From the Canadian widow whose farm has been targeted for a natural gas pipeline to the one million Chinese who will be forced off their land by the Three Gorges dam, individuals and communities the world over are fighting projects that threaten their homes, health and livelihoods. Some don’t want to lose their fish or forests. Others fear magnetic fields from transmission lines, air pollution from incinerators, or groundwater contamination from waste dumps. Others worry about aesthetic losses or decreased property values. Still others – particularly indigenous people – believe that existing and proposed projects threaten their very way of life.
Rarely does a week go by without some development’s victims contacting Environment Probe, Probe International, or the other sister organizations that operate under the public interest umbrella of Energy Probe Research Foundation. These citizens seek information – often desperately – about the risks they face; they wonder how the decisions affecting them were made, and whether they can save themselves by proposing alternatives to the projects. We who receive their pleas can generally provide accurate – but discouraging – information about the industries confronting them and about their rights; on rare occasions, when shockingly severe injustices would translate into public outrage or when legal arguments might sway the day, we intervene on their behalf.
Our experiences over a quarter century have taught us the value that ordinary citizens place on their land, water, and other resources and their natural roles as environmental stewards. Individuals and communities who depend on resources understand their workings and know their limits. Since they would have to live with changes, their self-interest motivates them to protect their resources. But they need tools with which to do so. We have come to understand that their traditional tools – property rights, be they individual or communal – are the most effective.
Property rights – rules including both permissions and responsibilities – determine how decisions are made, how wealth is secured, and how income is distributed. Property rights govern who has the right to use the environment in which ways, and who has the duty to respect others’ rights. They establish who must pay whom in order to exploit or protect resources, influencing the costs that polluters and their victims must take into account before making decisions.
Our foundation’s research has spanned a variety of property rights regimes, some of which have benefited the environment and those who depend on it and others of which have done considerable environmental, economic and social harm. Some, such as the customary forestry management schemes in Guatemala or the collective water use systems in Thailand, vest decision-making in local communities. At the opposite end of the spectrum are others, such as those established to promote mining in medieval Germany, that have empowered privileged industries to use resources – even public streams and timber belonging to others – as they please. This book concentrates on the property rights regime developed under the English common law, a system of exclusive, transferable rights that has vested decision-making authority in individuals and firms who own or occupy land.
Empowering those most directly affected by pollution, common law property rights protect powerfully, preventing polluters from arbitrarily fouling streams or spewing poisons onto neighbouring property. No longer victims, the property rights holders set the rules, having veto power over developments. When projects do proceed, the property holders can ensure mutual benefit by negotiating effective mitigation measures and extracting compensation of their choosing for any damages suffered.
Many environmental groups prefer regulatory solutions to environmental problems. But regulations are made by remote governments who, driven by the need to create jobs or some undefined “public good,” are often the least responsible stewards of natural resources. Governments of all political stripes have given us thousands of reasons not to trust them to protect the en-vironment: they’ve licensed – and bankrolled – polluters, turned forests into wastelands, emptied oceans of fish, and dammed rivers that were once magnificent.
The overwhelming number of abuses that developments’ victims have brought to our foundation have persuaded us that governments more often than not make unwise decisions about the environment. The plight of British Columbia’s Cheslatta Carrier Indians illustrates the disastrous results of entrusting decisions to governments. In 1952, following the provincial government’s offers of cheap land and water rights, Alcan Aluminum erected a massive dam on the Nechako River to divert water to a powerhouse at Kemano. A spillway would raise water levels in Cheslatta Lake, drowning the Cheslatta’s village and washing away its graveyards. The federal government kept the project secret from the Cheslatta, only informing them two days before the dam’s completion that they would be flooded off their land and forced to abandon their homes, farms and traplines. The government, the Cheslatta charge, negotiated compensation amounting to only one-tenth that paid to whites displaced by the project, and ultimately forged signatures on documents surrendering their land.
Three decades later, although many band members had returned to their traditional lands, the powers that be again excluded the Cheslatta from decisions about Cheslatta Lake and the Nechako River. In 1987, the federal and provincial governments quietly approved phase two of the Kemano hydroelectric project, further threatening not only a rich salmon fishery but also the Cheslatta culture and economy. Three years later, the federal government exempted the project from a federal environmental review.
The provincial government’s abrupt cancellation of the half-completed project in 1995 signalled a reprieve for the Cheslatta. But their battle was by no means over. Rather than leaving their future security in the hands of capricious legislators whose positions change with economic conditions and the party in power, they continued their fight for the return, restoration and protection of their lands and resources. They continued their fight, in short, for secure property rights.
Forty-five years of government decision making have made losers of all parties. It is impossible not to conclude that both the Cheslatta and the environment on which they depend would have fared far better had the Cheslatta had strong property rights – had they owned their traditional lands with the power to make decisions regarding them. The rest of the province, too, would have benefited from a system based on property rights rather than on the arbitrary exercise of government power. Alcan wouldn’t have invested a half billion dollars in now useless infrastructure, and wouldn’t have suffered violations of its own rights. Taxpayers wouldn’t face huge damage claims resulting from the tangle of conflicting rights and obligations. And British Columbia wouldn’t have earned a reputation as an insecure place to invest – a reputation sure to destroy far more jobs than the Kemano project ever created.
The story of the Cheslatta is just one among the hundreds that our foundation has grappled with over the years. Some of the others appear in the following pages. Far more remain unrecorded. But the lessons drawn from them became the seeds from which this book has grown.