Graham, Nicole --- "This is not a Thing: Land, Sustainability and Legal Education" [2014] UTSLRS 12; (2014) 26(3) Journal of Environmental Law 395

Last Updated: 8 March 2017

THIS IS NOT A THING: LAND, SUSTAINABILITY AND LEGAL EDUCATION

Nicole Graham^*

Senior Lecturer, Faculty of Law, University of Technology Sydney.

*Corresponding author. Email: [e-mail]

ABSTRACT

Legal education plays an important but under-acknowledged role in anthropogenic environmental change because it shapes and qualifies people to become lawyers, judges and policy makers. Their work can prohibit and legitimate particular environmental practices. The conceptual framework of law, its taxonomy, as taught to students of law, often perpetuates an unsustainable relationship to the environment where it separates questions of entitlement to land and natural resources from questions of responsibility for them. The implication of perpetuating this separation in law curricula is that generations of legal practitioners will remain unlikely to develop a coherent system of environmental law that aligns rights with responsibilities. Environmental education scholar David Orr argues that ‘all education is environmental education.’ But legal education often excludes environmental considerations even where these are materially relevant. Given the role of legal education in shaping future law, this paper contends that rethinking its categories opens the possibility to create sustainable land use practice laws and policy.

Keywords: legal education, sustainability education, property rights, environmental law, taxonomy.

1. Introduction – anthropocentrism and adaptation

One of the first and most fundamental lessons that a student of modern Anglo-American land law must learn is that land does not matter in private legal disputes over land.^[1] The law regards land as no more than a ‘thing’, and against a more ‘intuitive’^[2] perspective, ‘things’ have been largely irrelevant to law since at least the time of Jeremy Bentham^[3] according to the ‘dephysicalised’^[4] concept of property that characterises modern private law. Disputes over land, as the law teacher explains it, are not over ‘things’ at all – they are over ‘rights’.^[5] Rights, the teacher continues, are the abstract entitlements that constitute property in its entirety. Land, should it figure at all, will appear only as the ‘thing’ over which the ‘right’ is held. This minor detail cannot obscure the relevant analysis of the relativity of the competing ‘rights’ in disputes of private law concerning land – unless the dispute concerns some public law restriction of that right, in which case it may indeed be a dispute between different categories of law: private and public.^[6] Ultimately, at law, at least in its category of private law (which underpins the market economy) land is a ‘thing’, a fungible and tradeable commodity, indistinguishable from other ‘things’. The contention of this article is, to the contrary, that land is not a thing. The dephysicalisation of land in law has adverse and material consequences that relate to the environmental unsustainability of the status quo.^[7] Teaching law as though land is a ‘thing’ implicates legal education in the reproduction of existing conditions.

The environmental problems created, in part, by this ‘dephysicalised’ perspective of land may be resolved, in part, by teaching a different, ecologically sustainable perspective of the world in which land is not a thing. Connecting legal language and legal categories to the physical world may be an important step towards instituting environmentally sustainable law and governance. To do so requires a departure from the legal convention of abstracting and separating people and places into ‘persons’ and ‘things’ and acknowledging that land is in fact part of a single and global ecological system of interrelated parts and processes.

An important first step is to acknowledge the situation of current legal discourse and legal categories within the broader cultural paradigm of anthropocentrism. In 1938, Rene Magritte said of his painting The Human Condition, ‘this is how we see the world... we see it as being outside ourselves.’^[8] Magritte’s painting shows a world that is not simply ‘outside’ the window, but external to human subjectivity. It points to the separation of people and place in the dominant Anglo-European cultural paradigm of anthropocentrism. Anthropocentrism is ‘the view that the nonhuman world has value only because, and insofar as, it directly or indirectly serves human interests.’^[9] At the imagined centre or core of the anthropocentric model is the human species; and around this centre is an ‘environment’^[10] of infinite resources.^[11] The relationship between the core and environment is hierarchical and unilateral: people relate to the environment principally through the concepts of entitlement and consumption as applied to ‘their’ environment.

Some environmental economists have critiqued the anthropocentric model for ‘externalising’ the waste (and therefore the total cost) of human consumption from the model, and for misunderstanding the availability of resources.^[12] Environmental legal scholars have critiqued the model for excluding the notions of responsibility and reciprocity^[13] from the relationship between humans and the ‘more-than-human world’.^[14] This article does not contribute a new critique of anthropocentrism, rather it acknowledges the ubiquity and power of this paradigm in law and legal education; and, proposes reform by recognising the inadequacy of the paradigm to address and resolve ‘problems that’ it has ‘in part created’^[15] – specifically, environmental problems. As such, the premise of this article is consistent with what is arguably the principal goal of environmental law scholarship – to develop critiques of legal and cultural practices that are ecologically unsustainable, to defend these critiques, and sometimes also to advance theories, models and reforms of law that might achieve greater sustainability.

In recent years, a conscientious departure from the anthropocentric paradigm in critical legal and cultural discourses can be regarded as part of a process of environmental ‘adaptation’, a concept that has been used to refer to a range of changes from technological ‘fixes’ to changing social attitudes and behaviours, to the ‘transformation of a region, industry or community.’^[16] One of the key features of different theories of adaptation is the recognition of what is called ‘adaptive capacity’ by which is meant the ‘ability or potential to respond successfully to climate variability and change.’^[17] Australian environmental law scholar Jan McDonald argues that ‘law and legal institutions constitute a critical component of a society’s adaptive capacity, and their influence may be positive or negative.’^[18] Identifying ‘institutions that are resistant to change or that change in small increments’, including property rights, as ‘barriers to adaptation’, ‘especially when transformational shifts are required’, McDonald also maintains that the converse is true, that institutions can also ‘facilitate the implementation of adaptation policies and respond quickly to new knowledge.’^[19] This article is concerned to explore one way by which the institution of law can shift from a negative influence on the adaptive capacity of society, to a positive one, by reforming its conceptual structure, starting with the taxonomy of law in legal education, with particular attention to property.

This is an urgent task. Environmental law scholarship has for many years now provided persuasive evidence of the negative influence of the imagined or real hierarchical priority of private rights above public law in both legal and cultural discourses.^[20] Property rights have often been at the forefront of debate about the validity of environmental law and attendant political compromise.^[21] Indeed, American environmental law scholar Joseph Sax lamented that even after forty years of environmental law in the United States, that the ‘legal system is handicapped in doing the job it needs to do’^[22] with regard to environmental protection because of the historical and economic importance of property law which ‘promotes and encourages’ activities that environmental law endeavours to limit.^[23] According to Sax, ‘despite a plethora of environmental laws and regulations’ there has been little or no reform of the ‘basic structural laws’ that ‘essentially drive behaviour... and describe the directions society is going.’^[24] He identifies property law as the most important category of law in this regard and contends that the relationship between environmental law and property law is ‘an unequal battle.’^[25]

The contribution of legal education to this problem can be read in its separation of questions of land ownership from questions of land use into different sub-disciplines of law. Accordingly, this article proceeds in two further parts. Part 2, ‘The Separation of Rights and Responsibilities Concerning Land and Natural Resources in the Taxonomy of Law’, discusses the legal categories of property law and environmental law with particular concern for the environmental consequences of anthropocentrism as it is manifest in tensions between those categories. Then Part 3, ‘The Role of Legal Education’, considers the role of legal education both in terms of its perpetuation of the categories and in terms of its capacity to contribute meaningfully to their alignment, and the potential for developing ‘sustainability education’ to encourage law teachers and students to think critically about the relationship between law’s categories and the environmental consequences of cultural paradigms and legal taxonomies.

2. The Separation of Rights and Responsibilities Concerning Land and Natural Resources in the Taxonomy of Law

One of the institutional ‘barriers to adaptation’^[26] is the structure of rules and principles that regulate the relationship between people, land and natural resources. This structure, or taxonomy of legal categories, splits questions of land use and ownership into smaller and separate questions of rights and responsibilities within the public/private dichotomy of law rather than treating a matter comprehensively. Where on the one hand, property law protects private rights in land and natural resources, on the other hand environmental law administers public law and policy that may interact with and restrict those private rights - although this is partly a question of specific legal cultures.^[27]

This conventionally bifurcated structure of law is not arbitrary, but rather ‘reflects the legal culture of a given legal system’ and is an ongoing ‘product of the interaction of the legal tradition and of the new sensibilities.’^[28] The prevailing legal culture supports the ‘modern developmental’^[29] or ‘growth’^[30] economy which requires an anthropocentric perspective of nature as being something separate from and subordinate to human culture: regarded predominantly as a suite of environmental services and resources. The law facilitates and regulates the modification and distribution of environmental services and resources according to a distinct legal category of entitlement that is largely unburdened by responsibilities for ‘externalities’ including waste. From the broadest view, the taxonomy of law is therefore a contingent feature of the landscape. ‘When we look at our landscapes and we see our law and land use practices in action, what does the landscape tell us about their interaction with the earth’s systems?’ ^[31] In other words, where the landscape is in crisis, so too is the structure and content of the law of the land. This Part explores the durability and viability of the categories of property law and environmental law in light of their agency in anthropogenic environmental change, and as ‘barriers to adaptation.’^[32] It argues that law’s categories are not eternal and have exceeded their utility.

2.1 The Relationship between the Categories of Property Law and Environmental Law

In modern law, rights to a specific parcel of land do not necessarily correspond to responsibilities for that specific parcel of land. Where there are both rights to and responsibilities for land, they will be often found in separate laws of different origin and function rather than in a singular source. Property law belongs to the category of ‘private law’ whereas environmental law belongs to the category of ‘public law and administration’. Environmental law and property law are not different and equal categories of law – the former is generally subordinate to the latter.^[33] What this means in terms of land ownership is that proprietary rights enjoy legal and cultural priority, as private interests, over the public interest in the material consequences of that ownership.

