Nature versus the common law IV: Shifting watercourses

In the last posts in this series we looked at court decisions that discussed whether the ownership of rivers should follow the common law or change to reflect local environmental conditions. Another branch of water-related law dealt with the legal consequences of changes in the course of a river or a shoreline over time. The property-law questions thrown up by these changes, under the legal terms "alluvion" and "diluvion", were to whom newly formed dry land belonged – to the former owner of the dry land now submerged, or to the owner of the adjacent riverbed. The English rule, based on Roman law, was that gradual accumulations of land from water belonged to the to the owner of the land to which the new land was added, while gradual losses of land were lost to the landowner and became part of the river (Foster v Wright, 4 CPD 438 (1878)). Sudden changes in the course of a river, on the other hand, were held not to bring about changes in ownership of the bed.

One line of legal thought held that the English common law rules in this area of law applied everywhere. The English Court of Exchequer in 1839 (In re Hull and Selby Rwy, 151 English Reports 139 (Ex 1839)) opined that the common law of alluvion "is not peculiar to this country, but obtains also in others, and is founded on the necessity which exists for some such rule of law, for the permanent protection and adjustment of property." Similarly, seventy-five years later, the Privy Council rejected arguments that the English law did not apply to the Nigerian shoreline due to differences in the local conditions, Lord Shaw stating that the court did not doubt the "general applicability" of the English law of accretion. This, however, was the minority position.

Decolonising the Nile water agreements

The latest issue of the Journal of the History of International Law / Revue d'histoire du droit international has an article by Fekade Abebe, "Exclusion vs Cooperation in the Utilisation of Transboundary Watercourses: The Case for Decolonising the Nile Water Agreements". The abstract:

The relationship between Egypt and Ethiopia was marked with tension for centuries due to the utilisation of the Nile river. Recently, it took a turn for the worst after Ethiopia announced it is building the Grand Ethiopian Renaissance Dam (GERD) on the Nile river. This article argues that one important explanation for the deep-seated disagreements between Egypt and Ethiopia is the history of the legal instruments frequently invoked which were set up to safeguard the colonial interest of Britain over Egypt and the entire upper Nile region. Britain’s use of these legal instruments to advance its colonial domination of the region, with disregard to the interests of native communities, had left a legacy of exclusive utilisation over the river which haunts the current legal discourse. The article argues that the Nile basin countries need to acknowledge this colonial legacy in the legal discourse and need to move towards cooperation.

How control of nature shaped the international order

Posted recently to International Law Reporter, a nomination by Gail Lythgoe for the most interesting, important, or influential article or book published in 2022:

Joanne Yao, The Ideal River: How Control of Nature Shaped the International Order (Manchester Univ. Press 2022)

This book explores the geographical imaginaries of three rivers (the Rhine, Danube, and Congo) and how these very imaginaries shaped the constitutions, structure, and life of three early international organizations. It is a marvellous tale of how (and why) experts sought to tame nature and also says much about law’s relationship to the physical geography. I always really recommend and admire it because of how well written and engaging it is.

From the publisher's website:

The ideal river examines nineteenth-century efforts to establish international commissions on three transboundary rivers - the Rhine, the Danube, and the Congo. It charts how the Enlightenment ambition to tame the natural world, and human nature itself, became an international standard for rational and civilized authority and informed our geographical imagination of the international. This relationship of domination over nature shaped three core International Relations concepts central to the emergence of early international order: the territorial sovereign state; imperial hierarchies; and international organizations. The book contributes to environmental politics and international relations by highlighting how the relationship between society and nature is not a peripheral concern, but one at the heart of international politics. 

Nuisance law and forced labor

I recently participated in the great Legal Histories of Empire conference that met in Maynooth, Ireland. There were a number of papers on environment-related topics (especially about the oceans), but one that really stood out for me was that of Erin Braatz on nuisance law in colonial Gold Coast (Ghana). 

Braatz showed that the largest category of criminal prosecutions in the Gold Coast was for nuisance, and especially sanitary offenses, and suggested a surprising (for me, at least) explanation: the colonial government's desire for forced labor. After the abolition of slavery, colonial rulers and settlers cried out for (cheap) working hands, and sentencing locals to terms of labor for nuisance violations was one way of providing them.

