University of Technology Sydney Law Research Series
Last Updated: 16 May 2017
Property and Place Attachment: A Legal Geographical Analysis of Biodiversity Law Reform in New South Wales.
Robyn Bartel (UNE) and Nicole Graham (UTS)
In December 2014, the NSW Government welcomed the recommendations of the Independent Biodiversity Legislation Review Panel (‘the Panel’) that it had appointed six months earlier, including a key recommendation to repeal the Native Vegetation Act 2003 NSW (‘the Act’) and replace it with a new Biodiversity Conservation Act which would transform in significant ways the law regulating, amongst other things, land clearing. The proposed law reforms have been strongly driven by the marginal yet politically significant demand of farmers to liberate land use activities on private land from regulation so far as it is possible. The farmers’ argument is based on the legal and cultural discourses of property that dephysicalise legal relations between people and place, transforming them into categories of abstract and predominantly commercial rights that foster a vocabulary of entitlement to land as a civil and political right. This paper explores the tension between land clearing law and land ownership not only through the conventional lens of the competition between private and public interests in land, but also through the concept of place attachment.
Place attachment describes the bond between people and place. It expresses not only physical and ecological dependence but also emotional and symbolic connections to place. Place attachment can be a positive indicator for environmental protection. However, it may also underpin resistance to change, sometimes referred to as ‘NIMBYism’, and the preservation of degraded environments and inappropriate place management practices, including the institution of private property itself. The relationships between property and place attachment are often overlooked in property scholarship. Conventionally, the relevant literature refers to place mostly as ‘land’ (rather than water) and in socio-political terms as ‘territory’; in economic terms, it is defined as a repository of natural resources over which rights are created and distributed, rather than as the basis of enduring people-place relationships (Keenan, 2010; 2013; Moore, 2013).
This paper reframes the association of property rights with the opposition to biodiversity conservation legislation in terms of place attachment. By focusing on the connection between the consequences of place attachment, including place–protective behaviours, this analysis of property endeavours to ‘make visible’ that which has become invisible through the predominantly dephysicalised discourse of private property rights. In doing so it offers a path for law reform that may be more socially palatable and consequently more environmentally effective. As such, the paper adds to existing contributions made by geographers to property (see for e.g. Holmes J, 2014) and legal geographers that seek to bridge the divide between academic research and public policy concerning land use and property rights (see for e.g. Robinson, 2014).
Native vegetation legislation: failure, resistance and reform
The Act is the most recent in a long line of regulatory interventions which have endeavoured to attenuate broad-scale land clearing in NSW and consequent land and water degradation, biodiversity decline and anthropogenic climate change (Bartel, 2003). Its antecedents were ambitious when introduced, requiring rural landholders to apply for permits to clear native vegetation with approval contingent on biodiversity outcomes either being maintained or improved. However, the consequent amendments and reforms have overall resulted in a weakening of the protections afforded, which have further undermined a system already suffering from administrative deficiencies (Table 1).
Biodiversity (also biological diversity) is defined as the ‘the variety and variability among organisms and the ecological complexes in which they occur’ (OTA, 1987). Globally, biodiversity is under severe threat and therefore the ecosystems services that it provides are also threatened (Secretariat of the Convention on Biological Diversity, 2010: 9). There is growing evidence that the planetary boundary (i.e. the limit of Earth’s capacity) for biodiversity decline has been exceeded (Steffen et al., 2015) and that humans are presently causing a mass extinction event of similar magnitude to those marking the geological timescale (Barnosky et al., 2011). This event has been identified as defining the onset of the Anthropocene, a period thresholded by the overwhelming influence of humanity on Earth processes (Barnosky et al., 2011; Crutzen, 2002; Crutzen and Stoermer, 2000; Steffen et al., 2015; Wilson, 2012).
The major threats to biodiversity in Australia include habitat loss through land clearance and certain land and water management practices (Australian State of the Environment Committee, 2011; Evans et al., 2011). It is uncertain to what degree the Act is currently affecting land clearance rates in NSW (Byron et al., 2014: 2) however, it is known that land clearance rates are no longer being reduced, having stalled at 23,400 ha/yr (Byron et al., 2014: 2). Furthermore, the condition or quality of the remaining native vegetation has deteriorated significantly (Byron et al., 2014: 2). Extinction rates continue to be the highest in the world with over half of the mammal species, a third of amphibian and bird species, and 14 per cent of plant species currently threatened with extinction (Byron et al., 2014: 3).
Critics of biodiversity conservation laws in NSW have identified several issues that might justify some reform. The first and arguably most significant criticism is that the biodiversity conservation laws of NSW are failing to meet their overarching objective, to conserve biodiversity – citing an increasing rate of species extinction (Dr Maureen Faruqi, NSW Greens MP quoted in Hannam, 2015a). A second criticism of the biodiversity conservation laws of NSW points to their multiple sources and complex interaction (Cosier et al., 2014). This criticism is not peculiar to biodiversity conservation laws in NSW and is recognised, together with frequent changes (referred to in the literature as ‘dynamism’) as characteristic features of, and challenges to the implementation of, environmental laws (Fisher et al., 2009; Fisher, 2013). A third and related critical view of the biodiversity conservation laws of NSW emphasises their narrow application and logical inconsistency in allocating responsibility for achieving their objectives unevenly and almost entirely on one small sector of the socio-economic community: primary industries (which accounts for less than 3% of the national GDP), while exempting the more economically significant mining and urban development industries (Cosier et al., 2014; Taylor, quoted in Hannam, 2015a). This paper does not address these three important critiques of biodiversity conservation laws in NSW, focusing instead on the fourth, complex and arguably most politically potent criticism – the impact of these laws on farmers’ interests.
