Graham, Nicole --- "Dephysicalisation and entitlement: legal and cultural discourses of place as property" [2012] UTSLRS 9; Environmental Discourses in Public and International Law (Cambridge University Press, 2012) Ch 4

Last Updated: 8 March 2017

Dephysicalisation and Entitlement: legal and cultural discourses of place as property

NICOLE GRAHAM

1. Introduction

The relationship between environmental degradation and the discourse of property is profound, yet little understood and seldom questioned. Indeed, private property in land and natural resources is sufficiently fundamental to modern society that market-based approaches to environmental regulation are regarded as orthodox components of contemporary environmental law.^[1] But there is abundant scope for reform. Property is neither a universal nor static concept. Successful human societies have been those able to adapt their property system to changing environmental contexts. The Anglo-American concept of private property is historically, culturally and geographically specific^[2] and has been less than successful at being adaptable to different and changing geographical and climatic contexts. The question of this chapter is not whether the basic legal category of property should or could change to better “address some of the incentive systems that generate our environmental degradation.”^[3] The question is how to do so?
The two constitutive features of the Anglo-American concept of property are precisely what render it unsuitable as a land use and ownership system: dephysicalisation and entitlement. The concept of property works by excluding or abstracting from the property equation the physical specificity of what is owned (dephysicalisation). Consequently, land and natural resources are regarded as no more than the ‘thing’ of the property relation. Abstraction thus makes possible entitlement to property that, untied from its physicality and the sustainability of its uses over time, furnish the basis of its ongoing alienability, and the exclusion of all others to its benefits or profits. The conversion, in property law, of particular, unique and non-replaceable ‘things’ such as land, water and natural resources into abstract rights over non-specific, fungible and replaceable commodities is the intellectual and legal foundation of unsustainable forms of land use. It is the dephysicalisation of and entitlement to “almost anything”^[4] in the world that the legal and cultural discourses of property make possible. Further, “the rewards” that property “promotes and encourages”^[5] present insurmountable obstacles to the objectives of environmental law.
Current developments in international and public environmental and climate law endeavour to protect both human and non-human biota from a range of tragedies and catastrophes caused by unsustainable levels of natural resource use and consumption. Yet the discourse of property, which facilitates such use and consumption, remains unchallenged. The dephysicalisation of, and entitlement to, the land and natural resources is antithetical and dangerously obstructive to the objectives of environmental law. The extension of the discourse of property into environmental regulation via environmental markets appears perversely inappropriate. Environmental law cannot be effective until lawyers, policy-makers and scholars acknowledge the ubiquity and potency of property as a foundational and facilitative discourse of modern law and society. Property has played and continues to play a constitutive role in current environmental crises. To employ the discourse of property in attempting to solve the problems of its creation is neither rational nor viable.
It is necessary, therefore, to interrogate the concept of property and its associated vocabulary of dephysicalisation and entitlement. Such an inquiry will make possible the introduction or return of the concepts of locally and physically relevant land laws within a discursive structure of responsibilities and place-based knowledge. Property regimes, or land laws, can only be viable, authoritative and enduring where sufficient knowledge and responsiveness to the capacities and limits of the specific places of jurisdiction are developed and exercised. Moreover, it is difficult to imagine how a better relationship between humans and non-human biota is achievable without interrogating the very institution that facilitates the primary dysfunction of that relationship – the person-thing model of property law that separates people and place.^[6] According to Sax “it is those foundational laws that essentially drive behaviour by creating a deep structure of incentives, and that fundamentally describe the directions the society is going.”^[7]
Part I of this chapter presents the discourse of property in legal terms as a discourse of dephysicalisation and in cultural terms as a discourse of entitlement. Part II of the chapter argues that the use of the same discourse of property that has contributed to current environmental crises is inappropriate to address those crises. In its place, the chapter suggests that property, as an idea and as a discourse must reflect what it is in reality: the regulation of physical relations between human communities and particular places in a finite biosphere.

