The Threat to Heritage from Nonstate Actors

Of course, nonstate actors have not always been good stewards of cultural heritage. Indeed, their relationship with heritage has been far from harmonious. Nonstate actors have threatened heritage in three general ways: (1) direct exploitation of heritage for commercial gain (as well exploitative acts of vandalism, terrorism, and cultural cleansing by nonstate actors or with their support); (2) direct destruction of heritage as collateral damage caused by projects initiated by nonstate actors, typically involving the exploitation of natural resources; and (3) indirect damage to heritage, typically involving deterioration of heritage sites resulting from water pollution caused by nearby industrial or mining activity or from tourism.Footnote ⁶

The Positive Roles of Nonstate Actors Within the WHC Regime

Within the WHC-based regime, nonstate actors perform at least seven positive roles: world heritage partnerships for conservation, direct implementation of treaty law (particularly by means of “no-go” pledges), contributions to a rapid response facility, participation in national initiatives to prepare and nominate heritage for the World Heritage List, corporate planning, marshaling industry-wide cooperation, and lobbying within and outside the WHC institutional framework.Footnote ⁷

Deliberate engagement of nonstate actors within the WHC regime really began with the establishment of Partnerships for Conservation Initiative (PACT) on the WHC's 30th anniversary in 2002. Governed by the standards of the United National Global Compact,Footnote ⁸ the resulting PACT-inspired initiatives encourage active contributions of various sorts by private companies and NGOs (nongovernmental organizations), though not yet individuals. The list of partners has included, for example, Google, National Geographic, Nokia, Shell Oil, The Tokyo Broadcasting System, Jaeger-le-Coultre, Evergreen Digital Contents, and Hewlett-Packard. Particular emphasis has been put on educational initiatives, both for the benefit of the general public and to gain the attention of prospective donors. New initiatives include licensing and commercial use of the World Heritage logo.Footnote ⁹

Partnerships vary greatly in purpose and operation, largely tracking the alternatives listed in Article 22 of the WHC for distribution of assistance by the World Heritage Committee. Four general categories define the PACT program: world heritage promotion, conservation activities, mobilization of resources, and direct financial support.

Concluding Thoughts

The theme for the 40th anniversary of the WHC in 2012 was “World Heritage and Sustainable Development: The Role of Local Communities.” In an era of diminishing financial resources and rampant deterioration of world heritage sites, this theme will continue to lend itself well to robust but carefully selected and managed participation by nonstate actors in the evolving regime of law, policy, and management within the WHC framework.

In just one decade, between the 30th anniversary of the WHC in 2002 and its 40th anniversary in 2012, the formal and informal commitments of nonstate actors have formed a cornerstone in the WHC edifice of protection. The appeal for a more decentralized regime supported by civil society, particularly the business community,Footnote ¹⁰ seems to have been heard. As time goes on, the appropriate mix of incentives for the growth of the WHC-based regime, consonant with the standards of the UN Global Compact, will continue to evolve just as the regime of international cooperation will surely grow. One can be hopeful that the positive commitments of nonstate actors in this regime will gradually overshadow their manifold threats to heritage.

Karukinka Nature Reserve: The Complexities of Corporate Involvement

Karukinka Nature Reserve is a protected area in the southernmost part of Chile that has some unusual origins. This 680,000-acre area of old-growth forest was transferred to the investment bank Goldman Sachs as part of a purchase of a large pool of distressed assets from the company Trillium. Trillium had been unable to log the property (its original intention) due to the opposition of local environmental groups. Among the issues at stake was the protection of the lenga, a type of beech tree unique to this part of the world. The bank considered selling the property, but ultimately decided to donate the land to the U.S.-based Wildlife Conservation Society to operate a reserve for the people of Chile. Along with the gift of land, Goldman Sachs pledged approximately $12 million to ensure the long-term protection of the land.Footnote ¹¹

For some, this private sector commitment to natural heritage protection has been heralded as the “new model of conservation.”Footnote ¹² But the initiative has not been without its critics. In April 2006, a group of shareholders charged that Henry Paulson, President and CEO of Goldman Sachs, had no right to use company assets for this “personal project.” This group of shareholders suggested that Paulson's commitment to environmental conservation constituted a conflict of interest and requested that Paulson reimburse the company for “any shareholder assets spent to advance his personal interests.”Footnote ¹³ Goldman Sachs defended the company's actions as consistent with the firm's environmental policy.

