The political discourse of land stewardship reframed as a statutory duty
There is a tension between the idea that property rights give rise to minimal legal accountability, and alternatively that property rights holders should exercise care in the enjoyment of their rights. This tension provides a basis for a discourse about stewardship and the practical meaning of a statutory duty of care to protect the environment. The discourse of stewardship and care that ordinarily occurs at the local or national level reflects sustainable development principles advanced in international agreements. The tension created by competing understandings and expectations of property is reflected in administrative rules that seem to make stewardship a legal obligation. These new rules mask the competing meanings embodied in the language used in international environmental dialogue, but in embedding competing meanings of terms in the legal discourse they potentially sow the seeds of future conflicts. This is in part because the pursuit of expanded stewardship responsibility is occurring alongside the creation of ever-broader legally secure property rights to the environment. The tensions are given a public expression in the heated 'farmers' property right' movement, which by 2010 is becoming increasingly strident. Thus there are three parallel forms of discourse about stewardship for natural resources which interact: formalised political discourse about desired norms, spilling over from international to parliamentary contexts; the inchoate legal discourse related particularly to the implementation of instruments; and the informal political discourse of political activism. All three discourses share characteristics that would be readily identified by a student of Foucault. The symbolic meaning of the language is not shared, and contests about meaning are also contests over power. The form of the discourse is specific to the context and follows 'rules of engagement' specific to that context for discourse. In this chapter we shall consider the interaction between the two formalised discourses that demonstrate competition. The competition we observe is complex. The different contexts and the resulting expectations of the participants in the discourse result in different basic assumptions, including assumptions about the specificity of meaning to be attached to the symbolic words. A contest between world views about humans and the environment, of the type identified by Dryzek, is evident in both discourses. An important distinction between the legal and the policy contexts is that the meaning of symbols that will emerge eventually through formal legal processes will determine which of the categories within Dryzek's taxonomy will emerge as dominant in legal practice. This is a power conflict over the specific meaning to be assigned to a particular set of linguistic symbols.
Is there still an Economic Right to Water? An analysis of the intersection of rights and regulatory regimes
This policy brief addresses how the meaning and scope of farmers' economic rights to access and use water are changing through increasing emphasis on stewardship responsibilities. It outlines how regulation is increasingly seeking closer alignment of water use and stewardship by injecting public interest considerations into the legal interpretation of water rights. This has the potential to enhance the public accountability of private right holders. Market-based water resource management in England and Wales is currently being considered by the UK government as one option for further promoting water stewardship. The policy brief highlights key issues discussed during a workshop held in Oxford on 19 March 2013 that addressed the question whether it is still meaningful to talk of an economic 'right' to water in the context of increasing restrictions on water use in England and Wales. The policy brief concludes with a series of recommendations. An appropriate legal and institutional framework for delivering an integrated catchment approach must be developed in order to align water use with water stewardship. Farmers, as managers of extensive land areas, need to be part of this. Lastly, integrated catchment management needs to entail clear standards of performance for water users in order to align water use with water stewardship.
The duty of care: an ethical basis for sustainable natural resource management in farming?
Other chapters in this book have highlighted that the concept of a social licence invokes responsibilities to the community and the environment that go beyond readily specified property rights, and clearly specified legal obligations. One of the mechanisms that has evolved in an attempt to realign legal interest with social expectations of moral 'rightness' is to convert these expectations into a legal duty of care. This chapter explores the concepts that underpin this novel approach to bridging the gap between largely undefined social responsibilities and more specific legal obligations. Duty of care has been incorporated into a number of natural resource statutes in the belief that it will provide an effective tool for promoting farmers' sustainable use of natural resources, while at the same time providing greater certainty of legal obligations with less 'red tape' cost to primary producers. This broad ambition of the farming sector is linked to meeting social licence and formal legal requirements, but what is concealed are different expectations about what is meant by duty of care and what it might achieve. The expectations range from legally requiring virtuous behaviour by farmers (achievement of which may deserve to be rewarded, perhaps by improved access to resources) to expectations of minimal legal accountability (non-achievement of which may justify punishment, perhaps by denial of access). These different expectations will be explored in this chapter, beginning with a discussion of the nature of environmental responsibility in relation to farmers. We will consider how the changing nature of that responsibility is at the heart of the emergence of statutory duty of care in natural resource regulations. There is a fundamental question of whether a statutory duty of care is intended to legally enforce a minimum level of performance, or require virtuous behaviour that takes into account wider expectations about public responsibility. Both conceptualisations are argued in advocacy of a farmer's legal duty of care for the environment.