The meaning of the word ownership has conventionally referred to the concomitants of possession (for example, to own a fault, or to be amongst one’s own, to come into one’s own)^[34] which may include simultaneously both the notions of responsibility and entitlement. However, in relation to land ownership, modern legal discourse refers only to the latter notion - entitlement. ‘Ownership is not about responsibilities to and management of place. Ownership is about entitlement to things and resources.’^[35] It is on the basis of the ownership or entitlement to land, that decisions about land (and natural resources) are made, not on the basis of expertise or knowledge of the land and resources. ‘Owners are not required to be expert. They are not required to have good reason for their decision.’^[36] And yet their decisions ‘bind us all.’^[37] Ownership of land, in modern law is attached neither to responsibility for the land nor to knowledge about or expertise in associated uses of a specific parcel of land. Yet, ‘the integrity of ecological systems requires consideration of scales that are greater than individual landowners or individual tracts of land.’^[38]

The distinction between private rights of property in land and public regulation of land and natural resources has been so important to law’s taxonomy that it has been previously regarded as ‘a keystone of the semantic architecture of Western law.’^[39] The distinction between the categories of private right and public responsibility not only underpins the structure of modern law, it is also serves as one of the most influential agents of social and economic practices. From an environmental perspective the distinction between ‘basic structural laws of the legal system (such as the property regime)’ on the one hand and ‘these regulatory enactments’ (such as environmental law) on the other hand, is highly significant. The former creates a ‘deep structure of incentives and disincentives... about how people are actually going to behave’ whereas the latter does not.^[40] To put it simply, the influence of property law on land use practice and natural resource management is greater than the influence of environmental law, even where the latter explicitly prohibits certain land use practices and actions.

Fortifying the foundational logic and material effect of this distinction between the categories of property law and environmental law was the development of the notion of indefeasibility attaching to registered property rights. ‘Designed to provide a record of private property rights affecting the title to individually specified land parcels with the aim of ensuring a market for land and in turn economic stability’^[41] the land registration system may seem little more than an administrative innovation. However, its development (particularly in Australia and New Zealand where the idea of indefeasibility of title on registration is entrenched)^[42] has contributed significantly to the legal and cultural dominance of private property, and complicated and compounded the tension in the relationship between the two categories of environmental and property laws. The appeal of land title registration to the land market, particularly in an era of increasing land use regulation, is that it has entrenched the legal priority of private property interests over and above all other interests through the notion of indefeasibility. Land title registration permits if not encourages proprietors to perceive land ownership in terms of a small and limited range of registrable rights that are good against the world. For example, in their analyses of the relevant case law, Australian legal scholars Justine Bell and Sharon Christensen argue that there is ‘a public perception that if [an environmental] restriction is not registered, it is not binding, as registered title is paramount.’^[43]

Furthermore, because the multiple and various public laws that interact with private property interests are rarely capable of registration and indeed, do not derive from a single source, registration of property interests fails to fulfil its objectives in alerting the world to any and all restrictions and obligations that attach to the property including especially those which may affect its use and value. ^[44] ‘So substantial are the inroads of overriding statutes into indefeasibility of title that it is imprudent to rely solely on the Register as an accurate mirror of the registered proprietor’s title.’^[45] Even so, recent Australian judicial decisions^[46] and the amendment of s42 of the Real Property Act (New South Wales)^[47] indicate a reluctance to override the provisions of indefeasibility of registered property interests where these clash with later irreconcilable statute in that jurisdiction.^[48] Such energetic adherence to the conventional distinction between property law and environmental law, and the privileging of the former^[49] cannot but handicap environmental law ‘in doing the job it needs to do.’^[50] The outcome is that the law of land management is not only disconnected from the law of land ownership, but is, as a personal obligation (rather than attached to the right in rem), capable ‘of being circumvented by the transfer of an indefeasible title to a new owner, will fail to deliver on sustainability objectives.’^[51]

From a doctrinal perspective, the hierarchical ordering of the categories of property law and environmental law may seem ‘fundamental’^[52] despite the fact that the anthropocentric paradigm that underpins it is no longer rationally defensible, and has been long challenged by evidence that humans are dependent on the various dynamic systems of Earth. Yet from a theoretical perspective, the distinction is sufficiently beyond its utility as to warrant the proposition of alternative models of law pertaining to land and natural resources. Contemporary property theorists including Margaret Davies,^[53] David Lametti,^[54] Jennifer Nedelsky^[55] and Craig Arnold^[56] offer ‘a more complex picture where the interests of a multitude of communities as well as social obligation and environmental imperatives are part of the discourse relating to all types of resource.’^[57] It is important to recognise that the conventional categories of law and the relationship between them do currently receive rich critical attention from such property scholars whose work points consistently to the need to rethink property law and law generally in terms of connectivity and relationality. These approaches are better suited to developing the ‘adaptive capacity’ of law as an institution capable of responding effectively to ‘new knowledge’ concerning environmental and climate change.^[58]

While not addressing directly questions of environmental law and the relationship between property law and environmental law, legal scholar Jennifer Nedelsky’s theory of relationality offers an important prospect in ‘reorienting’ law’s foundational categories and concepts, especially property law. Nedelsky contends that ‘relational thinking... will promote a more respectful relation to earth’^[59] because it acknowledges the ‘fundamental inter-dependence’ embedded within ecologies.^[60] Another non-hierarchical theory of property is that of legal scholar Craig Arnold who has used the post-anthropocentric worldview as the basis for his model of property as a ‘web of interests’. Arnold identifies the category of property and its models as key to understanding ‘core sustainability problems.’

Property law, particularly as embodied in the bundle-of-rights concept, treats one right as distinct from another, even though all are interconnected in shared interests and responsibilities for stewardship of resources. It treats one property owner as distinct from another, even though ecological systems, human communities, and the impacts of individual land and water uses transcend property boundaries. It treats the public and private natures of property as conceptually distinct, even though all property is a mix of public and private characteristics. It treats the social functions of property and the ecological functions of objects of property as distinct, even though both affect one another in complex, dynamic and unpredictable ways.^[61]

Arnold’s critique of modern property law is based on concerns about its transformation of the physical world, through legal practice and land use on an industrial scale.^[62] Rather than content himself with the prospect of effective environmental governance through the implementation of environmental law to resolve problems of property law’s creation, Arnold’s theory implies the vulnerability of public interests to private interests. His work, like that of Sax, thus observes not only the interrelatedness of the categories of property and environmental laws, but also articulates the concern that property is an impediment to the implementation of environmental law, or as McDonald says, to adaptation law and policy.

The impediments to the implementation of environmental law cannot be attributed entirely to its categorical sub-ordinance to property law. Environmental law scholars have acknowledged also several characteristic features of environmental law as reasons for this, notably its complexity and dynamism.^[63] But perhaps even these can be understood as responses to the legal and cultural ubiquity of rights discourse supported by the logic of property law. Although environmental law had its origins in private law, notably tort and property law itself,^[64] today it is almost entirely a sub-category of public law; its many and multi-scalar sources including treaties, agreements, statutes, regulations, and plans. Environmental lawyers lament that one of the most ‘intractable problems faced by environmental policy-makers’ is ‘how to persuade or require private landholders to use and manage their lands in ways that are at least compatible with the interests of environmental protection.’^[65] It is generally difficult to require certain forms of land use (whether they are obligations or restrictions) on private property because, by definition, private property is underlined by the twin ideas of exclusion and alienability. ‘Indeed, environmental law is better understood as a field in which the goal of environmental protection sits in a position of constant tension with countervailing interests and values.’^[66] These taxonomic challenges combined with the increased social and scientific awareness of the long-term problems caused by unsustainable environmental practices have led governments to enact a very large number^[67] of laws (with regard to land use and environmental protections and impacts) and at a greater pace^[68] than any remotely comparable innovation in private law. In contrast, property law is concerned to fix the boundaries of legal interests or rights in land and natural resources, whereas environmental problems involve real and physical resources which do not stop at abstract legal boundaries. Consequently, environmental laws are often ‘transboundary’ and ‘multi-jurisdictional.’^[69] Environmental law is thus an extremely complex body of law: it is ‘reactive’ to political imperative and ongoing policy change^[70] and to the inherent uncertainty of scientific input.^[71] And yet despite all its complexity, the greatest challenge facing environmental law is the fact that environmental values have not been integrated into the foundational categories of modern law against which it works, and that it remains external to those categories.^[72]

The increased social demand for greater legal protection of the environment reflects the ‘changing social attitudes and responses to the environment and diminishing resources, and a wider public perception of their finite nature.’^[73] However, the development of environmental law has been accompanied by energetic and sometimes organised resistance to it. For example, in Australia, an ‘unprecedented number of restrictions and obligations on landowners in their use of the land and resources thereon, particularly in relation to land clearing, coastal development, and, more recently, building in fire prone areas’^[74] corresponds with an unprecedented level of ‘tensions between private rights associated with ownership and the public interest in sustainable management of natural resources.’^[75] These rising tensions are played out in the media and in the courtroom, with private landholders articulating their belief in the sanctity of their property rights,^[76] and have now become part of the debate about climate change and the attendant discourse of climate scepticism and anti-climate law. Australian Senator Barnaby Joyce addressed a group of farmers who had marched on Parliament House, Canberra, to demonstrate against the operation of vegetation and clearing laws on private land.

[T]he Australian people are starting to say we’ve had enough of being signed up to these agreements, where you get the kudos, or the happy clapping in Bali or some conference, but the bill goes home to working families, the bill goes home to the family farm.^[77]

Property rights discourse has long been connected with notions of liberty and independence from state intervention. Unsurprisingly, it is strongest in the United States where powerful and well-resourced lobby groups pursue legal and political avenues in defence of what they see as the erosion of property rights by environmental law.^[78] Smaller groups operate also in the United Kingdom, Canada and Australia to lobby for the priority and primacy of property rights unfettered by environmental law and/or for compensation for restrictions and obligations imposed on land use. The position advocated by these groups is to ‘stand your ground’. ‘Quite a few people have been taken to the cleaners - if they had of stood their ground they would have been in a better position today.’^[79]

Recent case law in the Australian jurisdictions of Queensland^[80] and New South Wales^[81] indicates that landholders are indeed ‘standing their ground’ as private proprietors against the environmental regulation of their property rights. The frustration of the landholders is sometimes enacted on the land itself by defiant land use and land clearing. The facts, contexts and principles of these cases vary, but they share a common theme – the tension between private rights and public interests in and over land. All of these cases are good examples of what is wrong with the taxonomy of law and why it is necessary to shift to one that is rational and sustainable. The consequences of law’s taxonomies are found not only in the intellectual and social contexts of property, but in its physical manifestation on the land itself. In most (but not all) of the cases, the public interest in land is upheld by the Court but often when it is too late – the damage to the land and its resources (including biodiversity and threatened species) is done.

