Thank you. I come in a bit cold, about 10 minutes ago, so I am not quite sure who I should play to and what sentiments here are dominant.
I do need a peg to hang this little address on, and I am by no means an expert on forestry, in fact I am very ignorant on the subject, so I am
going to try and talk to those kind of people who hear fine words, and hear about fancy plans and clever ideas, but whose real experience is
frustration and anger. Who feel helpless, who feel hopeless, who see their environments degraded, who live in a stink, who live in a mess,
who run out of water, that used to trickle down the mountains.

I am not going to offer them any solutions, but I am going to explain why we are so powerless, with reference to the history of our legal system where the law comes from. And I am going to suggest, perhaps in the very broadest sense, what we might do about this to regain control,
to restore accountability and to ensure that the people responsible for degrading our lives and our environment are held to account and
compensate for the harm that they do.

It's a fact of life that much of what we see as development comes at a cost. It comes at a cost to the neighbors of the enterprise, to
downstream users of the air and the water that gets polluted by these enterprises. It comes at a cost to workers health, who becomes injured
and sick because of the conditions to which they are subjected. It comes at enormous cost of our enjoyment of the environment. It comes at a cost
to those people who depends on natures bounty for food, for medicine, and who exploit the renewable resources that are provided and generated
in a healthy environment. Or who minimally exploit the non renewable resources; those people also pay a price because they are deprived of
those things.

In a capitalist society, the decision to undertake development is based on a simple calculation weighing up the costs and the benefits. But that
calculation is done from the perspective of the party, the company, the individual, the enterprise that is undertaking this initiative,
which means that not all costs are taken into account. The only costs which inform a business decision are those costs that the enterprise
itself bares. Costs which are borne by your neighbors, people downstream, people in another community, costs which will be borne by future generations, those are wholly irrelevant. Its not your cost, its not your price, it just does not come into the equation.

Our legal system harkens back some 2000 years, to the ancient Romans. A world where nature's resources were perceived understood and felt to be boundless, limitless. There was no end to it. There was no concept that we could use up the water, that we can pollute all the air, that we can
mine what is to be mined or plant what there is to be planted. That sense just never existed. We could fish, we could hunt, we could cut down the trees, and we could use the water to whatever extent we were capable of doing without consequence.

This means that many of those things that today we recognize as costs or as a price to pay for development were not recognized as costs in those
days. This means that there were no costs associated to polluting the air, so air pollution was not a cost. It was not thought of as a cost.
Similarly so with water pollution, clean water just kept coming down the mountain. Similarly with the wild, there was just endless resources of
it and similarly with land which could be degraded. There was always more land, more land, more land to be used.

Another feature of the law as it developed in those days is that the impact of one parties actions on its neighbors was not really recognized
saved in the most fundamental sense, so specific legal remedies developed imposing certain duties on a land owner. Very, very basic. The
duty not to undermine your neighbor's land. Not to dig a deep hole so that his house falls in. Not to channel water over his property so his
house and orchards wash away and not to encroach upon his property.

The concept of ownership was fundamental to the law, private ownership. At common law this right is defined, and I think this is quite decisive,
as the right to possess, use, abuse, sell and destroy. One of the rights intrinsic in ownership is the right to destroy the thing that you own.
That is your right. That is your freedom that lies at the core of the concept of ownership and in those days, it was understandable. Law was
very much about the protection of the individual's right to property, and the other area where law protected was rights of personality,

Remedies at law were limited to infringement of those rights, that's property rights and personality rights. The damages were either in
respect of direct financial loss, or in respect of pure sentimental loss which is things like a person's dignity, his liberty or his reputation.

The ability of the law to protect people against the kind of harm we experience and recognize now was further restricted to exclude any harm
arising from the exercise of a right. If I carry out a right, if I exercise my right to ownership, and you suffer some harm as a result,
that is not actionable in the common law. Because you are carrying out your right. And this is a problem, perhaps more than any other which
haunts us today.

As long as I am exercising my right and as long as I am witing the parameters that the law provide me, I can do no harm...

If I've got a permit to dam up the river, and you suffer harm and consequence downstream, in our law, and as our law is developed, that's
your harm. That's not an actionable wrong, and there is no remedy that lies in law.

Therefore if you have a right to build a dam, as I had just suggested, or chop down a forest, to mine for gold, to hunt the animals, a right to
undertake activities that pollutes air and water as a natural consequence, there is no remedy for people who pay a price for what you
have done.

The law also recognizes the distinction, or drew itself distinctions between things in respect where people could have rights, and there is
things that people can own, and things in respect to where people could not have rights. And those included these very things that we are
talking about today. You could not own air, or water, or wild animals, or fish, or the sea or the sea shore. These were things that belonged to
no one, and were free to be exploited, used, consumed, and damaged at will.

