Abstract
This article examines the legal and policy intersection of property rights and environmental law. Property rights are closely connected to and often in tension with many elements of environmental law and policy. Appropriate controls on the use of property rights and natural resources, and effectively managing the environmental consequences of such use, are critical in addressing the environmental challenges of our time. This paper first reviews the importance of property rights in the context of our legal, social, economic and political systems. It then examines the active use of property rights and mechanisms to address environmental challenges, including the creative and innovative use and development of new forms of property rights that have emerged in recent times. This is followed by a discussion of recent developments in restricting the use of property rights in land use and natural resource development to address environmental issues. The paper concludes with some ideas for future development of the law, and emerging new directions for future research. Throughout the paper, New Zealand will be used as a case study to reflect on the relationship between property rights and environmental protection.
Keywords
Introduction
The theme of this paper is the legal and policy intersection of property rights and environmental law. While this is a very wide-ranging topic, it seems appropriate on the occasion of the retirement of Professor Chris Rodgers who has contributed so much to these areas of the law over his long and distinguished career.
It is a complex ‘intersection’ demonstrating legal and doctrinal complexity, and both disciplinary divergence and convergence. From a doctrinal perspective, property rights largely fall within the realm of private law, and contemporary environmental law is more aligned with public law, albeit with some elements of private law. Notwithstanding this traditional disciplinary divergence, the exercise of property rights is invariably connected to, and often in tension with, many elements of environmental law and policy. It is, therefore, necessary to consider in a more integrated way the legal and policy interrelationships of both property rights and environmental law. This reflects their practical convergence in the regulation and management of land, natural resources and the environment in the real world. Appropriate controls on the use of property rights, and effectively managing the environmental consequences of such use, are critical in addressing the environmental challenges of our time.
The paper is divided into four main parts. First a brief review of the importance of property rights in our legal, social, economic and political systems. Secondly, an examination of the active use of property rights and mechanisms to address environmental challenges including the creative and innovative use and development of new forms of property rights that have emerged in recent times. New Zealand will be used as a case study providing examples of how property rights have been used in various contexts towards achieving environmental objectives.
Thirdly, a discussion of recent developments in restricting the use of property rights in land use and natural resource development to address environmental challenges. In particular, recent litigation based on torts such as private and public nuisance, and the assertion of a novel duty of care to protect the environment from the effects of greenhouse gas emissions (GHGs), are discussed. Finally, some ideas for future development of the law, and emerging new directions for research are explored. These include the idea of an obligation inherent in the ownership of land to use that land sustainably; the possible expansion of the public trust doctrine; and the potential role of indigenous culture and traditions. Recent developments in New Zealand are referred to in the context of incorporating indigenous perspectives in law and policy.
The importance of property rights
Property rights as a foundational element of the democratic system that we enjoy are often understated or even overlooked by those advocating reform of environmental law and policy. In this context, there is some value in briefly recounting the importance of property rights in the development of economic and political theory. Early political philosophers such as Locke and Hobbes expounded ‘social contract’ theory whereby ‘government’ acquires legitimacy through individuals surrendering some of their freedoms in return for political order and protection of certain rights.
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These rights included, as political thought developed, ‘life, liberty and property’.
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The eighteenth-century Scottish economist and philosopher Adam Smith built on these concepts in formulating his theory of capitalism; that is, that individuals will in their own rational self-interest direct their labours to maximise the value of their production. This requires efficiency of capital accumulation which is tradeable in a competitive market and leads to economic prosperity.
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This is the basis of modern capitalism and relies on secure property rights; both as a safe and secure repository of wealth and for the raising of financial capital. Most democracies, therefore, provide strong protections for property in their legal systems. As the late Justice Grant Hammond (also a previous Dean of the University of Auckland Faculty of Law) observed in White v Chandler:
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… next to constitutional rights, property rights are the strongest interests recognized by our law.
It is axiomatic that property rights are here to stay in democratic societies with economies based on capitalism, and that such rights provide the basis of prosperity and economic health. It is also usually the case that it is those countries that have healthy economies that are better able to afford the costs of effective environmental protection and the measures needed to address challenges such as climate change and intergenerational sustainability.
So how powerful are property rights? There is a persistent albeit incorrect view that freehold private property rights enjoy an ‘absolute’ status giving carte blanche to the owner to use their land, and the resources thereon, as they wish. Exponents of this view often refer to the writings of early jurists such as Blackstone who – referring to Magna Carta and other early laws – expressed the fundamental rights of the people of England as ‘the right of personal security, the right of personal liberty, and the right of private property’.
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He famously described the right of property as:
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… that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.