Some of the environmental harms that are the consequence of the tension between rights and responsibilities in land constitute the subject of litigation that could have been ‘avoided’, contend legal scholars Justine Bell and Sharon Christensen, ‘if property rights and environmental restrictions were managed in a holistic manner.’^[82]

[T]he lack of integration between private property rights and environmental restrictions has led to fundamental misconceptions about the uses to which private land may be put by landowners. This has in turn created a barrier to sustainable management of natural resources, as landowners are not aware of environmental restrictions or do not believe that they are bound by them.^[83]

The priority of private property rights over state-regulated environmental obligations is demonstrated in arguments against the environmental regulation of, for example, vegetation clearing on private property (both in claims that such regulations effectively sterilise or ‘take’ property rights and in defence of serious breaches of such legislation). In the Australian cases of Greentree^[84] and Hudson^[85], private proprietors knowingly cleared trees and vegetation from their properties (and in the case of Greentree, dredged 100 hectares of Ramsar listed wetlands and then ploughed the newly cleared land) against environmental legislation prohibiting same, and ignoring government-issued notices and warnings delivered to them. Both Mr Greentree, and Mr and Mrs Hudson, argued that the fact of their ownership provided a sufficient basis to ignore the environmental regulation contending ‘the trees were [their] trees’^[86] to do with as they pleased. In both cases the courts issued fines and upheld the environmental law.

From an abstract perspective, environmental law arguably prevailed in these cases over the ‘misguided’^[87] defence of proprietorship to breaches of the former and the examples present no case for taxonomic reform. However, from a material perspective, the environmental damage is done precisely because of the long-standing priority of property law over environmental law and because from a legal perspective, the Register contains all legally recognisable interests in the land.^[88] Unless the public regulation of land ownership can be somehow transformed into a private ‘registrable interest’ such as a conservation covenant, it seems unable to legally require current owners to comply with the covenant, nor their successors in title and is therefore ineffective to tie land use responsibilities to land ownership. Bell and Christensen argue that rights in rem are those that fit within a very limited range of private registrable interests which obfuscates any public law method of environmental reform.^[89] Indeed, the viability of environmental law in the context of land registration seems almost accidental.^[90]

Environmental law does not and cannot overcome the principal legal mechanism that has fostered the development of the growth economy and thereby encouraged, supported and even rewarded environmental degradation – property.^[91] ‘The same engines are still generating the same developmental incentives that we had before the age of what is called modern environmental law.’^[92] Indeed, as regulatory theorists contend, markets themselves have now become ‘important national, regional and global regulators.’^[93] Thus, what is needed is reform at the systemic level of taxonomy because it is here that the institutional causes of the problem remain intact.^[94] The following section contends that law’s taxonomy plays a key role in reproducing the problems of the status quo.

2.2 The Durability and Reform of Legal Categories

International and comparative law scholar Ugo Mattei argues that the ‘aging’ of a legal taxonomy ‘calls for its replacement.’^[95] The investment of a society in the stability and certainty of its laws gives rise to its attachment to law’s categories and their reproduction. The formalisation of law’s categories into an enduring structure ‘enables you to confer on practices that constancy which ensures calculability and predictability over and above individual variations and temporal fluctuations.’^[96] This is certainly necessary for a land market in a growth economy. Indeed, adherence to the current law’s taxonomy is clearly attributable to the appeal of certainty for the marketplace^[97] rather than to its functionality in regard to environmental sustainability. However, if we accept that law is structured according to the goals and values of society, and we accept also that those goals and values can change, then it becomes possible to question the durability or ‘aging’ of current categories, and perhaps also call for their replacement.

Peter Birks contended that the durability of the taxonomy of law was inextricably linked to its logic. ‘A sound taxonomy, together with a keen sense of its importance, constant suspicion of its possible inaccuracy and vigorous debate on its improvement, is an essential precondition of rationality.’^[98] While this author agrees with the idea that there is a connection between the rationality and durability of law, this article does not engage with the established and long-standing debate about the taxonomy of law in terms of Birks’s ‘taxonomical project.’^[99] That project, as Dan Priel has argued, has been principally concerned to immunise private law from the influence of the research and theories of legal and non-legal scholars through its emphasis on doctrinal analysis.^[100] The separation of public law and private law at the heart of law’s taxonomy argued by private lawyers to be somehow a ‘fundamental, conceptual, distinction, one that is true beyond time and place’^[101] is ‘more manufactured than natural’ by lawyers seeking to ‘mould private law in a particular fashion’ ^[102] – namely into a ‘shield’^[103] protecting private law from the ‘pursuit of collective goals’^[104] through legislation. Climate law scholars and regulatory theorists have increasingly pointed to the inaccuracy of the public/private distinction to describe law’s current operation.^[105] As Geoffrey Samuel has argued, ‘that we need a new way of thinking is beyond question,’^[106] however, where Birks restricted his critique of the taxonomy of law to legal rationality; the critique of the taxonomy of law in this paper concerns the broader social functionality of law as an institution capable of regulating sustainable people-place relations, particularly in regard to land.

The current taxonomy of law which treats rights in land as particular to a sub-discipline (property law) that is separate and different in origin and nature to the sub-discipline of law that regulates restrictions and obligations concerning land use (environmental law) may meet Birks’s precondition of legal rationality, but it does so at a price that is too high for the environment and thus, for ourselves. Even if students, teachers and practitioners of that law understand, or at least, accept the reasons for the separation, they do not necessarily recognise its importance in wider issues. They do not seem to suspect its contingency nor debate its improvement. ‘Judges, practitioners, and even jurists grow so accustomed to (law’s) rituals that they do not see how deeply weird they are.’^[107] Birks is right to say that: ‘(w)ithout good taxonomy and a vigorous taxonomic debate the law loses its rational integrity.’^[108] Indeed, it is precisely the rationality and integrity of land law that is undermined by its separation into two different legal categories: property and environmental laws. The problem, viewed from this perspective, can be regarded as a crisis of the law’s categories.

The durability of the current taxonomy of law is not only a question of its logic and legitimacy, but also of its practical effect. The fragmentation of land law into separate rights and responsibilities found in disparate sources across a range of jurisdictional levels creates difficulties for landowners to locate and conform to relevant laws and gives rise to litigation based in part on non-conformance through both genuine ignorance and arguably principled objection.^[109] There is a need to provide landowners as both private rights holders and members of ‘the public’ with the coherence, consistency and authority of an integrated land law that is not provided by law’s dated categories.^[110] There is a need also to rethink the categories of law relating to land and natural resources generally. The difficult but ultimately only effective means by which to achieve the objectives of environmental sustainability is to address the institutional barriers to it. The current taxonomy of law is one of these barriers, thus it is important to reconsider both the relationships between its categories, and the categories themselves. What would an environmentally sustainable legal system look like?^[111] What would be its categories? It is time for us as law teachers to undertake a review of the cradle of legal practice – the law school.

3. The Role of Legal Education

3.1 Disciplines, Categories and the Taxonomic Crisis

The great ecological issues of our time have to do in one way or another with our failure to see things in their entirety. That failure occurs when minds are taught to think in boxes and not taught to transcend those boxes or to question overly much how they fit with other boxes.^[112]

For over two decades, legal scholars have observed a kind of intellectual insularity embraced and reproduced within legal education. First, there is adherence to the convention of disciplinary boundaries (not particular to the discipline of law) including a reluctance ‘to engage with other disciplines.’^[113] Against this, William Twining argued that ‘neither legal education nor legal scholarship can afford to be self-contained’ and that there is intellectual and practical merit in recognising ‘the continuities between law as a subject of study and other disciplines and between law as practice and other practical activities.’^[114] Second, there is often an unchallenged acceptance of the separation of law’s sub-disciplines with a corresponding failure to connect them.^[115] ‘We categorise and subcategorise law to our students, creating matroshka dolls of legal concepts; we divide study into hierarchies with division of labour.’^[116] This feature of legal education is a ‘barrier to adaptation’ because it encourages law students to think in terms of law’s taxonomy: limiting their opportunity to develop ‘integrative thinking’^[117] skills through drawing connections between law and non-law disciplinary knowledge, as well as between law’s sub-disciplines. One solution to this, as Jane Holder has recently argued, is to extend the ‘law in action’ and ‘law in context’ trends borne of critiques of the ‘abstract and narrow nature of some legal education’ to consider ‘how law interacts with and impacts upon the natural world in a physical manner.’^[118]

In this paper, I have argued that the separation of rights to land from responsibilities for land into separate legal categories obscures the necessary connection between them in both an abstract, intellectual as well as a physical, environmental sense. Legal education reproduces this separation. The sub-disciplines of property law and environmental law are not taught together and most often, the latter is an elective subject of study in students’ degrees, so that graduates may remain unaware of their interaction unless they choose to study environmental law. This situation is a consequence of a taxonomy whose origins preceded the existence of environmental law as a legal and scholastic category. The taxonomy was created at a time when the law was deeply anthropocentric and facilitative of the rise of industrialisation and a growth-based economy with its attendant political and economic philosophies of liberalism and capitalism. Although today the appeal and logic of the growth economy may be diminishing, and although the regulatory landscape is no longer limited by the private/public distinction at the heart of law’s taxonomy, that taxonomy has not changed, and neither has the law school curriculum. The categories of law remain deeply anthropocentric and to that extent, in the face of scientific evidence indicating the need to situate ourselves, as a species, within rather than outside and above the world, it can be argued that law’s taxonomy is inadequate to respond to changing demands of law and governance systems. Indeed, the present taxonomy of law is perpetuating the conditions of the crisis. ‘Many believe that our present educational structures are less appropriately geared to meeting the needs of the future than to reinforcing the destructive characteristics of our current age.’^[119]

Scholars of education,^[120] law^[121] and the environment^[122] have noted that one of the keys to moving beyond our current environmental crisis is to recognise and address the problems caused by the fragmentation of knowledge and information systems. Universities create and reproduce knowledge through their system of disciplines, which facilitates the specialisation of expertise into disciplinary and sub-disciplinary fields of research and teaching. The systems of the Earth however, are integrated. ‘While many forms of ‘modern’ knowledge tend toward specialisation, the scope of the environment seems to compel an interdisciplinary, comprehensive focus.’^[123] What this means for law teachers is that we have an opportunity to reform legal education in three ways.

