The tragedy proprietary rights impose on the commons

A recent focus of Australia’s attention was on the actions of three protestors who boarded a Japanese whaling ship to remonstrate with the crew members catching whales in and around designated Australian sanctuaries.

The three activists were then detained on board, requiring intervention by the Australian Government to have them released.

Viewpoints on this issue varied significantly within Australia, even though it can be said with confidence that most people disagree with Japanese whaling in all forms and in all areas.

Conservative chants about the sanctity of the protection of property by law were widespread. The act of trespassing by these three men on the Japanese ship was abhorred as illegal, immoral and detracting, if not completely destroying, the noble intent of their actions.

Greenpeace recently reported an incident with similar connotations, where a Court in Denmark was asked to punish an activist for trespassing on boats found to be illegally fishing in an area barred from such activity to save an endangered endemic species of Cod.

Whilst I am relying solely on the Greenpeace report as to the conduct of the court proceedings, and making an assumption that the law of trespass on private property by persons not acting with a greater authority than an ordinary person, there could be no doubt that the protection of property would see the activist convicted, despite the cause and the positive impact the actions had in enforcing the fishing ban. As far as I am aware, there exists no ‘noble cause’ exception to either the criminal or civil trespass laws.

However, the Danish Court, quite surprisingly and despite a plea of guilty to the charge, acquitted the activist and Greenpeace Nordic on the basis that the trespass was justified.

From a purely legal perspective, this finding is absurd, but a debate about how a court could find the two not guilty without a legal basis, and given the plea of guilty, is not the intent of this article.

The immutability of legal protections granted by law in all its forms, even where the protections are contra to ideas of morality, justice or equality (which you may read as equality between all life or equality between humans) is the current concern, as is mantle on which such rules are placed.

The most extreme extrapolation of this concern, where pronounced laws are all-powerful and must be obeyed despite their effect, can be seen in the Nuremberg trials of Nazi criminals. The regular defence raised in these trials was that despite the allegations that their acts were ‘crimes against humanity’ and international law, they were acts in accordance with the laws of Germany. Therefore, they argued, they could not be prosecuted, given that the laws were assented to by a sovereign government.

Modern day examples that might be used are the forced evictions of people from public areas which featured prominently in the Arab Spring uprisings and Occupy movements. Whether you agree with these movements or not, the actions of such protestors of voicing their concerns and seeking change, in their view, for the betterment of society, were met with the enforcement of proprietary laws over the land on which they stood to voice these concerns, even where these actions in themselves did not cause damage.

A more regular example is the removal of protestors from otherwise public lands where logging licences have been granted to a private company. The removal, and the following charges laid, are based on a legal protection to the licensee over the land from adverse actions of people who, other than their intent to protest, would be allowed on the land.

The imbalance seems most striking where law securing property rights is utilised to protect the furtherance of activities that in themselves may be illegal, immoral (whether that morality be derived from religion, ethics or otherwise) or against the will of some part of society, whether it is a majority or minority will. Further, where the damage caused by such protected activities is not caused to a person or to an object over which another person has proprietary rights that can be enforced, the law, particularly criminal law, struggles to appreciate the validity of those ‘criminal’ actions such as trespass taken to halt the destructive, but protected, activities.

It cannot however be said that pedestal of proprietary rights over land has remained at its lofty heights throughout time. Much like free market capitalism, exceptions to the general rule have been introduced so that the tragedy of the commons does not forever plague us.

For instance, laws regulating pollutants contaminating and emanating from private land is regulated through Environmental Protection laws, as they do for proposed constructions on private land which may affect protected public land, such as in the Environmental Protection and Biodiversity Conservation Act 1999 (Cth).

A more regularly used piece of regulation which acts to restrict the use of private land is found in local planning regulations, which of late have been updated to involve considerations of climate change and rising sea level when local Councils are considering a building or planning permit.

The questions for the future must be: Can (or will) government imposed regulation adapt to the evolving environmental conscience in a timely manner? Further, equitable outcomes achieved through regulation, at least historically, require complex legislation. Just look at the taxation laws in most developed countries which have this aim.Therefore, will environmental prosperity through equitable regulation be so complex as to end up being unworkable?

Finally, will the idea of private property forever restrict appropriate environmental action which alters the allowed use of land where competing economic interests are effected?

Although small-scale or singular domestic housing application have been rejected outright under current regulations (see reports of the recent Narrawong Planning Control Decision for example), large-scale, environmentally destructive but economically advantageous (depending on who you are) developments continue to get approval. Looking outside Australia, the Tar Sands Pipeline between Canada and the USA is another example of environmental issues being in conflict private proprietary rights to the use of land and natural resources.

Could the idea of property, an idea that was once exclusively linked with power, and which wields lesser but still formidable power now, be the problem itself? Could the abolition of private property be the means of overcoming the accumulation of private wealth with legal protection to the detriment of adjacent land, rivers, oceans and atmosphere?

Were use of property influenced not by private interests in an economically driven society but by a truly communal, active, local community, the considerations of local environmental features effected by any action taken on that community’s land would receive paramount recognition and protection, and not a disconnected, procedural, uninterested view that such consideration generally receive now.

Such a change would need to be preceded by changes both in societal organisation and in psyche. The time for economic rationalisation of all actions and the strive for global economic growth would need to be replaced with concern for local issues and communal provision of the necessities for life such as shelter, food, water and clothing. Personal growth and satisfaction would need to flow away from consumptive self-gratification and into self-awareness, awareness of other people and awareness of other living things. Rights dependent on legal proclamation need to be replaced by universal rights of all beings, whether human, faunal, floral or natural.

The future of protecting environmental qualities requires more than just further incremental encroachments on historical ideals of rights to property and profit, attempting to leave the remainder of the economic system intact. It requires a relinquishing of these ideas, replaced with small-scale, communal, self-sufficient, conscious and conscientious existence.

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