Explaining For-Profit Company Involvement in Natural Heritage Protection

The multiplicity of explanations that could be advanced to account for Goldman Sachs' actions around the Karukinka gift reveal the complexity of explaining corporate engagement in natural heritage protection. Goldman Sachs' actions might be framed as motivated by corporate benevolence or as an effort to improve the company's reputation. The activity closely aligned with the environmental, and philanthropic, commitments of its leadership, particularly Mr. Paulson. The gift came at a time when Goldman Sachs was framing its corporate environmental policy and attempting to distinguish itself among Wall Street banks on environmental fronts. It might also be explained by the fact that Goldman Sachs might have been unlikely to realize a profit on the sale of this “distressed asset” given the environmental opposition to logging on this land.

Company reserves have been framed as private protected areas set aside to “protect nature as a tool for creating favorable publicity, as result of court order, or from conservation ethic.”Footnote ¹⁴ This is a limiting definition because it fails to account for areas that are managed but not owned by private for-profit corporations, and it may also exclude areas that are not officially recognized as protected areas. Company reserves also may arise out of permitting requirements or to retire “nonproductive” lands. Companies may give or sell land to a conservation organization, or simply hand over management and retain the land. They may also choose to own and manage the land for conservation purposes.

Framing company reserves as “private protected areas” may be misleading. Company reserves may not meet the standards or requirements of a protected area, such as the requirement that protected areas must be protected in perpetuity to satisfy the IUCN (International Union for Conservation of Nature) definition of a protected area. A significant point here—and one that departs from other presentations in this workshop—is that these initiatives for natural heritage protection may take place absent clear regulatory incentives. “Harnessing” corporate conservation spending is not just about getting the mix of regulatory incentives right.

Gaps in Our Knowledge

Many of our accounts of company reserves, such as the above description of the Karukinka Nature Reserve, are anecdotal. The extent of the practice of corporations owning, managing, or donating land for conservation purposes is unknown.Footnote ¹⁵ And the quality of protected areas created remains undocumented. Company reserves do not feature on existing maps of private protected areas.Footnote ¹⁶ It may be that companies are creating reserves, but not reporting them to the keepers of global lists such as the IUCN World Commission on Protected Areas or UNEP's (United Nations Environmental Programme's) World Conservation Monitoring Centre. Or it may be that corporate reserves so ill fit state-based protected area categories that they are intentionally excluded from global lists, even when information is provided. A lack of information poses considerable hurdles to protection. It is not possible, absent reporting of company reserves, to know what land is being protected. Are we talking uniquely about marginal and unproductive lands? Former industrial sites? Or critical ecosystems and areas of outstanding natural heritage? A lack of information also means that the degree of protection afforded these sites remains unknown.

Legal Status

Because company reserves are not incorporated as formal protected areas within a host nation's domestic laws or through the architecture of the IUCN protected areas system, the legal status of these areas is unclear. The UN List of Protected Areas made reference in 2003 to an attempt to include private protected areas in the list, but the list ultimately did not disaggregate private protected areas in that report.Footnote ¹⁷ The list did note that an absence of formal legal protection would not prevent an area from being a “private protected area.” According to the IUCN, what is required for a private protected area is a “specific binding commitment to conservation in the long term, [which could be achieved] through … private trusts and company policies.”Footnote ¹⁸

This issue of long-term protection poses a considerable challenge for company reserves. Companies change. They merge, dissolve, and transfer their assets. They sell assets and rent land. They alter their corporate management and the conservation ethic of management can change rapidly, too. Business cycles mean that environmental initiatives started in economic booms may not survive economic busts. Long-term conservation planning operates on a very different time frame from that of business cycles. When nature reserves are corporate assets, their long-term protection is uncertain. This is particularly the case when these sites fail to be integrated into international systems for recording and monitoring protected areas.