Nevertheless, Blackstone also considered property rights to be subject to the ‘law of the land’, being:
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… that residuum of natural liberty, which is not required by the laws of society to be sacrificed to public convenience, ….
That very clear qualification also reflects some of the core elements of Hobbes’ and Locke's social contract theory. So it can be seen that, even from these very early writings, property rights were never ‘absolute’ and it was understood that they must give way to current social needs and imperatives. These include the specific rights of neighbouring owners (through remedies such as nuisance), and planning laws and environmental protection measures imposed in the interests of society at large, and – you may argue – future generations.
During and following the Industrial Revolution, it was important to maintain and even enhance the strength of property rights; for example to provide security for the raising of capital to allow development. 8 However, since the middle of the twentieth century, there has been a progressive push-back in many societies against the unrestrained use of property rights and natural resources. This has been reflected in the emergence of increasing environmental regulation and litigation to address environmental problems and unsustainable resource use.
Contemporary use of property rights to address environmental challenges
The following discussion will be confined to two main topics: First, the use of traditional property mechanisms such as covenants and easements to protect areas of ecological importance and to enhance access, while also protecting the interests of adjacent property owners. Secondly, the creation of new forms of property to improve ecological sustainability in the use of land and natural resources, and to protect environmental qualities and amenities.
Use of traditional property mechanisms
Examples of traditional property mechanisms that continue to have relevance in addressing environmental challenges include leases, easements and covenants, the right of support, ‘property-based torts’ such as nuisance and trespass (discussed later in this paper), and the doctrine of ‘waste’. More recent developments have applied some of these mechanisms in innovative and creative ways to address environmental challenges. For example, easements and covenants are very effective tools often used by owners of proximate land to restrict the use of neighbouring land and airspace. Commonly they are used to restrict the types of developments that can occur in a large-scale residential subdivision, commercial or industrial development. Specifically, such mechanisms can be used to control the size, height, layout, value and even design features of structures. They can also be used to achieve environmental outcomes in such developments, such as the inclusion of energy efficiency standards and renewable energy technology, the recycling of water, the types of vegetation that can be grown on-site to reduce ecological demands (e.g., on groundwater), and to preserve and enhance nutrients.
In New Zealand, in addition to privately negotiated covenants and easements, statutory covenants are provided for under the Reserves Act 1977 (s 77), the Conservation Act 1987 (s 27) and the Queen Elizabeth the Second National Trust Act 1977 (QE II NT Act). Public walking access easements can also be negotiated over private and publicly held land under the Walking Access Act 2008, and its predecessor the New Zealand Walkways Act 1990.
The process under the QE II NT Act for creating ‘open space’ covenants has been very successful in New Zealand. The latest Annual Report of the QE II National Trust, states that as of 30 June 2022, there were 4,991 registered ‘open space’ covenants covering some 196,310 hectares (almost 2,000 km2) of land throughout New Zealand. 9 This includes an extensive group of high country pastoral properties in Central Otago that Canadian singer/songwriter Shania Twain and her then-partner Robert ‘Mutt’ Lange purchased in the early 2000s. 10 Over time they granted several QE II NT covenants over 53,000 hectares (530 km2) of the high country long-term leases they had acquired, along with access easements for hiking and other recreational activities. This is the most extensive example of the use of conservation covenants and access arrangements in New Zealand.
Part of the success of the QE II NT Act scheme is the strength and longevity of the covenants to bind future owners of the covenanted land in perpetuity. This was confirmed by the Supreme Court in its decision in Green Growth Trust v QE II National Trust. 11 In that case, a covenant that had some documentary imperfections in its description when it was granted, nevertheless, was upheld by the Court as binding on Green Growth Trust as the subsequent owner of the land. The Supreme Court went even further in attributing the protections of indefeasibility 12 to such covenants that are noted on the title of the burdened land. 13
In 2017–18, Professor Rodgers and the author undertook research into the use of such covenants, including why they are so successful in NZ, and whether such a system might be worth considering in the UK. 14 Unusually for legal research, it required extensive fieldwork, and in New Zealand, many covenantors were interviewed, as well as officials in the Department of Conservation, the QE II Trust, and some of its local representatives who interact with the covenantors who are mostly farmers. Officials of the Walkways Commission, which negotiates access easements with landowners, were also interviewed. A similar exercise was undertaken in the UK with comparable agencies.
