Other People's Country by Timothy Neale Stephen Turner

Author:Timothy Neale, Stephen Turner [Timothy Neale, Stephen Turner]
Language: eng
Format: epub
ISBN: 9780367002091
Barnesnoble:
Publisher: Taylor & Francis
Published: 2019-04-11T00:00:00+00:00

A critique of Anglo-Australian law

The previous section has illustrated that in Australia water policy was developed with particular attention to Anglo-European values and economic considerations. Like other features of Indigenous identity, conceptions relating to connectivity, flow, and stewardship were affected by the operation of colonial settlement, and colonial land practice and policy.54

One of the most powerful and ubiquitous legacies of this history was the entrenchment of a discourse of entitlement in Australian water law.55 In this law, this discourse is debated through the language of property rights and the subcategory of licences. The discourse on entitlement is inherently anthropocentric56 – it is solely about people, or more technically, about the rights of persons.57 Ecological and/or cultural perspectives concerning ‘flow’ do not feature in this discourse. Rather, property is a key area of law that has facilitated and legitimated human mastery and conquest over ecological systems.58 As will be explained in this part of the article, the discourse of entitlement has historically been shaped to prioritise individual rights over cultural and ecological concerns.

As a consequence, property is described not as a physical thing, like land or water but as an abstract concept that demarcates legal relations between persons.59 To be clear – the ‘thing’ that one owns when one owns property is not the thing but the right in relation to the thing. It is in this sense that students of property law learn that property is ‘dephysicalised’ 60 and water is inert and without agency.

Australian property law maintains that the existence of a property right is contingent on the existence of two equally important elements: its alienability and its excludability.61 Alienability means that it must be possible to transfer the right to another party. If one cannot sell or bequeath or donate one’s property right to another then one does not possess a property right. What is concerning about the use of property rights in water is that it presumes, as alienability necessitates, that we inhabit a world of individually valuable water resources rather than a world of communally valuable and ecologically valuable water resources. The excludability of a property right is similarly pivotal to the existence of a property right. The right to exclude is said, in property law, to be good against the world. If one cannot exclude others from one’s property right, then one does not hold it in the first place.

The dephysicalisation of water in the common law tradition is not just a theory – it is also a practice. The theory that property is not a real thing but a right between persons is practised and materialised by the ownership, use, and ‘management’ of land and water resources. Both the theory and the associated cultural practice of property law say that the physical condition of land and water is irrelevant to an owner’s use rights.62

Further, many disputes over the alienability and exclusivity of water fail to recognise the interconnections of the various components of the hydrological cycle, the groundwater with the surface water, and with seasonal and event-based weather patterns (e.

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