulation issued by the Ministry of the Environment. Said regulation will regulate the scope of the certification system, the certification procedure and the requirements to become a certifying entity. -The certification will be voluntary and may be requested by individuals or legal entities, individually or collectively. -The certification may involve obligations to do or not to do, the non-compliance of which will cause the loss of the certification.” Article 84: “The Ministry may recognize territories as biological corridors, conservation landscapes and priority sites that fulfill an ecological function associated with or outside the National System of Protected Areas, in which the Service may certify voluntary activities.” Article 51 (ex 52 in 2017): “Retribution contract for ecosystem services. The ecosystem services remuneration contract is a convention under which a party undertakes to preserve, restore or make sustainable use of ecosystems, in order to maintain or recover the ecosystem services that these spaces provide, in exchange for a consideration. -The contract will be perfected in writing and will contain the rights and obligations of the parties. The Service will keep a record of contracts that meet the criteria and minimum content that will be established by regulation.” Article 85: “To ensure adequate biodiversity compensation for projects or activities, the Ministry of the Environment will regulate a compensation bank mechanism. -Compensation banks correspond to a set of territories whose singularities and value for biodiversity make them a candidate in the compensation scheme for investment projects. -The Service will approve the requests to become compensation banks and will evaluate the equivalence of the proposed measure. -The Ministry of the Environment will maintain a registry of specialized conservation institutions that will collaborate with the implementation of Article 52 (ex 53 in 2017): “The biodiversity compensation banks correspond to conservation projects in specific territories, that generate credits in biodiversity that can be used by project holders or activities that, in the framework of their environmental evaluation, must propose measures to offset the impacts on biodiversity, in accordance with Article 16 of law No. 19,300. -Such credits must be quantified based on a criteria of equivalence in biodiversity established by the Service, in accordance with the provisions of Article 37. -To operate as such, the biodiversity compensation banks must be previously registered in the registry that the Service will carry to the effect. -A regulation issued by the Ministry of the Environment will establish the procedure and the requirements for the registration of the compensation banks, their obligations and the rules of operation of the registry.” Article 37 (ex 38 in 2017). “Biodiversity compensation. The Service may define criteria and standards in order to determine, in the framework of the environmental evaluation of projects and activities, if the proposed compensation measures are appropriate to take charge of the effects, characteristics or circumstances established in article 11 of law 19,300. 73 compensation banks. -The Service will approve the portfolio of projects proposed by compensation banks, as well as the73ntroducen of actions that offset the residual impacts of projects, with the objective of obtaining a net zero loss or even a net gain of biodiversity.” These biodiversity compensation measures may consist of restoration or preservation actions. In the latter case, the owners of projects or activities may resort to compensation banks, in accordance with the provisions of article 52. Compensation measures that are applied in accordance with the hierarchy principle and that account for at least zero net loss of biodiversity, according to criteria of equivalence and additionality, will be appropriate. The criteria and standards defined by the Service for such purposes may refer to baseline studies on biodiversity and determination of residual impacts; equivalence and additionality criteria for biodiversity offsets; and protocols for monitoring such compensation. The Service will also promote coordination between compensation measures for various projects or activities, with the aim of obtaining efficient, effective and permanent biodiversity gains.” In 2020, both articles 37 and 52 were eliminated from the BPAS bill (I reviewed this episode in detail in Chapter 3). Table 2.1 Modifications to bill 9404-12. Adapted from congressional reports and translated by author. As Table 2.1 shows, Article 51 (replacing Art. 83) presents a “Certification System of Biodiversity and Ecosystem Services” that will be administered by the BPAS. Article 52 (replacing Art. 84) inaugurates a system of “Contracts for the Retribution of Ecosystem Services,” a new regulated interaction between parties registered by the BPAS. Article 53 (replacing Art.85) may cause the highest impact of the three new instruments as it will quickly trigger the circulation of capital for conservation initiatives. It introduces the concepts of “compensation credits” and “biodiversity equivalence,” while it assigns the terms for regulating “biodiversity compensations” to Article 38 (Title III, Paragraph 4°). All the modifications introduced in 2017 speak of a new strategy that was not entirely visible in the first version of the bill introduced in 2014. Most notably, compensation banks were modified to allow the creation of a biodiversity offsets market overseen by the BPAS. Considering that the first version (Art. 85) signaled compensation banks as territories with 74 singularities that make them “potential candidates to be registered as recipients of biodiversity compensations,” the concepts “compensation credits” and “equivalences” are game changers for understanding banks as part of an offsets market. Compensation banks are not a biodiversity reservoir anymore – the way how habitat banks are usually understood46 – but an economic space to trade biodiversity credits, that is, a biodiversity offsets market with ecological equivalences as the exchange currency.47 The ministry proposed the BPAS to regulate and overseen biodiversity certifications, credits, and equivalences (SE9, interview, 2020). However, compensations banks experimented another shift when, in 2020, Article 52 was eliminated from the BPAS bill after a round of public and scientific critiques. As I review in the next chapter, despite offsets were taken away from the bill, the Ministry of the Environment keeps pushing them in other public policy spheres. It is important to reflect on the market notion underpinning the changes 74ntroduceed to compensation banks, as none of the modifications mention the term “market,” nor Article 53’s previous version (Art. 85), or prior Articles 51 and 52. Furthermore, the word “market” is not even present in any of the two BPAS bills submitted in 2011 and 2014. Why is such an important concept absent in both pieces of legislation? Was this an unintended oversight? In the discussion prior to voting the Article’s indication, Alejandra Figueroa, formerly in charge of the Ministry of the Environment’s Division of Natural Resources and Biodiversity, pointed out In relation to the modification that “this [compensation banks] is a mechanism used at the international level and related to a market, which gives transparency to individuals that need to compensate biodiversity 46 Habitat banks are reservoirs of different types of ecosystems (or communities of species, or species alone) certified to offer biodiversity credits. 47 In the next Chapter I discuss the main elements that configure this market, as well as the definition of ecological equivalence and how it was understood in Chile. 75 with an equivalence” (CMACS, 2017, p. 433; emphasis mine). There seems to be an intention to avoid using market jargon in the BPAS bill, something unwelcomed among deep-seated environmental NGOs like Terram (NSE1, interview, 2020). In any case, Figueroa’s comment to support the ministry’s indication demonstrates the conceptual transit from biodiversity reservoirs to a biodiversity offsets market. Furthermore, in a speech given by former Minister of the Environment (CMACS, 2015, p. 23), Pablo Badenier, when the bill went through a round of amendments in 2015, he highlighted that “the Service will (…) approve requests for the creation of compensation banks and promote sustainable practices through incentives and certifications and economic instruments like the payment for ecosystem services.” Features like these speak of a new governmental rationality, one where the state possess enough techno-legal and financial features to manage the environment under market rules. As I discuss in more detail in Chapter 3, compensation banks will need more polishing after the executive’s 2017 modifications. According to a state agent who oversees the design of banks, elements of this mechanism need to be clearly defined to have it running as a biodiversity offsets market (SE9, interview, 2020). The way banks and the biodiversity certification system are described by the bill does not allow to sell compensations before projects’ impacts hit the ground – an attribute called “ex-ante environmental compensation.” The mechanism currently working in Chile48 requires companies to apply compensation procedures after the project is implemented, despite those compensations were approved during the environmental impact assessment. The offsets market cannot be properly implemented without first approving ex-ante 48 Administered by the Environmental Evaluation Service. This mechanism only reviews the commitments adopted by firms but does not apply the mitigation hierarchy or involves compensation banks. 76 compensations. The BPAS bill will thus still need another round of modifications that will be presented to Congress during year 2020 (SE9, interview, 2020). These new indications have been already worked by a private consulting firm hired by the ministry with aid funds from the UN “Biodiversity Finances Initiative,” BIOFIN. The consultancy also designed and validated the methodology to apply what they call “the compensation matrix,” a grid that weights the harms predicted for a project – after the mitigation hierarchy – and defines the ecological equivalences. The outcome is a numeric score representing the credits the firm will need to buy to compensate the degradation produced, according to an equivalence in a different site (NSE9, interview, 2020). With this methodology, firms will have a designated score that will define the credits to be provided by private conservation initiatives (SE9, interview, 2020). Other non-state actors have engaged in different steps of this process. The NGO Wildlife Conservation Society (WCS), for instance, was hired by the Ministry of the Environment to elaborate the conceptual foundations for the first biodiversity compensations’ guide, published in 2014.49 This was the first publication with a rich content about biodiversity offsets (SE9, interview, 2020) – although it was directed to companies and did not connect compensatory mechanisms with conservation initiatives. Besides private consultants and NGOs, mining companies are now involved in the piloting of the methodology. State agents coordinated a pilot application of the offsetting methodology with funds from the mining holding Consejo Minero (Mining Council), which also provided a project site for the experiment (SE9, interview, 2020). The Mining Council comprises companies with a yearly production greater than 50 thousand 49 https://www.sea.gob.cl/sites/default/files/imce/reportes/2016/guia_compensacion_biodiversidad.pdf 77 tons.50 These are some of the world’s largest mining companies. Anglo American, BHP, Barrick, and Rio Tinto are part of the council’s board of directors. Finally, state agents at the Ministry submitted a three-year project proposal to the Global Environmental Facility (GEF) in March 2020. Its goal is to conduct a pilot of the system of biodiversity certifications – which will be offered by conservation initiatives – and to translate biodiversity offsets from its terrestrial conceptualization to the marine space (SE6, interview, 2020). While the BPAS bill is indeed at the center of market-based conservation, there is a variety of actors beyond the state playing substantial roles in its shaping. Private consultants, environmental NGOs, mining companies, and aid funds like UN’s and GEF’s are forging the economic instruments brought by the new Biodiversity and Protected Areas Service. This is a diverse ecosystem of individuals and organizations, all with vested interests in the success of the BPAS, and with a genuine desire to improve the state’s management of biodiversity. One aspect I repeatedly noted while interviewing representatives of these groups, however, was the lack of a sense of urgency for the decline of biodiversity registered everywhere in the world (e.g. IPBES, 2019). They all seemed quite calm, waiting for the BPAS to start running. I wasn’t. So I asked them about the reasons of the lethargy in the entire process. I asked them whether they felt frustrated. “This is how public policy and legislation processes work in Chile” one of them said in a tone of acceptance (NSE9, interview, 2020). All my interviewees seemed comfortable with the rhythms of public policymaking in Chile. They perceived the slowness as deeply ingrained in 50 Or an economically equivalent amount in other metals (https://consejominero.cl/quienes-somos/socios/ website visited in July 2020). 78 the Chilean legal apparatus, a view that increased even more my desire to explore the internal and external forces shaping the state’s environmental institutions. 2.4 Internal policymaking and global environmental politics The BPAS and the market-based instruments to foment biodiversity conservation are currently an evolving process. The story of the legal processing of the BPAS showed that these instruments were not absolute truths but had to be carefully arranged. Such instruments did not appear as pre-figured ideas, as it might seem from an ahistorical reading of the BPAS bill. These instruments changed along the way as more actors and knowledges became part of the process. Furthermore, while the biodiversity certification system, the contracts for ecosystem services, and compensation banks gained more solid ground after the 2017 modifications, these mechanisms are still waiting for a new wave of changes. They remain inconclusive. As I review in the next chapter, compensation banks were removed from the bill by the end of 2020. Yet, this does not mean that biodiversity offsets were eliminated. The Ministry of the Environment keeps pushing for this program via regulatory instruments and initiatives funded by agencies like the GEF. At the same time, these mechanisms were oriented to fulfill the OECD’s requirements, which also changed along the way. The specific focus in biodiversity offsets and ecosystem services appeared only in the OECD 2016 report, which seems to have impacted the indications entered by the Ministry of the Environment in 2016 and approved by lawmakers in 2017 (see Table 2.1 and related discussion). While there is no solid evidence to claim the latter, the probabilities that the OECD report arrived at the hands of either state agents working on the bill or lawmakers voting on its statutes are strong. 79 To an important degree, the modifications approved in 2017 became reliant upon the knowledge circulating inside the Ministry of the Environment, the decisions to include -or leave out- specific terminology (like “markets”), and the negotiations among lawmakers, who took sides on the controversy with CONAF’s workers. The BPAS’s story proves that the environmental state-in-the-making is indeed affected by internal disputes, demands for knowledge production, and consensus. And yet, the state also relates to and must constantly reckon with a global environmental order where new techniques of government are gaining momentum alongside actors out of the state’s formal frontier. Drawing from Anna Tsing (Tsing, 2005, p. 4), the encounters between the internal and external forces playing in the making of the environmental state are part of the “awkward, unequal, unstable, and creative qualities of interconnection across difference.” Such encounters can lead, in fact, to “new arrangements of culture and power” in Chile and its relationship with nature (p. 5). The involvement of international NGOs, private consultants, international aid funds, and mining companies in the crafting of the BPAS and its economic instruments indicate an important tendency towards global corporate connections. There is a macro-level turn toward what Michael Goldman called an “eco-rationality,” a form of governmental rationality that works to produce truths about the environment. Global North players circulate these truths with the aim of creating conditions for “green neoliberalism,” the propitious – low risk – landscape for investing in the Global South under the banner of development (Goldman 2005, p. 5). The Mining Council and the World Bank’s GEF funds to support the last stage of implementation of the biodiversity offsets market fit neatly in Goldman’s depiction. Green neoliberalism consists here in creating the conditions of possibility for investing in Chile. By approaching the biggest mining holding in Chile and the GEF, the environmental state seeks to consolidate its 80 relationship with corporate growth to secure the investments the state needs to keep alive economic growth. The environmental state, consequently, opts to invest its energy not in hampering the contemporary ecological crisis but in licensing the extraction of living beings to global circuits of capital51 accumulation and expansion. The 2005 and 2016 Environmental Performance Reviews, their effects and the actions taken after Chile became part of the OECD indicate a new chapter in the state’s relationship with multilateral institutions, private investment, international NGOs and nonhuman life. In a fundamental way, the country was asked to demonstrate its capacity to manage biodiversity under prescriptions provided by the multilateral institution. However, ten years after becoming part of the OECD, Chile still does not have a dedicated institution charged with taking care of biodiversity. The lethargy of the entire legal process, monetary curtailments for conducting the necessary studies, and the overall feeling that the BPAS is imminent but “not yet here” appear to facilitate business as usual. In other words, the Chilean state is so overly entangled with the vicious rhythms of extractivism that even the most neoliberal tools offered to manage nonhuman natures have limited space to manoeuvre. The inclusion of Chile as an OECD member state without having its basic institutional ground suggests a global environmental order where “exceptions” may be the norm. It creates the impression that the institutional environmental transformation – and the BPAS – avoids addressing Chile’s economic dependence on raw natures (see Coronil 2000). Quite the opposite. The relationship with the OECD tries to uphold Chile’s nature-based export model. As the 2016 51 The concept “global circuits of capital” was coined by Marx, and it is one of the core ideas of radical political economy. It signals “how economies are constituted by capital-circulation systems that enable capitalists to continually accumulate wealth and power through unequal exchange relationship with workers” (Aoyama et al., 2011). 81 OECD report comments (p. 3), “[N]atural resources are a pillar of Chile’s economy. Chile is the world’s largest copper producer, as well as a major exporter of agricultural, forestry and fishery products.” The aspirations to transform Chile’s environmental institutions can thus be limited by the same multilateral institution that demanded the state’s improvement. The OECD embraces and promotes the nature-exporter role Chile plays in a globalized economy. The argument that OECD promotes Chile’s role as a nature-exporter is sustained by recent research questioning the overall objectives of ‘green growth.’ Hickel and Kallis (2020) call into question the notion of green growth that emerged from the Rio+ 20 Conference on Sustainable Development in 2012, which imbued the next years of growth with faith in a new ‘green economy.’ Both notions, green growth and the green economy assume that countries’ GDP growth can be decoupled from natural resources and carbon emissions (Hickel & Kallis, 2020). After an extended revision of the evidence on resource use and carbon emissions, the authors conclude that the theory of green growth does not sustain. Even with the best projected scenario, the necessary decoupling of nature use and carbon emissions from GDP will not hold in the long term. The authors thus interrogate the “legitimacy of the World Bank and OECD efforts to promote green growth as a route out of ecological emergency.” They also insist in that any policies that rely on “green growth assumptions (…) need urgently to be revisited” (p. 483). Hickel and Kallis’s work speaks back to the unsaid assumptions resting in the background of OECD’s relationship with its member countries.52 52 The point made by Hickel and Kallis (2020) as well as the relationship with my argument was generously pointed out by Jens Christiansen. 82 2.5 Conclusion This chapter focused on the history of the BPAS bill, its legal path and the practices involved in crafting the economic instruments to incentivize conservation and regulate biodiversity degradation. By implementing a Foucauldian approach that de-centers the state in order to scrutinize it, I traced the practices and discourses involved in the making of the environmental state in Chile. Following researchers working in political ecologies of the state, I approached the state without neglecting the macro-level perspectives that allowed me to see global connections in tandem with state formation. The environmental state is, as I mentioned above, in intimate relationship with global circuits of corporate growth, in which the license of extractive enterprises plays a major role. The environmental state also occupies a specific role in global environmental politics, one where ‘green growth’ gets the necessary legitimacy to persist in the circuits of multilateral institutions (see Hickel & Kallis, 2020). The making of the environmental state is still an ongoing process. As I mentioned earlier, there is a new set of indications underway that will sharpen the methodology of the biodiversity offsets programme by introducing conceptual precisions like ex-ante compensations. However, once these modifications are incorporated, they will undoubtedly change. The approval of the BPAS bill just marks the beginning of real applications on the field, where practitioners applying the compensation matrix will indeed participate in the chain of translations necessary for this mechanism to work (see Robertson 2012). The pace of these modifications is not quick, as I hope this story made explicit. This is a bill that started its techno-political life in 2011 and with a proto-history that goes back to 2005 when the OECD published its first Environmental Performance Review. Furthermore, the bill still seems far from solidifying into an Act. Piñera’s desire of inaugurating the BPAS before the 83 COP 25 was blown away after the 18-O social uprising,53 which caused the abrupt transfer of the conference to Madrid – before this, the conference was going to be in Santiago. While the protests deferred the bill’s legislation in 2019, lawmakers focused on the Covid-19 pandemic during 2020 and 2021, working on the economic restructuring and the new political transformation taking place in the country. The rhythm of policymaking in Chile is by no means constant or predictable. The revision of state and non-state players involved in the transformation of Chilean environmental institutions suggests that the country is turning toward a highly specialized form of environmental governance. The rationalities and institutional arrangements reviewed here also shed light to how new eco-rationalities solidify into institutions, policy frameworks and market-based managements of nonhuman life. 53 The social uprising that commenced in Chile during year 2019 are referred by popular culture as “18-O” because it started on October 18th, after the government introduced an increase to subway fees, which added to a sustained discomfort with the neoliberal policies Chile carries since the dictatorship (1973-1990). 84 Chapter 3: Biodiversity offsets is our government now! Salvage policy to fill the biodiversity financing gap 3.1 Introduction Biodiversity offsets are perhaps the most explicit attempt “to internalize environmental externalities” caused by extractive projects (ten Kate et al., 2004, p. 78). With origins trackable to U.S. 1970s wetland policies (Coralie et al., 2015; Hrabanski, 2015; Robertson, 2000), ecological compensation – the term formerly used to describe offsets (Coralie et al. 2015) – was conceptualized to provide industrial developers with a regulated system to compensate for the destruction of biodiversity. This mechanism gained popularity in the United States and it was disseminated to Australia and Europe, while incorporated by intergovernmental institutions such as the OECD (Damiens et al., 2020; Hrabanski, 2015). The Business and Biodiversity Offsets Programme (BBOP), created in 2004 by the environmental NGO, Forest Trends, was the first to convene companies, government agencies, financial institutions, and NGOs to advocate for the worldwide application of offsets. It mobilized “success stories” in the United States and Australia to spur offsets adoption elsewhere (Damiens et al., 2020). BBOP defines biodiversity offsets as necessary measures to compensate for the residual impacts left by a project even after avoidance and mitigation measures have been undertaken (BBOP, 2012, p. 1).54 While private companies are best known for carrying out offsets to comply with lender or corporate requirements established by international financial norms – among which are the Equator 54 According to BBOP (2012), biodiversity offsets are “measures taken to compensate for any residual significant, adverse impacts that cannot be avoided, minimised, and /or rehabilitated or restored, in order to achieve no net loss or a net gain of biodiversity.” 85 Principles and the International Finance Corporation’s Performance Standard 6 – states are particularly relevant in offsets design and implementation. 55 A study conducted in 2018 concluded that 99.7% of offsets projects around the world stem from state environmental policies and regulations (Bull & Strange, 2018, p. 791).56 During the last two decades, offset compensatory mechanisms have been significantly remodeled. With the advent of BBOP and the rise of market-based instruments to incentivize corporate technological improvements aimed at reducing pollution – e.g. carbon offsets – the regulatory terminology of Environmental Impact Assessments (EIA) has shifted from an obligation after an impact to a market before an impact. Credits – "biodiversity offsets” – are bought in a market prior to any project’s impact occurring (Damiens et al., 2020). The OECD has been central to this shift. It has promoted biodiversity offsets as a market-based instrument, with means and goals wider than the previously used compensatory mechanisms (Hrabanski, 2015, p. 145). Under a regime of market-based biodiversity offsets, the private sector lowers the risk of having their projects rejected on ecological grounds.57 To facilitate the implementation of offsetting measures, companies approach organizations planning conservation initiatives offering to buy offsets and vice versa. This is the biodiversity offset market. There one can trade biodiversity credits and finance biodiversity conservation (Deutz et al., 2020). For many 55 The IFC is a financial institution first established in 1956 as the private-sector arm of the World Bank. Together with the Equator Principles, these risk management frameworks provide “minimum standards to support responsible decision-making” in terms of environmental and social risks posed to development projects (The Equator Principles – The Equator Principles, n.d.). Firms that comply with these guidelines must implement measures to avoid, mitigate, and compensate environmental and social risks to access project finance and corporate loans. 56 According to Bull and Strange (2018, p. 791), this majority of biodiversity offsetting measures that stem from public policy requirements have a significantly smaller land surface compared to the ones conducted under lender or corporate requirements, which are larger in area size. 57 Under the new scheme, offsets allow compensatory measures before a project’s impact occurs; that is, firms can obtain a permit that certifies that they undertook compensatory measures prior to them submitting the project for impact evaluation. 86 environmental economists, NGOs, states, and private firms, offset markets are not only cost-effective in managing the degradation caused by development projects – the compensatory side – but they also promise the leverage of funds for biodiversity protection – the biodiversity financing side. Both the private sector and the state are seemingly satisfied. The private sector is provided with a clear regulatory mechanism that allows it to meet both international norms and to lower the risk of investment (Deutz et al., 2020). And the state benefits by having private firms paying for and conducting conservation. Such an approach is especially appealing in countries where state protected areas lack financing resources, like Chile, and where former and current governments need to cover the funding shortage required to implement their National Biodiversity Strategy (NBSAP). The UN initiative, BIOFIN-Chile58 estimated that the state budget required to implement the NBSAP was around US $72,6 million59 (BIOFIN, 2017). Environmental policymaking experts and programmers refer to this number as the “biodiversity financing gap.”60 Also in South America, Colombia recently launched a study to estimate the funds that could be channeled toward conservation if a biodiversity offsets program were initiated (PNUD-Colombia, 2020). I use the conditional “could” because programmers making such calculations model under several scenarios that depend on a complex set of assumptions about state expenditures. On a planetary level, one of the latest publications on biodiversity 58 The “Biodiversity Finance Initiative” (BIOFIN) is a joint project between the United Nations Development Program and the European Commission. The governments of Germany, Switzerland, Norway, and Flanders joined BIOFIN in its third year of existence. 59 This amount corresponds to the annual average on top of the state current expenditure. 60 Known in Chilean environmental spheres as the “financing breach” (brecha financiera), the gap corresponds to the disjunction between a state expenditure in biodiversity and the estimated costs to cover its full National Biodiversity Strategy (NBS) (BCRC, 2021; BIOFIN, 2017). The National Biodiversity Strategies are developed by countries to “define the current status of biodiversity, the threats leading to its degradation and the strategies and priority actions to ensure its conservation and sustainable use within the framework of the socio-economic development of the country” (National Biodiversity Strategy and Action Plan .:. Sustainable Development Knowledge Platform, n.d.) 87 finances estimated biodiversity offsets will provide the majority of the finance to biodiversity conservation by 2030 (Deutz et al., 2020). The interest in offsets as market-based instruments and their relationship with conservation finance is even more recent in academia. A bibliometric analysis of all English-written publications concerned with offsets between 1984 and 2014 found that conservation biologists have only recently shifted the language of ecological compensations to incorporate an economic, market-based approach and lexicon around biodiversity offsets (Coralie et al., 2015, p. 497). For researchers Bull and Strange (2018), the move to place biodiversity offsets at the center of market-based tools to fund biodiversity conservation, and the great volume of grey reports dealing with offsets, are clear signs that the topic should receive more attention from academia. According to them (p. 791), “the global offset portfolio has grown more quickly and is far more widespread than could previously have been have realized.” Bull and Strange (2018) estimate that there are over ten thousand existing offset projects occupying an area of more than 100,000 square kilometers. Moreover, while research on offsets is mostly carried out by academics based and focused on North America, Western Europe and Australia, the greatest proportion of offsets by area are concentrated in Central and South America. However, these regions have “proportionally received less intensive research attention than elsewhere” (Bull & Strange, 2018, p. 791). In this chapter I analyze the implementation of a biodiversity offsets market in Chile. I examine the shape offsets take in the country as well as its implications, ranging from discursive formation to law and policy. Offsets have a long history in Chile, but it is a repertoire full of failures. Yet, despite these failures, state bureaucrats have insisted offsets markets facilitate biodiversity financing and even improve its management. How did they arrive at this conclusion? 