The findings were interesting. The QE II system in New Zealand does not offer any significant financial inducements to farmers to covenant their land, apart from some help with fencing covenanted areas, and minor reductions of rates due to covenanted land becoming agriculturally non-productive. It was concluded that the scheme mainly owes its success to the following factors:
- The scheme is entirely voluntary (covenantors can set the levels of accessibility to the general public as high or as low as they like); - There is a certain ‘peer pressure’ from neighbouring farmers to get others ‘on board’; and - There was a clear sense amongst covenantors that it was ‘the right thing to do’ to put something back after – in some cases – many generations of use and profit from the land.
Although in England and Wales, and in Scotland, there are quite different systems for protecting ecologically sensitive and threatened areas, and for providing better public access, there was not the sense – at least from agencies and government officials interviewed – that there would be the same level of enthusiasm for such a scheme. Nevertheless, there was considerable institutional interest in the New Zealand approach from the various UK bodies engaged with. Bodies such as the Law Commission, the National Trust and the Department for Environment, Food and Rural Affairs (UK) were particularly interested in the use of conservation covenants to manage public access to protected areas; either increasing such access or limiting it to protect conservation values. Another area of interest was the use of conservation covenants to manage protection and access to private land that contained areas of significant conservation value.
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One of the interesting outcomes of this research is the assessment of where each country sat on a three-way continuum balancing the strength of property rights while allowing public access and protecting ecological values. For example, greater public access will usually result in degradation of ecological qualities and the property rights of the landowners, whereas less public access as of right reflects stronger property rights and often will result in greater protection of ecological values. 16
Scotland appeared to lean more towards much greater freedom of access to ‘green spaces’, but arguably compromising property rights and conservation values to a greater extent. In contrast, England and Wales favoured stronger protection of property rights while allowing some public access, but arguably at the risk of greater compromising of conservation values. New Zealand had a more balanced profile emphasising good protection of conservation values and property rights, although public access was more limited as most QE II Covenants do not allow public access by right, or restrict such access, usually requiring advance notice and the landowner's permission. There are, of course, quite different social, historical, economic and geographical factors at play in the various jurisdictions, and looking to possible future research involving post-colonial jurisdictions such as Australia, Canada and New Zealand, it may be appropriate to add the fourth element of protection of indigenous peoples’ cultural values and claims to natural resources to create a three-dimensional model with four vertices. In such jurisdictions, indigenous rights to land and natural resources have long been matters of contention and are increasingly the subject of political debate and litigation. Special settlements have been negotiated between governments and indigenous peoples including return of resources, cash payments and ongoing shared governance in managing natural resources and areas of special spiritual and cultural importance. These mixed issues of law, policy and cultural sensitivity are also often an element in litigation and the decisions of the courts. Such issues are important to indigenous peoples, especially in terms of protection of ecologically and culturally sensitive areas, access to such areas and the conflict between private property rights and the rights and claims of indigenous people. While such rights and claims are often in tension with, or are not otherwise translatable to, property ownership concepts, it is nevertheless important that they be considered when balancing protection of ecologically sensitive areas, public access and private property rights. Indigenous issues are further discussed below in the section on ‘Future Directions’.
New forms of property rights
Another contemporary development has been the creation of new forms of property and ‘quasi-property’ rights to manage scarce resources more sustainably. Planning ‘permissions’ have long been a feature of town planning regulation. In New Zealand, such permissions are now called ‘resource consents’ under the Resource Management Act 1991 (RMA). These consents may give the holder certain limited rights to use land, water and the atmosphere, and to discharge contaminants into the environment. Such rights are perhaps better described as ‘quasi-property’ rights, or perhaps even some kind of limited ‘statutory’ property, as the RMA specifically states that resource consents are ‘neither real nor personal property’. 17 Nevertheless, they have characteristics of both personal and real property: that is, they often give the holder exclusive use rights to the resource, are usually transferrable, and have quite significant economic value. Permits to use vulnerable and scarce resources such as freshwater, when subject to ecologically protective limitations as contained in the RMA and through conditions of consent, can provide a powerful tool to address environmental issues. The system is currently undergoing extensive law reform, and new legislation has been drafted and is working its way through the legislative process. 18 Some of the measures to be introduced include a legislative purpose that recognises the relationship between the health of the natural environment and the health and well-being of people and communities, stronger baseline environmental protections through statutory ecological ‘system outcomes’ and a stronger voice for Māori in environmental planning and decision-making. 19
One relatively successful system of using property rights to manage scarce natural resources is through fisheries quota management schemes (QMS) that have been applied in a number of jurisdictions to sustainably manage commercial fisheries stocks. 20 The scheme usually provides for allocating to commercial fishers a property right in the form of an annual ‘Individual Transferrable Quota’ (ITQ) to fish a percentage of commercial species in defined fisheries regions. These can usually be bought and sold by fishers and have considerable financial value. 21
In New Zealand, the tonnage amount for several commercial species is adjusted annually through the ‘Total Annual Commercial Catch’ (TACC). The holder of an ITQ has a right to a percentage of the TACC, which is set by the Minister for Oceans and Fisheries based on evidence of the state of the fishery. Where stocks have declined as evidenced by the best available data, the TACC is reduced, and where stocks are healthy it may be maintained at the same level or increased. The system is reasonably successful, but depends on the quality of the scientific evidence, and has limitations in terms of ‘bycatch’. Nevertheless, such a property-based model could be usefully deployed in other areas such as takings of freshwater, and the use and extraction of other renewable resources such as geothermal energy and even the use of the atmosphere as a waste sink.