Connectivity and Integration

Company reserves contribute to a fragmented approach to protected areas. Rather than planning protected areas around issues of protecting endemic species, creating conservation corridors for wildlife, maintaining vital ecosystem services, or prioritizing ecological integrity, company reserves advance conservation when it's determined to be in the company's best interest. Corporate interest may fail to align with the needs of a networked approach to protected areas and an approach that favors connectivity between protected areas.

The modest ambition of this talk has been to add a more robust discussion of company reserves to our discussions of natural heritage protection. Company reserves do not feature in current debates. But keeping company reserves private and separate from existing international systems for recording and monitoring protected areas makes little sense. Transparency can help answer the question of whether company reserves are dubious or legitimate examples of conservation initiatives. Company reserves will no doubt enrich discussions on whether owning or managing conservation areas is the business of business.

International Finance Corporation and Performance Standard 8 (Cultural Heritage) and Performance Standard 7 (Indigenous Peoples)

The IFC is the largest multilateral source of loan and equity financing for the private sector in non–Organisation for Economic Co-operation and Development (OECD) countries. To assist the IFC and its clients to manage their social and environmental performance, the IFC has adopted a Policy on Social and Environmental Sustainability with eight Performance Standards (PSs) and industry-specific Environmental, Health and Safety (EHS) Guidelines.Footnote ²¹ With respect to safeguarding cultural heritage, Performance Standard 8 (Cultural Heritage) and Performance Standard 7 (Indigenous Peoples) are the most relevant.

Cultural Heritage, as defined in Performance Standard 8, includes the following:

The objectives of Performance Standard 8 (PS8) include ensuring that development proponents take the necessary steps to protect cultural heritage from adverse project impacts and to take actions to support its preservation. Also, where appropriate, PS8 requires the equitable sharing of benefits from the use of cultural heritage.

Under PS8, a proponent is required to comply with applicable national laws for the protection of cultural heritage, including the country's obligations under the UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage. The proponent must identify and protect cultural heritage through the application of internationally recognized practices for the protection, field-based study, and documentation of cultural heritage. PS8 does not apply to indigenous cultural heritage.

In those instances when a proposed project has the potential to affect cultural heritage, the proponent is required to consult with the affected communities, provided they use, or have used within living memory, cultural heritage for long-standing cultural purposes. The proponent is also required to consult with the affected communities to identify cultural heritage of importance within the project area. This obligation for consultation is extended to include government agencies responsible for the protection and management of cultural heritage within that country.

According to IFC Performance Standard 7 (PS7), Indigenous Peoples are social groups with identities distinct from dominant groups in national societies. The objectives of PS7 are broad and far reaching, largely concerning the respect for Indigenous Peoples, the avoidance of adverse project impacts on communities of Indigenous Peoples, and the provision of sustainable development benefits and opportunities for community members. Also included are requirements to establish a relationship based on informed consultation and participation, the need to guarantee the free, prior, and informed consent (FPIC) of the affected communities of Indigenous Peoples when conditions described in PS7 are present, and to respect and preserve the culture, knowledge, and practices of Indigenous Peoples.Footnote ²³

Several passages of PS7 provide definitions of culture including knowledge, innovations, natural areas with cultural value and ceremonial or spiritual aspects of Indigenous People's lives. These descriptors are largely intangible aspects of culture and overlap with the definition of cultural heritage described in PS8. With respect to tangible culture (e.g., objects and structures) in PS7, it is acknowledged in an endnote referring to PS8 (Section 8).

Under PS7, the proponent is required to identify communities of Indigenous Peoples within the project area and the nature and severity of the anticipated direct and indirect economic, social, cultural (including cultural heritage), and environmental impacts on them. Adverse impacts on affected communities of Indigenous Peoples are to be avoided whenever possible. For instances where adverse impacts cannot be avoided, proponents are required to restore and/or compensate for the impacts in a culturally appropriate manner and with consideration of the nature and scale of the impact and the vulnerability of the affected communities of Indigenous Peoples.

Similar to PS8, for instances where a proposed project intends to use the cultural heritage (knowledge, innovations or practices) of Indigenous Peoples for commercial purposes, the proponent must inform the affected communities of Indigenous Peoples of (1) their rights under national law; (2) inform them of the scope and nature of the proposed commercial development; (3) inform them of the potential consequences of such development; and (4) obtain their FPIC. Benefits arising from the commercialization of the cultural heritage of Indigenous Peoples must be fairly and equitably shared by the proponent with the affected communities of Indigenous Peoples.