Some farmers have resisted biodiversity conservation laws since the original SEPP 46 (Table 1) was introduced 20 years ago. There are three broad grounds of resistance from farmers, the most well-known of these being the private property perspective. Also known as the ‘property rights’ argument, this view equates land ownership with entitlement to its potential commercial profitability and/or compensation for potential lost income caused by the restriction and prohibition of vegetation clearing under the Act. This will be considered in the next section entitled ‘Property Rights’. The two subsequent sections, ‘Vernacular Disjuncture’ and ‘Social Distance’ address the less well-known but equally significant grounds of resistance from farmers to biodiversity conservation laws. The ‘vernacular disjuncture’ argument refers to the inappropriate fit of centralised regulations to diverse local conditions; and the ‘social distance’ argument that refers to the perceived tendency to demonise farmers and farming. This categorisation does not suggest that resistance to biodiversity conservation laws is uniform or homogenous, although it is sometimes organised through formal lobby group operation. It is important to exclude violence from the above three categories of resistance, which despite claims to have been acts of resistance to biodiversity conservation lawremain matters of criminal, rather than environmental jurisdiction(Graham, 2014b).
In response to these criticisms, and 9 months prior to the NSW state election, the then NSW Minister for the Environment, the Hon. Robert Stokes, MP, appointed the Panel to review several pieces of NSW state legislation (see Table 1) concerning biodiversity conservation in June 2014. In December 2014, the Panel presented its Final Report to the Minister making 43 recommendations for reform, ambitiously claiming to integrate and bring together opposing views on biodiversity laws.
At the outset of the Report, the Panel wrote that ‘as more than 90% of the land in NSW lies outside the public reserve system, private land conservation plays an essential role in conserving biodiversity at the state scale’ (Byron et al., 2014). Some of the most valuable recommendations encourage stronger inclusion of private landholders in the design of new processes, retreating from the ‘command and control’ approach of the current legislation which has alienated some landholders. The recommendation to integrate natural resource management within the planning system is a practical one, and could overcome current overlap and inconsistency of relevant legal sources and processes; however, this recommendation is limited to land clearance proposed by new enterprises and it also overlooks significant existing deficiencies within development control and Environmental Impact Assessment in NSW (Bartel et al., 2014). The Report recommends that existing industries should be overseen by Local Land Services (a regionally based natural resource management agency). This may, however, pose substantial risks of regulatory capture and/or complicity, particularly in the context of a long history of poor accountability, monitoring and enforcement (Bartel, 2003; Table 1).
The Panel also recommends the addition of social factors alongside the existing economic and environmental factors in decision-maker consideration of Ecologically Sustainable Development. This recommendation resembles the integrated ‘envirosocial’ conceptualization advanced by Bartel, McFarland and Hearfield (2014); though it is also one which could result in an overall imbalance in the decision-making process (and its outcomes) against environmental factors, given conventional and dominant approaches to decision-making which already privilege economic factors (Bartel et al., 2014).
The recommendation to conduct landscape-scale, rather than smaller site-scale assessments with the goal of improving or maintaining biodiversity may in fact risk biodiversity losses, as the Panel itself acknowledges (Byron et al., 2014: 7). Given these risks, it is unclear why the larger scale of assessment is recommended as a substitute for, rather than an addition to, existing smaller local-site scales of assessment. One of the measures that has been proposed to reduce the risk, ‘biodiversity offsets’, have been extensively critiqued as ecologically unviable and counter-productive to achieving the laws’ overarching aims (see for e.g. Gibbons and Lindenmayer, 2007; McKenney and Kiesecker, 2010). Such weaknesses in the proposed reforms could be exploited by those who have been resistant to earlier and existing legislation. This would be unsurprising in the context of recent political capitulation which, following a brief period of policy strengthening (including the increased statutory penalty), has seen the legislation weakened over time (Table 1). The most recent example of political capitulation in the context of marginal but vocal resistance and defiance of biodiversity conservation law in NSW has been the recent expansion of ‘self-assessable codes’. Self-assessment measures require sophisticated institutional apparatus to be effective which, absent here, render self-regulation ‘an oxymoron’ (see for e.g. Blinder, 2014: 156).
Responding to these inconsistencies and weaknesses and to the perception that the proposed reforms were in the main motivated to appease a constituency rather than achieve better biodiversity protection, critics of the Report’s recommendations and the Government’s acceptance of them contend that the reforms are explained by the political desire to ‘appease’ some ‘radical’ and ‘ill-informed’ members of regional constituencies of the Government (Hannam, 2015b). Therefore, rather than focus on specific recommendations in the Report, this paper is concerned to explore the ultimate cause of the disputes that have generated the push for reform itself: the arguments by the community against biodiversity protections, and their underpinnings.
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For well over two decades now, land clearing and native vegetation laws and policies have been the subject of political debate across Australia principally in regard to their interaction with property rights (Farrier, 1991; Productivity Commission, 2004; O’Connor, 2011). The laws were introduced by predominantly left wing state governments and demonstrate the influence of environmental lobby groups, the scientific community, and public interest in environmental protection. These laws regulate one sector of society and one contributor to the national economy more than any other – landholding farmers and primary industries. In Australian political history, the farming community has often identified strongly with the National Party (previously the Country Party) which has shared both political values and power with the right wing Liberal Party through the Liberal-National Coalition. Together, the Liberal-National Coalition embraces broadly (but not consistently) the political philosophies of liberalism, individualism and prefers the wisdom of the marketplace to command-and-control style government. These intellectual commitments also underpin the idea of private property that is central to modern growth-based economies. The connection between the historical and political origins of vegetation laws are important because they provide insight into the ways in which the arguments opposing these laws may influence the NIMBYism that may be otherwise attributed to resistance to regulations from the regulated.
Arguments against vegetation laws are frequently articulated in terms of the individualism and commercialism particular to property rights discourse which is at once cultural, economic, political and legal (Graham, 2011; O’Connor, 2011). This section explores the use of property rights discourse in arguments against vegetation laws in NSW in terms of the human-environment relations it describes and produces. The significance of analysing property rights through its legal and cultural discursive construction, rather than as doctrine, is that it treats the attendant disconnection from place as something that is sociolinguistically constructed, and which constructs or shapes particular places – rather than view property rights as a fixed reality in itself or as a permanent barrier to the implementation of biodiversity conservation laws (Di Masso et al., 2014). When landholders describe their objection to native vegetation legislation in terms of property rights, they create their own cultural and material realities of place while inferring that their argument simply mirrors a fact of property beyond their making. The agency of landholders in anthropogenic landscape change is thus both discursive and material. By insisting on the centrality of the profitability of land in the discourse of property rights, private landholders are not referring to a property regime that is an independent reality that transcends history and culture – they are reproducing a specific model of human-environment relations (which has a specific and adverse environmental history) – which they make real through both land use practice and regulatory behaviours of compliance or resistance.