88 What is the path connecting the failures of offsets with offsets as the primary solution for biodiversity loss? This chapter also examines the techno-legal devices implicated in the offsets market, asking a broader set of questions: what does the offsets market look like in Chile? How is it assembled? What does it suggest about this country’s ability to deal with biodiversity loss? And what does it say about the nature of environmental policymaking and the relationship between international institutions and the domestic? Overall, this chapter demonstrates how the promotion of the offsets market in Chile by state agents and UN officials was connected to the failure of the environmental compensation system (a regulatory instrument) with the promise of an offsets market (an economic instrument). This move, I contend, defines the trajectory of the offsets market in Chile, influencing its techno-legal features and methodological design. As I review further, this discursive move also speaks about liberal environmentalism globally. In the next paragraphs, I summarize the arguments presented in this chapter as well as its structure. State agents working alongside intergovernmental institutions point to the lack of technical capacities and implementation problems to explain offset failures. Fueled by BIOFIN-Chile, these same state agents also proposed offsets as the primary mechanism to fill the biodiversity financing gap. In a way, the estimation of the needs associated with this financing gap are crucial to explaining how offsets remain a prominent policy option. Thus, the chapter first outlines how the financing gap was assembled in tandem with specific discourses – mostly nested in the global north – that place biodiversity offsets at the center of strategies to mobilize financing resources for conservation. From UN biodiversity financial score cards to state accounting to experts who move among intergovernmental, state, and private institutions, several devices have been involved in calculating the financial gap. 89 I argue that the narrative on the biodiversity and conservation financial gap embodies an imperial approach to global environmental politics. First, because it represents the amount of money a country must spend to protect biodiversity, the gap-approach entrusts north-based intergovernmental institutions with financial and methodological authority to guide “developing countries” in their quest for funds. And second, the gap-approach serves to revitalize the promise of biodiversity offsets and liberal environmentalism more generally. The discursive power of the financing gap invests offsets with new potential, despite the continuous failures of that mechanism. Moreover, I contend, biodiversity offsets are a form of salvage policy, a strategy applied to rescue failed policies with more hope than evidence. The ultimate goal is reanimating the promise of economic growth and global extractivism. At the same time, having a financing portfolio to fill the gap portrays the Chilean state – and Global South countries more broadly – as diligent and able to handle the environment. The gap-approach works alongside institutions and policies to articulate new strategies for financing biodiversity. In the next section I analyze the discourses that present biodiversity offsets as the ultimate solution for leveraging funds in Chile. Then, I examine the techno legal entities at play in assembling the biodiversity offset market in Chile. First, I review the legal history of the offsets market in Chile, which started long ago, inside the Biodiversity and Protected Areas Service (BPAS). I then scrutinize the configuration of the biodiversity offsets market. Offsets rest on the assumption that it is acceptable for some biodiverse places to be destroyed, provided they are replaced by restoration or the creation of biodiverse places elsewhere. This “replacement” requires finding the ecological correspondence between what is harmed and what is offered as compensation. This is called “ecological equivalence” and demands a complex chain of translations connecting destroyed or affected biodiversity with 90 protected or restored biodiversity. Techno-scientific parameters combine with legal and regulatory frameworks to circumscribe these translations and define the value of habitats and species. I examine the process of knowledge production entailed in defining these frameworks and parameters. In the fourth section (3.4) I argue offsets enable a form of planned degradation, a rationalization of biodiversity loss (Dempsey, 2016) oriented to simplify and to render nonhuman natures tractable for state management in a context of enduring extractivism. Despite the transformation of offsets – from environmental compensations to a market – the environmental state in Chile still embodies the persona of an “umpire state” (Barandiarán, 2018), that is, a state that acts as the referee of environmental decisions mostly made by the private sector. Responding to Asiyanbi and Lund’s (2020, p. 394) urgent call for political ecologists to question “the persistence of redundant (perhaps even pernicious) climate and environmental policies,” I close this chapter with a commentary on the persistence of biodiversity offsets in Chile, reflecting on the failure of liberal environmentalism. In more than 40 years of existence in some countries, and more than two decades in Chile, biodiversity offsets have not shown positive results – results that justify projecting them as the main income source for conservation at a global scale (e.g. Deutz et al., 2020). Furthermore, aligned with other political ecologists, I contend that such a focus on liberal strategies to overcome the socioecological crisis only distracts us from the necessary radical change we must make in our approaches to the care of the nonhuman world (BCRC, 2021; e.g. Collard et al., 2016; Dempsey & Suarez, 2016). 91 3.2 Offsetting the gap In 2013, a group of researchers published a paper in the Proceeding of the National Academy of Sciences (Waldron et al., 2013) that identified countries with the highest underfunded biodiversity protection and those with the highest amounts of threatened biodiversity. Chile was top of the list with Malaysia, the Solomon Islands, and Venezuela. The article, which pointed out a Chilean yearly deficit of US $55 million, was cited by the Chilean newspaper La Tercera with the title, "Study places Chile among the 10 countries that invest the least in biodiversity" (Espinoza, 2013). La Tercera interviewed Anthony Waldron, the first author of the article, to discuss Chile's low numbers and performance. Waldron pointed out that Chile spends nearly 60 cents per hectare on biodiversity, a number they drew from the UNDP report on biodiversity finance co-published with TNC (Bovarnick et al., 2010). The state’s low investment is in stark contrast with neighboring countries like Argentina ($8.56 per hectare) and lower than the average of Latin America and the Caribbean ($1.95 per hectare). Seeking official explanations, La Tercera cited two state representatives from the Ministry of the Environment and CONAF who openly acknowledged the lack of state funding. The evidence presented by Waldron et al. was undeniable; press articles were presented in other newspapers such as El Economista and Terram (El Economista, 2013; Terram, 2013), and its numbers are still cited to evince the lack of state funding for protected areas (Ladera Sur, 2019, see Figure 3.1). This only made things worse for the former government, also criticized for a lack of funding for highly endangered species. The Chilean state could not hide its negligent performance from either international or domestic audiences. 92 Figure 3.1 “Chile in the top 10 of the most underfunded countries in biodiversity conservation.” In the background, a picture of Torres del Paine national park, in Region de Magallanes. With permission from © Ladera sur. Source: Ladera Sur, June 2019. At the time of this scientific publication, Sebastián Piñera's first administration had already introduced the first bill that created the Biodiversity and Protected Areas Service (BPAS). Economic instruments to fund biodiversity conservation in both public and protected areas were key to the BPAS’s strategy. The state sought a domestic evaluation of protected areas’ financial resources to cover the financing gap. The assessment was conducted by a former state agent at the division of Environmental Economy in CONAMA who then served as the Director of the National Sustainability and Climate Change Agency, and as a consultant for the UN in Panama and El Salvador. Currently he works for the Canadian mining company, Teck. In a casual conversation in Teck’s offices in Santiago’s financial district, my interviewee blamed the state for the budget deficit; but he also affirmed that having a budget was not enough. 93 Environmentalists should accept that “Chile will not have the same budget for biodiversity conservation as the United States or Canada for the next 20 or 30 years” (BF3, interview, 2020). My interviewee insisted that cost-benefit analyses support the state’s decision-making, while he highlighted the need to incorporate economic notions into environmental decisions, even when these notions do not align with conservation science: “Scientists [biologists and ecologists] feel bad when I tell them about the economy, when I tell them about reality.” His commentary succinctly summarizes what economic-based environmental management looks like in Chile; that is, asserting an economic rationality over a scientific one in the management of life. The assessment carried out by this same interviewee was included in the next round of estimations of the biodiversity financing gap. In what follows, I examine how the financing gap was calculated and coupled to biodiversity offsets. 3.2.1 Assembling the biodiversity financing gap The term “biodiversity financing gap” is commonly used by the environmental policy literature to refer to the lack of financial resources to manage biodiversity both inside and outside protected areas. It is the difference between what it costs to have an optimum conservation strategy and the money actually spent: the “gap” is thus a financial measure of the resources required to achieve the best conservation outcome. The gap is central to the discourse mobilized by BIOFIN, which calls on countries to invest more money in biodiversity. Born in the COP11 from the Convention on Biological Diversity (CBD) held in 2012 in India, BIOFIN was a “response to the urgent global need to divert more finance to all possible sources towards global and national biodiversity goals” (BIOFIN, 2020). Its primary task was to determine the 94 biodiversity financing gap and offer a nationally adjusted portfolio of financing strategies to cover this amount. The “financing gap” is by no means an invention of BIOFIN. This notion connects with the field of development economics and growth models applied by institutions like the World Bank, the Inter-American Development Bank, and the African Development Bank (Doumbia & Lauridsen, 2019; IDB, 2010; Shimeles et al., 2009). The main assumption in growth models is that gross domestic product grows proportionately with investment, and that private capital investment translates into more public expenditure. This basic tenet reaches the field of international environmental policymaking through the assumption that countries with higher rates of investment present smaller biodiversity financing gaps. It postulates that richer countries have smaller or zero funding gaps since they dedicate greater portions of their fiscal budget to policies concerned with the protection of biodiversity. Most importantly, the funding gap narrative provides richer countries and wealthy private investors with capacities to protect biodiversity. As an explanation, though, it leaves out the causes that drive the destruction of biodiversity in the first place, mostly large and medium scale investments in extractive sectors of the economy. This effect has been amply analyzed by Tania Li’s work in Indonesia (2007). According to Li, development programs target discrete “deficiencies” and avoid engaging the political-economic relationships sustaining them; these programs never change such relationships because they do not consider the wider picture. They are fundamentally constituted “by what they exclude” (p. 4). In this sense, the funding gap narrative is framed within a global extractive economy that narrows the causes and, consequently, the strategies to halt biodiversity 95 loss. 61 The funding gap narrative does not address global extractivism because it avoids any discussion of transformation; it centers on the gap and in so doing, diverts attention from the main drivers of biodiversity loss (see also BCRC. 2021). The biodiversity financing gap narrative also echoes the environmental Kuznets curve hypothesis that correlates economic growth with environmental degradation. This hypothesis suggests that countries tend to decrease their rates of environmental damage as they become richer due to factors like technological improvements and de-industrialization. The hypothesis is based on Simon Kuznets’ curve relating economic growth and inequality developed in 1955 (Maneejuk et al., 2020). It argued that income inequality spiked during early phases of industrialization and then declined in later phases as the economy kept growing (Kuznets, 1984). Both hypotheses assume an initial negative movement before benefits begin to occur. However, both curves are based on very limited data and leave out complex factors (Maneejuk et al., 2020; Stern, 2004). The discourse on the funding gap places so-called developing and underdeveloped countries in the initial phase of the Kuznets’ curve. It constructs an image of Global South countries as unable to take care of the environment because they lack both financial resources and the knowledge to do it – money and knowledge that would come from development. Borrowing from McAfee’s critique of green developmentalism (1999, p. 135), the funding gap narrative frames these countries as “overendowed with natural wealth because they cannot afford to or do not know how to ‘develop’ that natural wealth.” In this case, the Global South cannot 61 The extractive economy is understood by legal scholar Tendayi Achiume as all “the industries, actors and financial flows (…) associated with the globalized extraction of natural resources” (Achiume, 2019, p. 2). 96 afford and does not know how to “protect” that natural wealth. These countries are “too poor to be green” because caring for the environment – in the way global north institutions can – is a luxury some countries simply cannot afford (Martinez-Alier, 1995). The only way for them to care for the environment is by following the lead of developed countries. This is a well-known narrative based on the Rostowian stages of economic growth. According to Walt Rostow (1960), to achieve economic prosperity, countries must move from a traditional stage of under-development to an economic take-off and then to high mass consumption society. The same logic applies to the protection of biodiversity: to achieve green prosperity, non-developed countries must follow the guidelines established by north-based intergovernmental institutions and applied by developed countries. It is within logics like the Rostowian stages that, as Escobar argued almost two decades ago (1995, p. 9), development discourse fosters those subjectivities “through which people come to recognize themselves as developed or underdeveloped.”62 Drawing from and extending this narrative, the UNDP in partnership with The Nature Conservancy published a report in 2010 ranking Latin American and Caribbean countries according to public expenditures in their national systems of protected areas, as well as on the performance of their financing frameworks (Bovarnick et al., 2010). The report surveyed capacities and institutional arrangements to mobilize funding strategies aligned with UN and GEF recommendations; for instance, it ranked countries according to their legal frameworks to establish trust funds and it measured the number of economists working in state divisions dedicated to protected areas. It also encouraged countries to invest in the protection of natural 62 As I interpret it, Escobar’s observation also applies to institutions and nations, which are composed by people whose subjectivities shape and impact institutions and states. 97 capital and climate change resilience and adaptation strategies, framing them as “development paths options” (Bovarnick et al., 2010, p.17). Chile was placed in the lowest group of countries “in need of substantial strengthening, with scores below 30 percent” (p. 20). The country was also given the second lowest score in terms of “legal, regulatory and institutional frameworks” to allow funding mechanisms like trust funds (p. 101). It also fared poorly because of a significant lack of data. Bovarnick and co-authors’ assessment was a red light for the UN in Chile. Before BIOFIN’s arrival in 2017, the state and the UNDP-GEF “SNAP Project” (“Building a Comprehensive National Protected Area System for Chile”) hired a private consultancy to conduct an estimation of the state spending in biodiversity protection (Ladrón De Guevara, 2014). This was the first complete survey of all state expenditure, estimating the funding gap and proposing a financial strategy based on the previous financial scorecard developed by the UNDP study (Bovarnick et al., 2010).63 From park tickets to touristic licenses to budgetary allocations, the SNAP financial report accounted for every income and expenditure tied to the management of public protected areas; it also modelled funding scenarios according to available economic instruments. In an attempt to “manage the conservation of biodiversity in a cost-effective way” (SE3, interview, 2020), the SNAP proposed the integration of marine, terrestrial, public and private areas, and suggested some economic instruments to fill the funding gap. Namely, the creation of a trust fund64 for public protected areas and “biodiversity compensation banks”65 for 63 Before this, the state developed in 2007 a rough approximation of the gap based on one public protected area (Bovarnick et al., 2010, p. 76). 64 “Fondo Nacional para las Áreas Protegidas” or “National Fund for Protected Areas.” 65 As I will analyze further in this chapter, compensation banks were modified inside the BPAS bill, first in content and later they were removed from the bill in 2020. 98 private protected areas (Ladrón De Guevara, 2014, p. 94; Valenzuela & Moya, 2016, p. 55). The scenarios modelled in the SNAP project framed biodiversity offsets as a prominent injection of investment ranging from 50% (for the most optimistic scenario) to 5% (for the less optimistic scenario) of the state’s total budget. In the most optimistic scenario, offsets expect to leverage around USD 43.2 million yearly by 2030, a tiny amount compared to the 2021 central government budget of USD 71.8 billion (0.06%), but significant when weighed against the deficit of USD 55 million estimated by Waldron et al. (2013). The main infusions of offsets’ money are expected to come from the mining, energy and infrastructure sectors (Ladron de Guevara et al. 2014, p. 82). The state targeted private protected areas as the main suppliers of biodiversity offsets and proposed their incorporation into the SNAP. First, because many ecosystems are outside the public network of protected areas. Some Chilean conservation scientists claim that strategies to promote private conservation are crucial in Chile because the most endangered ecosystems are in these areas. Ecologists Pliscoff and Fuentes-Castillo (2011) argue, for instance, that public and private protected areas must come together to minimize the gap in ecosystems protection: “the inclusion of private PAs has high potential to enhance the representation of unprotected vegetation units, especially in the Central South zone” (p.308; see also Figure 3.2). The SNAP project framed this concern as a “representational gap,” a gap in the protection of biodiversity in areas without state protection. According to the SNAP, this gap is specially concerning in central Chile where the most vulnerable biodiversity is found and where the highest investments are expected in upcoming years (Ladron de Guevara, 2014, p. 93). The other reason for framing private protected areas as the suppliers of offsets is because there was agreement among state agents that public protected areas should not receive funds from biodiversity offsetting since 99 these do not represent new additions of biodiversity (SE6, interview, 2020). Already existing conservation initiatives such as national parks and reserves should not receive funds from biodiversity offsets because their goal is to promote the creation of new conservation projects – what is known by offsets advocates as “additionality.”66 However, beyond the international agenda, public-private alliances and incentives to private conservation are hard to ignore because of Chile’s land tenure regime (80% private). Bringing private protected areas into the SNAP entailed incentives for private conservation, which is the reason why offsets credits will be purchased from these areas. 66 Additionality is, according to the World Bank Offsetting Guide (2016, p. 11), a quality where “biodiversity offsets must deliver conservation gains beyond those that would be achieved by ongoing or planned activities that are not part of the offset.” 100 Figure 3.2 Protection gaps in Chile. With permission from © Cambridge University Press. Source: Pliscoff and Fuentes-Castillo, 2011. The SNAP financial report is vital for the funding gap narrative. It not only proved the absence of any budgetary tracking mechanisms but also disclosed the precarity in state funding for protected areas. To stress this budgetary deficiency, the author of the SNAP report compared Chile to North America: "British Columbia’s budget is of course bigger (…) Chile has a twentieth or thirtieth part of any North American park’s budget alone; and the United States is our conservation model paradigm” (BF3, interview, 2020). Yet, as urgent as budget appropriations are, my interviewee pointed to strategies to manage biodiversity: "the problem is 101 not only the money, but what you do with that money.” For him and other interviewees, an adequate management of protected areas is successful only when it is based on a cost-benefit analysis; that is, when the money assigned is used in a trackable way with positive conservation results. State agents and those in the mining sector think biodiversity offsets encapsulate these specific features. They believe that refashioning an environmental regulatory approach that brings in the market could effectively channel funds into conservation. They also deem it necessary to improve biodiversity offsets in Chile to reduce the litigation risk for environmental damage67 (e.g. Alonso & Ringeling, 2017). BIOFIN listened to these concerns (SE9, interview, 2020) and for a period of two years (2017-2019) it worked on reducing the funding gap. It made biodiversity offsets the main economic instrument in Chile’s biodiversity finance portfolio for filling “the gap.” In the next subsection I analyze how this end was achieved by unpacking the discursive moves made to place biodiversity offsets as the main mechanism for filling the gap in Chile. 3.2.2 Offsets to fill the gap: bad performances create good funding opportunities A common argument used to uphold offsets as a funding mechanism, one I repeatedly heard, was that offsets were not working properly because there was an implementation problem. Across the groups interviewed for this research – BIOFIN representatives, staff at the Ministry of the Environment, private consultants and representatives of environmental NGOs based in Chile – offsets were presented as poorly applied with terrible performance. Still, with the right tweaks, 67 According to Alonso and Ringeling (2017), the risk of litigation between firms and the state (or a community) for the environmental damage can be minimized with the proper implementation of biodiversity offsets. To achieve this, the authors champion for the inclusion of the mitigation hierarchy, which I review in detail in Section 3.2.1. 102 my interviewees explained, they could be rapidly enhanced, attracting large amounts of private capital into biodiversity conservation. The main targets of these tweaks were legal frameworks and methodologies for conducting, regulating, and inspecting the application and trade of offsets. In fact, nearly 27 years after “environmental compensations” first appeared in Chile, with the enactment of Law 19.300 (Art. 16), there are scarcely any industrial projects that now apply for offsets. Between 2000 and 2017 BIOFIN found that only 3.7% of projects approved by the System of Environmental Impact Assessment (SEIA) offered a full Impact Assessment (a total of 14,349), which is the only way to request that firms implement offsets legally. An overwhelming 96.2% of projects approved by the SEIA delivered a simplified evaluation called “Declaration of Environmental Impact,” which exempts firms from conducting offsetting measures and, even more concerning, from elaborating environmental baselines (BIOFIN Chile, 2018). One interviewee, who evaluated nearly 100 mining projects stressed the pervasive lack of compensation measures: “[in the projects analyzed] there were zero offsetting measures (…) companies did not offer any” (BF3, interview, 2020). When biodiversity offsets took place (in the 3.7% of projects estimated by BIOFIN), there were no tracking mechanisms to oversee their implementation and the shared impression among environmental experts was that they were not properly conducted. In the early years, offsets avoided equivalence or the like-for-like compensation; that is, firms would compensate environmental damage by donating computers to a rural school near the project site, paving a road, or financing improvements to the public square, as one consultant from a conservation firm told me (NSE9, interview, 2020). It was only after the state introduced a guide in 2014 – developed by the NGO WCS – that biodiversity became mandatory in the implementation of offsets and the notion of ecological equivalence appeared (MMA, 2014, p. 17). Still, state agents 103 avoided requesting equivalence legally: “the typical thing that happens [currently] is that companies (…) are forced to reforest and lease 20 hectares for 2 years. They plant 20 quillayes68 that dry up by year three because CONAF never looks again after year three” (NSE9, interview, 2020). A similar commentary came from one BIOFIN senior staff, who added there are green areas in Santiago that have been repeatedly reforested because of the short monitoring period: “Renca mountain has been reforested several times but it remains deforested” (BF2, interview, 2020). Companies know in advance regulations are weak in Chile, therefore, as my interviewees observed, they leave the trees to dry up. The terrible performance of offsets and lack of governmental regulation becomes even more concerning if we consider the rate of project approval in sectors like mining. Between 2005 and 2012, 93% of mining projects69 presented to the SEIA received approval (Gudynas, 2020). Representing more than half of the Gross Domestic Product Chile produces, mining projects’ high approval rate suggests a state that is more focused on attracting and retaining extractive capital that on establishing regulations for environmental damage control. So, how did the poor performance of offsets dovetail with their promotion as a means to fund conservation in Chile? The problem of implementation is one part of the story, an important one indeed. It belongs to a liberal environmentalist mantra that places technical implementation at the center of environmental policies: with the right tweaks, a proper legal framework and a sound methodology, “we will get offsets right next time.” It is also a strategy to keep going with policies that have blatantly failed. Scholars Corbera et al. (2021), who analyzed biodiversity 68 Quillaja Saponaria or Soapbark. 69 Around 620 projects. 