Placelessness in contemporary practices
Chapter 6
Placelessness in contemporary practices
Scientists have not generally needed or wanted to be philosophers. Indeed, normal science usually holds creative philosophy at arm’s length.
(Kuhn 1996: 88)
[S]cience students accept theories on the authority of teacher and text, not because of evidence. What alternatives have they, or what competence? The applications given in texts are not there as evidence but because learning them is part of learning the paradigm at the base of current practice.
(Kuhn 1996: 80)
6.1 Introduction
Dephysicalisation, the contemporary legal expression of the nature/culture paradigm, is not just a theory – it is a practice. The theory that property is an illusion is practised and materialised by the ownership, use and management of land. The theory, practice and pedagogy of property law, say that place is irrelevant. That irrelevance is tangibly evident. Land ownership is strongly related to land use. It is important therefore to consider the concept of dephysicalisation that defines modern property law in terms of both the ownership and the use of land. In the eighteenth to nineteenth centuries, as discussed earlier, to encourage industrial-scale agricultural and pastoral productivity, the British Crown used the mechanism of dephysicalised property to transfer land to private individuals and companies in her colonies through land grants, the facilitation of land markets and the encouragement or admission of landhunting/squatting. At the beginning of the twenty-first century, over 60% of the land in the United States is privately owned (Lubowski et al. 2006: 35) and over 63% of the land in Australia is privately leased or owned (Australian Bureau of Statistics 2000). The majority of privately owned land is used for agriculture and grazing. 60% of the Australian land mass is used for agriculture (Australian Bureau of Statistics 2000). Fifty-two percent of the US land mass is used for agriculture and 35% for grazing (Lubowski et al. 2006: 35). What this means is that well over half the land mass of these two nations is held or owned by farmers. How these landowners (or landholders)1 relate to their land is irrelevant to property law. Precisely because property law excludes the physical world and its systems from its discourse, another area of law has become increasingly and rapidly important in regulating land use and ownership – environmental law. Environmental law starts where property ends, not as a different set of values about place, not even as a law about place, but as a quarantined section of law that addresses problems and disputes concerning the physical aspects of land ownership that property law does not accommodate. Where property law determines who owns the land, environmental law determines the ways in which that ownership can and cannot be manifest. Dephysicalisation is not therefore simply a theorist’s concept, it is a paradigm of people–place relations that lawyers practice, pedagogues repeat and landowners make real. Theorists claim property is an illusion, but the land and its many systems, are real.
Lawyers and legal educators, like scientists, generally distance themselves from philosophy or, more specifically, from legal theory. Their principal concern is practice. The separation of theory from practice is dichotomous rather than differential and, like other dualisms, the terms are hierarchically related. Also like other dualisms, the distinction is blurred and transgressed. The claim that practitioners and pedagogues often make that theory can be set aside or that it does not inform the practice of law is as contentious as the claim that theory is law’s thinktank while practitioners are mere administrators. The various theories of property-as-thing, as-commodity, as-fetish and as-illusion presented in the previous chapter all point to the profoundly dephysicalised culture of contemporary real property law and the diminished value of place or nature. The relationship between theory and practice is not unilateral. Theory neither leads nor reflects the practice of law; they work together as legal discourse. Similarly, law neither leads nor reflects the socio-political practice of property ownership; they too work together as a cultural discourse. Cultural discourse prescribes, regulates and enables cultural practices, which, in relation to property law, transform land into landscape and ecologies into economies. This chapter explores how the theory of dephysicalisation, which underpins the paradigm of modern property law, is practised and taught.
Legal and cultural discourses both describe property as a relation between persons, or between the relative rights of persons. The second section in this chapter, ‘Legal practice’, explores two ways in which legal discourse protects
1 In Australia, the doctrines of tenure and estates mean that land is held of the Crown. Significant agricultural and pastoral land is leased from the Crown. The term landholder is, therefore, used to be more precise but the term landholder will be used predominantly in the chapter for the sake of convenience.
and perpetuates the notion of dephysicalised property in the practice and pedagogy of law. In legal practice, property is regarded in terms of ‘rights’ that are always exchangeable and alienable. The objective of courts is to measure competing rights against each other rather than to explore questions pertaining to the physical contexts of land use. The loss, taking or acquisition of property by governments is also debated not in terms of the loss, taking or acquisition of actual, physical property, but of the right to the commercial benefits of property. The underlying idea of property in these cases is property as a commodity, the loss of which is compensable because a commodity is fungible. The thing of the property relation in these cases, the land for example, has no intrinsic value. Anglophone courts pronounce the places over which disputes are fought to be irrelevant to their decisions. In cases such as Yanner,2 Newcrest3 and Lucas,4 courts swiftly transform disputes about physical land use practices into disputes over abstract property rights.