Profits and Place
Private property in land has developed, in part, to facilitate profit-oriented land use practices; and in part to guarantee the freedom of property holding individuals from all competing interests in the same land and its profits. In England in 1628, the importance of the profitability of land to the idea of private property was expressed succinctly by Lord Coke when he wrote: ‘For what is land but the profits thereof?’ (Coke, 1628). To view land in such abstract terms: to conceptually separate land from ecological networks beyond human significance, and to conceptually and physically disconnect people from place (and the significance they imbued in it over generations and centuries); is precisely the mechanism through which land gradually became alienable in the transition from feudal and peasant economies to the capital economy in English history (Graham, 2011). The profound influence of English ideas of land use and ownership on the historical development of Australian land use and land ownership has meant that it is still possible, almost 400 years later, to hear Coke’s view repeated in relation to the use and value of lands in NSW notwithstanding the enormous geographical and historical differences between English and Australian landscapes. The notion that the ultimate function of private property is its commercial profitability is widespread and it is hard to overstate its significance in the resistance to biodiversity conservation laws in Australia. It is important then to consider the intellectual manoeuvres it requires in regard to place, as well as its material consequences.
The abstraction of the significance of land to the idea of private property involves a change in the perception of landscapes from locally specific places to globally commensurable profits (Robin, 2007, 186). This anthropocentric flattening of the diversity of lands and waters into commodifiable resources associated with private property has been recognised by legal scholars (Grinlinton, 1996; Coyle and Morrow, 2004; Sax, 2008; Aagaard, 2010; McDonald, 2010; Farrier, 2011; Graham, 2011), economists (Hanna et al., 1996; Daly and Farley, 2010; Alexander, 2011) and geographers (Bartel et al., 2014) as a key obstacle to the implementation of environmental law and to the adaptation to climate change. This is exemplified most clearly in the statement by the Hon. Kevin Humphries MP, (former NSW Minister for Natural Resources, Lands and Water) in regard to the impact of vegetation law on farmers when he said:
Until you put the environment on a commercial footing, it's very difficult to make the legislation real for people in rural areas. If the community wants farmers to set aside productive land... they should be paying for it (quoted in Hannam and Olding, 2014).
The point made here, that is central to the property rights argument against native vegetation legislation, is that place is significant to proprietors principally (but not necessarily exclusively) as a source of profit. The anthropocentric premise of the property rights argument in cultural discourse similarly underpins the property rights argument inlegal discourse, which refers to property as ‘dephysicalised’.
Legal discourse refers to property as dephysicalised because it succinctly describes and explains the oxymoron at the heart of modern property law – that it is not about land. Previously known as ‘land law’, modern property law no longer regulates the relationship between people and land, rather, it prescribes legal relationships between ‘persons’ with regard to their competing and relative ‘interests’ in various ‘objects’ using the language of ‘rights’ (Hohfeld, 1913). Accordingly, land law became referred to increasingly as ‘property law’ because property can be, and is, about rights over any object, real things like land or abstract things like shares – it does not matter. The point is that property law is not about any specific thing rather it is about legal rights in and of themselves (Vandevelde, 1980; Gray, 1991). British and North American legal and political philosophers since the 19th century have consequently referred to the abstractness of property, the way in which modern law ‘dephysicalises’ relations between people and things into a ‘bundle of rights’, as being fundamental to its operation (Bentham, 1864; Hohfeld, 1913; Macpherson, 1973, Vandevelde, 1980, Gray, 1991).
Importantly, the precondition of dephysicalised property in legal discourse, as with the anthropocentrism of the cultural discourse of property as profit, is an instrumentalist view of the environment as a repository of commodifiable natural resources (Macpherson, 1973; Graham, 2011; Bartel et al., 2014). Paradoxically, modern property law thus depends on but simultaneously disavows the environment. The language and discourse of property as abstract rights is vital to the veil of dephysicalisation because it maintains a focus on people and it conceals the environment on which the rights depend and over which they operate. Consequently, ‘there is a long-standing and understandable reluctance to think about property in material terms’ (Blomley, 1998, 572). It is for this reason that property rights arguments against native vegetation legislation can be understood to be arguments that disconnect people from place, because they refer to land in abstract terms of entitlement. Attachment to place in property rights arguments is attachment to the profitability of the atomised and alienable pieces of the property rather than to the place of the property in its integrity. This discursive disengagement with materiality notwithstanding an actual dependence on it, distinguishes the property rights arguments against native vegetation legislation from the other two categories of argument discussed below. It is precisely the economic interest in the exploitation of natural resources produced by and on land as private property that has led some scholars to argue that when an ‘economic interest collides with specific environmental policy measures, then place attachment might easily form the basis for anti-environmental attitudes and behaviours, such as protest or refusal to comply with environmental regulations’ (Carrus et al., 2014, 159).
Liberty and Place
The property rights argument against biodiversity conservation laws is not only based on the notion of property as profit, but also on the related notion of property as liberty. The connection between them is the political and economic freedom to control access to the profit of property. In legal terms, these notions are articulated as the twin property rights to alienate (to realise the commercial value of lands’ profits) and to exclude all others (from access to lands’ profits). The right to exclude gives rise to the prohibition against trespass and a host of related proprietary expectations at law, but it also informs the deeply possessive cultural discourse surrounding the expression: ‘my land’. Land that is ‘mine’ is not land belonging to anyone else, and at law the right to exclude is expressed as ‘the right to exclude all others’. It infers simultaneously the individualism and absolutism of property which are vigilantly maintained in cultural discourse and gives rise to its characteristic territorialism. The right to exclude is regarded as a civil right and political freedom because it legitimates an individual’s claim to control access to land (and its profits) against the claims of all others. The property right to exclude others from certain land and natural resources buffers the landholding individual from the economic needs and interests of other members of their community. This model contrasts with the common property right holder who (under conditions of both strong attachment to both place and community) is able to ‘postpone’ their self-interest and ‘act on behalf of their community or place’ (Carrus et al., 2014, 156). In cultural discourse the private property right to exclude is thought to protect the landholder from not only the interests of others in the profits of their land but also from the interests of others in the environmental values of the land manifest in land use restrictions. In cultural discourse, the right to exclude is thus regarded as absolute, but it is not the case in legal discourse.
