Property Rights and Natural Resources

Transcription

1 686 Journal of Energy & Natural Resources Law Vol 27 No BOOKS Property Rights and Natural Resources Richard Barnes Hart Publishing, Oxford and Portland Oregon, 2009, Studies in International Law, volume 22, 402pp + bibliography, 10pp + index 21pp This is an impressive piece of scholarship. It should be read by academics and students interested in property law theory and by those interested in fisheries law, especially scholars focusing on the development of individual transferable quotas (ITQ) and other similar forms of property entitlements in marine living resources. It will, I believe, be of less interest to practitioners of domestic resources law, largely because of its focus on fisheries issues. Thus, despite the rather wide-ranging title which seems to promise broader treatment, there is no coverage here of mining law, forest law or water law, and the coverage of oil and gas law is confined to a short discussion of the esoteric area of straddling petroleum deposits and joint development regimes (at pp ). What is particularly distinctive about the book is the effort to combine a study of property institutions, the concept of public interest, ideas of legal reasoning and a solid exposition of domestic and international fisheries law. Barnes makes important contributions in each of these areas, though he is somewhat less successful in presenting these as a coherent whole. A key theme that the author explores is the balance between the private and social aspects of property. While Barnes acknowledges that propertizing resources may serve conservation ends, he warns us that we should not adopt private property approaches in an unthinking way. In particular, he aligns himself (at pp 25 and 216) with those who argue that while property might at one time have served as an important bulwark against the state, there are now other legal instruments available to citizens which may serve similar goals, including domestic and international human rights instruments. The book contains eight chapters and a short conclusion. The first chapter, Natural Resources, International Law and Property, begins with a discussion of the challenges associated with the management of international open access fisheries resources. It then moves quickly to acquaint the reader with the author s objectives for the book (at p 11) which:. explores the relationship between domestic law, international law and property in respect of the regulation of natural resources impacts on the answers to [the following questions: To what ends and in whose interests do

2 Books 687 we regulate fisheries, agricultural lands, minerals or even the atmosphere? Who can own these resources and in what form? Can and should limits be placed on the use of resources to protect other social values?] The core thesis that it pursues is that when law is used to regulate a resource, the values and limitations inherent in a legal institution necessarily shape the form and content of any resultant right. It is further argued that considerations inherent in the construction and application of legal norms may limit the scope for strong private property rights in respect of fisheries and, indeed, other natural resources. In addition, the author makes the case for why it is appropriate to deal with property and international law in one and the same volume. Barnes offers us four reasons. First, international law limits state property institutions (eg, the sic utere tuo principle); second, international law is increasingly concerned with the operation of property rights (eg, the rights of indigenous peoples); third, international law may create property rights (eg, the deep seabed); and fourth, sovereignty shares a close conceptual relationship with property. Chapters two and three provide the property foundations for the balance of the volume and deal respectively with the private function of property and the public function of property rights. Chapter two on the private aspects of property offers a very comprehensive review of the literature on the justifications for the institution of (private) property, canvassing the natural rights approach, the liberty theory, the desert theory, the utility/ economic approach, and property as propriety, preferring, in the end, to adopt, along with Munzer, 1 a more pluralistic account that infuses the balance of the work. Barnes emphasises that most of the writing on property focuses on the idea of excludability and he is clearly attracted to Kevin Gray s three dimensions of excludability (physical, legal and moral), which in turn becomes something of a leitmotif for the volume. The dimension of physical excludability serves to draw attention to those resources from which it is physically difficult to exclude other parties (eg, a fishery, flowing water or the atmosphere). In effect, this establishes some natural limits on claims to private property. Barnes uses the idea of legal excludability in several ways. One way is to suggest that in some cases the legal system will allow property to be recognised and created notwithstanding the physical difficulties associated with its conceptualisation (examples might be intellectual property rights, and, in Barnes case, the ITQ in fisheries). Moral excludability refers to the idea that there may be moral objections to extending the idea of excludability (property) to some resources. This overview of property theory is well done and provides the volume with a strong beginning. 1 S Munzer, A Theory of Property (Cambridge: Cambridge University Press, 1990).