104 offsets in the European Union, Spain, and England, argue that after failure, this policy retreated to local policy spaces. Offsets then reappeared with new policy environments such as the Green Infrastructure Strategy in Spain (p. 256). Drawing from biogeography, the authors coined the term “policy refugia” to refer to spaces where policies find shelter from adverse conditions to emerge later and “recolonise the territories from which they were extirpated” (p. 256). The term “policy refugia” nicely describes the trajectory of offsets in Europe. It also offers an explanatory metaphor that transcends the “succeeding” or “failing” narrative, centering on local implementation regimes and pilot projects that are dismissed by top-down analyzes (p.257). However, in contrast to the trajectory of offsetting in Europe, in Chile offsets are not waiting for the proper environment to re-emerge, because this is the first time they are presented as an explicitly market-based instrument to finance conservation. State agents at the Ministry of the Environment are producing techno-legal devices to transform the previous environmental compensation system into an offsets market. This does not mean that offsets in Chile will not resort to refugia sites after failing as a market-based instrument. In fact, as I analyze in Section 3.2.1, parts of this policy were taken out of the BPAS bill in 2020 to circumvent public backlash, indicating a retreat to a safer space while the BPAS is discussed inside the parliament. The other part of the story on the underperformance of offsets became the hook for connecting them to conservation finance in Chile involves BIOFIN. Resorting to its UN-based influence, BIOFIN reinforced the promise of improving offsets as a strategy to fill the funding gap. In one of BIOFIN’s policy briefs named “Biodiversity in Chile: Suggestions to fund its conservation” (2018), the program claimed: The country needs to reinforce the environmental compensation system [i.e. biodiversity offsets] through better institutionalization and effectiveness, allowing 105 incorporating development projects’ costs and protecting natural capital. A compensation system contributes to enhancing market rules, and it is one of the recommended measures by the Convention on Biological Diversity. (BIOFIN, 2017, p. 7). Relating offsets to one of CBD’s measures, BIOFIN shaped the advice around the need to improve environmental regulations “incorporating development projects’ costs” and the need to protect “natural capital” by channeling these costs to conservation. Likewise, to frame offsets as a market-based instrument, BIOFIN had to convince the state of the failure of offsets while portraying them as the most promising mechanism to fill the financing gap. On the one hand, building a narrative around the failure of offsets made room for the promise of improvement. One senior staff member at BIOFIN put this in simple terms: “there has been a widespread judgement this instrument [offsets] was performing poorly; but there is also a widespread will to improve it” (BF2, interview, 2020). Improvement is only possible when there is shared agreement around a problem, that is, the failure of an old policy. In addition, BIOFIN was aware of the existence of underrepresented ecosystems as discussed in the previous section (see also Pliscoff & Fuentes-Castillo, 2011; and Valenzuela & Moya, 2016). The same senior official from BIOFIN-Chile argued, “we have ecosystems unique in the world, ecosystems that are far below the international goal of conservation. However, we also have critical structural conditions that prevent us from increasing the number of protected areas (...) Unless we expand the range of conservation possibilities and begin incorporating non-public areas” (BF1, interview, 2020). The structural conditions to which my interviewee refers are the concentration of land in private hands. With nearly 80% of the land held by private landowners, the only feasible solution for a 106 state that avoids land purchases is the integration of private conservation initiatives by offering financial incentives such as biodiversity offsets credits sold in the market. My interviewees all presented a widespread “will to improve” offsets. Li’s book The will to improve analyzed how Indonesian policymakers or “programmers” constructed development problems around technical deficiencies in ways that facilitated very specific solutions and innovations; innovations, however, that never dealt with the depth of the problems programmers first saw. As Li argues (p. 4), improvement programs are “shaped by political-economic relations they cannot change.” BIOFIN framed the poor regulation of biodiversity offsets and ecosystem underrepresentation as technical deficiencies and later presented this mechanism as a prominent way of financing conservation. On the other hand, offsets’ improvement presents a potential: the possibility of scaling them up, channeling large sums of capital towards conservation. One interviewee from the firm hired by BIOFIN to produce a methodology for offsetting argued that “if compensations were implemented, a flow of resources would open up for conservation; [flows] that do not exist in Chile” (NSE9, interview, 2020). BIOFIN-Chile senior staff argued revenues stemming from biodiversity offsets are a rapid and effective way to capture funds for conservation, “it is a solution that already exists and has a regulatory framework that sets certain standards; it allows public policy to improve, not to start from scratch.” He also compared firms’ expenditure in offsets in Chile and abroad to emphasize how feasible it is to capture more funds: “[in Chile firms’ expenditure] is way lower (…) the truth is that a raise of 0.2, 0.3 or 0.4 points [above the national budget] it’s not really significant [for firms].” Speaking from the private sector and stressing the need to approve new offset regulations, former state agent and current Teck executive claimed that if the state did not legislate soon, “in [the next] 10 years we are going to 107 have another hundred or so mining projects without any offsetting measure.” He then surprised me with the following question: “why don't you let me compensate for that, even if we make mistakes? Let's find a way for the error to go towards conservation, not towards deterioration” (BF3, interview, 2020). If we keep wasting time, my interviewee insists, we will not have good or bad compensations measures; we will not have any offsets at all. All these interviewees claim offsets are the most expeditious way of improving the cash flow for biodiversity, even if this mechanism faces a bumpy road. They are well aware of offsets’ failure and insist that their improvement will bring capital to conservation. There is one more, rather counterintuitive, argument justifying the use of offsets to fill the funding gap in Chile. Based on offsets’ regulatory origin, one senior staff at BIOFIN made the distinction between offsets from financial and market-based instruments like payments for ecosystem services (PES): The use of financial solutions or economic instruments in the country, especially so-called market-based instruments, is incipient, recent. That means there is a regulatory framework that is not the most appropriate; a regulatory framework that still lacks tools, instruments, norms, and guidelines to allow these instruments to operate in Chile. So, in the case of several instruments very popular on a world scale, it is likely that many of them are not applicable at the national scale. We do not have a regulatory framework that allows their applicability. (BF2, interview, 2020). This observation – that the absence of green market instruments is due to weaknesses in the legal and regulatory frameworks, as well as in the methodology – seems counterintuitive since it frames offsets as not really “financial” or “economic,” something BIOFIN admittedly seeks, as 108 the meaning of its acronym clearly indicates. However, this point returns to the notion of failure to authorize biodiversity offsets based on a lack of options. Having no alternatives in the short term, BIOFIN picked offsets as the only mechanism available to rapidly increase funding for conservation. My interviewee further compared offsets and PES – which he deemed an innovative instrument even while having “contradictory results at a world scale” – to emphasize the impossibility of rolling out this kind of instrument in the short term: “there is no regulatory framework to apply an instrument like that [PES], so it’s very difficult to move in that direction – as long as structural limitations are still present.” From this perspective, absences in legal, regulatory and methodological domains produced a void that was occupied by an older mechanism, offsets. Such a discursive move allowed BIOFIN to present offsets as a renovated option after transforming it into a market-based instrument. The same BIOFIN interviewee continued: “what we are doing, what we proposed was a methodological improvement [in offsetting] for the entire country’s terrestrial ecosystems. (…) that same improvement will allow you to jump to creditization, to biodiversity offsets credits.” BIOFIN resorted to legal and methodological failures to provide a solution based on transforming offsets into a financial tool endorsed by the UN and the CBD. This discursive formation for rendering offsets economic and essential to fill the biodiversity financing gap is becoming widespread. According to the liberal environmental think tank at the Paulson Institute and Cornell University, biodiversity offsets will be on top of the list of mechanisms to increase capital flows into global biodiversity conservation (Deutz et al., 2020): 109 Figure 3.3 Estimated Positive and Negative Flows to Biodiversity Conservation. With permission from © Paulson Institute. Source: Deutz et al., 2020. Co-existing with green financial products such as green bonds and private equity funds, offsets are being reshaped as an innovative mechanism. While the international construction of biodiversity offsets remains beyond the scope of this research, the discursive move implemented by this report echoes the Chilean case. The report called on governments with already existing biodiversity offsets schemes to “strengthen enforcement using supporting tools such as regulation, planning processes, and legislations” (Deutz et al., 2020, p. 21). The call to strengthen the enforcement of offsets is nothing more than a request to improve their implementation. The problem and the promise remain the same, even in countries where offsets may seem better “enforced” than in Chile. 110 Biodiversity offsets are a form of salvage policy; the policy derives from programmers’ efforts to salvage failed environmental compensations, by reshaping its function and rendering it economic and financial. This salvaging not only translates into finding solutions for the better implementation of offsets – or enforcement – in domains such as regulation, legislation or planning. For programmers to render biodiversity offsets financial, they need to intervene at the heart of nonhuman lives: the abstraction and translation into numerical values, the arrangements for offsets’ creditization, and the legal frameworks involved. The following section analyzes these aspects. 3.3 Regulating biodiversity offsets BIOFIN’s main recommendation to Chile was to improve implementation of, and create a market for, offsets. A market would allow developers to offset a project’s impacts by purchasing biodiversity credits. These credits are offered by a variety of initiatives such as ecosystem restoration projects, the creation of protected areas, the regularization of lands under weak protection schemes, among others. This offsetting schema will differ from Chile’s current approach that mandates firms to offset their impacts after they cause them. One fundamental element in the market imagined by BIOFIN and state agents are “compensation banks,” understood as conservation initiatives certified to sell biodiversity credits. As one agent at the Ministry of the Environment pointed out, such banks “offer preservation or restoration activities already conducted,” not only saving firms from having to propose and conduct offsetting measures but also configuring the necessary incentives for private landowners and conservation land trusts who want to conserve but lack the money to do it (SE9, interview, 2020). 111 There is certainly risk reduction when project developers can buy offsetting measures conducted elsewhere. On the one hand, developers avoid spending money or administrative resources conducting the offset. As a private consultant pointed out, You are all the time forcing mining companies, forestry companies, energy companies to become experts in biodiversity when they are not. It is part of generating a way for them not to get rid of their responsibilities but to delegate to the experts. That is the part that the bank has that is super valuable. (NSE9, interview, 2020) On the other hand, this scheme allows firms potentially to dodge offsetting poor evaluations and the subsequent revocations of working permits. This is because offsetting offers firms a shortcut to state and social legitimacy, a rapid path to inoculate developers from any public backlash for failing to protect biodiversity. Developers transfer this risk to the state, who decides the validity of an offsetting measure through the certification process. Reducing a projects’ risk is the reason that mining firms operating in Chile lobbied for compensation banks during the first rounds of discussion. As one administrator at the Ministry of the Environment explained: [T]he private world insisted a lot on [the use of compensation banks]. Large mining companies started (…) because, especially in the central part of Chile, there are mining companies who have land beyond where they operate; for example, Anglo American in the area of Colina [North of Santiago]. They have a tailings dam, so they bought land there. From the beginning, since they started with the tailings, they conducted reforestation trials, and they said, "well, why doesn't this count? We have reforested so many hectares and it should be counted as a compensation for what we have 112 damaged.” And then they started to pressure us, and they pressed hard (…) for us to consider those [measures] as compensations. (SE9, interview, 2020). The implementation of offsetting measures before an impact takes place can save firms from costly technical evaluations and monitoring processes, especially when they make use of lands that they had already purchased and reforested, as in the example given in the quote immediately above. Those lands are underutilized assets already acquired by firms. Using them allows firms to reduce costs, thus increasing their profit. This is a new kind of green capitalist vertical integration where companies control every stage of the production process, even stages related to environmental mitigation and compensation. However, the simple question "well, why doesn't this count?” posed by the mining giant Anglo American, suggests that anything can work for these companies. Trees could compensate for, say, the loss of the endemic rodent, vizcacha. The notion of ecological equivalence – the ecological correspondence between what is harmed and what is offered as compensation – turns blurry and contentious. The state is also looking to support private conservation initiatives – as I analyzed in the previous section – searching for ways to incentivize the purchase of biodiversity credits offered by them. Legal formalization is thus crucial. One state agent at the Ministry of the Environment suggested that the exchange taking place in compensation banks leads to private conservation initiatives’ incremental growth. A private landowner can certify a bundle of conservation activities as ‘offset credits’ and sell them to a firm. It can be done, for instance, by acquiring a Derecho Real de Conservación, a legal agreement that allows landowners to inscribe portions of 113 their land with a long-term conservation agreement (DRC).70 In the future, the firm may come back and buy offsets credits to the same landowner. Because the private landowner keeps certifying new conservation activities and selling them as credits, my interviewee argued, what started as a small conservation initiative will eventually “turn into a conservation land trust”71 (SE9, interview, 2020). He brought up conservation land trusts as a way to illustrate what private initiatives could look like if proper incentives were available. Compensation banks72 are thus key to scaling up private conservation initiatives, as this agent described. They enable the encounter and exchange between buyers and sellers of biodiversity credits – companies implementing development projects and private landowners or land trusts engaging in conservation initiatives. Having these features available requires institutions and laws to allow offset exchange. It also needs mechanisms to prevent firms from offsetting more than is recommended. The following section presents the story of offsets inside the parliament, reviewing the discussions around the mitigation hierarchy and a controversy that spurred a scientific talk in one of the bill’s parliamentary sessions and the subsequent removal of compensation banks from the Biodiversity and Protected Areas Service bill (BPAS). 70 The law that created the DRC (20.930) was passed in 2016. 71 Land trusts are “legal entities that take ownership of, or authority over, a piece of property at the behest of the property owner” (Investopedia, 2021). A conservation land trust is dedicated to the protection of biodiversity from disruptions like the ones provoked by commercial development. The last seven years have seen the emergence of conservation land trusts in Chile, a phenomenon partly influenced by the enactment of the DRC, introduced in the previous footnote. 72 Compensation banks are slightly different from habitat banks but framed in the same logic. Habitat banks are reservoirs of different types of ecosystems (or communities of species, or species alone) certified to offer biodiversity credits. Compensation banks, on the other hand, are certified conservation initiatives that offer offsets credits. While habitat banks are organized in terms of ecosystems availability, the organizing principle of compensation banks are conservation initiatives. In the case of Chile, compensation banks were conceptualized as a way of combining the supply of offsets credits with incentives to private conservation initiatives. 114 3.3.1 Shaping the legal framework In the previous sections I reviewed how biodiversity offsets emerged from the salvaging of an older regulatory mechanism, environmental compensations. Here I present the legal trajectory of offsets inside parliament during the discussion of the BPAS bill, noted in Chapter 2. Offsets made their entrance into the BPAS in 2014, following recommendations advanced by the OECD in the famous 2005 Report “Environmental Performance Review.” The advice of BIOFIN and the previous GEF SNAP project combined with the OECD suggestion, which emphasized that the state needed to incorporate economic instruments in its environmental institutions. The state was also lobbied extensively by the mining and energy sectors (see Chapter 2). The 2014 BPAS bill73 contained few mentions of biodiversity compensation, and even those mentions were vague. For instance, the concept of “compensation banks” appeared in reference to “territories whose singularities and value for biodiversity make them a candidate in the compensation scheme for investment projects.” Here the definition is closer to habitat banks, although without an explicit connection to them. However, the bill received substantial amendments in 2017. The “Biodiversity and Ecosystem Certification System” and the “Contracts for the Retribution of Ecosystem Services” appeared to give shape to the offsets market (articles 50 and 51, respectively). During this period, the government presented offsets as one of the main strategies to overcome the financing gap. During the same period lawmakers started to debate the amendments to define the mitigation hierarchy more sharply, a conversation extended until 2020, to which I now turn. 73 There was a first version of the BPAS bill in 2011 but this was replaced by another one in 2014. Offsets did not appear in the 2011 version. The bill currently under discussion is the 2014 one. In Chapter 1 I review the transit between these two bills in detail. 115 The mitigation hierarchy is a recommended procedure for any offsets programme. According to BBOP, it refers to a hierarchy of measures that should be taken to reduce biodiversity impacts and minimize the use of offsets, a step that should always be a last resort. This hierarchy is formed by the three steps of “avoid, minimize, mitigate” (see Figure 3.4). Institutions such as the International Union for Nature Conservation, the Convention on Biological Diversity, and even the International Finance Corporation are strong supporters of the mitigation hierarchy. However, the Environmental Compensations Guide elaborated by the Ministry of the Environment in 2014 toned down the role of “avoidance” and merged it with minimization. The Ministry adapted the definition of the mitigation hierarchy presented in a report published by Forest Trends (Darbi et al., 2009), which defined the hierarchy as “avoidance, minimisation, and compensation.” The Ministry left out the concept “avoidance” and presented the sequence “mitigate, repair, compensate.” The following figure shows a representation of this modification in Chile against the mitigation hierarchy proposed by institutions such as Forest Trends and BBOP: 116 Figure 3.4 Mitigation hierarchy proposed by Forest Trends (Darbi et al., 2009) and in Chile. With permission from © Forest Trends. Source: Elaborated by author. A new opportunity appeared to strengthen the mitigation hierarchy with the inclusion of biodiversity offsets within the BPAS bill. During a discussion in the Senators chamber held in 2017, Senator Antonio Horvath introduced the following amendment to Article 2, to add the concept of “avoidance” to the beginning of the mitigation hierarchy: Hierarchy principle: Impacts on biodiversity should be avoided, and only when this is not possible should they be mitigated, repaired, and, ultimately, compensated. Compensation will only proceed for impacts that, as scientifically proven, cannot be avoided, minimized or repaired, and provided that it is admitted in accordance with the law” (CMACS, 2017, p. 22 – Amendment N.35. Emphasis mine). Prior to this amendment, article 2 defined the hierarchy principle as: “impacts on biodiversity must be mitigated, repaired, and, ultimately, compensated. (Article 2 of bill 9,404- 117 12). Senator Horvath supported his amendment to include “avoidance” at the beginning of this article as a cautionary approach to offsets. As he stated, “This amendment is intended to point out that prior to mitigation, environmental impacts must be avoided, as established by the precautionary principle that inspires the current environmental legislation.” In response, former minister of the environment, Pablo Badenier, argued in the same session that avoidance was already considered by the notion of “mitigation” included in Law 19.300: “when dealing with the Environmental Assessment System, [Law 19.300] implements the verb “to mitigate,” which includes both actions [avoidance and mitigation].” Senator Horvath insisted that the terms avoidance and mitigation were rather different: “[B]oth expressions are not synonymous, since the verb ‘to mitigate’ means to moderate, appease or soften the result of an action, to minimize its damage; whereas ‘to avoid’ points to refraining from taking an action that could cause harm” (CMACS, 2017, p. 22 – Amendment N.35). After this brief exchange, the president of the session called lawmakers to vote on Horvath’s amendment and it was rejected. The next two indications (36 and 36 bis), by Senators Alejandro Navarro and Alfonso de Urresti, attempted the same and were rejected as well. Leaving aside political interests, there seems to be a lack of procedural diligence in Badenier’s argument: Law 19.300 does not bring a definition of mitigation that includes avoidance, while the word “avoidance” only appears in relation to soil degradation and clean technologies in the articles contained by Law 19.300. The guide on environmental compensations, published by the Ministry of the Environment in 2014, includes the concept of avoidance; however, as I discussed above, the mitigation hierarchy in this guide added “avoidance” and “minimization” to the same category, toning down actions conducive to avoiding environmental impacts. 118 The BPAS bill made its way into the Deputies chamber in 2020, where a group of lawmakers again proposed an amendment to incorporate “avoidance” into the hierarchy principle. Current minister of the environment, Carolina Schmidt, attended the session held by the Environment Commission and requested deferring a vote of this amendment until the discussion of articles 37 and 52, which concerned biodiversity offsets and compensation banks directly. Her request was supported by the ministry’s head of natural resources and biodiversity, Juan Donoso. Their interventions were oddly long and lacked convincing arguments on why it was necessary to merge this amendment with the ones on articles 37 and 52. Presumably, it was an attempt to win time to prepare a line of reasoning to keep article 2 without modifications. It is important to bear in mind that a very similar amendment was rejected in the senator’s commission in 2017. The argument then was that the concept “avoidance” was included in the definition of “mitigation.” And yet, something led these deputies to insist on the inclusion of the concept at the beginning of article 2. While “avoidance” is, indeed, contained in the compensation guidelines released in 2014, it appears merged with “minimization” under the “mitigation” category. This kind of subtlety can fundamentally shape the implementation of biodiversity offsets. Regardless of the attempt to postpone article 2’s discussion, a deputy insisted on voting on the amendment since this article contained principles that needed to be settled before continuing with the bill. The president of the commission also insisted on discussing articles in a sequential fashion and rejected the minister’s request. Both deputies, the president of the commission and the one who argued for voting on the amendment, were part of the group that presented this amendment. But it was not enough to approve it. With six votes in favor, three rejections and three abstentions, the inclusion of “avoidance” was rejected for a second time. The concept 119 remained downgraded to the second part of the mitigation principle and, with that, the possibility of having an offsets mechanism with greater attributions to protect biodiversity. After the failure to include “avoidance” in the mitigation hierarchy, an episode changed the trajectory of offsets inside the BPAS bill. This time it was the elimination of article 52, which created the compensation banks. After several suspensions due to the pandemic, which deferred the discussion of amendments, in October 2020 a video condemning this mechanism went viral. Its goal was to sound the alarm about the banks and call people to publicly reject them by requesting lawmakers eliminate all articles concerning biodiversity offsets (Articles 2B, 37 and 52 of bill 9,404-12). Organized by the non-profit “City and Rights Corporation” (Corporación Ciudad y Derechos), the video presented offsets as a market tool to license the destruction of biodiversity. It opened with the following sentence: “Attention! (..) A bill is being discussed inside the parliament that will legally authorize the death of natural heritage in Chile.” The video showed an animated sequence of a smart phone offering to “Pay now,” and a pinguin next to it with the following text: “the destruction of the environment is exchanged as a market product.” It then showed an image of a transaction machine and next to it the text: “everything exchanged through a bank that generates biodiversity credits.”74 A few weeks later I spoke on the phone with a state agent about this video. He was upset and deemed the video dishonest and confusing: “[the video] was full of lies (…) they’ve caused great damage” (SE9, personal communication, 2020). He was worried about public opinion and how it affected the future of offsets, but he also knew this mechanism would keep moving 74 The video can be watched in: https://www.facebook.com/watch/?v=1608196539382480. 120 forward outside the BPAS bill. And, it did. In December 2020 the Environment Commission discussed and eliminated article 52. Deputies gave their views after an ecologist from the nonprofit, FIMA, Fernanda Salinas, gave a presentation on offsets and insisted that the country was not well-equipped to have compensation banks – the argument of failure again, although this time used to oppose the offsets market. She also argued the Ministry of the Environment should not regulate this mechanism since the Environmental Impact Assessment Service (SEA) had the task of overseeing environmental compensations since the enactment of Act 19.300. She closed her presentation insisting on the lack of evidence of banks’ success anywhere in the world, arguing they were “a legal authorization to destruct biodiversity” (CMCD, 2020). Other NGOs circulated amendment drafts suggesting the elimination of the bank in parallel to Salinas’s presentation. The non-profit Terram, for instance, argued that both offsets and the banks should be overseen by the SEA but not before being widely discussed (Terram, 2020). During an interview, Terram’s executive director told me with great confidence they would not allow the BPAS’s approval of compensation banks (NSE1, interview, 2020). The marine non-profit Oceana circulated an amendment draft showing concern for the lack of a methodology to calculate ecological equivalences and the vagueness around compensation limits (or to what can be offset). In an interviewee with Oceana’s executive director, she pointed at Chile’s weak environmental legislation. Drawing from these organizations, lawmakers agreed on the risk posed by compensation banks on the grounds of a historically weak environmental legislation and the lack of technical specificity around the methodology. At this point, even the executive cheered the elimination of compensation banks. The deputy secretary of the Ministry of the Environment attended the session to urge lawmakers to vote for the elimination of article 52 as soon as possible. He claimed banks pertained to the SEA 121 and there was no reason to keep them within the BPAS scope. With unanimity, article 52 was swiped from the BPAS. The Ministry’s attitude toward the elimination of article 52 was diametrically opposed to its reaction when discussing the mitigation hierarchy; that time the minister requested the postponement of the discussion, presumably because they needed time to prepare an argument to oppose the inclusion of the term “avoidance.” Moreover, in a previous meeting, the president of the session called the Minister of the Environment to speed up the Ministry’s amendments, arguing there was no reason to slow down the legal process of the bill. The elimination of compensation banks triggered a different reaction though; both the Minister and its Deputy Secretary were in favor of this elimination. The Ministry’s haste with the elimination of banks contrasted with its prior protraction of the mitigation hierarchy. This change of attitude indicates that the offsets market will keep going despite the BPAS. Furthermore, there is no reason to suggest that this will cause the end of compensation banks and the biodiversity offsets market. The other articles upon which this market depends were approved without amendments: article 37, which introduces biodiversity offsets, article 50, which creates the Biodiversity Certification System, and article 51, which regulates ecosystem services contracts. These articles underpin the biodiversity offsets market. The elimination of compensation banks from the BPAS corresponds to a political maneuver to soothe the resistance from environmental groups, but the offsets market will keep moving forward. In a move similar to that which Corbera et al. (2021) describe, parts of the offsets market were taken to a “policy refugia” space (see Section 3.1.2). It means that offsets are by no means dead in Chile. Moreover, parallel to the debates over the mitigation hierarchy, the Ministry of the Environment started crafting the methodology to calculate ecological equivalences with an independent consultant, while in 2021 they commenced a GEF project to pilot four economic instruments: 1) contracts for ecosystem 122 services, 2) biodiversity offsets, 3) the biodiversity certification system, and 4) the real right of conservation (SE6, interview, 2020). Putting together a biodiversity offsets market is no easy task, especially when legal frameworks hamper it. Furthermore, after the legal phase a set of parameters must be established to regulate the certification process; that is, there must be rules to determine which biodiversity practices receive credits and how many. In other words, value regimes need to be assigned to human practices and nonhuman forms of life. This is by no means simple. The commodification of nature spurred by the biodiversity offsets market is challenged for at least two reasons. First, considerably more complicated than its nearest cousin, carbon offsets – in which emissions and sequestrations are chemically the same – the ecological equivalence necessary for biodiversity offsets can never be fully equivalent. Simply put, one life cannot replace another. As one interviewee categorically observed: "the problem of ecological equivalence does not have a solution (…) If I kill a specimen, I will never have that same one again" (interview, 2020). And second, in addition to the problem of equivalence, is the issue of how to render nature into biodiversity credits at offsetting sites. Nature must be abstracted and converted into a commodity through the credit certification process. As Morgan Robertson argued after examining the US wetland services banking program, “[T]o achieve commodity status, wetland services had to be abstracted from their place-specificity” (Robertson, 2000, p. 478). The work of the certification process is to render visible parts of nature previously concealed to project proponents, companies and the state. This comes at a great risk for biodiversity since there are situations where “what is not measured, is not compensated” (Moreno-Mateos et al., 2015, p. 554). In what follows I discuss how the government has faced these challenges, paying attention to the ways offset markets are conceptualized in Chile. 