IFC Performance Standards 7 and 8 are the industry standard for cultural heritage protection on private sector development projects in non-OECD countries. In contrast to the often heard lament that economic considerations trump heritage, the application of the IFC Performance Standards brings the full weight of the international financial community behind the improvement of cultural heritage resource protection.

While certainly a positive development in nonstate protection of cultural heritage, the emergence of the IFC Performance Standards is not without challenges. The Performance Standards are best described as high level and general. True to their name, these principles are short on instructions for implementation, potentially leading to a range of interpretations for what constitutes internationally recognized good practice. Some of the challenges associated with the implementation of the IFC Performance Standards are outlined below.

Performance Standards 7 and 8 contain contradictory language. For example, PS8 (Cultural Heritage) states, “the requirements of this Performance Standard do not apply to cultural heritage of Indigenous Peoples; Performance Standard 7 describes those requirements.”Footnote ²⁴ With respect to tangible forms of cultural heritage as defined in PS8, PS7 is silent except for a circular footnote that states, “Additional requirements on protection of cultural heritage are set out in Performance Standard 8,”Footnote ²⁵ which does not apply to the cultural heritage of Indigenous Peoples. In effect, if tangible manifestations of cultural heritage associated with Indigenous Peoples are encountered in a project area, PS8 does not apply and defers to PS7, which is silent on the matter except for an acknowledgment of requirements outlined in PS8.

In this example, the underlying logic of these requirements does not withstand scrutiny and leaves one to draw his or her own conclusions on how to manage tangible manifestations of indigenous cultural heritage. Subject matter experts will need to follow the spirit of the Performance Standards and internationally recognized good practice until such time that the text of Performance Standards 7 and 8 can be amended to correct this incongruence. It is likely that the authors of the Performance Standards expect PS8 to apply to most manifestations of cultural heritage (both tangible and intangible), whereas PS7 is meant to apply to intangible manifestations of culture associated with living groups of Indigenous Peoples.

As shown in the definition of cultural heritage in PS8, intangible forms of culture must receive consideration if they are proposed for commercial use. If not proposed for commercial use, intangible heritage does not need to be considered. While this omission is partially offset by the provisions for protection of such resources under PS7, this only works if Indigenous Peoples are present in the project area. If there are no Indigenous People in the project area, and unless proposed for commercial use, intangible aspects of culture will not be considered in the assessment of impacts to cultural resources.

Another problematic aspect of PS8 is the inclusion of paleontological resources in the definition of tangible cultural heritage. While likely considered a best fit among the eight Performance Standards, placing paleontological resources under the purview of heritage professionals who have been retained to ensure compliance with PS8 may inadvertently lead to marginalization or outright omission of concerns over paleontological resources due to a lack of specialist knowledge. In some countries, such as Mexico, archaeologists may take on the responsibility for identifying paleontological resources during their field assessments, which is clearly at odds with IFC Performance Standards and the requirement for appropriately trained, competent professionals to undertake work of this nature.Footnote ²⁶

One of the great ironies of the IFC Performance Standards is the fact that they are not applied in high-income OECD countries on the assumption that regulatory, permitting, and public comment process requirements meet or exceed those of the IFC. Not surprisingly, this is not always the case. For example, laws protecting the environment and cultural heritage in the province of British Columbia, Canada, are silent on the protection of paleontological resources, effectively requiring a lower standard for projects than in non-high-income OECD countries, as demanded by the World Bank Group and the world's leading financial institutions.

In sum, the emergence of globally accepted standards for the protection and management of cultural heritage resources within the context of international project finance is a positive development. As with most regulations and policies, it is not perfectly conceived nor implemented, but as shown by the rapid pace of revisions to the IFC Performance Standards (in 2006 and 2012), the IFC recognizes the need for continual improvement and refinement, which should ultimately result in robust principles for the protection and management of cultural heritage resources by private actors.

