Respect Indigenous Property Rights

From the Ludwig Von Mises Institute
by Mike Reid

Environmentalists and mining companies are fighting over the fate of the remote Klappan Valley in northern British Columbia. The different sides struggle for government approval of their particular plans, but almost no one fully acknowledges the property rights of the first owners of the valley, the indigenous Tahltan people.

The Tahltan have lived in and around the Klappan Valley since before there were any states at all in North America. They defended this rich territory against rival tribes, as Tahltan leaders put it, “from time immemorial, at the cost of our own blood,” long before European contact.[1] They defended it against the mercantilist Hudson’s Bay Company in the 1800s. And now they are defending it against the corporate cronies of the central government.

Over the last few decades, Canadian governments have granted licenses to numerous mining companies, allowing them to operate in Tahltan territory. The most controversial project is Shell Oil’s coal-bed methane-fracking operation. It holds the risk of rendering the valley’s water source (called the Sacred Headwaters), and the plentiful salmon-spawning grounds it supplies, unfit for life.[2]

Like everyone else, the Tahltan want to share in the wealth of the global division of labor. Most of them want some mining on their land, because they expect to benefit from jobs working in or supporting the mines.

But they also want to balance the extraction of new resources with the preservation of old ones — the rivers and lands that they have loved, protected, built campsites on, buried their dead in, and profited from materially for centuries.

After futilely objecting to several potentially destructive mining projects through various legal and political means, a group of Tahltan mounted a blockade on the road leading to their valley in July 2005. The blockade lasted 62 days, and was broken only after the arrival of the Royal Canadian Mounted Police.

Conflict and Property

Disagreements over what should be done with any object are easy to resolve if some person or group clearly owns it. If you own a tree that you enjoy climbing, and I think it would be better used for firewood, my only choice is to convince you to chop it down and set the thing ablaze.

No matter how much I want to burn that tree, the decision remains yours. If you don’t like my offer, you can simply say no.

The anarcho-capitalist philosopher Hans-Hermann Hoppe argues that "All conflicts regarding the use of any good can be avoided if only every good is privately owned, i.e., exclusively controlled by some specified individual(s) and it is always clear which thing is owned, and by whom, and which is not."

Without clear property rights, disagreements drag on and on, eventually ending up in the hands of the state, which is, as Hoppe says, “the final arbiter and judge in every case of interpersonal conflict.”[3]

And, surprise, surprise, when we’re arguing not about trees versus firewood but about gas mines versus burial grounds, the state tends to decide such conflicts in favor of whoever has enough money to bribe the bureaucrats.

By Canadian law, the Tahltan do not strictly own the valley. This is because their claim to it predates the existence of the Canadian state — and the government officials who conquered or negotiated treaties with most of the rest of Canada’s indigenous people never came into most of what is now British Columbia (BC).

In the late 1800s, it seems, the colonial government believed that BC’s “Indians” would simply give up and die out of their own racial inferiority. That didn’t happen.

Therefore, in the words of anthropologist Wade Davis, “Not a single First Nation had been defeated in battle, and by legal definition none had settled with the Crown or relinquished title to their lands.”[4]

So perhaps it’s not surprising that the Tahltan give little credence to the paper laws by which the state has tried to give away the rights to their property.

As Tahltan Erma Bourquin put it, "If there is anything happening in this land, we should be the ones who can tell them where they can and cannot go. That is why we have a voice. The land belongs to us."[5]

“Accommodation and Consultation”

According to Canadian law, resource development on traditional territories requires "accommodation and consultation” with the indigenous inhabitants. This vague requirement has never been clarified by the state courts, and the only thing certain is that it stops short of requiring full consent.

In 2004, many Tahltan leaders had adopted the idea of accepting one mine per generation as a way of maintaining balance between old and new. But, Davis writes, they “struggled to cope with as many as 41 industrial proposals coming at them from all sides.”[6] Why did the Tahltan have to struggle? Why couldn’t they pick their favorite proposal and then simply say no to the other 40?

The problem is that the Tahltan are treated only as quasi owners of their territory. They do not have the legal right to simply refuse developments they do not like. Instead, to fend off a project, they must wrangle through government environmental reviews, impact assessments, and endless pages of legalese.

The Canadian state and the resource companies usually win out here by setting up a puppet indigenous-band government and then securing the approval of someone in that government by stuffing the puppet full of cash. If anybody objects, the state and its corporate cronies just point to their token indigenous guy, who gives a well-compensated thumbs up, and declare that the band has been consulted and accommodated.

In 2005, the elected Tahltan Central Council (TCC) had in fact agreed to several of the projects that were then blockaded, including one by Shell Oil and one by Fortune Minerals. But the people regarded their government as fraudulent and corrupt — not least because one TCC leader, Jerry Asp, also ran a “development” agency with contracts for supporting the mining companies’ camps.