First, by recognising, researching and teaching the links between law and non-law disciplines with regard to environmental decision-making. ‘In universities and colleges, the development of sustainability expertise has tended to be the remit of the environmental and life sciences faculties, with scant attention given to the need to develop professionals from other specialisms.’^[124] Environmental problems are never solely problems of soil, atmosphere, hydrosphere and so on – they are problems of attitudes, decisions, economies and laws.^[125] The Chief Judge of the Land and Environment Court of New South Wales, observed (extra-curially) that environmental problems ‘are polycentric and multidisciplinary’^[126] and that consequently, ‘[j]udges need to be educated about and attuned to environmental issues... they need to be environmentally literate.’^[127] Translating this into the content of core subjects within the law curriculum is not as challenging as it might first seem.

Take for example a significant case in Australian constitutional law, the Tasmanian Dam Case.^[128] The High Court issued a Statement in advance of its decision in the case, clarifying its necessary and emphatic disengagement with questions concerning the environmental issues associated with the litigation and the outcome of its decision.^[129] The ‘strictly legal question’^[130] whether the Commonwealth regulations and statute were within its constitutional power does not necessarily exclude however, in the context of law’s classroom, attention to the substantial environmental consequences (beneficial, in this case) of the decision, and more broadly of constitutional law itself, not least with regard to the implementation of international environmental law. Including extra-legal considerations in teaching this case might involve questions of multi-scalar politics (including ongoing questions of Indigenous property and heritage in a post-colonial state, local, state and federal electoral politics, the rise of the ‘Green’ movement etc); economic paradigms (for example, growth economy, development and industrialisation, cost-benefit v triple-bottom-line methodologies); the physical sciences (including hydrology, energy, forestry, biodiversity and climate change); and the role of media, journalism and the arts (photography and music) in the development of the dispute itself. An approach that includes attention to one or more of the non-law aspects of the decision (or legislation) encourages students of law to develop an awareness of the ‘polycentric and multidiscplinary’^[131] complexity of cases concerning the environment, even where (if not especially where) those cases do not explicitly raise questions of land use (such as constitutional law). In so doing, it provides students with an opportunity to develop their ‘environmental literacy’^[132] without studying a quarantined subject concerning the environment or environmental law. There is no risk in such an approach to legal education, only potential gain in understanding law in its multi-disciplinary context and in understanding the agency of law in anthropogenic environmental change, regardless of whether it is intentional or consequential change. Other cases offering similar opportunities include Newcrest^[133] and Lucas^[134] both of which connect constitutional law and property law to environmental issues. Teaching these cases through an exploration of their geographical contexts would be highly conducive to the development of polycentric and critical thinking about law.

The second way that law teachers can reform legal education is by connecting the categories of law so that students can see law as a whole integrated system rather than as a sum of unrelated parts. Property law, for example, is taught as a creature of private law notwithstanding the contrivance of the private-public dichotomy, and notwithstanding the increasing interaction of private property law with public environmental law.^[135] Environmental law scholars have noted that effective environmental law scholarship and practice requires proficiency not only in environmental law itself but in combining the many sub-disciplines of law.^[136] Birks expressed his similar concern for the competence of law graduates generally once schooled into thinking about the categories of law as disaggregated parts:

If it is true that young lawyers are getting stuck in single categories, the cause is the complete neglect of taxonomy by the law schools. They are not teaching how the categories of the syllabus fit together. Only those who have discussed the relation between categories can move confidently from one to another.^[137]

Teaching corporations law, for example, with selective use of cases that intersect with pollution law, international trade law and green criminology, where relevant can enhance a students’ grasp of the connections between those sub-disciplines of law and ensure their appreciation of the multiscalar dimensions of law.

A third way that teachers can reform legal education is to consider, again, the place of environmental law within the law curriculum. Should environmental law be a separate subject at all? Can it be incorporated into each and every other subject (core and elective) that touches on the many and various aspects of environmental law and policy? Should it be part of the ‘core’ of law’s taxonomy or simply an elective, senior or junior?^[138] At most law schools, property law is a compulsory subject, but environmental law is not. This mode of delivery reflects and reproduces the hierarchical ordering of legal categories. ‘While courses on environmental law have been a standard offering on many programmes for years, the significance of sustainability to the rest of the law curriculum was not always easy for non-environmental lawyers to grasp, let alone accept.’^[139] This suggests that regardless of whether students are required to study environmental law or whether they elect to study it, the mere fact of its connection to other core law subjects is currently neglected in the syllabi of the core subjects themselves. Environmental law scholar Klaus Bosselman goes further, however, critiquing the ‘very existence of environmental law as a distinct subject area’ as ‘proof of the fact that sustainability values have not found their way into the legal system.’^[140]

3.2 Things, Rights and Symbols – the Problem with Property Law

This section explores property law as a specific example of how legal education promotes an unsustainable status quo. Property law is identified by its teachers, theorists and practitioners as being a ‘mystifying,’^[141] ‘dauntingly difficult and intellectually demanding’^[142] subject comprising a ‘tortuous and ungodly jumble’^[143] of ‘anachronistic grammar’^[144]and ‘archaic maxims’^[145] that ultimately define property as ‘meaningless.’^[146] Its ‘claims to intellectual coherence are quite spurious.’^[147] Swiftly following the announcement that real property is a hard subject, property law textbooks and lecturers ‘disabuse’^[148] students of any ‘unreflective and naïve’^[149] ideas of property, such as those held by ‘ordinary non-lawyers,’^[150] that property is a real or physical ‘thing’ such as land, water, plants or carbon for example. To the contrary, students are informed that the fundamental prerequisite to understanding real property law is to ‘un-learn previous notions’^[151] that property is about physical things. In this way, the pedagogy of property law begins, and indeed exists only through, the absenting of the physical realm from law. Gregory Alexander argues that

many property teachers would probably consider one of the principal objectives of their course to be just this transformation of consciousness; and so if property is perceived as unintegrated the problem is partially of the teacher’s own making.^[152]

In other words, the seeming incoherence of property that can initially challenge students is caused precisely by their grasp of the abstraction, fragmentation and competition^[153] between interests in land rather than by any misunderstanding. Real property law is not about ‘things’, it is about ‘persons’, or more accurately, inter-personal relations.^[154] The concept of property works by excluding or abstracting the physical specificity of ‘things’ so that they no longer matter and the legal analysis can focus on the relativity of competing abstract rights. Modern property law is thus essentially an intellectual exercise in what has been referred to as ‘dephysicalisation’. Dephysicalisation describes the gradual socio-legal process whereby the environment, or more technically the abstract ‘thing’ (such as land), became excluded from the property relation that had hitherto regulated legal relations between persons and things, but which now regulated only legal relations between persons. ^[155] Consequently, land and natural resources are regarded by modern law, at least within the ‘fundamental’ and ‘basic’ category of private property law, as no more than an irrelevant ‘thing’. As Bernard Rudden observed:

There has been a profound if little discussed evolution by which the concepts originally devised for real property have been detached from their original object, only to survive and flourish as a means of handling abstract value. The feudal calculus lives and breeds, but its habitat is wealth not land.^[156]

The abstraction or dephysicalisation of property into a discourse of rights between persons with respect to a fungible ‘thing’, rather than between persons and things, obscures the fact that the ‘thing’ is the actual and non-fungible condition of human existence. Legal education normalises the alienation of people from place by teaching property law as a subject concerning rights and not ‘things’.

In her critique of legal education and practice, Maureen Cain argues that ‘lawyers are translators’ and that ‘they are also creators of the language into which they translate.’^[157] In other words, if property law is not about land because it is not about ‘things’ but about rights, then it is because, in part, the legal profession says it is so. Cain argues that lawyers are ‘symbol traders’^[158] – reproducing abstract categories that no longer correspond to reality and in this they show themselves to be an indifferent part of modern economic relations, trading in abstract rights like shares, futures and land. ‘Almost anything can be owned.’^[159] David Orr concludes that such intellectual abstraction and disconnection with the real, physical world indicates ‘the failure of the schools and colleges that presumed to educate them but failed to tell them what an education is for on a planet with a biosphere.’^[160] If we accept Orr’s point, that education is at least partly responsible for the reproduction of the unsustainable status quo, then it bears underlining the magnitude of that responsibility. As Thomas Kuhn has asked, ‘what alternatives’ or ‘what competence’ have students to evaluate independently the paradigm that they are taught? ^[161] He argues that students have, to a large extent, either to understand or at least accept what they are taught on the ‘authority’ of the teacher and institution itself, rather than because of any ‘evidence’ and because ‘learning them is part of learning the paradigm at the base of current practice.’^[162] The problem here of course is that if the paradigm that underpins modern law is anthropocentric, then law remains itself a major barrier to the adaptation^[163] of the modern economy towards environmental sustainability. The system of law cannot maintain its abstract categories of ‘dephysicalised’ rights and relations between persons and also be effective in any responses it may develop to environmental problems of a necessarily physical nature. ‘Sustainability requires that human social systems and property-rights regimes are adequately related to the larger ecosystems in which they are embedded.’^[164]

3.3 Sustainability Education

Sustainability is a higher-order social goal, akin to democracy, justice, the rule of law – a long term task of comprehension and institutional change.^[165]