Private property rights in Australian law have never been absolute and unfettered by other interests in land. The historical development of Anglo-Australian law involved the dispossession of Indigenous peoples and the denial of Indigenous property laws through the granting of land to settlers from the colonial power of the day. Accordingly, all title to land in Australia today (excepting the sui generis right of native title) derives from the Crown and remains subject to the ultimate power and sovereign prerogative of the Crown. Indeed, as with other common law jurisdictions, property rights are understood to exist only in relation to other competing rights and interests (Gray, 2007). The common law discourse of property in Australia differs from the civil law discourse of property in the United States. In the U.S. the right to property is a political and civil right protected by the Constitution. The characteristic libertarianism of American political discourse infuses the corresponding legal and cultural discourses of property with the notion of freedom. Private landholders in American property discourse are situated in oppositional terms to (any given) government. Within the dyadic structure of American political discourse, power is ideally balanced between the two poles of state and individual. State regulation of land use is not thought to be inappropriate unless ‘a regulation goes too far’ (Justice Holmes, 1922 cited in O’Connor 2011). The definition of ‘too far’ has varied from case to case in American jurisprudence which grapples with the relativity of a government’s right to govern with a private proprietor’s right to exclude in terms of ‘takings’. Because the cultural discourse of property rights in Australia, particularly in relation to the right to exclude and the power of government to regulate land use, is recently and increasingly influenced by the American discourse of property (Graham, 2011; O’Connor, 2011) it is important to consider the concept of takings (see Olivetti and Worsham, 2003) and its relation to place attachment.
According to property rights arguments against native vegetation laws in NSW, the laws ‘interfere’ with, and even ‘take away’ property rights (Bartel and Barclay, 2011). The conflation of private property rights with freedom from public interest ‘interference’ has been socialised and normalised, and consequently has become a powerful cultural discourse (Graham, 2011, 183; O’Connor, 2011, 54). But this does not mean that biodiversity conservation law is regarded as intrinsically inappropriate. The property rights argument neither supports nor disputes the purpose and effect of the regulation because it is not concerned with land as place. Restrictions on the clearing of native vegetation are thought to ‘interfere’ with proprietors’ rights to exclude because they create an imbalance in the imagined dyadic and polarised relation between state and individual. The imbalance, according to the property rights argument, may be corrected not through the removal of the regulation, but through removal of its effect. As the principal purpose of private property in land is the profit therein, and as the purpose of the native vegetation legislation is to restrict and prohibit land clearing which diminishes the profitability of conventional land use practices, then the correction of the interference with property rights consists in the conversion of the profitability to compensation.
In 2014, the federal Minister for Agriculture, the Hon. Barnaby Joyce MP, said that ‘people who owned a certain asset, this time trees, had it taken off them by the government without payment and it created animosity towards the government.’ The reference to ‘payment’ here raises the issue of whether the government has acquired or ‘taken’ the properties affected by the regulation. In Australian constitutional law, the compulsory acquisition of property is possible only on ‘just terms’ which are understood to mean monetary compensation. The stated willingness, indeed claimed preference of farmers who use the property rights argument against native vegetation legislation to receive monetary compensation for the land use restrictions indicates that place is irrelevant in the logic of the argument. The removal or preservation of native vegetation matters in financial terms rather than in material terms. As the property rights argument has already converted place to profit, and as profits are quantitative (rather than qualitative) it is possible to measure and substitute the loss encountered by the regulation. The source of the money is insignificant and compensation is claimed to be a suitable means by which to protect the freedom of the proprietor from the alleged lost profits that the regulation would otherwise incur.
The relevance of the dephysicalised nature of property to the protection of biodiversity is that legal and cultural discourses are unconcerned with specific aspects of various particular places. The placelessness of property creates substantial challenges for environmental laws that regulate the material aspects of land ownership. It is easier to regulate an abstract world than the real one – there is more certainty and predictability than with more complex, networked relations across a range of geographical and political scales and jurisdictions. By contrast, it is precisely the complexity and dynamism of environmental issues that environmental law is supposed to regulate (Fisher, 2009; 2013). The taxonomic separation of land law into the two areas of property rights and environmental responsibilities compounds the problem because it reduces and polarises debate about land use law reform into ‘the’ public interest against private interests, excluding the substantial role of the social sphere of human communities and the important but under-recognised needs of the non-human members of Australian life. For several years now, legal scholars have observed and critiqued the limitations and inaccuracies of the private-public taxonomy of law (Godden et al., 2013). Law’s taxonomy does not reflect or serve adequately the needs and experiences of a society more complex and dynamic than a neat public-private binary can accommodate.
Legal geographical analysis highlights the inadequacy of the private-public framework in which property is situated, recognising the links in land use and ownership between place and law. Legal geography recognises the agency of discursive constructions of property as entitlement in adverse anthropogenic landscape change (Graham, 2011), and increasing demands for flexibility to meet both geographical requirements and constraints (Bartel et al, 2013). By rejecting the individualism of the property rights argument, and considering the relationality of property (Nedelsky, 2011; Davies, 2012) within both human and non-human communities, it is possible to promote a model of property reconnected with place that may decrease the adverse effects of private property to date and even turn them around.
Property means more than the discourse of dephysicalised property rights acknowledges. This section reconsiders resistance to the Native Vegetation Act 2003 and its forebears in terms of place-protective behaviours, defined as participation and care for place, engendered by strong place attachment (Devine-Wright, 2009). The arguments opposing the Native Vegetation Act 2003 have also referred extensively to the long duration of property ownership, historic ties and connection to land, and to an appreciation of the particularity of the specific environments of properties and the need for locally-specific and place-appropriate land management practices. For example, farmer Bronwyn Petrie is quoted in Hasham (2014): ‘Our moral obligation is to care for that land, and we are being prevented [from doing so] by perverse legislation. That is leading to adverse environmental outcomes.’