The section then briefly explores the way in which property is defined and taught in law schools. The dominant line of legal education is that, with the exception of the law of native title and Indigenous people’s property interests, place is largely irrelevant and absent from the paradigm of property law. Land is presented to law students principally as an object of property relations between persons. Indeed, it is only if and where the history of colonisation and dispossession of Indigenous people’s lands and property rights are taught that concepts of place emerge at all. However, these lessons can essentialise Indigenous people’s relations to place and cast people–place relationships in terms of the nature/culture paradigm, which denies the integrity and connectivity of Indigenous laws and relationships with ‘country’. Such a perspective on Indigenous property laws and relations prohibits (predominantly) non-Indigenous law students from understanding the dependence of ‘culture’ on ‘nature’ and thereby repeats and affirms the paradigm of placelessness in modern property law: ‘The frog’s illusion is in not seeing its own vulnerability, that it is the same as all the other animals, contained by laws of creation and affected in the same thirsty way when wells run dry’ (Watson 2002: 266).
The third section, ‘Cultural practice’, explores how some cultural discourses maintain and others challenge the concept of dephysicalised property law through the lived experience of proprietorship and custodianship of land. The section begins by exploring the way in which land ownership and land use practices are invariably expressed in terms of the strict vocabulary of people: the rights of proprietorship. Farmers’ associations and property
2 Yanner v Eaton (1999) 201 CLR 351.
3 Newcrest Mining (WA) Limited v Commonwealth (1997) 190 CLR 513.
4 Lucas v South Carolina Coastal Council 505 US 1003 (1992).
Against the dominant cultural discourse of ownership as proprietorship and entitlement to profit, dissident voices, Indigenous and non-Indigenous, describe ownership as a responsibility rather than a right. Importantly, their perspectives emphasise the role of knowledge in the law and ethics of ownership. For them, and in different ways, the notion of losing property means losing place, something that is incompensable because it is not an abstract right but a real and physical relationship within a network, or ecology, of life. Non-Indigenous landowner Bob Purvis offers a critique of the dominant discourse and practice of dephysicalised property in relation to the pastoral industry. In interviews with landscape scholar Jim Sinatra, Purvis refers to the maladaptation of Australian property law as being responsible for the ‘destruction of this country’ which he says affects him ‘deeply’ (Sinatra and Murphy 1999: 67). Non-Indigenous farmer Peter Andrews offers a critique of dephysicalised property in the context of land use also; in particular, he critiques farming practices that he regards as destructive: ‘Farmers go out, clear their land, plough it up and believe that’s the right way to farm, the right way to increase production. The reality is it’s the way to stop production’ (Andrews 2006: 7). For both Purvis and Andrews, ownership requires responsibility for using the land in a way that observes, understands and responds to the particularities of the land itself. Specifically, both farmers speak about the need to read the land in terms of its existence as a network of systems and relationships rather than as a blank slate.
Paddy Roe, Aboriginal Australian lawman and guardian of the Lurujarri Trail in Western Australia, provides an example of resistance to the dominant discourse of ownership and dephysicalised property. Roe describes ownership as being a part of the land. For Roe, the paradigm of modern property law is effectively ‘killing this country’ – which he says means also ‘killing the people. We all go down together’ (Sinatra and Murphy 1999: 11). The mutual relationship between people and place is also articulated by native title claimants. Significantly, the law abstracts this physical relationship into a matter of cultural identity. While the relationship between people and place is important to the cultural identity of Aboriginal communities, as the custodians express this relationship, it is also about the health of the land itself. One of the subversive questions posed by native title cases is whether property, or ownership, affects the land itself or whether it is only a contest of rights between people and cultures. Yorta Yorta woman Monica Morgan argues that the latter view misunderstands the importance of the relationship between property and place. She says that if the local Indigenous knowledge about place and ‘protecting country’ is not sought, understood and acted on then everyone, Indigenous and non-Indigenous, will ‘lose’ because no human community and law can live independently of place (Weir 2009: 148). Ownership for Morgan and Roe is articulated in terms of a mutual and reciprocal economy of responsibilities for ‘country’ rather than a unilateral economy of rights in land and its ‘resources’.