123 3.3.2 Building a methodology: Copy, paste, simplify, abstract In 2019, a private consultancy was hired by the Ministry of the Environment and funded by BIOFIN to design the methodology that underpinned the biodiversity offsets market. It analyzed cases from Australia (Victoria), Colombia, USA (Florida and Washington states’ wetlands), Peru, UK, South Africa, the IFC, and a pilot conducted in Chile in 2015. Blending these methodologies into one framework, one representatives of the consultancy explained to me, entailed “an adaptation of what we thought would make sense in Chile (…) we cut and pasted from different parts and assembled an ideal” (NSE9, interview, 2020). The simplification of the metric drove this assembling process, which combined with the desire to make it useful for various ecosystems, “to ensure that the metric is easy enough to apply and be widely used” (Alonso et al., 2019, p. 37). The report contrasted the cases of Washington and Florida – where the metrics only apply to wetlands – with the case of the UK and the IFC, whose methodologies can be applied across landscapes. It also argued that older formulas like the one applied to Washington state were hard to apply elsewhere: “The more complex the formula [is], the less flexible its application to different ecosystems.” The methodological simplification proposed sought to combine simplicity with the effective capturing of biodiversity: “simplicity of the formula is desirable as long as the parameters used realize the relevant elements of biodiversity” (Alonso et al., 2019, p. 37). Those “relevant elements” signaled in the report are the bread and butter of what programmers call “ecological equivalence,” the pursuit of a correspondence between impacted and offsetting sites, or between what is harmed and what is offered as compensation. It is also a prominent feature that departs from the previous mechanism in Chile, environmental compensations (reviewed in Section 3.1). 124 The firm proposed the standardization of biodiversity priorities by applying two levels of information: the first is what they call the “Key Components Matrix” (KCM), which consists of a table (see Figure 3.5) that sums up “all biodiversity components, whether they are species, ecological communities, associations, and levels of ecosystems, which stand out as conservation priorities due to their intrinsic values, and to the provision and cultural benefits they provide” (Alonso et al., 2019, p. 46). The second level is the “Relevance Map,” which represents the geographical distribution of ecosystem priorities across the country (see Figure 3.6). The method for calculating biodiversity losses and gains, and the selection of the offsetting site are determined by the KCM and the Relevance Map. Likewise, the ecological equivalence is driven by these two levels of information (Alonso et al., 2019, p. 46). 125 Figure 3.5 Key Components Matrix. With permission from © Alonso. Source: Alonso et al., 2019. Translated by author. 126 Figure 3.6 Relevance Map. Map of Chile with relevance categories according to existing biodiversity. Legend: “Final Categories (relevance):” light blue: low; yellow: medium; orange: high; red: very high. With permission from © Alonso. Source: Alonso et al., 2019. Translated by author. The KCM and the Relevance Map were designed to facilitate the search for correspondence between impacted areas and offsetting sites at an ecosystem scale – or ecological equivalence. My interviewees repeatedly referred to this search for correspondence as “the 127 match.” Project proponents can use the Relevance Map to find an area with the same type of ecosystem, make “the match” and quantify its equivalence through the KCM. Moreover, as I commented above, the state envisions a market in which private conservation initiatives are certified to offer biodiversity credits before project proponents enter the SEIA. Here is the plan: private conservation initiatives apply the KCM to learn, in advance, which ecosystems are available for project developers searching for a match. When the match is found, an evaluation proceeds to verify the offsetting measure that achieves the principle of No Net Loss and Net Gain (see Equation 3.1a). This step also defines whether the offsetting can continue through an evaluation of the “viability of the offsetting measure” – a viability that occurs only when the residual impact at the project site is less or equal than the Biodiversity Net Gains at the offsetting site (see Equation 3.1c). The residual impact in turn “accounts for the extent and quality of lost biodiversity” (Alonso et al., 2019, p. 84) and results from the multiplication of three parameters (see Equation 3.1b): 1) changes to biodiversity at the impacted and offset sites, 2) the surface of the impacted site, and 3) the relevance of biodiversity at the impacted site. (𝑎) 𝐵. 𝑁𝑒𝑡 𝐺𝑎𝑖𝑛 =(𝑐ℎ𝑎𝑛𝑔𝑒 𝑏𝑒𝑡𝑤𝑒𝑒𝑛 𝑠𝑖𝑡𝑒𝑠: 𝐾𝐶𝑀𝑠∗) × (𝑜𝑓𝑓𝑠𝑒𝑡 𝑠𝑖𝑡𝑒 𝑠𝑢𝑟𝑓𝑎𝑐𝑒) × (𝑜𝑓𝑓𝑠𝑒𝑡 𝑠𝑖𝑡𝑒 𝑟𝑒𝑙𝑒𝑣𝑎𝑛𝑐𝑒: 𝑅𝑀∗∗)(𝑦𝑒𝑎𝑟𝑠 𝑏𝑡𝑤 𝑖𝑚𝑝𝑎𝑐𝑡 𝑎𝑛𝑑 𝑜𝑓𝑓𝑠𝑒𝑡) × (𝑝𝑟𝑜𝑥𝑖𝑚𝑖𝑡𝑦 𝑏𝑒𝑡𝑤𝑒𝑒𝑛 𝑠𝑖𝑡𝑒𝑠) × (𝑜𝑓𝑓𝑠𝑒𝑡 𝑡𝑦𝑝𝑒: 𝑐𝑟𝑒𝑎𝑡𝑖𝑜𝑛 𝑜𝑓 𝑝𝑟𝑜𝑡𝑒𝑐𝑡𝑒𝑑 𝑎𝑟𝑒𝑎 𝑜𝑟 𝑒𝑙𝑠𝑒) (𝑏) 𝑅𝑒𝑠. 𝑖𝑚𝑝𝑎𝑐𝑡 = (𝑐ℎ𝑎𝑛𝑔𝑒 𝑏𝑒𝑡𝑤𝑒𝑒𝑛 𝑠𝑖𝑡𝑒𝑠: 𝐾𝐶𝑀𝑠∗) × (𝑖𝑚𝑝𝑎𝑐𝑡𝑒𝑑 𝑠𝑖𝑡𝑒 𝑠𝑢𝑟𝑓𝑎𝑐𝑒) × (𝑖𝑚𝑝𝑎𝑐𝑡𝑒𝑑 𝑠𝑖𝑡𝑒 𝑟𝑒𝑙𝑒𝑣𝑎𝑛𝑐𝑒: 𝑅𝑀∗∗) (c) |𝐵𝑖𝑜. 𝑁𝑒𝑡 𝐺𝑎𝑖𝑛| ≥ |𝑅𝑒𝑠𝑖𝑑𝑢𝑎𝑙 𝐼𝑚𝑝𝑎𝑐𝑡| Equation 3.1 (a) Biodiversity Net Gain, (b) Residual Impact, and (c) Viability of the offsetting measure. *KCMs: Key Component Matrices at impacted and offset sites. **RM: Relevance Map. With permission from © Alonso. Source: Alonso et al., 2019. Translated by author. 128 The KCM, the Relevance Map, and the equations are crucial for rendering nature “relevant.” They make species, communities, and landscapes legible for a match and, consequently, they enable nature’s circulation and exchange. Combined, these artefacts act as a true “market device” (Muniesa et al., 2007). Economic sociologists, Muniesa, Millo, and Callon (2007) argue that markets depend on a series of devices to exist, devices that participate in “configuring economic calculative capacities and in qualifying market objects” (p. 5). Drawing from their work, I contend that the KCM, the Relevance Map, and the equations do precisely that. They render biodiversity economic. To keep alive the offsets market, these devices mobilize calculative capacities connecting degraded biodiversity with offsetting sites, choosing what is identified, measured, and compensated. The KCM enables the match by applying a binary logic that divides observations into “yes” and “no” (see Figure 3.5). Likewise, the Relevance Map physically demarcates ecosystems through the same yes/no logic (combined with GIS algebraic procedures like union and intersection), while the equations provide a quantitative assessment of the offsetting measure. These three devices work together to provide certainty to the biodiversity offsets market. For instance, an ecosystem that is vulnerable both globally and nationally, irreplaceable, and provides all the ecosystem services mentioned in the matrix, will reach the highest score and, hence, it will require a stricter offsetting measure. The calculative capacities analyzed above combine with simplification logics embedded in these economic devices. Consider the concept “endemism,” included in the KCM’s parameter “irreplaceability” and the relevance map categories. If a species is restricted to a particular geographical area (that is, endemic) a check mark is placed on the square “endemic” and the KCM receives a higher score. Likewise, the relevance map will point to an area of “high” or “very high” relevance. Both the KCM and the map will increase the equation multipliers “change 129 between sites” and “impacted site relevance.” Subsequently, the “residual impact” score will also increase (see Equation 1b), and the viability of the offsetting measure will be more costly and harder to achieve (see Equation 1c). Conversely, when a species is not endemic, the KCM obtains a lower score while the relevance map shows an area of “medium” or “low” relevance; this will reduce the site’s residual impact value, making the offsetting measure easier to implement – and cheaper. Because of this logic, the KCM, the map, and the equations operate in a way that devalues all sites that do not present endemic species. To be sure, the point here is not to take away the value of endemism, as it has been amply recognized in the scientific literature, but to call attention to the risk implied in devaluing nonendemic others. There are cases where nonendemic species contribute to climate change adaptation and even to the overall thriving of endemic species (Schlaepfer (2018) and Schlaepfer, Sax, & Olden (2012). Endangered endemic species can even be deemed invasive in other areas. This is the case of the wattle-necked softshell turtle brought to the Hawaiian island of Kauai in the 1850s (Marris, 2014), or endemic species that are now migrating due to climate change.75 Political ecologist, Dempsey (2016), argues that implied in the use of these devices is the imposition of hierarchies among different ecologies, a rationalization of biodiversity loss. The hierarchies formed with the goal of protecting some nonhumans, Dempsey shows (2016, p. 20), tend to produce “surplus nonhuman populations: those deemed not necessary, or redundant, or at the least, less worthy of investment.” In this case, the KCM, the relevance map and the equations organize which forms of life are deemed “relevant” and which are expendable and can thus be sacrificed. The 75 An example of the relationship between climate change and species migration can be found in Horton et al. (2020). 130 methodology proposed for the biodiversity offsets market organizes this process applying categorical logics, which cut and downplay the relationality among multiple and diverse species. This system can trigger a planned degradation, one that needs scrutiny. 3.4 Planned degradation and slow violence Whether it functions with compensation banks, the way the biodiversity offsets market works exemplifies a tendency to reduce and simplify nonhuman life. Instead of looking for abundant and thriving natures (Dempsey & Collard, 2017), the logic that underpins the economic devices examined here is one of ‘planned degradation’ through which state agents regulate ecosystems degradation in project sites. They also mobilize what Blomley (2008, p. 1826) called “hierarchical oppositions,” a mode of categorization that relies upon “a binary logic wherein the integrity and categorical stability of one category is predicated on its separation from another.” This is the KCM’s organizing principle: being “a/not a” organizes who is protected and who is harmed for not being endemic, sufficiently vulnerable or a provider of ecosystem services (the parameters that compose the KCM). It is a hierarchy between valued and non-valued nonhumans.76 The KCM also works as an “orienting device” (Collard and Dempsey, 2017). It produces hierarchical differences that guide state investment and protection of certain species, while declaring others as not worth of protection or even as threats (Collard and Dempsey, 2017, p. 84). 76 Valerie Plumwood (1993) explained the way these hierarchies work on a philosophical level. She argued that the Western hierarchy between male and female has fed the nature/culture divide, enabling the naturalization of anthropogenic destruction of the biosphere (Plumwood, 1993, p. 10). 131 Biodiversity offsets do more than spatially connect degradation with compensation spaces; they regulate the violence that species, communities, and ecosystems experience under Chile’s extractivism economy. Offsets distribute violence across spatio-temporal territories. They disperse violence across space by transferring it from the impacted site to the mitigation or restoration site; this transferal authorizes the replacement of the notion of harm by the notion of recuperation elsewhere. Offsets also disperse violence in a temporal way. The “Biodiversity gains” equation considers the “years between impact and offset measure” and penalizes longer periods (see Equation 3.1). Less time to conduct the offsetting measure means a better evaluation. The immediacy of the offset measure allows mitigating the harm because a new conservation initiative rapidly appeared somewhere away from the impact site. The planned degradation that biodiversity offsets exert on nonhuman life echoes what environmental justice writer, Robert Nixon (2013, p. 2) termed “slow violence,” a violence that “occurs gradually and out of sight.” Slow violence affects marginalized human groups whose bodies must bear the poundings of environmental damage caused by extractive capitalism, a notion that applies to nonhuman lives as well: through a spatio-temporal dispersion of harm, the economic devices that compose the biodiversity offsets market regulate the damage administered to forms of nonhuman life up to the point where the damage at the impacted site is nuanced by restoration elsewhere, when violence is “not viewed as violence at all” (Nixon, 2013, p. 2). Biodiversity offsets enable the planned degradation while extractive capitalism continues its course. They advance an attritional violence, a slow but continued and differentiated degradation of the nonhuman. One could argue that the recuperation of biodiversity in another site, say, the restoration of a wetland, can counterbalance the damage produced in the industrialized site. That offsets can 132 make up for biodiversity loss and even provide biodiversity gains – more biodiverse places than the ones affected by development. This is one of the main arguments mobilized by many of my interviewees, who are excited about the promise of biodiversity net gains. However, the substantial flaw introduced by lawmakers when they rejected the concept “avoidance” from the mitigation hierarchy not only suggests difficulties in the assembling of biodiversity offsets. This flaw also indicates the state overtly avoids advice from institutions like the IUCN and BBOP, institutions that are not reticent about capitalist accumulation. The state opted out from a key instrument to oversee project proponents – it discarded a legal attribution to request that firms avoid environmental impacts – and privileged instead a more flexible legislation that relies on corporate voluntarism. Thus, the environmental state in Chile re-actualized its condition of “umpire state:” a state that behaves as the referee of environmental decisions made by the private sector (Barandiarán, 2018). It is state behavior that drips with the prioritization of economic growth and extractive-based development. It is important to bear in mind that having avoidance incorporated into the legislation will not necessarily solve this dilemma. Some researchers remain skeptical of the entire mitigation hierarchy, observing that having offsets at its final stage may disincentivize firms’ compliance during earlier stages (Apostolopoulou & Adams, 2019; Robertson, 2000) as has been documented in Australia recently (see Gutierrez et al., 2021). Moreover, in a recent press article published by the IUCN, researcher Martine Maron argued that even when achieving net gains, in some parts of the world there is just “not enough land for offsets to adequately counterbalance future biodiversity losses (…)” (Sonter et al., 2020). The assembling of biodiversity offsets markets slips and stumbles with countries’ legal realities and global needs, in many cases intensifying the violence humans and nonhumans experience by extractive capitalism. 133 Although the economic devices utilized in ecological equivalence are oriented to the organization of nonhuman life, they also affect an entire web of relations where humans co-exist. Whenever an industrial project arrives to a place, it affects the people that live in or around that place, disrupting relations and producing new ones among people and between people and nonhuman entities. The offsets market, in this sense, seeks the most efficient way of regulating nonhuman degradation while, simultaneously, it feeds a system of human dispossession underpinned by extractivism and the production of sacrifice zones. Svampa and Viale define sacrifice zones as spaces where environmental injustices are intensified, where bodies and lives become expendable and sacrificial (Svampa and Viale, 2014, p. 84). Sacrifice zones are replete with hierarchies that work to discipline and devalue those who are not in line with the hegemonic economy. According to Sundberg et al. (2020), these are polluted spaces “overwhelmingly inhabited by racialized peoples.” Sacrificial spaces and bodies – human and nonhuman – are perhaps the most notorious condition of the extractive economy. Likewise, the biodiversity offsets market is implied in the production of sacrifice zones. 3.5 Conclusions: Salvage policy and persistence In this chapter I explored the historical and contemporary connections between offsets and the environmental state efforts to increase financial resources for biodiversity protection. I also showed what biodiversity offsets look like inside the Ministry of the Environment, the main devices on which it relies and the epistemological work that underpins its methodological design. In exploring these issues, I developed three arguments around the Chilean version of biodiversity offsets. First, BIOFIN and the state transformed offsets into a financial tool to fill the gap after proving offsets’ failure and weak performance. The poor performance shown by offsets all these 134 years provided the opportunity to propose improvements and accommodate the promise of an innovative, market-based instrument to fill the gap. Under this grammar, the worse offsets performed before, the more promising they became in terms of leveraging resources. This is, indeed, the work of the biodiversity financing gap: it mobilizes a narrative whereby the rapid increase of cash inflow becomes the solution to the ecological crisis while it diverts our attention from the concrete actions required to transform our economic and political systems (BCRC, 2021). According to this narrative, state bureaucrats can fill the financing gap by embedding the market into failed mechanisms. Second, the articulation of the three artefacts presented here (the KCM, the relevance map, and the equations) results in a market device that renders biodiversity economic. None of these artefacts constitute a market device by its own. It is their relation that creates the possibility of having a biodiversity offset market – the KCM cannot deliver an economic output without its data plugged into the equations, while both the equations and the KCM requires the Relevance Map to complete their parameters. Through the simplification of several methodologies around the world, the Chilean version of biodiversity offsets convened a device underpinned by simplification and hierarchical oppositions (Blomley, 2008) that values and devalues life according to ‘what it is’ and ‘what is not.’ Nonhuman life, under this rubric, is hierarchically valued according to its geographical location within the relevance map and the attributes signaled by the KCM. In Chile, because of the state’s weak environmental control, the result of this ranking is the planned degradation of biodiversity; it is planned because it consists of a system programmed to authorize and regulate the degradation of nonhuman species and their habitats. Following Robert Nixon’s work, I argued this degradation can be viewed as “slow 135 violence” because it is perceived as spatially and temporally dispersed, yet it really is an attritional and continuous violence borne by nonhuman forms of life. Other scholars have raised concerns about the offsets’ negative outcomes. Spash (2015, p. 550) argued, for instance, that offsets are inherently about destruction of species and their habitats for the benefit of developers. However, in developing this chapter I started without bringing an a priori assumption about any failings of offsets; rather, I traced the discursive movements and sociotechnical devices involved in the making of a biodiversity offset market, as well as how it was celebrated in the Chilean arena of policymaking. As of yet, however, I cannot reflect on the outcomes of this policy as it has not been applied in Chile. It would entail a different, future study on the rolling out of biodiversity offsets in the country. Echoing and parodying West’s work in Papua New Guinea (West, 2006), I titled this chapter “Biodiversity offsets is our government now!” because that is what the Chilean governing bodies are aiming for – to claim biodiversity offsets as the central strategy to govern biodiversity loss while framing environmental conservation as a challenge to be met through economic development.77 Biodiversity offsets remain hegemonic among government agents and public policy debates despite its historical failure in Chile and without convincing cases elsewhere (Apostolopoulou & Adams, 2017a; Maestre-Andrés et al., 2020; Maron et al., 2015; Moreno-Mateos et al., 2015; Robertson, 2004). Furthermore, beyond Chile’s geographical scope, offsets are estimated to be the greatest source of revenue for biodiversity by 2030 (Deutz et al., 2020). 77 This parody emerged from an email exchange with Jess Dempsey. 136 This takes me to my third argument, namely, that biodiversity offsets in Chile and elsewhere enact the policy persistence identified by Asiyanbi and Lund (2020). Policy persistence is the process by which ideas and initiatives with poor outcomes and significant amounts of criticisms manage to achieve stability in the arenas of policymaking (p. 379). The case of the ‘Reducing Emissions from Deforestation and forest Degradation’ (REDD+) program is illustrative for these authors, who documented that instead of arresting global forest loss or improving human livelihoods – REDD+’s main goals – this program triggered growing conflicts over the land, human rights abuses and new forms of marginalization for farmers and Indigenous People. Yet, REDD+ keeps going and receiving positive international attention. Its persistence can be partly explained, the authors argue, by morphing from a global privately led carbon market into an aid-based policy space sustained by global north donors and multilateral agencies who fund forest management, conservation activities, and positive REDD+ research (p. 386). Following REDD+’s trajectory, the biodiversity offsets market co-exists with Chile’s extractive, growth-oriented economy in a way that reinstates the same processes of degradation it seeks to regulate and reduce. The policy persistence described by Asiyanbi and Lund dovetails with the work of the biodiversity financing gap. The discourse of the gap stabilizes the biodiversity offsets market, allowing it to persist in governmental and private sector spheres. The gap installs the liberal notion that money, exchange, and pricing nature constitute the best strategy to arrest the degradation of nonhuman life; that we must sell nature to save it (Dempsey, 2016; McAfee, 1999). It authorizes a Rostowian narrative that invests global north countries and intergovernmental institutions with the tools and knowledge to guide the south while it distracts our attention from the real changes we must conduct. Again, drawing from the case of REDD+, 137 the gap acts as a “socio-ecological fix at the discursive level” that demobilizes real transformative change (Asiyanbi & Lund, 2020, p. 388). The funding gap, I contend, is integral to the development discourse that places the third world in a backward position with North American and European countries, deemed the bulwarks of progress, models to be followed by the rest (see Escobar, 1995; Goldman, 2005). The gap narrative exists within “a geopolitical imagination that has shaped the meaning of development” (Escobar, 1995, p. 9). Yet, paradoxically, the prosperity of developed countries – the same prosperity that allows them to spend substantial amounts of money on protecting biodiversity – rests on a profound ecological debt that has run for more than 500 years (Martinez-Alier, 1997; Warlenius et al., 2015). Furthermore, the financial resources spent by these countries are not targeting the underlying causes of biodiversity loss, such as state subsidies that promote the destruction of biodiversity (BCRC, 2021). The lack of concrete actions has already been acknowledged by the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services, who recently called for a transformative change across economic, political, and cultural domains (IPBES, 2019). To this point it is worth reflecting on two things: one involves the material effects of the discursive apparatus mobilized by the environmental state in Chile in alliance with intergovernmental institutions and green nonprofits. Here, again, James Ferguson’s (1994, p. 276) advice is helpful. He reminds us that when analyzing planned interventions by powerful parties we should avoid an explanation of events based on their logics and intentions. Such a view “misrepresents the complexities of the involvement of intentionality with events;” even when intentions are evident, planned interventions always cause unforeseeable results and structures that were not registered by the plan. Plans, thus, “can neither be dismissed nor can 138 they be taken at their word” (p. 276). To be clear, the plan carried out by the Chilean state does have and will have effects, many of which are already being contested; however, many aspects of this plan will blatantly fail. The consequences of failure are a matter of great concern as new logics and systems of thought emerge from the encounter between planned and unplanned events (p. 277). The second point regards the potential transformations hindered when policies like biodiversity offsets are celebrated and pushed forward by environmental states. We need to pay attention to what remains outside the frame of vision of the environmental state. That is, the potential for socio-natural and political change. Part of the possible, actually existing transformations are the practices mobilized by Indigenous Nations who live in what is now called Chile. In the next chapter, I analyze the encounter between the Chilean state and Indigenous peoples through the Indigenous consultation conducted on the Biodiversity and Protected Areas Service bill, where bits of the legal framework of biodiversity offsets and other economic instruments to manage biodiversity reside. The reactions and discourses mobilized by Indigenous representatives during the consultation process offer insights to examine a central element in the making of the environmental state. How does the environmental state neglect, ignore, and overtly oppress other forms of caring for nonhuman life? And with what consequences? The next chapter explores these questions. 139 Chapter 4: Eco Nullius and the legal geography of Indigenous consultation 4.1 Introduction As we drove over the edge of the Calafquén Lake listening to Pearl Jam, Juan, a friend and the main support during my fieldwork in Chile, told me he had received a job offer he had dreamt about: chief administrator of the Villarrica National Park. As a forest engineer working in the National Forest Corporation, CONAF (Corporación Nacional Forestal), Juan supervises tree cutting permits across the municipality of Panguipulli. It is a demanding job, with too many office hours and not much time in the outdoors, he complained. That is why administering the park seemed so appealing, along with the fact that it involved advancing the protection of a massive forest area. Yet, looking through his pick-up window towards the Villarrica Volcano, he affirmed that he had already made up his mind and would reject the offer. The reason was the conflict between the Indigenous Mapuche-Pewenche communities and the park on the unceded lands of the Peweñantu (El Mercurio, 1999). Having led the Panguipulli office of “Indigenous Issues” during his early career at CONAF, Juan knew well-enough that accepting this job meant that he would have to represent the state in the ongoing conflict with Mapuche-Puewenche families. He would not only have to manage tree-cutting permits on the unceded lands and thus act as a colonial administrator, he also would be the state’s visible face in a bitter conflict at the intersection between conservation and Wallmapu’s land claims. The establishment of the Villarrica National Park took place in 1940 after the hillside lands of the Villarrica Volcano, previously part of the government program for colonizing the south, were deemed off-limits for settlers. Those lands could not support agriculture nor were they suitable for cattle raising because of the volcano’s soil quality and steep slopes (Marín- 140 Herrera, 2019). After its establishment, the park was publicized as a recreational destination for the Chilean middle and high classes. It also ensured the state’s presence on the border with Argentina. The consequence, though, was conflict with Indigenous communities. That reached national media coverage in 1999, when a group of sixty families occupied a small area inside the park demanding the state return the lands. In response, CONAF issued a report to inform the Panguipulli police about the event. But this only fueled the dispute with Indigenous families, who also received support from more lof (the name for Mapuche communities) (El Mercurio, 1999). Despite the Pewenche people’s demands, the state did not return the lands and only authorized communities to hold ceremonies in their ancestral space and collect the fruit from the Pewén or Araucaria tree, piñón, inside the park. Two decades later, in 2019, the park was again under the spotlight after the current government announced the granting of two private licenses to run sport facilities in Pewenche ceremonial spaces. Again, the families organized to halt the projects and demanded the state conduct a consultation with Indigenous communities. After the local court in Temuco rejected their petition, the families took the case to the national Supreme Court. In 2021 the court ruled in their favor, paralyzing the works and establishing Indigenous consultation as mandatory for all future licenses. I place this story at the beginning of the chapter for two reasons. First, to show that Chilean state-led conservation does not escape from ongoing conflicts with Indigenous peoples. The Villarrica National Park is one among a myriad of land usurpations by the Chilean state under a green banner (see García & Mulrennan, 2020) – today there are at least six indigenous land claims on national parks (MMA, 2017). And second, this chapter details the mechanism demanded by the Indigenous families and offered by the state to ease the conflict: Indigenous 141 consultation. Free, Prior and Informed Consent mechanism (FPIC)78 is a formal legal instrument designed explicitly to discuss policies or development projects that affect Indigenous people (I discuss this in detail in Section 4.2). Whether or not it produces positive outcomes for the affected Pewenche communities who lost their lands and access to subsistence practices in the Peweñantu, Indigenous consultation remains a prominent mechanism of the Chilean state. The state has enrolled this relatively new legal instrument – with 76 consultations conducted between 2009 and 2019 (Aninat S. & Hernando, 2019) – to smooth out frictions that result from Indigenous peoples organizing to halt development projects in their territories. Most Indigenous consultations have taken place around development projects in Chile, but any state-led biodiversity conservation initiatives must now include consultation. Between 2016 and 2017, Indigenous peoples were consulted about the creation of the Biodiversity and Protected Areas Service (BPAS) bill. It was the first consultation applied to a piece of environmental legislation in Chile. In this chapter I put the BPAS bill under the spotlight one more time to examine the process of Indigenous consultation conducted by the Ministry of the Environment. Replicating the approach of Chapter 2, I closely trace how the consultation was included in the legislative shaping of this bill, how it unfolded in practice, and its main outcomes in relation to Indigenous demands raised during the process. Different from consultations on development or conservation projects that take place on indigenous lands, the BPAS’s consultation required Indigenous peoples to discuss and evaluate the bill itself, as well as the environmental policies enabled by 78 The private sector has also adopted the FPIC for development projects financed by the World Bank – a move that came after the International Finance Corporation published the Policy and Performance Standards on Social and Environmental Sustainability in 2006, under the Equator Principles (Dunlap, 2018). 