The Interior Department's decision to cancel an oil and gas lease in the Badger Two Medicine area of Lewis and Clark National Forest, out of respect for tribal cultural values, is getting a good deal of press. What's not being very widely reported is that this is a rare case in which review under Section 106 of the National Historic Preservation Act (NHPA) has resulted in a U.S. government turnaround.
Usually these days, sadly, Section 106 review ends with a BS "programmatic agreement" or a slightly more respectable (sometimes) memorandum of agreement under which the government and private sector economic interests have their way with the cultural environment with a few cosmetic "avoidance" or "mitigation" measures. In the Badger Two case, though, the anti-exploitation forces held firm, no agreement was reached, and the Advisory Council on Historic Preservation (ACHP) rendered a very good comment to the Secretary of Agriculture, whose Forest Service controls the Forest's surface rights. and to the Secretary of the Interior whose Bureau of Land Management holds the mineral estate. The Secretaries actually listened and agreed.
Congratulations to the ACHP, and to the Blackfeet Tribal Historic Preservation Officer (THPO), who had the guts to terminate consultation and throw the case to the ACHP for comment.
Since it's worth knowing about, and because the ACHP deserves a pat on the back for it, and since they don't seem to have posted it to the web themselves, here's the text of the ACHP's letters and comment. Note especially the ACHP's recommendation regarding doing 106 review prior to a leasing decision. This has been an issue with Interior since the ancient days when I was with the ACHP; it will be interesting to see if Interior finally has the sense to pay attention to it.
September 21, 2015
The Honorable Thomas James Vilsack
Secretary, U. S. Department of Agriculture
1400 Independence Avenue, SW Room 200-A
Washington, DC 20250
Dear Mr. Secretary:
In accordance with Section 106 of the National Historic Preservation Act (54 U.S.C. § 306108) and its implementing regulations, “Protection of Historic Properties,” (36 C.F.R. Part 800), I am providing to you the final comments of the Advisory Council on Historic Preservation (ACHP) on the proposed release from suspension of the Permit to Drill by Solenex LLC in the Lewis and Clark National Forest.
These comments are provided to you so that you may take them into account in developing your recommendation to the Secretary of Interior regarding whether or under what conditions the Bureau of Land Management (BLM) may release the Permit to Drill from suspension.
These comments are also being provided to Secretary of the Interior Sally Jewell. In accordance with Section 110(l) of the Act (54 U.S.C. § 306114) and 36 C.F.R. § 800.7(c)(4), she must take into account the ACHP’s comments and respond to them prior to making a final decision on the permit.
In addition to our comments specific to this permit, our comments include recommendations for program improvements in the consideration of effects to historic properties in federal minerals leasing and in the coordination and transparency of federal roles in Section 106 review regarding such undertakings. The ACHP welcomes the opportunity to work with Forest Service and BLM to implement these recommendations. We would appreciate a copy of your recommendation to the Secretary of Interior regarding this matter when it is available.
Milford Wayne Donaldson FAIA
September 21, 2015
The Honorable Sarah "Sally" Jewell
Secretary U. S. Department of Interior
1849 C Street, NW, Room 6156
Washington, DC 20240
Dear Madam Secretary:
In accordance with Section 106 of the National Historic Preservation Act (54 U.S.C. § 306108) and its implementing regulations, “Protection of Historic Properties,” (36 C.F.R. Part 800), I am providing to you the final comments of the Advisory Council on Historic Preservation (ACHP) on the proposed release from suspension of the Permit to Drill by Solenex LLC in the Lewis and Clark National Forest.
You must take these comments into account, and respond to them, prior to making your final decision on the permit. As required by Section 110(l) of the Act (54 U.S.C. § 306114), you may not delegate these responsibilities. The regulations at 36 C.F.R. § 800.7(c)(4) delineate the requirements of the response.
These comments are also being provided to Secretary of Agriculture Tom Vilsack so that he may take them into account in developing his recommendation to you regarding whether or under what conditions the Bureau of Land Management (BLM) may release the APD from suspension.
In addition to our comments specific to this permit, our comments include recommendations for program improvements in the consideration of effects to historic properties in federal minerals leasing and in the coordination and transparency of federal roles in Section 106 review regarding such undertakings. The ACHP welcomes the opportunity to work with the Forest Service and BLM to implement these recommendations.
We look forward to your response.
Milford Wayne Donaldson FAIA
Comments of the Advisory Council on Historic Preservation
Regarding the Release from Suspension of the Permit to Drill by Solenex LLC
In Lewis and Clark National Forest, Montana
September 21, 2015
The Advisory Council on Historic Preservation (ACHP) provides the following comments regarding the currently suspended Solenex LLC Permit to Drill for a single exploratory oil and gas well in the Lewis and Clark National Forest, pursuant to Section 106 of the National Historic Preservation Act (NHPA), 54 U.S.C. § 306108, and its implementing regulations at 36 C.F.R. Part 800 (Section 106).
The United States Forest Service (FS) has been conducting a Section 106 review regarding the proposed undertaking. On July 7, 2015, the Blackfeet Tribal Historic Preservation Officer, a required signatory to any Section 106 agreement, terminated the Section 106 consultation, having determined that further consultation to reach such an agreement was unlikely to be productive. The termination triggered the need for these comments in accordance with 36 C.F.R. § 800.7.
The ACHP chairman appointed a panel of five ACHP members to develop these comments on behalf of the ACHP. In preparing these comments, the panel received documentation compiled by the FS in the Section 106 review. On September 2, 2015, the panel conducted a public meeting in Choteau, Montana, and received oral testimony from public officials, organizations, and individuals, including the FS, the Bureau of Land Management (BLM), the Montana State Historic Preservation Office (SHPO), the Blackfeet Tribe of the Blackfeet Reservation of Montana, Solenex LLC, the Glacier County Commission, and the Glacier-Two Medicine Alliance. The panel also conducted government-to-government consultation with the Blackfeet Tribe at their headquarters in Browning, Montana. Finally, the ACHP received written comments from 104 public officials, organizations, and individuals regarding the proposed undertaking and its adverse effects to the Badger-Two Medicine Traditional Cultural District (TCD), a historic property determined eligible for the National Register of Historic Places (NRHP) and of religious and cultural significance to the Blackfeet Tribe. The TCD encompasses lands in the Lewis and Clark National Forest and the Blackfeet Reservation and is adjacent to the Scapegoat and Bob Marshall Wilderness Areas and Glacier National Park.