Such arguments express dissatisfaction with the non-alignment of the laws in practise with local conditions, especially the undifferentiated protection of all endemic vegetation, including invasive native species, known as ‘woody weeds’ (Bartel, 2014): ‘[W}e know it’s time to thin trees when we start losing ground cover’ (Petrie quoted in Hasham, 2014)
The failure of current law to recognise and accommodate heterogeneous biophysical conditions and subsequent poor feasibility leads to significant vernacular disjunctures and epistemic distance (Kaljonen, 2006; 2009; Cosens, 2013; Bartel, 2014; Huttunen, 2015). In contrast to the dephysicalised property arguments, these arguments are material and grounded rather than abstract, being informed by vernacular (local, place-based) knowledge derived from long experience of living and relying on the land (Bartel, 2014; Huttunen, 2015). This is a relational-material arena where both place and people have agency (Bartel, 2014).
The powerful farmer lobby group, the NSW Farmers Association, have employed vernacular disjuncture arguments in their push for reforms. They have argued that the legislation has had ‘perverse outcomes for the environment’, including: soil degradation, as land already cleared was farmed more intensively (including ‘premature clearing of re-growth and more intensive rotation of paddocks); loss of biodiversity from woodland thickening (regrowth and woody weeds unable to be cleared); water inefficiencies (pivot irrigation being prevented by the presence of isolated paddock trees) and; furthermore, caused aversion to beyond compliance behaviours such as voluntary conservation of native vegetation for fears ‘it might get locked up in the future’ (Claughton, 2014). While some of these observations may be criticised as self-serving and are certainly questionable (see for e.g. Schirmir et al, 2012 regarding isolated paddock trees), there has also been scientific verification of some of these concerns, and indeed this has led to legislative amendments to cater for invasive native species (Bartel, 2014; see Table 1). Furthermore these arguments convey the importance of place connection and place relationships. They exhibit under-examined resonances with work undertaken in geography, and also environmental psychology, demonstrating the influence of place attachment on responses to external interventions in place management and land use change. Although different from the dominant property rights arguments, they nonetheless offer an opportunity for reframing and potentially transforming the conflict based on the common ground of place attachment and place protection.
Vorkinn and Reise (2001) define place attachment as ‘human bonding to a specific physical environment’. As Edney (1972, 133) describes, place attachment has psychological, behavioural and geographical consequences:
association with a physical environment produces changes both in feelings and spatial behaviour there, and changes in evaluation of the environment itself.
Place attachment has frequently been associated with environmentally friendly attitudes and behaviours (Mesch and Manor, 1998, 505, 514; Vorkinn and Riese, 2001, 250; Stedman, 2002; Manzo and Perkins, 2006; Walker and Ryan, 2008; Lewicka 2010; 2011; Lokocz et al., 2011; Raymond et al., 2011), particularly where nature bonding is high (Gosling and Williams, 2010; Raymond et al., 2010; Scannell and Gifford, 2010b). However, place attachment has also been related to resistance to impositions that alter places to which people are attached, irrespective of the ‘objective’ merits or otherwise of the changes proposed or made (Cantrill and Senecah, 2001; Vorkinn and Reise, 2001; Bonaiuto et al., 2002; Devine-Wright, 2005; 2009, 2011; Manzo and Perkins, 2006; Drenthen 2009; Lewicka, 2011). Resistance has been documented against energy and mining proposals (Devine-Wright, 2005, 2009, 2011, 2013; Devine-Wright and Howes, 2010; Sherval and Hardiman, 2014; Turton, 2015); national parks (Bonaiuto et al, 2002; Carrus et al, 2005; 2009; Holmes, G., 2014); urban consolidation (Ruming et al, 2012); river restoration and biodiversity protection (Drenthen, 2009); organic and alternative farming (Egoz et al., 2006) and measures to address climate change (Gifford, 2013; 2015). Perversity is again evident in attachment to and preservation of degraded environments (see for e.g. Monbiot, 2013; Seddon, 1997, 70). Reactionary resistance has also been associated with social movements (Oslender, 2004) and to NIMBYism, which has itself been reframed, from a pejorative, to describe place-protective behaviour (Devine-Wright, 2005, 2009, 2013; McClymont and O’Hare, 2008; Johnson and Scicchitano, 2012).
Deploying this lens, many land use conflicts may be viewed as expressions of ‘place protective’ behaviour which arise through strong place attachment and locally specific views on how places should change (or not) over time (Manzo and Perkins, 2006, 337; Devine-Wright, 2011, 337;). According to Kyle, Mowen and Tarrant (2004, 452):
it is the bonds that humans share with places and meanings they ascribe to these places that are the root of many of the issues confronting resource management (e.g. conflict between stakeholders over the appropriate use and management of settings).
Resistance to native vegetation regulation may be similarly analysed as a type of place protective behaviour, linked to place attachment.
Place attachment bears similarities to the concepts of ‘topophilia’ (Tuan, 1974, and also ‘biophilia’ see Wilson, 1984) and ‘belonging’ (Vorkinn and Reise, 2001). Like these phenomena, it is multi-faceted (Low and Altman, 1992). Scanell and Gifford (2010a) have described it as comprising the equally complex constructs of person, place and the psychological process of attachment, while in a conceptually similar but alternative framework Raymond, Brown and Weber (2010) have depicted it as overlapping domains of place identity and dependence, as well as emotional bonding to nature and friends and family.
Place identity refers to ‘dimensions of self, such as the mixture of feelings about specific physical settings and symbolic connections to place that define who we are’ (Raymond et al., 2010, 422). This may be particularly strong for the identity of farmers, which is linked to geographical and social distance from urban political centres and services, and also hence including self-reliance and independence (Gray, 1999; Holmes and Day, 1995; Bartel and Barclay, 2011; Pruitt, 2014; Watson, 2014 see also Leopold, 1939).
Place dependence ‘refers to the functional or goal-directed connections to a setting; for example, it reflects the degree to which the physical setting provides conditions to support an intended use’ (Raymond et al., 2010, 423). Place dependence also reflects our biological, economic and ecological dependence on our environments.
