Below are my notes from a public lecture that I attended back in July. Professor Carol Rose currently holds the Lohse Chair in Water and Natural Resources at the University of Arizona College of Law, and was previously the Gordon Bradford Tweedy Professor of Law and Organisation at Yale University Law School. She was the Cameron Visiting Fellow at the University of Auckland Law School for 2011.
Because these are notes taken during the presentation, they could probably do with some cleaning up. I've edited them only to correct spelling and typing errors.
I am going to write another post, probably later today, with my thoughts on some of what she had to say.
Public Lecture by Professor Carol Rose, Cameron Visiting Fellow for 2011,
Thursday 4 July 2011,
Faculty of Law, University of Auckland.
Property has historically been aimed at quite different concepts to nature; particularly productivity. Property encourages the self-interested owner to invest and labour on what is his or hers, because if he or she does then he or she will reap the rewards. Because property vests ownership in one party it encouraged people to trade instead of fight. Whereas conflict is wasteful and expensive; trade is supposed to be mutually beneficial.
We are accustomed to thinking of property rights as the impediment to conservation. We hear property owners saying ‘you can’t do this because my property rights are affected’. The opposition between the two concepts goes back a long way before that: Bentham in the 18th century had some unflattering things to say about the Americas in their natural forested state. He described the continent as gloomy, miasmic and impoverished. According to this view, the introduction of capitalism and property brought light to the region.
Property has traditionally been aimed at a kind of productivity that is intrusive on the natural state of things. In the common law, the way that one acquires property in unowned things is an example: such property becomes yours when you capture it. If property means cutting down a tree, would the modern rainforests be better off without property?
The pattern of settlement in the Amazon has gone through several steps. The first is illegal logging, often accompanied by burning. The second step is ranching. The third is agriculture. There are sidelines in gold mining, petroleum development, etc. Along the way there have been vicious conflicts between settlers and indigenous peoples, as well as between different groups of settlers. Governments have encouraged new settlement, in part to get the restless core away from the cities. One means of encouragement are a set of land laws that permit what are termed unproductive lands which have historically included forested areas. Making the land productive meant removing the trees. Another major driver of settlement has been the developments of roads. Roads of course are bad for the forests: they separate the forests, allow pests and foreign flora to enter the area, they dry out the surrounding land, and of course they encourage the introduction of more and more people.
These experiences are reminiscent of the American experience. During all of this American land laws encouraged new entrants in much the same way that laws are encouraging the same thing in the modern Amazon area. Such laws encouraged fencing, diversion of waterways, construction of railroads and dams. The consequence of this in America has been the almost complete destruction of the native grasslands. Some areas of forest have remained, but preserved areas are often not large enough to support native fauna in their natural environment.
The most serious issue here seems to be not that there is too much property, but that there is too little property. It matters when nobody owns a resource because when that resource becomes valuable or scarce, there is no protection for that resource: the tragedy of the commons. There are a lot of weaker property regimes that allow more property rights than that of the commons, but such regimes are often not strong enough to provide the protection that we might want. Fitzpatrick: there is a third world tragedy of the commons attributable to legal pluralism: a number of incompatible rules as to who owns property, and further confusions between the formal rules and the informal ones.
When you are not sure about your own property rights you tend to gravitate towards short term gains. You take trees out rather than planting new ones. You don’t think about long term or large scale resource uses. This points to an under-observed issue with the commons: weak property rights undermine learning. If you are not going to get anything out of long-term ownership of the resource, then you are not going to bother learning about how you might do so.
Property may not have been very friendly to untrammelled nature in the past, but the absence or weakness of property can be even worse. We might think of property regimes as a second best way of approaching conservation. But property is often not as bad as what comes from insecure property.
Conservation values were not a large part of the modern US property regime, but they were not entirely absent either. The US did manage to hold onto some significant areas of natural resource (national parks and some pockets of land gifted to the government by private individuals).
The Amazon regions are not as well established and therefore pose more risks. But there are two fundamental differences between the United States and the Amazon region. The first is that there is a lot more concern today for a number of environment related topics than there were in the 19th century. On the other hand we have come up with new forms of property that can convert those interests into things that the law can deal with.
As to the subjects of the interest in forested areas, the first and foremost is a greater interest in indigenous peoples. Indigenous peoples have a moral claim and a public attention that are much greater than it has ever been. The outsiders coming into the Amazon region may not share those sentiments, but even those settlers know that the eyes of the world are on them. The indigenous peoples themselves are much more assertive and much more technologically savvy than they were even a few years ago. There is also a realisation that forested areas can actually have some tangible value if they are left alone. One obvious value is eco-tourism. A little less obvious is the development of new pharmaceutical products. And perhaps the least obvious is the value in the area of global climate change.
