Hostname: page-component-77c89778f8-n9wrp Total loading time: 0 Render date: 2024-07-21T23:59:26.193Z Has data issue: false hasContentIssue false

Rationalizing Risks to Cultural Loss in Resource Development

Published online by Cambridge University Press:  20 July 2015

Get access

Extract

I argue in this article for the use of a dialogical approach to cost-benefit analysis, which is identified here as a process that rationalizes cross-cultural judging. Weighing in on the Kahan-Sunstein debate about the effect of culture on risk perception, I use economic valuations of Indigenous sacred sites to demonstrate how cost-benefit analysis can misrepresent loss. I identify the way cost-benefit analysis operationalizes preferences that have little relevance for perceptions of substitutability, property, or harm related to sacred sites held by some Indigenous peoples. In doing so, I problematize the use of cost-benefit analysis as a method for ascertaining loss and contextualize risk in the social context in which it is perceived. In order to further procedural justice, I recommend valuation of loss that allows for epistemological disparities in determining rationality. This dialogical approach expects to maximize the accuracy of cost benefit analysis so as to create greater accountability for loss valuation and destabilize formulations of culturally determined preferences as bounded but corrected by expert knowledge.

Type
Research Article
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2013 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

The author would like to thank Queen's Institute for Energy and Environmental Policy for funding support. As well, thank you to Dan Kahan, Claire Hill, Warren Mabee, John Borrows, Alexander Schwartz, Ian Peddle, the CJLJ anonymous referee, and student editor Payam Ezzatian for their comments and insights. Any errors that remain are my sole responsibility.

1. Theories of bounded rationality seek to dispel assumptions about the capacity to seek optimal choice with the precept that rational decision-making is limited by information, time and cognitive heuristics. Jolls, Christine, Sunstein, Cass R & Thaler, Richard, “A Behavioral Approach to Law and Economics” (1998) 50 Stan L Rev 1471 CrossRefGoogle Scholar. As it relates to cost-benefit analysis, see Sunstein, Cass R, The Cost-Benefit State: The Future of Regulatory Protection (Chicago, IL: American Bar Association, 2002)Google Scholar [Sunstein, “The Cost-Benefit State”]; Sunstein, Cass R, “Misfearing: A Reply” (2006) 119 Harv L Rev 1110 Google Scholar [Sunstein, “Misfearing”]; Sunstein, Cass R, “Cognition and Cost Benefit Analysis” (2000) 29 J Legal Stud 1059.CrossRefGoogle Scholar

2. Cultural theories employ the precept that groups display rival, rather than bounded, rationalities. Kahan, Dan M & Braman, Donald, “Cultural Cognition and Public Policy” (2006) 24 Yale L & Pol’y Rev 149 Google Scholar; Kahan, Dan M, “Two Conceptions of Emotion in Risk Regulation” (2007) 156 U Pa L Rev 741 Google Scholar; Kahan, Dan M et al, “Fear of Democracy: A Cultural Evaluation of Sunstein on Risk” (2006) 119 Harv L Rev 1071 Google Scholar [Kahan, “Fear of Democracy”]; Slovic, Paul, “Perception of Risk” (1987) 236 Science 280.CrossRefGoogle ScholarPubMed

3. The term ‘cost-benefit-analysis’ has various meanings that reflect varying levels of specificity. Here it is used to broadly refer to decision procedures used by public government that seek to quantify losses and gains from a particular decision. See, e.g., Mathew D Adler & Posner, Eric, New Foundations of Cost Benefit Analysis (Cambridge, MA: Harvard University Press, 2006)Google Scholar; and Sunstein, “The Cost-Benefit State”, supra note 1. For discussion of its use in this regard, see Farber, Daniel A, “Rethinking the Role of Cost Benefit Analysis” (2009) 76 U Chicago L Rev 1355.Google Scholar

4. Executive Order No 12291, 3 CFR § 127 (1981); Government of Canada, Privy Council Office, Government of Canada Regulatory Policy (Ottawa: Privy Counsel Office, 1999).

5. McLeod-Kilmurray, Heather & Smith, Gavin, “Unsustainable Development in Canada: Environmental Assessment, Cost-Benefit|Analysis, and Environmental Justice in the Tar Sands” (2010) 21 J Envtl L & Prac 65.Google Scholar