Place attachment has been occasionally related to property (Keenan, 2010; Graham, 2011; Moore, 2013); to identity and belonging (Keenan, 2013); to social belonging (Berry, 2009) and social identity (Larsen, 2004); to territoriality (Taylor et al., 1985 ADD BRIGHENTI); to material possession (Kleine and Baker, 2004); and to territory (Elden, 2010, 811; Bryan, 2012). The most relevant studies to this analysis are those on the relationship between farming and place attachment (Cheshire et al., 2013; Gray, 1999), AND BETWEEN property and territory (Soja, 1971; Elden, 2010; BLOMLEY 2015 PROGRESS HG) and territoriality (Sack, 1983). Escobar describes territory as ‘spaces of life’; providing a ‘place-based framework linking history, culture, environment, and social life’ (Escobar 2008, 62; in Bryan, 2012). Sack (1983, 55) in his seminal article defined territoriality as:
the attempt to affect, influence, or control actions and interactions (of people, things, and relationships) by asserting and attempting to enforce control over a geographic area.
Sack’s conceptualisation differs from legal and defence-oriented concepts of territoriality such as jurisdiction (see Taylor, 1995; Delaney, 2005; Elden, 2010; Bryan, 2012; Faludi, 2013; Kuykendall, 2014). Edney (1972) describes territoriality as related to past experience of place, as well as expectation of future connection, but which does not necessarily involve ownership. Territoriality may be communicated and affected through informal (Sack, 1983; Turner et al., 2013) and formal (Turner et al., 2013) norms. Emotional connections are important and decommodification apparent (Kleine and Baker, 2004). These emotional and symbolic facets, alongside behaviours including control of access and use, may also be described as ‘place protective’. Examined in this light, property ownership and place attachment may also be related (see also Sinatra and Murphy, 1999). Indeed, place attachment may be the common antecedent of various property regimes, as well as of current day property-rights arguments. Through opening up this question of the relation between place attachment and private property, we may be able to re-interpret some of the opposition to the Native Vegetation Act 2003 as place-protective, from rights-based to decommodified (Kleine and Baker, 2004), from de-physicalised to re-physicalised (Graham, 2011). Furthermore, establishing common ground between property rights and place protective behaviours may be a critical first step in resolving the conflict. Common ground may be achieved through recognising the importance of physical environments to people, and the importance of place connection and people’s care for places. This offers significant potential, notwithstanding that this care may be in practice maladaptive or sub-optimal, or apparently contradictory (such as in the agrarian ‘tidiness’ ethic exhibited in Britain, see Burton, 2004; New Zealand, see Egoz et al, 2006; the U.S., see Nassauer, 1995; and Australia, see Watson, 2014). As Gray (1999: 440) has observed of Scottish hill farmers we can: ‘distinguish between, on the one hand, the more rationalized space of fields and the commoditized sheep raised in them, and, on the other hand, the wild but meaningful hills and the sheep living on them.’ Farming is ‘more than an economically motivated activity’ it is a ‘special, sensual and intimate attachment people feel’ (Gray, 1999 see also Burton, 2004).
In addition to ‘property rights’ arguments farmers have also articulated clearly their own interests in healthy environments both in terms of, and also beyond, the view of property as profit. The Chair of the NSW Farmers Association's Conservation and Resource Management Committee, Mitchell Clapham, has said that ‘genuine farmers are interested in landscape in the long term to hand on to the next generation in a better condition than when they started’ (Lowrey, 2015). The abstract binary framework that separates public and private interests is unhelpful to law reform and policy implementation because it masks the shared and simultaneous interests of farmers and the broader community in agricultural enterprise, native vegetation conservation and healthy environments. Resolving the ongoing conflict around native vegetation legislation cannot arise through repeating and reproducing this framework. Instead, competing values and motivations might be more fruitfully considered in terms of a ‘structural coupling’ (Teubner, 1998, 457).
There are synergies between agricultural land use and native vegetation conservation, based on common commitments to environmentally beneficial activities (Burdon, 2015, 130). Law reforms based on duty of care (Shepheard and Martin, 2009; Earl et al., 2010) and environmental stewardship (Ahnstrom et al., 2008; Trigger et al., 2010; Gill, 2015) may have greater resonance with farmers than current regimes which effect social distance through positioning farmers as ‘environmental vandals’, and ‘criminals’ (Lowe and Ward, 1997; Witt et al., 2009; Bartel and Barclay, 2011; 2015). NSW Farmers Association spokesperson Cameron Rowntree has disputed sugesstions that farmers are ‘destroying the landscape’ (Hasham, 2014) and President of the NSW Farmers Association, Fiona Simson has claimed that farmers are:
responsible custodians of our land who have a direct interest in looking after the environmental values of the landscape (Makim, 2014).
The validation and inclusion of vernacular knowledge-holders such as farmers in law development and reform, through participatory processes, in addition to scientific knowledge, may ensure greater success, through reducing social distance and including relevant facts which are applicable to local environmental management (Reed, 2008; Bartel, 2014). Public participation has been recommended for both its substantive and procedural benefits (Larsen, 2004; Reed, 2008; O’Gorman, 2012). However caution may also be warranted. Local property based perspectives and disagreements may be further examples of the ‘general/concrete’ distinction described by Castro (2012, 116) in which resistors to legislation express agreement with the environmental objectives of laws in general, but simultaneously provide reasons against their application to particular locales, especially those directly affecting themselves. Bartel (2014) has also observed that ‘farmers may agree with environmental objectives overall but protest their application in specific circumstances.’ This may be due to ambivalence (Castro, 2012, 111), or be a strategic approach (Lane, 2003; Taylor, 2010), disingenuous, or alternatively (or additionally) seen as due to scale misalignment, social and epistemic distance, and a top/down disjuncture (Bartel, 2014; Holmes G, 2014, 3). This also needs to be addressed, because according to Sack (1983, 62-63):
The territorial component in complex organizations can have a momentum of its own, on the one hand increasing the need for hierarchy and bureaucracy and on the other diminishing their effectiveness.