142 the law. Following consultation, the state decides how to amend the bill. For this reason, I interpret Indigenous consultation as a legally regulated space where the state convenes Indigenous organizations to discuss an environmental law – one that will greatly shape the environmental state. I also view the consultation process as a site in which the law is made. The legal space produced through the indigenous consultation crystallizes the state’s relationship with Indigenous peoples and, likewise, reflects Indigenous peoples’ response to the environmental state. The first encounter between the state and Indigenous peoples under the BPAS legislation took place in 2015 inside the Senate chamber, when a group of Indigenous representatives and advocates were invited to give their impressions of the bill (CMACS, 2015, p. 3). During the session, Mapuche-Pewenche lawyer, Pablo Cayul, not only demanded an indigenous consultation of the BPAS bill but he also called on the state to return lands to Indigenous peoples in several national parks. His request took place in the context of an organized parliamentary meeting where other organizations also advocated for the respect of human rights and Indigenous self-determination. This pressure forced the Ministry of the Environment to conduct a nation-wide consultation that lasted one year. However, the state deliberately hampered key stages of the process and failed to amend the bill according to Indigenous peoples’ suggestions. Above all, as I detail further in this chapter, the state dismissed the demands of indigenous people both to conduct conservation under an alternative land tenure model, and to adapt biodiversity conservation to indigenous ontologies. My primary argument is that through indigenous consultation, the environmental state in Chile invokes and actualizes colonial patterns of thought and action. These involve denying that Indigenous peoples are subjects with rights and their own epistemologies of caring for nonhuman 143 life. The denial of indigenous rights and epistemologies occurs in two ways. First, the BPAS renders the state the sole manager of biodiversity while at the same time securing the state’s jurisdictional hegemony (section 4.4). And second, the Chilean state invokes a form of Terra Nullius to exclude Indigenous peoples. I use the term Eco Nullius to describe this process, as discussed in section 4.5. More broadly, I approach this presently constituted colonialscape, following Hunt (2013), by looking at the legally regulated encounters of consultation between the state and Indigenous peoples. The outcomes of the consultation demonstrate the state’s rigidness and commitment to liberal environmentalism, as well as its exclusion of Indigenous peoples’ strategies to protect nonhuman life. To develop this argument, I draw from legal geographers showing how law builds space and critical indigenous scholars who detail settler states’ logics of domination through legal instruments (Delaney, 2015; Hunt, 2013; Pasternak & Dafnos, 2018). Drawing on these literatures, section 4.2 suggests that the current state-mandated Indigenous consultation process reproduces a colonial relationship between the Chilean state and indigenous peoples. In addition, I draw from the work of political ecologists to argue biodiversity conservation has transformed its approach to Indigenous peoples, moving from purely biological and exclusionary forms to more interdisciplinary and inclusive ones. Yet, what seems like a sea change in the field of conservation is trumped by the Chilean state’s application of indigenous consultations in a way that de-politicizes social resistance. In section 4.3 I present the unfolding of the consultation process embodied in the BPAS. And in section 4.4 I scrutinize the colonial discourses/absences, practices and attitudes performed by the state during consultation. I draw from interviews with former and current state agents, Indigenous peoples representatives, human rights activists, reports on parliamentary sessions, internal reports by the Ministry of the Environment, and a 144 report on the consultation process elaborated by the National Institute of Human Rights (INDH), who attended some of the meetings as external observer. Finally, in this chapter I expand Andrews and McCarthy’s invitation (2014) to find points of engagement between legal geography and political ecology, and to delve into the study of law-making processes that affect nonhuman natures (see also the discussion in Chapter 1). I show how there can be points of engagement between legal geography and political ecology as they bear on the relationship between an environmental state and Indigenous peoples. While an evaluation of legal processes like FPIC can shed light on key dynamics in “the arenas of formal law, regulation, and policy,” political ecology contributes to examining how power and political economy shape the legal inscriptions that divide humans from nonhuman natures (Andrews & McCarthy, 2014, p. 10). Ultimately, my aim is to present the state as an environmental actor which, despite its unfinished character – an argument developed in Chapter 2 – continues to enforce internal and settler colonial modes of governance on Indigenous peoples (Coulthard, 2014; Gonzalez Casanova, 2003; Lepe-Carrión, 2017; Rivera Cusicanqui, 2010; Wolfe, 2006). How does the environmental state react, confront, or reassert colonial practices through institutional development? And what legal spaces result from the legally regulated encounter between the environmental state and Indigenous peoples? While the consultation logic that I will be examining in this chapter can shed light on the colonial impulse that remains embedded in 145 Chilean governing bodies,79 it also speaks to the legal spaces fabricated by – and which also produce – the environmental state. 4.2 FPIC’s legal geographies Over the past two decades, dozens of liberal democracies have incorporated Indigenous consultation under the Free, Prior and Informed Consent mechanism (FPIC).80 FPIC was designed as “a mechanism to regulate and operationalize the participation of indigenous peoples in environmental decision-making and political processes on questions where their interests are directly affected” (Fontana & Grugel, 2016, p. 252). It becomes mandatory when states ratify the International Labor Organization’s (ILO) Convention 169 (adopted in 1989) or the UN Declaration on the Rights of Indigenous peoples (UNDRIP) (adopted in 2007).81 However, FPIC has “no single internationally agreed definition;” hence, there are various ways to adapt it to a country’s domestic governing bodies (Fontana & Grugel, 2016). As Fontana and Grugel observe, the “translation of FPIC from international to domestic law (…) inevitably affects how the FPIC actually works” (Fontana & Grugel, 2016, p. 250). So, while this mechanism is mandatory once a country ratifies the international agreements named above, its implementation is informed by a country’s legislation. As a consequence, FPIC can be fulfilled and deemed successful without obtaining consent from the affected communities; it can be achieved by the sole act of 79 The intention here is to view the indigenous consultation as a governing body used by the state to reassert its jurisdictional sovereignty (for a similar argument see Perreault, 2015). 80 The private sector has also adopted the FPIC for development projects financed by the World Bank – a move that came after the International Finance Corporation published the Policy and Performance Standards on Social and Environmental Sustainability in 2006, under the Equator Principles (Dunlap, 2018). 81 There are other international agreements that consider the FPIC, but these don’t allude to Indigenous peoples (Goodland, 2004). 146 consulting. In addition, because of FPIC’s ongoing elaboration – or, as Fontana and Grugel call it, “international law-in-the-making” – there is confusion about where it is required. UNDRIP attempted to correct this in a report specifying that Indigenous groups should direct this mechanism and decide on the matters included in the consultation (UN, 2005, cited in Fontana & Grugel, 2016). However, not all signatory countries have incorporated this element into domestic law, while the outcomes of the consultation are nonbinding in most countries. FPIC is a legal procedure, one where the state (and the private sector backed by the state) convenes Indigenous peoples to discuss policies or development projects that require a legally regulated process of consultation to proceed. Moreover, because consultation is conducted to discuss a policy endorsed by the state, this mechanism also intervenes in (and produces) the historically and geographically situated relationship between the state and Indigenous peoples . For this reason, I examine consultation through the lens of legal geography, which is a field concerned with, in the words of David Delaney, “the legal fabrication of geographical phenomena” (2015, p. 98). The law constitutes space: “Law draws lines, constructs insides and outsides, assigns legal meanings to lines, and attaches legal consequences to crossing them” (Delaney 2015, p. 99). Legal spaces come to life through such processes. Take, for instance, property ownership of land – one key attribute of the nation-state. As Blomley observes (2003), private property is inherently violent and relational, since owning the land means others don’t have the right to access that land. And the state is the administrator of this land regime; it protects the right to have property and administers different kinds of punishments for violating this right. However, the state actively works to erase the violence of private property, making itself appear as the natural administrator of it, able to enact laws and sanction lawbreakers (p. 121). A closer look at the legal spaces that result from the work of state institutions enables us to 147 pay attention to the unnatural character of laws, to suspend the “belief in ‘The Law’ as such and in its self-authorizing claims of unity and coherence” (Delaney, 2015, p. 97). The Indigenous consultation process under scrutiny here can shed light on how the state resorts to the law to create categories, reinforce boundaries, and produce outcomes that benefit one group over another. The legal categories created and enforced by the state undoubtedly affect Indigenous peoples. Understanding these legal practices, the actors involved, and the outcomes they bring requires an analysis of how states legally relate to Indigenous peoples. Here, researchers examining settler colonial state mechanisms for governing Indigenous peoples – including environmental policies – are key. At the intersection of legal geography and settler colonialism, Hunt (2013) analyzed the violence implicated in the Canadian settler colonial regime, which seeks to impose its own legal apparatus over Indigenous systems of law and justice. She developed the concept of “colonialscape” to refer to “a way of seeing that naturalizes the relations of domination and dehumanization inherent in colonial relations” (p. 7). As she observes (p. 7), this way of seeing comes not only from the state’s side but also from Indigenous legal actors who negotiate domination alongside their legal geographies. The colonialscape is also useful to understand “the spatial rationales through which colonial relations are continually remade” (p. 60). Included in the rationales comprising the colonialscape is one key discourse and legal framework that has existed since the 15th century and used by European nations during that time to justify their desires to “acquire riches and empires around the world” (Miller, 2019) and, consequently, to occupy lands in America, Asia, and Africa. Namely, the Doctrine of 148 Discovery.82 This form of international law not only operated hundreds of years ago to legally authorize the subjugation of Indigenous peoples and the theft of lands, assets, and rights, it remains active today, justifying injustices against Indigenous peoples and Nations the world over (Miller, 2019).83 One of this doctrine’s constituent elements, according to Miller (2019), is the principle of terra nullius, a land that is “vacant or empty.” As Miller explains: “Under this element of the Doctrine, if lands were not occupied by any person or nation, or even if they were occupied but they were not being used in a manner that Euro-American legal systems approved, then the lands were considered empty, vacant, and available for Discovery claims. Euro-Americans often considered lands that were actually owned, occupied, and being used by Indigenous Nations to be terra nullius” (Miller, 2019, p. 41). Restricting the right to claim land in terms of Euro-American uses provides ample space for racist assumptions on what is, indeed, a proper use of the land. Most of the time, what was deemed adequate involved having “property” over the land. In this sense, terra nullius connects with a characteristic of colonial modernity described by philosopher Maldonado-Torres (2004, p. 37) as the “myth of the emptiness of lands and of rational peoples in those lands.” Closely related with terra nullius, the myth of emptiness carries the assumption that there are cultures that “do not possess an understanding of private property,” that are empty of “intellectual creativity and 82 According to Hunt (2013, p. 68), “The racially based doctrine of discovery is not only at the heart of justifications for the theft of Indigenous territories, but fundamentally denying Indigenous peoples’ humanity.” Williams (1990) elaborates an explication of the Doctrine of Discovery, presenting debates and improvements made in the 16th Century as well as critiques at the time when it was used in the United States. 83 As Robert Miller (2019, 36) explains, another key principle of international law is “intertemporal” law, which establishes that “modern-day territorial boundaries and land titles “are to be judged by the law in force at the time the title was first asserted and not by the law of today.” This principle allows lands and assets taken from of Indigenous peoples and Nations to remain as property of colonizers today. 149 spiritual values (…) an absence of ‘rationality.’” (Blaut, cited in Maldonado-Torres, 2004: 37). Another notion feeding the approach to land as empty is the myth of pristine nature (Denevan, 1992). A narrative of empty land became pervasive in nineteenth-century tales of pioneer settlers. According to Denevan (1992), this myth affected the way of understanding the influence of Indigenous peoples on the landscape before Columbus’s arrival in 1492. The landscapes across the Americas were deeply modified by Indigenous settlements while fauna and flora were affected as well. Moreover, Denevan (1992, p. 372) argues that the landscape of 1750 was “less humanized” than that of 1492. Laws and myths like these ones are still invoked to justify actions against Indigenous communities the world over. Terra nullius was repeatedly used to authorize conquerors’ land grabs, while it played a key role in Indigenous genocide across the Americas. Not only did Spain resort to terra nullius during its colonial campaigns, but the Chilean state mobilized it too to organize the settler occupation of Mapuche territory during the military campaign conducted between 1861 and 1891 (Calbucura, 2013, p. 417; also see Chapter 1). Another key example is Baldwin’s (2009) research on how racialized discourses appealing to terra nullius reappear in carbon management strategies in boreal forests. He argued that colonial depictions of “nobody’s land” – which he coined as carbon nullius – authorize political and economic access to forests, which are now viewed as carbon spaces. Advanced by conservationists’ campaigns, representations of emptiness allow isolating carbon from its biohistorical context, ignoring the long-standing and shared existence between Indigenous People and forests. Carbon nullius renders “the political question of land and carbon ownership” non-existent in climate change discourses (p. 242) while facilitating new value calculations based on universal, abstract notions of forests; for instance, forests as spaces open to carbon 150 offset markets. Baldwin’s analysis of colonial discourses embedded in carbon management narrows the focus to distinctive logics such as carbon nullius, which contribute to the circulation of racialized views around biodiversity conservation. In sum, concepts such as Hunt’s colonialscape allow me to approach Indigenous consultation as a site where colonial dynamics are remade and actualized. Terra Nullius, the myth of land empty of creativeness and the myth of pristine nature, on the other hand, provide a critical elaboration on the legal and discursive apparatus facilitating the dispossession of Indigenous lands and wealth. I elaborate my own interpretation of the Indigenous consultation process conducted in Chile in Section 4.5 by drawing from this conceptual framework. 4.2.1 Indigenous consultation and biodiversity conservation Western states’ violent stance toward Indigenous peoples is a trademark of modernity, and this trademark is obvious within conservation. In Chile, for instance, since its inception in 1907, the national protected areas system has taken and affected the lands of Indigenous People. As Garcia & Mulrennan note (2020, p. 222), the state of Chile’s aspiration to control the land has been historically related to the creation of protected areas (see also Youdelis, 2016, for the Canadian case). As environmental historians and political ecologists argue (Braun, 2002; Büscher & Fletcher, 2018; Dowie, 2009; Neumann, 2004; Rutherford, 2011; Ybarra, 2018), states have implemented conservation strategies in tandem with land control, assembling strategies to facilitate capital accumulation through land dispossession and grabbing (Benjaminsen & Bryceson, 2012; Büscher & Fletcher, 2015, 2018; Fairhead et al., 2012); exercising what Neumann called “state conservation territories” (Neumann, 2004; e.g. Ybarra, 2018); and, even promoting community-based conservation (Bluwstein, 2017; Goldman, 2003). 151 Yet, states have gone through institutional transformations to make such violence less obviously injurious or less visible. Governmental agendas have transmuted to make room for pressures advanced by Indigenous international movements advocating for the right to self-determination (Engle, 2010). The incorporation of FPIC deflated some pressures and anxieties in Western states, and now this mechanism has permeated into biodiversity management and its recent variant, conservation finance. Some of the biggest conservation NGOs like Conservation International and The Nature Conservancy promote the FPIC on their websites (CI, 2021; TNC, 2021), and well-known initiatives such as UN REDD+ have elaborated specific guidelines for conducting consultations with indigenous and non-indigenous communities (e.g. Anderson, 2011; Laughlin, 2013). Behind these endeavors to bring FPIC into biodiversity conservation are debates among conservationists on whether Indigenous peoples were inevitable threats to biodiversity or if they should be included in its protection. One of these debates appeared in the journal Conservation Biology in the early 2000s, when Schwartzman and co-authors (2000) opened an issue in ‘Conservation Forum’ claiming residents in the Amazonian forests were potent political actors who organized to defend these ecosystems from deforestation. The authors advocated for including Indigenous peoples in international conservation agendas, respecting their rights to self-determination, and shifting the focus from pristine wilderness to non-pristine, human-intervened protected areas. At a time when discourses connecting Indigenous and rural peoples with deforestation and biodiversity loss were often published in conservation journals (e.g. Deininger & Minten, 1999; Redford & Stearman, 1993), John Terborgh (2000) replied to Schwartzman and co-authors arguing that Indigenous peoples were inevitable destroyers of the environment: “Schwartzman et al. have their vision, which I claim is more backward than 152 forward-looking and which underestimates the potential of rural people to be perpetrators of environmental destruction” (Terborgh, 2000, p. 1359). Informed by his observations in North America – and ignoring United States’ environmental history of settler colonialism – Terborgh made fun of the prospect of having indigenous communities running conservation initiatives in the Amazon: “Now, dear readers, let me ask, how many of you have been drawn to visit tribal reservations in the United States by the promise of seeing wildlife?” (p. 1359-1360). Refuting Terborgh’s racist views is not the goal of this chapter (see instead Schwartzman et al., 2000, p. 1373). My point is that notions like Terborgh’s, which crystallize the old paradigm in conservation, were called into question by debates sparked by Schwartzman et al. and others, who saw value in considering Indigenous peoples’ role in the protection of biodiversity and in respecting their rights to self-determination (see also Chicchon, 2000; Colchester, 2000). The Durban World Parks Congress (WPC) held in 2003 and organized by the International Union for the Conservation of Nature (IUCN), crystallized some of the concerns over Indigenous rights mentioned above in a new conservation paradigm. Placing Indigenous peoples and non-indigenous communities at the center of conservation, the editorial note written by David Sheppard, which emanated from the congress, stated the following: A new deal is needed for protected areas, local communities and indigenous peoples (…) The international community has acknowledged the vital role of indigenous peoples in the achievement of sustainable development and has also recognised the value and importance of their traditional knowledge in managing natural and modified landscapes and resources; specific sites; species; sacred areas and burial grounds. (Sheppard, 2004, p. 3-4) 153 While indigenous representatives, ideas, and propositions appear throughout the congress’s products, the Durban Action Plan condensed crucial elements to start addressing the controversial outcomes that conservation has had for Indigenous peoples. Seeking to address land dispossession and connecting conservation with FPIC, the Action Plan pushed for the recognition and guaranteeing of “The rights of Indigenous peoples, mobile peoples, and local communities” concerning “natural resources and biodiversity conservation” (Brosius, 2004, p. 52). It also advised implementing “participatory mechanisms for the restitution of indigenous peoples' traditional lands and territories that were incorporated in protected areas without their free and informed consent by 2010” (Brosius, 2004, p. 52). The plan called for states to approve the UN draft on the rights of Indigenous peoples (UNDRIP) and to ratify the ILO Convention 169. In addition to these calls, there was a message addressed to the CBD signatory parties urging states to ensure Indigenous peoples participation in the creation and management of protected areas and to put mechanisms in place to secure their share of the benefits obtained from them (p. 53). In a short commentary, environmental anthropologist, Brosius, highlighted that the congress enabled a space for Indigenous peoples participation. Nonetheless, he reminded conservationists of the tasks still ahead in terms of Indigenous participation and conservation biology: “The challenge (…) is to seek productive terms of engagement. We cannot afford to perpetuate the polemic that the goals of conservation and indigenous rights are at odds with each other” (Brosius, 2004, p. 54). John Terborgh, who also attended the Durban Congress, complained about “The relegation of science to a footnote at a conservation event of global significance.” He further argued that political agendas advanced on topics like poverty alleviation and social justice “dominated and drowned out the discussion of themes more directly 154 related to conserving nonhuman life on this planet” (Terborgh, 2004, p. 55). Considering Terborgh’s attitude toward Indigenous modes of conservation, published in Conservation Biology (2000), his critique of the congress was moderate. Still, it reflected notions of conservation biology as a discipline that privileges the Western scientific approach to nature that reinforces the nature-culture divide. So, what happened after the Durban Parks Congress’s insistence on including Indigenous peoples in conservation initiatives? Although the World Parks Congress held in Sydney in 2014, celebrated the “new paradigm” ushered in ten years before (IUCN/WPC, 2014), the call to return lands taken in the name of conservation was abandoned to privilege FPIC adoptions instead. As I mentioned, FPIC was incorporated by many countries and international conservation organizations like CI or TNC and world-known projects like REDD+. However, because ratifying countries of ILO Convention 169 and UNDRIP have adapted FPIC to their domestic legislations and needs, this mechanism is mostly nonbinding and not tied to obtaining consent from Indigenous peoples. Moreover, FPIC can be implemented differently depending on interpretations of the UNDRIP (Papillon et al., 2020). While this ambiguity may create opportunities for Indigenous political agency (offering the chance to render these interpretations to indigenous legal traditions and worldviews), it can also allow states to reassert power to facilitate investments, to the detriment of Indigenous self-determination. The effects of consultations can further de-politicize Indigenous peoples when a project’s legitimacy is obtained without a real space for public participation. And, while the terms of involvement should be settled with Indigenous peoples, the case is that these are mostly constrained by practices of accountability and, most importantly, by what experts can indeed solve (Li, 2009). As Li (2009, p. 224) argued, after observing Environmental Impact Assessment 155 (EIA) consultations on mining projects in Peru, consultation procedures are contingent upon the “solutions and interventions that experts have to offer.” Her work on EIA consultations indicates that practices of accountability tend to produce the necessary conditions for states and firms to “check themselves – in terms that they themselves create” (p. 225). The same consultation principle Li analyzed applies to conservation and park management on Indigenous lands. Youdelis (2016) observed, for instance, the Jasper Aboriginal Forum organized to discuss co-management strategies with First Nations’ representatives and Jasper National Park, Canada. Drawing from interviews with First Nations’ representatives, Youdelis (2016, p. 1377) identified “colonial relations of power and state-led management,” which constantly threatened Indigenous peoples involvement and decision-making. Despite spending considerable resources inviting Elders to give their views on the park’s management, the Forum “neutralized political challenges from First Nations” (Youdelis 2016, p. 1381).84 The primary way of achieving this was for park managers to avoid discussions on Aboriginal and Treaty rights during the Forum meetings (p. 1382). Youdelis points out that park managers placed these rights outside of their mandate to avoid dealing with land issues – reiterating the experts’ practice described by Li. Blocking fundamental discussions on the land, park managers reinforced support for the notion that “First Nations’ rights to the land were extinguished when the park was established” (Youdelis, 2016, p. 1382). Another strategy to keep the Forum free from Indigenous politics was to avoid formal consultations whenever Indigenous representatives did not ask for them. This meant that consultations would not take place during the Forum but only when First Nations explicitly 84 Youdelis compared the creation of the Forum with an antipolitics machine – quoting on James Ferguson’s work (1994) – to emphasize the depoliticizing effect of the consultation. 156 requested them; however, according to the Indigenous representatives Youdelis interviewed, this protocol was never explained to them (p. 1383-1384). Apart from two participant First Nations that requested further consultation with private touristic developers, the main perception held by First Nations was that it is extremely hard to articulate a response to the Park’s protocols when those were not disclosed. With procedures like these, the Forum was less of a conversational space and more of a strategy to validate the park's existence on Canadian soil (Youdelis p. 1384). Perrault (2015) raises a similar point on Bolivian state-led indigenous consultation around extractive projects. He argues consultation circumscribes public opinions at the local level while it channels discontent through discussion mechanism validated according to experts’ norms. He analyzed public forums. In one of these there was a question-and-answer session where a mining company representative could choose which questions to address and how, expanding on topics he deemed relevant. The consultation mechanism quickly raised doubts among the audience. Some of them voiced their concerns aloud, demanding that their questions be answered (p. 447). Perreault claims that consultation “functions as an antipolitics machine, intended to depoliticize contentious processes that entail profound transformations of peoples’ lives, livelihoods, and landscapes” (p. 448);85 it is a “performance of participation,” a “technology of government” oriented to obscure the uneven power relations that underpin large-scale resource extraction (p. 449). Despite critiques of the consultation mechanism – and acknowledging their key insights – it seems that conservation’s dismissal of indigenous peoples is not as blatant as it used to be . 85 As Youdelis, Perrault also drew from James Ferguson’s early work to characterize the consultation process as an antipolitics machine. 157 The narratives on land dispossession suffered by Indigenous peoples and justified by settler conservation imaginaries of pristine and Edenic wilderness, abundantly analyzed in North America (see for instance Sandlos, 2008), are more muted now. Conservationists and states who have ratified the ILO Convention 169 and UNDRIP are starting to recognize conservation initiatives of Indigenous peoples. Or, at least, they conduct Indigenous consultation when conservation projects are developed on their lands. That is the case with the Villarrica National Park (presented at the beginning of this chapter) where, 81 years after taking the lands of Pewenche families, the state conducted an Indigenous consultation to decide on the granting of private licences to run sport facilities. However, as I discussed above, the consultation does not guarantee proper inclusion and even less the right to refuse any given initiative. What was a strong call by the Durban Action Plan to return indigenous lands taken in the name of conservation resulted in environmental NGOs and countries adapting FPIC to their own nomenclatures and keeping the consultation nonbinding. Tensions among Indigenous peoples, states, and the corporate sector certainly escalates when consultation mechanisms like FPIC exclude the advice of Indigenous representatives and denies the right to refuse extraction-based development or conservation projects. As the cases discussed above indicate, consultation can legitimize state jurisdiction over Indigenous peoples by applying codified procedures that authorize extractive initiatives. So far, however, the research discussed in this chapter focus on development projects and park management initiatives, while legal instruments – such as the BPAS bill – have received far less attention. Are similar dynamics playing out in the Indigenous consultation conducted for this bill? How are the tensions described above manifest? If and in what ways does this consultation repeat “colonial relations of power,” thinking and doing policies, even in subtle ways? Considering FPIC’s 158 attention to Indigenous demands for land rights – albeit without binding procedures – how is the Chilean state applying consultation about this legal instrument that is designed to protect biodiversity? In the next section, I briefly describe the legal body that adapts the consultation mechanism to the state legislature. Then I present the story of the Indigenous consultation associated with the latest piece of Chile’s environmental legislation, the BPAS. 4.3 The BPAS’s Indigenous Consultation The governing text regulating Chile’s duty to consult is Supreme Decree 66, enacted in 2013 to replace the criticized Decree 124.86 Working under Sebastian Piñera’s first administration (2010-2014), the Ministry of Social Development spent three years working on Supreme Decree 66 and incorporating the recommendations of the ILO Convention 169, but only to a limited extent. Some elected officials who voted for Decree 66 requested the Constitutional Tribunal87 to assess this law according to Chile’s legal framework (Ugarte, 2021, p. 221). The Tribunal argued the consultation could not be understood as the exercise of sovereignty by Indigenous peoples: “[the consultation] constitutes a way of gathering opinions, which will not be binding nor will affect the exclusive power of the authorities the Constitution stipulates” (Article 13 of Constitutional Tribunal’s ruling, 2008; cited in Ugarte, 2021, p. 222). By making it nonbinding, the Tribunal severely limited the extent of the consultation (Ugarte, 2021; Astudillo Becerra, 2017).88 86 Supreme Decree 124 was enacted in 2009, after Chile’s ratification of ILO Convention 169 in 2008. However, the OIT and other national human rights institutions offered an assessment where they pointed to the decree’s shortcomings. Among these, the decision of conducting a consultation was exclusively left to governmental units, while investment projects were left out of this process. For more details, see Astudillo-Becerra (2017, p. 139-140). 