Together, legal and cultural discourses of property reproduce and put into practice the concept of dephysicalisation. The paradigm of nature/culture expressed by modern property law is not, however, universal in space and time. This chapter attempts to demonstrate its contingency on particular and contested practices. Specifically, the chapter focuses on the relationship between property and place in terms of entitlement, responsibility, knowledge and connectivity.
6.2 Legal practice
In the whole of Australia, for example, there are only one or two academic teachers of real value in real property, in contracts or in torts, yet there are about seventeen law schools. One finds a number of law schools without a single member of staff capable of teaching equity. There are, to be sure, multitudes of academic homunculi who scribble and prattle endlessly about such non-subjects as criminology, bail, poverty, consumerism, computers and racism. These may be dismissed from calculation: they possess neither practical skills nor legal learning. They are failed sociologists.
(Meagher, cited in Bates 1984: 181)
Teachers of ‘real value in real property’ according to Roderick Meagher, QC, are teachers who provide law students with sufficient knowledge of property to practise law. He juxtaposes and prioritises ‘practical skills (and) legal learning’ to a theoretical or ‘sociological’ skills base. In doing this, he draws on a familiar opposition between theory and practice, theory and reality. It is in the practical sphere or in reality, Meagher would argue, that one would expect to find definitive and current concepts of real property. The real business of law takes place in the courtroom and it is here that the values of real property are found and managed. Maureen Cain (1994) and David Sugarman (1994) take up this point, but from very different perspectives, in their work on lawyers, business and social order. Cain presents the power of legal practitioners to define law as a licence to create law’s truths rather than as a genius’s access to truth:
Lawyers are translators – that is their day-to-day chore. They are also creators of the language into which they translate … To think for the first time, a debenture share, say, is a creative act … It is in this sense that lawyers are conceptive ideologists.
(Cain, cited in Sugarman 1994: 119)
If we agree, in part, with Meagher, Cain and Sugarman that the practice of law is also the location of its realities and truths, then to better understand the ‘real value’ or ideology of place in real property law, we should look to the decisions of the courts and especially the highest courts. The contemporary definition of real property as ‘elusive’ and ‘meaningless’ must achieve its authority in the courtroom. How do the US Supreme Court and the Australian High Court define real property? What are the values of property articulated in their definitions? What relationships between people and place do they recognise and legitimate? The discourse of property as ‘rights’ that dominates contemporary jurisprudence is evident in the discussion of the following case law. The cases also demonstrate the struggle of the courts to connect property to the physical world.
6.2.1 Practice of law
Legal scholar Brad Sherman has argued that intellectual property in plants and botanical innovation highlights the dysfunction of the concept of dephysicalised property in contemporary legal practice. Modern patent law, he observes, removes or ‘decontextualises’ the invention from its material conditions to facilitate the tradability and commercial benefit of that invention (2008: 565). The problem with the separation of the invention from its material conditions, in the case of plants and botanical innovation, is that this is not, actually, possible. Sherman says that a more accurate and viable approach is one in which the ‘plant inventions’ are regarded in the context of the ‘informational and material environments in which they are generated’ (2008: 565). The reason for this, he says, is that:
[T]he 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.
(Sherman 2008: 565)
From a biological perspective, the obviousness of this point is clear, but the fact that it is made for lawyers and legal scholars, in one of the most eminent law journals in the Anglophone world, indicates the extent to which materiality is neither the source nor the condition of modern property law. The ubiquity and power of the paradigm of placelessness and the concept of dephysicalised property is sufficient for the scholar to explain to fellow scholars and practitioners precisely how and why patents in plants (as decontextualised objects) are problematic.