In recognition of the important role both the FS and BLM play in managing these lands and the resources beneath them, the ACHP is providing these comments to Secretary of Agriculture Tom Vilsack, who oversees the FS, and Secretary of the Interior Sally Jewell, who oversees the BLM. The well would be placed on FS lands. The FS has management responsibilities for above surface activities on its lands. The subsurface mineral rights at issue are held and managed by the BLM. In accordance with the Mineral Leasing Act, 30 U.S.C. § 181 et seq., and Onshore Oil and Gas Order No. 1, the FS has the lead responsibility for the environmental review of the permit for this action. However, the final decision on the permit rests with the BLM. The FS will provide its recommendation on the permit to the BLM, and then the BLM will make a final decision on the permit.
Because the Section 106 consultation process has been terminated, the Secretary of Agriculture must take into account the ACHP’s comments in making a final decision on the FS recommendation to the BLM.
Thereafter, since the final decision on the permit rests with the BLM, the Secretary of the Interior is also required to take into account these ACHP comments, and respond to them, prior to making her final decision on the permit. She must provide to the ACHP a summary of the decision that contains the rationale for the decision and evidence of consideration of the ACHP’s comments. She must also provide this to all of the Section 106 consulting parties and notify the public of its availability. Once this is completed, the Section 106 process for this undertaking will have concluded.
Federal Consideration of the Project
Solenex proposes a single exploratory oil and gas well including 5.7 miles of new road construction, 0.3 miles of road re-construction, a temporary bridge across the Two Medicine River, and a 4-acre drill pad. Combined, 14.18 to 22.91 acres would be disturbed by the road and drill pad. Once constructed, the well would require periodic access and maintenance. Should the well prove productive, it is reasonably foreseeable that the applicant/ leaseholder, Solenex LLC, may apply for a permit to extend its drilling and extraction within its 3,247-acre leasehold, a scenario known as full field development.
This project has a lengthy and complicated history. As part of its early 1980s initiative to develop mineral rights on undeveloped federal lands, the BLM leased the oil and gas development rights to Fina, the antecedent of Solenex, in 1982. This was one of 51 leases in the area issued at that time. The Application for Permit to Drill (APD) was initially approved by the BLM and FS in January 1985, but was suspended in October 1985 pending further environmental review and analysis under the National Environmental Policy Act (NEPA). One issue raised at that time was the Blackfeet Tribe’s objections to the project because of the effects to a property of religious and cultural significance to the tribe, now identified and determined eligible for the NRHP as the Badger-Two Medicine TCD. The FS and BLM issued a Draft Environmental Impact Statement in October 1989 and a Final Environmental Impact Statement in October 1990. In February 1991, the FS and BLM issued a joint Record of Decision (ROD) concluding the NEPA review and approving the Permit to Drill subject to certain environmental conditions. In January 1993, the BLM re-issued its ROD approving the Permit to Drill subject to the same environmental conditions. The 1991 and 1993 RODs considered the effects of the undertaking on archaeological sites. The 1993 ROD stated that “no traditional cultural properties were found in the project area,” but the Montana SHPO did not concur with such a finding. The following mitigation measures set out in the 1991 and 1993 RODs addressed the potential for effects to archaeological properties:
Prior to any construction activity, Fina [now, Solenex] shall provide the Blackfeet Tribal Business Council and the Forest Service with a schedule of when work is to be performed. Fina [now, Solenex] shall provide this schedule to the Glacier Report and Great Fall Tribune in order to inform local individuals of proposed activities that may affect their legal, cultural, or religious interests.
Effects to NRHP [National Register of Historic Places] eligible or listed cultural resources shall be mitigated according to the regulations outlined in Section 106 of the National Historic Preservation Act and 36 C.F.R. [Part] 800.
If an archaeological site is located during construction activities, work shall immediately stop and the Lewis and Clark National Forest Supervisor’s Office be notified. The Forest Archaeologist will examine the site and determine what course of action is necessary. Actions could include the following: 1) data recovery, 2) avoidance of the sites and/or project relocation, 3) protection on intact materials, such as with a gravel pad. (1993 ROD, p. 28)
Beginning in June 1993, the APD was suspended to consider legislation introduced to conserve and protect the Badger-Two Medicine area. In June 1996, the FS began a review of historic property eligibility and recommenced Section 106 consultation regarding the eligibility of historic properties and potential effects to them. This suspension continues in place.
In 1997, the FS and BLM decided not to authorize new lands for oil and gas leasing on the Lewis and Clark National Forest in the Rocky Mountain Division of the BLM, an area of 356,000 acres, including what would later come to be identified by the FS as the Badger-Two Medicine Traditional Cultural District, discussed in detail below. This decision did not affect the original 51 leases in the area granted in 1981-1982, including the Solenex lease. In the Tax Relief and Health Care Act of 2006, Congress withdrew lands from oil and gas leasing on the Rocky Mountain Division of the BLM, making the FS and BLM decision law. This law also provided tax incentives for leaseholders to transfer their oil and gas leases in the withdrawal area to the federal government or qualifying non-profit conservation organizations. As a result of these actions, the leaseholders of 33 of the leases transferred their leases to take advantage of the tax incentives. Only 18 of the original leases, including that of Solenex, remain in place and suspended currently.
As part of its effort to better evaluate the potential effects of the undertaking on the TCD, the FS, in consultation with the Blackfeet Tribe, undertook extensive ethnographic studies of the area to better define the nature of the TCD and its significance to the Blackfeet Tribe. The findings from these investigations resulted in the TCD being determined eligible for the NRHP by the FS and the Keeper of the NRHP (Keeper) in 2002 and the subsequent FS and Keeper decision to expand the boundary of the TCD. On December 4, 2014, the FS sent a letter to the ACHP, notifying it of the finding of adverse effect, requesting the ACHP’s review of that disputed finding, and inviting ACHP participation in the Section 106 review.
Federal Policy Developments
Since 1993, when the FS and tribal representatives began working together to fully identify and evaluate the Badger-Two Medicine TCD, there have been many policy developments not only with regard to historic properties of traditional religious and cultural significance to Indian tribes but also in federal-tribal relations. These developments have required the FS to assess the impact of the proposed undertaking in accordance with evolving and strengthening requirements for consulting with and considering the views of Indian tribes on this and other matters at each point where such reassessment was necessary.