I've often noted before connections labor issues and environmental regulation, but Braatz's research suggests a new (and unsettling) angle.

Savagery, civilization, and property V: Colonial development and Neo-Malthusian conservationism

In the last post in this series we saw how Enlightenment-era stadial thought was passed on to modern commons theory through the aboriginal property rights debate among twentieth-century ecologists. Today I'll discuss what I believe two more lines of influence. (The full article is here.)

The first was by way of the work of anthropologists and scientists associated with British colonial development efforts under the aegis of colonial administrator Malcolm Hailey. Lord Hailey, after a career in the Indian Civil Service, was tapped to run the African Survey in the 1930s and the Colonial Research Committee in the 1940s, and was an advocate of multidisciplinary social science research, particularly anthropological, in the colonies.

The staff of Hailey’s African Survey seem to have created something of a nexus for stadial thought in the context of colonial development. London School of Economics anthropologist Lucy Mair’s chapter on land made heavy use of the stadial framework for considering “the evolution of the most suitable form of land tenure”:

Lucy Mair

In some areas land custom is changing rapidly under the influence of new conditions, such as the increase of the pressure of population or the spread of a market economy. These changes will eventually involve official intervention . . . ; the need must, for example, be envisaged for the definition and recording of title . . .

There is nothing peculiar to Africa in the general direction which the evolution of land custom is taking; its adjustment in response to economic changes is a natural process which would occur independently of any action taken by the administration. 

In Mair’s analysis, traditional, communal forms of African land tenure needed to progress to more private rights in order to encourage development:

All discussions on the subject agree as to the value of giving security to the occupier of land, and the further advantage of what is generally termed the individualization of tenures. It has been urged on different occasions that the extended system of rights, vested in the family or group, has proved in Africa to be an obstacle to improved agriculture.

Strikingly, Mair also reported on Hardin’s tragedy of the commons, avant la lettre, herdsman and all:

Those who have had to deal with East African conditions have added the . . . argument that there is little incentive to natives to reduce their live-stock in order to prevent the wastage of pasture and consequent erosion, since nothing done by the individual will avail unless his neighbours take corresponding action . . . 

Moreover, in a remarkable anticipation of later legal scholarship that highlighted potential “comedies of the commons” and “tragedies” of its disappearance,  she also warned of the advantages of common property in some situations: “The question of rights over grazing commonages presents its own difficulties; the partition of grazing grounds into small units would be a bar to the adoption of that rotational use of pasture which many hold to be the best preventive of erosion in East African conditions.”

Digital library IV: Bartolus's Tractatus de fluminibus seu Tyberiadis

After beginning the digital library of historical environmental law with works from the last few hundred years, we go back in time this week to the fourteenth century and the Tractatus de fluminibus seu Tyberiadis (1355, 1576 edition (source of the images in this post) here) of the great medieval Italian jurist Bartolus of Saxoferrato.

As Bartolus explained at the beginning of the work, he was inspired to write the book while on vacation near Perugia, despite his attempts to enjoy his vacation and stay away from legal scholarship:

This river [Tiber]... circles that splendid mountain on which the city of Perugia is situated and while flowing a great distance through its district, the river itself is bordered by plains, hills and similar places. These places are also well inhabited, enhanced with many beautiful buildings and luscious orchards bearing lots of fruit. Thus, when I was resting from my lecturing and in order to relax, was travelling towards a certain villa situated near Perugia above the Tiber, I began to contemplate the bends of the Tiber, its alluvion, the islands arising in the river, the changes of the river-bed as well as a host of unanswered questions which I had come across in practice. There were also other matters, which came to mind from my own observance of the river. I began to consider in various ways what the legal position was, not believing that I would take it any further, lest not to spoil my vacation, the reason why I had come. And thus while I slept that night, I had a vision near dawn that a certain man, whose countenance I found gentle, came to me and he said the following: "Write down what you have begun to think about and since there is a need for illustration, provide mathematical diagrams: Look! I have brought you a reed pen to measure and draw circles as well as a ruler to draw lines and to construct diagrams". I told him to spare me from illustrating legal matters with geometrical diagrams, since were I to do that, there would be many more scoffers than supporters. Then, looking at me with a troubled countenance, he said: "Bartolus, I know that you have something (in you) of God, but are you indeed afraid to be ridiculed for your service? 