I Dephysicalisation and Entitlement

‘Dephysicalisation’ describes the gradual socio-legal process whereby the environment, or more accurately the abstract ‘thing’ (such as land), became excluded from the conventional Anglo-American property relation, known in the literature as the ‘person-thing’ model.^[8] Once the ‘thing’ of property had become absent and irrelevant the ‘new’ or modern property relation was regarded as a relationship only between persons, rather than persons and things. Hence, the literature refers to this as the ‘person-person’ model.^[9] Owning property does not signify the ownership of something physical such as land and natural resources. Owning property signifies the possession of something abstract, a legal right as against the legal rights of others. The expression ‘dephysicalisation’ is most often used in relation to late 19^th and 20^th century property scholarship^[10] but its origins, which are often overlooked, can be traced back to the marriage of entitlement to property with the improvement of land in the writing of 17^th century English philosopher John Locke. What is often missed when focusing on the jurisprudence of the 19^th and 20^th centuries is that the concept of dephysicalised property emerged out of the desire to change land use and ownership in the 17^th and 18^th centuries for particular socio-economic reasons.^[11] Parliamentary enclosure and the exportation of dephysicalised property, as the dominant paradigm of land ownership and use across the world, were part of a pragmatic political and economic revolution as much as they were part of an intellectual one.^[12] The link between the geo-historical origins of dephysicalised property and its relevant practice, industrial-scale food and natural resource production, explains not simply a theory-practice nexus but more significantly, its enduring power in contemporary life. A discourse of property is fundamentally a rationale of a society’s land use and resource distribution. It is for this reason that it is important to understand environmental crises confronting public and international law-makers in terms of the discourse of property that describes and prescribes the relevant and dominant land use practices.
Environmental awareness and environmental education have increased during recent decades, yet the legal and cultural discourses of place as property have remained intact and are indeed the key mechanisms of environmental policy and regulation. Why? Because “the same engines are still generating the same developmental incentives that we had before the age of what is called modern environmental law.”^[13] The discourse of property as ‘rights’ or as a ‘bundle of sticks’ is taught and repeated in law schools and law courts throughout the Anglophone world including the UK,^[14] the US,^[15] Canada^[16] and Australia.^[17] Legal scholars have described and debated its historical development and significance for well over a century. The most common theme in the literature pertains to the hollowness of modern property law created by the concept of dephysicalised property. Because property is thought to be merely a series of competing and fragmented rights as between persons, scholars have observed that there is little to distinguish property law from contractual relations at law generally. In doctrinal terms, contemporary property is regarded as being “devoid of content.”^[18] It is neither surprising nor accidental that this is so. Jeremy Bentham insisted that it was only once property was dephysicalised, once the reference to the ‘object’ of the relation, particularly land, was removed, that society and law would progress. For Bentham and his contemporaries, dephysicalising property was desirable because it afforded the protection of property law to abstract objects and facilitated their marketability. Since Bentham’s time, the discourse and law of property has been almost entirely absorbed by the vocabulary and conceptual framework of the market.^[19]
As Shepheard and Martin observed in the previous chapter, one of the greatest challenges facing contemporary law and society is to somehow reconcile the increasing private ownership of dephysicalised rights to the environment with “increasing expectations of public good stewardship.”^[20] This is a difficult, if not impossible, challenge precisely because people are imagined to be somehow separate from the environment, rather than part of it. Whether people are regarded as caring for the land or exploiting it, the notion of their mutual separateness remains. The contemporary and dominant discourse of property has its origins in the conceptual separation of people from place. The intellectual and linguistic appellation of almost all non-human biota as the undifferentiated and collective entity ‘Nature’ or ‘the environment’ highlights this foundational separation. The separation of people and place is also apparent in modern human subjectivity, which defines itself not only by its separateness, even its ontological opposition to its physical ‘environment’, but also by its superiority to it, as the “masters and possessors of nature.”^[21] Regarding everything other than human as a ‘thing’, the language of real property law deprives ‘things’ of meanings and values beyond their utility to the human economy. Nature has become, as Heidegger once complained, “one vast gasoline station” for human exploitation.^[22]
Although anthropocentrism can certainly be said to be a characteristic of the discourse of property, the idea of ‘things’, such as land and natural resources, being available to human enjoyment does not itself constitute a culture of entitlement. If the availability of those lands, waters and resources were contingent on adaptive and sustainable management, and if ownership were fundamentally connected to those management practices then entitlement could not be said to characterise that property regime. However, as explained above, the contemporary discourse of property at the basis of contemporary and dominant land use practice is not contingent on a relationship, sustainable or otherwise, to the limits and capacities of the physical world. And because the discourse of property excludes the physical realm the fact of human agency in the landscape through land use practices is erased. ‘Nature’ is simply regarded as a resource, and property relations, so far as they have anything to do with ‘things’, consist only in the entitlement to those things.
The ideas of ‘nature’ and ‘the environment’ as being separate and subordinate to human subjectivity are made real by cultural and economic practices including especially land use and natural resource management. The discourse of property as rights and the theory of dephysicalisation are nowhere more apparent than in the landscape itself. The irrelevance of place, its lack of uniqueness, distinctiveness and particularity to human society is tangibly evident on industrial farms and pastures and in the degradation of the atmosphere and hydrosphere. Precisely because the discourse of property is a discourse of abstract rights as between persons, the limits and capacities of the physical world are irrelevant to, and excluded from, the concept of ownership. Ownership is not about responsibilities to and management of place. Ownership is about entitlement to ‘things’ and ‘resources’.^[23]
Landholders or proprietors of large tracts of land including farmers, pastoralists and irrigators sometimes identify themselves as ‘battlers’ or ‘pioneers’ and often describe their relationship to land as one of immense hardship and enduring courage.^[24] The land is ‘battled’ to release its marketable goods. Their ownership of land and water depends on their ability to subdue and appropriate the physical world for its value as a commodity. Perhaps it is in part due to the difficulties experienced by human societies endeavouring to impose foreign and often maladapted land use practices in ‘new’ lands and on ‘frontiers’ that when the land does ‘yield’ its produce those societies perceive the produce as ‘things’ to which they are entitled. The historical development of property law in former British colonies encouraged and facilitated those land use practices through initiatives such as pastoral leases.^[25] As Sax argued: “the existing property system incentivises the manipulation of land and water to produce those things that promote the displacement of natural services in favour of various kinds of manufactured services.”^[26]
Entitlement to ‘nature’ and ‘the environment’ is also evident in disputes over land and natural resources that the law categorises and treats as disputes over rights between persons or legal entities. The resolution of the dispute is reached not by assessing and evaluating competing forms of more or less appropriate land use practices but by comparing legal rights that exist independently of those practices. The culture of entitlement is evident especially in compulsory acquisition and ‘takings’ case law. In such a setting “[t]here is almost no notion of use entitlements that are withheld because of some interest of the public; nor is there any affirmative obligation to use one’s property in a way that is beneficial to the public.”^[27] The notion of compensation is therefore central to the idea that persons or entities are entitled by virtue of their property right to a monetary substitute for land, waters and natural resources. In the Australian case of Newcrest^[28] for example, the argument that the property rights of a mining corporation would be sterilised not by the compulsory acquisition of its property but by legislation relating to the recovery of minerals indicated that the concept of property was utterly dephysicalised. In that case, the Crown granted mining leases over certain land in the Northern Territory of Australia which subsequently became the Kakadu National Park. The National Parks and Wildlife Act 1975 (Cth) prohibited mining. The lessees argued that the Government had, if not legally, then effectively acquired the leases, and that accordingly compensation was payable under provisions in the Australian Constitution. Their claim was that although the leasehold property rights remained, the purpose of those rights was defeated and thus ‘sterilised’. The idea of sterilising property in this case related not to the physical sterilisation of the land by mining the land but to the abstract sterilisation or destruction of the monetary value of the property right as a commodity. The case demonstrates the prevalence of an understanding of ‘nature’ as something inherently fungible and therefore capable of monetary substitution rather than as something inherently irreplaceable and unique. The mining corporation was successful in claiming entitlement to compensation because what was lost, whilst not the property right itself, was its value as a commodity.
Another way in which the culture of entitlement to ‘nature’ is evident is in the language used when human society encounters events and problems such as atmospheric pollution, drought, floods, salination, soil erosion and loss of biodiversity. These are commonly understood and referred to as ‘disasters’, ‘externalities’ and ‘environmental issues’, an understanding which positions those situations outside both the human economy and human subjectivity. The idea of an ‘externality’ in economic terms pretends that there is a disconnection between production, consumption and waste which disavows the human agency in the creation of that ‘externality’. Malloy asks: “[w]hy are these effects framed as external or foreign to the activity of the factory? Why aren’t the third-party consequences of a manufacturing process considered to be internal effects of the profit-seeking venture within the factory? How might this framing change our thinking?”^[29] The language used to describe people-place relations when ‘nature’ produces benefits to human society is that of ownership. By contrast, the language used to describe people-place relations when ‘nature’ is damaged or depleted is that of victimhood. This dualism reflects a culture of entitlement in which benefits are regarded as anthropogenic but damages are not. Accordingly, ownership attaches only to benefits. State compensation and support programs for land owners encountering ‘environmental problems,’ for example, intellectually and politically separate the fact of land ownership from the condition of the land itself.^[30] These programs indicate that, in addition to the entitlement to certain land use practices and to the profits of those practices, land owners are entitled also to the profits of practices that were not physically possible. In other words, entitlement to ‘nature’ exceeds the real limits of ‘nature’ or its anthropogenically altered condition.
Environmental regulations that temper property rights are swiftly regarded as ‘interference’ with necessary structures and institutions of political order and economic prosperity including civil liberties and human rights. The defence of property rights is strongest in the US^[31] but powerful lobby groups in the UK^[32], Canada and Australia^[33] deploy the same perspectives and strategies to maintain the priority and primacy of the discourse and culture of entitlement. The Policy of the National Farmers Union (US) stated in March 2009 that the Union is opposed to the “acquisition of productive farmland through use of the eminent domain process to extend wildlife habitat.”^[34] Any public interest or private obligation to environmentally beneficial land use and ownership is simply antithetical to its purpose. The defence of property rights is powerful and often successful because the defenders tap into existing mainstream understandings and values of people-place relations. In Canada, although there are attempts to introduce new meanings relating to community and environment, property rights remain territorial and individual: “property ownership and rights are part of a person’s framework for comprehending their world.”^[35] The discourse of property establishes rules and regulates behaviours that operate at an almost subconscious level of awareness and participation. The default assumption about the ownership of lands and waters is that they are privately owned. As Canadian property scholar David Lametti has observed: “[it] is because private property is so pervasive an institution, especially with respect to traditional, tangible objects of wealth such as land and houses, that X respects the duty not to trespass regardless of who owns the house.”^[36] In the UK the discourse of property is equally ubiquitous:

Such is the extent to which rights-talk is embedded in our legal, moral and political culture, it is tempting to assume that the concept of property depends for its existence on that of right. Yet the form of modern property, both legally and in our moral life, is neither historically nor conceptually inevitable.^[37]
Environmental law is widely and not incorrectly regarded as a body of public law that has developed in order to restrain and regulate the excesses of private property law.^[38] The instrumentalism of property law has been long understood to be at odds with environmental protection. Both English and American scholars observe the tension between the ideals of people-place relations that form the bases of environmental discourse and property discourse. Coyle and Morrow, for instance, note:

Leopold’s observation in his seminal text on conservation, A Sand County Almanac, though made in relation to the United States in the mid-twentieth century, is just as apposite in a United Kingdom context: ‘Conservation,’ he said, ‘is getting nowhere because it is incompatible with our Abrahamic concept of land. We abuse land because we regard it as a commodity belonging to us.’^[39]
The extent to which environmental law succeeds in delivering effective regulatory solutions is thus the extent to which it is capable of challenging and replacing this ‘Abrahamic concept’ of the environment at the basis of the discourse of property. Until it succeeds in reshaping property, international and domestic environmental law cannot but “float at the surface of our legal system” rendering the legal system itself “handicapped in doing the job it needs to do.”^[40]

II Against Dephysicalisation – the Need for Place

Sustainability and Environmental Markets

The discourse of sustainability operates as a corrective to the discourse of property to some extent in that it identifies the need for land and natural resource use to be modified by a longer-term view of providing the benefits of lands and natural resources to human society. The Brundtland Commission’s Report, Our Common Future,^[41] endeavoured to reconcile the twin desires for further economic development and environmental protection. It suggested that both may be possible simultaneously. However, apart from the long-term framework, the instrumentalist view of an undifferentiated ‘nature’ and ‘environment’ of the discourse of sustainability is the same as that of the discourse of property. Although there are multiple definitions of sustainability and sustainable development,^[42] each of which being “necessarily contest and contestable”^[43], there remains a recurrent theme across the literature notwithstanding the “weak” and “strong” emphases.^[44] Sustainability is most often defined and debated in terms of time. However, it fails to consider the role of property, in particular the impact of dephysicalisation, on the environment. The concept of property is questioned only to the extent that the benefits of property in land and natural resources are considered too short-term and exclude the interests of future generations.^[45] It has been argued that a “sustainable system is one which survives or persists. Biologically, this means avoiding extinction, and living to survive and reproduce.”^[46] In more formal terms, sustainable development is defined as “development that meets the needs of present generations while not compromising the ability of future generations to also meet their needs.”^[47] Similarly, Sagoff argues that contemporary environmental discourse must eschew the ideal of conservation and pragmatically embrace the discourse of sustainability. He argues that “the appropriate principle is no longer reverence but sustainability – the maximisation of human welfare over the very long run.”^[48]
The discourse of sustainability is limited, however, in its capacity to address the consequences of the discourse of property and its culture of entitlement because it does not question them. The promise of the discourse of sustainability evident internationally and domestically is that it advocates the need to be mindful of the material limits and capacities of the lands and waters in land use policy.^[49] There is also promise in the discourse of sustainability in that it re-introduces the idea of responsibilities^[50] in direct contrast to that of rights which has come to dominate our understanding of ownership. Furthermore, sustainability raises the possibility of collective, rather than individual, interest in land and resource ownership and use^[51] which is an important step in challenging the individualism that supports the discourse of property. However, as promising as these aspects of the discourse of sustainability seem, it is not a counter-discourse to that of property. Indeed, increasingly environmental policies of sustainable development include markets for ‘eco-services’ that are premised on a vocabulary and conceptual framework that underpin the discourse of dephysicalised and rights-based property. According to Adams and Jeanrenaud:

Mainstream sustainable development is built on the idea of market-driven approaches and strategies based on technology and intense regulation (termed ecological modernisation). It promises to steer the world towards sustainability in ways that do not demand too many dramatic changes, and that do not upset the comfortable, the rich or the powerful.^[52]
The deployment of market instruments in environmental law and policy maintains an out-dated and not entirely persuasive critique^[53] of direct government regulation of environmental and land use problems whereby regulators are regarded as “having failed the citizens and squandered common resources.”^[54] The market however is a creature of the legal and cultural discourses of property in which land and natural resources are dephysicalised and where information about the resource itself is secondary to information about its value to the marketplace. The extent to which environmental markets can deliver the objectives of a suite of environmental laws and policies is prevented by the fact of its preservation and augmentation of the logic of property: the dephysicalisation of, and entitlement to, yet more ‘things’.
Unlike the concept of direct environmental regulation, “the implementation of this broad policy of marketisation has been strong, vigourous, pervasive and has enjoyed bipartisan mainstream political support.”^[55] Given the ideological commitment to, and economic dependence on, economic development shared by many contemporary Anglo-American governments,^[56] it is unsurprising that market mechanisms are preferred to policies that would ‘interfere’ with property rights. The use of environmental markets demonstrates the enduring attractiveness, power and ubiquity of the discourse of property. As observed by Shepheard and Martin in the previous chapter, the discourse of sustainability and the frequency with which it accompanies the deployment of environmental markets is arguably political compromise more than legal and economic reform. The marriage of the discourse of sustainability and the mechanism of markets allows the public demand for increased environmental conservation to co-exist with the private owners’ demand for a continued “freedom to exploit.” Shepheard and Martin argue “both local and international politics of the environment are now characterised by simultaneous calls for amoral market efficiency alongside calls for caring management. The strangeness of this pairing is largely un-noted in policy debate.”^[57] The use of markets to address environmental problems also indicates the saturation of legal discourse with law-and-economics scholarship and its vocabulary: “transaction costs, externalities, efficiency, wealth-maximisation, preference shaping, reasonable investment-backed expectations, and cost-benefit analysis.”^[58]
The products and services in environmental markets are both ‘things’ and processes that human societies use or rely on as resources for life and lifestyle. The possibility of commodifying these things and processes depends on being able to assess their cost or value in precise terms of a monetary equivalence. The use of market-based instruments to solve environmental problems also depends on being able to confidently state or predict the viable levels of their use, consumption or absorptive capacity.^[59] Taken to their logical limits, environmental markets would theoretically be able to price and trade “the composition of the atmosphere; amelioration of climate, flood controls and drinking water supply; waste assimilation; recycling of nutrients’ generation of soils; pollination of crops; provision of food; maintenance of species and a vast genetic library.”^[60]
The attractiveness of environmental markets to governments and policy-makers is political and economic rather than scientific. First, environmental markets outsource the task and the cost of restricting the use of and/or reliance on natural resources by individuals and corporations to those individuals and corporations. Second, by creating and regulating these markets, the government simultaneously controls and eschews the responsibility for the restriction of prior (often unarticulated) interests in these products and services. It is thought that “[r]egulatory markets may reduce opposition to regulatory initiatives both by reducing the economic cost of regulation and by reducing tension between interest groups fighting over who will bear the regulatory cost.”^[61] The resistance of resource users to the restriction of their use would be otherwise viewed as an interference with their property rights and business interests whereas the use of environmental markets encourages the users to perceive and experience the restriction as a matter of choice. Fundamentally, this approach to environmental regulation disavows that it is regulation. These “Regulatory markets represent command-and-control regulation made more consumer-friendly.”^[62]
Advocates for environmental markets argue that “[s]ecure property rights provide both powerful incentives for the preservation of natural resources and effective tools to resolve differences over resource use.”^[63] In other words, the idea is that people would relate better to place if “we attached market prices to the products and services it provides.”^[64] The idea of the market here presumes “that there is a relative or close equivalence between the pursuit of self-interest and the promotion of public interest.”^[65] The theory of market behaviour is imported into the discourse of sustainability as manifest in environmental markets. Accordingly, “[p]roperty holders are understood to avoid bad management decisions because their wealth in the property will depend on it.”^[66] Theories of market behaviour conventionally suppose that markets are democratic and rational. Specifically, theories of market behaviour attribute to market players rationality that is objective; self-interested rather than in the community interest; grounded in relevant, current, accurate and high-level information; and, that market players enjoy equal purchasing opportunity shared with other market players.^[67] Significantly, market behaviour is related only arbitrarily to environmentally sustainable development – it has not been adopted as a policy mechanism on account of the intrinsically environmentally helpful behaviours of market players.
The valuation or pricing methodologies of environmental markets also operate on the basis of a series of assumptions about the possibilities of valuation itself. First, they assume that value can be attributed to anything including processes, such as complex natural water recycling and filtration in the hydrological cycle, and including intangible aspects of ‘nature’ and ‘the environment’, such as aesthetic and spiritual values. Contingent valuation methodology approaches environmental products and processes, not from their economic cost, but from their social attractiveness. Contingent valuation endeavours to price ‘nature’ based on what people would be willing to pay for its products or outcomes.^[68] Hedonic valuation methodology assesses the cost of replacing or fixing the loss of a particular product or service by atomising its integrity as a whole product or service into its ‘constituent parts’. But both “hedonic and contingent valuation methods raise normative questions with respect to the ability and desirability of quantifying certain values. They imply a desire to commodify everything when perhaps there are some resources or certain relationships that should not be commodified.”^[69]
The expansion of the discourse of property into the discourse of environmental regulation, through the institutionalisation of environmental markets is inappropriate to address ‘environmental problems’ for strategic, normative and intellectual reasons. In strategic terms there are substantial problems with market design and implementation such as pricing and predicting market behaviour. As Sanja Bogojevic argues in her chapter in this volume, despite the scant attention paid by legal scholars to the question of market design, design is not incidental to the effectiveness of a market but vital to it. Primary issues in design concern the lack of parity of environmental ‘products’ and ‘services’ and the absence of discreet geographies that correspond precisely to jurisdictional boundaries and market limits. In this sense:

It is fairly easy to assign property rights to some resources and ecosystems such as trees or a lake. However, it is much more difficult to assign property rights to resources such as migrating fish populations and in particular to many ecological services such as the role of biological diversity in running nutrient cycles and water cycles in a forest. The reason is that these resources and ecological services are connected to other ecosystems than the forest, and thereby transcend several property-rights regimes. There is a major challenge in designing institutions and property-rights regimes that are in tune with the functions of ecosystems and the goods and services that they generate.^[70]
Another problem with markets, regulated or otherwise, is that they do not account for the inadequate and imperfect knowledge and information, relevant to the product or service subject to trade, available to market players. Although we live in a time of sophisticated environmental science, the sufficiency of that knowledge is rarely suitable for decision-making in markets where risks are cumulative and permanent. The precautionary principle of environmental discourse is antithetical to theories of market behaviour because the former accepts the possibility of incomplete or imperfect information whereas the latter does not. A further strategic problem with environmental markets, regulated or otherwise, is that they are arguably too little, too late – the product or service has almost always already been produced or consumed for many years (for example, carbon) prior to the creation of the market, thus frustrating the market’s supposed function. Finally, the rationality of market players cannot be objectively determined against a universal standard. Rural communities, for example, whose use of water is central to their economies and cultural identities, do not behave rationally in the eyes of many outside those communities but their market behaviour may be nonetheless entirely rational and predictable viewed against internal community standards. Malloy notes that “[r]ationality is a behavioural and interpretive concept. As such, it may vary with cultural context.”^[71] Finally, the single largest obstacle to the success of environmental markets as a strategy or mechanism for addressing environmental problems is that their objective is to restrict economic choices that the majority of the developed world regard as rights to which they are entitled. For instance, “[m]any American consumers simply want to pay the lowest possible prices for the products and services that they demand... For the consumer it’s the best of both worlds, high levels of consumption without responsibility.”^[72]
In normative terms, the problem with environmental markets is that they extend rather than question and modify an already deeply anthropocentric view of people-place relations. “The development of specialised markets transforms the view of nature from a partner to a production input.”^[73] As Marx and Heidegger complained, the idea that place is separate to people establishes the possibility of perceiving ‘nature’ as a resource which is in itself a problem. In Sagoff’s view, in “[b]y ‘putting a price on it’ we regard nature as a resource to exploit rather than a heritage and endowment to maintain. This is the most self-defeating path environmentalists can take.”^[74]
The intellectual problem with the environmental market approach to environmental regulation is that its methodologies focus not on the limits and capacities of those ‘products and services’ but on the human need and desire for them. In doing so, the economic relationship between people and place is inverted such that the situation of people within place and their dependence on place is erased. For example, pollution markets are founded on the idea that the human need for the absorptive capacity of the atmosphere can and should prevail over (or be consistent with) the actual and finite absorptive capacity of the atmosphere. Differentials such as the particular place and particular time of polluting emissions are considered irrelevant or insignificant because “if location or timing were to matter, trading would have to be restricted; this would both complicate the system and may reduce the number of participants in any given trading market below the level required for a well-functioning market.”^[75] The setting of ‘caps’ on emissions is similarly not determined by the calculation of the actual limits of the atmosphere but by the willingness of human societies to incorporate those limits into their economies. Given that until recently pollution has been, economically speaking, “cost-free”, the debate about pollution markets has most often been concerned with the ‘new’ costs rather than on the accuracy and viability of the caps themselves.^[76]
Scholars and commentators argue that the restriction and regulation of people-place relations using market mechanisms is “fraught with corruption as each player has insisted on having a supersized initial endowment.”^[77] Mark Sagoff argues that the environmental product or service at the basis of the emissions market, the atmosphere itself, is too large to “divide in pieces or sell in units” so “we either protect (or “buy”) the whole system or forgo it; there is no way to trade in marginal amounts.”^[78] This argument challenges the very structure of dephysicalised property which organises property interests into fragmented rights rather than holistic ownership. Legal scholar Brad Sherman has observed a similar problem with dephysicalised property and fragmentation as it pertains to intellectual property in plants and botanical innovation. He argues that patent law ‘decontextualises’ a botanical innovation or ‘invention’ from its material conditions to facilitate the tradability and commercial benefit of that invention.^[79] The attendant difficulty with this separation of the property right in the invention from the physical thing is that it is not biologically accurate and possible. A more holistic approach is required, he argues, whereby ‘plant inventions’ are situated within their “informational and material environments.”^[80] The reason for this, he contends, is that “the environment is not something that is simply external to the object. Instead the environment enters the constitution of the entity: it is folded into and becomes part of the object in question.”^[81] The holistic nature of the world, the ‘environment’, becomes lost in its translation from things with intrinsic values situated in complex natural systems into the non-specific objects of property rights. Holistic ownership, by which I mean a system of ownership situated within the Earth’s physical systems of non-fragmented inter-relationships (atmospheric and biological, for example) places people not in the centre of a property relation, nor at an imagined periphery, but as one part of a larger economy/ecology.

Property-in-Place

Against the “intuitive appeal of making ‘things’ the mediator of the (property) relationship,”^[82] the contemporary and dominant discourse of property in both common law and civil law jurisdictions excludes from their scope the physical realm in which they operate. “In neither conceptualisation is there mention of the specific features of the resource.”^[83] Using a discourse of dephysicalisation to address, and even solve, a problem which has physical causes and physical consequences is neither rational nor viable. In place of a discourse of property characterised by dephysicalisation, entitlement and fragmentation, the law and public policy must develop and elaborate a discourse of property-in-place which is cognisant of and responsive to the real, physical and finite biosphere in which it operates and on which it depends. Afterall, “[s]ustainability requires that human social systems and property-rights regimes are adequately related to the larger ecosystems in which they are embedded.”^[84] If we accept this critical evaluation of the discourse of dephysicalised property then the question becomes how to develop a re-physicalised discourse or a discourse of property that is situated within place?
First, we must acknowledge the inadequacies of the current pre-occupation with the outdated and unhelpful private-public dualism^[85] and the associated hybrid of environmental markets. On the one hand, the track record of state intervention through public property or command-and-control approaches to environmental and natural resource ownership and regulation is critiqued for its various and enduring mistakes.^[86] Canadian lawyer, Elizabeth Brubaker, a staunch defender of private property rights for environmental protection argues that the public regulation, approach is inherently limited by its remoteness from local issues and circumstances as well as by politicisation:.