6. See, e.g., Kahan, “Fear of Democracy”, supra note 2 at 1106-08 (advocating responsive democracy); and Sunstein, Cass R, Laws of Fear: Beyond the Precautionary Principle (Cambridge: Cambridge University Press, 2005) at 3649 CrossRefGoogle Scholar at 175-203 [Sunstein, “Laws of Fear”] (advocating liberal paternalism). For broader criticisms of CBA Consequentialism, see Frank Ackerman & Heinzerling, Lisa, Priceless: On Knowing the Price of Everything and the Value of Nothing (New York: The New Press, 2004)Google Scholar; Mandel, Gregory N & Thuo Gathii, JamesCost Benefit Analysis Versus the Precautionary Principle: Beyond Cass Sunstein’s Laws of Fear” [2006] U Ill L Rev 1037 Google Scholar at 1069; Zamir, Eyal & Medina, Barak, “Law Morality and Economics: Integrating Moral Constraints with Economic Analysis of Law” (2007) 96 Cal L Rev 323 Google Scholar; Nussbaum, Martha, “The Costs of Tragedy: Some Moral Limits of Cost-Benefit Analysis” (2000) 29 J Legal Stud 1005 CrossRefGoogle Scholar; Dworkin, Ronald, “Is Wealth a Value?“ (1980) 9:2 J Legal Stud 191 CrossRefGoogle Scholar; Anderson, Elizabeth, Values in Ethics and Economics (Boston, MA: Harvard University Press, 1993).Google Scholar

7. For discussion of this as the central difference between the two behavioural approaches, see Kahan, “Fear of Democracy”, supra note 2 at 1071; Sunstein, “Misfearing”, supra note 1 at 1111; and Kahan, Dan M & Sloivic, Paul, “Cultural Evaluations of Risk: Values or Blunders?” (2006) 119 Harv L Rev 166.Google Scholar

8. Sunstein, “Misfearing”, supra note 1 at 1111.

9. For an example of this argument, see Heinzerling, Lisa, “Regulatory Costs of Mythic Proportions” (1981) 107 Yale LJ 1981 CrossRefGoogle Scholar. On the failure of bounded rationality to address this point, see Bandes, Susan A, “Emotions, Values, and the Construction of Risk” (2008) 156 U Pa L Rev 421.Google Scholar

10. Kahan, Dan M, “The Cognitively Illiberal State” (2007) 60 Stan L Rev 101 Google Scholar (on use of neutrality to achieve partisan visions of the good); For discussion in regards to rights, see |Langlois, Richard N, “Cost-Benefit Analysis, Environmentalism, and Rights” (1982) 2:1 The Cato Journal 279.Google Scholar

11. Erlanger, Howard et al, “Is it Time for a New Legal Realism?“ (2005) 2 Wis L Rev 335 Google Scholar at 342. For implications, see Garth, Bryant, “A New Legal Realism in Transnational Studies: Empirical Paths Between Idealism and SkepticismPaper Delivered at the New Legal Realism Symposium (2527 June 2004).Google Scholar

12. In Canada, Aboriginal and Treaty Rights are constitutionally protected by virtue of s.35(1) Constitution Act, (Schedule B of the Canada Act 1982 (UK)). In the United States, The federal Indian trust responsibility is a legally enforceable fduciary obligation on the part of the United States to protect tribal treaty rights, lands, assets, and resources. Seminole Nation v United States, 316 US 286 (1942).

13. For discussion, see Michael Ross, Lee, First Nations Sacred Sites in Canada’s Courts (Vancouver: UBC Press, 2006)Google Scholar; Vogel, Howard J, “The Clash of Stories at Chimney Rock: A Narrative Approach to Cultural Conflict Over Native American Sacred Sites on Public Land” (2001) 41 Santa Clara L Rev 757 Google Scholar. However, the term ‘sacred site’ is often used interchangeably with other designations. For discussion of sites as cultural property see Christie, Gordon, “Aboriginal Rights, Aboriginal Culture and Protection” (1998) 36:3 Osgoode Hall LJ 447 Google Scholar at 448-50; Wiersma, Lindsey L, “Indigenous Lands as Cultural Property: A New Approach to Indigenous Land Claims” (2005) 54 Duke LJ 1061 Google Scholar; Yablon, Marcia, “Property Rights and Sacred Sites: Federal Regulatory Responses to American Indian Religious Claims on Public Land” (2004) 113 Yale LJ 1623 CrossRefGoogle Scholar. For discussion of sites as cultural landscapes, see United Nations Educational, Scientific and Cultural Organization, the International Council on Monuments and Sites, the US National Park Service, and Parks Canada, Definition of Cultural Landscapes, online: Parks Canada http://www.pc.gc.ca/eng/docs/r/pca-acl/sec4.aspx. For discussion as historic sites, see the Historic Sites and Monuments Act, RSC 1985 c H-4. For discussion as cultural sites or cultural heritage, see Bruce Ziff & Melodie Hope, “Unsitely, the Eclectic Regimes that Protect Aboriginal Cultural Places in Canada” in Bell, Catherine & Paterson, Robert K, eds, Protection of First Nations Cultural Heritage: Law, Policy and Reform (Vancouver: UBC Press, 2008) 181.Google Scholar For discussion as religious rights, see Borrows, John, Canada’s Indigenous Constitution (Toronto, ON: University of Toronto Press, 2010)Google Scholar; and Hooker, Ann M, “American Indian Sacred Sites on Federal Public Lands: Resolving Conficts Between Religious Use and Multiple Use at El Malpais National Monument” (1994) 19 American Indian Law Review 1.Google Scholar

14. The right of Indigenous peoples to protect and enjoy their cultural heritage, including lands, is recognized in a number of international instruments, the most notable being Article 11 of the UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, G A Res 295, UNGAOR, 61 Sess, Supp No 53, UN Doc A/61/53 (2007).