Water rights VI: A human right to water

(The final installment in the series on water rights:)

Alongside interest in public rights that trump the regular water rights of property law, there is much interest in private, human rights that do so. Many systems of water law have long recognized some right to basic water uses superior to other water rights. Islamic law's "right of thirst", the right to take water to quench one's thirst or to water one's animals, applies even to privately owned waters under most schools of Islamic jurisprudence (Caponera, 1954). Under the system of riparian rights, domestic or "natural" uses have preference over other uses (Beck, 2000), and domestic uses also have priority over other uses in most jurisdictions applying the doctrine of prior appropriation (Trelease, 1955). China's water law, too, exempts household and other small quantity uses (Wouters et al., 2004).

Recent years have seen an explosion of interest in the idea of a right to water framed in human rights terms. Scholars (e.g. Gleick, 1999) have argued that the right to the minimal amount of water needed to supply basic human needs is implicit in basic human rights norms, and an effort has been made to give this right more explicit, formal, legal recognition.

The Committee on Economic, Social and Cultural Rights of the United Nations' Economic and Social Council issued in 2003 its "General Comment No. 15"  on the right to water as anchored in the International Covenant on Economic, Social and Cultural Rights, stating (para. 2) that "the human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses." The right to water was found to be anchored in the rights recognized by the Covenant to the highest attainable standard of health, adequate housing, and adequate food, as well as in the right to human life and dignity enshrined in the International Bill of Human Rights; other treaties, such as the Convention on the Rights of the Child, explicitly recognize a right to water. The general right to water was said by the Comment to include the right to maintain access to existing water supplies necessary for the right to water, the right to be free from arbitrary disconnections or contamination of water supplies, and the right to a system of water supply and management that provides equality of opportunity for people to enjoy the right to water. Adequacy is measured by a number of factors, including the water supply being sufficient and continuous for personal and domestic uses, safe, physically and economically accessible, and provided without discrimination.

South African Constitutional Court

A prominent recent judicial decision on the issue was the 2009 ruling of South Africa's Constitutional Court in Mazibuko v City of Johannesburg. The South African Bill of Rights recognizes a right to "sufficient food and water" and that "The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights".

Inter-imperial riparian law VI: Miner as an inter-imperial legal authority and Conclusion

On Friday we discussed the place of French and American law in Privy Council water decisions, leading up to the seminal 1858 case of Miner v. Gilmour. Today we'll look at how Miner became an inter-imperial authority, as Lord Kingsdown's summary of the relative rights of riparian owners was cited widely throughout the British Empire and beyond (for examples of the case's influence, see the article on which this series is based).

Though arising in a case in which the applicable law was the old French law of Canada East, on the imperial periphery, it was taken as a faithful exposition of the common law of England, the imperial metropolis. In the 1876 case of Lyon v. Fishmongers’ Company, for instance, dealing with the right of access of riparian owners to the River Thames, the House of Lords (at the time the highest court for cases arising in Britain itself) referred to it as one of ‘the best authorities’ on riparian doctrine.

"a lord of appeal" [Colin Blackburn].
(Spy, Vanity Fair, 19 Nov. 1881)

Perhaps the most interesting reliance on Miner (for our purposes) in the water jurisprudence of the British Empire came in two decisions authored by the British judge Colin Blackburn. In the House of Lords case of Orr Ewing v. Colquhoun (1877), Blackburn rejected the rule of Scottish law applied by the Scottish court below, arguing (inter alia), "If such be the law of Scotland it is different from what Lord Kingsdown, in [Miner v. Gilmour], states to be the law of England and France". Lord Blackburn, it seems, was ready to modify the law of the metropolis (albeit of Scotland, a jurisdiction of secondary importance, and one in which the civil law, not the common law, applied), bending it to conform to the law as laid down in Miner, a case governed by the law of a foreign empire.