With the development of the modern state, which very much coincides with the rise of capital, statuette law, that's law made by government,
became ever more significant in regulating the relations between members of a society. Due to the disproportionate power and influence wielded by
capital, its perhaps understandable that statuette law has a very strong bias in favor of those who are rich and powerful and in particular,
capital.

You see this in the laws that regulated the ownership of slaves, which was extended from a very personal kind of relationship to a massive
commercial enterprise regulated by statutes in the colonies.

We see this in the Right to Mine, mineral laws and the development of the concept of mineral rights, that gave the holders of mineral rights
absolutely enormous powers, to exploit, damage and destroy the land in which they held rights. Rights in fact which exceeded the rights of the
owner of that land, the owner of the surface rights.

We see it in the way that ownership of land was extended, privatized, communal land expropriated, common land expropriated, and reserved
exclusively for the use of a small wealthy minority. The annexation and dispossession of indigenous people and of indigenous peoples land rights
that all happened through statuette, there was no provision in the law that allowed this and to a very significant extent - and I am not particularly referring to South Africa but to colonized countries around the world - it was done in the interest of large scale capitalist enterprise.

Let me look at two examples of this, in particular mining, Where we can see in South Africa that the mining industry has been free to make a
profit by exploiting the natural non-renewable and renewable resources of this country, and afflict appalling devastation on this society,
there is massive pollution, massive environmental devastation and a massive cost that has been inflicted on our society by mining through
exercising their rights in terms of the way the law developed in their interest. , or was developed by the state in their interest.

I think much the same can be said for the forestry industry. I mean whatever there merits, or whatever good, and whatever benefits derived
from the 'forestry' industry, there can be no question that there is a very significant down side, and a very significant cost, that is being
borne by other people who carry the brunt of the negative impact. in terms of denial to access to land that is now used for forestry, in terms of water resources that are diminished, in terms of pollution that is generated by the mills.

We have an example where, in terms of our law, and in strict compliance to the law, some people have been enormously benefited and
other people have been enormously harmed and its all okay, and there is no legal remedies and there is no means by which those people who are
harmed are entitled to obtain recompense.

This feature, this characteristic, of the way the law was developed, the way it was structured, has really meant that the ability to make profit - Entrepreneurs and free-marketers will tell you profit is generated by enterprise, hard work, initiative, all the wonderful qualities that made Bill Gates the great man that he is, that's not quite true. To a very, very significant extent indeed, the profitability of an enterprise is predicated to the extent to which you can externalize the costs of doing business.

I mean what matters are not what clever entrepreneur you are. What really matters is how a significant a portion of your costs you can pass
on to some other bugger downstream. It looks as if this guy is a wonderful entrepreneur, but if you took these costs, and his making a really profitable enterprise, and he is doing a brilliant job, but if you took the other costs, and you brought them back onto the balance sheet and you said 'now lets add up the costs to Mr. X who lives downstream and who used to farm with mielies (maize), but now the little stream from which he drew water has dried up, and lets value that for a thousand rand a month for a year. Let's assess the impact on the Manganese Metal Company downstream, whose water pipes have chocked up by various chemical compounds coming into the Crocodile River from the Sappi mill. Let's take that cost and put it to the account of Sappi.

Lets take the price which is suffered by diseased and sick mineworkers, forestry workers whose hands are chopped of and who are maimed , and who are crippled twenty years before they would otherwise have been to old and not able to work. Take those costs, put them back on the balance
sheet and now tell me you are making a profit. That really is the measure of what profit should be. The fact of the matter is , it is not.


There are an enormous number of enterprises operating in South Africa today who are making terrific profits, they are delivering terrific benefits to shareholders, but the only reason that is so is because much of the costs is passed on to somebody else.


Is it a matter to get exited about? Well it is really because it is a harmful and destructive aspect of our society. It distorts decision making, it leads people to invest in areas that in fact do not contribute to the greater wealth of our society the greater health and happiness of the people of this country. It puts development in fact into those areas where it is possible to pass on as big a cost as possible on to other people. Its an ugly and destructive attribute of society today in the way things operate.

I think a fine example and one which is quite close to home to me is the asbestos mining industry. Now while that was going, it was generating
terrific profit, it was the second biggest base mineral export after coal. It generated jobs, foreign income, enormous revenues, and investment. Terrific! Look at it today, add up the costs, look at the environmental destruction, in the northern cape, in the northern province, in parts
of Mpumalanga, Tally up the costs of the thousands of men and woman who had become sick and died, crippled and maimed. Put those costs into the bag and I can tell you unequivocally , we would all be richer, we would all be healthier, we would all be happier if we had never had an
asbestos mining industry in this country. That much is clear.