15. Existing Aboriginal rights can be justifiably infringed where a number of public objectives related to resource use warrant it and consultation has occurred, thereby leaving the balancing of interests to the Crown. Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73.

16. Ibid.

17. For economic analysis of cultural loss, see Adamowicz, Wiktor L et al, “In Search of Forest Resource Values of Indigenous Peoples: Are Nonmarket Valuation Techniques Applicable?” (1998) 11:1 Society & Natural Resources 51 CrossRefGoogle Scholar; Venn, Tyron J & Quiggin, John, “Accommodating Indigenous Cultural Heritage Values in Resource Assessment: Cape York Peninsula and the Murray-Darling Basin, Australia” (2007) 61 Ecological Economics 334 CrossRefGoogle Scholar; Gregory, Robin & Trousdale, William, “Compensating Aboriginal Cultural Losses: An Alternative Approach to Assessing Environmental Damages” (2009) 90:8 Journal of Environmental Management 1 CrossRefGoogle ScholarPubMed; McDaniels, Timothy & Trousdale, William, “Resource Compensation and Negotiation Support in an Aboriginal Context: Using Community-Based Multi-Attribute Analysis to Evaluate Non-market Losses” (2005) 55 Ecological Economics 173 CrossRefGoogle Scholar; Pavel, D Michael, Miller, Gerald B & Pavel, Mary J, “Too Long, Too Silent: The Threat to Cedar and the Sacred Ways of the SKomish” (1993) 17:3 American Indian Culture and Research Journal 53 CrossRefGoogle Scholar; Venn, Tyron J & Calkin, David E, “Accommodating Non-Market Values in Evaluation of Wildfre Management in the United States: Challenges and Opportunities” (2011) 20 International Journal of Wildland Fire 327.CrossRefGoogle Scholar

18. See infra II.B.

19. For dialogical approaches to Indigenous rights, see James [Sa’ke’j] Henderson, Youngblood, “Dialogical Governance: A Mechanism of Constitutional Governance” (2009) 72 Sask L Rev 29 Google Scholar; Newman, Dwight G, “You Still Know Nothin’ ‘Bout Me: Toward Cross-Cultural Theorizing of Aboriginal Rights” (2007) 52 McGill LJ 725.Google Scholar

20. On using dialogics to avoid cultural relativism and universalism, see Benhabib, Seyla, “Cultural Complexity, Moral Interdependence, and the Global Dialogical Community” in Nussbaum, Martha C & Glover, Jonathan, eds, Women, Culture and Development (Oxford: Oxford University Press, 1995) 235.CrossRefGoogle Scholar

21. Traditional Knowledge is defined here as the cumulative body of knowledge, practice and belief about the relationship of living beings with one another and the environment that has been adapted and transmitted over generations. It is understood as providing four types of knowledge: factual/rational knowledge about the environment, factual knowledge about past and current use of the environment, culturally-based value statements, and philosophy (including epistemologies) about knowledge. Usher, Peter, “Traditional Ecological Knowledge in Environmental Assessment Management” (2000) 53:2 Arctic 183 CrossRefGoogle Scholar at 186.

22. Sunstein, “Cost Benefit Analysis”, supra note 19.

23. This comports with his broader rejection of rival rationalities. Sunstein, “Cognition and Cost Benefit Analysis”, supra note 1 at 1077-80. For application to cultural rationalities, see Sunstein, “Misfearing”, supra note 1.

24. Sunstein, “Laws of Fear”, supra note 6.

25. See, e.g., Sunstein, “Misfearing”, supra note 1 at 1119. Kahan labels this as the irrational-weigher model, Kahan, “Fear of Democracy”, supra note 2 at 743.

26. Sunstein, “Misfearing”, supra note 1 at 1121.

27. Sunstein, “Laws of Fear”, supra note 6 at 150.

28. Ibid at 169.

29. Sunstein, “Misfearing”, supra note 1.

30. Kahan, Dan M, “Cultural Cognition as a Conception of The Cultural Theory of Risk” in Roeser, Sabine et al, eds, Handbook of Risk Theory: Epistemology, Decision Theory, Ethics and Social Implications of Risk (Dordrecht: Springer, 2012) 725 CrossRefGoogle Scholar; Levinson, Justin D & Peng, Kaiping, “Valuing Cultural Differences in Behavioral Economics”, online: (2006) be Press Legal Series 1296.Google Scholar

31. Tansey, James & O’Riordan, Tim, “Cultural Theory and Risk: A Review” (1999) 1:1 Health, Risk, and Society 71 CrossRefGoogle Scholar at 72.