Governments of all political stripes have given us thousands of reasons not to trust them to protect the environment: they’ve licensed – and bankrolled – polluters, turned forests into wastelands, emptied oceans of fish, and dammed rivers that were once magnificent.^[87]
Counter-arguments contend that the private property approach (such as environmental markets) to environmental regulation is equally and inherently flawed because it is rights-based, individualistic rather than collective in scope, and ultimately self-interested.^[88] Almost without exception the scholarship of (or at the very least the argument of) Garrett Hardin’s Tragedy of the Commons arises in the debate between public (or common)^[89] property and private property. But this is ultimately unhelpful because in purely historical terms if nothing else, “there are a multitude of examples of robust systems and institutions where resources rights are held by a community” and “where those directly involved have successfully managed complex resource systems over long periods.”^[90] The key question is not which socio-political structure best supports a sustainable regime and discourse of property. Rather, the more important question is how any given human economy can adapt and thrive, within the limits of its local and physical conditions – the regime and discourse of property, if sustainable, would merely follow from that.
The second step for developing a re-physicalised discourse of property-in-place would be to acknowledge, draw from and build-on existing and often long-standing property systems that take knowledge of local systems as their foundation. By definition, property regimes that have existed for a long period of time are sustainable. The dephysicalised property regime is young as compared with a range of property regimes throughout human history. In fact, “[s]ome of the most sophisticated property rights institutions are found in areas in which these systems have developed over a long period of time, on the order of hundreds of years.”^[91] The reason for their sophistication is invariably the opportunity that time presents to develop increasingly in-depth and detailed knowledge of the limits and capacities of local environmental conditions. Furthermore, the observation of biophysical ‘things’, processes and patterns not only within a short timeframe of several years but over the long term of several generations builds into a property regime the necessary flexibility to adapt to those processes and patterns. “The accumulation and transfer of this knowledge between generations has made it possible to be alert to changes and continuously adapt them in an active way. It has been a means of survival.”^[92]
Central to these successful and well-established property regimes is their emphasis on the local conditions of particular places. This approach contrasts starkly to the universalising and universalised approach of dephysicalised property which by definition cannot be responsive to local variance and change in physical conditions. The scholarship of adaptive management is also based on this idea of building natural resource use and management systems on high-level knowledge of specific and changeable local conditions.^[93] Longer-established property regimes, like the philosophy of adaptive management, use the specificity of local environments themselves as models of sustainable systems.
Better understanding of ecological systems and how they function and maintain themselves can thus yield insights into designing and managing sustainable economic systems. For example, in mature ecosystems all waste and by-products are recycled and used somewhere in the system or are fully dissipated. This implies that a characteristic of sustainable economic systems should be a similar ‘closing the cycle’ by finding productive uses for and recycling of currently discarded energy and material, rather than simply storying it, diluting it or changing its state, and allowing it to disrupt other existing ecosystems and economic systems that cannot effectively use it.^[94] Locally-derived and longer-established property regimes succeed because the people-place relations are fully integrated into cultural institutions including semiotic processes so that a society or community as a whole is cognisant of that relation rather than it being the province of specialists or experts.^[95] David Lametti argues that the contemporary discourse of dephysicalised property is not only unsuccessful but unconvincing because modern property law scholarship “appear(s) to lack what most people feel intuitively: that property is about things.”^[96] To situate people within place and to return place to the legal property relation seems not only intuitive but also necessary for survival. ^[97]
One of the key critiques of the discourse of dephysicalised property is that it separates rights from responsibilities, building a culture of entitlement. The alignment of property rights with environmental responsibilities into a single, integrated system of property or people-place relations would form a key step in re-physicalising the discourse of property. The notion of the guardian or steward is often discussed in critiques of private property.^[98] Importantly, guardianship or stewardship is formulated in the literature not as a rejection of the notion of right or entitlement but as something attached to the notion of responsibility. Hence:

The steward is, in essence, a duty-bearer, rather than a right-holder, but this should not be taken to suggest that the steward has no rights. An analogous concept that captures the relationship between duties and rights in something like that of the trust.... In a similar way, an abstract account of stewardship maintains that the holder, or steward, has some control and rights over the resource, but that control must in the main be exercised for the benefit of specific others.^[99]
Stewardship, or this vaguely defined duty of care, is regarded as both an ethic and a logic, capable of correcting existing intellectual, normative and strategic problems with the current discourse of property.^[100] “Stewardship provides a conception of prudent or right behaviour with respect to environmental harm.”^[101] But as David Lametti points out, stewardship cannot function without first re-placing the ‘thing’ of property into the discourse. Including the physical realm in the model of people-place relations “allows us to understand a dimension of private property practice not accounted for in theory: obligations and duties that may attach to a specific resource. These might include an obligation to preserve a valuable resource such as land as a steward, and even to take active steps to conserve it.”^[102] Jessica Clogg takes this a step further to argue that stewardship can be adapted for both individualistic and communitarian models of property relations because it includes both place and people in the model. In other words, the responsibilities extend both to people and to place notwithstanding political structures.^[103] Shepheard and Martin argue however, that while the political breadth of the concept of stewardship provides greater utility at a discursive level, at the level of practice those political structures and the tensions between them persist.^[104]
Finally, the reformulation of the discourse of dephysicalised property into a discourse capable of describing and prescribing sustainable people-place relations can reconnect the cultural attachment to place that was suppressed by, even lost, to a resource-based view of ‘nature’. Economist-sociologist pair Susan Hanna and sociologist Svein Jentoft suggest that the inclusion of “respect” into a discourse of property is important. The basis of respect for ‘the environment’, they argue, is not a lofty sentiment so much as a rational acknowledgement of the dependence of human society on the ‘things’ of its economy. They say:

In harsh climates, where a respectful relationship between people and their environment is essential for survival, the oneness between nature and humans is emphasised. This oneness reflects a bond with the environment that is based on dependence. The dependence is illustrated by the detailed knowledge of plants and animals held by the Inuit and other northern peoples, as well as by the ritual acts used to kill animals by the Bushmen of Australia.^[105]
Environmental philosopher Mark Sagoff similarly attributes successful property regimes to a human attachment to their physical environment, not in economic terms, but in terms of “affection.” In his view:

If you want to understand what makes the economic use of environmental resources sustainable – if you want to know how places survive the vagaries of the global market – then look to the relationships, cultural and political, of the people in them. Look for affection not for efficiency as the trait with which people treat their surroundings.^[106]
Sagoff issues an interesting caution to the use of the discourse of property and its situation of ‘the environment’ as external to human subjectivity and economy. He says that scientific discourse, whilst important, feeds into and from the discourse of property so that when we speak of the absorptive capacity of the atmosphere and other planetary ‘support’ systems we view the environment “not as a place or even a collection of places; but rather ... as a sort of global infrastructure.”^[107] The knowledge of ‘nature’ and ‘the environment’ is very different to a knowledge of place situated within that specific place. The difference is of course that one is fundamentally detached from place whereas the latter is attached to and founded on place. Such attachment seems at odds with the alienability of property and its centrality to the attractiveness of dephysicalised property as a legal and cultural paradigm. American property scholar Lee Fennell contended that restrictions or adjustments to the alienability of property “can reduce pressure on common pool resources.”^[108] Further, such restrictions can “complement” and “substitute” for other, more interventionist measures. The questions raised about the extent to which “attachment” to and “affection” for place translate into its inalienability are more numerous than can be considered adequately here. However, it is clear that the alienability and excludability of property at the heart of the Anglo-American discourse of property are fundamental to unsustainable people-place relations. The development of place-specific knowledge, “respect”, “attachment” and “affection” for place has long been and remains, for many cultures across the world, the rationale for the inalienability of place that characterises land laws and land use practices that have largely proven , largely, more sustainable over time.

Conclusion

Regardless of whether we call the legal framework and discourse that regulates sustainable land use and ownership ‘property law’ or ‘environmental law’ or ‘climate law’, the fact remains that viable and sustainable (land) laws exist only when and because they adequately describe and prescribe land use practices that are specific to the capacities and limits of particular lands and waters. The reliance of contemporary international and public environmental law on the outdated and maladapted discourse of dephysicalised property and its culture of entitlement is strategically, intellectually and normatively at odds with the imperative of enduring socio-economic viability. To retain and promote the discourse of dephysicalised property risks the obsolescence not only of that particular paradigm of people-place relations but of the law itself. Law that cannot adequately describe and prescribe viable people-place relations can only ever regulate an imaginary jurisdiction that is not of the earth and its finite systems. The use of the discourse of property in environmental public and international law can change because fundamentally “change in human societies occurs within, is carried through, and affects institutions.”^[109] The discourse of dephysicalised property facilitates and protects institutions and practices that are dangerously detached from the physical conditions of their possibility. The augmentation of dephysicalised legal institutions and land use practices invites their collapse and their continued use is fundamentally unsuited to form the basis of a remedy to the problems of their own creation.

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^[1] Jody Freeman and Charles Kolstad (eds), Moving to Markets in Environmental Regulation (2007) 3, 4.

^[2] Nicole Graham, Lawscape: Property, Environment, Law (Routledge, Abingdon, 2011).

^[3] Joseph Sax, ‘Environmental Law Forty Years Later: Looking Back and Looking Ahead’ in Michael Jeffrey, Jeremy Firestone, Karen Bubna-Litic (eds), Biodiversity Conservation, Law and Livelihoods (Cambridge University Press, New York 2008) 9.

^[4] Ibid 12.

^[5] Ibid.

^[6] For an analysis of this model see: Graham, above n 2.

^[7] Sax, above n 3, 10–11.

^[8] See especially John Locke, Two Treatises on Government, (ed Peter Laslett), (Cambridge University Press, Cambridge, 1689); and William Blackstone The Commentaries on the Laws of England, Books 1 & 2, (Dawsons, London 1966) [1765-1766].

^[9] For an analysis of this model see: Graham, above n 2.

^[10] See especially Kenneth Vandervelde, ‘The New Property of the Nineteenth Century: the Development of the Modern Concept of Property’ (1980) 29 Buffalo Law Review 325.

^[11] See Marcel Mazoyer and Lawrence Roudart, A History of World Agriculture from the Neolithic Age to the Current Crisis (translated by James Membrez) (Earthscan, London, 2006) 333.

^[12] Graham, above n 2, Chapters 2 and 3.

^[13] Sax, above n 3, 11.

^[14] Sean Coyle and Karen Morrow, The Philosophical Foundations of Environmental Law: Property, Rights and Nature (Hart Publishing, Oxford, 2004) 59.

^[15] Jeanne Schroeder, ‘Chix nix Bundle-o-stix: A Feminist Critique of the Disaggregation of Property’ (1994) 93 Michigan Law Review 239.

^[16] Crawford Macpherson (ed), Property: Mainstream and Critical Positions (University of Toronto Press, Toronto, 1978); Jessica Clogg, ‘British Columbia at a Crossroads: A Path to Sustainability or the Enclosure of the Commons?’ (2004) 14 Journal of Environmental Law and Practice 189, 192.

^[17] Samantha Hepburn, Australian Property Law: Cases, Materials and Analysis (2008).

^[18] David Lametti, ‘The Concept of Property: Relations through Objects of Social Wealth’ (2003) 53 University of Toronto Law Journal 325, 339.

^[19] Robin Paul Malloy, Law in a Market Context (Cambridge University Press, New York, 2004) 3.

^[20] INSERT page reference to Shepheard and Martin here.

^[21] Rene Descartes, Discourse on Method and the Meditations (Penguin, Harmondsworth, 1978).

^[22] Heidegger, cited in David Harvey Justice, Nature & the Geography of Difference (Wiley-Blackwell, San Francisco, 2000) 134.

^[23] For a critique of this discourse in practice, see, eg, Paul Lachapelle and Stephen McCool, ‘Exploring the Concept of “Ownership” in Natural Resource Planning’ (2005) 18 Society and Natural Resources 279.

^[24] See, eg, Rob Linn, Battling the Land: 200 Years of Rural Australia (Allen & Unwin, St Leonards, 1999).

^[25] For an analysis of this history see: Graham, above n 2.

^[26] Sax, above n 3, 12.

^[27] Ibid.

^[28] Newcrest Mining (WA) Limited v Commonwealth [1997] HCA 38; (1997) 190 CLR 513.

^[29] Malloy, above n 19, 183.

^[30] See Linda Courtenay Botterill and Melanie Fisher (eds), Beyond Drought: People, Policy and Perspectives (CSIRO Publishing, Collingwood, 2003).

^[31] See, eg, Alfred Olivetti Jr and Jeff Worsham, This Land is Your Land, This Land is My Land: The Property Rights Movement and Regulatory Takings (LFB Scholarly Publishing LLC, New York, 2003).

^[32] Coyle and Morrow, above n 14, 10.