What about other industry, what about forestry? Are there such fantastic benefits? What about gold mining, has that been a terrific boom for this
country? It may be. But the jury's out.

The Leon commission inot mine health and safety in 1994 ruled precisely that.. Has mining been a uniform good, a boom for this country? Well on
the face of it it may look so, the terrific infrastructure of the roads and the cars and the wealth of the northern suburbs, but we don't know
because we have not counted the costs, we have not done the sums. And until we have, you can't speak definitively on these matters. There
needs to be proper accounting if we are to make correct and informed decisions.

The ability to externalize costs,. This system whereby you pass on the costs to other people is sometimes extraordinary explicit. You see in
the Workers Compensation Legislation in the mining industry, where it is formally and deliberately structured in such a way that the people who
become sick and injured and die recover only a tiny fraction of their real cost. It's structured like that. That's how it is put on the statuette book, that's how its put together, that's why it's the way it is. To ensure that the mining industry does not need to pay the price of the harm that it inflicts on its workers.

That compensation legislation runs through other industries as well, so what's true for the mining industry is true for other dangerous occupation such as forestry work.

Environmental considerations like the duty to rehabilitate and make provision for rehabilitation after you had completed your mining activity there was effectively no such provision till the second half of the twentieth centaury, and quite frankly, it only became effective to the extent that it is, much later. Early 1990's perhaps. Before then people were still abandoning mines with gay abandon. Its only in the second half of the twentieth centaury, with the growth and consolidation of democracy, the growth of the environmental movement, when we actually began to recognize that our society was causing irremediable and very significant harm on the members of our society.

Perhaps I just want to go back and emphasize the importance of the growth of democracy. what really has changed, and I think the environmental movement takes a great deal of credit for it and this is that people actually got angry, people stand up and they protest, The state, and capital, need to react, they have to react because if they don't, there is a threat that the whole apple cart will become upset.

Environmental destruction, bad living conditions, bad health conditions, are a recipe for social unrest, for political unrest, for catastrophe for the modern state. And it is with that realization that we were gradually prodded, the state was prodded into doing something about it.,


Now their response, the way they dealt with this pressure, this problem has really been through three most important mechanisms,

The one is licensing by imposing restrictions, licensing the right to mine, the right to grow a forest, the right to build a dam, the right to extract water. By enforcing legislation through state enforced sanctions, i.e. criminal or administrative sanctions, penalties enforced and imposed by inspectors, or prosecutors if it is a criminal sanction. But what is interesting is that the initial liability, i.e. the liability of the company that inflicts harm, or the party which inflicts harm, has very seldom been the mechanism of choice and in many instances; the right of peoples to recover damages from somebody who failed to comply with the law has been expressly removed. So we see for example in the marine pollution act, that, the remedies in
respect of a party that suffers damages as result of some ship owners pumping out its bilges in a pristine environment, is limited to those
remedies of the state. Individuals who suffer harm has no right to recover damages from those individuals.

So what has not happened is that the rights of those people who have been harmed, their right to compensation, to take redress, to make
redress, to take the initiative, their rights have not been strengthened at all.

The influence and the power of capital in the state is most manifest in much of the legislation controlling environmental issues, or matters that have an environmental impact. In clauses that provides compensation, where somebody was previously polluting willy nilly, and he did so in a perfectly legal manner, where restrictions are imposed on them in many instances the legislation makes for the company involved to be compensated for the loss of those rights. So we compensate them because we are now being so unreasonable as to impose on them a requirement that they stop damaging the environment and other people. That is true for the mountain catchment area act, water catchment area act, the environmental conservation act and numerous others.

Another feature that we see of this legislation is the 'licensing culture' is that the controls are in very many instances discretionary. That most of them includes some kind of provision about 'you must do what is reasonably practical to do', and invariably that builds in either expressly, or implicitly a consideration as to the cost. So there is this balance - 'Well you know, we are not going to give a license, to pump a thousand tones of sulphur dioxide into the atmosphere if the costs of stopping you from doing that are in our opinion unreasonable'. That discretion, in practice, invariably favors those people with the power, the resources, the skills and the knowledge to most effectively lobby and influence the parties who are issuing these licenses. Lay people, ordinary communities can not compete. Its one way traffic, and the state, and not withstanding the integrity of many of the officials or burocrats involved, can not but help be overwhelmed by the might, the power, the money the wisdom of big business.

Its significant that the sanctions for contravention are, in the overwhelming number of cases extremely limited. So it's like a very tentative effort at control. I think the most significant one is the air pollution control act, where a company that fails to limit air pollution is subject to the draconian fine for a first contravention of five hundred rand (R500) or six months imprisonment, and for a second or further contravention which may involve - God knows what. - Pumping a million tones of sulfur dioxide into the atmosphere - the sum of two thousand rand (R2000) or one year's imprisonment.