A case that well demonstrates the way in which the concept of dephysicalised property has become central to legal practice is the Australian High Court case of Yanner v Eaton.5 In 1994, the appellant, Murrandoo Yanner, a member of the Gunnamulla clan of the Gangalidda tribe, using a traditional harpoon, killed and took two juvenile estuarine crocodiles from Cliffdale Creek near the Gulf of Carpentaria, Australia. Yanner held neither a licence nor a permit under the Fauna Conservation Act 1974 (Qld) to do so. Consequently, he was charged with breaching s 54(1)(a) of the Act, which prohibited a person taking, keeping or attempting to take or keep prescribed species of protected fauna without a licence. Yanner argued that being a traditional owner of the land, he was entitled to exercise his native title right to hunt without a licence, on the basis of s 211 of the Native Title Act 1993 (Cth). Section 211 provided that the law did not prohibit native title holders from carrying on activities that were otherwise prohibited by state law where those activities were for non-commercial and communal needs and were an enjoyment of native title rights and interests. The respondent argued that Yanner’s native title right had been extinguished by s 7(1) of the Fauna Conservation Act, which states that ‘all fauna … is the property of the Crown’.
The question before the Australian High Court was whether the Fauna Conservation Act was subject to native title rights. In answering this question, the meaning of the word ‘property’ in the Fauna Conservation Act, which was not defined therein, became the subject of judicial analysis (at 365–368). The court decided by a majority of 5:2 that Yanner was entitled to exercise his native title right to hunt without licence otherwise required by state law. The decision was taken with direct reference to the question of the definition of ‘property’. Both the majority and the minority judgments deployed the theories of property discussed in the previous chapter.
Gleeson CJ, Gaudron, Kirby and Hayne JJ turned first to Bentham, stating that: ‘Property does not refer to a thing; it is a description of a legal relationship with a thing. It refers to a degree of power that is recognised in law as power permissibly exercised over the thing’ (at 365–366). Like Bentham and Hohfeld, their Honours note that ‘false thinking’ about property mistakenly takes property itself to be a ‘thing’. To emphasise the point they quote English legal scholar Kevin Gray (1991: 299) repeating the idea that property
Gummow J also recognised and quoted Hohfeld’s point that the word ‘property’ is ‘a striking example of the inherent ambiguity and looseness in legal terminology’ (at 388). Gummow J also argued that because the meaning of ‘property’ is unclear in the legislation, it ‘then becomes a question of statutory or constitutional interpretation’ (at 389). Gummow J ‘interprets’ the meaning of property with regard to Hohfeld’s definition that ‘property comprised legal relations not things, and those sets of legal relations need not be absolute or fixed’ (at 389). His interpretation of the term ‘property’ is consistent with the concept of dephysicalised property in which property is the ‘aggregate of legal relations’ (at 389).
On the basis that the meaning of ‘property’ is not fixed in law and that the legislation itself does not specify its meaning, the majority argued property is a right that can only be defined ‘without preconceptions about the intention with which certain words are used’ (Lane 2000: 17). The majority held that, while the crocodiles were the property of the Crown as set out by the Act, ‘property’ did not mean full beneficial ownership to the exclusion of all others. They thus rejected the contention by the respondent that the Fauna Conservation Act had extinguished the native title right to hunt exercised by Yanner.
The minority also reach their conclusion directly by reference to the definition of ‘property’. But McHugh and Callinan JJ, in separate judgments, explicitly rejected the analytical approach adopted by the majority in finding their definition of property. McHugh J says that property is neither elusive nor unfixed. Furthermore, he says, statute law is not open to interpretation: ‘Words in legislative instruments should not be read as if they were buildings on a movie set – structures with the appearance of reality but having no substance behind them’ (at 376).
Just when it seems the actual physical world of land or relationships to land will make an appearance in the High Court, it does not. The potential for a new view is undermined at the moment of its very opening. Property, McHugh J says, is power. Power to alienate a thing and exclude all others from it. In other words, as the respondents contended, property means full beneficial ownership: ‘Property … describes a relationship between owner and object by reference to the power of the owner to deal with the object to the exclusion of all others, except a joint owner’ (at 376).
Callinan J repeats the positivist approach of McHugh, but even less elaborately. For Callinan J, the meaning of property in the Act is ‘ordinary and natural’ (at 406). His bluntness is noteworthy: ‘The Act uses the word “property” without qualification. If something less than absolute ownership were intended then an appropriate qualification in that regard could be expected to have been expressed’ (at 404).