A few years later came Commissioners of French Hoek v. Hugo, an appeal to the Privy Council of a judgment of the supreme court of the Cape Colony, in today’s South Africa.  Governing the dispute over the waters of two small watercourses was what is known as Roman-Dutch law. This was the law in force in the Cape Colony when it was ceded by the Dutch to the British at the end of the Napoleonic wars (the metropolitan Netherlands had by this point adopted the Napoleonic Code for use in the home country), and, as the colony had been conquered from another state, not “settled”, this was the law that remained in force under British rule. Like the pre-Revolutionary French law in force in Quebec, Roman-Dutch law was based largely on the writings of learned ‘civilian’ jurists writing in the Roman law tradition. Indeed, in addition to Cape Colony cases and Roman-Dutch sources, lawyers for the appellants cited French treatises in support of their argument.

Writing for the Privy Council in French Hoek, Lord Blackburn referred approvingly to the summary of the law of riparian rights in Miner v. Gilmour, seeming to attach some importance to the similar positions of the Roman-influenced civil law in Canada East and the Cape Colony:

Water law and apartheid

The latest Water History has an article by Johann Tempelhoff, "The Water Act, No. 54 of 1956 and the first phase of apartheid in South Africa (1948–1960)". The abstract:

After the formation of the Union of South Africa in 1910 the government department responsible for water governance, in terms of the Irrigation and Conservation of Water Act, No. 8 of 1912 went by the name of the Department of Irrigation. In 1956, when the Water Act, No. 54 of 1956, was passed its name changed to the Department of Water Affairs. The new legislation marked the beginning of a new era in South Africa’s water governance. The focus of the department shifted from irrigation infrastructure and bulk water governance responsibilities, to make an important contribution to the country’s social and economic development. Priorities of the day included the need for more comprehensive water infrastructure for industrial development; the greater demand for water in the country’s rapidly growing urban areas; and taking steps against the increasing threat of water pollution. In this paper the focus is on the way the department, in terms of the Water Act of 1956, responded to the policy of separate development (apartheid), but at the same time took a deeper and long-term view of the development of water infrastructure to be of value for the country and its people, beyond the shorter temporal view of the political leaders of the day. The period 1948–1960 can be seen as the first phase of apartheid (1948–1960). It was notable for the initial emergence of significant opposition amongst the country’s indigenous African people to the white minority government’s apartheid policies, but their struggle was subdued. This phase came to an end at a time when the rest of Africa was engaged in rapid decolonisation and South Africa became politically ostracised in the international arena. What is apparent is that the emergent hydraulic mission of industrialisation promoted unsurpassed development that was destined to have a marked effect on South Africa’s status as a modern state on the African continent.

Race and public lands

A recent issue of Environment and History has an article connecting issues of conservation and race, Harald Witt's "Indigenous Trees and Forests: Contradictions, Conflict and Conservation in Natal and Zululand (1900–1960)". The abstract:

At the turn of the nineteenth century, it was estimated that nine-tenths of the identified forests in Natal had been permanently alienated from the Crown through their incorporation into private lands and Native Trust Lands. The entrenchment of the political power of white land-owners in the twentieth century ensured that official attempts at restraining private land-owners from destroying indigenous forests on their lands were doomed to fail. Trust forests, as quasi state forests, were however, more accessible to Forestry officials, who remained convinced that the management and ultimately preservation of these forests could best be controlled and managed by themselves. This article examines the manner in which the conservation and administrative control of the various forests on Trust lands became the subject of dispute between various organs of the state in the first half of the twentieth century. This contestation was characterised, on one level, by a general shift from a conservationist and utilitarian approach in regard to the management of indigenous forests to one that was far more preservationist in definition while, at the same time, illustrating fierce administrative tensions between a relatively compassionate Department of Native Affairs and a Department of Forestry that subscribed to a more racialised agenda.

