In Alberta, we strive to prevent the outcome espoused in the tragedy of the commons in two main ways: the first is through government intervention and the second is through private property rights. The following section will take a closer look at both and will highlight a third way that, while less common, may help us to think beyond our current land and resource management system.

How can government intervention, primarily through regulations, help to prevent the tragedy of the commons?

To help you understand how government regulation can help to prevent or prohibit the Tragedy of the Commons, we will focus on the ocean and how Canada and other countries seek to protect it from pollution and waste.

Because the ocean is so vast, each continent has a role to play in its protection and no single continent can do it alone. In anticipation of this, the United Nations has attempted to help protect the oceans from overuse and over pollution through treaties.

See “Fundamentals of Law” here for a definition of what a treaty is and how it becomes law in Canada.

One example of this type of treaty is the UN Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (we will call it the “London Convention”) and the related 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (we will call this one the “1996 Protocol”). [1]

The London Convention and the associated 1996 Protocol are parts of a United Nations Treaty whose “objective is to promote the effective control of all sources of marine pollution and to take all practicable steps to prevent pollution of the sea by dumping of wastes and other matter.” [2]

Canada is one of 87 countries to have ratified (formally agreed to) this treaty. The UN’s hope is that ratification will mean that individual countries start to implement laws or regulations to limit and/or prevent companies and individuals from dumping harmful substances into the ocean.

One way that Canada is upholding some of the principles set out in the London Convention is through the Canadian Fisheries Act. [3] This federal Act limits pollution from being dumped into Canadian waters that are inhabited by fish.

Two of the key pollution prevention sections are section 36(3) and section 35. Section 36(3) states that no person shall deposit or permit the deposit of a harmful substance of any type in water frequented by fish or in any place where depositing the harmful substance could enter water frequented by fish. [4] Section 35 prevents any person from carrying on any work, undertaking or activity that results in the harmful alteration, disruption or destruction of fish habitat. [5] These sections prescribe limits on how Canadian waters can be utilized.

Two Types of Regulation

Anti-dumping laws, and other pollution prevention laws, are known as command or control types of regulation. These are bans, or semi-bans, of a particular action or regulations that otherwise attempt to control individual behaviour.

One critique of command or control type regulations is how difficult it can be to enforce these laws. In cases of large-scale environmental regulations such as control of the ocean, enforcement is extremely difficult. Who will make sure that each country, province, or even company is pulling their own weight and enforcing the rules – what will the international community or the federal government do if one party is not cooperating? What about parties that do not have the means to uphold their portion of the deal?

In contrast to control type regulations, an alternative type of government regulation is known as an incentive regulation. This is a regulation which seeks to encourage certain forms of behavior over others. This could be something like a carbon tax which encourages a lifestyle with lower carbon usage through taxation or incentives, without actually banning or limiting anyone’s individual choices. [6]

Incentive-based regulation focuses on encouraging the behaviours that the regulation prefers. However, one critique of incentive-based regulations is that they disproportionately affect those individuals who cannot afford to cover the increased costs, while those who are unconcerned about money can afford to keep doing the original unwanted behaviour. For example, the pollution pricing scheme in Alberta increases gas prices in order to limit our GHG emissions. This may mean that people who have a tight budget will change their behaviour because they cannot afford more expensive gasoline while those people who have more disposable income and can afford increased prices may be less inclined to reduce their fuel consumption and change their behaviour.

A Constitutional Challenge

Another challenge for environmental regulation in Canada is the lack of any clear reference to the environment in our constitution. Although Sections 91 and 92 of the Constitution Act, 1867 help to define the separate powers held by the federal parliament and provincial governments, the environment is never directly mentioned.

For a more in-depth discussion of these concepts check out our section on the Canadian Constitution here.

This has meant that some areas of the environment are governed by the provinces, while others fall under federal jurisdiction and even other areas are governed by a combination of both levels of government.

Not only does this mean that even when you are following Alberta’s rules, you could still be in violation of federal legislation, it also means that there may be disagreements between the two levels of government leading to inefficiency, a lack of enforcement, or confusion, on the part of individuals. (Check out an example that occurred in Beaverlodge, Alberta when the wastewater disposal was in line with provincial standards but was still found to be in violation of the federal Fisheries Act here)

Next, let’s look at how private property rights can be used to fight the Tragedy of the Commons…

For this section, we will use our second example of the tragedy of the commons – an overgrazed farmer’s field.

The next time you drive through the Albertan countryside, you will see a lot of fields that would be perfect for farmers to graze their cattle on, as in our hypothetical example. However, you will probably notice that there are relatively few cows on each of these fields. This is because the number of cows allowed to graze on any piece of land is usually limited by who leases or owns the land.

In Alberta, privately owned land is land that is owned by an individual person (or corporation) and often means that this owner gets to control who and what goes onto their land. On privately owned land, the owner reaps the benefit of the land but also needs to deal with any associated costs or burdens. Sticking with our original example, this also means that if the owner allows too many cows to graze, eventually leading to their field being destroyed, they will be the one responsible for dealing with it. For a private owner, this may mean being unable to keep all of their cattle fed and losing money.

Privatization is one way in which we have tried to reduce the potential overuse of land or resources. This is based on the idea that privatizing land or resources and allowing an individual or company to be the owner of the land or resource, instead of the government, removes the incentive to exhaust the resource as quickly as possible. The owner now has a stake in what happens to that piece of land or resource, because the owner is the one who will have to regrow the grass if it gets over-grazed or clean the water if it becomes too polluted to use. [7]

There are a number of ways that the owner can ensure that other people do not go onto their private property – including bringing a claim in court. Two of the most common claims that may be used to enforce private property rights include trespass and nuisance.

