John Sheehan

The metaphysics of indigenous ownership : why indigenous ownership is incomparable to western conceptions of property value

The notion of property is fundamentally different between modern culture and indigenous people. In practice, modernity posits property as a set of material rights that are notionally comparable to other material values. Indigenous people perceive property only partially in these terms and place greater emphasis on origins and obligations of property within an understanding of community that is alien to modern culture.

COMMENTARY: Carbon Property Rights in Context

This commentary offers a background to the carbon challenge, carbon offsets, and emissions trading from an Australian perspective. It sets the scene for a more detailed discussion about carbon sequestration rights, which are defined explicitly by some Australian states and territories but not by others. We highlight that the term carbon sequestration right is poorly defined and relies, inappropriately we suggest, on the borrowed term profit à prendre. This terminology is at odds with the notion of a carbon property right, which has yet to be conceptualized fully by the marketplace and the existing legal framework, given the need to fully engage the sociological and ecological dimensions of carbon and climate change. We find that current policy intent, together with evolving public will and corporate responsibility, is ahead of the science and the legal framework for managing property rights in carbon (used broadly to represent the six greenhouse gasses). The Australian Property Institute has taken the lead in its 2007 policy paper Conceiving Property Rights in Carbon and more recently in Sheehan and Kanass investigation of “Property Rights in Soil.” This article takes the discussion to the next stage by offering a framework for property rights in carbon and asking whether such rights should be vested in the state or the nation, rather than merely creating a commodity that can be efficiently allocated and thus speculated upon.

Conceptualising Property Rights Research

Abstract Traditional legal research can be distinguished from the research approach used for property rights, which of necessity is at a jurisprudential level indistinguishable as a part of broader social sciences. Economic rights can be contrasted from legal rights permitting the identification of flawed property rights, which are a legacy of colonial history. Property rights in many post colonial common law countries evidence cultural blindness with fundamental flaws in property relationships.This extraordinary depth of research required to comprehend the complex matrix of embedded property rights requires an inter-disciplinary appreciation of colonial history, international law and the pragmatic responses of post-colonial legal regimes.

The underlying zoning enigma

Australian property rights exist within a sophisticated body of compensation case law and practice. To facilitate infrastructure, jurisdictions such as New South Wales must compulsorily acquire significant tracts of private land. The key factor for investigation in this paper is the prior reservation (or zoning) of such land where designated for a public purpose, which ultimately prohibits private usage. Enabling legislation for all compulsory acquisitions requires the assessment of compensation for the private land holder. Key judgements in various Australian Courts make clear that the question of an underlying zoning is a “jurisdictional fact” that triggers the agency to assess reasonable compensation.