The Tahltan did not believe their elected government had the right to give away their property, so they set up a blockade on the only road into the Klappan Valley. They let in tourists and anybody else they felt would not harm their turf, but they blocked out all mining equipment.

On, September 16, 2005, at the behest of Fortune Minerals, the Mounties rolled in and arrested 15 of the protestors, 9 of whom were elders.

I guess the “accommodations” they’d been looking for were in the back of a paddy wagon.

Banning the Backhoes

Faced with the reality of state oppression, the Tahltan have enlisted the help of a public-relations coalition including environmentalist photographers and National Geographic explorer-in-residence Wade Davis. (Davis also owns a cabin in a neighboring valley.)

Davis’s book, The Sacred Headwaters, is filled with breathtaking photography of the region’s people, rivers, mountains, and wildlife.

The book makes it clear that what Davis and the environmentalists want is a pristine landscape of unspoiled wilderness to gaze on and walk through, saying that “Everyone who has ever lamented the loss of wild lands should rally to this cause,” which is “one of the most important environment struggles of our time.”[7]

Finally, the book calls on readers to support a “permanent legislative ban on mining in the Sacred Headwaters.”[8]

Perhaps the Tahltan do prefer such a ban to the alternative at the other extreme — risking the destruction of their burial grounds, verdant meadows, and salmon rivers. A ban may even be the best political solution they can realistically hope for in the short term. But imagine what the situation might look like if this were your property:

A man is digging in your yard with a backhoe. He arrived against your loud objections (but with the approval of your corrupt town council). At first you blockaded him. But then the cops showed up and arrested you for that. So you got in touch with other interested parties to rally broader support for your rights and force the vandal out.

Like you, your new allies love how your beautiful yard looks right now. Their big idea is to get a law passed that will forbid any backhoe coming on to your property, ever. This helps you out today, but you might wonder, What if I eventually want to sell the mining rights on my own terms? What if my great-grandchildren want to put in a pool?

Privatizing the Sacred Headwaters

Davis’s book asks for the state to create new rules to solve the problem. But in the long run, yet another ham-fisted decree from on high will not protect the environment of the Sacred Headwaters; still less will it secure the Tahltan’s autonomy.

The politicians and permit clerks who would in the end administer such a ban are temporary monopolists. They do not own the rivers or the salmon or the methane, and so they cannot preserve these resources for their own children or even their personal stock portfolios.

As the legendary libertarian writer Murray Rothbard explains,

government officials, while able to control the resource cannot themselves reap their capital value. Government officials cannot sell the rivers or sell stock in them. Hence, they have no economic incentive to preserve the purity and value of the rivers.

That is why, again and again, lands and waters that are supposed to be protected by government decree end up mined, logged, flooded, and poisoned. Their controllers have no incentive to defend them.

Unlike the bureaucrats and extractive crony capitalists, authentic owners of private property, like the Tahltan, are in it for the long run. They have a powerful incentive to preserve the bounty of their land for the future, because they will pass it on to their children (or, if the government permitted them and if they so desired, sell it off to someone who values the place even more).

So, environmentalists, your best hope for wilderness conservation and pollution prevention actually lies in acknowledging private Tahltan property in the land and water of the Klappan Valley.[9]

But property means autonomy. If the indigenous people wish to reject all industrial development on spiritual or ecological or economic grounds, that’s up to them. And if they wish to accept all industrial development on purely materialistic grounds, that’s up to them too.

In all likelihood, they would choose a middle ground. But in any case, there would be no government permits, no greased politicians’ palms, no backdoor deals with Shell Oil, and no obscure requirements for “accommodation and consultation.” If the Tahltan didn’t like your offer, they could simply say no.


[1] Wade Davis, The Sacred Headwaters, p. 21.

[2] There would be no problem if the mining projects held no threat of interfering with established Tahltan uses of the land.

[3] Hoppe, Democracy: The God That Failed, p. xx.

[4] Davis, p. 21.

[5] Davis, p. xiii.

[6] Davis, p. 26.

[7] Davis, p. 140.

[8] Davis, p. 141.

[9] In his discussion of privatizing commonly owned roads, Hoppe writes that it is essential that “the appropriation of the street does not infringe on the previously established rights — the easements — of private-property owners to use such streets.” In the case of the Sacred Headwaters, there might be extensive “easements” held by the numerous salmon-fishing peoples who live downstream of the Sacred Headwaters. Indeed, on the day of the arrests, “delegations of Haida, Gitxsan, and Wet’suwet’en arrived in full regalia and with drums and songs” to support their upstream Tahltan neighbors. See Davis, p. 45. (Given Wade Davis’s residency in the region, it’s even conceivable he has some applicable easements here too.)

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