Model for Private Governance: Landscape Restoration Through Restoration Banking

One of the key state governance strategies for landscape protection is mandatory environmental mitigation in which parties are unable to avoid damage. Private parties frequently rely on mitigation banks to meet their legal obligations. For example, Kennecott Utah Copper Mine, a wholly owned subsidiary of Rio Tinto PLC, purchased an area adjacent to its mining operations along the south shore of the Great Salt Lake to store mine waste. Because the property contained wetland areas, environmental laws required the mine to protect in perpetuity 1055 acres of wetlands from a similarly situated area. Kennecott independently agreed to purchase and restore 3,670 hectares of wetlands in order to have a conservation unit that made biological sense. This area was subsequently turned into the Inland Sea Shorebird Reserve, which is managed as a private wildlife reserve. The Kennecott case is typical in terms of a private firm reacting to existing environmental law through mitigation banking. What is rather atypical about this case is that the firm voluntarily agreed to contribute more than was legally required for mitigation and is still continuing to maintain and operate the reserve itself.

Responding to the need for mitigation banking, a few visionary groups are pursuing prospective environmental restoration at a landscape level. Unlike the Kennecott case, these private groups are purchasing and restoring land independently of any legal obligation. They are instead seeking to create a market for restored ecological resources and habitats through restoration banking.Footnote ³⁶ The idea is a clever one. Accidents happen in the industrial world and private firms face natural resource damage liability. To meet their obligations, firms engage in reactive restoration including the acquisition of lands similar to the damaged lands. In thinking about natural resource damages, private entrepreneurs arrived at an innovative proposal. What if firms could restore a large ecologically valuable landscape upfront and receive credits for their investments that could be subsequently applied in the case of future natural resource liabilities?

A scheme of investment restoration with possibly transferrable restoration credits addresses some of the key challenges with mitigation banking while simultaneously resuscitating natural heritage values in areas that could have significant environmental values because of their location or their size. As tracts of intact large-scale healthy ecosystems are becoming more difficult to obtain for mitigation banking due to physical scarcity, there are growing opportunities to rehabilitate large landscapes composed of connected but degraded land. Governments largely do not have the funding to restore these lands and even if they do, their funding cycles prohibit long-term monitoring and maintenance of the ecosystems, an essential part of any successful restoration effort.

In spite of no regulatory framework, at least one company is trying to build a market for prospective environmental restoration. Bluefield Holdings in Seattle, Washington, a private firm funded by pension funds looking for environmental projects, negotiated with the City of Seattle for the lease of seven city-owned contaminated parcels to do salmon restoration.Footnote ³⁷ The company hopes to be able to sell restoration credits, which are approved by the federal, state, and tribal governments, back to parties that may be responsible for future cleanup. Instead of litigating responsibilities, potentially responsible parties would offer their restoration credits to settle any outstanding claims.

Prospective environmental restoration is an underrecognized heritage protection strategy. If it is to succeed and reverse the loss of natural habitats, there needs to be legal recognition of transferrable property interests. One possible model for creating market-viable prospective ecosystem restoration banking is the current trading of certified emission reduction credits generated by habitat restoration projects under the Reducing Emissions from Deforestation and Forest Degradation (REDD+) mechanism. Landscape restoration banking provides hope for reversing trends in habitat and ecosystem loss. Private firms do have the upfront capital funding for these restoration banks but are unlikely to invest without some assurance from the government regulators that their investments in landscape restoration can perform as future environmental insurance. Laws that create new property rights based on landscape-level and ecosystem-wide restoration efforts will go far in incentivizing private engagement in long-term natural heritage restoration. If public law is successful in jumpstarting a restoration banking market, public law may also be necessary for providing certification of this new environmental market to ensure that it delivers promised ecosystem services. The success of this strategy will depend not just on the market but on regulatory support for emerging ecosystem and natural heritage protection markets.

Education and Early Career

Mr. Bain has extensive experience with the issues surrounding First Nations culture in British Columbia. He completed a bachelor's degree in anthropology at the University of British Columbia. While a student, he held a number of limited-term positions at the University of British Columbia Museum of Anthropology, mostly involving public education programs. He participated in the Aboriginal Training Program in Museum Practices at the Canadian Museum of Civilization in Gatineau, Quebec. During this time he was able to work with archival collections including those of Harlan I. Smith, an early anthropologist-archaeologist who was active in British Columbia.