In terms of atmospheric pollution, the emissions trading schemes that have been applied in a number of jurisdictions and regions are another way of using a property rights–based approach to achieve environmental objectives. The property right in this case is essentially the right to emit carbon into the atmosphere. 22 By placing limitations on the quantity of emissions trading units (ETUs) in circulation in any jurisdiction, and in some cases by providing a ‘sinking lid’ approach progressively reducing the number of ETUs in circulation, the value of such rights increases and provides financial incentives for emitters to reduce their emissions over time.
Another recent property right provided by statute in New Zealand is the recognition and protection of indigenous claims to land and natural resources through ‘protected customary rights’ or ‘customary marine title’ if certain criteria are met. 23 These rights provide a means of protecting historical and customary indigenous rights to property and natural resources, both to protect the culture and traditions of Māori and to allow full participation in future economic development opportunities.
Such developments demonstrate the versatility of property rights, and the imaginative ways they can be used as a vehicle to achieve environmental objectives and improve the sustainable management of land and natural resources.
Restricting the use of property rights to limit the impacts of unsustainable use of land and natural resources
There are many ways the law restricts the use of property rights in land and natural resources, and one of the main ways is through planning and environmental regulation. The common law also provides a range of remedies and litigation options, and in recent years, there have been many innovative and creative approaches; some successful, but others not, or perhaps ahead of their time.
Statutory planning and environmental law is well-trodden ground in most jurisdictions, so the following comments focus on common law sources of environmental law and litigation avenues.
Tort-based litigation
Globally, there has been renewed interest in litigation to address environmental challenges. Novel and creative arguments, often based on tortious remedies such as nuisance, trespass and negligence, have been deployed to address a broad range of activities, including release of toxic chemicals, ‘fracking’, the use of genetically modified organisms and GHGs. 24
Private nuisance applies where there has been ‘an unreasonable interference with a person's right to the use or enjoyment of an interest in land’. 25 A number of significant cases have been argued in Canada, including Smith v Inco 26 which was a claim by neighbouring landowners for damage to their land caused by nickel deposits emitted from a nearby refinery. While the claim was unsuccessful due to the lack of proof of injury to the land, it was clear from the judgment that had such proof been available the plaintiffs had a reasonable chance of success. 27 Ernst v Encana 28 was a claim in trespass, nuisance, negligence and the ‘rule in Rylands v Fletcher’ 29 for damage caused by a fracking operation under Mrs Ernst's ranch in Alberta. The case dragged on for years until Mrs Ernst's lawyers withdrew in 2018 and the case was dismissed in 2021 due to inactivity. Again, it was clear the courts were willing to entertain the arguments if the required level of evidence and proof could be met.
