Moving Beyond Boundaries in the Pursuit of Sustainable Property Law

Abstract

New Zealand scholars Prue Taylor and David Grinlinton state that it is “often the rules of property law, modified by planning and resource management regulation, that most directly govern human interaction with the natural environment.” Despite the importance of property law as a component in the system of regulation of our natural resources, consideration of how property law should be reformed in the transition to sustainability is a relatively fledgling topic for analysis. This, perhaps, should not be surprising. Realisation of the scale and extent of the global challenges facing the Earth’s resources has occurred only relatively recently whereas, at least in Europe, the tradition of property law reaches back to Antiquity. However, it is difficult to ignore that global projects aimed at tracking and evaluating the state of our natural environment are producing increasingly dire warnings about the impact of humanity on the planet as well as emphasising the magnitude of the transformation required to ensure that we live within the Earth’s resources. The growing awareness of environmental issues since the 1970’s provides the context for the emergence of the concept of “sustainable development” as a key organising principle for governance and regulation. The phrase “sustainable development”, although a highly contested concept, has been defined as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs” and comprises the three pillars of economic development, social justice and environmental protection. To reach the goal of sustainability, and to ensure the protection and preservation of our natural resources, it is necessary to review our systems of regulation and consider how our laws should be reformed in light of the global challenges we are facing. Property law will not escape the critical eye of the law reformer in this process.

In this chapter, I consider the reform of property rights regarding water, otherwise known as private water rights, in the context of sustainability. Reflecting the global trend, there are mounting, urgent, multi-dimensional challenges facing water which threaten this vital resource. In the World Wide Fund for Nature’s Living Planet Report 2018 it was stated: “Freshwater habitats, such as lakes, rivers and wetlands, are the source of life for all humans yet they are also the most threatened, strongly affected by a range of factors including habitat modification, fragmentation and destruction; invasive species; overfishing; pollution; disease and climate change.” Water has also been noted as being at the core of sustainable development. I will explore the interactions between three different policy spheres which relate to the reform of private water rights – each representing a pillar of sustainable development – in the particular context of small-scale hydro-schemes in Scotland. I argue that this micro-analysis has macro-implications, and that this case study shows that we must move beyond multiple boundaries in reforming our property laws in order to contribute to the transition to sustainability.

Keywords: Property law, Sustainability, Water Rights, Law Reform, Natural Resources