  1. Trespass is when someone else intentionally enters your property. For example, your neighbour brings their cows to eat your grass without your permission.
  2. Nuisance is when someone does something on their own land that negatively affects the enjoyment and use of your property. For example, your neighbour dumps a bunch of pollutant waste all over their fields and it flows onto your land, killing your grass.
For another look at the ideas of trespass and nuisance, check out our Fundamentals of Law section, here.

If either of these events occurs, you can go to the courts and ask the Judge for a court order preventing your neighbour from continuing their harmful action and ordering them to pay you to help clean up any of the harm that has already been done.

There are also certain benefits associated with privatization. These benefits may include saving the government money because the government will no longer be responsible for controlling and policing the land or resource. Privatization may also be a more popular option because increases in government control can be difficult to sell to citizens who fear an infringement of their individual rights. However, along with these benefits, there are also difficulties that accompany increased privatization.

The next section will unpack some of the potential issues that privatization may bring, with a focus on the potential issues that arise when we privatize water.

1. Are there certain types of natural resources that should not be privatized?

One example that is often brought up when contemplating whether resources should be privatized or not, is the question of whether we should be able to privatize water. Understandably, water is a critical resource for the survival of animals, plants, and humans. So what would happen if we created a private market in water?

Imagine if prices went up so much that poorer communities ended up being priced out and unable to afford adequate water supplies? Or, what about monitoring water quality? Or, what if the majority of our water sources were controlled and owned by a small number of companies? These companies would become very powerful because, we the people, need water and we would do everything we could to stay on the good side of those who control the water supply. [8]

2. What about people who do not consider conservation to be a legitimate goal for their private property or land?

Another problem is that privatization does not guarantee that an owner will protect or safeguard their land or resource. If a private company owns a water supply and believes that the fast exploitation of this supply, to the point that there is no longer water available in that area, is likely to make them more money in the long run, what is stopping them from simply exploiting their property to the fullest? In turn, what is stopping them from buying a new water supply and doing the same thing all over again?

3. How do we control free-flowing natural resources?

One of the most overarching challenges we face when trying to privatize a resource like water is that regardless of how hard people try, water (and resources like it) are not readily privatized. Free-flowing water such as streams and rivers, without dams, have no regard for borders or economic divisions and it is impossible to tell if “your water” has moved into “my water.” This also means that attempting to control the same is futile.

So, when dealing with a resource like water, is government regulation the only practical option? Or, should we try to privatize water?

Here is a real-world example: Nestle, the multinational company that produces candy bars, bottled drinks, and more has a history of buying up water supplies in Southern Ontario (amongst other places) and in 2016 they outbid a nearby town for access to a water well. Once Nestle buys these water supplies (for relatively cheap), they bottle the water in plastic water bottles and sell it in stores, vending machines, and restaurants at a huge mark-up, ensuring Nestle shareholders receive a healthy profit margin and return on their investment. This means that water that would have been available to everyone through their taps is now restricted to those who can afford to buy a bottle of water for $1.75, or more. Although Nestle controls the quality of the water and can prohibit others from dumping pollutants into its water supply – one of the proposed benefits of privatization – it also controls the sale and availability of a crucial resource. This is one of the most serious negative side effects associated with the privatization of a resource such as water. Notably, in 2020, Nestle announced that they were selling their bottle water brand to a local company a move which has been celebrated as a win for water rights in the area.

To learn more about Nestle in Southern Ontario, check out some of these links:

Do you think companies should be allowed to purchase water sources and sell them back to citizens? Does this change how you feel about purchasing bottled water?

The third option uses small group management. This is a theory espoused by Nobel Prize winning economist Elinor Ostrom. She argues that the best way to deal with land and resource management is when small groups, such as communities, manage their own resources and set their own rules. She argues that this will allow for a more sustainable and effective method of dealing with the commons, arguing that the tragedy of the commons is not an inevitability. To learn more about her ideas check out this youtube video – Elinor Ostrom: Women in Economic

Now that you have made it through this section, which option do you think is better for solving the Tragedy of the Commons? Government regulation, private property rights or a little of both?

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[1] Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 30 August 1975, 1046 UNTS 120, 11 ILM 1294 (1972).

[2] IMO, “Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter” online: International Maritime Organization http://www.imo.org/en/OurWork/Environment/LCLP/Pages/default.aspx.

[3] Fisheries Act, SC 2019, c 14.

[4] Fisheries Act, s 36.

[5] Fisheries Act, s 35. 

[6] Bryan H Druzin, “The Parched Earth of Cooperation: How to Solve the Tragedy of the Commons in International Environmental Governance” (2016) 27 Duke J of C & Itl L 73 at 84-85.

[7] Bruce Pardy, Environmental Law: A Guide to Concepts (Toronto: Butterworths Canada Ltd. 1996) at 197.

[8] Bryan H. Druzin, “The Parched Earth of Cooperation: How to Solve the Tragedy of the Commons in International Environmental Governance” (2016) 27 Duke J of C & Itl L 73 at 88.

 

 

 

 

Managing Environmental Resources: A modern take on the Tragedy of the Commons

Lesson Plan: Fundamentals of Environmental Law
Lesson Plan: Canadian Charter of Rights and Freedoms
Lesson Plan: Tragedy of the Commons
Lesson Plan: Climate Litigation

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