Absolute ownership is something English law never gave under the doctrines of tenure and estates and in the context of the overlapping rights of equitable interests. Callinan J disregards the long and complex history of property’s qualifications in English law in order to exclude yet more qualifications of ownership, in this case, native title interests. Callinan J defines property through reference to broader cultural discourses of individualism and freedom, but he conceals his cultural attachments beneath a veil of positivism. His recourse to techniques of statutory application seemingly alleviates the need to analyse the meaning of property. Callinan J echoes the concerns of Vandevelde, that the abstractness or looseness of the meaning of ‘property’ makes it a political choice and thus undermines the authority of the rule of law. Unlike Vandevelde, however, Callinan J does not seem to recognise that his own ‘choice’ of law is political because his positivism conceals a mythology of property unsupported in the historical development of law. While he may believe this saves law from politics and social relations, in fact, this approach avoids confronting the construction of property law as relative rights.
Australian barrister Patricia Lane argues that Yanner v Eaton is a radical development in property law: ‘The decision highlights the new analysis of rights and interests in land that is required as a result of recognising rights derived from traditional Indigenous connection’ (Lane 2000: 17). The novel aspect of the case is not, however, its definition of property. Property remains in this case what it has been since the time of Bentham – abstract rights. The ‘new analysis’ is perhaps an acknowledgement that property regulates and prescribes social order and that this order has been (slightly) modified. Whether the ‘new analysis’ of property rights draws the court into an inappropriate political process, as Vandevelde and Callinan J might have argued, the ‘new analysis’ does not engage the court in an evaluation of non-Indigenous values or relations to land. Rather, it translates real and in this case physical traditional Indigenous relations between people and place, into abstract legal rights.
Australian legal scholar Lisa Strelein notes that in this case ‘the High Court returned to the spiritual aspects of Indigenous people’s connection to the land’ (Strelein 2009: 47). She quotes Gummow J (at 382): ‘The conduct of the appellant is inadequately identified in terms of the statutory definition of “take” and its components such as “hunt”. What was involved was the manifestation by the appellants of the beliefs, customs and laws of his community.’
The oppositional logic of metaphysical/physical at work here separates, rather than integrates spiritual and economic practices. The totemic significance of the crocodile to Yanner exceeds the neat bifurcated categories of people–place relations as either economic or spiritual. His Honour regards the expression of Yanner’s actions as ‘taking’ and ‘hunting’ as inadequate perhaps because these are physical activities that often have only economic significance attached to them and perhaps because of a narrow interpretation of the significance of economic practices. To view Yanner’s actions as a manifestation of ‘beliefs, customs and laws’ elevates them to the metaphysical realm. Yanner v Eaton maintains the core anthropocentric value of property law – that property is not about things and the physical world – and if it is about the physical world then it is only for metaphysical reasons. Certainly the case does indicate the willingness of courts to ‘recognise’ ‘new’ forms of property and ‘other’ relationships of property, but it nonetheless converts these into its preexisting and Anglocentric discourse of abstract rights. The ‘real business’ of property law, as these cases demonstrate, is that property is a ‘loose’ matter of choosing between rights, not practices and relationships.
In Yanner, the court concealed questions of place and land use beneath the veil of statutory interpretation and a struggle to discover the technical meaning of property itself. Conveniently, questions of place and land use were easily elevated to questions of abstract rights in the realm of culture. But in other case law the task of absenting questions of place and land use can be more difficult because the dispute over the property right in question is not between different cultural values of property but between different ‘natural’ or environmental values of property. An increasingly large body of case law specifically debates questions of the ‘natural’ or environmental value of property. These are the cases that deal with claims to compensation for the acquisition or taking of property rights by rights holders where their right has not been acquired or taken in the legal terms of title, but in the economic terms of land use.
Across the English-speaking world, increasing environmental regulation of land use on privately held land is debated in terms of the economic and political value of property. The values of property as profit and as liberty dominate both scholarly and popular literature on ‘regulatory takings’. The public and private dualism is redrawn in these disputes, invariably framing the analysis in terms of cost allocation. The difficulty with the public/ private framing of such disputes is that it maintains the unilateral dynamic of people–place relations that is embedded within the idea of property as right. Because people–place relations in modern property law are regarded as one-way flows of profits from things to people, a ‘cost’ to the rights holder without ‘compensation’ contradicts that dynamic. Modern legal discourse does not countenance the possibility of reciprocity between people and place, much less obligation or responsibility of people to place. The public/private frame converts responsibility into a one-off cost, which is then allocated and paid, rather than learned and practised as part of an ongoing relationship with and in place.
