environmental conflict is the division that arises over competing demands for individual and collective rights . . .’. Any attempt to resolve substantive or proce- dural disputes that arise as a result of property rights must address a normative theory of property rights. When individuals share similar values and the conflict is a result of cognitive, interest or behavioural differences, an understanding of theoretical differences may not be important in settling the dispute. However, where major differences occur regarding how resources should be allocated, an understanding of the disputing person’s value differences is essential.
Property Rights
Resource use conflicts are often generated when people hold different values as to how resources ‘ought’ to be planned and allocated. Substantive and proce- dural disputes in environmental management are frequently based in conflicting value differences involving the distribution of property rights. People’s percep- tions of property and their rights to property are historically embedded in defined cultural landscapes. However, this is a constantly changing landscape that is defined in new ways and by changing values. Different claims to resources are often based in different philosophical justifications of the rights to property.
These different claims hold implications for how we plan and structure our institutional frameworks for managing the landscape, because IREM is not a value-neutral activity. The planning process forms a crucial link between normative theories regarding how land should be allocated and the institutional structures by which it is allocated.
How we define our right to a resource will often affect the structure of property rights that is put in place. Thus, the way in which a right is justified can affect the way in which it is articulated and defended as a means to accessing resources. For example, within the context of a cultural theory approach, the justification of property rights is carried to a level where individuals devise institutions, not only to control behaviour within their own social context, but to
‘create political environments which inhibit the exercise of other social contexts’
(Buck, 1989, p. 8). Wildavsky (1987, p. 8) adds that individuals exert control over each other by institutionalizing moral judgements that ‘justify relationships that can be acted upon and accounted for’. When these normative values clash, often there is conflict regarding how the institutional structure for resource alloca- tion should be formulated. Land use conflicts in the planning of resources are frequently based in different values that affect the use and distribution of resources.
Property rights are commonly identified as a right to own or possess some- thing, such as land or an automobile, and to be able to dispose of it as one chooses. However, this is only one aspect of property rights that focuses on the
exclusive right to ownership. To have a right to property also implies an enforce- able claim to the use or benefit of something. The concept of a property right distinguishes between momentary use or possession of something, and a claim to the thing which will be enforced by society or the state. For example, the claim can be in the form of a licence or lease to common property that gives the individual exclusive rights to secure a portion of that property, such as a fishing licence. So, property rights distinguish not only exclusive ownership of private property, but also rights shared and observed with others in common property.
As Randall (1987, p. 157) notes, ‘property rights specify both the proper rela- tionships among people with respect to the use of things and the penalties for violating those proper relationships’.
Property rights are often referred to in the literature (Scott, 1983; Harrison, 1987; Randall, 1987) as a bundle of rights, in which ownership is distributed in a variety of ways. The bundles may define rights of exclusion, transferability or enforcement. Within our society, the courts recognize ‘bundles of rights’ in differ- ent ways, with different means of tenure such as freehold, leasehold, easements or rights-of-way. Additional property rights can also be placed over these bundles in the form of riparian rights or licences. Several parties may have differ- ent rights to a single parcel, with varying degrees of ownership; for example, a single piece of Crown land may contain a hydro easement, mineral rights, grazing leases and a tree farm licence.
Schmid (1978, p. 6) suggests that bundles of rights confer certain ‘opportu- nity sets’ for the individual. The opportunity set defines the various lines of action open to the holder of the bundle. Also, the relative capacity of the indivi- dual to make use of the rights is important in defining his/her opportunity set.
The available resources, technology and knowledge determine the extent to which a person can exercise his/her property rights.
Both property rights and the opportunity provided by those rights are condi- tional to a time and place. Every society describes a unique relationship with its people to the available resource base, and thereby formulates a system of property rules. As Usher (1984, p. 391) suggests, ‘Systems of property rights are a cultural artifact.’ Systems of rights may be as diverse as the Songlines of the Aboriginals of Australia, which define territory according to ancestral songs that defined a stretch of country according to verses in the song. A man’s verses were his title deeds to territory (Chatwin, 1987). The meaning of property is not con- stant (Macpherson, 1978) and it changes over time, across societies and within societies.
Property rights require recognition by others of one’s claim to resources through relationships of power, kinship or convention. Levels of recognition within a society may range from a formal declaration recognized by legislation to an informal custom. Property rights form a complex set of social relationships that require recognition and enforcement by the collectivity.
Bromley (1989) has defined property rights as a triadic relationship that depends upon three sets of variables: (i) the nature and kinds of rights that are exercised, and their correlative duties and obligations; (ii) the individuals or groups in whom these rights and duties are vested; and (iii) the objects of social value over which these property relations pertain.
Thus, the property rights structure that is put in place by a society is depend- ent on the interaction of the rights holder and that society. These components are outlined in Fig. 5.1. Other people must see the rights holder’s claim to a resource as legitimate and, in turn, people have a duty to observe the rights holder’s claim. The property rights structure determines who has the legal ability to impose costs on others, the right to the stream of benefits from the resource and who controls access to the resource. Ely (1914, p. 108) has observed, ‘The essence of property is in the relations among men [sic] arising out of their relations to things’.
In countries such as Australia, Canada and the UK, the evolution of common law provides precedents for the recognition of property rights. Judges have made decisions based on historically established rights and principles, and have gradually changed the bundle of rights associated with property. Demsetz (1967) proposes the theory that property rights evolve as resources become more scarce and valuable. Systems of rights become more sophisticated as the demand and competition for resources increases. Emel and Brooks (1988) observed this with the formulation of groundwater rights on the High Plains in the USA: as the resource became scarcer, property rights became more defined and enforced. Scott and Johnson (1983) provide a good example of the histori- cal development of common law property rights by examining the evolution of mineral rights in western Canada. The changing character of property rights in minerals evolved in response to the special characteristics of the users of alluvial and hard-rock minerals, and of the economic and technical problems (changing opportunity sets) unique to that industry.
Statute law provides a basis for the legal establishment of ‘new principles’
governing our recognition of changing property rights. This takes time. Although statutory law may appear to have formalized certain property rights, an enforce- ment of those rights is required to realize the change. For example, even with the establishment of a new law, it may not provide a binding application until it is Fig. 5.1. Social structure of property rights.
proclaimed and contains specified regulations. Legislation or policies that are unpopular with a powerful segment of society, or strong lobby groups, may pay only ‘lip service’ to certain rights, with government doing little to administer the regulations. Estrin and Swaigen (1978) suggest that, in practice, statutes and regulations are no more binding than guidelines and policies; most of the significant legislation at any level of government is discretionary. The dyna- mics of changing property rights are based within competing interests and property claims throughout society. The outcomes of these power struggles often determine the eventual recognition of certain claims to property.
Competing and changing claims for property rights are often the basis for conflict and change within society. Different justifications for claims to resources legitimize the access to resources. These justifications are value-based and often form the basis for environmental conflict. Within the context of environmental management, the questions can be raised: ‘How do we define our justifications to property?’ and ‘How does this relate to the structure of rights that are placed on the landscape?’. Certainly, the way in which individuals justify their rights to property affects the structures of rights that are put in place. In addition, the value assumptions in their justifications for access to resources affects how different actors will or will not resolve their conflict.