In 1988, the NRHP published an important guide for evaluating properties such as the TCD, Bulletin 38: Guidelines for Evaluating and Documenting Traditional Cultural Properties. In 1992, the NHPA was amended to acknowledge formally that properties of religious and cultural significance to Indian tribes may be eligible for the NRHP and to better define the role of Indian tribes in the identification and evaluation of such properties. In response to the NHPA amendments, the ACHP promulgated revised Section 106 implementing regulations in 1999 that formalized the role of Indian tribes in the Section 106 process and recognized their special expertise in identifying and evaluating historic properties of religious and cultural significance to them. Executive Order (E.O.) 13007: Indian Sacred Sites was issued in 1996, requiring federal land managers to avoid adversely impacting the physical integrity of Indian sacred sites “to the extent practicable, permitted by law, and not clearly inconsistent with essential agency functions.” There have also been interagency initiatives such as the 2012 Memorandum of Understanding among the Departments of Defense, Interior, Agriculture, Energy, and the ACHP regarding Interagency Coordination and Collaboration for the Protection of Indian Sacred Sites. Agency-specific initiatives include the Department of Agriculture Sacred Sites Final Report.
The government-to-government relationship between Indian tribes and the federal government has also been strengthened over time by executive orders such as E.O. 13175: Consultation and Coordination with Indian Tribal Governments (2000) and E.O. 13647: Establishing the White House Council on Native American Affairs (2013). E.O. 13647 charges the heads of 30 federal departments, including Interior and Agriculture, with protecting tribal lands, environments, and natural resources, and promoting respect for tribal cultures, among other responsibilities. In addition, most federal agencies have adopted or strengthened existing tribal policies. Since 2009, the White House has convened an annual Tribal Nations Conference inviting every tribal leader to meet with the President and Cabinet secretaries to discuss key issues facing Indian tribes.
Another significant demonstration of the commitment of the federal government to improving relationships with Indian tribes and working to protect their cultural heritage was President Obama’s decision in 2010 to support the United Nations Declaration on the Rights of Indigenous Peoples. The Declaration includes numerous provisions calling for the protection of indigenous cultures, languages, traditional practices, and cultural sites.
The Badger-Two Medicine TCD is of premier importance to the Blackfeet Tribe in sustaining its religious and cultural traditions.
The proposed undertaking and the entire Solenex leasehold is located within the Badger-Two Medicine TCD, a historic property of religious and cultural significance to the Blackfeet Tribe. The TCD was determined eligible for the NRHP by the Keeper of the NRHP in 2002. In 2014, the Keeper considered additional documentation provided by the FS and expanded the boundary of the TCD, such that it included all of the Solenex leasehold and also included tribal lands outside of the National Forest. The TCD is eligible under Criterion A for its association with Blackfeet traditional religious and cultural practices. The TCD is eligible under Criterion B for its association with “culturally important spirits, heroes, and historic figures central to Blackfoot religion, traditional lifeways, and practices” (Determination of Eligibility 2002). The TCD is also eligible under Criterion D because the area includes significant archaeological features supporting both the time depth of the traditional use of the area and important information regarding tribal use and adaptation within the mountainous area. The Keeper summarized the significance of the TCD in stating that it “represents a unique forest-prairie adaptation that embodies Blackfeet tradition and identity, past and present.” According to the TCD documentation with which the Keeper concurred, key contributing characteristics include power, knowledge, holy area, plant/mineral/animal resources, and hunting.
The Blackfeet Tribal Business Council described the TCD in Resolution No. 260-2014 (2014) as “one of the most cultural and religiously significant areas to the Blackfeet People since time immemorial.” The tribal representatives communicated to the ACHP in the government-to-government meeting on September 2, 2015, and at the public meeting that in the tribal world view, there is no distinction between the natural and cultural values of the TCD. To them, biota health and water purity are synonymous with the well-being of the Blackfeet Tribe and Blackfeet individuals. At the public meeting, the ACHP heard directly from the current Blackfeet Tribal Business Council and from tribal members of their personal cultural and spiritual experiences in, and the healing power of, the TCD. The leadership of the tribe has consistently raised concerns regarding the exceptional importance of this area since the first joint FS and BLM approval of the APD in 1985. The current Blackfeet Tribal Business Council reaffirmed the significance of the TCD at the public meeting on September 2, 2015, in Choteau, Montana.
The ACHP also heard directly from members of the public of their support of the Blackfeet statement of significance of the TCD. Some stated that they had also experienced the healing power of the TCD, and Blackfeet members acknowledged that the power of the place was not exclusive to Blackfeet people.
The TCD retains integrity and is a landscape virtually unmarred by modern development and intrusions.
Solenex has argued that its leasehold is in a “disturbed area” and provided images showing a roadway, railroad, and utility lines on the boundary of the TCD. Documentation of the FS and the Keeper’s determinations of eligibility and additional aerial and ground-level images provided by the FS clearly demonstrate that the drill site and access area as well as the overall TCD are not “disturbed.” The nearly 259 square mile area included in the TCD is generally unspoiled by modern development and intrusions, and retains integrity as a historic property. In its 2014 documentation of the finding of adverse effect, the FS acknowledges that there are: Two electronic communication sites located on Mount Baldy and Half Dome Crag peaks in the eastern portion of the TCD. A Forest Service administrative site, Badger Cabin, is located roughly in the center of the TCD, and numerous Forest System trails are interspersed throughout the TCD. Various access routes were constructed within the TCD over many years, but these have been or are currently being closed and rehabilitated as a result of the 2009 Travel Management decision. (FS letter to ACHP, December 4, 2014, pp. 2-3)
The 2009 Badger-Two Medicine Travel Plan also prohibited the use of motorized vehicles in the TCD. In its March 2015 Forest Plan Revision Assessment of the Helena and Lewis & Clark National Forests, the FS describes the use of the area for “backcountry recreation that relies on traditional skills, solitude, and self reliance.” The TCD is adjacent to the Scapegoat and Bob Marshall Wilderness Areas and Glacier National Park. In the 2015 Forest Plan Revision Assessment, the FS states that these 1.5 million acres of wilderness are a critical component of the North Continental Divide Ecosystem. The current intermittent and light nature of public use in the area has ensured the preservation of sites contributing and key to defining features of the TCD.
The proposed gas exploration and development would introduce activities and intrusions incompatible with the TCD and its unique qualities.
The FS rigorously applied the Criteria for Adverse Effect (36 C.F.R. § 800.5(a)(1)) to the undertaking in its documentation dated December 3, 2014. This documentation was prepared taking into account Solenex’s comments and objections to a previous draft finding. The FS found that the undertaking may adversely affect the defining characteristics of the TCD by diminishing its integrity of setting, materials, feeling, and association.