Property law excludes place from its discourse because it claims to regulate the ownership of the right, not the use of the thing over which that right is exercised. Yet as Yanner showed, property law does regulate land use, even if it frames those questions in terms of ownership and translates people–place relations and land use practices into entitlement and rights. Environmental law, by contrast, defines itself as the regulation of land use (Farrier, Lyster and Pearson 1999: xii). Even so, it denies that it directly prescribes how to use the land; rather it resolves disputes by recourse to administrative law:
Environmental law sets up legal frameworks within which public officials decide between competing uses of land. The law hardly ever tells them what decisions to make and rarely tells them that they must exercise the powers which they are given to protect the environment.
(Farrier et al. 1999: xii)
Like property law, environmental law regards the natural environment anthropocentrically, ‘seeing the environment as a “resource” to be used by human beings’ (Farrier et al. 1999: 1). The core difference between the two separate areas of law is that private property protects the rights of owners with regard to their land-as-property, while environmental law limits those rights, as particular uses of land-as-environment. As such there are tensions between property law and environmental law. English legal scholars Sean Coyle and Karen Morrow argue that:
The belief that the powers and rights of an owner to use land in prescribed ways might be inherently subject to community-directed obligations to nurture and protect the natural environment is a direct challenge to the assumption that the terminology of rights is the appropriate one to use to describe the complex relationship of property between persons and land.
(Coyle and Morrow 2004: 10)
Australian legal scholars, Farrier et al. note that because the function of private property often requires the ‘development’ and sometimes the ‘destruction’ of the natural environment, it clashes with the objectives of environmental law. Once the government has transferred Crown land into private ownership it becomes ‘politically more difficult to regulate land use’ because it is ‘likely to be confronted with demands from owners that their “private property” rights should be respected’ (Farrier et al. 1999: 10). Private property rights are considered fundamental rights in cultural and legal discourse: ‘Rights-talk is embedded in our legal, moral and political culture’ (Coyle and Morrow 2004: 10). Property and environmental laws are not therefore different and equal laws; they are ordered by the priority of property rights:
The issue of how to persuade or require private landholders and lease-holders to use and manage their lands in ways which are at least compatible with the interests of environmental protection is one of the most intractable problems faced by environmental policy-makers today.
(Farrier et al. 1999: 11)
The argument that Farrier et al. advance against the priority of property rights is that the rights of the public should not be secondary to the rights of private proprietors and leaseholders. It is an argument common to environmentalist critiques of property law and the culture of private proprietorship. It is an argument whose basis seems not to have diminished; on the contrary, it had strengthened, despite the rise of environmental law and environmental awareness in cultural discourse. American legal scholar Joseph Sax laments that even after 40 years of environmental law in the United States:
[I]t is a chastening fact that the phrase ‘rights of the public’ … is as rare as an endangered species in American environmental jurisprudence, as rare as the phrase ‘rights of the private property owner’ is commonplace.
(Sax 2008: 16)
The juxtaposition of private and public property, however, seems not to approach people–place relations differently. Rather, their emphases differ only on the appropriate party to the property relation – person or greatest number. Often, environmentalist critiques of legal and cultural discourses of property echo the anthropocentric utilitarian theories of property. Farrier et al., for example, cite Mill in the explication of the public or community rights critique of private property:
When the ‘sacredness of property’ is talked of, it should always be remembered, that any such sacredness does not belong in the same degree to landed property. No man made the land. It is the original inheritance of the whole species. Its appropriation is wholly a question of general expediency. When private property in land is not expedient, it is unjust.
(1999: 12)
Mill’s notion of people–place relations is expressed in the language of inheritance, appropriation and proprietorship. For Mill, place is a resource that must be enjoyed ‘expediently’. The hierarchy of the nature/culture paradigm is unquestioned and indeed a separation of the terms and their realms is implicit in Mill’s critique. People are not a part of nature. In drawing from Mill, Farrier et al. indicate how environmental law operates within the same conceptual framework as property law. The discourse of property is fundamentally a discourse of separation and subordination of nature from culture. Environmental law emphasises it according to a different social ideal. The difference of emphasis between them hinges on their definition of human agency. Both laws are constituted by the idea of human agency, but in property law, agency is expressed as entitlement or ‘rights’, whereas in environmental law it is expressed as duty or ‘responsibilities’. Thus when Farrier et al. argue ‘[W]e cannot leave decisions about land use solely in the hands of landholders claiming the right to do with their land what they please’ (1999: 12), they are not arguing against or outside the rights discourse, rather they wish to redistribute those rights and redefine its terms.
