Evolution, Adaptation, And Invention - Property Rights In Natural Resources In A Changing World

Evolution, Adaptation, and Invention

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and for waste discharges into water and the atmosphere, are “property rights,” it can be said that sustainability considerations have been integrated into the creation and exercise of those rights. The allocation and exercise of rights to fell and mill indigenous trees is now governed by the sustainable management principle in New Zealand.138 Similarly, fisheries quotas are allocated in accordance with principles of “sustainable utilization of the fisheries resource and the aquatic environment.”139 Under the recently introduced emissions trading scheme, emissions trading units are a new form of “property in carbon.”140 As their purpose is to reduce greenhouse gas emissions through economic forces, sustainability underlies their very raison d-être.

It is therefore possible to integrate sustainability into the process of creating and managing quasi-property rights in natural resources through regulation. But even this falls short of an inherent obligation of sustainability embedded in property rights in land and natural resources.

While it can be argued that the law needs to articulate sustainability as a non-derogable norm – both to establish baseline community expectations, and to protect ‘sustainability’ from political agendas – it may be that establishing the principle of sustainability as an ‘inherent’ internalized incident of property ownership cannot be accomplished through legislative intervention alone. But legislative intervention is not the only mechanism available to the law. The principle of sustainability is now an internationally accepted ‘grundnorm’ for human interaction with the natural environment. It has arguably already achieved the status of customary international law. In some jurisdictions it has been brought into enforceable domestic law. It has already achieved wide acceptance by the community as a fundamental obligation of individuals within a community, and has been enforced by the courts. Arguably, obligations to the community that prevail over individual rights have always been a part of the common law, but were allowed to become latent through the period of the industrial revolution and into the 20th century in the interest of promoting industrial growth and development. It would therefore seem entirely appropriate – and legitimate – for a court adjudicating in litigation over land and resource rights to apply principles of sustainability, particularly where there is some ambiguity in regulation, some dispute over the exercise of statutory discretion, or a balancing of private rights and community interests is required.141

138Forests Act 1949, s 67B and s 2(1) (definition of ‘sustainable forest management’), as inserted by the Forests Amendment Act 1993.

139Fisheries Act 1996, s 8 (Purpose).

140Climate Change Response Act 2002, as amended by the Climate Change Response (Emissions Trading) Amendment Act 2008.

141The balancing of private rights of landowners opposing wind-farm developments against the community interest in promoting wind-farm development to address greenhouse gas emissions in New Zealand has been graphically illustrated in a run of recent cases. See

Genesis Power Ltd v Franklin District Council [2005] NZRMA 541; Unison Networks Ltd v

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9. Conclusion

In this chapter I have attempted to review the traditional property rights and rules that apply to natural resources; how these rights have adapted and evolved in the courts and through environmental and natural resources legislation; and the new forms of property and trading systems that have been invented to manage natural resources and achieve sustainable objectives.

Property rights can certainly provide versatile and creative solutions to some of the resource scarcity and environmental degradation problems that we face. Further developments similar to the QMS and the ETS may be expected, particularly in areas such as water management and customary indigenous rights. Imaginative uses of property registration systems, particularly when such systems are becoming automated and immediately accessible by users, hold great promise for offering effective solutions for recording and protecting both traditional and new forms of property right in land and natural resources.

However, property rights based systems when applied to environmental protection and natural resource management must accommodate, and be subject to, the principles of sustainability. Many of the contemporary natural resource management systems discussed here (with some exceptions) do incorporate sustainability to a greater or lesser extent. However, they must also accommodate all “values” – not just those that are simply reduced to a financial market value or an economic utility value. Many critical elements of the Earth’s biosphere are not able to be reduced to a quantifiable and market-based economic value system. Protection of such ecological ‘values’ will continue to require active government oversight and supplementary regulatory protective mechanisms to ensure that the public interest in ecological sustainability and intergenerational equity is protected and enhanced.

Finally, and most importantly, the principle of sustainable use of land and resources – including activities that impact on those ‘common property’ resources such as water, atmosphere and the oceans – must be accepted as an inherent internalized obligation of property ownership.

Hastings District Council [2007] NZRMA 340, Outstanding Landscape Protection Society v Hastings District Council, [2008] NZRMA 8; Meridian Energy Ltd v Wellington City Council, unreported, Environment Court W31/07, May 14, 2007; Meridian Energy Ltd v Central Otago District Council, unreported, High Court, CIV-2009-412-980, August 16, 2010. See also David Grinlinton, “Property Rights, the ‘Public Interest’ and Global Considerations: The Case of Wind Energy Development,” LexisNexis Resource Management Bulletin 7 (2007):62–6.