The doctrine of public nuisance is also attracting more interest to address damage to the broader public domain including land, water and the atmosphere. Public nuisance is where there is collective personal or public injury or loss, for example, environmental harm of a widespread nature. 30 Traditionally, it was limited to interference with public highways and waterways, but more recent decisions have suggested it could be expanded to address broader environmental issues such as water and atmospheric pollution, and other widespread effects such as climate change. 31
In the recent New Zealand case Smith v Fonterra Co-operative Group, 32 Mr Smith brought three tortious causes of action against several companies claiming inter alia that their activities released GHGs that contributed to ‘dangerous anthropogenic interference with the climate system and to the adverse effects of climate change’. 33 He argued public nuisance, negligence and breach of a novel ‘duty of care’. 34 An element of his claim was that the GHG emissions were not only damaging to the public at large but also would cause damage (for example, as a result of sea level rise) to land and other resources in or around Mahinepua, an area in the North Island of New Zealand, in relation to which Smith claimed an interest according to Māori custom and ‘tikanga’. 35
At the prior hearing in the High Court, the first two claims had been struck out, but not the claim based on a potential new duty of care as the Judge considered he could not rule out such an argument in strike-out proceedings. 36
Smith appealed the striking out of the first two claims, while the respondents appealed the decision not to strike out the claim of a novel ‘duty of care’. The Court of Appeal dismissed the appeal by Smith while upholding the appeal by the respondents. In summary, the Court held that public nuisance and negligence were not viable causes of action due to the diffuse nature of GHG emissions. It noted that all persons could potentially be both plaintiffs and defendants in such cases. There was also a lack of proof of special damage to Smith greater than to the general public, and there were causation issues. In relation to the negligence claim specifically, the Court considered that the imposition of a duty relating to GHGs would create a limitless class of potential defendants and plaintiffs, and this was against public policy and the coherence of tort. In relation to the novel ‘duty of care’ argument, the Court considered this was not viable for similar reasons. To allow such an expansion in the law of torts would offend the gradual and incremental development of the common law and would introduce an ‘ad hoc’ and ‘arbitrary’ regime which would lack democratic legitimacy. The Court stated:
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The bare assertion of the existence of a new tort without any attempt to delineate its scope cannot of itself be sufficient to withstand strike out on the basis of speculation that science may evolve by the time the matter gets to trial. Yet that is the effect of the [High Court] decision. The purpose of the strike-out jurisdiction is to ensure that parties are not put to unnecessary expense and precious court resources are not squandered by claims that have no chance of success. It demands an element of rigour in the interests of justice. The mere fact of novelty cannot be enough. Otherwise, any claimant would be able to proceed to trial simply by asserting a new tort.
In relation to all three causes of action, the Court took the view that there were strong policy reasons against imposing private law duties on GHG emitters, and that matters of this complexity were best dealt with legislatively. 38
Mr Smith appealed to the Supreme Court, and that appeal was heard on 15–17 August 2022. The decision had not yet been delivered at the time of writing.
The Smith decision reflects the response of the courts in other similar common law jurisdictions. For example in the recent Australian case Minister for the Environment v Sharma,
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the Full Court of the Federal Court of Appeal rejected a novel duty of care sounding in tort that was argued to be owed by the Minister for the Environment to Australian children when approving an extension to a coal mine in NSW. The FCA came to a similar conclusion for similar reasons as the Court in Smith:
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The imposition of the duty should be rejected. First, the posited duty throws up for consideration at the point of breach matters that are core policy questions unsuitable in their nature and character for judicial determination. Secondly, the posited duty is inconsistent and incoherent with the [Environment Protection and Biodiversity Conservation Act 1999 (Cth)]. Thirdly, considerations of indeterminacy, lack of special vulnerability and of control, taken together in the context of the EPBC Act and the nature of the governmental policy considerations necessarily arising at the point of assessing breach make the relationship inappropriate for the imposition of the duty.
In summary, these cases show the innovative and imaginative use of existing tort-based remedies, along with attempts to create new remedies to address issues such as GHG emissions. While the New Zealand and Australian courts have to date found the latter a ‘bridge too far’, some recent decisions in European civil law jurisdictions have found in favour of such a higher-level government duty, albeit based primarily on constitutional protections. 41 As existential environmental threats grow, we may expect further attempts to impose obligations on governments and the private sector in the courts using both existing legal remedies and concepts, and through the development of new legal arguments and remedies.
The ‘public trust’ doctrine
There have been a number of recent actions against governments and large polluters based on the ‘public trust doctrine’. 42 Historically, this imposed an obligation on governments to hold and protect for the public benefit common natural and cultural resources that remain in public ownership. These may include unalienated government lands, parks and reserves, and land beneath navigable waters. 43
The doctrine is not technically part of the law of torts (although it bears some conceptual similarity to public nuisance) nor a part of contract or private property law. It perhaps sits most comfortably in the public law realm, but its main relevance in this discussion is in relation to the limitations an expanded doctrine may place on the use of private property and natural resource development.
Courts in the USA, and to a lesser extent in Canada and other jurisdictions, have progressively expanded the doctrine, to include public parks and reserves, wilderness areas, wildlife, beaches and recreational areas.
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In British Columbia v Canadian Forest Products Ltd, the Supreme Court of Canada reviewed the relevance of common law remedies such as public nuisance for causing environmental damage to public lands, and the development of the public trust doctrine in the United States, with Binnie J stating ‘there is no legal barrier to the Crown suing for compensation as well as injunctive relief in a proper case’.
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He did sound a cautionary note in relation to the exercise of an expanded ‘public trust’ duty by the Crown, stating:
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… [T]here are clearly important and novel policy questions raised by such actions. These include the Crown's potential liability for inactivity in the face of threats to the environment, the existence or non-existence of enforceable fiduciary duties owed to the public by the Crown in that regard, the limits to the role and function and remedies available to governments taking action on account of activity harmful to public enjoyment of public resources, and the spectre of imposing on private interests an indeterminate liability for an indeterminate amount of money for ecological or environmental damage.