^[33] See Andrew Macintosh and Richard Denniss, Property Rights and the Environment: Should Farmers have a Right to Compensation? (2004) The Australia Institute: Discussion Paper No.74.

^[34] Policy of the National Farmers Union (2009) Article VI (P) ‘Eminent Domain’, Section 10.

^[35] Richard Brisbin and Susan Hunter, ‘The Transformation of Canadian Property Rights?’ (2006) 21(1) Canadian Journal of Law and Society 135, 158.

^[36] Lametti, above n 18, 345.

^[37] Coyle and Morrow, above n 14, 10.

^[38] Ibid 4.

^[39] Ibid 149.

^[40] Sax, above n 3, 10.

^[41] World Commission on Environment and Development, Our Common Future (Oxford University Press, Oxford, 1987).

^[42] Andrew Dobson, ‘Environmental Sustainabilities: An Analysis and a Typology’ (1996) 5(3) Environmental Politics, 401–428, 422–3.

^[43] Ibid 402.

^[44] For a critical analysis of “weak” and “strong” discourses of sustainability see Dobson, above n 42, 409–411.

^[45] See the chapter by Peter Lawrence in this volume, especially on intergenerational equity.

^[46] Robert Costanza and Carl Folke, ‘The structure and function of ecological systems in relation to property-rights regimes’ in Susan Hanna, Carl Folke and Karl-Goran Maler (eds), Rights to Nature: Ecological, Economic, Cultural, and Political Principles of Institutions for the Environment (Island Press, Washington, 1996) 19.

^[47] Gerry Bates, Environmental Law in Australia (Lexis Nexis Butterworths, Sydney, 5^th ed, 2002) 120.

^[48] Mark Sagoff, The Economy of the Earth: Philosophy, Law and the Environment (Cambridge University Press, Cambridge, 2^nd ed, 2008) 159.

^[49] See, eg, The Club of Rome, Limits to Growth (Universe Books, New York, 1972).

^[50] Coyle and Morrow, above n 14, 162.

^[51] Ibid 206.

^[52] Bill Adams and Sally Jeanrenaud, Transition to Sustainability: Towards a Humane and Diverse World (IUCN, Gland, Switzerland, 2008) 12.

^[53] See the chapter by Lee Godden in this volume.

^[54] Sanja Bogojevic, ‘Ending the Honeymoon: Deconstructing Emissions Trading Discourses’ (2009) 21(3) Environmental Law Journal 443, 459.

^[55] Stephen Dovers, ‘Institutions for Sustainability’ (2001) 7 Tela, 18.

^[56] See Samuel Alexander Kirk Property Beyond Growth Unpublished PhD Thesis, University of Melbourne, 2011.

^[57] INSERT page reference to Shepheard and Martin chapter here.

^[58] Malloy, above n 19, 3.

^[59] See, eg, John Sargent, ‘The Economics of Energy and the Environment: The Potential Role of Market-based Instruments’ (2002) 28 Canada-United States Law Journal 499, 502.

^[60] Costanza and Folke, above n 46, 17.

^[61] Barton Thompson Jr, ‘Markets for Nature’ (2001) William and Mary Environmental Law and Policy Review 261, 262.

^[62] Sagoff, above n 48, 90.

^[63] Elizabeth Brubaker, ‘Property Rights: The Key to Environmental Protection’ (2007) May Fraser Forum 19.

^[64] Sagoff, above n 48, 87.

^[65] Malloy, above n 19, 27.

^[66] Bogojevic, above n 54, 458.

^[67] Malloy, above n 19, 27.

^[68] Ibid 167.

^[69] Ibid.

^[70] Costanza and Folke, above n 46, 26.

^[71] Malloy, above n 19, 146.

^[72] Ibid 182.

^[73] Susan Hanna and Svein Jentoft in Susan Hanna, Carl Folke and Karl-Goran Maler (eds), Rights to Nature: Ecological, Economic, Cultural, and Political Principles of Institutions for the Environment (Island Press, Washington, 1996) 37.

^[74] Sagoff, above n 48, 89.

^[75] Sargent, above n 59, 504.

^[76] Ibid 505.

^[77] Sagoff, above n 48, 90.

^[78] Ibid 88.

^[79] Brad Sherman, ‘Taxonomic Property’ (2008) 67(3) Cambridge Law Journal 560, 565.

^[80] Ibid.

^[81] Ibid.

^[82] Lametti, above n 18, 354.

^[83] Ibid 337.

^[84] Costanza and Folke, above n 46, 30.

^[85] As discussed by Sanja Bogojevic in her chapters in this volume.

^[86] For an analysis of this critique see Bogojevic, above n 54.

^[87] Elizabeth Brubaker, Property Rights in the Defence of Nature (Earthscan, London, 1995) 19.

^[88] William Lucy and Catherine Mitchell, ‘Replacing Private Property: The Case for Stewardship’ (1996) 55(3) Cambridge Law Journal 566.

^[89] The two are often erroneously conflated.

^[90] Elinor Ostrom discussed in Clogg, above n 16, 191.

^[91] Costanza and Folke, above n 46, 27.

^[92] Ibid 28.

^[93] See, eg, Allan Savory with Judy Butterfield, Holistic Management: A New Framework for Decision Making (Island Press, Washington, 2^nd ed, 1999).

^[94] Costanza and Folke, above n 46, 21.

^[95] Ibid 27.

^[96] Lametti, above n 18, 378.

^[97] Costanza and Folke, above n 46, 21.

^[98] See, eg, the chapters of Peter Lawrence, and Mark Shepheard and Paul Martin in this volume.

^[99] Lucy and Mitchell, above n 88, 584.

^[100] See, eg, Peter Brown, ‘Toward an Economics of Stewardship: The Case of Climate’ (1998) 26 Ecological Economics 11.

^[101] Shepheard and Martin, above n 57.

^[102] Lametti, above n 18, 354.

^[103] Clogg, above n 16, 192.

^[104] Shepheard and Martin, above n 57.

^[105] Hanna and Jentoft, above n 73, 37.

^[106] Sagoff, above n 48, 165.

^[107] Ibid 163.

^[108] Lee Ann Fennell, ‘Adjusting Alienability’ [2009] HarvLawRw 53; (2009) 122 Harvard Law Review 1403, 1406–1407.

^[109] Dovers, above n 55, 3.