 Coastal Forest Dunes at Sodwana, Zululand (Carlos de Resende)

More on forests in revolutionary France

Vallée de La Loue - ©CRT de Franche-Comté

H-Environment just published a roundtable review of Kieko Matteson's Forests in Revolutionary France: Conservation, Community, and Conflict, 1669–1848 (Cambridge UP, 2015), previously covered here. Some legal highlights, starting with Caroline Ford's comments:

The book is based on a wealth of archival material and primary documents that Matteson found in both national and provincial archives in France. She sorts through and illuminates very technical modes of forest management, while setting the scene for conflicts between local communities and the French state in masterful ways. She seeks to explore reform efforts on the part of the state as well as the ideological agenda of lawmakers, landowners and commentators in order to explore both the successes and failures of natural resource allocation and environmental conservation in the context of sweeping revolutionary change and the expansion of state power. She examines a number of important questions in this regard including why conservation policies prompted resistance; and how customary rights were supplanted by those of private property. To this extent she resuscitates a debate, which has recently again become the focus of some attention among environmental historians in France on the “tragedy of the commons,” which was sparked by Garrett Hardin’s 1968 article in Science and Elinor Ostrom’s rebuttal (among others).

*****

The great strength of Matteson’s close study of the Franche-Comté lies in grounding her work in a micro context, in a specific time and place. She shows the very real impact of policies enacted in the capital on a rural region of France, but one wonders how and whether imperial conquest that began during the period which she explores and French encounters with other forested landscapes shaped (or did not shape) policy in the metropole, a subject explored in Richard Grove’s path-breaking Green Imperialism. Matteson mentions, for example, that the French forest code was exported wholesale to Algeria at the time of conquest, where conditions were far different from those in metropolitan France. Many foresters served in both France and in her colonial possessions. This code was finally revised in 1903, and one wonders about the extent to which foresters considered and compared colonial and metropolitan forests and landscapes. 

***** 

Finally, calls for saving forests came from other quarters and were articulated less in terms of conservation than in terms of heritage preservation and patrimoine. These calls came not from engineers, scientists, or foresters but from a middle class urban public. It was the Barbizon school of painters who were behind Napoleon III’s 13 August 1861 decree that created the first protected natural landscape in the forest of Fontainebleau as a réserve artistique, and the painters fought pitched battles with foresters, who defended their own conservationist initiatives, such as planting pines. Both made claims about protecting the forest, but in very different ways.

Environmental regulation in colonial Zimbabwe

The latest Environment and History has an article by Muchaparara Musemwa, "Sic utere tuo ut alienam non laedas. From Wanton Destruction of Timber Forests to Environmentalism: The Rise of Colonial Environmental and 'Sustainability' Practices in Colonial Zimbabwe, 1938-1961". The abstract:

This article examines the roots of colonial Zimbabwe’s culture of environmentalism – described, here, as increasing social awareness of the rapid deterioration of the environment and the pressing need to take decisive action to counteract it. It argues that only a one-sided story – namely colonial conservationist discourses and practices especially as they pertained to African reserves in colonial Zimbabwe and other parts of Southern and Eastern Africa – has been the object of myriad historical analyses. Yet, there is a corresponding story that seems to have fallen between the seams of history as it is rarely articulated in Zimbabwean historiography in a systematic and comprehensive way, i.e. the origins of a colonial environmentalism – one focused more on reinforcing white settlers’ sustainable uses of natural resources and less on Africans. It chronicles how the once verdant landscapes of colonial Zimbabwe were transformed into near waste in the first four decades of colonial occupation from 1890; highlights how the diverse voices of environmental concern that appeared at the time compelled the colonial Zimbabwean state finally to institute the Commission of Inquiry into the Preservation of the Natural Resources of the Colony of Southern Rhodesia in 1938; and examines how this Commission’s recommendations became the basis for the establishment of a number of institutional regulatory systems to initiate an efficiency-oriented approach to the management of the colony’s natural resources. It highlights how the notion of ‘sustainability’ was infused into the Commission’s Report and became such a powerful trope that it laid the basis for subsequent institutional and legal environmental resource management in colonial Zimbabwe, surviving intact into the first two decades of postcolonial rule. The article further explores how the farmer–miner conflict unfolded beyond the McIlwaine Commission and how the Natural Resources Board finally led to a successful resolution of the conflict in 1961. The McIlwaine Commission Report attests to rising social and environmental concern at the ongoing ecological decline of the colony’s resources, resulting in the realisation of a resolute response in order to guarantee the sustainability and welfare of white settler society.