Sustainability education is a developing category of environmental education practice and scholarship. It is principally concerned with integrating skills and knowledge specific to the achievement of a more ecologically sustainable way of living in the world. Sustainability education acknowledges the significant role played by educational institutions in the reproduction of ecologically unsustainable policies and practices, and conversely in their reform. Most accounts of sustainability education refer to its formal origins at an international level of policy development. The United Nation’s Agenda 21, an intergovernmental agreement signed at the UNCED in Rio in 1992 articulated and promoted a vision of a more environmentally sustainable future in terms of the integration of knowledge, information, environmental and economic systems. Central to Agenda 21 is a consideration of the role of education.^[166] Higher education, in particular, is rightly regarded as the cradle of several professions whose roles, collectively, shape our world. ‘It is difficult to imagine that the societal changes required to create a sustainable future will occur without assistance from higher education.’^[167]

The development of sustainability education programs and principles in higher education is driven by both public policy and private incentive. In the United Kingdom, sustainability education is a coherent and centralised policy of educational reform and innovation at all levels. At the level of higher education, all academic disciplines are encouraged to ‘embed’ concepts of environmental sustainability ‘in order that students are exposed to the concept and may begin to think about their subject in a way which is inclusive of the broader conceptual framework.’^[168] In Australia, although the States are responsible for the governance of Universities, and the Commonwealth provides funding and regulation, in practice, Universities operate autonomously in relation to an international academic profession, which means that policies pertaining to sustainability education are more complex.^[169] In addition to various actual and proposed public policy drivers, there are also external pressures on universities to develop sustainability education programs. ‘The need for innovation in the curriculum is also supported by leading thinkers in corporate sustainability.’^[170] In engineering, for example, ‘pressure for more sustainable engineering has driven the body that accredits undergraduate engineering courses to specify sustainability competence as a condition of graduation.’^[171] In the United States, incentives for incorporating sustainability into the law syllabus derive from ‘clients’ who ‘often and in response to government regulation’ have become increasingly engaged in the challenges of achieving sustainability.^[172] This rationale emphasises the role of higher education in the training and qualification of members of society’s most powerful and influential professions and industry.

If one thinks that the world can and ought to be improved, and that lawyers have a role to play in fostering the necessary climate which might enable change to be made, and if it is possible to argue that lawyers are uniquely placed in society to help develop ‘progressive’ changes, then it is incumbent on law teachers to recognise that they ought to perform a role in helping students learn to question.^[173]

However, sustainability education scholars express concern that the ‘predominant trend in higher education curriculum initiatives’ has been towards adding information content rather than developing skills which would enable students to ‘effectively enact change towards sustainability.’^[174] Learning ‘for the environment’ rather than ‘about the environment’ is, they argue, the necessary curriculum change. Developing environmental literacy and awareness of sustainability issues is different to learning to think critically and systemically, rather than atomistically. Indeed, a recurrent theme in the literature is the problem caused by the fragmentation of knowledge through formalised information structures including especially disciplines and taxonomies; and the subsequent need for the development of broader and deeper trans-disciplinary teaching, learning and research. The ideal articulated in the literature is to teach students how to think holistically about any given environmental problem.

Sustainability education is thus ultimately concerned to teach students how to think in terms of connections and integration, rather than taxonomically in terms of categories and boundaries. ‘Systemic approaches help us shift our focus and attention from “things” to processes, from static states to dynamics, and from “parts” to “wholes.”’ ^[175] No institution is outside the ‘natural world’ and therefore is dependent on its capacity to adapt to its material conditions, which are necessarily complex, dynamic and whole.

There appears to be an emerging consensus that sustainability issues cannot be sufficiently understood or addressed without a primary recognition of interrelationship, and therefore also an assumption of the need for interdisciplinary approaches. Yet typically, educational structures and practices are widely characterised by disciplinary compartmentalisation.^[176]

If we accept the desirability and rationality of a systemic approach of sustainability education, the next step is to consider how that could be manifest in legal education. Legal scholars and educators alike have noted that the law plays a key role in the ‘Means of Implementation’ of sustainable development identified in the Agenda 21 agreement.^[177] If we are mindful of the concerns and critiques of sustainability education scholars, then it seems that adding information into the law curriculum is ineffective because it would not develop skills and because it conveys implicitly a message that sustainability is yet another category of law’s taxonomy rather than a way to view the whole. ^[178] The most effective path would be to help students understand how law’s categories interact with each other and the environment, and to think critically about that interaction in terms of the hierarchical ordering of those categories and its ultimate effect. It is not necessary to develop completely new subjects, rather it is important to revise (by making explicit) the anthropocentric paradigm of law as it is structured into existing subjects, particularly the core subjects.

In the conventional law syllabus, it is not difficult to revise the core subjects to make explicit their potential links to sustainability because unsurprisingly, the laws that are most relevant to the environment are also those most relevant to wealth creation through the use and ownership of land and natural resources: property, contract, tort and administrative law.^[179] Thus, rather than direct time and energy towards the development of specialist qualifications in environmental law, sustainability education, as applied to legal education, would ideally find ways to help students learn how to connect those key areas of law and indeed, to see the need to review both their content and their interaction.^[180] A further step would be to draw the connections between law and non-law knowledge related to a single problem or case. A good example of an innovative endeavour in this regard is found in the teaching practice of American environmental law scholar William Rodgers. Instead of working through the conventional topics within an environmental law subject, Rodgers designed for his students ‘cross-disciplinary integrated seminars’ or ‘deep dives’ into environmental law through ‘unifying themes organised around such features as geography, a genus, or an ecosystem.’^[181] Departing from established topics such as water law or pollution, these ‘integrated classes’ with titles including ‘Trees’, ‘Alaska’ and ‘The Duwamish River’ help students develop their understanding of the complexity of laws pertaining to environmental issues and the necessary connectivity between law and non-law disciplines in approaching an environmental problem. Taking the example of the seminar on ‘Trees’, his colleague Michael Robinson-Dorn, remarks that Rodgers included in the topic the roles of history, culture, economics and science to ‘delve into discussions of forest health, biodiversity, endangered and threatened species, fire, invasive species, trade and climate change.’^[182] In addition to the benefits of attaching relevant lessons from non-law disciplines (‘forestry, horticulture, biology, urban design, business and philosophy’^[183]), the seminars succeeded also in integrating the various sub-disciplines of law relevant to the topic. ‘Students not only learn the traditional doctrine, but learn firsthand the gaps, overlaps, and inconsistencies in the law’s application.’^[184] This is precisely the kind of critical thinking encouraged by proponents of sustainability education, and it need not be limited to elective subjects dedicated to environmental law.

Innovative teaching practice that emphasises ‘integrative thinking’^[185] (about law and non-law disciplines and between the sub-disciplines of law itself) might seem easier to achieve in the subject of environmental law because, if it not within the ‘core’ syllabus, there may be greater flexibility in its design and delivery. Teachers of property law may lament far less opportunity (and available teaching time) to innovate. Yet it is precisely the subject of property law that offers the greatest potential in shifting away from the paradigm of anthropocentrism on which modern law is based. Indeed, given the sustained critique of property law, by scholars, practitioners, governments and landholders as a particular category of law obstructive to the objectives of environmental law – it seems an obvious place to start a program of legal educational reform and broader taxonomic improvement. Despite the enduring and widespread concerns that core subjects, including property law, have little opportunity for change, it is worth remembering that change does not necessarily require an increase in content if the objective is to help students develop skills to enhance their capacity to ‘enact change towards sustainability.’^[186] The selection of case law, the development of an assessment task and the inclusion of environmental perspectives on property law can be sufficient to convey to students the role of property rights in facilitating or retarding the adaptive capacity of law towards sustainability commitments and objectives. Indeed, given the widespread use of property rights and discourse in environmental regulation such as markets for ecosystems and environmental services, it seems important to encourage students to think of property law in terms of sustainability.

Perhaps in recognition of the legal and cultural priority of property rights, property law mechanisms including easements, restrictive covenants, leases and licences have been used to achieve environmental protection without appearing to ‘interfere with property ownership.’^[187] They have also more established applications with adverse environmental effects that are worth bringing to students’ attention. It is possible therefore to include within the existing content of property law an understanding of the ways in which property mechanisms are used to environmental effect, either consequentially (and adversely) or intentionally (for environmental protection). For example, there are important concepts, events and doctrines in property law whose historical origins include environmental effect and substantial environmental change, including the enclosure of common lands, profits a prendre and the doctrine of waste, which could be discussed in their broader environmental contexts and applications. The innovation of rolling easements in the U.S. to manage and regulate the effects of coastal erosion on private property^[188] offers students both the basic concept of the easement and its complex application to contemporary environmental problems, and could be compared with the policy of ‘planned retreat’ in Australian law^[189] to address the same problem. Leasehold can be taught through new legislation concerning the ‘greening’ of commercial leases^[190] and/or through case law on Crown leases including pastoral leases with attention to provisions concerning minimum and maximum stocking rates, which directly affect soil quality and soil erosion, vegetation and biodiversity.^[191] Mining leases and licences also offer students important lessons in the interaction between environmental and planning law and policy, property rights, the environment and climate change^[192] – and also raise the increasingly significant question of compensation for ‘compulsory acquisition’ or ‘taking’ of property.^[193] Covenants used for conservation both through government initiatives and through private agreement are also good examples of the agency of property law in environmental change and management. ^[194] Finally and most obviously, the system of land title registration offers law teachers a significant opportunity to both emphasise the purpose and operation of the register and to critique its limitations in providing a comprehensive ‘mirror’ of the state of interests in and over a specific parcel of land. Many obligations and restrictions of land use are difficult to reconcile with the concept of the indefeasibility of property rights and may not bind successive landowners. This fact alone is worthwhile bringing to the attention of students of law whose futures may well involve working towards solutions caused by this very problem.