The restriction of a property right on environmental grounds is thought to diminish its ‘propertyness’ and in some cases is described as the ‘sterilisation’ or ‘loss’ of the property. Section 51 (xxxi) of the Australian Commonwealth Constitution provides that the acquisition of property affected by government legislation or regulation should be made on ‘just terms’, which may include compensation. The problem for lawyers, however, is drawing the line between the regulation and the acquisition of property (Gray 2007: 175). Where, in fact, in terms of legal title, no property has been acquired (or ‘taken’) by the government, lawyers may argue that property has been taken de facto by the restriction of use. Minor and common restrictions of private property rarely form the basis of compensation. However, where the restrictions arguably amount to the same thing as the acquisition or taking of the property then a case may be made. The concepts of ‘taking’ and ‘acquisition’ in the American and Australian case law present us not only with a definition of property, but with the reminder of its purpose in contemporary law and culture. The purpose of property is the provision of profit through surplus production, as the case of Newcrest reveals: ‘For what is land but the profits thereof?’ (Coke’s Institutes, cited in Sax 2008: 14).
The idea that property is sterilised or lost by restriction of its use directly contradicts the notion that property law is not about land use or ‘things’. This is precisely the contradiction that Newcrest illustrates. In Newcrest Mining (WA) Limited v Commonwealth6 the majority of the Australian High Court upheld the contention of the appellants, the mining company Newcrest, that its property rights (mining leases) at Coronation Hill adjacent to the Kakadu National Park were ‘sterilised’ by government legislation, the National Parks and Wildlife Conservation Act 1975 (Cth), which prohibited ‘operations for the recovery of minerals’ in the park. The property right itself had not been acquired by the government. The claim to compensation
Ordinarily, in a civilised society, where private property rights are protected by law, the government, its agencies or those acting under the authority of law may not deprive a person of such rights without a legal process which includes provision for just compensation. While companies such as the appellants may not, as such, be entitled to the benefit of very fundamental human right … (the Australian Constitution) extends to protect the basic rights of corporations as well as individuals.
Australian legal scholar Karla Sperling argues that this ‘preoccupation with property rights … limits the ability of the government to act in the public interest through planning and environmental law’ (1997: 431). The High Court found in Newcrest that the land use restrictions undermined the appellant’s property rights, which must be compensated. The fact of compensation reaffirms not only the value of property as a right to a profit, but reaffirms the role of the court in establishing the primacy of property rights and rights holders in legal and cultural discourse:
It was, almost by definition, the property owners who used courts and it was in the resolution of their disputes that the common law was formed. So the whole climate and ideology of the law stressed private property, its uses and transactions.
(McAuslan, cited in Sperling 1997: 428)
The centrality of property to law explains why environmental and constitutional laws are defined from the perspective of private proprietors. By distancing ‘things’ from its focus and disavowing the physical, property law implicitly maintains that land use is irrelevant to definitions and determinations of property. Yet by insisting that property is about ‘rights’ and upholding the rights of landowners to continue using the land as they wish, property law makes possible certain kinds of land use, particularly those that can generate profit. The practice of property law conceals these proscriptions by referring to land only in terms of the land market.
The questions asked in Newcrest about the meaning and value of property are debated across the English-speaking world in the same terms of monetary benefits and losses. A Canadian court framed the question as a ‘policy issue of how minutely government may control land without buying it’.7 In the
7 Mariner Real Estate Ltd v Nova Scotia (Attorney-General) (1999) 177 DLR (4th) 696 at 699 per Cromwell JA, cited in Gray (2002: 220).
United States, Justice Scalia in the Supreme Court held in Lucas v South Carolina Coastal Council8 that the council had denied the landowner ‘all economically beneficial or productive options for [the land’s] use’ (at 1018) and thus awarded compensation. As in Newcrest and Mariner, Lucas was a dispute based on the environmental regulation of land use. Lucas is a significant case in the analysis of people–place relations because: ‘[I]t has played a central role in stimulating a so-called property-rights movement in the United States that has mounted a sustained challenge to environmental protection laws as constitutionally uncompensated expropriations of private property’ (Sax 2008: 14).