L. F. Hughes, Back Page, Umtali and the Eastern Districts of Southern Rhodesia (1953)

National parks in the Netherlands

Wolff en Hoeck in de Purmer: Jan van der Heijden (1678) (courtesy SKBL)

Over at Environmental History Resources, Jan Oosthoek recently posted "Cultured nature: The Nature Scenery Act of the Netherlands", based on his podcast interview with Wybren Verstegen, whose article, "The Nature Scenery Act of 1928 in the Netherlands", was published last year in Forest History Today. There's also a video. Oosthoek writes:

When thinking of national parks most people think of famous examples like Yellow Stone and Yosemite in the United States or the Serengeti in Tanzania. These parks are large in scale with an emphasis on wild life conservation and the preservation of scenic landscapes. Human activity and presence are restricted and regulated and people are visitors.

In smaller and densely populated countries like Britain or the Netherlands, the creation of large national parks is complicated. In these countries landscapes are far from natural and humans are part of the fabric of the landscape. For this reason, it is difficult to restrict human access and activities to create national parks.

In the Netherlands nature and human activity are almost inseparable because about half of the country is at or below sea level and is reclaimed or drained. Consequently, the landscape of the Netherlands is mostly the product of human intervention and can therefore be described as a cultural artefact. As a result, formal protection of landscapes and wildlife came late. One of the early attempts to create protected conservation areas came in 1928 with the Natuurschoonwet, freely translated as Nature Scenery Act. This Act was mostly about protecting country houses set in park like settings.

As Oosthoek himself notes in the video, even in the US park landscapes are far from natural. But, as anyone who has visited parks in the US and in Europe knows, there is a big difference in the degree to which parks aspire to a wild or "natural" aesthetic on the two continents, with European parks tending to distinguish far less sharply than their American counterparts between nature and culture.

Imperial free trade and the environment on flim

The relationship between trade and the environment is a fraught one; most recently it has been prominent in debates over the proposed Trans-Pacific Partnership.

"Empire Trade", a 1934 British propaganda film, provides some historical context (you can view it at the excellent Colonial Film website; I got to it through a University of Exeter online course on the British Empire). Here low tariffs within the British Empire are touted in terms of the jobs brought to the home country by exports to the colonies and dominions, and the the raw materials from around the empire that feed British industry.

Visually, prosperity at home is represented by belching smokestacks, white-hot furnaces, and smoking locomotives.

"The size, rather than the position of England, governs our greatest national problem today.
We are not a self-supporting country. We depend for our existence on the exchange of our
manufactured commodities for the food and raw materials that we cannot produce ourselves,
and for these we must rely largely upon our Empire and our merchant navy."

And the video tour around the empire is a celebration of exploitation of nature and colonial labor. (Please read the captions, but trigger warning: some of the text is distasteful.)

Rubber plantation in Malaya. "The amount of rubber produced here alone
is nearly twice as much as the rest of the world's output, and so
forms a tremendously important addition to our Empire resources."

Coconut plantation in Malaya. "This chap doesn't have to wait for the fair
and the coconut shies to come to town; he can have 'em for breakfast every morning."

Floating logs in Canada. "The watermen, who see to it that these logs float downstream without
jamming, have an exciting time." A few frames later, some of them fall in the water.

South Africa. "Her most important industries are diamond and gold mining,
both developed by British engineers, equipped with British machinery."

It seems that circa 1934 environmental degradation and exploitation of less developed countries were clearly seen to result from free trade. One might be charitable and say that they were seen as the price that needed to be paid for economic prosperity, but watching this film, one gets the sense that its makers weren't troubled at all by these costs.

More on Cecil the lion

In last week's post on Cecil I didn't have time to do much more than copy an extract from the NY Times piece, but I think it's also worth trying to unpack the argument made or echoed in the story that "hunting... is part of a complex economy that has so far proven to be the most effective method of conservation".

One argument seems to be that demand for hunting gives government preserves a lucrative source of income, which they can use for conservation:

While hunting is banned in government parks here in South Africa, animals inside their boundaries are routinely sold to game ranches when their populations are considered excessive, generating money to maintain habitats and fight poachers.

But that's not really an argument for hunting, that's an argument for letting parks sell "excess" animals to those willing to pay for them; not only hunters, but ivory collectors, medicine preparers, zoos, or whomever.