Some jurisdictions have given elements of the public trust doctrine legislative and even constitutional recognition, 47 although actions invoking the role of governments as ‘trustees’ having enforceable fiduciary duties to address environmental threats to the atmosphere (climate change), have not enjoyed significant success to date. This is due to a variety of factors, including the breadth of such claims, the lack of material facts to support their legal basis, and the view that these matters are public policy matters best addressed by government through regulation rather than common law litigation. 48 It nevertheless remains an area for potential future expansion.
Litigation based on constitutional protections for the environment
A brief comment on litigation based on constitutional protections is appropriate given the limiting effect that such actions may have on the use of private property. Recent litigation against some European governments has been successful in forcing the adoption of more ambitious targets for reducing GHGs over coming decades. For example, in the Urgenda case, 49 the Supreme Court of The Netherlands upheld lower court decisions that the Dutch government's emissions targets were insufficient. It held that the Government owed a duty of care to its citizens to protect them from climate change by raising and meeting their emissions reduction efforts. The Court ordered that the Government increase its GHG emissions target from 17% to 25% reduction on 1990 levels by 2020. 50 In its judgment, the Court referred the Dutch Constitution, and the obligations under the European Convention on Human Rights; especially Art 2 (the right to life) and Art 8 (the Right to respect for private and family life). 51 The doctrine of ‘hazardous negligence’ was also referred to in the lower courts, and while this element of those decisions was not examined in detail by the appellate Court, it was not rejected either. 52
Similarly in the Neubauer case, 53 the German Federal Constitutional Court upheld a claim by a group of German youth that argued that the government's target of reducing GHGs by 55% from 1990 levels by 2030 was insufficient. Invoking the German Basic law (Art 20a – Protection of the natural foundations of life and animals), the Court held those fundamental rights provided protection against unilaterally imposing on future generations the GHG reduction burdens and ordered the legislature to set clearer and more ambitious targets. In response to the decision, the legislature did in fact increase the target to a 65% reduction by 2030. 54
Future directions
Some emerging areas for further research and legal development are explored in this part. These include:
The idea of an ‘inherent’ or fundamental responsibility for landowners to exercise property rights in an ecologically sustainable manner, The expansion of the ‘public trust doctrine’ to protect public and common property resources, and finally, The emerging recognition of indigenous peoples’ customs and traditions to improve the protection of environmental values in post-colonial jurisdictions with indigenous populations.
An ‘inherent’ obligation for private property owners to use land and resources sustainably
The above discussion illustrates that the use of property rights and natural resources is mainly controlled through external legal rules or principles limiting the exercise of property rights – whether through regulation or through the common law.
If we accept – as argued earlier – that ‘absolute rights’ in private property is a myth, and that all property rights are ‘subject to the public convenience’ (using Blackstone's words) – then it follows that we should be able to redefine property rights in a way that encourages the more ecologically sustainable use of land and resources. One approach is to incorporate ecological sustainability as an ‘inherent’ or fundamental responsibility of holding rights of possession or ownership in land and natural resources.
The German scholar Dr Carl A Schmidt, as early as 1853, 55 noted that [property] ownership should be ‘merely the right, and the duty, to control and to use a thing in accordance with socially approved …. purposes’. American scholars Francis Philbrick in 1938 56 and John Cribbett in 1986, 57 and more recently, Professors Chris Rodgers, Klaus Bosselmann and Ben France-Hudson, 58 have also made similar arguments. The challenge is how such a redefinition of property may be practically implemented within our current legal systems.
A central and valid question is whether such an idea (an inherent duty simply by virtue of owning property) would require a wholesale ‘redefinition’ of property rights? To tease this question out, under the common law we still talk of ‘tenure’ even with freehold estates. This reflects the fact that freehold land in common law jurisdictions based on the English legal system is still held ‘of the Crown’, and the doctrine of escheat 59 provides that ‘unowned land’ reverts back to the Crown. If we go back to the feudal origins of tenure, it can be seen that those who had occupation rights to land also owed certain ‘incidents of tenure’ to the superior lord. Examples of such obligations may have included military service, or some share of the produce from the land. Such social obligations also arguably implied the avoidance of wastage or damage to the land. 60 Some of those early forms of occupation eventually transformed into freehold tenure. 61 Seen in this context it can be argued that a ‘wholesale redefinition’ of property rights may not be necessary for imposing such an inherent and enduring obligation on landowners.
Today the ‘doctrine of waste’ applies to leasehold land in many common law jurisdictions. In New Zealand, the liability is restricted to ‘voluntary waste’.