87 The Constitutional Tribunal is an independent government body with the duty to ensure that all laws follow the Constitution. https://www.tribunalconstitucional.cl/ 88 As Astudillo-Becerra observes: “The Consultation as raised by the State of Chile, in the Supreme Decree No. 66 of 2013 and in D.S. No. 40 of 2013, does not comply with international standards, nor with the conditions that have 159 Besides ruling out binding consultation, state agents crafting Supreme Decree 66 introduced additional features that further constrained the mechanism. According to Supreme Decree 66: The responsible body must make the necessary efforts to reach the agreement or consent of the affected peoples, complying with the principles of the Consultation through the procedure established in these regulations. Under these conditions, the duty to consult shall be deemed fulfilled even when it is not possible to achieve said objective. (D.S.66, article 3, cited in Astudillo Becerra, 2017, p. 146 emphasis mine) According to Astudillo Becerra (2017), the outcome of Supreme Decree 66 goes against the spirit of the ILO Convention 169 in three fundamental ways. First, the consultation does not entail consent. It is not intended to reach an agreement; instead, implementers of the consultation fulfill its duty through the sole act of informing Indigenous peoples of measures that will affect them. The way state agents built this exemption into the law reflects an ambiguity over the ILO Convention and reveals an approach that seeks to give the state advantage over Indigenous peoples. Second, Supreme Decree 66 does not regulate consultations when those pertain to investment projects that enter the Environmental Impact Assessment System (EIA System).89 been established with respect to it by numerous pronouncements of the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights” (Astudillo Becerra, 2017, p. 148). 89 "The resolution of environmental qualification of the projects or activities that enter the Environmental Impact Assessment System, in accordance with the provisions of article 10 of Law No. 19,300, and that require an indigenous consultation process ... will be consulted according to the regulations of the Environmental Impact Assessment System”. (D.S.66, article 8, cited in Astudillo Becerra, 2017, p. 141). Similar than Supreme Decree 66, Decree 40 leaves the consultation without the need to reach a consent or agreement: “In the consultation process referred to in the previous paragraph, the indigenous peoples affected will participate exclusively and it must be carried out in order to reach an agreement to obtain consent. However, failure to achieve this purpose does not imply the impairment of the right to consultation.” (D.S.66, article 3, cited in Astudillo Becerra, 2017, p. 146). 160 Instead, those consultations are ruled by Supreme Decree 40, which regulates the “Framework Environmental Law” (Law 19,300 or Ley de Bases del Medio Ambiente). One of the main limitations caused by this measure is that the EIA System can – and does – avoid fundamental rules included in Supreme Decree 66. For instance, consultations conducted in the context of an environmental evaluation are limited to a shorter period than ones conducted under Supreme Decree 66, contravening the duty to provide proper procedural mechanisms to implement the consultation (such as enough time), and leaving to the EIA System the decision on which projects need consultation (Astudillo Becerra, 2017, p. 144). Moreover, the EIA System implements the consultation when it is too late to change or reject investment projects (Ugarte, 2021). According to Ugarte, investment projects were excluded from Supreme Decree 66 to “delay and reduce Indigenous peoples’ ability to participate in decision-making, and (…) [to] reduce legal uncertainty for the state” (2021, p. 229). She interprets the assigning of investment projects to the EIA System as a strategy to fragment Convention 169 and to keep Indigenous consultations “only to the extent that the practice of consultation does not threaten the stability of government processes” (p. 230). Third, consultations in Chile are not culturally aligned with Indigenous worldviews. While Supreme Decree 66 does not engage cultural appropriateness in its laws, Supreme Decree 40 directly disregards the requirement by establishing a reduced time frame set by the EIA System but not aligned with Indigenous peoples worldviews and engagements with time (2017, p. 145). This partly explains the discontent of many Indigenous peoples, who view the consultation mechanism as a tool to facilitate investment and extractivism. A letter sent by Aymara representatives to UN Special Rapporteur, Victoria Tauli-Corpuz, claims Decree 66 does not fully respect the ILO Convention 169. Its true purpose is “to facilitate interventions in 161 Aymara territories in matters of investment projects and to invalidate the legal defense that Aymara and Indigenous organizations carry out in the courts of justice" (Corresponsal, 2014). Finally, one more thing troubles the Chilean consultation mechanism. Even though the state ratified the UN Declaration on the Rights of Indigenous peoples (UNDRIP) in 2009, state officials left out this Declaration when crafting Supreme Decree 66 (Ugarte, 2021). According to Ugarte, this was a deliberate move by state agents to disregard “all references to the notion of free, prior, and informed consent (FPIC), which goes well beyond Convention 169’s notion of consultation” (Ugarte, 2021, p. 224). To explain the exclusion of UNDRIP from Supreme Decree 66, state agents interviewed by Ugarte argued that the only legally binding agreement Chile had signed was ILO Convention 169. Even though the state ratified UNDRIP, this agreement is not binding. This allowed agents to shun explanations about their decision. Moreover, as Ugarte argues, state agents were terrified of giving space to Indigenous peoples for advancing proposals that would threaten the state’s authority (p. 224). Specific findings like hers are useful in the next section, where I review the unfolding and outcomes of the indigenous consultation conducted on the BPAS. 4.3.1 An elusive Indigenous consultation The Ministry of the Environment presents the Indigenous consultation as a major achievement and a necessary, unavoidable step for approving the BPAS, responding to Chile’s commitment with the ILO. This consultation was the first one conducted by the Ministry of the Environment and therefore it required a specific training program. Representatives of the Ministry in every province set to study the Consultation and the bill that created the BPAS. They were also commanded to list the “most relevant” indigenous leaders and ancestral authorities to enroll in 162 the process (MMA, 2017). Almost two thousand Indigenous peoples organizations participated, attending 33 dialogues with state agents across the country, distributed over eleven months. One state agent claimed the consultation on the BPAS was “the most expensive consultation since 2008,” when Chile ratified ILO Convention 169 (SE8, interview, 2020).90 However, the period prior to the BPAS’s Indigenous consultation was marked by opposing understandings of this process by state agents, probably influenced by the fact that Chile had ratified the ILO Convention 169 just recently. 90 The assertion by the state agent seems unlikely considering that the Ministry of the Environment has conducted only two Indigenous consultations since its inception in 2010 – as opposed to, for instance, the Ministry of Public Works, with 46 consultations on its list (Aninat S. & Hernando, 2019). 163 Figure 4.1 BPAS and Indigenous consultation’s timeline. In light brown are Chile’s agreements with ILO Convention 169 and UNDRIP, as well as the state approvals of governing bodies regulating the consultation; in dark grey are all the events related with the BPAS bill’s legal processing. It is important to keep in mind the presidential periods: Michele Bachelet’s administrations cover from March 2006 to March 2010 and form March 2014 to March 2018, while Sebastian Piñera’s ones cover from March 2010 to March 2014 and from March 2018 to March 2022. Source: Elaborated by author. 164 As Figure 4.1 shows, shortly after the ratification of ILO Convention 169, the state introduced Decree 124, the first governing body to regulate the consultation. However, Decree 124 presented a series of deficiencies that were publicly exposed by indigenous representatives, and finally the state derogated this law and created a new one – Supreme Decree 66 (Astudillo-Becerra, 2017). In this context, the state team who submitted the first version of the BPAS bill in 2011 took advantage of Decree 124’s legal weaknesses and avoided the consultation altogether (see Figure 4.1). One former state agent who participated in the 2011 bill complained in an interview that with the withdrawal of the 2011 bill the Ministry “lost the time invested at the parliament (…) it missed the possibility of not requiring the Indigenous consultation, as well as all the agreements achieved in the meetings with key biodiversity stakeholders (…)” (SE10, interview, 2020). One might think that pushing this bill was the logical step for the state as it meant avoiding the costs of conducting the consultation. But the reasons for withdrawing the first bill – extensively reviewed in chapter 2 – superseded the benefits of avoiding the consultation. Among these, the massive transferal of CONAF workers to the Ministry of the Environment without legal guarantees that they would keep their jobs, resulted in the bill’s widespread rejection by lawmakers and during Bachelet’s administration the introduction of a new bill. Further in the same interview, this former state agent argued there was no need to convey a consultation about the legal aspects of the BPAS. Sufficient were individualized consultations when Indigenous lands were directly affected: The bill passed an evaluation of the government’s experts on Indigenous matters and the parliament and the conclusion was that the bill entered in 2011 did not require indigenous consultation, since what the bill established were the procedures to generate protected areas, their management plans and species 165 management plans. When these procedures involve indigenous areas, those specific projects should be submitted to indigenous consultation, but not the bill that generated the legal framework for that. (SE10, interview, 2020). After bill 7,487-2’s withdrawal, the state introduced bill 9,404-12 but this new piece of legislation did not include the word “indigenous” in the document – a gesture read by human rights advocates in the Citizen Observatory as an attempt to avoid consultation altogether (CN4, interview, 2020). Not having this word would allow the state to push the bill without assuming a relationship with Indigenous peoples. However, after the pressure by Indigenous representatives and advocates, the government finally allowed for consultation in 2015, one year after the bill entered the parliament; but it was not easy given that approval of Supreme Decree 66 had only recently passed (see Figure 4.1). The pressure exerted by Indigenous representatives crystallized in an intervention at the parliament where Mapuche lawyer Pablo Cayul demanded respect for “the rule of law” (estado de derecho) and insisted the upholding of the state’s commitments to ILO Convention 169, UNDRIP and the CBD. Under this principle, Cayul argued consultation was mandatory for the BPAS, and the state should conduct the consultation “with the same rigour it applies to the Mapuche People when they mobilize to vindicate their rights” (Primer Informe de Comision de MMA, 2015, p. 87). Strategic and ironic at the same time, Cayul’s request that the state applies the same legal rigour evinces the tension between Indigenous peoples and the state, whose political strategy in the Araucania Region91 has been marked by violence and the persecution of Mapuche political leaders.92 91 The Araucania is the name given by the state of Chile to the territory that is contained by the state and part of the Mapuche Wallmapu. 92 I comment on the historical roots of this conflict in Chapter 1. 166 In relation to state protected areas located on indigenous lands, Pablo Cayul reminded the state of its role in the land dispossession that started in 1861. In the words of lawmakers who elaborated the session’s report, there was “a practical problem” caused by the “overlap” of three state protected areas with indigenous lands93 (Primer Informe de Comision de MMA, 2015): the Lauca National Park (on Aymara lands), the O’Higgins National Park (on Kawéskar lands), and the Villarica National Park (on Mapuche lands). After bringing up these cases, Pablo Cayul reminded the state of the existence of Indigenous conservation territories, a category mobilized by the Indigenous and Community Conserved Areas Consortium (ICCA) and the IUCN, as well as adopted by various Indigenous groups in Chile. He went further to claim the state “has ignored the importance of Indigenous peoples in the conservation of biodiversity (…) when the role of indigenous communities is turned invisible, respect is missed and dialogue shatters because the other is not recognized as a subject” (Primer Informe de Comision de MMA, 2015, p. 87). Besides Pablo Cayul’s intervention, more representatives requested consultation and introduced conservation projects managed by indigenous organizations in Chile. This was the case of Joaquín Meliñir, from the community of Quinquén, 52 Mapuche-Pewenche families who run the Pewenche Park located in Lonquimay. Displaying graphs and pictures, he presented projects whereby his community engaged to protect and recuperate biodiversity (Primer Informe de Comision de MMA, 2015, p. 84). Gustavo Paillamanque, representative of the Indigenous Association Mapu Lahual, requested the state to include the work done by indigenous 93 Despite Pablo Cayul mentioned these cases, the final edition of the report elaborated by the special commission added a paragraph to introduce the topic on which Cayul spoke. The word choice “practical problem” and “overlap” were added by the commission. 167 communities in biodiversity conservation, arguing this work is “a valuable contribution to national society, despite so far it has only received the support from Indigenous peoples themselves” (p. 85). Like Pablo Cayul, Paillamanque emphasized how the state unfairly dismissed indigenous contributions to biodiversity conservation. These indigenous representatives’ interventions push back at more than two hundred years of state tactics in marginalizing and devaluing Indigenous peoples. First, they recognize and call out the discursive move to dismiss the “other” as a subject, to deny their humanity. Second, they rendered visible indigenous strategies to protect biodiversity, which proved their assertion of the centrality of Indigenous knowledges for environmental policies. And third, they claimed the state neglected indigenous knowledge about biodiversity conservation. All these arguments speak of a profoundly asymmetrical relation of dependency, where Indigenous peoples need the state’s legal and financial support to live on their ancestral territories. I analyze these points further in the next section. In sum, two administrations (from opposite political sides) tried to leave out Indigenous consultation: the first overtly avoided it taking advantage of Decree 124’s legal weaknesses, while the second agreed to the consultation only after pressures put on it from outside the state apparatus. Moreover, consultation would not have existed had indigenous representatives not attended parliament in 2015 (see BPAS’s timeline in Figure 4.1). The colonial move of silencing Indigenous peoples’ voices and views on a matter as relevant to them as the management and care of nonhuman life – a matter that is legal as well as it is physical – became palpable by the state’s attempts to avoid consultation. In what follows, I present the unfolding of the consultation across the country. 168 4.3.2 State planning and control The BPAS consultation commenced on the wrong foot. Contravening the UNDRIP’s FPIC requirement to implement consultations prior to their development,94 consultation started two years after the BPAS bill entered Parliament in 2016 (as Figure 4.1 shows). Furthermore, the executive proposed amendments to the bill and lawmakers voted them in during the middle of the consultation process. The Minister of the Environment backed this move arguing the amendments did not affect Indigenous peoples (INDH, 2018, p. 8). However, organizations watching the procedure quickly refuted his point: In all cases, these [amendments] are matters likely to affect Indigenous peoples. Regarding these and other matters not included [in the consultation], indigenous communities and organizations have spoken out (…). The decision of the Ministry of the Environment to advance in the discussion of the bill, even when the Indigenous consultation has not concluded, breaks the climate of trust and mutual respect that should prevail in a consultation process conducted in good faith on a matter as important to Indigenous peoples as the conservation of biodiversity in their lands and territories. (Observatorio Ciudadano, 2017). Besides insisting the amendments did affect Indigenous peoples, activists brought into question the government’s unilateral selection of the matters consulted. As ILO Convention 169 (Article 7.1) and UNDRIP establish, Indigenous peoples should define the aspects consulted on any given administrative measure that affects them. Further, the state must put in place proper 94 According to FAO’s FPIC Manual, prior means that “consent is sought sufficiently in advance of any authorization or commencement of activities, at the early stages of a development or investment plan, and not only when the need arises to obtain approval from the community” (FAO, 2016, p. 15). 169 conditions for this deliberation. Yet, the governing text that regulates consultation in Chile (Supreme Decree 66) does not include this requirement. Moreover, the Ministry of the Environment submitted to consultation only five topics included in the BPAS bill: 1) the procedure to create protected areas, 2) protected areas management models, 3) private licence granting criteria inside protected areas, 3) the new special category “indigenous conservation,” 4) infractions inside and near protected areas, and 5) economic instruments to foment biodiversity conservation (MMA, 2018, p, 43-70). The state selection followed article 7 of Supreme Decree 66 (MMA, 2018, p, 10), which specifies the measures to be consulted, while it gives this task to the state, leaving out the opinions of Indigenous peoples. The selection of these matters was carried out without consulting Indigenous peoples with the necessary amendments to allow the selection voted in the middle of the consultation process. Indigenous representatives believed that this was a result of Supreme Decree 66 (see section 4.3 of this chapter), which led them to request the state to withdraw this Decree during the first years of the BPAS legislation process (INDH, 2018). Moreover, Indigenous organizations in the Metropolitan Region refused to participate in consultation and blamed Supreme Decree 66. Other groups threatened to leave the consultation process, tying their attendance to a recognition of their rights, appealing to international treaties endorsed by Chile as well as insisting on the rejection of Decree 66 (INDH, 2018, p. 8). The consultation was organized in two stages when the state met with Indigenous peoples: the information stage (where the state provided the elements of the bill to be discussed) and the dialogue stage (where Indigenous People presented their views and suggestions). In both stages the meetings took place in fifteen regions, following the administrative units that comprise Chile. While this geographical distribution decentralized the consultation, it did not conform 170 with the geographical distribution of the different nations of Indigenous peoples. Consequently, it resulted in different nations attending the same workshops, without discussions oriented to each of them. This meant that consultation avoided culturally specific views, contravening the ILO Convention 169’s recommendation that consultation addressed cultural appropriateness. Moreover, according to the National Institute of Human Rights (2017, p. 18), because of different methods of consultation across regions, there were asymmetries in the attendance and in the dialogues with the state. But beyond these problems, during this stage Indigenous peoples suggested adding a diverse set of amendments to the bill. In Table 4.1 I synthesize the main additional proposals and the resulting amendments: 171 Proposals by Indigenous peoples Organizations Amendments made to the bill Procedure to create Protected Areas (PAs) (Art. 24, 25, 26) − The creation, modification or disaffection of a PA that totally or partially involves territories owned, occupied or used by indigenous peoples or communities, or to which they have traditionally had access for their traditional and subsistence activities must be submitted to the consultation of indigenous peoples, according to the standards of ILO Convention 169. − The consultation must be binding, and the consent of the indigenous peoples must be obtained. − Do not create PAs in territories under conflict and/or under recuperation. − Recognize territorial communities that may not have legal personality (e.g. lof). − A technical report must be made containing the socio-cultural, socio-environmental and historical characteristics of the area; as well as incorporate the worldview, knowledge and spiritual relationship of communities and peoples. In addition, consider the indigenous heritage value, the background on the use of resources, the territory and significant sites, in order to protect the culture and practices of indigenous peoples. − Create and/or recognize Territorial Councils (indigenous territorial communities and organizations/traditional authorities and representatives of affected communities), as spaces for dialogue on matters related to the creation, management and modification of PAs and as a counterpart of the State in matters of biodiversity and protected areas. − Communities may request the creation of PAs in territories that are not their property as long as they are located in the territory ancestrally used by them. Article 54(g): the BPAS will promote the participation of local communities and indigenous communities in conservation, as well as respect and preserve their knowledge and practices. PAs Management Model (Art. 27) − Advance towards the administration of state PAs by indigenous communities. Include the PA governance principle according to the Convention on Biological Diversity and the recommendation of the IUCN. Allow communities to carry out educational, touristic, environmental or other undertakings within the state PA, taking care of biodiversity and Itrofil Mogen under the teachings of the Mapuche culture. − Participation of indigenous communities in the creation of management plans. − The revenues collected will be administered by the indigenous communities to implement the management plans and other priorities that they define. − Fee exemptions for those who enter the PA for ancestral uses or customs. − If a private PA is located in territories with indigenous ancestry or close to indigenous territory, indigenous people may participate in their administration. − Disengage portions of PAs to make traditional use of resources by indigenous peoples, allowing the return to ancestral places of habitat with the establishment of suitable places for indigenous housing. Article 72: the BPAS will be able to celebrate agreements with local communities, indigenous communities, and other organizations. Article 74: fee exemption for indigenous peoples who enter PAs to perform ancestral practices. Article 78: management plans will promote the participation of local and indigenous communities. Criteria for granting concessions inside PAs (Art. 41) − Define the criteria for granting concessions in the consultation process prior to the creation of the PA. − Prohibit the concession in indigenous territories to non-indigenous private third parties. − Concessions should be transferable only between indigenous communities. − Communities must have a share in the provision of services that are delivered within the PAs and a share in the benefits generated. − Expand the range of activities to be carried out by communities within and around the PAs, such as collection and subsistence activities to ensure the preservation of life forms based on cultural, medicinal, nutritional and political values that represent the conservation of biodiversity for indigenous peoples. − The concessions on scientific research and education should promote indigenous heritage value and be the preferred criterion for granting it. − The granting of education should include an intercultural component based on ancestral knowledge, the cultural-spiritual value of natural resources in the area, such as the newen (spiritual force), the kimun (knowledge) and the worldview. − The results of scientific research grants should be disseminated and delivered to schools and public institutions in the PA. Article 84: concessions will promote the participation of local and indigenous communities. When located in Indigenous lands, concessions will have the duty to promote indigenous knowledge and world view. 172 Special category for conservation on indigenous lands (Art. 43) − Incorporate the concept of indigenous territory. − Proposals to name this new category: " Indigenous Peoples Territorial Areas;" "Natural Areas with Indigenous Significance and Belonging;" “Autonomous Territory of Indigenous Conservation (TACI);” “Native Peoples Territory of Conservation". − Comprehensive protection granted to the new category, including soil, subsoil, water resources (glaciers, rivers, wetlands, rivers, menokos, trayenko and groundwater), and cultural heritage. − That no investment or development project, public or private, affects, intervenes, or contravenes the customary laws of indigenous peoples in the special category. − Create a new category to protect ancestral coastline with customary use and administered by riverside and neighboring communities. Article 56(j) and 66: PA new category: “Indigenous Peoples Conservation Area.” Art. 69: when the creation of a PA falls over or next to Indigenous lands, a report with cultural details will be requested. The Ministry will develop the rules to guide the creation or elimination of PAs, which will include a protocol to conduct Indigenous consultation when required. Infractions outside and inside PAs. (Art. 92 and 93/117 and 118) − Communities must develop fully within their territory, have the right to develop subsistence activities, exercise ancestral practices, which should not be considered as an offense inside and outside the state PAs. − Free transit inside state PAs for Traditional Authorities and local indigenous communities. − In the PAs of indigenous territories, sanctions should be in agreement with traditional authorities or community representatives, according to the respective management plan and in accordance with indigenous peoples’ customary laws. Article 74 (see above). Article 117 and 118: infractions will not be considered as such when conducted by Indigenous Peoples’ ancestral customs (in state and in private PAs). Economic instruments to promote biodiversity conservation − Create a special fund for indigenous peoples. − Create economic instruments to support traditional biodiversity conservation practices. − Incorporate the recognition and promotion of traditional knowledge, practices or activities of indigenous peoples that contribute to the conservation of biodiversity. − The economic instruments to conserve biodiversity should consider not only the ecological value, but also the ancestral cultural component associated with the territories of indigenous peoples. − Promote environmental recovery projects. − Create a special fund for reforestation with native species and incentives for their conservation. − Consider the needs of indigenous communities and peoples in the application of economic instruments to support biodiversity conservation, in relation, for instance, to isolated territories and climatic adversity. Likewise, train community members. − Compensate the damages caused to communities by protected species (cougar, swans, others). Control by the State of the overpopulation of protected species. − Priority to grant projects to indigenous communities and associations. − Ambiguous definition of the Biodiversity Compensation Bank. Interpretations could affect indigenous communities related to PAs. − The resources generated by mitigation or compensation actions must be destined to the affected territory. − In marine protected areas, allow the free navigation of vessels of smaller draft and length, artisanal fishing, tourism and transport of wood. − Prepare the inventory in conjunction with local indigenous communities and protect its components from the registration of patents or names. Article 49: the state will promote sustainable practices, including those of local communities and indigenous peoples. Such promotion will take place as, e.g., certifications, eco-labelling, and contracts for the retribution of ecosystem services. Table 4.1 Summary of the proposals made by Indigenous peoples during the consultation on the BPAS bill. Articles in left column correspond to bill 9,404-12 before the modifications voted in 2016; articles in right column belong to the version after the consultation. The proposals were selected from the report elaborated on the consultation (MMA, 2017), while the amendments to the bill were identified in the latest version of bill 9.404.-12, currently in the Chamber of Deputies. Source of Table: elaborated by author. 