32. Kahan, “Fear of Democracy”, supra note 2 at 1083.

33. For early consideration of culture and risk, see Mary Douglas & Wildavsky, Aaron, Risk and Culture: An Essay on the Selection of Technological and Environmental Dangers (Berkeley: University of California Press, 1983)Google Scholar; Douglas, Mary, “A History of Grid and Group Cultural Theory”, online: University of Toronto http://projects.chass.utoronto.ca/semiotics/cyber/douglas1.pdf. Google Scholar

34. Nelkin, Dorothy, “Science Controversies: The Dynamics of Public Disputes in the United States” in Jasanoff, Sheila et al, eds, Handbook of Science and Technology Studies (California: Sage Publications Online, 1995) 445.Google Scholar

35. Tribe, Laurence H, “Policy Science: Analysis or Ideology?” (1972) 2 Phil & Pub Affairs 66 Google Scholar; Tribe, Laurence H, “Technology Assessment and the Fourth Discontinuity: The Limits of Instrumental Rationality” (1973) 46 S Cal L Rev 627.Google Scholar

36. Kahan, Dan M, “Cultural Cognition of Scientific Consensus” (2011) 14:2 Journal of Risk Research 147.CrossRefGoogle Scholar

37. Mandel & Gathii, supra note 6 at 1066.

38. Canadian Environmental Assessment Agency, Research Reports, Determining Significance of Environmental Effects: An Aboriginal Perspective at 2.2, online: CEAA http://www.ceaa.gc.ca.

39. Hill, Claire, “The Law and Economics of Identity” (2006) 32 Queen’s LJ 389 Google Scholar.

40. Kysar, Douglas, Regulating from Nowhere: Environmental Law and the Search for Objectivity (New Haven, CT: Yale University Press, 2010).CrossRefGoogle Scholar

41. Ibid at 92.

42. Kahan, Dan et al, The Tragedy of the Risk-Perception Commons: Culture Conflict, Rationality Conflict and Climate Change (2011) [unpublished archived at Temple University Legal Studies Research Paper No 2011–26], online: Social Sciences Research Network www.ssrn.com. Google Scholar

43. Battiste, M & (S)Y Henderson, J, Protecting Indigenous Knowledge and Heritage: A Global Challenge. (Saskatoon, SK: Purich, 2000) at 134.Google Scholar

44. White, Graham, “Cultures in Collision: Traditional Knowledge and Euro Canadian Governance Processes in Northern Land Claims Boards” (2006) Arctic 59:4 401 Google Scholar at 405.

45. Stevenson, Marc G, “The Possibility of Difference, Rethinking Co-Management” (2006) 65:2 Human Organization 167.CrossRefGoogle Scholar

46. Friedman, Lawrence M, “Legal Culture and Social Development” (1969) 4:1 Law & Soc’y Rev 29.CrossRefGoogle Scholar

47. This view is often sourced to the post-modern insights of Lyotard, Jean Francois, The Postmodern Condition: A Report on Knowledge, translated by Bennington, G & Massouri, B (Minneapolis: University of Minnesota Press, 1984)Google Scholar. For consideration in relation to comparison of law, see Legrand, Pierre, “The Impossibility of Legal Transplants” (1997) 4 MJECL at 119.Google Scholar

48. For example, comparativists are interested in the effect of context on legal interpretation in relation to the integration of financial markets. See, e.g., Pistor, Katharina, “Standardization and its Effects on Developing Economies” (2002) 50:1 Am J Comp L 97.CrossRefGoogle Scholar

49. For discussion of differences, see Chang, Ruth, ed, Incommensurability, Incomparability, and Practical Reason (Boston, MA: Harvard University Press, 1997).Google Scholar

50. Cass R Sunstein, “Incommensurability and Kinds of Valuation: Some Applications in Law” in Chang, supra note 49, 234. Sunstein defines incommensurability to occur when the relevant goods cannot be aligned along a single metric without doing violence to our considered judgments about how these goods are best characterized, ibid at 238.

51. Ibid at 218.

52. Habermas, Jürgen, The Theory of Communicative Action: Reason and the Rationalization of Society (Boston, MA: Beacon Press, 1985).Google Scholar

53. For discussion of this in relation to development, see Seyla Benhabib, “Cultural Complexity, Moral Interdependence, and the Global Dialogical Community” in Nussbaum & Glover, supra note 20.