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The doctrine is commonly defined in the following terms:
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Waste is any act or omission by the lessee or tenant that causes enduring change to the nature of the thing demised, to the prejudice of the holder of the reversionary interest.
So, could such an obligation be extended more generally to fee-simple owners of land, and to the use and development of natural resources on that land? 64 In fact the doctrine of waste as it currently is understood also applies to life estates – a form of freehold title. That the common law is dynamic and should be capable of accommodating legal change has long been celebrated by jurists and legal scholars, 65 and perhaps this is a most deserving area for expansion of the common law to address modern environmental challenges.
Even if it were possible to extract such a common law-based obligation from the ancient feudal tenurial origins of modern fee simple title, perhaps through the expansion of obligations akin to the doctrine of waste, it would likely not be as broad as requiring an owner to actively use their land and the resources on it in an ecologically sustainable way, but rather to prevent physical damage, and/or a reduction in the land's economic value.
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A wider obligation requiring a landowner to use their land and resources sustainably, with exceptions for permitted natural resource developments, would likely require legislative intervention. New legislatively based measures that would extend and complement the common law to accommodate changing social and environmental needs is entirely appropriate as encapsulated in this comment by the American academic Alexandra Klass:
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[Legal theorists such as Holmes, Pound, Cardozo and Landis] …. all saw common law as a vehicle for dynamic legal change that fully encompassed statutory law, data and public policy as it developed through time. In other words, the growth of the regulatory state should complement, not displace, common law. As discussed in later sections, this dynamic use of common law has been underutilized in environmental protection.
Imposing such an inherent obligation of ecologically sustainable use of land on a landowner through legislation would fundamentally change the perception of property rights and would require some detailed consideration of what ‘ecologically sustainable’ use of land and resources might look like, the way in which such obligations might be enforced, and by who.
The expansion of the public trust doctrine
As noted above, actions invoking the role of governments as ‘trustees’ having enforceable fiduciary duties to address, for example, climate change have not enjoyed notable success to date. This is generally due to the breadth of such claims, the lack of material facts to support their legal basis, and the view that these matters are public policy matters best addressed by government through regulation rather than common law litigation. There is nevertheless a widely held view by some commentators and members of the judiciary that the public trust doctrine is ripe for further expansion and development. 68 If such a doctrine could be coupled with the inherent obligation on landowners to use their land and resources sustainably (as discussed above), then there is a potent recipe for reimagining property rights and creating a more universal obligation of sustainable use of both private and public property, and natural resources, enforced by the government of the day through the public trust doctrine. 69
There are of course a few ‘speed bumps’ and ‘leaps of faith’ needed with such a reconceptualisation. Nevertheless, as noted above, such development and imaginative expansion of the common law is a great part of its beauty and versatility, 70 although modern courts have demonstrated conservatism and a preference for slow and incremental change in this area. 71
Recognition of indigenous customs and traditions to improve environmental protection and sustainable resource use
These comments emanate from a quiet judicial ‘revolution’ in New Zealand where recent decisions of the courts, including the Supreme Court, have discussed tikanga Māori (a body of Māori customs and practices) as a ‘third source of law’. 72 Although not relevant to the UK, these decisions may provide some food for thought for other post-colonial common law jurisdictions such as Australia, Canada and some parts of the USA.
The recent Trans-Tasman Resources case 73 addressed objections by Māori who were concerned about the environmental effects of an offshore seabed mining proposal off the West Coast of the North Island of New Zealand. The Supreme Court held inter alia that ‘tikanga Māori’ was ‘applicable law’ that should be recognised and applied in the context of considering an application for seabed mining consents. 74 While the court did, in a footnote, state that it ‘[left] open for determination the questions of whether or not tikanga is a separate or third source of law ….’, 75 nevertheless this, and a number of other recent decisions of the superior courts, 76 reflect a trend to recognise tikanga Māori as a source of law additional to the common law and legislation.
It is notable that one of the Supreme Court Judges in the Trans-Tasman Resources case, Justice Joseph Williams, stated in extrajudicial writings in 2013:
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No right in resources can be sustained without the right holder maintaining an ongoing relationship with the resource. No relationship; no right. The term that describes the legal obligation is kaitiakitanga
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. This is the idea that any right over a human or resource carries with it a reciprocal obligation to care for his, her or its physical and spiritual welfare. Kaitiakitanga is then a natural (perhaps even inevitable) off-shoot of whanaungatanga.