173 As Table 4.1 shows, the proposals advanced by Indigenous peoples during the dialogue stage abound. Ranging from indigenous-led state protected areas and collaborative decision-making models to a national fund for Indigenous conservation practices, indigenous organizations looked for collaborations with the state. Far from merely a gripe, the indigenous amendments aspired partially to heal the damage caused by the conservation agenda by working with the state to stimulate protection and recuperation of biodiversity. Yet, the Ministry of the Environment brushed them away in the final amendments introduced to the bill. Despite that, state agents running the dialogue sessions seemed willing to incorporate a few suggestions raised by Indigenous organizations (as indicated by the Ministry of the Environment’s report on the consultation; MMA 2017). Specifically, the state modified the bill in two ways. First, it incorporated the new category “Indigenous peoples Conservation Area.” Here, however, state agents took this decision before consultation, not as its result (MMA, 2017, p. 9). A representative of the ICCA Consortium explained that such nomenclature did not help indigenous conservation because it framed initiatives within the liberal notion of private property. Centering conservation around titled land restricted indigenous initiatives because only communities or individuals who held titles were considered valid agents granted with the state’s formal recognition and funds to run their initiatives (CN4, interview, 2020). This is illustrated by the petition made by Indigenous peoples for legal recognition of communities without legal status (see Table 4.1, first row). The state’s prioritization of private property over indigenous collective schemes is in effect a wink to private conservation initiatives: “[the bill] recognizes in the first place the efforts of private parties, which are new efforts, with many resources, with a lot of money, and it fails to recognize ancestral efforts that have a worldview that sustains relationships and protection, of how they live with nature. It 174 fails to recognize that over the other and gives much more support to the private [initiatives] than to the communitarian” (CN4, interview, 2020) The second amendment was the decriminalization of harvesting inside state-protected areas for Indigenous peoples performing customary practices. However, the bill does not specify which practices are allowed and whether Indigenous peoples have a say in this decision. Besides these two aspects, all the amendments are nonbinding; it is not mandatory for the state to pursue them. Phrasings like “[the state] will promote sustainable practices” and “[the state] will be able to celebrate agreements” in the bill’s articles evidence this move (emphasis mine; see Table 4.1, second column). The amendments also show a conflation of Indigenous peoples with non-indigenous local communities as if they were equals (see Table 4.1, articles 49, 54, 72, 78, and 84). To be clear, this point is not to refute the role of non-indigenous communities, but it is important to note that by equating local and indigenous communities, the state dismissed the fundamental difference between those who ancestrally occupied the land and those who settled in those lands without consent of Indigenous peoples. This conflation contradicts the ILO Convention 169 and UNDRIP’s objective of respecting and safeguarding Indigenous rights; it enacts old assimilation tactics for governing Indigenous peoples, tactics now transferred to Chilean environmental politics. When consulted over economic instruments for biodiversity conservation, many organizations suggested the creation of a special fund to cover indigenous conservation practices. It would prioritize reforestation with native species and environmental recovery plans (see Table 4.1, last row). Fundamentally, various organizations pushed for adding an “ancestral cultural component” to economic instruments and demanded governance schemes guided by Indigenous worldviews like the Mapuche Itrofil Mogen – roughly translated as “a totality [of life] without 175 exclusion” (Arregui & Jofre, 2018) and interpreted by Calbucura and Almonacid (2019) as “living in biodiversity”.95 In response to these proposals the state only added the promotion of sustainable practices through market strategies such as certification systems, eco-labelling and contracts for the reward96 of ecosystem services – all tools oriented to produce value-added in old and new commodities. In sum, despite clear propositions advanced by indigenous organizations, the bill went ahead without substantial amendments. As one interviewee from a Mapuche-Pehuenche community97 argued, the consultation’s results are a far cry from the expectations; they don’t reach the minimum conditions for Indigenous people self-determination (LK16, interview, 2020). The Ministry of the Environment not only ignored indigenous paths envisioned during the dialogue stage, but it also locked the door for true collaborations. The state confirmed Western conservation as the only game in town. That government agents dismissed collective land tenureship and only promoted market strategies on Indigenous lands indicates the state’s commitment to liberal environmentalism and green growth – the notion that nature can be protected only through economic valuations while keeping economic growth intact (Dempsey, 2016). The state’s attempts to incorporate Indigenous peoples into the market economy by combining environmental policies with sustainable development (e.g., through certification systems) also proves this commitment to 95 A beautifully developed reflection on Itrofil Mogen and its meaning can be found in an Interview with Mapuche poet Elicura Chihuailaf (Arregui & Jofre, 2018). Another one is presented by the Mapuche werken of the Coz Coz Parliament, Jorge Weke (Weke, 2017). 96 The term “reward” has been adopted in bill 9404-12 (and other projects) in replacement of the often-used “payment.” According to one state agent at the Ministry, this decision was implemented after identifying non-monetary payments in community-led water projects (SE6, interview, 2020). 97 The name of this community is kept confidential to respect the consent of my interviewees. 176 liberalism while it echoes the Latin American neostructuralist approach.98 Yet, these schemes don’t fully explain the unfolding of the consultation. Embedded in the Chilean nation-state are colonial practices, discourses, and attitudes that directly influence these outcomes. The next section delves into this undergirding, asking about the state’s reasons for keeping only one model of conservation (the one based on private property) instead of attending to the suggestions made by indigenous organizations. 4.4 Securing the land through the environmental state Absences in policy documents and laws are as relevant as what they say (Schröter & Taylor, 2018). In the context of the consultation, the state silence around the modifications requested by indigenous organizations, and in particular the state’s refusal to include an alternative conservation model – one that would require communitarian land ownership – are governmental decisions. It is not a bureaucratic error that so much of what Indigenous organizations proposed ended up in a ministerial drawer (or an online cloud) without making it to the bill. These decisions comprise a kind of colonialscape: “the spatial rationales through which colonial relations are continually remade” (Hunt, 2013, p. 60, see also section 4.2 of this chapter). The way it is configured in Chile, the indigenous consultation works as a state technique that actualizes colonial relations of domination based on the exclusion and marginalization of Indigenous peoples’ knowledges to care for nonhuman beings. 98 The Latin American ‘neoestructuralist’ approach to rural development is characterized by a state that seeks to incorporate small scale producers into a capitalist economy, while it invests in closing the technological gap dividing capitalist producers and peasants (see Kay, 2005). 177 The rejection of indigenous proposals, even the moderate ones (which didn’t touch the private land regime) is at odds with the new international conservation paradigm, which values Indigenous peoples’ rights to self-determination (see section 4.2.1 of this chapter). It indicates a state extremely worried about situations that can undermine its political and economic stability (Ugarte, 2021). And allowing Indigenous forms of collectively caring for nonhuman life is one of these situations because it entails dealing with alternatives to private land ownership – in a country with 80% of the land under private hands. Legal recognition of conservation on non-titled lands would surely benefit indigenous communities, who could access state funding to run their initiatives. This could be the case for the Huilliche initiative Mapu Lahual, a “conservation territory” formed by five communitarian parks operated by indigenous organizations and covering a surface of 1,142 hectares. Having received funds from WWF, UN-FAO and the GEF and even listed in the state’s records of protected areas, Mapu Lahual does not have a legal status and it does not fit in any of the BPAS conservation categories (CN4, interview, 2020). From a state perspective, granting legal recognition to initiatives such as Mapu Lahual could open the door for ever more Indigenous communities undertaking conservation on ancestral lands. If land recuperations (or tomas de fundos) represent a focus of violence in the Wallmapu,99 a ‘green land recuperation’ could only make things worse for the state. This is the flipside of granting legal rights to green initiatives on non-titled, communitarian lands. It is a matter of risk: risk that the fragile structure that holds up the state crumbles with the result that Indigenous peoples advance their jurisdictional systems and self-determination rights. According 99 Such violence is mainly drove by the state criminalization of Mapuche People. Land recuperations is a political act of resistance carried by Mapuche families. It has fuelled the state criminalization of Mapuche People since the return to democracy. I discuss these processes from the views of Mapuche and Chilean intellectuals in Chapter 1. 178 to Simpson’s work in Canada (2014, pp. 10–12), Indigenous peoples are a real threat to settler states because Indigenous jurisdictions persist and can gain normative strength across territories. Pasternak and Dafnos argue in this sense (2018, p. 741) that the state tries to channel such potential disruptions – and their economic implications – into “institutional infrastructures of risk management and mitigation” meant to re-territorialize state sovereignty. For instance, as these scholars demonstrate, the Canadian state invests significantly in national security for the police to secure state and private sector access to lands, resources, and transport networks distributed across First Nations territories. The state does this by framing resisting communities as potential emergencies (p. 752). I argue that the BPAS is one such institutional infrastructure; it works as a risk management institution deployed by the Chilean state to re-territorialize its sovereignty and, thus, secure itself. Through the indigenous consultation (a technique aimed at governing Indigenous peoples), the BPAS functions legally to administer biodiversity, while at the same time it enforces private property and re-territorializes settler state jurisdiction in a natural resource economy (Pasternak, 2017; Pasternak & Dafnos, 2018). Alongside the BPAS, Supreme Decree 66 was crafted in a way that allows the state to lower the risk of legal uncertainty regarding economic activities (Ugarte, 2021). According to Magdalena Ugarte (p. 219), one of Supreme Decree 66’s primary outcomes were the “legal categories and definitions [that] constrain possible courses of action in ways that negate Indigenous self-determination.” 4.5 Eco Nullius and the work of the BPAS The political background and functioning of the BPAS helps to explain the absence of Indigenous proposals. The silence represents a deliberate omission that echoes and actualizes terra nullius. Along the lines of Andrew Baldwin’s work on carbon nullius (2009) and Nelson 179 Maldonado-Torres’s reflection on the myth of emptiness (see section 4.2) I argue that the BPAS actualizes the colonial discourse of terra nullius in a green iteration, eco nullius: the reenactment of “nobody’s lands” to justify the environmental state’s silences in relation to Indigenous peoples’ rationales, their ongoing practices, and their knowledges to protect biodiversity, or as asserted by Indigenous organizations during the consultation, the nurturing of the Itrofil mogen. Different than Baldwin’s argument though, where he conceptualized carbon nullius to explain environmentalists’ assertions of forests as empty (carbon) spaces transferable to global circuits of decarbonization, I view eco nullius as a state technology that fixes Indigenous peoples in a space/time in which they lack knowledge and creativity; a governmental tactic to erase indigeneity and secure land control in 21st century environmental politics. Embedded in the main purpose of the BPAS, which is to legally administer biodiversity, eco nullius works with two aims. First, a material purpose. Emptiness allows a special category of conservation – Indigenous conservation – to be dismissed. Empty space according to white settler values becomes wilderness (Baldwin, 2009; Braun, 2002; Cronon, 1996).100 And second, eco nullius works with an epistemic purpose of erasing Indigenous intellectual creativity (also see Maldonado‐Torres, 2004), entitling the state to neglect indigenous knowledges and practices in conducting conservation otherwise – this was demonstrated by the state’s dismissal of dozens of Indigenous proposals offered during the consultation, which did not make their way into the bill’s amendments (see Table 4.1). These proposals only became visible when reviewing the report on the consultation produced by state officials but almost entirely ignored by lawmakers 100 As I discuss in the Introduction of this dissertation and as mentioned by several interviewees throughout this research, the model of conservation predominant in Chile is based in the conservation paradigm nurtured by United States and Canada. 180 (see Section 4.3.2). Added to this, there is the avoidance of the Indigenous consultation during the legal processing of the first version of the bill submitted in 2011. As one interviewee noted, the reason why state officials working on this bill avoided consultation was because they believed the BPAS’s legal framework was no subject to discuss with Indigenous peoples – they should comment only on the existence of state protected areas on their lands (see Section 4.3.1). This attitude by the state proves the enactment of the myth of intellectual emptiness, where the state blocks any chance of considering Indigenous peoples’ inputs in the making of a law, fixing their views to an enclosed past, which is only worth consideration when state initiatives land on their territories. In this regard, Audra Simpson (2014, p. 7) argues that the settler state’s notion of “Indigenous” is “embedded conceptually in a geographic alterity and a radical past as the Other in the history of the West.” Eco nullius facilitates such a notion while it authorizes the state’s obstructing maneuver to impede Indigenous peoples’ paths to freedom, self-determination and the care for nonhuman life. Eco nullius not only serves the state’s exclusionary approach, but it also reproduces a Chilean subjectivity rooted in the nation’s historical origin. The fact that only Indigenous peoples’ representatives and human rights advocates – specifically concerned with Indigenous issues – raised their voice against the state’s exclusionary conduct demonstrates a conservationists’ subjectivity101 that naturalizes the violence against Indigenous peoples when it 101 Specifically, there is a “white/mestizo identity” implied in Chilean conservation. This subjectivity refers to, first, the white subjectivity mobilized by the Chilean state, ossified through state immigration programs to bring (mainly white) Europeans to colonize the lands occupied in the Wallmapu and then Magallanes (during the 19th and 20th centuries). Second, there is a mestizo subjectivity that counterbalances the failure of whitening campaigns. To confront this failure, the state applied assimilation techniques centered in the discourse of mestizaje. Mestizaje worked simultaneously as a distinction mark for criollos to differentiate from the bajo pueblo (low people). Patricio Lepe-Carrion argues that criollos viewed mestizos as everyone outside Chilean aristocracy (Lepe-Carrión, 2017). In terms of conservation, this subjectivity becomes evident in the constitution of Chilean conservationists: mainly non-indigenous, highly networked people with a wealthy background (a background away from the bajo pueblo 181 comes to biodiversity. Non-indigenous NGOs were completely absent during the demands for an indigenous consultation, and not one of them condemned the consultation’s failure. As one interviewee noted: “Conservation is very elitist in Chile (…) [conservationists’] approach to conservation is based on deep ecology, which may have worked to stop development in Patagonia, but their relations with [indigenous] communities are weak and very slow” (LK16, interview, 2020). A rigorous examination of Chilean conservationists’ views and values in relation to Indigenous peoples is beyond the scope of this research. Yet, I will argue the attitude described by my interviewees and evinced in conservationists’ lack of advocacy contributes to naturalize the state’s violence against Indigenous peoples at the same time it authorizes the state as the sole administrator of environmental laws. 4.6 Conclusion: Regenerating the territory This chapter presented an in-depth examination of the indigenous consultation conducted on the main piece of environmental legislation in Chile: the BPAS. How it came to occur and what were its outcomes in relation to the expectations of Indigenous organizations who participated in the process. It is important to note that many Indigenous communities refrained from participating in the consultation, while others attended only under specific conditions – these moves responded to Supreme Decree 66’s negative impacts in terms of Indigenous peoples’ rights (see Section 4.3.1). In the aftermath of the consultation and at odds with contemporary approaches to conservation (like the one advanced in the 2003 Durban Parks Congress) the state described by Lepe-Carrion). This subjectivity also appears in the neglection of Indigenous peoples from the main discussions taking place around conservation. 182 reasserted an exclusionary approach toward Indigenous peoples, ignoring their practices and knowledges and reaffirming liberal environmentalism as the only path to protect biodiversity. In this chapter I also spent time scrutinizing the consultation mechanism and the strategies that underpinned the state’s exclusionary approach toward Indigenous proposals to protect biodiversity – or as proposed by a few groups, the protection of the Itrofil mogen (see Table 4.1). The state invests significant resources in re-territorializing itself, avoiding approaches to biodiversity protection that would put its jurisdictional system at risk. Unlike countries where states work to incorporate Indigenous resistances into their body politic, advancing some degrees of Indigenous peoples’ inclusion (although without solving the core problem of colonial violence), the state of Chile still applies a racialized view to Indigenous approaches to caring for the nonhuman, deploying colonial tactics like eco nullius to block Indigenous land tenure models and to justify the absence of Indigenous intellectual frameworks in environmental policies like the BPAS. Eco nullius in both registers, material and epistemic, work in tandem for the BPAS to function as part of an institutional infrastructure of risk management (Pasternak & Dafnos, 2018). The state uses this infrastructure to re-territorialize its sovereignty and lower the risk of Indigenous disruption; the risk of Indigenous peoples reasserting their rights to ancestrally occupied territories (Simpson, 2014). Not far from the Peweñantu/Villarrica National Park, a Mapuche-Pewenche community works to regenerate the forest through planting Pewen trees (Pehuén or Araucaria). The community102 is leading a struggle to halt forestry companies from cutting these trees. On a WhatsApp video call, a representative of the community (which I have visited before conducting 102 The name of this community is kept confidential to respect the consent of my interviewees. 183 this research) tells me he prefers the term “regeneration” over “conservation,” as the latter does not encompass the work done: “we are regenerating the territory” (LK16, interview, 2020). When we spoke, they had already planted four hundred trees and were planning six hundred more. The BPAS’s policies to incentivize conservation brushes aside initiatives like those, as they don’t align with the state program designed to incentivize private conservation (see Chapter 2). However, as my interviewee claimed: “it is not about private property, it is about the territory (…) the territory goes beyond property, it involves more communities.” For the state, regeneration is not part of the game; for Pewenche People (which means “people from the Pewen”), regeneration is all that matters. The community lives in a territory that transcends the propinquity of individual estates. Territory is not viewed through Western geopolitical lenses, though. Territory is about “living in biodiversity” (the Itrofil mogen) and deploying ancestral governance (Calbucura and Almonacid, 2019). It is about living with and from the fruits and the wood gifted by the Pewen. My interviewee contrasted his worldview, where regeneration entails reciprocity instead of isolation and the dividing of nature and culture, with Douglas Tompkins, an emblematic conservation philanthropist who arrived from United States in the mid-1990s and bought thousands of hectares in Patagonia for deep ecology-based conservation purposes: “Tompkins does not live from wood, from collecting the piñón, from cattle-breeding.” This is not another iteration of the noble savage, an essentialized view of Indigenous peoples as the natural stewards of nature. Pewenche communities like the one mentioned above need to use the forest, they depend on it, not only to eat from Pewen and raise cattle but also to develop tourism. The community has faced conflicts with other communities because of how they relate to tourism and other productive activities. And they also work with REDD+. The ongoing conflict between state and Indigenous sovereignty also produces tensions among 184 Indigenous people. Members of this community actively defend the forest against industrial loggers while they come up with ways of enduring on their ancestral lands. Regenerating the territory through initiatives like planting Pewen trees is one such way (albeit not enough). While the state keeps investing in environmental institutions that work to secure its (always threatened) sovereignty, initiatives to regenerate the territory unfold amid a dense weave of Indigenous practices, knowledges and governance systems oriented to nurture life. 185 Chapter 5: Conclusion After we finished our coffees in the trendy Lastarria neighborhood, I accompanied my interviewee, a consultant from the carbon offsets world, to the Santa Lucía metro station on La Alameda, one of Santiago’s oldest streets. Three months had passed since October 18, 2019 – a day now commonly referred to as “18-O” – when people had taken to the streets to demand accountability for the state’s failure to live up to the promises of well-being and prosperity under the neoliberal socio-economic model installed by the Pinochet dictatorship. The protests pushed the state to arrange for a national referendum to create a new constitution that would replace the Chicago Boys’ “Constitution of Liberty,” so named in honor of Friedrich Hayek.103 La Alameda was crowded with people of all ages engaged in peaceful protest. Street vendors sold protest merchandise, which made the walk to the metro seem like a music festival. Fluorescent bracelets, peanuts, and t-shirts were all selling like hotcakes. Chanting, marching and dancing, the people in the streets were ecstatic, but also wary of the police. My interviewee seemed calm, however, so I followed him through the crowd. At Avenida Portugal, a few blocks from the station, we ran into a group of police who appeared suddenly from an alleyway. One of them pointed a gun at us and fired a tear gas canister, which landed just two meters away. Holding our breath, we ran back toward La Alameda and turned west until we reached an empty street. Shaken by the encounter, I found it hard to believe that the police would attack us for no reason. I had heard from close relatives the stories of repression under Pinochet. Yet I had believed those stories were part of the past; I had thought that this type of police violence could not occur in a democracy. I was 103Around 80% of participants in the referendum, held in October 2020, voted to change the constitution, a process now underway. Another referendum is scheduled for September 4, 2022, to approve or reject the new magna carta. 186 naive. Human rights violations occurred systematically for at least three months over the course of the protests. After my encounter with the police, I traveled to Puerto Varas to attend a talk by the executive director of the NGO Terram about the BPAS. I and about 20 other people listened to her argue that the BPAS was a double-edged sword. As long as it relied on the creation of a biodiversity offset market, she said, the BPAS put biodiversity in danger. During a Q&A after the presentation, a man in his 30s raised his hand and proposed something controversial. I did not record this seminar, but my notes say: “he proposes to get rid of the BPAS bill, just as with the old constitution.” Most of the attendees nodded in agreement. Currently, the bill continues to move forward104 without an offsets market, but an institutional framework for offsets is being assembled through platforms like the GEF initiative (as I discussed in Chapter 3). The removal of the offsets market is likely related to the 18-O uprising and the writing of a new constitution. Protests provided a venue for long-held environmental claims. Water conflicts, for instance, were referenced in the slogan “it’s not drought, it’s plunder” (“no es sequía, es saqueo”), which protesters chanted to demand the repeal of the Water Code (see Table 1.1). Protesters did not incorporate biodiversity into their demands as they did with water, however. Discourses on protecting nature and ending extractivism emerged when the social uprising merged with Indigenous demands for a plurinational state and the recognition of nature’s rights, approximately three months after the 18-O. The latter demand got a boost in May 2021, when Chileans elected 155 constituents to the Constitutional Convention, including 30 who identify as 104 The bill left the lower house’s Environment Committee in 2022 and is now before the Agricultural and Rural Development Committee. 187 “eco-constituents.” These are great signs of political change in the country. They prove that environmental laws are not isolated from societal and political transformations. However, we cannot be sure that the convention will live up to expectations around nature’s rights or Indigenous rights. And we do not know whether these transformations will halt biodiversity loss. Even with domestic pressures from events like the 18-O uprising, countries in the Global South do not make environment-related decisions independently from foreign investments in extractive activities. As this dissertation has shown, the interplay among the nature-based neoliberal model, intergovernmental institutions, and neocolonialism shapes the state’s strategies for protecting biodiversity. Decades of institutional cutbacks explain the Chilean state’s refusal to approach biodiversity conservation from any other lens than the market-based solutions promoted by intergovernmental institutions. Likewise, the preference for these strategies pivots on the exclusion of Indigenous peoples, with the state controlling and suppressing their struggles and blocking their alternative proposals for ecological regeneration. The nature-based neoliberal model and the suppression of Indigenous ecological agendas sets the conditions for the extinction of biodiversity. Reducing the problem of biodiversity loss to a country’s ability to raise money – through approaches like the biodiversity financial gap – remains risky. Rather, biodiversity loss is a problem demanding radical change. 5.1 Arguments and contributions This dissertation has examined in close detail the environmental state in the making. I have scrutinized international and state development discourses, practices of lawmaking, and neoliberal mechanisms that tackle biodiversity loss, while I also explained how and why Indigenous knowledges and practices are systematically marginalized. In doing so, I have put the 188 following bodies of scholarship into conversation: 1) theories of the environmental state with political ecology, 2) market-based biodiversity conservation, 3) and legal geography with theories of internal and settler colonialism. I have traced the assemblage of discourses, economic artifacts, and colonial narratives that underpin the new institutions and legal frameworks in the making. In doing so, I offered an (anti)state theory, tracing legal and techno-scientific practices and identifying state colonial patterns of thought and action that marginalize Indigenous peoples within the emerging environmental state. As I have demonstrated, the state’s refusal to incorporate Indigenous views and knowledges into new environmental institutions – as well as Indigenous groups’ refusal to participate in their inclusion – shapes the conditions of possibility for the environmental state. I will now present the dissertation’s main findings and contributions. The first three points define the environmental state in Chile. The final two deal with first, the main discursive entity (the funding gap narrative) and second, the use of a market-based mechanism (biodiversity offsets). The crafting of the environmental state is intimately connected with global circuits of capital accumulation and policymaking While multiple institutions participate in crafting the environmental state in Chile, international organizations and the private sector have become hegemonic. Transnational mining firms fund and provide pilot sites to test biodiversity offsets, international environmental NGOs elaborate best practices guides, and private consultants design methodologies to apply instruments such as biodiversity offsets. The UN provides arguments to justify implementing a biodiversity offsets program, and GEF initiatives finance it. It is a diverse ecosystem of organizations, all of which share a genuine desire to improve the state’s management of biodiversity. Yet, these global 189 connections also demonstrate a turn toward an “eco-governmentality” (Goldman, 2005), where north-based development institutions and firms generate techno-scientific truths about the environment in order to provide a low-risk economic space for investors to move into the Global South. The Chilean state moves in a cramped space of environmental reforms The state is so entangled with the vicious rhythms of extractivism that even the most neoliberal tools offered to manage nonhuman natures have limited space to maneuver, as I demonstrated in Chapter 3. The lack of an institution dedicated to biodiversity management (the BPAS) and the budget curtailments to conduct the studies necessary to design market-based instruments reveal a state that promotes extractivism-based economic growth over environmental reforms, even when these market-based instruments to conserve biodiversity exist under an excessive neoliberal regime. The state benefits from the intergovernmental institutions that praise Chile’s role as a provider of cheap natures in a globalized economy, allowing the state to avoid making reforms to its economic model. This relationship between nature-based economic growth and the environmental state leaves a restricted space for reform. It is a space where the economic growth imperative is never altered. Borrowing from Housknot (2020), it is state-led structural unsustainability. The space for improvement is shrinking further as intergovernmental institutions such as the OECD and the World Bank promote green growth, which assumes that a country’s GDP can be decoupled from nature (Hickel and Kallis, 2020). The Chilean state thus seeks to consolidate its relationship with international investment firms to secure the growth of the GDP. That is why it opts not to hinder the contemporary ecological crisis but to license the insertion of flora and fauna into global circuits of capital accumulation and expansion. 