Those penalties are laughable. The cost of monitoring a stack for a day probably exceeds that.

Now I know that there is a wide recognition that the air pollution control act is out of date and hopelessly ineffective, but believe me, those kinds of sanctions are very tipical for much of the environmental legislation.

Against those kinds of qualified controls imposed by the statuette law, you should weigh the principal alternative, which is that those people
who are harmed are entitled to recover their damages. Now that, to my mind, is a real solution. Again I must go back to my experience in the
mining industry. When will the mining industry stop killing and maiming workers on the scale at which it does, which, after the People's Republic of China is probably the second worst in the world. We kill and we maim thousands of workers each year in the mining industry. When will
they stop? What do we need? More inspectors? Stricter laws? More policing? More licenses, more permits? NO.. What we need is that they
be held accountable to the people that they have harmed. If every worker who was killed and maimed and his family, wre able to recover the costs that they suffered, as a result, Well, then you will really see the market at work. Then you will see how free market can operate, because then, for the first time, there would be one very, very powerful incentive to stop killing and maiming people,

Similarly so for other industries. If those farmers with fences on the Highveld which is rusted and corroded by the acid rain falling from the sky, that is caused by sulfur emissions from the power stations, from Sasol and ISCOR. If they were able to recover the cost of the eroded fence . If they were able to recover the costs of the lime that they have to put in the soil to reduce its acidity from these companies. Then, for once, they would have a serious incentive to do something about the problem.

So I could fairly be accused of promoting my professions interests in suggesting this, because what I am really saying is that you need to give people the right to recover the harm that they have suffered, to recover their damages, and the most powerful and the most effective mechanism to do that is not inspectors, not policemen, not public servants but the civil law system.

The biggest and perhaps the most important constraint on the conduct of corporations and governments in the United States is the American
Association of Trial Lawyers. Step out of line. Poison a community, send out defective products into the environment Kill the fishes in the dams,
Poison the beach. And I can tell you in the United States of America, you will pay. And you will pay a very high price indeed. It is an effective and powerful mechanism and it is consistent with the notion of a free market.

Easier said than done.

We need to create awareness about the cost. I think that is the first thing. People don't appreciate that the existence of the forests (industrial timber plantations) or the power stations or whatever is continually exacting a cost on local communities. We need to be aware of it, we need to measure it, we need to expose it, we need to spell it out, we need to write it down in numbers saying Here is the cost.. Who is going to pay the bill? We need awareness about this problem of externalization of costs.

We need activism. We need environmental activists, we need legal activists, we need activists in every sphere, raving, performing about the injustice of the system that allows people to make a profit at any cost - and then pass that cost on to somebody else.

We need to extend civil remedies for people to access the law and the legal system, We need to extend the culture of rights, that's an aspect
that I don't think I can fully explore here. We have a serious problem in South Africa with our Bill of Rights that with a violation of a person's right persee is not actionable and does not constitute a derrick in our law. So if a black person knocks on the door of a restaurant or barber shop, and says 'Please serve me", and he is told "I am terribly sorry but it is not our policy to serve people of color here, please try next door", that is not actionable in South Africa. Similarly, if somebody violates your right to a safe and healthy work environment, it is not actionable in South Africa.
If someone violates your right to a clean environment, to clean water, to the resources that our constitution gives us, that is not an actionable matter. You can go to court and get an interdict, but you can't recover the damages.

In the United states you can.. So when white policemen beat up a black man, because he is black, they may get fines of ten thousand dollars for
the beating he had received. But they will pay a million dollars for violating his fundamental civil rights.

We need that kind of change and reform in our law here, to give our constitution teeth. To give it substance and to make it a powerful weapon to improve our environment and our society.

We need a lot more research, we need internationalized standards. We need to stop the situation where transnational corporations apply one
standard in Scandinavia, and another here in South Africa. Those discrepancies need to be pointed out, identified, acted upon, and there
is some interesting ways to do that.

The fundamental tether of my argument, the fundamental premise I want to draw out is that nobody has got the right to profit at another's cost.
If you accept that principle, you are most of the way there with me. No-one has the right to benefit at somebody else's cost.

This structure, its long and deep roots, it distorts our economy, it undermines efficiency, it undermines our prospects for growth, it undermines the principle of sustainability, it entrenches poverty, it entrenches inequality.

The problem needs to be recognized, and it needs to be dealt with.

Thank You



( Send Comments to wac@geasphere.co.za )

===============================================================
This presentation was delivered at the conference "Timber Plantations:
Impacts, Future Visions ang Global Trends", hosted by GEASPHERE in
association with the TimberWatch Coalition, Nelspruit, South Africa, 13
November, 2003.

Special thanks to the GGF - Global GreenGrants Fund, whose support made
the hosting of this conference possible
===============================================================