Sack (1983) concluded that such an approach would be mistaken, identifying that over-reach of control could ‘backfire’ and lead to resistance and alienation. Sack contends that in these circumstances resistance is a behavioural outcome of territoriality. He cites Merton’s (1957) analysis of this ‘displacement’ as the:
malevolent side to bureaucracy. An emphasis on strict formal procedures, discipline, and rules leaves officials with the view that adherence to formal procedures is an end in itself.
It is a dephysicalised, dehumanised and distancing response (see also Relph, 1981, 104). Reconnection is required, between all sides of the debate, as well as between people and place. Place attachment offers one way for this connection to be recognised: a connection which acknowledges both place agency and the agency of people in place (see for e.g. Convery et al., 2005, 101). It is widely recognized, even where farming is (as often in Australia) heavily industrialized and primarily production-orientated, farmers possess a strong sense of place attachment and are tied intimately to their land, their choices reflecting emotional attachments in addition to so-called rational economic considerations (Cheshire et al., 2013), and which are aimed at ‘nurturing rather than business success’ (Burton, 2004, 203). However place-based, vernacular knowledges are absent from native vegetation law (Bartel, 2014) and from property law (Graham, 2011). More significantly, place and place-based knowledge is irrelevant to law in broader, paradigmatic terms (Bartel, 2014), even as it is produced by law (Graham, 2011, 184). Legal systems, including but not limited to property and environmental laws, need to recognise their existing place connections, and how these may have perverse consequences, including damage to places at local scales and also biodiversity decline and environmental insecurity globally. Dephysicalised property law has produced current industrial-scale agricultural land and land uses, which have also decimated biodiversity and degraded land and water (Graham, 2011, 184). A legal geographic perspective can foreground this, as well as the agency of degraded places in making evident their degradation, and therefore the pressing need for law reform.
This paper does not advocate the reification of vernacular knowledge or place attachment, nor advance a neo-environmental determinist view of law. On the contrary, while place attachment is a possible path to understanding and alternative approaches, it is not without risks. Place attachment, may be parochial and conservative. Where local interests and identities are perceived to be affected detrimentally conflict will likely result (Bonaiuto et al., 2002; Carrus et al., 2005; 2009; Hernández et al., 2010). Place attachment, recalling Raymond and others’ (2010) conceptualisation as including place identity, may also encompass, in the rural context especially, distrust of government (Pruitt, 2014) borne of and compounded by geographical, social and epistemic distance (Bartel and Barclay, 2011; Bartel, 2014).
The risks of a place attachment approach, and human ‘environmental short-sightedness’ (Vlek and Steg, 2007, 8), more broadly warrants brief consideration. First, there is the overarching anthropocentric bias of law reform towards human interests at human scales – both temporally regarding the short term and spatially to the local environs (Vlek and Steg, 2007, 8; Bartel et al, 2014). Place attachment and property rights concerns at the local level may form the basis of a common ground, but they may also continue to drive place-protective behaviours that resist environmental laws which have longer-term and global import and relevance. Place attachment has been found to be typically stronger at medium scales than it is at either smaller or larger scales. Lewicka (2010) and Vorkinn and Reise (2001) have identified that scale and specificity is very important, with attachment to particular neighbourhood-scale places having stronger influence than attachment to larger scales such as the region, or smaller scales such as houses (see also Hidalgo and Hernández, 2001). Importantly, this may favour the landscape and property estate-level scale; while larger scales (such as global) and smaller scales bear less weight (see also Carrus et al., 2005). The recommendation of the Panel regarding the use of landscape-scale assessments also needs to be examined in this light, while ostensibly introducing an ecological focus it may also support existing human bias in the rural context.
Therefore, while place-based concerns may go beyond the local, and global requirements may be effected locally (Bonaiuto et al., 2002), local needs must be informed by the global (Wiener, 2006). Native vegetation laws should address not only local places, but also biodiversity losses across boundaries, through time and across the world. Such a process may be assisted through more rigourous engagement with the demands of geographical salience. Broader participation of voices at various scales may assist in assuring that narrower interests do not hold disproportionate sway and to address path dependency and legacy issues, as well as addressing environmental short-sightedness, towards a sense of place that is ‘progressive; not self closing and defensive, but outward looking’ (Massey, 19940). The law too needs to move beyond its anthropocentrism to accommodate also the relevant non-human interests in biodiversity conservation. This endeavour may be best achieved through a system of nested polycentric governance (see for e.g. Marshall, 2008; Guerrero et al., 2013; Bixler, 2014), which is an explicitly multi-scalar and poly-vocal participatory process (see also Rodman, 1992). Inclusion of multiple and different knowledges from different locales and scales may drive greater acceptance and justice at all scales, as well as scale-appropriate content. This need not be limited to rural areas, given the flagrant misuse of bushfire clearance exemptions in urban areas (see for e.g. Hannam, 2014; Singhal, 2014;).
We also acknowledge that while place attachment may be a route to de-commodify property (Kleine and Baker, 2004) property remains concerned primarily with human connection to, and control of place, principally through the notion of exclusive possession. These limitations to law reform indicate the need to address more comprehensively and fundamentally the law’s anthropocentrism. The property rights view, as articulated through the dominant legal and cultural discourses in Australia, has become ‘taken for granted’: there has been a vast internalization of property, territory and territoriality myths as self-evident givens (Sack, 1983; Elden, 2010; Graham, 2011: 183; Faludi, 2013). Yet these concepts and associated discourses of property are neither inevitable nor necessary consequences of place attachment (Graham, 2014a, 421; Burdon 2015). Access to resources and control of relationships can be achieved without territoriality – and territoriality is not a universal behaviour (e.g. Yembilah and Grant, 2014 Cf Gintis, 2007). We may well need to go ‘beyond territory, beyond rights’ (Bryan, 2012, 221) in the ways they are currently conceptualised to effect change, particularly due to the fundamental marginalisation of non-human nature. As Watson (2005, 256) observes:
There exists different ways of knowing what is law, for example Nunga relationships to ruwi are more complex than owning and controlling a piece of property.