Many commentators over a lengthy period have called for greater integration of the land registration system with the environmental and planning statutory regimes, not only to facilitate dealings with land from a practical standpoint, but also to philosophically unite the concepts of land ownership and use. This will require a resolution of the tension between a traditionally unfettered property rights regime and the public interest in all resources, whether in private or public ownership, being used sustainably.^[195]

The interaction of property and environmental laws is a well-recognised obstacle to the effective operation environmental law. Consequently, there is a need for law students to understand the relationship between these two areas of law and in particular, the way they interact.^[196]

The purpose of sustainability education is to facilitate change so that the question posed by Sax, ‘how much have the basic rules of property that we teach today... changed from what we taught forty years ago?’^[197] receives a positive answer in years to come. It is encouraging also to remember, in the words of Peter Butt, that the ‘indefeasibility of title... is a creation of statute. But it has no entrenched position. What statute giveth, statute may take away.’^[198] If the Register can change to accommodate ‘new registrable instruments, or broaden the scope of existing ones’^[199] then it is entirely possible for legal educators to lead the change by teaching ‘embryonic lawyers’^[200] the connection between the presently separated areas of law regarding land use and ownership, and by encouraging them to think critically about their interaction as legal categories. And though this change would not be uncontroversial, that does not mean it is not worth the effort, and indeed, suggests it might well be a good step towards removing barriers to adaptation and thus an effective method of reform.

4. Conclusion

Environmental education scholar David Orr argues that ‘all education is environmental education.’^[201] But legal education often excludes environmental considerations even where these are materially relevant. With the exception of environmental law, the physical environment is largely irrelevant in modern law and legal education. The legal classification of land, and indeed the ‘more-than-human’^[202] world as a ‘thing’ is indicative of an anthropocentric paradigm that is not only increasingly difficult to rationalise but to sustain as a framework through which to determine our physical relationship with our ‘more-than-human’ world. Despite significant pedagogical and philosophical differences between conventional and critical approaches to legal education, and despite very different ideologies of law itself, the thread of anthropocentrism is common to most in that land is presented principally as the ‘thing’ of property relations between ‘persons’. It is time to acknowledge that land is not a ‘thing’ and that the occasion for rethinking law’s categories has arrived – the adverse environmental effects of institutionalised anthropocentrism are evident.

The recommendations of scholarly, doctrinal and policy research into the relationship between property rights and environmental law uniformly point to the need to align the rights of ownership with the responsibilities of ownership. The reproduction of dated legal categories in the conventional law curriculum is a ‘barrier to adaptation’^[203] in the form of law reform that might otherwise achieve such alignment. Over twenty-two years ago, legal scholar Susan Bright observed that the ‘traditional approach’ to teaching law ‘is coupled with, and may be explained by, the absence of serious epistemological debate on law teaching.’^[204] The same can be said today. Law schools and law teachers have an opportunity to be instrumental in bringing about a more sustainable way of living in the world through their debate, innovation and adaptation of the existing taxonomy to one that is informed by the knowledge of the physical possibilities, limits and interrelatedness of the Earth’s systems. Legal education may open the possibility of articulating a solution to environmental problems beyond the vocabulary of ‘things’ and ‘persons’ not only through reimagining language, but by reforming the legal categories themselves to align the rights and responsibilities in land and natural resources law and governance.

If the cradle of legal thought and practice is the law school, then the question of the contribution of legal education to environmental sustainability is clear. Legal education can contribute meaningfully to the reform of law’s taxonomy and to developing the capacity of future law makers to connect and review the interaction of law’s categories relating to land. However, it is an opportunity that ought not to be postponed.

ACKNOWLEDGEMENTS

I would like to thank Kathy Bowrey, Margaret Farmer and Elizabeth Fisher for their generous, insightful and helpful comments on an earlier draft of this paper. All errors remain my own.