Another argument seems to be that private, for-profit management is better at conserving land and species than government conservation:

In southern Africa, the emergence of a regulated trophy hunting industry on private game ranches in the 1960s helped restore vast stretches of degraded habitats and revive certain species, like the southern white rhinoceros, which had been hunted almost to extinction, conservationists say.

It's not clear what the connection between hunting and restoration is here, other than providing an incentive to private ranch owners to restore land and species so they can make money from hunting. Surely government could do the same, without the financial incentive.

In a strange twist, the article then says:

Representative Absalom Willis Robertson of Virginia

A similar shift occurred in the United States decades earlier when the Pittman-Robertson Act of 1937 allocated the proceeds from hunting to bring back lands and animals, [conservationists] argue.

The "proceeds of hunting" allocated by the Pittman-Robertson Act (the Wildlife Restoration Act of 1937) to habitat restoration are actually the proceeds of an excise tax on firearms and ammunition. Now, while it may be true that hunting makes such a tax more palatable from a political point of view, there is no inherent connection between government spending tax money on conservation and hunting.

There are, of course, other conservation arguments for allowing hunting, including keeping populations in check to prevent habitat degradation and giving local populations a financial incentive to preserve wildlife and their habitat. But I find the arguments cited in the newspaper article wanting.

Cecil the lion and legal history

The furor that has arisen around the killing of "Cecil" the black-maned lion has some asking whether restrictions on trophy hunting would do more harm than good. According to a New York Times piece by Norimitsu Onishi, there's a historical angle to this:

Despite intensifying calls to ban or restrict trophy hunting in Africa after the killing of a lion named Cecil in Zimbabwe, most conservation groups, wildlife management experts and African governments support the practice as a way to maintain wildlife. Hunting, they contend, is part of a complex economy that has so far proven to be the most effective method of conservation, not only in Africa but around the world as well.

While hunting is banned in government parks here in South Africa, animals inside their boundaries are routinely sold to game ranches when their populations are considered excessive, generating money to maintain habitats and fight poachers.

And because trophy hunting is legal in private game reserves, the animals end up fetching higher prices than they would in being killed for food or other reasons, conservationists contend. Lion hunts, one of the most lucrative forms of trophy hunting, bring in between $24,000 and $71,000 per outing on average across Africa, according to a 2012 study. In southern Africa, the emergence of a regulated trophy hunting industry on private game ranches in the 1960s helped restore vast stretches of degraded habitats and revive certain species, like the southern white rhinoceros, which had been hunted almost to extinction, conservationists say.

A similar shift occurred in the United States decades earlier when the Pittman-Robertson Act of 1937 allocated the proceeds from hunting to bring back lands and animals, they argue.

“There’s only two places on the earth where wildlife at a large scale has actually increased in the 20th century, and those are North America and southern Africa,” said Rosie Cooney, a zoologist who is the chairwoman of the International Union for Conservation of Nature’s Sustainable Use and Livelihoods Specialist Group. “Both of those models of conservation were built around hunting.”

More on Cecil the lion here.

Mervyn Susser and the question of causation

George Conk recently blogged on the passing of epidemiologist Mervyn Susser, 92. Susser wrote, among other things, on the problem of causation, which can often be a serious obstacle to obtaining damages for environmental harm (or instituting regulation to prevent it). Conk writes:

The former editor of the American Journal of Public Health, he was a South African-born progressive, who collaborated with his wife Zena Stein.  I had just began to seriously look at the problem of how to prove causation of disease in occupational illness cases where no exact mechanism  of injury could be identified. Susser gave me direction as I represented the Trial Lawyers Association  in the asbestos-related disease case Landrigan v. Celotex, a landmark guide in the use of scientific evidence.

*****

Mervyn Susser, like the great progressive epidemiologists Irving Selikoff  and Sir Austin Bradford Hill, was motivated by the fight against disease and the need to identify causal relationships.  The epidemics of heart and lung disease associated with tobacco and asbestos motivated Selikoff and Hill. Susser, a pioneer of community medicine, worked in a clinic treating Black citizens in Johannesburg. In the progressives view causal inference was to be achieved neither by idolatry of formal tests of statistical significance nor by anecdotal snapshots.  Rather the public health called for a socially aware observational perspective informed by clinical methods, pathology, and biostatistics.  No single factor was decisive.  The health of patients called for effective strategies, not skepticism. 