3 688 Journal of Energy & Natural Resources Law Vol 27 No Chapter three turns to the public dimensions of property law. Now it is a fairly trite proposition that property is a social and legal institution and that the content of property is contingent. And as a social institution society may and does impose limits on the scope of property claims, so that the institution of property continues to serve the social and public interest. The literature broadly recognises these claims and they are also recognised in international human rights instruments in Europe, the Americas and elsewhere. But Barnes is clearly not content with these sorts of general observations, since he wishes to explore the social limits that may be placed on property rights in a more detailed manner. He chooses to do so through the concept of, and the literature on, public interest theory, taking the reader into what was (at least to this reviewer) a bewildering set of categories and sub-categories of public interest all in an apparent attempt to discipline this amorphous concept. Barnes recognises that public interest is necessarily located in an idea of community, as well as the fact that it is very difficult to construct a coherent account of an international community. Chapter four seeks to reconcile the private and public functions of property. Here Barnes examines the application of four different possible conflict rules: (1) coincidence of the private and public interest, (2) property rights as trumps, (3) the public interest as trumps, and (4) a determinable relationship. Barnes argues that the determinable approach should be the norm with the balance between public and private interests to be struck in any particular case based on the three dimensions of excludability outlined above. Of particular note here is the extent to which Barnes draws on Neil MacCormick s work on legal reasoning 2 in articulating how the legal dimension of excludability might be brought to bear. The author concludes this chapter with an extended discussion of the concept of stewardship which Barnes offers as a form of property holding (at p 156) alongside the more traditional forms of property holding (private property, common property and collective property). While it is useful to draw attention to this concept and related ideas of public trust as a means of giving effect to the public/ private balance, the discussion of stewardship seems forced in the context of the chapter. It also seems odd to find the first extended discussion of different forms of property at this relatively advanced stage (at pp ) in the volume. The fourth chapter concludes the more general discussion of property law and property theory and the author turns to a series of chapters on ocean resources. The first of these (chapter five) traces the influence of the concept of property on the development of sovereign rights over ocean 2 N MacCormick, Rhetoric and the Rule of Law. A Theory of Legal Reasoning (Oxford University Press, 1995).

4 Books 689 spaces and resources, covering four different phases: the Groatian phase (and the mare liberum, mare clausum debate); the freedom of the seas phase; the coastal waters phase (expanding coastal state claims); and the resource regime phase. This is, for the most part, well travelled ground. Barnes argues that while property concepts such as effective occupation were an important influence in developing the concept of the territorial sea (subject to the right of innocent passage 3 ) the influence of property ideas was less evident in the subsequent conceptual development of the continental shelf and more especially the exclusive economic zone (EEZ). Indeed, with respect to the EEZ, Barnes comments (at p 215) that: International law did not merely recognize domestic claims, it constituted their whole legal basis. A second theme that emerges in this chapter is Barnes emphasis on conservation as an idea that serves to frame the contours of the various constructions of ocean space. Barnes identifies conservation as a justifying factor in developing coastal state claims much earlier than might be expected (eg, in the writings of Grotius and Selden) but he acknowledges that the conservation is not accorded much weight until the period after the Behring Fur Seals Arbitration (1893). Chapter six is, in many respects, a transitional chapter insofar as it seeks to draw an extended analogy between property and sovereignty. The three substantive parts of the chapter deal with territorial sovereignty as property, the scope of sovereignty (ie, sovereignty as a bundle of rights, at p 228) and finally restrictions on state sovereignty both general, and those existing under international environmental law. This latter part leads the author into an extended discussion of the concept of biological diversity and the Convention on Biological Diversity (CBD). Here Barnes engages in a degree of wishful thinking that contrasts with his more measured approach to the development of oceans law. For example, while acknowledging (as any writer must), the hortatory content of much of the CBD (at p 243), Barnes attributes this to the uncertainty that still exists over the precise nature of biodiversity rather than to the political reality that states were simply not prepared to brook any serious interference with the way in which they manage domestic resources. In contrast, Barnes more pragmatic approach comes to the fore when he acknowledges that recent international fisheries norms have evolved through non-binding Food and Agriculture Organization (FAO) norms (eg, the FAO Code of Conduct on Responsible Fisheries) rather than binding conventions and (at p 258) that the obvious reason for this is unwillingness on the part of States to accept further restrictions on their 3 Barnes might have alluded here to the right to roam (allemansrätten) on the private property of others known in both Nordic countries and Scotland as an analogy to the right of innocent passage in the territorial sea.