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^[1] Gregory Alexander, ‘History as Ideology in the basic property course’ (1986) 36 J of Legal Education, 381, 382.
^[2] David Lametti, ‘The Concept of Property: Relations through Objects of Social Wealth’ (2003) 53 U of Toronto LJ 325, 378.
^[3] Jeremy Bentham, ‘A Theory of Legislation’ [1864] in C B Macpherson (ed.) Property: Mainstream and Critical Positions (University of Toronto Press 1978) 51-52; Gerald Postema, Bentham and the Common Law Tradition (Clarendon Press 1986) 174.
^[4] Kenneth Vandevelde, ‘The New property of the Nineteenth Century: the Development of the Modern Concept of Property’ (1980) 29 Buffalo LR 325, 329.
^[5] Wesley Newcombe Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Legal Reasoning’ (1913) 23 Yale LJ16, 22 and 58.
^[6] See especially the ‘takings’ literature, for example Kevin Gray, ‘Can Environmental Regulation Constitute a Taking at Common Law?’ (2007) 24 EPLJ 161.
^[7] Nicole Graham, Lawscape: Property, Environment, Law (Routledge 2011) 160-164, 187-189.
^[8] Simon Schama, Landscape and Memory (Fontana 1995) 12.
^[9] Katie McShane, ‘Anthroponcentrism vs. Nonanthropocentrism: Why Should We Care?’ (2007) 16 Environmental Values 169-185, 170.
^[10] The definition of ‘environment’ is ‘the aggregate of surrounding things’ Macquarie Dictionary (Federation Edition 2001).
^[11] See Peter Marshall, Nature’s Web: rethinking our place on earth (Paragon 1994); Peter Hay, Main Currents in Western Environmental Thought (UNSW Press 2002).
^[12] Herman Daly and Joshua Farley, Ecological Economics: Principles and Applications (2^nd edn, Island Press 2010).
^[13] See Robert Garner, ‘Ecology and Animal Rights: Is Sovereignty Anthropocentric?’ in Laura Brace and John Hoffman (eds) Reclaiming Sovereignty (Pinter 1997); James Sterba, Justice For Here and Now (CUP 1998).
^[14] Sarah Whatmore, ‘Materialist Returns: Practising Cultural Geography in and for a More-Than-Human World’ (2006) 13 Cultural Geographies 600.
^[15] Thomas Kuhn, The Structure of the Scientific Revolutions (3^rd edn, University of Chicago Press 1996) 92.
^[16] Jan McDonald, ‘Mapping the Legal Landscape of Climate Change Adaptation’ in Tim Bonyhady, Andrew Macintosh and Jan McDonald (eds), Adaptation to Climate Change: Law and Policy (Federation Press 2010) 8.
^[17] ibid 11.
^[18] ibid 11.
^[19] ibid 11.
^[20] Sean Coyle and Karen Morrow, The Philosophical Foundations of Environmental Law: Property, Rights and Nature (Hart 2004); Joseph Sax, ‘Environmental Law Forty Years Later: Looking Back and Looking Ahead’ in Michael Jeffery, Jeremy Firestone and Karen Bubna-Litic (eds), Biodiversity Conservation, Law and Livelihoods (CUP 2008).
^[21] Todd Aagaard, ‘Environmental Law as a Legal Field: an Inquiry in Legal Taxonomy’ (2010) 95 Cornell LR 221, 273-279.
^[22] Sax (n 20) 10.
^[23] ibid 12.
^[24] ibid 10.
^[25] ibid 12. The problems raised in this article are not restricted to property law, which is only one part of the wider legal system. The scope of this article is however limited to the particular role of property law in the reproduction of law’s taxonomy in part because property is fundamental to the operation of the market which itself has become a source of regulation. John Braithwaite, Regulatory Capitalism: How it Works, Ideas for Making it Work Better (Edward Elgar 2008).
^[26] McDonald (n 16) 11.
^[27] Recent English environmental law scholarship suggests a more symbiotic relationship between property rights and environmental law exists than conventional analysis has previously recognised. Scotford and Walsh argue that ‘environmental regulation can be understood as internal to the meaning of property rights, rather than as limiting such rights’ through an ‘operative conception of property’ at play in English law. Eloise Scotford and Rachael Walsh ‘The Symbiosis of Property and English Environmental Law – Property Rights in a Public Law Context’ (2013) 76 MLR 1010, 1039.
^[28] Ugo Mattei, ‘Three Patterns of Law: Taxonomy and Change in the World’s Legal Systems’ (1997) 45 American J of Comp L 5, 5.
^[29] Sax (n 20) 12.
^[30] Samuel Alexander, ‘Property Beyond Growth: Towards a Politics of Voluntary Simplicity’ in David Grinlinton and Prue Taylor (eds), Property Rights and Sustainability: the Evolution of Property Rights to Meet Ecological Challenges (Martinus Nijhoff 2011) 117-148.
^[31] Graham, Lawscape: Property, Environment, Law (n 7) 2.
^[32] McDonald (n 16) 11.
^[33] See Coyle and Morrow (n 20); Sax (n 20); Aagaard (n 21) 263. Cf Scotford and Walsh (n 27). The relationship between property and environmental laws is determined in part by distinctive legal cultures (through, for example, the constitutional protection of property rights).
^[34] The Macquarie Dictionary (n 10).
^[35] Nicole Graham, ‘Dephysicalisation and Entitlement: Legal and Cultural Discourses of Place as Property’ in Brad Jessup and Kim Rubenstein (eds), Environmental Discourses in Public and International Law (CUP 2012) 101.
^[36] Larissa Katz, ‘Spite and Extortion: a Jurisdictional Principle of Abuse of Property Right’ (2013) 122 Yale LJ 1444, 1477.
^[37] ibid, 1475.
^[38] Lynda Butler, 1999, cited in Scotford and Walsh (n 27) 1015.
^[39] Alain Pottage and Martha Mundy, Law, Anthropology and the Constitution of the Social: Making Persons and Things (CUP 2004) 3.
^[40] Sax (n 20) 10-11.
^[41] Sharon Christensen and William Duncan, ‘Aligning Sustainability and the Torrens Register: Challenges and Recommendations for Reform’ (2012) 20 Australian Property LJ 112, 114.
^[42] Frazer v Walker [1967] AC 569; Breskvar v Wall (1971) 126 CLR 376
^[43] Justine Bell and Sharon Christensen, ‘Use of Property Rights Registers for Sustainability – A Queensland Case Study’ (2009) 17 Australian Property LJ 86, 97.
^[44] Christensen and Duncan (n 41) 123.
^[45] Peter Butt, Land Law (6^th edn, Thomson Reuters 2010) [20-118].
^[46] Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472; City of Canada Bay v Bonaccorso Pty Ltd [2007] NSWCA 351; (2007) 71 NSWLR 424.
^[47] Real Property and Conveyancing Amendment Act 2009 (NSW).
^[48] Samantha Hepburn, ‘Interpretive Strategies in the Overriding Legislation Exception to Indefeasibility’ (2010) 21Bond LR 86, 93. And see Butt (n 45) [20 118].
^[49] Hepburn (n 48) 94. See also, Patricia Lane, ‘Indefeasibility for What? Interpretive Choices in the Torrens System’ (Legal Studies Research Paper No.10/14, Sydney Law School, University of Sydney, 2010) 4-5; Brendan Edgeworth, ‘Indefeasibility and Overriding Statutes: An Attempted Solution’ (2009) 83 Australian LJ655.
^[50] Sax (n 20) 10.
^[51] Christensen and Duncan (n 41) 129.
^[52] See for example, Newcrest Mining (WA) Limited v The Commonwealth of Australia [1997] HCA 38; (1997) 190 CLR 513.
^[53] Margaret Davies, ‘Persons, Property, and Community’ (2012) 2 feminists@law < http://journals.kent.ac.uk/index.php/feministsatlaw/article/view/37. accessed 26 May 2014.
^[54] Lametti (n2).
^[55] Jennifer Nedelsky, Law’s Relations: A Relational Theory of Self, Autonomy, and Law (OUP 2011).
^[56] Craig Anthony Arnold, ‘Sustainable Webs of Interests: Property in an Interconnected Environment’ in David Grinlinton and Prue Taylor (eds), Property Rights and Sustainability: the Evolution of Property Rights to Meet Ecological Challenges (Martinus Nijhoff 2011).
^[57] Davies (n 53) 15.
^[58] McDonald (n 16) 11.
^[59] Nedelsky (n 55) 12.
^[60] ibid.
^[61] Arnold (n 56) 191-2.
^[62] Alexander (n 30) 117-148.
^[63] Elizabeth Fisher, ‘Environmental Law as Hot Law’ (2013) 25 JEL 347, 352.
^[64] See Coyle and Morrow (n 20); Ben Pontin, ‘The Common Law Clean Up of the ‘Workshop of the World’: More Realism About Nuisance Law’s Historic Environmental Achievements’ (2013) 40 JLS 173.
^[65] David Farrier, ‘The Structure and Scope of Environmental Law’ in David Farrier and Paul Stein (eds), The Environmental Law Handbook (5^th edn, Thomson Reuters 2011) 14. For a discussion of recent legal innovations promoting positive land management obligations on private landowners in England, see: Christopher Rodgers, ‘Nature’s Place? Property Rights, Property Rules and Environmental Stewardship’ (2009) 68 CLJ 550-574.
^[66] Aagaard (n 21) 263.
^[67] Justine Bell, ‘Greening the Land Title Register – How Can the Land Title Register Assist with Sustainable Decision-Making?’ (2010) 18 Australian Property LJ 263, 263; Sax (n 20) 10.
^[68] Elizabeth Fisher and others, ‘Maturity and Methodology: Starting a Debate About Environmental Law Scholarship’ (2009) 21 JEL 213, 230.
^[69] ibid 239. See also William Boyd, Douglas A Kaysar and Jeffrey J Rachlinkski, ‘Law, Environment, and the “Non-dismal” Social Sciences’ (2012) 8 Annual R of L and Social Science 183, 199.
^[70] Fisher and others (n 68).
^[71] ibid 229.
^[72] Sax (n 20) 11.
^[73] David Grinlinton, ‘Property Rights and the Environment’ (1996) 4 Australian Property LJ 41, 46. See also Boyd and others (n 69) 184.
^[74] Christensen and Duncan (n 41) 129.
^[75] ibid, 118.
^[76] Graham Lawscape: Property, Environment, Law (n 7) 170-176, 182-189.
^[77] Senator Joyce, quoted in Dan Harrison and Ben Cubby ‘Hunger Strike Drives Further Wedge into Coalition’, Sydney Morning Herald (Sydney, 5 January, 2010), <http://www.smh.com.au/national/hunger-strike-drives-further-wedge-into-coalition-20100104-lq7j.html> accessed 29 May 2014.
^[78] Laura Hatcher, ‘Green Metaphors: Language, Land and Law in Takings Debates’ in Jane Holder and Carolyn Harrison (eds) Law and Geography: Current Legal Issues Volume 5 (Oxford University Press 2003). Graham ‘Dephysicalisation and Entitlement’ (n 35) 104; Graham Lawscape: Property, Environment, Law (n 7) 169-176.
^[79] Mr John Purcell, past President of Property Rights Australia, the leading property rights lobby group in Australia, on being awarded the Medal of the Order of Australia for ‘service to primary industry, and to the community’ in June, 2012. Paul Robinson and Megan Hendry, ‘Central Queenslanders get Queen’s Birthday gongs’ (June 11, 2012) <www.abc.net.au/news/2012-06-11/central-queenslanders-get-queens-birthday-gongs/4063618?section=qld> accessed 26 May 2014.
^[80] Burns v Queensland and Croton [2004] QSC 434; Bone v Mothershaw [2002] QCA 120; [2003] 2 Qd R 600; Dore v Queensland [2004] QDC 364.
^[81] Minister for the Environment and Heritage v Greentree (No.2) [2004] FCA 741; [2004] 138 FCR 198; Director-General of the Department of Environment and Climate Change v Hudson (2009) 165 LGERA 256; City of Canada Bay v Bonaccorso Pty Ltd [2007] NSWCA 351; (2007) 71 NSWLR 424.
^[82] Bell and Christensen (n43) 97.
^[83] ibid 99.
^[84] Minister for the Environment and Heritage v Greentree (No.2) [2004] FCA 741; [2004] 138 FCR 198.
^[85] Director-General of the Department of Environment and Climate Change v Hudson (2009) 165 LGERA 256.
^[86] ibid, 260.
^[87] ibid, 272.
^[88] Real Property Act 1900 (NSW) s31B.
^[89] Bell and Christensen (n 43) 89.
^[90] Christensen and Duncan (n 41) 114.
^[91] John Dernbach, ‘The Essential and Growing Role of Legal Education in Achieving Sustainability’ (2011) 60 Jof Legal Education, 491.
^[92] Sax (n 20) 11.
^[93] Braithwaite (n 25) 29.
^[94] Stephen Dovers, ‘Institutions for Sustainability’ (2001) 7 Tela 11.
^[95] Mattei (n 28).
^[96] Pierre Bourdieu, ‘Codification’ in In Other Words: Essays Towards A Reflexive Sociology (Matthew Adamson tr, Polity Press 1990) 76.
^[97] Geoffrey Keogh and Éamonn D’ Arcy, ‘Property Market Efficiency: An Institutional Economics Perspective’ (1999) 36 Urban Studies 2041, 2049; Robert Nozick, Anarchy, State and Utopia ( Blackwell 1974); Margaret Thornton, Privatising the Public University: the Case of Law (Routledge 2012) 40, 65, 72.