The FS assessment of the adverse effects can be summarized with this statement from the finding:
Since the Hall Creek area of the TCD is associated with Blackfeet hunting, Blackfeet stories, Blackfeet power, and Blackfeet prayers/fasting/vision questing, anything that disrupts the visual
natural setting, interrupts meditation, or affects the feeling of power in the area will affect the associated current traditional uses of the area by the Blackfeet. This decreased ability for the Blackfeet to use this area for traditional cultural practices would also indirectly reduce the Blackfeet’s ability to identify themselves as Blackfeet. It would make the associated power of the area less suitable by decreasing its effectiveness and accessibility to traditional practitioners. Further, any negative effects to the associated power in this portion of the district would also indirectly affect the power of the entire district since it is all interconnected in the Blackfeet worldview.
(FS, December 3, 2014, p. 5)
In its letter to the FS dated January 9, 2015, responding to the request for the ACHP’s opinion regarding the finding of adverse effect that Solenex disputed, the ACHP concurred with the FS finding of adverse effect. The ACHP added that, because the undertaking is located primarily within the TCD, implementation of the undertaking may result in diminution of the TCD’s integrity of setting, materials, feeling, and association, even with the mitigation measures specified in the 1991 and 1993 RODs. While the data recovery of affected archaeological sites, as stipulated in the mitigation measures of the 1991 and 1993 RODs, was not considered an adverse effect at that time, the current (2004) Section 106 regulations consider data recovery to be an adverse effect (36 C.F.R. § 800.5(2)(i)). The ACHP also noted that, in the cumulative effects of the field production scenario described in the 1993 ROD, the undertaking may lead to the construction of multiple well sites and access roads and increased traffic on those access roads. Accordingly, the scale of the cumulative adverse effects would be greater than those described by the FS in its assessment of the adverse effects of the exploration well alone.
Since the lease was issued by the BLM, the FS was unable to consider alternatives to the undertaking that would avoid adverse effects.
The ACHP’s review of the documentation indicates that neither the BLM nor FS conducted a Section 106 review prior to the BLM 1982 lease. The 1982 lease provides Solenex with the right to develop federal oil and gas reserves within that leasehold, subject to surface access conditions. The ACHP has been advised by the BLM that the FS, in conducting its environmental review of the surface access to reach subsurface minerals, may recommend to the BLM that it not approve the APD, which could eventually result in the cancellation of the lease. The FS has indicated that, prior to the ACHP’s involvement in this case, it had not received such advice from the BLM, and so the Section 106 consultation had not addressed the possibility of prohibiting gas exploration. Further, when the ACHP raised the issue of avoidance in the April 2014 consultation meeting, Solenex was opposed to such a discussion because, in their view, it was infeasible.
Although Solenex has expressed willingness to commit to and implement mitigation measures, such measures would be wholly insufficient to resolve adverse effects to the qualifying characteristics of the TCD. Solenex has emphasized that the current APD is for one exploratory well, with a small footprint on the edge of a large historic property. It has rejected directional drilling and well pad relocation proposals on the basis of infeasibility. At the consultation meeting in April 2015, in which the ACHP participated, Solenex invited the parties to propose mitigation schemes for consideration. When the tribe offered to trade the Solenex leasehold for a lease of comparable value on the Blackfeet Reservation, Solenex rejected that offer. The tribe subsequently informed the ACHP that the offer is no longer on the table for discussion. The Blackfeet Tribe clearly stated that no mitigation could resolve the adverse effects to this historic property. While effects to natural environmental impacts or archaeological sites may in some circumstances be mitigated to meet modern standards, such mitigation will not address the diminution of qualifying characteristics of the TCD. The ACHP’s review of the documentation as well as consultation with stakeholders and public testimony has led to the ACHP’s conclusion that no mitigation measures would achieve an acceptable balance between historic preservation concerns and the undertaking.
Congress has shown its intent to avoid oil and gas development in the TCD, and the public at large is overwhelmingly in support of the preservation of the TCD. In the Tax Relief and Health Care Act of 2006, Congress withdrew lands from oil and gas leasing on the Rocky Mountain Division of the BLM, making new leases in the TCD impossible. This law also provided tax incentives for existing leaseholders to transfer their oil and gas leases in the withdrawal area to the federal government or qualifying non-profit conservation organizations. It is clear to the ACHP that Congress intended to protect the area from such future development.
In addition, in the oral and written comments of the public received by the ACHP, the vast majority of respondents voiced their strong opposition to the proposed gas exploration. Many non-tribal commenters specifically identified the religious and cultural importance of the area to the Blackfeet and the tribe’s earnest interest in continuing to practice their religious and cultural traditions in the area as the basis for their opposition to the project. Two Montana State Representatives and the Glacier County Council expressed their support of the recognition and protection of this area. The ACHP was also provided with a copy of a letter dated May14, 2015, from the Governor of Montana to the Chairman of the Blackfeet Tribe stating support for the protection of the area. This consistent and overwhelming opposition to the project provides compelling evidence that the public respects the cultural importance of this area to the tribe.
The ACHP recommends that the Departments of Agriculture and Interior revoke the suspended Permit to Drill, cancel the lease, and ensure that future mineral development does not occur.
If implemented, the Solenex exploratory well along with the reasonably foreseeable full field development would be so damaging to the TCD that the Blackfeet Tribe’s ability to practice their religious and cultural traditions in this area as a living part of their community life and development would be lost. The cumulative effects of full field development, even with the mitigation measures proposed by Solenex, would result in serious and irreparable degradation of the historic values of the TCD that sustain the tribe. If necessary, the Secretary of the Interior, in coordination with the Secretary of Agriculture, should seek authorizations from Congress to withdraw or cancel the Solenex lease.
The ACHP further recommends that the Secretary of the Interior, working with the Secretary of Agriculture, take the steps necessary to terminate the remaining leases in the TCD, in a manner consistent with addressing the Solenex lease.
National forests and other federal land managers should seek to replicate the collaborative effort to conduct meaningful consultation with and to identify and evaluate properties of religious and cultural significance to Indian tribes. It has taken much time and effort by the FS and tribal representatives to fully identify and evaluate the historic property, during which time federal recognition and protocols for documentation of this property type have evolved. In addition to informing the Section 106 review of this undertaking, the collaborative effort made by the FS and the tribe has greatly strengthened working relationships and improved opportunities for historic preservation in the Lewis and Clark National Forest and should be considered a model for national forests and other federal land managers.
The FS and BLM should work together to identify and implement opportunities to consult with Indian tribes and other Section 106 stakeholders prior to the issuance of federal mineral leases on FS and BLM lands.
Section 106 of the NHPA requires that an agency’s consideration of the effects to historic properties occur “prior to the issuance of any license” (54 U.S.C. § 306108). The regulations further clarify that the agency “shall ensure that the Section 106 process is initiated early in the undertaking’s planning, so that a broad range of alternatives may be considered during the planning process for the undertaking” (36 C.F.R. 800.1(c)). For the Section 106 process to work effectively, the agency’s consideration of a “broad range of alternatives” must include avoidance alternatives, if they exist.