5 690 Journal of Energy & Natural Resources Law Vol 27 No rights to regulate natural resources. There are perhaps other inconsistencies in Barnes treatment of the CBD. For example, he seems to be of two minds in his assessment of the legal significance of the recognition of a resource (biological diversity) as a matter of common concern (eg, at pp 240 and 244). These occasional missteps reflect the tension in the work between that which might be desirable (that is, the reconfiguration of property interests to acknowledge ecological values and biodiversity values a topic covered by others including Eric Freyfogle 4 ) and the extent to which this might be actually required, either by domestic or international law. Chapter seven returns to the oceans theme and deals with the evolution of the various maritime resource zones. Here Barnes tries to identify the extent to which these resource zones recognise broader community interests in addition to the self-regarding interests of the coastal state. While one can point to the right of innocent passage in the context of the territorial sea, Barnes acknowledges (at p 281) that it is hard to find much evidence of a broader community interest in the context of the continental shelf doctrine. While the EEZ offers some obvious examples of such a sentiment, Barnes suggests that the degree to which this is borne out in practice may depend on which view of the EEZ one adopts (plenary sovereignty, residual high seas or tertium genus). Barnes prefers the tertium genus approach and uses this sui generis category as an opening to (re)introduce the idea of stewardship (at p 297) as away of conceptualising and organising the responsibilities of the coastal state. The last substantive chapter, chapter eight, deals with property rights and fisheries and in particular with the evolution of the ITQ and its many variants (eg, community development quotas) in different jurisdictions. Here the author provides impressive coverage of the domestic fisheries laws of no less than five jurisdictions: Australia, Canada, Iceland, New Zealand and the United States. While I suspect that a domestic lawyer in any of these jurisdictions might find things to quibble with, 5 this in-depth coverage offers useful comparative insights and variations on the ITQ theme. The general conclusion of this chapter is that while ITQ systems have generally resulted in improved management of fish stocks, and while various fishery licences and quota entitlements have been recognised in 4 E Freyfogle, The Land We Share: private property and the common good (Island Press/Shearwater Books: Washington, 2003). 5 This reviewer, for example, would reject the suggestion (at p 345) that the Canadian territories are mandated by the federal government to regulate fisheries (especially if we are referring to ocean fisheries as we apparently are throughout).

6 Books 691 each jurisdiction as economic property rights, 6 most jurisdictions have not recognised these rights as full-blown property rights. For this reviewer this is a distinction without a difference and the author seems to make very heavy weather of the distinction between ownership in situ and the proprietary right to take a resource (either an exclusive right or a percentage quota share). Such a right is frequently classified in common law systems as a profit à prendre and, as such, a proprietary interest even though it is incorporeal rather than corporeal. The distinction between in situ ownership and ownership of the good once severed is an important one for other migratory or fugacious resources (especially oil and gas but also water). It is also important where formal title to a resource is vested in the state, whether by the constitution or by statute. Here is an area where the book would have benefited from canvassing a broader range of resources than Barnes tackles in this volume. 7 The bibliography is a handy addition but it is selective rather than comprehensive, and thus does not cover all of the works cited in the text. In conclusion, I think that this is an important book which deserves to be widely read. I was not entirely convinced of the value of combining a work on property with a work on the development of ocean resource regimes, but each of these parts of the book represents a significant contribution to the available literature. Nigel Bankes 6 Consistent with this see also the recent decision of the Supreme Court of Canada in Saulnier [2008] SCC 58 (recognising that a fishing licence is property for the purposes of bankruptcy and personal property security legislation). 7 For a broad ranging review of property rights in natural resources see AD Scott, The Evolution of Resource Property Rights, Oxford, This book must have been published almost contemporaneously with Barnes. Barnes draws on Scott s earlier work on fisheries but Scott (an influential and well respected resource economist rather than a lawyer) also deals in his volume with mineral resources, water resources, timber resources and oil and gas resources. However, Scott s focus is very much domestic resource law and policy and not international law. The volumes actually complement each other quite nicely.