In the past, property institutions have encouraged intrusive use of resources, and now property institutions are being expected to change.
Who is the owner going to be? One answer is that the rainforests belong to all of us: they are part of the common heritage of all mankind. The forests serve as carbon sinks and sources of biodiversity and so should therefore belong to all of us. Amazon region governments are clearly quite hesitant towards this idea. Therefore another answer is that the Amazon rainforests belong to Brazil and the other countries in which the forests are located. A third answer is that the respective countries are sovereign in the sense of governance over the forests, but the primary owners are the settlers themselves. That approach is supported by the fact that those people have done what they were supposed to do, and ultimately they are the ones who are there an in effective possession. They have actual control of the resource. Another set of candidates to ownership are the tribal groups. Their claims are based on being the first ones there and a sense of deservedness.
There are several property instruments with which to deal with these areas.
The first is the idea of public reserves. America has some considerable experience of this beginning with military bases, and later expanded to areas for Native Americans, national parks, etc. In terms of the Amazon region, there could be reserves for (a) indigenous peoples, (b) extractive reserves for settlers who have been in the area for some time, (c) national parks and reserves in the traditional sense. These set asides encourage passive use of the land. There is bound to be opposition where valuable minerals are discovered in the forest. A second notion is that set aside areas are going to have to be enforced - they are going to come under intense pressure if valuable resources are discovered. The benefits of low-intensity set asides would presumably flow to people who were intentionally favoured, but benefits are also likely to flow to the larger world. Meanwhile the costs are borne by the local nations in the form of lower economic outputs. We can imagine that those local nations will look for a way for other countries to contribute to the cost.
A second is conservation easements and land trusts. In property law an easement is the right to use someone else’s property. Conservation easements are an innovation on these in the sense that you are using someone else’s property by preventing them from using it. Such easements generally must be paid for. One way of paying for these is through debt concessions: developed countries can forgive debt in exchange for a conservation easement over particular land. Conservation easements require monitoring and enforcement just as public reserves do. The beneficiaries of these conservation easements may be very far away (particularly if the organisers are worldwide NGOs), the land areas involved may be large, remote and difficult to police. New technology, particularly satellite sensing, can help a good deal; but they are not the whole solution. If somebody representing a foreign NGO does go and attempt to investigate, then the reception that person is going to get is likely to be less than hospitable. Monitoring is an issue. There is also the question of tracking violations. The illegal trade in endangered species is considerable and difficult to track. It is similarly hard to tell where a log came from. Technology can help, but requires a lot of sophisticated equipment.
The third is a Community Based Management Regime (CBMR). Some of the issues that arise around conservation easements lead us to think that CBMRs could be the solution. A CBMR is similar to a corporation in the sense that it is a group of people who owns something, but it does not follow a shareholder model. CBMRs have been used in various areas to set up game parks and help with the preservation of wildlife. The CBMR concept recognises that local people, be they indigenous people or settlers, have interest in the resource and that their help is needed. There is no reason why CBMRs cannot be tied in with debt forgiveness and other tools already considered. From a conservationist perspective this straight up property approach can be difficult: it is not at all inconceivable that some of the tribal groups are going to want to do what the settlers have been doing. The more successful they are in non-conservationist activities, the more conservationists are going to have to take steps to make it worthwhile for them.
One way of making conservationism worthwhile for CBMR groups is via intellectual property rights. There has been discussion of treating indigenous knowledge as a form of intellectual property for which companies have to pay. There are also ways of making companies pay to discover new materials in the rainforests.
Another significant way of making conservationism worthwhile is the system of carbon trading. Cap and trade ideas are being widely adopted around the world. On an international scale, carbon trading systems could have a considerable bearing on the Amazon region. Firms that have a product that produces carbon dioxide could pay a country or CBMR group to preserve or expand forested areas. Profits from such trades could be passed on to indigenous people or other groups. Carbon trading payments can put a positive valuation on rain forest conservation. That value could conceivably exceed the value that could be obtained from clearing and farming. The elephant in the room is of course arriving at a workable international accord on carbon trading. The European Union has been resistant to large-scale forestry carbon credits. There are also technical complications: different types of flora have different levels of benefit in storing carbon. If it is the case that new fast-growing trees are better at absorbing carbon than old established trees, then carbon trading schemes could end up pitted against bio diversity causes.
Property regimes are not going to be a perfect solution to any conservation problem. The best solution would be if there were no property and we all respected the environment just because it’s the right thing to do. Property isn’t as good at that; but we’re probably not as good at that either.
Noted by Brendon Steen
LLB/BCom Undergraduate, University of Auckland
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