Make property rights work for us all

By Nelson Quinn

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The historic entrenchment of private property rights interferes with our economy’s need to maintain ecosystems and their ecological integrity - the function, composition and structure of the system and its supporting biogeochemical processes.  We need a re-thinking of the very foundation of property so that it connects ecological systems, communities and people with the whole environment.

Finding greater economic and ecological rationality to maintain our ecosystems within the planetary boundaries recognised by our scientists has proven elusive.  We need property decision making processes that reflect community and wider ecosystem needs, not merely individual aspirations of property owners.  Two positive steps would be to develop conservation property rights and to use the concept of ecological integrity as a neutral foundation for public and private decision making relating to property, tenure and resource exploitation.

The property law problem

Modern property concepts and laws involving relationships among people and with ‘things’ arose before societies started to regain a general awareness of the dependence of human society on the whole of nature.  The whole of nature in turn depends on the myriad connections among living things and their surrounds.  The need to reform property laws to accommodate common environmental needs and achieve the right quality of social relations was recognised at the very first environmental economics conference in Australia in 1978.

Property law reform must meet several needs, for example:

  • avoiding individual traditional property holders acting inconsistently with wider ecological needs
  • helping overcome the problem of ecosystems being fragmented by legal boundaries
  • recognising and clarifying tenure rights that may overlap property ownership
  • extending the fair distribution of environmental benefits and burdens (environmental justice), and
  • accommodating a changing world.

At the same time, property law reform must be realistic and will need to accept:

  • that property rights are integral to modern society values and culture, and
  • the perceived advantages of the concept of property (the right to have access to resources, to exploit them, and to dispose of them).

Conservation property rights as a solution to the property law problem

The idea of conservation property rights is to recognise relationships with ‘property’ that are not just economic:

traditional property rights are a regulatory form that is indifferent to broader social complexity, as these property rights do not facilitate the unfolding of proper interaction, communication, and cooperation among all spheres of society with regard to the conservation of ecosystems. Rather, traditional property rights, paradoxically, appear to operate separating land from the surrounding ecosystem and social communities, blocking or at least reducing the possibilities of cooperation and communication.

We already have overlapping rights over a single legal title, for example, mining laws. We need to extend the idea so that the interested public can have increased opportunities to influence property decision making that affects them.  For example, farmers, researchers, local communities, tourism operators and indigenous groups will have an interest in some attributes or functions of an ecosystem.  These interests may differ in emphasis, but inevitably will overlap. Sometimes  we need to recognise rights to natural resources that pertain to a piece of land where there are multiple rights holders and that may apply at different times of the year, for example, food or animal fodder from a forest.

We need research and discussion to work through the details of how a system using conservation property rights might work, for example, on:

  • defining a right in relation to an attribute or function of the relevant part of the environment
  • defining rights holders, and
  • inclusion of these rights in land and property registers so that the traditional rights could not be exercised without regard to the new rights.

We would need to compensate traditional property owners in some cases

There are positive precedents from extending legal rights through the community: for example, as medieval and feudal systems broke down in Europe diffusion of legal rights across the relatively open societies, for example, Britain and the Netherlands, contributed to the spread of social and economic benefits.

Using ecological integrity as a foundation for law reform

Maintaining and restoring ecological integrity is a common need for all the interests in property mentioned above.  Ecological integrity can be defined so that it would have credibility for a wide range of interests, for example, scholars, government agencies, environmental groups, and industry and commercial interests, as well as individual property rights holders:

Ecological Integrity: The quality of an ecosystem* in which natural ecological processes sustain the function, composition and structure and evolution of the system within the natural range of variation and can withstand and recover from most perturbations imposed by natural environmental dynamics or human influences.

We need dramatic national legal reform, potentially most effective if it includes ecological integrity as an underpinning theme for every part of the legal system that may affect environmental outcomes.  We need laws to make ecological integrity the first priority in action and decision making under laws that affect property relationships and the environment, for example, with a binding obligation that ‘The maintenance of ecological integrity shall be the first priority when considering action or making decisions under this Act’.

*Ecosystem: A dynamic, open system of plants, animals and other organisms, together with the non-living components of the environment.This definition recognises the overlap of nature and human values and allows for continuing evolution. It accommodates the need to recognise that changes over time may not be predictable and so a precautionary approach is desirable.  Ecological integrity can be incorporated in laws so that they are not simply seen as reactive or likely to become unworkable as new knowledge and situations arise.  This change alone would overcome the perceived static nature of much environmental law.

Nelson Quinn is an Adjunct Fellow, Law Futures Centre, Griffith University. He is former senior executive in the Australian public service involved in major environmental issues in Australia and overseas, eg, global changes, forestry, World Heritage, biodiversity, maritime; Special Adviser to the Asia-Pacific Network for Global Change Research; member of the IPCC; involvement in research, strategy and program development with international organisations, eg, UNEP and IMO.