Communal Governance of Land and Resources As a Sustainable Property Institution

Chapter 11 Communal Governance of Land and Resources as a Sustainable Property Institution

Lee Godden*

Communal land and resources are regarded as problematic; as inefficient and unsustainable with a looming “tragedy of the commons” an ever-present pos- sibility. This chapter investigates the claims that communally held land and resources are less sustainable and more vulnerable to overexploitation than private property forms. It draws on research conducted over several years in three key areas where communally held land and resources were facing significant changes to the prevailing forms of environmental governance. The research project examined conflicts over common land and resources and the progres- sive introduction of private property as a regulatory mechanism in areas that included: indigenous peoples’ communal land title, water trading, and native vegetation/biodiversity offsets. This chapter canvasses debates, and presents an analysis in respect of indigenous peoples’ land and resources, but it has many resonances for other communal resources, such as water. In water governance, a perceived growing scarcity of the resource has been accompanied by a rapid introduction of private property forms in water law and policy, premised on ideas of efficiency as the measure to achieve sustainability. Similarly, the research project examined the prolifera- tion of market mechanisms in native vegetation regulation in Australia, which increasingly adopt an offset, quasi-property model. Research from the project suggests that in various policy fora, increasingly there appears to be a corre- lation predicated between private property, efficiency and sustainability. The chapter engages that perceived association in environmental governance and it seeks to provide a more nuanced analysis, suggesting that communal landhold- ing also makes a valuable contribution to sustainable governance of land and resources.

* Lee Godden is a professor at Melbourne Law School. The author would like to acknowl- edge the valuable research assistance provided by Ben Silverstein and Sam Kirk. The author also acknowledges support provided by the Australian Research Council Discovery Project (DP0558604) “Managing Competing Claims to Land and Resources – Does Property Law Promote Sustainability?” that formed the project basis for the analysis in this chapter. Her colleague, Maureen Tehan was a co-researcher on this project.

1. Reconﬁguring communal land and resources

Sustainability has become a catchword for competing “visions” of the future that seek to build resilient cultural and natural communities and institutions. In particular, for many indigenous peoples and local communities, whose access to land and resources has been associated with race and cultural identity, the capacity to build viable futures is premised upon retaining and enhancing communally held land and resources.1 Conversely, there are strong pressures oper- ating both through globalization trends and in local land policies to renounce communal holding in favor of an individualized form of ownership. Individu- ated ownership is seen as the key to providing property-related protections to individuals; thereby allowing freedom of choice and a basis for entrepreneur- ial success.2 Current debates over the respective merits of individual title or communal lands retrace similar oscillations across many cultures and historical periods, and reinforce the central significance of the land and resource question for all societies. Schemes to reformulate property law, land tenures, and title systems to develop effective systems for governance of communal land and resources have been attempted at many junctures. Current reform efforts hinge on the supposed superior economic efficiency of private property developed under evolutionary models of Western property systems . These systems prioritize individuated and formalized land titles and resource management. Such models sit alongside, or displace, more or less resilient customary and communal systems that have been subject to various forms of state-initiated or private, corporate intervention over many years.3 The interplay between indigenous peoples and local community groups with colonial and post-colonial modes of intervention have produced dynamic, yet often conflicted, regimes. Further, notwithstanding the long trajec- tory for greater recognition of indigenous peoples’ rights to land and resources, debates about customary governance over communally held land and resources are still consistently deflected to questions of individual title, ownership, and the formalization of tenure systems as a necessary precursor to economic development. Such deflection replicates an academic and lay orthodoxy about the

1 Grazia Borrini-Feyerabend et al., Sharing Power: Learning-By-Doing in Co-Management of Natural Resources throughout the World (Tehran: International Institute for Environment and Development, 2004). 2 Helen Hughes and Jeness Warin, A New Deal for Aborigines and Torres Strait Island- ers in Remote Communities (St. Leonards, NSW: Centre for Independent Studies, 2005). See also, Peter Larmour, “The Governance of Common Property in the Pacific Region” (National Centre for Development Studies Pacific Policy Paper 19, Research School of Pacific and Asian Studies ANU Canberra, 1997), 4–5. 3 Daniel Fitzpatrick, “Evolution and Chaos in Property Rights Systems: The Third World Tragedy of Contested Access,” Yale Law Journal 115 (2006):999.