^[98] Peter Birks, ‘Equity in Modern Law: an Exercise in Taxonomy’ (1996) 26 Western Australian LR 1, 4.
^[99] Joachim Dietrich, ‘What is ‘Lawyering’? The Challenge of Taxonomy’ (2006) 65 CLJ 549, 550.
^[100] Dan Priel, ‘The Political Origins of English Private Law’ (2013) 40 JLS 481, 500.
^[101] ibid 490.
^[102] ibid 491.
^[103] ibid 504.
^[104] ibid 505.
^[105] Lee Godden and others, ‘Law, Governance and Risk: Deconstructing the Public-Private Divide in Climate Change Adaptation’ [2013] UNSWLawJl 11; (2013) 36 UNSW LJ 224.
^[106] Geoffrey Samuel, ‘English Private Law: Old and New Thinking in the Taxonomy Debate’ (2004) 24 OJLS 335, 361.
^[107] Bernard Rudden, ‘Things as Things and Things as Wealth’ (1994) 14 OJLS 81.
^[108] Birks (n 98) 22. While it could be argued that Birks’ emphasis on rationality suggests a coherence that might exclude polycentric and integrative/transdisciplinary thinking, Birks himself argues the need to teach the relatedness of things. This article considers polycentric and integrative/transdisciplinary thinking as consistent with (legal) rationality.
^[109] Christensen and Duncan (n 41); Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118.
^[110] Dovers, ‘Institutions for Sustainability’ (n 94) 11.
^[111] ibid 12.
^[112] David Orr, Earth in Mind: On Education, Environment and the Human Prospect (Island Press 2004) 94-5.
^[113] Fiona Cownie, Legal Academics: Culture and Identities (Hart 2004) 66-67.
^[114] William Twining, Blackstone’s Tower: the English Law School (Sweet & Maxwell,1994). Cf Richard Collier, ‘We’re All Socio-Legal Now? Legal Education, Scholarship and the ‘Global Knowledge Economy’ – Reflections on the UK Experience’ (2004) 26 Sydney LR 503, 523.
^[115] Jane Holder, ‘Identifying Points of Contact and Engagement between Legal and Environmental Education’ (2013) 40 JLS 541, 545.
^[116] Paul Maharg, Transforming Legal Education (Ashgate 2007) 4.
^[117] Stephen Dovers, ‘Clarifying the Imperative of Integration Research for Sustainable Environmental Management’ (2005) 1 J of Research Practice 1, 1.
^[118] Holder (n 115) 546 (and also 552, 560, 566). See also Nicole Graham, ‘Owning the Earth’ in Peter Burdon (ed), Exploring Wild Law: the Philosophy of Earth Jurisprudence (Wakefield Press 2011) 266-267.
^[119] Martin Haigh, ‘Greening the University Curriculum: Appraising an International Movement’ in Brian Chalkley, Martin Haigh and David Higgitt (eds), Education for Sustainable Development: Papers in Honour of the United Nations Decade of Education for Sustainable Development (2005-2014) (Routledge 2009) 26.
^[120] Orr (n 112) 11.
^[121] Klaus Bosselmann, The Principle of Sustainability: Transforming Law and Governance (Ashgate 2008) 13. Boyd and others (n 69) 193.
^[122] Stephen Dovers ‘Can Environmental History Engage with Policy’ ‘Forum: Can Environmental History Save the World?’ (2008) 5 History Australia 3.3; Dovers, ‘Clarifying the Imperative of Integration Research’ (n 117).
^[123] Lee Godden and Pat Dale, ‘Interdisciplinary Teaching in Law and Environmental Science: Jurisprudence and Environment’ (2000) 11 Legal Education R 239, 251.
^[124] Daniella Tilbury and others, A National Review of Environmental Education and its Contribution to Sustainability in Australia: Further and Higher Education (2005) 17, http://aries.mq.edu.au/projects/national_review/ accessed 27 May 2014.
^[125] Haigh (n 119) 32.
^[126] Brian Preston, ‘Benefits of Judicial Specialisation in Environmental Law: The Land and Environment Court of New South Wales as a Case Study’ (2012) 29 Pace Env LR 396, 396. See also His Honour’s application of the concept of polycentricity in land-use decision-making in Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited [2013] NSWLEC 48, [31]-[43] and [483].
^[127] ibid 425.
^[128] Commonwealth v Tasmania (1983) 158 CLR 1 (Tasmanian Dam Case).
^[129] ibid 58-59.
^[130] ibid 60 (Gibbs CJ).
^[131] Preston ‘Benefits of Judicial Specialisation in Environmental Law’ (n 126) 396.
^[132] ibid 425.
^[133] Newcrest, (n 52).
^[134] Lucas v South Carolina Coastal Council [1992] USSC 111; 505 US 1003 (1992)
^[135] Scotford and Walsh (n27); Rodgers (n 65); Christensen and Duncan (n 41).
^[136] Fisher and others (n 68) 230; Preston ‘Benefits of Judicial Specialisation in Environmental Law’ (n 126).
^[137] Birks (n 98) 7.
^[138] See Joel Mintz, ‘Teaching Environmental Law: Some Observations on Curriculum and Materials’ (1983) 33 J of Legal Education 94; Heidi Horowitz-Robertson ‘Methods for Teaching Environmental Law: Some Thoughts on Providing Access to the Environmental Law System’ (1998) 23 Columbia J of Env L 237; Michael Robinson-Dorn, ‘Teaching Environmental Law in the Era of Climate Change: a Few Whats, Whys, and Hows’ (2007) 82 Washington LR 619.
^[139] Tracey Varnava, Jason Lowther and Simon Payne, ‘Sustainability – Is It Legal? The Benefits and Challenges of Introducing Sustainability Into the Law Curriculum’ in Paula Jones, David Selby and Stephen Sterling (eds), Sustainability Education: Perspectives and Practice Across Higher Education (Earthscan 2010) 139.
^[140] Bosselmann (n 121).
^[141] Anthony O’Donnell and Richard Johnstone, Developing a Cross-Cultural Law Curriculum (Cavendish 1997) 65.
^[142] Melissa Castan and J Schultz, ‘Teaching Native Title’ (1997) 8 Legal Education R 75, 78-79.
^[143] Frank Bates, ‘Like an Unwelcome Guest: The Moral Crisis in Modern Legal Education’ (1984) 18 Law Teacher J 181, 182.
^[144] Ronnie Warrington, ‘Land Law and Legal Education: is There Any Justice or Morality in Blackacre?’ (1984) 18 The Law Teacher 77, 80.
^[145] O’Donnell and Johnstone (n 141) 16.
^[146] Kevin Gray, ‘Property in Thin Air’ (1991) 50 CLJ 252.
^[147] Warrington (n 144) 80.
^[148] Alexander (n 1) 382.
^[149] Kevin Gray and Susan Francis Gray, ‘The Idea of Property in Land’ in Susan Bright and John Dewar (eds) Land Law: Themes and Perspectives (Oxford University Press 1998) 15.
^[150] Gregory Alexander (n 1).
^[151] Castan and Schultz (n 142) 79.
^[152] Alexander (n 1) 382.
^[153] I refer here not only to the doctrinal rules of priorities between real property interest holders, but more broadly to contests between property and non-property interests in disputes over land and land use.
^[154] Gray, ‘Property in Thin Air’ (n 146).
^[155] Graham ‘Dephysicalisation and Entitlement’ (n 35) 98.
^[156] Rudden (n 107) 81-97.
^[157] Maureen Cain, ‘The Symbol Traders’ in Maureen Cain and Christine Harrington (eds) Lawyers in a Postmodern World: Translation and Transgression (Open UP 1994).
^[158] ibid.
^[159] Sax (n 20) 12.
^[160] Orr (n 112) 163.
^[161] Kuhn (n 15) 88.
^[162] ibid.
^[163] McDonald (n 16).
^[164] Robert Costanza and Carl Folke ‘The Structure and Function of Ecological Systems in Relation to Property Right Regimes’ in Susan Hanna, Carl Folke and Karl-Goran Maler (Eds) Rights to Nature: Ecological, Economic, Cultural, and Political Principles of Institutions for the Environment (Island Press 1996) 30.
^[165] Dovers ‘Can Environmental History Engage with Policy’ (n 122) 3.
^[166] United Nations Conference on Environment and Development (UNCED) (1992) Promoting Education and Public Awareness and Training: Agenda 21., http://www.unep.org/Documents.Multilingual/Default.asp?documentid=52 accessed 27 May 2014.
^[167] Haigh (n 119) 38.
^[168] Jason Lowther and Joanne Sellick, ‘Embedding Sustainable Development into Legal Education’ (2009) 7 Intl J of Humanities 11, 11. See also Holder (n 115) 554-556.
^[169] Tilbury and others (n 124) 4. The Commonwealth Government of Australia has also acknowledged the importance of incorporating sustainability into university courses for key professions including law through proposed reform of accreditation processes. Commonwealth Government of Australia, Living Sustainably: the Australian Government's National Action Plan for Education for Sustainability (2009) 23, http://www.environment.gov.au/resource/living-sustainably-australian-governments-national-action-plan-education-sustainability accessed 27 May 2014.
^[170] Tilbury and others (n 124) 16.
^[171] Anna Carew and Cynthia Mitchell, ‘Teaching Sustainability as a Contested Concept: Capitalising on Variation in Engineering Educators’ Conceptions of Environmental, Social and Economic Sustainability’ (2008) 16 J of Cleaner Production 105, 106.
^[172] Dernbach (n 91) 493.
^[173] Warrington (n 144) 87.
^[174] Tilbury and others (n 124) 14.
^[175] ibid 59.
^[176] Paula Jones, David Selby and Stephen Sterling, ‘Introduction’ in Paula Jones, David Selby and Stephen Sterling, (eds) Sustainability Education: Perspectives and Practice Across Higher Education (Routledge2010) 20-21.
^[177] Lowther and Sellick (n 168) 12.
^[178] Haigh (n 119) 32.
^[179] Grinlinton (n 73) 50-53; Thornton (n 97) 65.
^[180] Haigh (n 119) 32-33.
^[181] Robinson-Dorn (n 138) 635-637.
^[182] ibid, 635-636.
^[183] ibid.
^[184] ibid.
^[185] Dovers, ‘Clarifying the Imperative of Integration Research’ (n 117).
^[186] Tilbury and others (n 116) 14.
^[187] Grinlinton (n 73) 62.
^[188] James Titus, ‘Rising Seas, Coastal Erosion and the Takings Clause: How to Save Wetlands and Beaches Without Hurting Property Owners’ (1998) 57 Maryland LR 1279.
^[189] Zada Lipman and Robert Stokes, ‘Shifting Sands: the Implications of Climate Change and a Changing Coastline for Private Interests and Public Authorities in Relation to Waterfront Land’ (2003) 20 EPLJ 406; Tim Bonyhady, ‘Swimming in the Streets: the Beginnings of Planning for Sea Level Rise’ in Tim Bonyhady, Andrew Macintosh and Jan McDonald (eds), Adaptation to Climate Change: Law and Policy (Federation Press 2010); Nicole Graham, ‘Property and Adaptation: The Question of Coastal Erosion’ in Penny Carruthers, Sharon Mascher and Natalie Skead (eds), Property and Sustainability: Selected Essays (Lawbook Co 2011).
^[190] See especially the reporting requirements under the new ‘Green Leases’ scheme in New South Wales, Australia. See the Building Energy Efficiency Disclosure Act 2010 (NSW); and National Greenhouse and Energy Reporting Act (Cwth) 2008. See also: A. Craig Roussac and Susan Bright, ‘Improving Environmental Performance Through Innovative Commercial Leasing: an Australian Case Study’ (2012) 4 Intl J of L in the Built Environment 6; Sharon Christensen and William Duncan, ‘Green leases – Becoming a Reality’ (2010) 19 Australian Property LJ 30.
^[191] See for example: Mike Letnic, ‘Dispossession, Degradation and Extinction: Environmental History in Arid Australia’ (2000) 9 Biodiversity and Conservation, 295; Graham, Lawscape: Property, Environment, Law (n 7) 190-197.
^[192] See for example: Michael Weir and Tina Hunter, ‘Property Rights and Coal Seam Gas Extraction: the Modern Property Law Conundrum’ (2012) 2 Property LR 71.
^[193] Newcrest (n 52); Lucas (n 134). See Kevin Gray ‘Can Environmental Regulation Constitute a Taking at Common Law?’ (n 6).
^[194] Nature Conservation Trust Act 2001 (NSW) provides for the creation of conservation land covenants in New South Wales, Australia. See also Joy Williams, ‘One Acre: Devaluing Real Estate to Keep Land Priceless’ (2001) 302(1808) Harper’s Magazine 59.
^[195] Christensen and Duncan (n 41) 128.
^[196] Grinlinton (n 73) 62.
^[197] Sax (n 20) 11.
^[198] Peter Butt, ‘Editors Note’ to preface article by Brendan Edgeworth, ‘Indefeasibility and Overriding Statutes: An Attempted Solution’ (2009) 83 Australian LJ 655, 655.
^[199] Bell (n 67) 270.
^[200] Warrington (n 144) 86.
^[201] Orr (n 112) 12.
^[202] Whatmore (n 14).
^[203] McDonald (n 16) 11.
^[204] Susan Bright, ‘What, and how, should we be teaching?’ (1991) 25 The Law Teacher 11.