54. Charles Taylor, “Leading a Life” in Chang, supra note 49 at 170.

55. Ibid at 218-19.

56. For an example of reorienting questions and resulting data, see Farber, Daniel A, “Probabilities Behaving Badly: Complexity Theory and Environmental Uncertainty” (2003) 37 UC Davis L Rev 145.Google Scholar

57. See, for example, Ewald, William, “What it Was Like to Try a Rat” (1995) 143 U Pa L Rev 1889.CrossRefGoogle Scholar

58. Gregory & Trousdale, supra note 17.

59. Ibid.

60. On comparison through description, see Taylor, Charles, Philosophical Arguments (Boston, MA: Harvard University Press, 1995) at 147.Google Scholar

61. In colonialized places, this process of translation can be sourced to an original conquest but manifest as a continuing process of colonization in so far as Indigenous populations who maintain independent practices can feel subject to alien laws. See, for example, Baxi, Upendra, “Colonialist Heritage” in Legrand, Pierre & Munday, Roderick, eds, Comparative Legal Studies: Traditions and Transitions (Cambridge: Cambridge University Press, 2003) 46.CrossRefGoogle Scholar

62. Statutory authorizations reflect a more fundamental change in Canadian common law on the use of oral traditions in relation to Aboriginal rights. As the Supreme Court of Canada noted, “This appeal requires us … to adapt the laws of evidence so that the aboriginal perspective on their practices, customs and traditions and on their relationship with the land, are given due weight by the courts. In practical terms this requires the courts to come to terms with the oral histories of aboriginal societies.” Delgamuukw v British Columbia [1997] 3 SCR 1010 at para 84, 220 NR 161.

63. Canadian Environmental Assessment Act, RSC 1992 c 37, s 16.1 [CEAA].

64. Berkes, Fikret, Colding, Johan & Folke, Carl, “Rediscovery of Traditional Ecological Knowledge as Adaptive Management” (2000) 10:5 Ecological Applications 1251 CrossRefGoogle Scholar; Agrawal, Arun, “Indigenous Knowledge and the Politics of Classifcation” (2002) 54:173 International Science Journal 287.Google Scholar

65. For an example of this rationalization see Canadian Environmental Assessment Agency, Considering Aboriginal Traditional Knowledge in Environmental Assessments Conducted under the Canadian Environmental Assessment Act: Interim Principles (Government of Canada), online: Canadian Environmental Assessment Agency http://www.ceaa.gc.ca/default.asp?lang=En&n=4A795E76-1.

66. Berkes, Fikret, Sacred Ecology: Traditional Ecological Knowledge and Resource Management (Philadelphia, PA: Taylor & Francis, 1999) at 8.Google Scholar

67. This has led to the proliferation of numerous guidelines on researching and using Traditional Knowledge. For examples, see Council of Yukon Nations, First, Traditional Knowledge Research Guidelines: A Guide for Researchers in the Yukon (Yukon: Counsel of Yukon First Nations, 2000)Google Scholar; Institute, Dene Cultural, Guidelines For The Conduct Of Participatory Community Research To Document Traditional Ecological Knowledge For The Purpose Of Environmental Assessment And Environmental Management (Northwest Territory: Dene Cultural Institute, 1991), online: IRDC http://www.idrc.ca/books/847/7-App1.html Google Scholar; Nation, Dene, Traditional Knowledge for Dummies. The Dene Nation Guide to Traditional Knowledge by Tyson, M (Northwest Territory: Dene Nation, 1999)Google Scholar; Government of Alberta, Best Practices Handbook for Traditional Use Studies (Edmonton: Ministry of Aboriginal Affairs and Northern Development, 2003).

68. For discussion of this issue more generally, see Chen, CC, “Environmental Impact Assessment Framework by Integrating Scientific Analysis and Subjective Perception” (2009) 6:4 International Journal of Environment Science and Technology 605.CrossRefGoogle Scholar

69. See Marc G Stevenson, supra note 47.

70. Spak, Stella, “The Position of Indigenous Knowledge in Canadian Co-Management Organizations” (2005) 47:2 Anthropologica 233.Google Scholar

71. Huntington, Henry P, “Using Traditional Ecological Knowledge in Science: Methods and Applications” (2000) 10 Ecological Applications 1270.CrossRefGoogle Scholar

72. For discussion, see Battiste, Marie & SY Henderson, James, Protecting Indigenous Knowledge and Heritage: A Global Challenge (Saskatoon, SK: Purich, 2000).Google Scholar

73. Stevenson, Marc G, “Decolonizing Co-Management in Northern Canada” (2004) 25:1 Cultural Survival Quarterly 68.Google Scholar

74. Berkes, Fikret, “Role and Significance of ‘Tradition in Indigenous Knowledge” (1999) 7:1 Indigenous Knowledge and Development Monitor 19.Google Scholar

75. Adamowicz et al, supra note 17.

76. Kaldor, Nicholas, “Welfare Propositions of Economics and Interpersonal Comparisons of Utility” (1939) 49 The Economic Journal 549 CrossRefGoogle Scholar.