Traditional Use Studies

Mr. Bain was the coordinator for his community's traditional use study, which has become an important part of the consultation process required by Canadian law when the exercise of governmental powers impact Aboriginal Title and Rights. These studies often include the examination and recording of oral histories, community land-use and ground mapping.

In his remarks, Mr. Bain explained that many Aboriginal communities are concerned about the inappropriate use of information coming out of traditional use studies by governments who may view such information as consultation rather than engaging in a full and meaningful process of consultation and accommodation. In the case of ground-mapping, areas of land were “wide-ringed” or coded to proactively protect information provided by First Nations from being accessible to private interests. Despite concerns about “outside” access, Mr. Bain discovered that information that had only been provided on the basis that it not be shared had, in fact, been accessed by private industry through apparently unethical means. These comments revealed a rarely explored aspect of the consultation process in Canada.

The British Columbia Heritage Conservation Act.Footnote ³⁸

Mr. Bain concluded with an impassioned discussion of the problematic nature of the British Columbia Heritage Conservation Act, which was recently the subject of a resolution of the UBCIC that criticized the law in terms of its failure to address Aboriginal rights and concerns. Much of this criticism was with reference to the United Nations Declaration on the Rights of Indigenous Peoples. Canada voted against the Declaration when it was passed by the General Assembly in 2007 but has since stated its support for the Declaration. Although it is legally nonbinding, the Declaration may prove to have significant persuasive value in connection with expanding the scope of indigenous rights under Canadian law. In Mr. Bain's view the Heritage Conservation Act is markedly deficient in the way it fails to address many First Nation concerns, as well as being inconsistent with the language and spirit of the Declaration.

Narratives—Even Those Stories of the Past Must be Useful in the Present

One way the history of New Westminster is being manipulated and interpreted is within its governmental framework that includes an agenda of urban redevelopment, especially in the downtown core; increased immigration; economic development; tourism; and the fostering of a sense of belonging and collective identity among diverse residents. These are reasonable goals on a municipal level; but can anyone imagine trying to achieve these goals through the development of a narrative of the history of the city that is accurate, comprehensive, and critical and not in the realms of myth?

There is a strong desire to “feed” the heritage consultant the established history of the city, especially by those closest to the preservation and cataloguing the city sanctioned, often recounted history from the familiar narrative established long ago. However, the familiar heritage stories can conflict with practices of “memory workers,” which includes the desire to start fresh and look at the historic material with new eyes and to reinterpret or discover another possible interpretation reflecting more current points of view. For example, photographs of the amount and size of the fish taken historically from the Fraser River and the size and quantity of the lumber in the early days of the city have more narratives than one related to the economic boon in the city. They also suggest narratives about long-term devastating ecological impacts as well as multi-ethnic relations that made these industries lucrative.

The New Westminster project also reflects the desires of numerous factions outside city hall seeking to participate in interpreting this history. Long-standing sports and cultural groups are not only advocating for inclusion and more space in the exhibits but also for text and artifacts to support a specific version of their history—a place where heritage and nostalgia are linked—which is especially strong in times of economic growth and changes in a community. To change the focus of the story of the city or even how events are weighted changes the sense of identity, continuity, and sense of belonging.

There will always be competing demands on the nature and significance of aspects of heritage and ultimately of the story told. Once all views are assembled and the first presentation of an outline of the narrative is held, the negotiations begin among the heritage workers, the local government, and the community to determine what narrative will ultimately be told and, therefore, preserved.

What becomes clear in the practice of heritage work as exemplified by the New Westminster project is that no one exhibition in a modest size building can represent the collective memory of a complex community with a long history over time, yet we are asked to do just that. What is preserved and placed into collective memory is asked to reinforce particular values when, in fact, they reflect the resources, politics, power, and ability of specific groups to find a voice within the contested public sphere.

The visitor seems to get lost in this process of delivering “political” objectives, yet all factions claim to be speaking for the visitor. Ultimately, a heritage worker's goals should not be to tell visitors what to think or to support various sanctioned interpretations and narratives, but to provoke and critically engage the visitor as well as help heritage institutions move away from their focus on patriotism, great deeds and famous people toward an appreciation of the complexities, competing versions, and conflicts in representation.