For this reason, the ACHP urges agencies to develop policies and procedures that require the initiation of Section 106 consultation prior to leasing decisions. Consultation during the FS national planning efforts, which may identify zones within a specific National Forest for such leases, for instance, could help the parties to identify potential historic properties of concern that could present unreasonable challenges in the permitting process. The BLM should also consider opportunities for consultation in broad scale planning efforts to identify areas suitable for oil and gas leasing. The BLM should look for models in the consultation efforts made for the recent West-wide Energy Corridor Study and, especially, the Western Solar Plan. Starting Section 106 compliance prior to the issuance of oil and gas leases could very well avoid the delays encountered in this process.
The FS and BLM, in coordination with the ACHP, should work together to improve inter-departmental communications and transparency in Section 106 reviews of oil and gas development undertakings.
Even once a lease is granted and an APD is filed, the BLM should participate in Section 106 review with the FS in cases where the head of the BLM retains final decision-making authority in regard to whether or under what conditions a Permit to Drill is authorized. This arrangement would ensure that such Section 106 consultations were informed by a full understanding of the interests, authorities, and limitations of each agency as they relate to such decisions. It would also make the federal responsibilities and decision making more transparent for the Section 106 consulting parties and the public.
Sunday, November 15, 2015
After presenting this paper in Beijing in 2011, and seeing it handsomely published in 2013, I posted it on Academia.edu, where it's had a remarkably broad readership -- accessed by unsuspecting potential readers in countries ranging from Azerbaijan to Zimbabwe. I'm gratified by such widespread interest, but see no evidence that the paper's had any impact on practice or policy. Hope springing eternal, I thought I'd share it with readers of this blog as well.
Presented September, 2011
(Published in Cultural Heritage Research Volume 2 by the Chinese Academy of Social Sciences [CASS] (Proceedings of the World Archaeological Congress 2011 Beijing
Intercongress on Heritage Management in Asia), Science Press Beijing 2013.
Introduction: Environmental Impact Assessment (EIA)
It is no secret that development projects of all kinds – housing and agricultural schemes, dams, highways, rail lines – do injury to the environment. This has nothing to do with whether these projects are justified on economic, social, and even environmental grounds; they often if not always are. One has to destroy in order to build; it is in the nature of the enterprise. As long as we want economic growth, industrialization, the ability to defend our nations and provide sustenance and comfort to our people, we must do things that injure the environment.
To control such injury, since the early 1970s virtually every national government, and such nongovernmental organizations (NGOs) as the World Bank, have put in place procedures for “environmental impact assessment” (EIA) (c.f. Eccleston 2011).
The reason for EIA procedures is summed up in the Confucian maxim roughly translated as: “If you do not consider the future, you will be in trouble when it comes near.” If we do not consider what harm our proposed projects may do – however beneficial they may be – we will be in trouble in the future, when that harm materializes. Or perhaps we will not be in trouble, but others will be – those directly affected, and perhaps our children and grandchildren. Accordingly, governments and funding bodies have realized that they should consider what damage a project is likely to do before they decide whether and how to go forward with it.
This is not to say that damaging projects should not be undertaken; often they must be. It is only to say that if we know what damage is likely to occur, perhaps we can do things to keep it from happening, to reduce its severity, or make up for the damage somehow. And sometimes, yes, we will realize that the impacts are so severe that the project is not worth pursuing.
EIA and Cultural Heritage
Of course, among the aspects of the environment that can be damaged by modern activities is what we call “cultural heritage.” Readers of this book will probably agree readily that potential impacts on cultural heritage should be closely examined in the course of EIA, that alternatives to damaging activities should be considered, that steps should be taken to avoid or reduce the damage. In general terms, the world’s people seem to agree; most communities react badly to actions they perceive as damaging their cultural heritage, and most governmental guidelines for EIA indicate that impacts on cultural heritage (defined in various ways) should be considered in planning.
Often, however, when EIA is performed on proposed projects, not much attention is paid to cultural heritage, or at least not to anything but the most obvious, well-documented, officially –recognized, physical aspects of such heritage. EIA analysts merely list historic monuments officially designated by government, or places inscribed in the World Heritage List. They often assume, and assert, that these will be taken care of by following whatever standard procedures government has put in place. Often the people and communities whose heritage is most at risk are poorly engaged in the process of EIA, their heritage values are poorly considered in planning, and the steps taken to mitigate impacts – decided on by project proponents and governments, if indeed any such steps are taken – are inadequate or even irrelevant to the people whose heritage is affected.
In my experience there are several common, interrelated reasons that cultural heritage is not addressed well in EIA. In this paper I want to outline some of these problems, discuss a case study from my own country that exemplifies some of them, and suggest steps that we might take to solve them.
Case Study: The Luiseño Ancestral Origin Landscape and Liberty Quarry
The American Indian tribe long known by their Spanish colonial name, Luiseño,
have occupied a modest-sized territory in coastal southern California, U.S.A., since time immemorial. Many Luiseño people now live on a reservation adjacent to the city of Temecula in Riverside County. The city’s name is derived from ‘éxva Teméeku, an important place in a larger (about 4450 hectares) landscape in which many of the origin traditions of the Luiseño played out – the creation of the first people (Káamalam), the death (the first ever) and cremation of the hero Wuyóot, and the transformation of the Káamalam into the rock outcrops that even today dot the hills. To the Luiseño, this landscape is of supreme historical, cultural, and spiritual significance.
It is, however, at this writing not listed on any official roster of cultural heritage – not on the World Heritage List, not on the U.S. National Register of Historic Places, not on California’s own register of historic places. Only within the last year did the Tribe place it on the list of “sacred sites” maintained by the state’s Native American Heritage Commission.
There are excellent reasons for all this – besides the fact that getting a place listed is costly and time consuming. For the last 500 years the federal and state governments (and their colonial predecessors) have carried out military actions against North America’s tribes, taken their land, placed them on reservations and until quite recently insisted that they give up their traditional religions and lifeways. The Luiseños’ non-indigenous neighbors have at best regarded their traditions as quaint. People have dug up their ancestors, defaced their rock art, and desecrated their sacred places. Under such circumstances, why would any sensible indigenous group volunteer to register its traditional places on a government list? Tribes simply have no reason to trust the government, and every reason not to share sensitive information with its representatives. But absence from lists says nothing about the significance of a place to the Luiseño; they know what it is, and why it is important.