Answering these questions may require a deeper questioning of anthropocentrism and the de-binarisation of human/nature interests in law (Bartel et al., 2014). Less anthropocentric, humanist, resourcist and universal ways forward may need to be sought that acknowledge our fundamental inter-relationship with the environment and embed this knowledge within the legal system (see for e.g. Preston, 2003). Rather than ‘battling’ against nature (Graham, 2011) Australia’s social economy needs to work with the environment: ‘working with the grain’ of both nature and people (see for e.g. Leopold, 1939; Day, 1998; Howden et al., 1998; Beeton and Lynch, 2012; Huttunen, 2015). It is important to note also the heterogeneity of the farming community, and while some may be characterized as ‘laggards’ there are also ‘leaders’ (see for e.g. Fenton, 2010 CHANGE TO Norton and Reid, 2013). Instead of weakening legislative provisions to remove restrictions on land clearing, it would be beneficial to work with farmers to strengthen and expand controls in the interests of both environment and long term viable land use practices.
Ongoing debate concerning native vegetation regulations must be resolved in order to move beyond perpetual regulatory failure and its effects. The dire magnitude of environmental degradation and need for measures to address the damage requires that biodiversity law reform needs to both strengthen protections and engender broader agreement. A first step to resolution involves recognising the connections between people and place, and then pursuing the benefits of environmental protection on which we ultimately depend (see for e.g. Bartel et al., 2014). Closer examination and appreciation for the material link between people and place, and the foundational importance of place to people, can be used to reframe contests around regulatory imposition, and potentially identify more sustainable outcomes.
Place attachment underpins place-protective behaviours that may be adopted with both positive and adverse outcomes for the environment. Place-protective behaviours may be inherently conservative, preserving the status quo, including practices that are actually harmful to both place and people in the longer term. However, even where place attachment is perversely underpinning resistance to native vegetation legislation, it also proffers a path toward more beneficial place protective behaviours, given shared interests in healthy environments and the dependence of people on place. Place protective behaviours derived from place attachment have founded resistance to native vegetation legislation; including property rights arguments, and disagreements about the value of vernacular knowledge and the role of farmers as environmental stewards. The latter two strands of the debate in particular may be reconsidered to support reforms that improve biodiversity protection. This is because place attachment as common ground also offers a potential solution to the contest, through recognising human-place connections more fundamentally (Burdon, 2015).
The institution of private property has been analysed here as a place–protective behavioural outcome of place attachment, but one that has also been compromised by conceptualisations of property that dephysicalise the people-place connection and aspatial consequences which have perverted it almost entirely from its more place-protective underpinnings. However, by foregrounding the latter, it may be possible to diminish the influence of dephysicalised conceptions of private property. Reform processes need to be multi-scalar and poly-vocal, so that global, non-human and other ontological perspectives may also be influential, to counter the perverse aspects of place attachment, anthropocentrism and environmental short-sightedness.
The authors thank the University of Technology Sydney Faculty of Law and the Institute of Australian Geographers for their support in facilitating discussion at the Inaugural Australian Symposium on Legal Geography that fostered this and other works appearing in this special issue. We also thank anonymous reviewers for their feedback. All errors remain our own.
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Table 1. Timeline of NSW native vegetation legislation and reviews.
Selected features and commentary
Panel concluded that current Native Vegetation Act ‘overregulates ongoing farm management practices, such as managing invasive native species, native grasslands and construction of on-farm infrastructure, and is creating an unnecessary barrier to innovation, sustainable agricultural production and efficient land management’ (p 4) and has created mistrust (p 5). Proposed new Biodiversity Conservation Act, with separate assessment of new and existing agricultural clearing activities, incorporating new clearance within development control in the planning system and existing enterprises overseen by Local Land Services. Panel acknowledges risk of “some losses of biodiversity at a site scale” (p 7), particularly as site-scale improvement or maintenance of biodiversity goal is replaced by a bioregional and state-scale goal of biodiversity conservation, but have attempted to counter with new incentives for conservation, offsets, and greater resourcing. The latter recommendations appear aspirational and critical, and the Panel states that biodiversity conservation can only be achieved “if the Government adopts the reforms recommended in this report as an integrated package” (p 7).
Self-assessable codes introduced
Codes cover invasive native species (woody weeds), isolated paddock trees, vegetation thinning. Self-assessable codes for clearance do not require permit or property vegetation plan.
Expanded areas of exempt and self-assessable clearing, including more routine agricultural management activities (‘RAMAs’)
Statutory Review of the Native Vegetation Regulation 2005
Proposed streamlining procedures and expansion of RAMAs.
Ministerial/Departmental Review of the Native Vegetation Act 2003
Found that “policy objects of the Act remain valid and there is no immediate cause for amendment” (p 9) although some deficiencies in assessment procedures, enforcement and treatment of groundcover and RAMAs were acknowledged.
Ministerial Review Committee
Recommended narrowing of RAMAs (these were later expanded instead, see above).
Found high levels of approved and legal clearing, agency accountability lax, and enforcement minimal and unsuccessful.
2004 - 14
Numerous amendments to legislation and Environmental Outcomes Assessment Methodology (‘EOAM’) and procedures, including introduction, in 2006, of streamlined process for assessment of clearance of invasive native species (woody weeds).
Clearance requires permit and property vegetation plan, applications rejected unless environmental outcomes maintained or increased, assessed through EOAM, maximum penalty raised to $1.1 million, remedial order to restore vegetation also available. Feral native species included within RAMAs.
Found increases in alleged breaches and poor monitoring of compliance and that enforcement actions were hampered by inadequate monitoring. Inadequate monitoring also blamed for failures to evaluate regulatory efficacy internally. Audit concluded that regulatory systems had been ineffective due to accountability deficiencies within lead agency, and delays in finalising the details of targets and regional vegetation plans.
Permit for clearance required unless sustainable grazing, less than 2 ha/yr or included within a very limited list of exempt agricultural activities, maximum penalty remained $110,000.
State Environment Planning Policy 46 Protection and Management of Native Vegetation Policy (‘SEPP 46’)
Introduced permit requirements for land clearance on rural land, Permit for clearance required unless less than 2 ha/yr and some very limited exempt agricultural activities (e.g. clearance for stock fodder).
Sources: NSW Audit Office, 2002; 2006; MRC, 2006; DECCW, 2009; Byron et al, 2014. An extended regulatory history is provided in Bombell and Montoya, 2014.