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.

Advertisements

The Separation of Reality and State

The post below is a copy of my submission to the Planet Ark World Environment News Letter to the Editor Competition, entitled “The Separation of Reality and State”.

Below is my letter to the Editor in response to the article “BP will not be banned from offshore lease sale”, which can be found here.

Dear Editor,

What an outrageous statement!

“Do you administer the administrative death penalty based on one incident?” Michael Bromwich asks himself.

Perhaps he should ask Troy Davis!

But the State sanctioned destruction of human life is a matter for another context. The State sanctioned destruction of the biosphere is the alarm that imminently sounds.

Surely the imposition of capital venture over public land for the sole benefit of State and Multinational Corporation, to the dismay and despite the condemnation of the people, would have George Washington, and all those who have fought for the liberty of people from the wishes of an overarching power, turning in his and their graves respectively.

Pierre-Joseph Proudhon once proclaimed “property is theft!”

Indeed it is. And, indeed, it is destructive. And, indeed, such extensions of proprietary right to the company with the most capital to purchase it, regardless of the possible consequences to not only that which it has acquired but to all other land, all other fauna, and all other flora, is reckless endangerment of life.

But, with the increasing separation of the person from the State and the Corporation (both of which are figments of legal and historical imagination), increasing are the barriers to stop people, people who are connected to the land, to the sea, to the plants and to the animals, from being able to assert their own right.

The right to protect what they enjoy. The right to protect these elements of our world, not only for the benefit of human-kind, but for each of these elements to exist in their own right.

The vast majority of individuals have grave issues with the disaster in the western Gulf of Mexico, both for its environmental effect and its human death toll.

Not that an individual could cause such painful devastation, but should he or she do so, through his or her own negligence and the taking of short-cuts, the sanction imposed upon them through the mechanisms of State power would be crushing.

And yet, the corporate veil again exists to limit the extraction of retribution to a mere monetary one (both in sense of form and size) without any restriction of liberty that a natural person would have imposed upon him or her, let alone on their ability to partake in a similar activity again.

I admit that my first temptation on reading the article was to criticise the administrative decision to allow BP to participate in the lease sale.

However, the problem is far deeper than of just one administrative action.

It is a problem of societal systems.

Systems that allow decisions to be made, apparently on behalf of the governed but yet made whilst far removed from the governed, to allow companies to build private wealth and capital.

It is this system which willingly allows the destruction of the biosphere, to the detriment of all.

Cameron Tout.

The importance of being NIMBY

The term NIMBY (“Not In My Back Yard”) usually has poor connotations of a person or a group complaining about a development that will effect them and shouldn’t proceed. The negative view usually arises from a suspician that the complainant only decries the development because of its personal effect, and wouldn’t care about it otherwise.

But the NIMBY is something that should be promoted, not admonished. Everyone should consider being a NIMBY themselves.

The reason?

Any medium and large scale development will have an adverse effect, whether it be on the community, the amenity and character of the area and/or the natural environment of the effected site and it’s surrounds.

Local Councils, in general, will look at the economic effects of these developments when a permit is sought. Although there are policies and guidelines causing Councils to consider non-economic effects, in a market based, GDP driven, financially focused world, it is not hard to imagine that economic considerations will take precedence.

It is through the work of those people and organisations concerned about the adverse effects of a development that force the environmental impact to take greater importance in the decision making processes of the Council and, hopefully, see inappropriate development stopped, either by the Council or by the relevant tribunal. Alternatively, greater controls or restrictions placed on the development than otherwise would have been imposed may help to protect what may have been otherwise vulnerable to destruction.

If we are to force government agencies at all levels to give greater weight to environmental issues such as habitat destruction, conservation of biodiversity and climate change, active NIMBY’s need to be everywhere.

Cormac Cullinan, an environmental lawyer, author and commentator, in discussing Wild Law jurisprudence, states:

“I have little doubt that if every person tried to heal just one tiny area of degraded and abused land in a way that strengthened their personal relationship with it, Earth governance and justice would soon flourish”.

An in depth analysis of Cullinan’s reference to Earth governance and Wild Law is beyond this particular post, but, briefly, refers to a political and societal system where the way we govern ourselves is in line with, and not paramount to, the methods and rules with which the universe and the earth governs itself and all it’s component, competing and complimentary parts.

Local people and local groups have the greatest knowledge and connection to the environment at the location of a proposed development. These voices will have the most credence when the true effects of a development need to be known. And if every community has its NIMBY individuals and NIMBY groups, very soon a development in any part of a country, a continent and, maybe one day, the world, will not be spared of a critical review of the cost of the development on the local and global environment as against the gain to be had by the developer or any other person that may benefit from the development going ahead.

For anyone who wishes to take action, you are not alone in your fight. In Australia, the Australian Network of Environmental Defender’s Offices (“the ANEDO”) provide information and assistance in every state and territory regarding planning and environment controls, and I’m sure there are similar organisations internationally. A link to the ANEDO is in my blog roll.