77. Ibid.

78. National Environmental Policy Act of 1969, 42 USC § 4321 (1970).

79. Carson, Richard, Contingent Valuation: A Comprehensive Bibliography and History (Northhampton, MA: Edward Elgar, 2011)CrossRefGoogle Scholar. For an overview of its application in Canada, see Philcox, Neil, Literature Review and Framework Analysis of Non-Market Goods and Services Provided by British Columbia’s Ocean and Marine Coastal Resources: Prepared for Canada/British Columbia Oceans Coordinating Committee (Victoria: Government of British Columbia, 2007)Google Scholar; For application in the United States, see Arrow, Kenneth et al, Report of the NOAA Panel on Contingent Valuation, Report to the General Counsel of the US National Oceanic and Atmospheric Administration. Resources for the Future, (Washington: General Counsel, 1993).Google Scholar

80. Craswell, Richard, “Incommensurability, Welfare Economics and the Law” (1998) 146 U Pa L Rev 1419 CrossRefGoogle Scholar at 1450-52.

81. See Adamowicz, supra note 17.

82. For broad acceptability for the purposes of regulation in the US, see Ohio v United States (Department of the Interior), 880 F (2d) 432 (US App DC, 1989).

83. For concerns more generally, see Carson, Richard T, Fores, Nicholas E & Meade, Norman F, “Contingent Valuation: Controversies and Evidence” (2001) 19 Environmental and Resource Economics 17 CrossRefGoogle Scholar; Dana, David A, “Existence Value and Federal Preservation Regulation” (2004) 28 Harvard Envtl L Rev 343 Google Scholar; Boyle, Kevin J & Bishop, Richard C, “Welfare Measurements Using Contingent Valuation: A Comparison of Techniques” (1988) 70:1 American Journal of Agricultural Economics 20.CrossRefGoogle Scholar

84. For a summary of behavioural assumptions of classical rationality, see Becker, Gary S, “Nobel Lecture: The Economic Way of Looking at Behavior” (1993) 101 Journal of Political Economy 385.CrossRefGoogle Scholar

85. Hanemann, Michael, “Willingness to Pay and Willingness to Accept: How Much Can They Differ?” (1991) 81 American Econ Rev 635 Google Scholar.

86. These problems are explored more fully in Adamowicz et al, supra note 17 at 52; Venn & Quiggin, supra note 17. As it relates to Indigenous peoples in the United States, see Venn & Calkin, supra note 17. For similar insights in the Australian context, see Rolfe, John & Windle, Jill, “Valuing the Protection of Aboriginal Cultural Heritage Sites” (2003) 79 The Economic Record 85 CrossRefGoogle Scholar at 86.

87. Shapcott, Catherine, “Environmental Impact Assessment and Resource Management, A Haida Case Study: Implications for Native People of the North” (1989) 9 Canadian Journal of Native Studies 53 Google Scholar.

88. Godden, David, “Attenuating Indigenous Property Rights: Land Policy After the Wik Decision” (1999) 43:1 Australian Journal of Agricultural Economics 1 CrossRefGoogle Scholar at 18.

89. Canadian Environmental Assessment Agency, supra note 38 at 4.2.2. For a similar recognition of how the protection of intellectual products of Aboriginal peoples is protected only indirectly as a product of protection of Aboriginal practices or activities, see Christie, Gordon, “Aboriginal Rights, Aboriginal Culture and Protection” (1998) 36:3 Osgoode Hall LJ 447 Google Scholar at 448-450 [Christie, “Aboriginal Rights”].

90. Gregory and Trousdale identify six primary problems with conventional compensation practices for Indigenous communities: lack of context, inadequate participation, exclusion of important losses, reliance on market-based measures, neglect of uncertainty and inadequate treatment of time. Gregory & Trousdale, supra note 17.

91. Ibid at 5.

92. Canadian Environmental Assessment Agency, Determining Significance of Environmental Effects: An Aboriginal Perspective at 4.3.2, online: supra note 38.

93. Ibid at 2.2 and 4.2.2.

94. Donatuto, Jamie & Harper, Barbar L, “Issues in Evaluating Fish Consumption Rates for Native American Tribes” (2008) 28:6 Risk Analysis 1497.CrossRefGoogle ScholarPubMed

95. Venn & Quiggin, supra note 17.

96. In the United States, see Native American Graves Protection and Repatriation Act, Pub L No 101-601, 104 Stat 3048. In Canada, protection of heritage property not owned by the federal government is the responsibility of each provincial and territorial government under its respective legislation. See, e.g., Heritage Conservation Act, RSBC 1996, c 187, s 13(b).

