LAND: OWNERSHIP AND RIGHTS

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Simon Winchester is one of my favourite authors. He brings to his stories a background in geology. I was captivated by the book “The Map that Changed the World” (2001); it was about a geological map and a man named Smith. But his other works such as “The Fracture Zone”, “Krakatoa”, and “When the Earth Shakes” follow a similar theme. This year he has published an enthralling book: “Land” with the subtitle “How the hunger for ownership shaped the world” (William Collins,2012).

Following a lengthy prologue, he embarks on 25 case studies in the form of short histories of how different societies, nations and individuals have confronted issues of land ownership. These studies form chapters grouped under five themes: borderlines, acquisition, stewardship, battlegrounds, and restoration. It is supported by an excellent index, a useful glossary, some quite pithy footnotes, but a rather cursory reference list. This book is not a scholarly tome, but rather an easy read of global history on how lands in different places have been mapped, abused, fought over, accumulated, and cared for. It is full of sadness and grave iniquities; many stories concern dispossession with consequent cruel treatment of those affected. The reader is introduced to many cultures and land types that have been fenced, measured, given title, and changed in land use over time. And it is quite contemporary even referring to Australian east coast fires of 2020.

The tone of the book is set by a quote from Trollope in 1867: “It is a comfortable feeling to know that you stand on your own ground. Land is about the only thing that can’t fly away”. The author then takes you to his newly acquired freehold block in upstate New York with the comment “I was now the unambiguous, undisputed and indisputable owner of a tract…”. This concept of ownership, he explains, is common in most western societies today. A land lawyer on page 34 is quoted as saying an owner has  “the right to call the police to throw anyone else off what the title documents say belongs to you”. This gives you a “bundle of rights”: possession, control, exclusion, enjoyment, and disposition. In the process, the “commons” can be alienated. In the words of John Locke in 1689: “It being by him removed from the common state nature placed it in, it hath by this labour something annexed to it, that excludes the common right of other men”.

Winchester provides examples where this power of ownership has led some societies to adopt a more “communal” approach to land use including the right to wander or roam across land as in Scandinavia and now in Scotland where there is “no such thing as trespass” (p.221). He quotes another one of my favourite environmentalists, Aldo Leopold from “Sand County Almanac” that “When we see land as a community to which we belong, we may begin to use it with love and respect” (p.385). This was written in 1948 and it is so pleasing to see in this book some examples of caring communal activity today.

“Yet now the land is drowning”; this is the epilogue to the book. Here we see challenges to the so-called universal belief that “land is the only thing on this earth that lasts” (p.397). This opens up discussion on what he neatly describes as land “withering away” as the world gets warmer and sea level continues to rise.  Here arises dreaded questions such as likely consequences of actions to prevent loss of land to the sea, and rights of landowners who are adversely affected.

I turned to the question of property rights as contained in the Australian Constitution. Section 51 (xxxi) empowers the Commonwealth Government to make laws regarding the acquisition of property (a “taking”). Such acquisition must be on “just terms” and is similar to what is in the 5th Amendment to the US Constitution. It applies to federal interests. State governments have their own statutes; in NSW it is the Land Acquisition (Just Terms Compensation) Act 1991. All these provisions are based on a principle found in Article 17 of the Universal Declaration of Human Rights that “No one shall be arbitrarily deprived of his property”. There is considerable jurisprudence on just terms litigation in Australia. But does an arbitrary “taking” by the sea constitute grounds for a landowner to seek compensation or to protect his or her property?

 A debate occurred in the “Australian Law Journal” nearly a decade ago between Karen Coleman and John Corkill on the assertion by Coleman, strongly disputed by Corkill, that landowners have a fundamental common law right to defend against the sea. I have referenced this debate in a chapter in the Jackson-Short (eds) book “Sandy Beach Morphodynamics” (2020, Ch.29). What is occurring here on the wider global domain on coastal shoreline change and inundation is a source of much concern to not just landowners but also to the rights of communities and natural systems to use dynamic, coastal land. In the NSW Coastal Management Act 2016 we recognised this issue noting in Section 3 (g) the “… inherently ambulatory and dynamic nature of the shoreline may result in the loss of coastal land to the sea…”. This provision is reinforced elsewhere in the Act on wetlands migration due to impacts of climate change (s. 6 (2) (c)).

Winchester has cleverly drawn our attention to the importance of history in the way we look at Land. While I was crushed by stories of dispossession and cruelty, I was enlightened by the struggles of those seeking more sustainable and equitable occupance. The past is not dead; we live with its legacies and strive to secure a future that mitigates personal and societal harm to nature and human well-being  caused by selfish actions of individual landowners.

Bruce Thom

Words by Prof Bruce Thom. Please respect the author’s thoughts and reference appropriately: (c) ACS, 2021. For correspondence about this blog post please email austcoastsoc@gmail.com

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