California-based Granite Construction has proposed to build a large aggregate quarry within the Luiseños’ valued landscape. The story of the Luiseño effort to get government to respect their cultural heritage concerns about this proposal illustrates the problems I want to explore with cultural heritage in EIA. I stress, however, that – sadly – this story is not unique or even unusual; similar conflicts play out the world over, and are poorly addressed in EIA and government planning.
Problem One: What is Cultural Heritage?
Different people conceptualize cultural heritage in different ways, and this complicates its consideration in EIA. In my own experience in the United States and the Pacific islands, and in reading the international literature, I find that ccultural heritage is variously defined to include – or exclude (among other things)
- Monuments, archaeological sites, and cultural landmarks;
- Traditional ways of using the land and its resources;
- Culturally important plants and animals, water sources, and landscapes;
- Culturally valued soundscapes and viewsheds;
- Stories, songs, philosophy and language;
- Traditional forms of subsistence;
- Traditional ways of life;
- Religious, spiritual and other cultural practices;
- Objects of material culture (artifacts, antiquities);
- Art forms, and
- Books, manuscripts, and other literary products.
Each of us academic and professional practitioners specializes in one or more of the above types of heritage. Most of us at the Intercongress that produced this volume, in fact, specialize in a subdivision of the first type shown on my list: archaeological sites, which may also be thought of as historic places and/or landmarks. We understandably do not take responsibility for other kinds of cultural expression, other parts of the cultural environment. But here is the problem: we also often fail to inform those who plan and carry out EIA that we are not authorities on all aspects of cultural heritage. And we fail to recommend that they consult those who are authorities on cultural things other than archaeology, notably including the local people themselves. We call ourselves things – like “cultural heritage specialist” and “cultural resource manager” – that obfuscate what we actually know and can advise about. This results in assessments in which “cultural heritage” is equated entirely with monuments or archaeology, while the other elements of culture are given little consideration or even ignored entirely. These aspects of the cultural environment may be just as worthy of protection as – even more worthy than – archaeological sites, and they may be much more the concern of local people, but if they are considered in EIA at all, it is often in spite of us rather than with our support.
Consider, for example, animals or plants that figure in a community’s self-identity. I have been involved with the Okinawa dugong, significant in the beliefs of traditional Okinawans; the dugongs’ habitat is threatened by the proposed construction of a U.S. military base. To those performing EIA on the project, the dugongs were animals of professional concern to biologists and natural resource managers. To the local people, however, the dugong is literally a sacred animal. Had it not been for litigation by Okinawan, Japanese, and U.S. environmental groups, and near-violent demonstrations on the project site by Okinawans, the cultural value of dugongs and their habitat to the people of Okinawa would have been ignored in the military’s EIA and its decision making about the project (c.f. King 2006).
In the case of the Luiseño Ancestral Origin Landscape, the Riverside County Planning Department performed EIA on the proposed Liberty Quarry, under the authority of the California Environmental Quality Act (CEQA). The County Planning staff examined the Native American Heritage Commission’s list of “sacred sites” and found that none were listed within the project boundaries. They also had an archaeological survey done that revealed no archaeological sites. When challenged by the Pechanga Band of Luiseño Indians for failing to consider the Origin Landscape, they said that CEQA did not permit them to consider any place that archaeologists did not regard as significant. Oddly, at the same time they contracted with an ethnographer to study the ethnohistorical record of the area; he advised that it probably represented a cultural landscape important to the Luiseño, and recommended more study.
Rather than undertaking such study – which would inevitably have involved face-to-face consultation with the Luiseño – the County staff and the project proponent interpreted the ethnographer’s report to mean that no culturally significant places were present. Their rationale for this interpretation, insofar as it can be found in their documentation, seems to have been that the ethnographer had not identified specific archaeologically observable cultural places within the proposed quarry site. The notion that the landscape containing the quarry site could be culturally important, regardless of its archaeological visibility, seems to have escaped them.
Problem Two: The Limitations of Traditional Thinking About Cultural Heritage
As in many other cases, part of the conflict over the Luiseño Ancestral Origin Landscape reflects deliberate twisting of expert opinion by the employees of project proponents and regulatory bodies who see advancing development as keys to their job security. Much of what has happened, however, is less iniquitous; it is simply inherent in the ways people think when they work in cultural heritage management and EIA, and in the ways that cultural heritage and EIA systems interact.
EIA has developed as a part of governmental and non-governmental planning only in the last half-century. The management of historic landmarks, monuments, and archaeological resources, of course, has a more venerable history, by some reckonings going back to the 10th century ACE and perhaps farther. Organized government systems for heritage management were being put in place in Europe by the early 19th century, and spread across the world with colonialism. So the ways archaeologists, architectural historians, and our colleagues think about our aspects of cultural heritage were well set in place before EIA ever came on the scene. These ways of thinking feature the following more or less standard elements:
- A narrow focus on specific, carefully defined places – usually buildings, other structures, monuments, and archaeological sites, and on portable antiquities;
- Difficulties in conceptualizing broad landscapes and natural places as having cultural significance;
- Compilation of official lists of heritage places, variously called registers, inventories, and schedules, among other things;
- An expectation that listed heritage places should be preserved unchanged in perpetuity;
- Little or no consideration given to places not on official lists, or not at least regarded as eligible for them;
- Official governmental bodies that compile and maintain lists, and promote preservation;
- Laws and regulations aimed at protecting listed places to varying degrees, or at least at reserving to government the right to destroy them.
- More or less rigorous constraints on the private appropriation of heritage places, or of antiquities.
These standard elements are embedded not only in the legal systems of most nations, but in such international instruments as the World Heritage List. Even when we try to bend our minds around cultural things that are not archaeological sites and historic landmarks, we automatically apply our traditional ways of thinking. The UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, for example, directs that signatory nations compile lists of intangible cultural heritage, despite the inherent fluidity and evanescence of intangible culture.
When this list-based, hierarchical, bureaucratic and rather rigid system of thought intersects with EIA, it further narrows the scope of impact analysis. Not only does EIA come to represent archaeological sites and landmarks as the only culturally significant aspects of an affected environment, it tends to recognize as significant only those sites and landmarks that government has officially declared and listed as such. In the United States, for instance – to hold up only my own country as a sad example – if a local community fears that a place it holds dear may be destroyed by government action and wants it considered in EIA, it must show that the place is eligible for the National Register of Historic Places. This requires the community to explain the place’s significance to government archaeologists, architectural historians, and others following technical regulations issued by the National Park Service and readily understood only by specialists. In most EIA documents in the United States, if a place has not been found eligible for the National Register, it is assumed to be of no significance, and can be destroyed with impunity. And cultural heritage that is not embodied in places – for example animals, plants, belief systems, traditional food – has almost no chance of being considered in EIA. This strikes me, at least, as a strange way for a grandly self-proclaimed democracy to respect the cultural values of its people.