97. See, e.g., Dannemaier, Eric, “Beyond Indigenous Property Rights: Exploring the Emergence of a Distinctive Connection Doctrine” (2008) 86:53 Wash U L Rev 53 Google Scholar; McNeil, Kent, “Aboriginal Title as Constitutionally Protected Property Right” in Lippert, Owen, ed, Beyond the Nass Valley: National Implications of the Supreme Court’s Delgamuukw Decision (Vancouver, BC: Fraser Institute, 2000) 55.Google Scholar

98. Douglas, Mary, Purity and Danger: An Analysis of Concepts of Pollution and Taboo (London: Psychology Press, 1966).Google Scholar

99. Walters, Mark, “The Morality of Aboriginal Law” (2005) 31 Queen’s LJ 470 Google Scholar.

100. A proviso is appropriate here. The very use of the word ‘property’ invokes common law concepts that may be antithetical to First Nation’s understanding of land use and disputes over the word have long stood in for disputes over its concepts. Borrows, John, “Negotiating Treaties and Land Claims: The Impact of Diversity Within First Nations Property Interests” (1992) 12 Windsor YB Access Just 178 Google Scholar at 180 n 3.

101. Ibid at 180. Borrows locates the documentation of claims in the allocation of property through treaties of peace and friendship, treaties of reciprocal rights and obligations, monetary settlements, executive proclamations, unilateral legislation, segregation, assimilation, and war. Added to this historical record is the voluminous documentation related to bureaucratic and legal disputes that has marked relations between the governments and Indigenous peoples since contact. These historical and contemporary documents are not the source of Indigenous claims. They are evidence of an unchanging narrative about the intimate connection between Indigenous identity and their relationship to the land.

102. Haida Nation v British Columbia; Delgamuukw v British Columbia, supra note 62.

103. Aboriginal Title may prevent unilateral takings by the Crown but this has not been applied to Aboriginal or Treaty rights, ibid at para 48.

104. Kahneman, Daniel & Tversky, A, “Prospect Theory: An Analysis of Decision Under Risk” (1979) 47 Econometrica 263–91CrossRefGoogle Scholar; Kahneman, Daniel, Knetsch, J & Thaler, Richard, “Experimental Tests of the Endowment Effect and the Coase Theorem” (1990) 98 Journal of Political Economy 1325.CrossRefGoogle Scholar

105. Zerbe|Jr, Richard O, “Is Cost-Benefit Analysis Legal? Three Rules” (1998) 17:3 Journal of Policy Analysis and Management 419 Google Scholar at 420. Zerbe notes that there is valid criticism of CBA from non-practitioners that are lawyers and philosophers. However, Zerbe notes that practitioners have generally ignored the critics. Thus Zerbe advocates for a model of cost-benefit analysis that accounts for ownership as legal and psychological.

106. For a similar argument in regards to Aboriginal cultural property, see Christie, “Aboriginal Rights”, supra note 89 at 450. For similar arguments in regards to land interests, see Christie, Gordon, “Delgamuukw and the Protection of Aboriginal Land Interests” (2000) 32 Ottawa L Rev 85115.Google Scholar

107. Platinex Inc v Kitchenuhmaykoosib Inninuwug First Nation, 2008 CanLII 11049 (ON SC).

108. Issacharoff, Samuel, “Can There Be a Behavioral Law and Economics” (1998) 51 Vand L Rev 1729 at 1736 Google Scholar.

109. Zerbe Jr, supra note 100. For an alternative perspective, see Levy, Daniel S and Friedman, David, “The Revenge of the Redwoods? Reconsidering Property Rights and the Economic Allocation of Natural Resources” (1994) 61:2 U Chicago L Rev 493.CrossRefGoogle Scholar

110. Gregory & Trousdale, supra note 17 at 3.

111. Kahan, Dan, “Emotion” in Roeser, Sabine, ed, Risk Regulation: Competing Theories‘ in Emotions and Risk Technologies (Dordrecht: Springer, 2010) 159 CrossRefGoogle Scholar at 163.

112. Slovic, Paul et al, “Risk As Analysis And Risk As Feelings: Some Thoughts About Affect, Reason, Risk, And Rationality” (2004) 24 Risk Analysis 311 CrossRefGoogle ScholarPubMed.

113. Sunstein, “Laws of Fear”, supra note 6 at 46.

114. Sabine Roeser, “Emotional Reflection About Risks” in Roeser, supra note 111 at 231.

115. Ibid.

116. Donatuto, Jamie & Harper, Barbar L, “Issues in Evaluating Fish Consumption Rates for Native American Tribes” (2008) 28:6 Risk Analysis 1497 CrossRefGoogle ScholarPubMed at 1499.