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This offers interesting future possibilities for more ecologically sustainable management of land and resources under the law, in determining rights and obligations through litigation, and in social expectations for the use of property rights and resources generally. Incorporating Māori concepts such as kaitiakitanga more broadly in administrative and judicial decision-making in New Zealand may provide a further vehicle for more environmental protection and ecologically sustainable use of land and resources consistent with tikanga Māori. This is also consistent with elements of the current resource management reforms, and the proposed Natural and Built Environments Act (currently introduced to Parliament and at the time of writing being considered at Select Committee stages). Such an approach has interesting potential for application in other post-colonial jurisdictions with indigenous populations.
Conclusions and reflections
Property rights are an integral part of the economic, political and social fabric of most modern states. Property rights are often in conflict with the public interest, particularly in the context of sustainable land and resource use, and environmental protection. These tensions pose particular challenges for governments and policy-makers grappling with many competing demands such as economic health and social equity on the one hand, and environmental protection and sustainability on the other. Legislators, policy-makers and the courts have responded in many and varied ways to these challenges, and a number of conclusions can be drawn from this discussion.
First, property law has evolved in innovative and imaginative ways to address many environmental challenges. For example, mechanisms such as conservation covenants have been particularly effective to achieve conservation objectives through placing enduring limitations on the exercise of private property rights. New Zealand provides one example where such covenants are widely used and the courts have upheld such obligations. Where appropriately notified on the title to the land, such covenants endure in perpetuity, subject to the discretion of the court to modify or remove in limited situations, such as where the original purpose no longer applies. With protection of the environment and ecological values as the core public purpose of such measures, it would be only in very rare situations that an argument that such protections no longer apply would succeed.
Secondly, increasingly stricter regulatory limitations have been imposed on the use of land and water, agriculture, fisheries, minerals and other natural resources, and the discharge of contaminants into water and the atmosphere. Such restrictions often allow limited development or utilisation of such resources subject to strict controls on depletion rates of scarce resources and the management of environmental externalities.
A third conclusion is that the common law has the capacity for further development of existing legal rules and remedies to address newer types of environmental damage such as toxic pollution, the use of ‘fracking’, and climate change. Many traditional remedies such as nuisance, trespass to land, negligence and the doctrine of waste are often directly applicable to modern circumstances and have been developed and applied in innovative and creative ways to address new challenges. The courts have, however, refrained from acceding to demands by litigants to develop a new tort or legal remedy where to do so would result in arbitrary or ad hoc law-making which would undermine the rigour of the development of the common law.
A fourth conclusion, apparent from developments in both common law and civil jurisdictions, is that innovative higher-level legal arguments are increasingly being used to address environmental challenges through holding governments and the private sector to account for environmental damage. This has been most apparent with arguments based on the public trust doctrine, constitutional protections and human rights arguments in some jurisdictions to force more aggressive government action to address issues such as climate change.
In addition to current developments, this paper examines some possibilities for future directions in law and policy. One idea is to impose a fundamental obligation inherent in the ownership or possession of land to use that land, and the resources therein, in a sustainable way. At least in common law jurisdictions, there is an arguable historical basis for such an obligation to be found in the feudal origins of land title and the doctrine of waste. Such a basis is uncertain and contestable, so it is likely such an obligation would need to be imposed through legislation, in the same way that the doctrine of ‘waste’ in common law jurisdictions currently applies to leasehold interests, and freehold estates for life. When coupled with a reinvigorated and more expansive ‘public trust’ doctrine requiring governments to more actively protect public and common resources, such obligations would provide a powerful tool for the more ecologically sustainable exercise of property rights.
Finally, in some jurisdictions, there have been movements both through legislation and in the decisions of the courts, to give greater recognition to indigenous land and resource management perspectives and practices. In New Zealand, this has occurred through greater consideration of Māori cultural practices and customs in environmental and resource management policy and decision-making, and through the courts at all levels expressly recognising ‘tikanga Māori’ in their judicial processes and determinations. Certainly, where such cultural practices and customs include the idea of guardianship and the obligation to care for the physical environment, this can only enhance the more sustainable exercise of property rights.
As with many areas of the law, there is no single solution or approach that could be said to stand out as a normative preference in addressing the environmental challenges we currently face. It is likely all the regulatory, common law and litigation-based developments we see occurring will continue to play important roles in finding solutions to achieve an appropriate balance between the exercise of property rights and protection of the environment. What can be seen from contemporary legal developments is a clear paradigm shift where property rights are no longer regarded as ‘absolute’ and are being more appropriately balanced against the public interest in achieving a healthy and sustainable environment. This is occurring in many jurisdictions in the areas of public policy and government actions, legislation, the exercise of administrative discretions and in the decisions of the courts where an issue is justiciable in such fora.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