In the Luiseño case, much of the argument about the Tribe’s cultural landscape has centered on its eligibility for the California Register of Historic Resources, which derives its criteria for inclusion from the U.S. National Register of Historic Places. After the Tribe forcefully rebutted the County staff’s assertion that only archaeological sites could be considered in the course of EIA, Granite Construction hired its own historic preservation expert to argue its case. Her approach eschewed all contact with the Tribe and was based solely on the ethnographic literature and government regulations. She began with a careful explanation of what she said were the U.S. government’s rules governing National Register eligibility. These, she said, permitted recognizing a place as eligible only if it related to a well-articulated historical “theme.” She generously allowed that Luiseño Origin traditions might constitute such themes, but then deconstructed them into multiple examples, each giving significance only to a limited part of the overall cultural landscape. Each of these, strangely enough, happened not to include the quarry site. She acknowledged that one could map much larger landscapes based on the traditions, and that some of these would include the quarry site, but she implied that these would be so big that the quarry’s effects on them would be miniscule. She then prudently left town before the decision makers or the public could question her.
The consultant’s willingness to interpret government procedures in ways that undercut the interests of the Tribe strikes me as professionally reprehensible, but such things are probably inevitable in an EIA system like that in the U.S., where project proponents either hire (and fire) those who analyze potential project impacts or strongly influence the regulatory agencies that engage such analysts. But the Luiseño case also illustrates a more institutional problem with the interactions between EIA and cultural heritage.
Problem Three: Attitudes and Assumptions
When people conducting EIA seek to consider the cultural aspects of the environment, they understandably turn for advice to the government’s cultural heritage authorities – ministries of culture, official archaeological surveys, agencies that maintain schedules or registers of cultural places and things. In the Luiseño case, the State Historic Preservation Officer and Native American Heritage Commission were the government experts contacted. EIA analysts reasonably assume that such authorities can advise them about – perhaps even provide them with lists of – significant cultural heritage that may be affected.
The cultural heritage authorities often have little understanding of EIA, but they do know their own programs, regulations, policies, and specialties. As far as they know, when they are asked to advise about cultural heritage, they are being asked to advise about what is on their lists, what they are officially responsible for, or what falls within the ambit of their professional expertise. They advise about archaeological sites, scheduled monuments, registered buildings, listed sacred sites. What they almost certainly do not advise about is how to interact with local people and, communities, to find out what they think is important and what they think ought to be done about it. That sort of engagement has never been part of the portfolio of most government heritage offices, and few of them are staffed, funded, trained or encouraged to promote such engagement. In these days of fiscal belt-tightening and regulatory “streamlining” among government agencies everywhere, cultural heritage authorities are often barely able to process paperwork crossing their desks, and are most unlikely to assert themselves on behalf of people and communities they may not even know exist. So they tell the EIA specialists what is on their lists, in their files, and little if anything more. Or they ask that an archaeological or architectural survey be done, and its results subjected to professional review.
Having received the advice of the government experts, perhaps doing the requested professional studies, and believing that they now know what cultural heritage may be affected, the people conducting EIA duly report what they have learned and proceed to analyze environmental impacts without further consideration of culture. If local people and other interest groups then object – perhaps violently – to what they think the project will do to their heritage, it often comes as a surprise to the project’s proponents and their EIA specialists (and sometimes to the cultural heritage authorities as well).
In the Luiseño case, the County staff checked a records center maintained by the State Historic Preservation Officer, where they found that only one cluster of archaeological sites had been nominated to the National Register of Historic Places. This cluster, though part of the Ancestral Origin Landscape, had been nominated by an archaeologist – this author, as a much younger man – who had failed to consult the Luiseño. Its rather arbitrarily-drawn boundaries were some distance away from the Liberty Quarry project site. They also contacted the State Native American Heritage Commission and checked its “sacred sites files,” but as noted above, the Pechanga Band had not at that time had occasion to list its landscape there. To its credit, the Commission did suggest that the County consult the Band, but provided no detailed guidance, and the County’s consultative efforts were limited at best. Following standard California state practice, the County also had an archaeological survey conducted of the project site, which produced no significant results. The EIA report, when published, suggested that the project would have a less than significant effect on “cultural resources,” despite the Band’s by-now vociferous objections to the potential desecration of its cultural landscape.
Government, Culture, and People
The Luiseño case is by no means unusual; comparable examples can be found in virtually every part of the United States and in every country world-wide. The systems – if such they can be called – that permit and facilitate such abuses are fundamentally unfair and counter-democratic, and their operation undercuts our efforts to preserve cultural heritage. Surely it is true that only the citizens of our countries, only the people, have the power to redirect and control destructive development, but our traditional ways of managing heritage disconnects us from the people. By focusing attention only on the kinds of heritage that we archaeologists, architectural historians, and other “experts” understand and appreciate, we fail to engage the people. By failing to respect them and the things they think are significant, by insisting instead that they respect our evaluations of heritage, our terminology and ways of viewing the universe, our ways of describing and discussing heritage, and our plans for its management, we cause ourselves to be seen as elitist and irrelevant to the people’s interests. Not only does this break faith with the people in whose interests we presumably seek to manage heritage; it also leaves us in a relatively powerless position when contending with developments that destroy it. We become, in essence, junior partners in such developments, and we are easily ignored by our senior partners in government and industry when conflicts arise.
Ironically, failing to engage the people and address the heritage they value can also impede development projects. I have personally seen important, highly justified projects held up for years, at very high cost, and sometimes abandoned altogether, because of last-minute controversies over locally valued cultural heritage. In the Luiseño case, at this writing, the County Planning Commission has denied a permit for the Liberty Quarry, in part because of its impacts on the Luiseño ancestral origin landscape. Appeals will doubtless be lodged, the final outcome remains in doubt, and the Commission’s action came only after an extraordinary effort by the Pechanga Band and its allies, who had to engage their own expensive “expert” consultants (like the author) to help rebut the conclusions of the project proponent’s consultants and the County staff. Both sides spent a great deal of time and money that could have been saved, had a more thoughtful process of EIA been carried out.
Controversies like the one surrounding the proposed Liberty Quarry can often be avoided or efficiently resolved if affected people and communities are respectfully consulted, early in project planning. Unfortunately, and quite inadvertently, our systems for considering cultural heritage in EIA do not routinely or even often provide for such consultation. I suggest that it would be in everyone’s interests – the interests of governments, of archaeologists and other heritage professionals, of our institutions and agencies, of communities world-wide, and of the development community – to make EIA more sensitive to cultural heritage, broadly defined, and notably to the cultural values of local communities. Interestingly, a way to do this has been offered – not by us cultural heritage experts, but by biologists.
