“Get off my beach”, a phrase that has become popular almost like a caricature, to represent the conflicts between private individuals and the community when they are faced with problems of access to these goods considered for public use in our legislation. And although the Civil Code declares that “its use belongs to all the inhabitants of the nation” (article 589), the truth is that there are a series of obstacles that limit access to the beaches and their effective public domain.
One of the main obstacles is precisely the fact that our legal definition of “beach” does not coincide with the scientific definition, nor with that generally accepted in other legal systems. This leads to an important part of the beach surface being left unprotected.
In most of the comparative planning, beaches have been understood as the deposit areas of loose materials, such as sand, gravel and pebbles, including escarpments, berms and dunes. In Chile, even the SHOA in its publication 3013 (4th edition, 2021) defines “beach” as the “accumulation of unconsolidated sediments, such as sand, gravel, gravel and others of a similar nature, which extend from the average line of low tide towards the coast to where there is a notable physiographic change such as a cliff, dune field, permanent vegetation or a work built by man.
This definition corresponds to other generalized ones in the scientific literature, to which we must add the systemic vision, since the beaches are connected with the hydrographic basin through the mouths of the rivers and with their wetlands, therefore, their Width is variable.
However, among us, the definition that prevails is the legal one, established in article 594 of the Civil Code of 1855, which provides that “a sea beach is understood to be the extension of land that the waves alternately wash and vacate as far as they reach.” at the highest tides.”
Public domain
This implies that everything known as “back beaches” (those areas of deposit of sand or other materials that are not usually covered by the sea), from a geomorphological and scientific perspective, are excluded from all protection and are therefore susceptible to private appropriation. To name what, both scientifically and in comparative law, is understood as a back beach, in Chile, unlike the rest of the world, we use the sui generis concept of “beach land”, which, according to our legislation, lacks of the condition of national property for public use and the protection that derives from it.
Thus, article 1, No. 57 of the Regulation on Maritime Concessions indicates that the public domain reaches only up to the limits of the beach itself, that is, the intertidal zone, noting that “in those private domain titles that indicate “As it delimits the sea, the Pacific Ocean, the marina, the beach, the port, the bay, the river, the lake, the shore, the coast or other analogues, it must be understood that this demarcation refers to the line of the beach.” . That is to say, in Chile current legislation allows private persons to own an important part of the beaches.
On the other hand, although the Law declares the right of all inhabitants of the nation to use the beaches free of charge, the truth is that this is only possible when there are access routes to them. Indeed, on many occasions this right becomes illusory, especially when all roads and highways are controlled by private parties, who often oppose citizens being able to travel through their property, generating conflicts that sometimes lead to long and costly judicial processes.
There is a specific rule for this problem, article 13 of DL No. 1,939, which requires owners of land adjacent to sea beaches, rivers or lakes to provide free access for tourism and fishing purposes, when there are no other means. or public roads. The regional administrative authority (Governor) is in charge of establishing access roads, respecting, as far as possible, the rights of the affected owners.
However, the vagueness of this rule has led to it becoming inapplicable in many cases. In 1996, the Executive tried to regulate the procedure by issuing a regulation, but the Constitutional Court declared it unconstitutional (STC of 12-10-1996). Consequently, the norm is far from representing a solution, which is why numerous conflicts arise in which some consider their property rights to be violated and citizens consider their right to access national goods for public use to be violated.
And this is how year after year we find disputes between private parties and people who want to access beaches, but also conflicts between artisanal fishermen and owners adjacent to the sea, rivers and lakes, given that the latter impose obstacles or restrictions on access, which for fishing communities represents a restriction on their freedom to develop their productive activities.
The Coastal Law proposal, emanating from science, takes care of these problems by guaranteeing the public nature of the coast, promoting participatory decisions and equitable use of the benefits provided by the coastal zone through the integrated management of coastal areas. , whose objective is the sustainability of the coast and its protection for future generations.