190 The environmental state in Chile is invested in internal and settler colonialism Internal and settler colonialism shape the environmental state. As I contended in Chapter 4, the state marginalizes Indigenous ecological knowledges and practices to regenerate the territory. As the consultation process demonstrated, there are abundant Indigenous ways of conserving and restoring biodiversity. Yet, the state chooses exclusively market-based instruments like biodiversity offsets, ecosystem services, and private concessions to manage public and private areas. One prominent way that the state marginalizes Indigenous peoples is by employing what I call eco nullius. It is a state technology that anchors Indigenous peoples in a space/time in which they lack knowledge and creativity – a governmental tactic to erase indigeneity and secure land control within 21st-century environmental politics. Ultimately, the Chilean state’s efforts to silence Indigenous peoples are manifestations of its fears of Indigenous disruption and resurgence (Simpson, 2014), a resurgence that connects with communitarian biodiversity conservation as opposed to private property. The state treats Indigenous peoples as a risk to the nation-state, which is constantly under threat from struggles for rights and ancestral land claims (see Chapter 4). This is the substance of Chile’s environmental state: it relates to Indigenous peoples as if they were a menace, rather than leaders or partners in tackling biodiversity loss. The funding gap narrative provides legitimation to the global north-south divide and to market-based biodiversity conservation The biodiversity financing gap is a powerful narrative deployed by intergovernmental development institutions and domestic governments. It authorizes a Rostowian approach to development, where global north countries and north-based intergovernmental institutions possess the best knowledge and must guide the south. By advancing the notion that solving the 191 ecological crisis requires a rapid increase of cash inflow toward biodiversity conservation, the gap produces a “socio-ecological fix” that demobilizes demands for wider social transformative change (Asiyanbi & Lund, 2020). Consequently, the gap distracts policymakers and the public from considering concrete actions to transform the larger economic and political systems, as recent literature has shown (BCRC, 2021). The making of the biodiversity offsets market and its legal and techno-scientific procedures show how a failed mechanism of environmental regulation can be transformed into a novel market-based instrument. The funding gap narrative spurred on this transformation in the context of the Chilean state’s relationships with intergovernmental institutions such as the UN. Biodiversity offsets are a form of salvage policy that slowly degrades biodiversity Biodiversity compensations have long existed in Chile. They were originally enforced by the state as a legal procedure within environmental impact evaluations. The mechanism changed, however. State bureaucrats, working with senior staff at intergovernmental institutions and private consultants, constructed a new version by embedding the market. The biodiversity offset program in Chile arose from a desire to improve a failed mechanism and from the promise of cash inflows to incentivize conservation in heavily privatized lands105. Thus, offsets emerged from planners’ efforts to save an environmental compensation mechanism; the solution they came out with was to turn this mechanism into a market. The salvaging effort attempts to not only improve the mechanism, but also to make biodiversity more fungible and marketable. 105 The need to incentivize biodiversity conservation on private lands is important here. With nearly 80% of the land in Chile held privately, including some of the country’s most endangered ecosystems, the state framed the problem of biodiversity loss as one of economic incentives. Biodiversity offsets credits would then be sold on the market by private owners, who could certify their lands through the legal framework under development. 192 Planners use maps, hierarchization matrices, and mathematical equations that abstract and translate nonhuman nature into numerical values to exchange biodiversity credits. The rule of thumb here is simplification and hierarchical oppositions – the valuation and devaluation of nonhuman life according to what it is and is not. The result is a market that regulates the degradation of nonhuman species and their habitats, a market that presumably will produce yet more sacrifice zones. The offsets market in Chile will allow attritional and continuous violence on biodiversity and the human population. 5.2 Reflection on the project’s limits Limitations remain in this study. First, it is unclear how the BPAS and the biodiversity offsets markets being designed inside the Ministry of the Environment will ultimately unfold in Chile As I explained in Chapter 2, the institutions, and legal frameworks to bring them to life are still before the legislature. This is because of the legislative lethargy around the BPAS and discussed in Chapter 2. I examined the BPAS because it is at the center of Chilean environmental reforms to facilitate market-based biodiversity conservation. After 11 years in the legislature, the BPAS provided a substantial source of information. As I moved forward in the research, I realized that some of my claims will need to be revisited once the law is enacted. For instance, the outcomes of the biodiversity offsets mechanism remain unknown and will require a post-policy study once the program is rolled out nationally. The new categories of protected areas defined by the BPAS will also require follow-up analysis. One example is the Indigenous conservation initiative, added to the bill three years after it was introduced. While I reviewed how this category of protected area was incorporated, we still do not know how it will affect Indigenous peoples, the 193 power relations involved, and how these will reshape the relationship between Indigenous peoples and the state. Related to the above, this study did not fully explore the alternative ways in which Indigenous Nations across the country relate to and protect biodiversity. While Chapter 4 introduces cases of Indigenous conservation initiatives, the goal was to demonstrate how they were marginalized in the environmental reforms. The dissertation took this approach to focus exclusively on how the environmental state comes into being and how colonialism affects this process. In doing so, it highlighted cases related to the Indigenous consultation and the legislative processing of the BPAS. Despite the fact that my approach did not give full due to Indigenous biodiversity conservation, there are abundant cases, strategies, and narratives around this issue that provide insight (for a review of multiple cases, see Arce et al., 2016). Some of those cases relate to conservation NGOs with the information about them accessible. That said, there remain numerous other case that are overlooked in the academic literature. Many Indigenous practices and knowledges became visible through the Indigenous consultation on the BPAS, when Indigenous organizations were asked to discuss the economic instruments contained in the bill. For instance, Indigenous organizations consulted asked that the economic instruments to conserve biodiversity consider not only the ecological value, but also ancestral and cultural components associated with their territories. They also proposed the creation of a special fund for Indigenous peoples that contains, among other things, the recovery of biodiversity with native species. Most importantly, Indigenous organizations asked the state to recognize conservation initiatives in communities without legal personality such as the Mapuche lof (for more proposals, see Table 4.1). Indigenous non-neoliberal conservation practices and initiatives are something to address in future research. 194 A third limitation of this study relates to the representativeness of Indigenous peoples. As discussed in Chapter 1, I confined my fieldwork to places where I could rely on existing networks of people with whom I could interact respectfully in a limited timeframe. This decision led me to conduct interviews in Santiago, Panguipulli and Valdivia, while other groups were not included in the study. This limited the views of Indigenous conservation I was able to incorporate. For instance, the notion of “regenerating the territory” came from a Mapuche spokesperson I interviewed. However, there are undoubtedly many more ways to understand and practice conservation outside Western approaches. Probably, none of these alternative ways use the term “conservation.” The Indigenous concept that appeared the most during consultation was the “itrofil mogen” – a term that encompasses all forms of life – but there are other concepts of similar scope that were not discussed with official reports of the consultation process. An important issue arises in connection to the problem of representativeness. Chapter 4 demonstrated how the state neglected Indigenous peoples during the creation of the BPAS. There is a flip side to that argument, namely, that in order to respect Indigenous peoples’ rights, the state must incorporate their views into the creation of its environmental institutions. While I agree with the state acknowledgment of Indigenous peoples’ rights, it risks assuming that once the state incorporates Indigenous perspectives in its institutional framework, colonial violence will come to an end, and Indigenous peoples will abandon the struggle for rights.106 Nation-states that like Chile are rooted in colonial layers of violence will keep reproducing colonialism 106 I briefly touched on this at the end of Chapter 4 when I mentioned that the state of Chile was overtly violent and did not follow other approaches like the one practiced in some provinces of Canada, whereby provincial governments like BC invest in bringing Indigenous resistance into the body politic by incorporating them in the profits of extractivism. 195 inasmuch they continue to expand the extractivism based neoliberal model, which pivots on the production of sacrifice zones and bodies. Likewise, many Indigenous struggles in Chile demand the return of ancestral land; transformations that ignore or avoid this historical debt will fail. The last gap in this dissertation concerns private initiatives for biodiversity conservation. The study’s strict focus on state environmental institutions obscured the intersection between public and private conservation agendas. On the one hand, I framed biodiversity offsets markets as a space where industries and private conservation initiatives meet and exchange biodiversity credits. But I have not discussed how private conservationists are preparing to participate in this market, nor how they relate to the environmental state. Originally, I intended to write a chapter on one of Chile's largest private conservation initiatives. I collected primary data on the Huilo Huilo Biological Reserve. However, I ultimately did not develop this chapter to maintain the overall focus on the state, and because private protected areas have not started the selling of biodiversity offsets. The information gathered does not contradict the claims I made about private conservation, though. The data collected allowed me to have a better grasp of private protected areas while I reflected on some of the potential effects of the biodiversity offsets market. 5.3 Future directions This research answered important questions on the making of the environmental state in a Global South country. It also left unaddressed other questions that are important for better understanding market-based biodiversity conservation in Chile. Before mentioning these gaps and my future research agenda, it is important to reflect on what it means to study and understand an unfinished 196 project, such as the subject of this dissertation. Operationally, my research examined a legislative process that has not concluded. It has meant that I must constantly emphasize the uncertain nature of this process and thus my findings; that I must remind readers that the economic and administrative devices in my analysis have not yet been rolled out in Chile. For some readers, these constant reminders might give the impression that my study of this unfinished process is only temporary and that it will end once the economic instruments to foment market-based conservation in the bill become law. I see things quite differently. Legislative approval of the instruments will mark the beginning of operations on the ground, of the clash between conceptual designs and contested realities, a clash impossible to contain in just one account. The environmental state will always be an unfinished state. This is why we need more partial, situated views that are not fixed with the doctrine of objectivity and the promise of transcendence (Haraway, 1988, p. 579). We need more situated interrogations of the environmental state and market-based conservation, attuned to the ways in which power asymmetries are reproduced, while also, borrowing from Haraway, thinking about how we can “build meanings and bodies that have a chance for life” (Haraway, 1988, p. 580). In what follows, I present two lines of research that I want to pursue in relation to this project's partial character. First, I would like to expand my understanding of Indigenous knowledges and practices around biodiversity conservation. As I mentioned in Chapter 4 and again in this chapter, Indigenous peoples have abundant frameworks and epistemologies for practicing biodiversity conservation outside the neoliberal model. For instance, we saw the proposals put forth during the Indigenous consultation by the Ministry of the Environment, which were ultimately excluded from the BPAS. Moreover, alternative concepts such as “regeneration” are being practiced by 197 Indigenous communities alongside “itrofil mogen” to encompass all forms of life beyond the scientific constraints of the term “biodiversity.” Expanding this understanding can help open up the environmental state in Chile for Indigenous policies. I would like to conduct this research with an Indigenous organization, adapting these goals according to their demands and expectations. It may be that discussing biodiversity conservation is neither interesting nor useful to Indigenous organizations. It may even reproduce colonialism in Indigenous communities, as when Western conservationists and climate scientists have appropriated and depoliticized their ways of knowing, turning them into “traditional ecological knowledge.” Cruikshank (2005, p. 256) notes that concepts considered “traditional” by conservation managers mostly accommodate the state administration rather than local needs. In that context, any approach to discussing biodiversity conservation with Indigenous peoples – deploying more accurate terms – must begin with an agreement that brings tangible benefits to their communities. Second, I want to follow the rollout of the biodiversity offsets market. On the one hand, there is the need for studies of on-the-ground applications. From this research’s findings, we know that legal framework for the offsets market keeps moving forward outside of the BPAS. I will examine how practitioners apply the offsets methodology in real-world projects, how they adapt it to their own knowledge and practices, and how they become part of the chain of translations necessary for this mechanism to work (Robertson, 2012). I would like to join a team that applies the methodology to explore both the abovementioned elements and how power asymmetries run through the techno-scientific devices used to hierarchize biodiversity’s living components. The economic instruments that will start once the government enacts the BPAS are the contracts for the retribution of ecosystem services and the certification system for 198 biodiversity offsets credits. These instruments are necessary for articulating the biodiversity offsets market, so I will pay attention to their evolution in tandem with the offsets market. I will also monitor the offsets market in relation to public acceptance and amid Chile’s political and economic transformations. Chapter 3 told the story of how environmental experts assembled offsets from an old regulatory mechanism (with weak state enforcement and techno-scientific application) to produce a novel economic instrument for funding biodiversity conservation in private protected areas. However, it remains to be seen how the offsets market behaves after its approval. In addition to examining offsets on the ground, I would like to follow public perception and engagement of this mechanism – whether it is accepted or retreats to a policy refugia (see Corbera et al. 2021 and the discussion in Chapter 3). Recent research (Maestre-Andrés et al., 2020; Corbera et al. 2021) has interrogated the lack of legitimacy in the design and validation phases of offset market programs implemented by local governments in Europe. Similarly, there are already signs of eroding support among environmental NGOs for Chile’s version of an offsets market.107 Therefore, I will continue monitoring the development of offsets in Chile in conversation with this body of literature, with an eye toward how the government adapts biodiversity offsets to local political realities. The supply chain is the final piece of the puzzle in the rollout of the biodiversity offsets market. By “supply chain” I am referring to the private conservation initiatives and protected areas, many of which are waiting to receive certification to sell credits. This is key because the state is faced with a profoundly privatized land tenure regime, with some of the most fragile 107 As I detailed in Chapter 3, key elements of the offsets market were removed from the BPAS bill in 2020 to circumvent public backlash. This was indicative of the government’s strategy of preserving the offsets market and shielding it from public criticism, while also protecting the BPAS bill as it moves through the legislature. 199 ecosystems under private ownership. From the perspective of a neoliberal state, incentivizing private conservation by transforming it into a profitable business for landowners is entirely coherent. However, critical scholars warn against only promoting private schemes to protect biodiversity, pointing to conflicts such as evictions, forced displacement, territorial dispossession, and capital accumulation – amply reviewed by the literature on “green grabbing” (e.g., Benjaminsen and Bryceson, 2012; Fairhead et al., 2012; Ojeda, 2012; Rocheleau, 2015). With these warnings in mind, I plan to investigate how private protected initiatives interact with the biodiversity offsets markets, interrogating the power dynamics at play and how human and nonhuman natures respond to them. In addition to elaborating this informed critique, I will also pay attention to the fissures within these markets that might create openings to enact other types of conservation and territorial regeneration. 5.4 Conclusion Will the environmental state in Chile live up to its promise to protect biodiversity? Such a question has become more pressing since the 18-O social upheaval. It all started when the government announced a 30-peso increase in the metro fare (about US$0.035). Minor though it was, the fare increase was the tip of an iceberg. Below the waterline was the state's failure to live up to the promise of progress under the social and economic model installed by the Pinochet dictatorship. The 2019-20 protests threw into stark relief the failures of the model that successive elected governments had sustained for 30 years after the return to democracy. Massive state 200 rollbacks and market fundamentalism had caused widespread precarity.108 For this reason, one of the loudest slogans during the protests was, “It’s not about 30 pesos, it’s about 30 years.” Four decades after Pinochet’s constitution passed, the model can neither talk the talk nor more pressingly walk the walk. Thinking about the environmental state over the course of this research inevitably led me to reflect on social and political change on terms that transcend the debates around biodiversity conservation and environmental policymaking.109 There is an intrinsic connection between nature and Chile’s ongoing political transformation. Many reforms proposed by the new progressive government of Gabriel Boric, elected president last year amidst Chile’s political transformation, depend on the steady flow of transnational investments. And while Boric has promised to enforce environmental regulations and promote new laws like the Climate Act and the BPAS, he is also building political and economic bridges with Canada to develop mining projects deemed sustainable by the new government (Carrasco, 2022). That is the character of neo-extractivim as defined by Gudynas (2010), a progressive, left-wing version of extractivism characterized by states’ greater involvement in the economy. It is a model that perpetuates the destruction of nature. Extractivism, with or without the “neo-” prefix, is tied to a dynamic global economy that is profoundly violent and colonial (Acosta, 2013; Brand et al., 2016, Achiume, 108 The radical transformations during the dictatorship produced a society where half of a family’s debt burden is for food and medicine, where water is an asset traded in global financial markets. 109 At one point, I kept track of the protests in Chile from Vancouver with the same intensity than the monitoring of parliamentary activity on the BPAS. I also organized political councils with Chilean folks in Vancouver to discuss the referendum and alternatives to neoliberalism in light of a new Constitution. 201 2019). It feeds from geopolitical hierarchies between countries and operates by devaluing humans and nonhumans. To what extent can an environmental state in the Global South transform itself for the benefit of all forms of life? In researching and writing this dissertation, it has become clear to me that any transformation, in Chile at least, will be hampered by the country’s role in the world economy, the sway of global environmental politics, and its internal (often colonial) forces. Perhaps these are the things we should address now. We need another form of environmental politics and global economy that recognizes that non-rich countries and poor people bear a disproportionate share of the negative consequences of climate change and ecological degradation (BCRC. 2021, Dempsey et al., 2022). The concepts of ecological debt and climate debt are helpful here. The concept of an ecological debt was developed by Latin American activists in the early 1990s and has since circulated among Global South countries. It emphasizes the consumption of nature by the global north without properly restoring its ecological qualities and conditions (Robleto and Marcelo, 1992; Warlenius, 2015). The notion of climate debt is similar but focuses on the impacts of GHG emissions. Both concepts highlight the more than 500-year legacy of ecological wealth flowing from “developing” to “developed” countries and from poor to wealthy people. Incorporating these concepts into the fabric of global environmental politics and economics may re-configure existing power asymmetries. We also need states to become better equipped to promote Indigenous ecological agendas. In many cases, this means establishing an agenda for returning ancestral lands and recognizing Indigenous sovereignty. It also entails de-centering the current market-based approach and allowing communitarian forms of biodiversity conservation to flourish that are not 202 necessarily motivated by private property and profit. To be clear, I am not saying that markets are intrinsically damaging. But we know what happens when markets become deeply and widely embedded in fundamental aspects of life, as the case of Chile makes abundantly clear. When the state leaves markets to rule life, the private sector motivated by profit becomes the main provider. The social uprising in Chile reached a crescendo one week after the 18-O when around 1.2 million people gathered at Plaza Dignidad in downtown Santiago. It is widely considered to be the biggest rally in Chile’s history. A month later, in the midst of a state of exception with soldiers on the streets, Sebastián Piñera’s executive administration and parliamentarians signed the “Deal for Peace.” The deal established a referendum to decide on whether to rewrite the new constitution. With a massive vote of 78% in approval, the people made their view clear. This is the context for another slogan written on streets across the country: “Neoliberalism was born and now dies in Chile” (El neoliberalismo nace y muere en Chile). Chile was a laboratory for neoliberalism and must now be its grave. Will the approach to biodiversity conservation promoted by the environmental state meet the same fate? 203 Figure 5.1 “Neoliberalism was born and now dies in Chile.” The picture was taken on October 24th, 2020, one day before the national referendum. With permission from © Felipe Cárcamo. Source: Felipe Cárcamo’s Twitter account @carcamofelipe. 204 Figure 5.2 “Chile will be the tomb of neoliberalism.” The picture was taken on October 26th, 2020, one day after the national referendum. With permission from © Cristián Sanhueza. Source: Cristián Sanhueza’s Twitter account @csanhuezac. 205 Bibliography Achiume, T. (2019). Global extractivism and racial equality. Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance (UN Special Rappporteur A/HRC/41/54; p. 20). United Nations. Acosta, A. (2013). 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Antipode, 51(1), 373–392. doi: 10.1111/anti.12454 240 Appendices Appendix A Table of interviews Type of informant Relation with BPAS ID Gender Type of interview Site of Interview State experts-BPAS Economic instruments SE1 M Semi-structured Santiago State experts-BPAS Economic instruments SE2 M Semi-structured Santiago State experts-BPAS Economic instruments SE3 M Semi-structured Santiago State experts-BPAS Private conservation SE4 F Semi-structured Valdivia State experts-BPAS Economic instruments SE5 F Semi-structured Santiago State experts-BPAS Economic instruments SE6 F Semi-structured Santiago State experts-BPAS Economic instruments SE7 M Semi-structured Santiago State experts-BPAS Legal steps SE8 M Semi-structured Santiago State experts-BPAS Economic instruments SE9 M Semi-structured Santiago State experts-BPAS Economic instruments SE10 M Semi-structured Online Non-state BPAS experts Critical policymaking NSE1 F Semi-structured Santiago Non-state BPAS experts Critical policymaking NSE2 F Semi-structured Valdivia Non-state BPAS experts Critical policymaking NSE3 M Semi-structured Puerto Montt Non-state BPAS experts Critical policymaking NSE4 M Semi-structured Online Non-state BPAS experts Critical policymaking NSE5 F Semi-structured Santiago Non-state BPAS experts Economic instruments NSE6 M Semi-structured Santiago Non-state BPAS experts Economic instruments NSE7 M Semi-structured Santiago Non-state BPAS experts Critical policymaking NSE8 M Semi-structured Online Non-state BPAS experts Economic instruments NSE9 F Semi-structured Online BIOFIN experts Economic instruments BF1 F Semi-structured Santiago BIOFIN experts Economic instruments BF2 M Semi-structured Santiago BIOFIN experts Economic instruments BF3 M Semi-structured Santiago BIOFIN experts Economic instruments BF4 M Open Santiago BIOFIN experts Economic instruments BF5 F Semi-structured Santiago 241 Conservation NGO Economic instruments CN1 M Semi-structured Santiago Conservation NGO Economic instruments CN2 F Semi-structured Santiago Conservation NGO Economic instruments CN3 F Semi-structured Online Conservation NGO Indigenous consultation CN4 F Semi-structured Online Private Protected Area representative Private conservation PPA1 M Open Panguipulli Private Protected Area representative Private conservation PPA2 M Open Panguipulli Private Protected Area representative Private conservation PPA3 M Open Panguipulli Private Protected Area representative Private conservation PPA4 F Open Panguipulli Local key informant and environmental expert Conservation initiatives LKE1 M Open Panguipulli Local key informant and environmental expert Conservation initiatives LKE2 M Semi-structured Valdivia Local key informant and environmental expert Indigenous consultation LKE3 M Semi-structured Panguipulli Local key informant Conservation initiatives LK1 F Open Panguipulli Local key informant Indigenous consultation LK2 M Open Panguipulli Local key informant Conservation initiatives LK3 F Open Panguipulli Local key informant Conservation initiatives LK4 F Open Panguipulli Local key informant Conservation initiatives LK5 F Open Panguipulli Local key informant Conservation initiatives LK6 M Open Panguipulli Local key informant Conservation initiatives LK7 F Open Panguipulli Local key informant Conservation initiatives LK8 M Open Panguipulli Local key informant Conservation initiatives LK9 M Open Panguipulli Local key informant Conservation initiatives LK10 F Open Panguipulli Local key informant Conservation initiatives LK11 F Open Panguipulli Local key informant Conservation initiatives LK12 M Open Panguipulli Local key informant Indigenous consultation LK13 M Open Panguipulli Local key informant Indigenous consultation LK14 M Open Panguipulli Local key informant Indigenous consultation LK15 M Open Panguipulli Local key informant and environmental expert Indigenous consultation LK16 M Open Online 242 Appendix B List of interview questions A.1 Interviews with BPAS officers and experts in market-based biodiversity conservation Opening questions 1) What is your relationship with the BPAS bill? 2) What were the main hallmarks in the legal processing of the bill? Why do you consider them as relevant? Questions selected according to topic: A. Intergovernmental institutions in Chile: a. Is there a relation between the BPAS bill and the recommendations made by intergovernmental institutions? b. What was the impact of the OECD review published in 2005? c. Did the state respond to this report? In what ways? d. What is the impact of the OECD performance review published in 2016? e. Did the state respond to this report? In what ways? B. Biodiversity offsets market: a. What is your approach to the bank of compensations? b. How does it work? What elements are necessary for the bank to function? c. What knowledge does the bank need to work properly? d. Is this bank a market? Why? (Why not?) e. What does it need to become a market? 243 C. Questions for UN agents who worked in the Biodiversity Finance Initiative – BIOFIN-Chile a. What was your role in BIOFIN-Chile? b. What did BIOFIN provide to the state of Chile? c. What are the main results of the diagnosis conducted on this country? d. How does the bank of compensations work? e. Why is the bank of compensation the best solution for Chile? f. What else can be done – or changed – in Chile to improve the management and protection of biodiversity? D. Indigenous consultation: a. What is your view of the process? b. Do you think it worked well? c. What aspects would you modify form the consultation? What needs to be improved? d. What is your view of the relation between the state of Chile and Indigenous peoples? e. Do you think this relationship can improve? If so, in what ways?
Thesis/Dissertation
eng
Geography
Vancouver : University of British Columbia Library
Attribution-NonCommercial-NoDerivatives 4.0 International
Graduate
Dempsey, Jessica, 1977-
Barnes, Trevor J.
Making the environmental state in Chile : knowledge, markets, and legal frameworks for biodiversity conservation
Text