The Akwé: Kon Guidelines
The Secretariat of the Convention on Biological Diversity – a convention to which China and other Asian countries are signatories, but my country, I am sorry to say, is not – has produced a sophisticated set of guidelines for considering cultural heritage in EIA (Secretariat of the Convention on Biological Diversity 2004). These guidelines are called “Akwé: Kon”(“Ahgwégoh”) a term in the language of the North American Mohawk tribe meaning “everything in creation.” They outline how to conduct social, cultural, and environmental impact assessments in concert with affected communities. The guidelines are voluntary; the Secretariat has no regulatory authority. Their lengthy subtitle indicates that their application is recommended only where “sacred sites” or “lands and waters traditionally occupied or used by indigenous and local communities” are involved. Their unenforceable character does not detract from their quality as good advice, however, and it is hard to imagine a place on earth, other than the deep oceans and Antarctica, that has not been “traditionally occupied or used” by communities.
A government or NGO planning some form of land-use – a dam, a highway, an agricultural or urban revitalization scheme, or a power plant – that conscientiously followed Akwé: Kon would actively and creatively engage local communities in every aspect of planning. It would work with such communities to identify who speaks for different cultural interests. It would learn how to communicate with these groups, find out and record their concerns and negotiate ways to address them. In doing so, it would make sure that affected groups have the financial and other resources necessary to participate fully in impact assessment and decision making. It would negotiate and put in place agreements with the communities about how the impacts of the project would be identified and considered. Following such agreements, it would conduct cultural impact studies addressing the project’s possible impacts on, for example:
…cultural heritage, religions, beliefs and sacred teachings, customary practices, forms of social organization, systems of natural resource use, including patterns of land use, places of cultural significance, economic valuation of cultural resources, sacred sites, ceremonies, languages, customary law systems, and political structures, roles and customs.
(Secretariat of the CBD 2004:13)
The scope of such studies would take into account:
(a) Possible impacts on continued customary use of biological resources;
(b) Possible impacts on the respect, preservation, protection and maintenance of traditional knowledge, innovations and practices;
(c) Protocols (negotiated with communities);
(d) Possible impacts on sacred sites and associated ritual or ceremonial activities;
(e) Respect for the need for cultural privacy; and
(f) Possible impacts on the exercise of customary laws.
(Secretariat of the CBD 2004:14)
The government or NGO would carry out environmental assessments coordinated with the cultural assessments. These would “respect existing inherent land and treaty rights as well as legally established rights of indigenous and local communities” and “contribute to the protection of the rights of indigenous and local communities by recognizing (their) distinct activities, customs and beliefs…” Such assessments would consider, among other more strictly eco-biological factors:
· areas of particular economic significance (as hunting areas and trapping sites, fishing grounds, gathering areas, grazing lands, timber harvesting sites and other harvesting areas);
· particularly significant physical features and other natural factors which provide for biodiversity and ecosystems (e.g. watercourses, springs, lakes, mines/quarries that supply local needs); and
· sites of religious, spiritual, ceremonial and sacred significance (such as sacred groves and totemic sites).
(Secretariat of the CBD 2004:16-17)
Coordinated social impact assessments would:
…. take into account gender and demographic factors, housing and accommodation, employment, infrastructure and services, income and asset distribution, traditional systems and means of production, as well as educational needs, technical skills and financial implications… and evaluate …. tangible benefits to such communities, such as non-hazardous job creation, viable revenue from the levying of appropriate fees from beneficiaries of such developments, access to markets and diversification of income opportunities.
(Secretariat of the CBD 2004: 18)
Economic assessments would recognize that:
…changes to traditional practices for food production, or (that) involve the introduction of commercial cultivation and harvesting of a particular wild species (e.g. to supply market demands for particular herbs, spices, medicinal plants, fish, fur or leather) may lead to pressures to restructure traditional systems of land tenure or expropriate land, and to pressures on the sustainable use of biological diversity, in order to accommodate new scales of production. The ramifications of these kinds of changes can be far-reaching and need to be properly assessed, taking into account the value systems of indigenous and local communities. Likely impacts associated with the cultivation and/or commercial harvesting of wild species should also be assessed and addressed.
(Secretariat of the CBD 2004: 19-20)
The results of all these assessments would be brought back to the community and coordinated with its own planning, in a transparent, consultative manner, with provision made for the resolution of disputes (Secretariat of the CBD 2004:22-25).
Opting for Akwé: Kon
An EIA system based on Akwé: Kon would not discourage consideration of things like World Heritage sites and places or things listed in a national schedule or register, but it would recognize that those who are fixated on such places – that is, let us admit it, many of us – constitute only one set of cultural stakeholders, whose values are not privileged over those of others, notably including local people. It would be significantly more democratic, more transparent, more inclusive than most existing systems. It would also, I think, produce a higher degree of predictability for development project proponents than they currently enjoy.
Adopting an Akwé: Kon based system would require administrative, legislative, and policy actions of different kinds, depending on the nation or NGO involved. In the U.S., unfortunately, it would require action by our legislative bodies, which is very unlikely to happen given their current composition. In nations with less fossilized EIA and cultural heritage systems than ours, among NGOs and even perhaps among private-sector developers, there may be more hope.
I have no magic formula for replacing the world’s ineffective cultural heritage systems with something like Akwé: Kon. My purpose in this paper has simply been to suggest that many of our existing systems for relating cultural heritage to EIA are self-defeating, and to suggest that we consider such creative alternatives as Akwé: Kon – alternatives that stress finding out what concerns living people and communities – not just governments and specialists – about impacts on cultural heritage as they define it, and addressing such concerns creatively and with responsibility. I hope that the world’s environmental and cultural heritage organizations, and the smart young people who are rising to leadership in them, will undertake this consideration.
Convention on Biological Diversity: Secretariat of, 2004 Akwé: Kon – Voluntary Guidelines for the Conduct of Cultural, Environmental, and Social Impact Assessments Regarding Developments Proposed to Take Place On, or Which Are Likely to Impact On, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities. Secretariat of the Convention on Biological Diversity, Montreal, available from http://www.cbd.int/doc/publications/akwe-brochure-en.pdf, [23 September 2011].
Eccleston, Charles H., 2011 Environmental Impact Assessment: A Guide to Best Professional Practices. CRC Press, New York.
King, Thomas F., 2006 Creatures and Culture: Some Implications of Dugong v. Rumsfeld. International Journal of Cultural Property 13, 235-40