117. Ibid at 4.

118. Ibid. See also Stoffe, Richard W & Evans, Michael J, “Holistic Conservation and Cultural Triage: American Indian Perspective on Cultural Resources” (1990) 49 Human Organization 91.CrossRefGoogle Scholar

119. Valley, Mackenzie Board, Review, Mackenzie Valley Environmental Impact Review Board Report of Environmental Assessment and Reasons for Decision On Ur Energy Inc. Screech Lake Uranium Exploration Project (EA 0607-003) (Yellowknife: Mackenzie Valley Review Board, 2006)Google Scholar [UR Energy Panel Review].

120. Ibid at 39. The responsible Ministers agreed to adopt the recommendation of the Review Board. The decision of the Responsible Ministers considered the report of Environmental Assessment and the Reasons for Decision, whether the development might adversely affect established or potential Aboriginal and Treaty rights; and the importance of the conservation of the lands, waters, and wildlife of the Mackenzie Valley.

121. Federal Panel, Review, Report of the Federal Review Panel Established by the Minister of the Environment on Taseko Mines Limited’s Prosperity Gold-Copper Mine Project July 2, 2010 (CEAA Reference No. 09-05-44811) (Ottawa: Federal Review Panel, 2010)Google Scholar [Taskeo Panel Review]. The British Columbia Environmental Assessment Office undertook a separate but coordinated review of the Project and the provincial decision was announced in January 2010. The Province’s conclusion was that the Project would have a significant adverse effect on fsh and fsh habitat but that the effects were justified in the circumstances.

122. The Tsilhqot’in Nation launched legal proceedings against British Columbia in 1989 to prevent the harvesting of timber in Tachelach’ed (Brittany Triangle) and the Trapline Territory. These areas collectively comprised the claim area (‘Claim Area’). The Claim Area is part of the traditional territory and home of the Tsilhqot’in First Nation. The trial lasted 339 days and cost over 30 million dollars. In Tsilhqot’in Nation v British Columbia, 2007 BCSC 1700, [2008] 1 CNLR 112. Vickers J found that the Tsilhqot’in held Aboriginal rights to hunt and trap and trade throughout the Claim Area but in obiter expressed doubts as to their title claim to the same area. Thus, much like the UR Energy decision, ownership and stewardship of the area was disputed but the proposed site was not protected under any legal scheme, other than a duty to consult.

123. The project required the construction, operation, decommissioning and abandonment of an open pit mine with a 20-year operating life, the construction of a 125 km transmission line, an onsite mill, a new site access road and fsh compensation works. The project required destroying a lake and related streams, thereby destroying the fsh, spawning and rearing channels, navigable waters, surrounding plants, and berries.

124. Taseko Panel Review, supra note 121 at 203.

125. Ibid at 199.

126. Ibid at 202.

127. Ibid at 203. It stated that it could not recommend any measures that would mitigate the Signifcant adverse effects of the Project on the current use of lands and resources for traditional purposes and cultural heritage.

128. The responsible Ministers accepted the conclusions of the Panel and determined that the significant adverse environmental effects could not be justified in the circumstances. However, the Panel has since undertaken a new environmental assessment of a revised plan, which will build a tailings pond beside the lake, instead of using the lake as a tailings pond itself.

129. Kahan, “Fear of Democracy”, supra note 2 at 1106.

130. Farber, Daniel A & Hemmersbaugh, Paul, “The Shadow of the Future: Discount Rates, Later Generations and the Environment” (1993) 46:2 Vand L Rev 267 Google Scholar, (advising an appropriate discount rate); Sunstein, “Cost Benefit Analysis”, supra note 19 (recommends using WTP where the beneficiaries of regulation pay little or none of the cost).

131. See, e.g., McDaniels & Trousdale, supra note 17; Venn & Quiggin, supra note 17, (replace price-based approach or place constraints on quantification that reflect non-violation of rights).

132. Turner, Nancy J et al, “From Invisibility to Transparency: Identifying the Implications” (2008) 13:2 Ecology and Society 7.CrossRefGoogle Scholar

133. Sunstein, “Misfearing”, supra note 1 at 1122.

134. Anker, Kirsten, “Teaching Indigenous Peoples and the Law: Whose Law?” (2008) 33:3 Alternative Law Journal 132 CrossRefGoogle Scholar at 134.

135. UR Energy Panel Review, supra note 119.

136. Supra note 46.

137. Ibid.

138. CEAA, supra note 63 at s 37.

139. Doelle, Meinhard, The Federal Environmental Assessment Process: A Guide and Critique (Markham, ON: LexisNexis, 2008) at 139.Google Scholar

140. If the Minister has the constitutional basis to make its decision in light of all environmental, economic and social factors and the Minister’s actions are otherwise consistent with the regulations, then s/he may approve the project, ibid at 139-46.