*****

Dr. Susser explained that scientific skepticism is to be doubted.  “We have to practice believing”.  He wrote:

In the end, a quality which lawyers should understand better than any- judiciousness- matters more than any.  Scientists use both deductive and inductive inference to sustain the momentum of a continuing process of research.  The courts of law, and the courts of application, use inference to reach decisions about what action to take. Those decisions often cannot rest on certitudes, most especially when population risks are converted into individual risks. It is my firm belief, nonetheless, that practical decisions that draw sustenance from scientific inference will be better decisions than those that do not.   

Yellow fever control in colonial Senegal

The latest issue of the Journal of Colonialism and Colonial History has an article by Christian Strother, "'A Danger Which More or Less Threatens Us All': Yellow fever and the politics of disease control in Senegal 1890–1914". The abstract:

Prior to 1900, the colony of Senegal had suffered from periodic epidemics of yellow fever. In an attempt to combat the disease, the government of Senegal began to enact new legislation to prevent the spread of epidemics. The government hoped that these new laws would allow them to control yellow fever epidemics without hurting the economic viability of the colony, but they found that the new laws created new challenges. Within the first decade of the passage of the new legislation a series of formal complaints and court cases would challenge sanitation laws and test the limits of government authority.

School of Medicine and Chemistry inaugurated in Dakar in 1918 (ASNOM)

Forest and Labor in Madagascar

The January issue of Environmental History has a review by Ivan Scales of Forest and Labor in Madagascar: From Colonial Concession to Global Biosphere by Genese Sodikoff (U Indiana Press, 2012). Scales writes:

The book touches on familiar themes of exclusion, subjugation, resistance, and the clash of worldviews. It focuses in particular on the role of low-wage manual labor in biodiversity conservation, the conservation agents who do the “grunt work” of protecting biodiversity in Madagascar. As well as building and maintaining park infrastructure, portering, guiding tourists, and policing protected areas, conservation agents are expected to spread Western conservation ideology and educate members of their own communities. Low pay and uncertain working conditions mean they must often continue with the swidden forest clearance practices that their bosses find so problematic. This is just one of the many contradictions at the heart of environmental management in Madagascar.

Despite the importance of these laborers, they have often been rendered invisible by the heroic view of conservation in Madagascar, where the intellectual labor of scientists and conservationists is privileged over the day-to-day practices of on-the-ground environmental management and rural life. Sodikoff's thesis is given empirical and analytical depth through its historical approach and comparison of contemporary conservation with colonial labor practices. The book covers a period of just over a century, starting with the arrival of French colonialism at the end of the nineteenth century. Sodikoff reveals the values that shaped colonial attitudes to both nature and labor. While the colonial state saw the island's natural resources as a potential source of great wealth, it saw the Malagasy workforce as a barrier to progress, reluctant as it was to undertake waged labor on concessions and public works. The French government's answer was to instigate a system of “moralizing taxes” and forced labor that it believed would not only supposedly encourage rural Malagasy into the cash economy but also convey a new work ethic and help its mission civilisatrice.

French environmental protection

H-Environment recently posted "Environmental Protection in a Light-Green Country", Chris Pearson's review of Une protection de l'environnement  à la française? (Charles-Francois Mathis & Jean Francois Mouhot eds., Éditions Champ Vallon, 2013), a collection of essays on the history of environmental protection in France and its empire. Pearson writes:

As well as asking what is distinctive about French nature protection and environmentalism, particularly in comparison to Britain, France, Germany, and the United States, many of the chapters engage with Michael Bess’s compelling and influential arguments in The Light-Green Society: Ecology and Technological Modernity in France, 1960-2000 (2003). According to Bess, France has become a “light-green society” in which environmentalist ideas are widespread but shallow; “the result is a social order in which virtually every activity is touched by environmentalist concerns--but modestly, moderately, without upsetting the existing state of things too much.” It is noteworthy how the volume turns towards Bess and other Anglophone environmental historians for inspiration, rather than the approaches outlined by the Annales school or other French historians interested in the human-nature relations, such as Andrée Corvol.