Legal and Social Expectations for a Farmer's Duty of Care
The term 'duty of care' conceals a conflict of multiple meanings and unresolved debate about norms of environmental protection for farmers. This complexity makes clear definition of its practical meaning difficult. Despite this, a statutory duty of care is used in several Australian jurisdictions to define the environmental protection responsibilities of farmers. Such generally defined statutory duties in legislation with the lofty (and equally general) goals of achieving ecologically sustainable development are likely to lead to dispute when their practical meaning needs to be defined. In the absence of direct legal precedent it is likely that a common law interpretation of a duty of care will be utilised to give clear meaning. Dispute over interpretation of statutory duties is likely since their enforcement will probably impact the proprietary or economic interests of farmers. When this occurs it is expected that courts will become involved, and a tension will be exposed between the minimum accountability of 'reasonable care' under a common law interpretation of a duty of care, and the virtuous expectations of performance embodied within the statutory duties. This thesis uses a moot court experiment to test whether a common law interpretation will by necessity be used by courts to interpret practical meaning for a poorly defined statutory duty of care for environmental protection, and to identify what this might mean for the development of statutory duties of care for the environment.
Changing Conceptions of Rights to Water? - An Eco-Socio-Legal Perspective
This article inquires into the meaning of a 'right' to water. It examines how the nature and content of such a right may be changing in the context of greater emphasis in environmental regulation on water stewardship which seeks to tackle risks of water scarcity. In the UK, for instance, water abstractions have been further regulated through the Water Act 2003 and additional reforms are proposed by the draft Water Bill HC (2013-4). The article locates its analysis in literature on the qualification of private property rights through natural resource management, and in the developing socio-legal literature on the intersection between rights and regulation. We critically engage with this literature on the basis of qualitative empirical research about how farmers in England think about a right to water. Our pilot project confirms some accounts in the literature, but questions others. We find empirical support for thinking about rights that is qualified by stewardship practices, but we suggest that conceptions of rights need to be broadened to include administrative concepts, including collective rights to water. On the basis of our data we develop an eco-socio-legal perspective that foregrounds three interpretive frames for understanding how conceptions of rights to water are generated. These are the institutional-legal framework of abstraction licensing in England and Wales, perceptions of the natural space which is governed by this legal framework, and, the economic context in which rights to water are exercised.
The Potential for Improved Water Management Using a Legal Social Contract
This review examines the proposed social contract to improve water management in the Canterbury Region of New Zealand. This contract defines expectations of resource access and use, forming a boundary of responsibility between entitlement holder and society. The type of expectations may range from community wellbeing to freedom of private interests. In effect, this creates a tension between other regarding action for resource stewardship and the freedom to self-manage a resource entitlement with minimal accountability. The tension is embedded in western liberal legal frameworks that simultaneously seek enforcement of stewardship obligations while protecting the freedom of private interests in resources. In Canterbury a collaborative resource management strategy for water, supporting a legal social contract shows the tension in practice.
The Potential for Improved Water Management Using a Legal Social Contract
The 'Environment Canterbury (Temporary Commissioners and Improved Water Management) Act 2010 (NZ)' (the ECan Act) was introduced to address concerns about the allocation, use and management of water in the Canterbury Region (NZ). The Act emerged amid increasing demands upon water resources and an interest in reform. A principle tool for achieving improvement is to adopt the Canterbury Water Management Strategy and its preference for obligations defined by a social contract. This article examines the social contract as a means to improve water management. The contract defines expectations of resource access and use, forming a boundary of responsibility between entitlement holder and society. Such reforms illustrate a tension between resource stewardship and private interests that is likely to generate conflict. In resolving such conflict, examples show that the legal framework is likely to favour the protection of private interests. This draws the effectiveness of a social contract into question. The article concludes with the version of improved water management that is likely to be favoured by the ECan Act.
Triple bottom line reporting to promote sustainability of irrigation in Australia
Irrigation development induces considerable environmental change, but the expectation has been in the past that the economic and social benefits would be greater than the environmental costs. However, public attitudes change over time from acceptance of development and exploitation to greater concern regarding environmental issues and sustainability. Recently, the irrigation industry has found it difficult to communicate to the wider populace the regional benefits of irrigation and the current activities and investment undertaken to address the environmental sustainability concerns. To address this, irrigation water supply businesses are investigating using a broader reporting structure that includes financial, environmental, and social and cultural elements. This triple bottom line, holistic approach should provide a more balanced view of water use with socio-economic benefits and environmental consequences demonstrated. It is anticipated that this approach embedded in the newly developed Irrigation Sustainability Assessment Framework will lead to a more transparent and informed debate on the sustainable use of resources between all parties.
The Multiple Meanings and Practical Problems with Making a Duty of Care Work for Stewardship in Agriculture
The common law concept of a duty of care is being extended into agriculture in some jurisdictions. However, the expression 'duty of care' hides a diversity of competing connotations. This article explains the context within which this environmental duty of care has evolved and outlines some conflicts the principle is intended to resolve and competing expectations this elicits. Statutory versions of the duty of care from natural resources and environment protection legislation are discussed, along with a consideration of the principle's operation in tort to set bounds to legal responsibilities and norms of behaviour. The article concludes that like other attempts to import useful policy concepts into legal relationships, false starts are inevitable before the promise of a duty of care approach becomes a reality.
Stewardship arrangements for water: An evaluation of reasonable use in sustainable catchment or watershed management systems
Integrated governance arrangements to implement sustainability attempt to redefine the nature of human-environment interaction and foster more environmentally and socially beneficial outcomes from the use of resources. In this chapter, stewardship is examined as a foundation for resource management arrangements that connect natural resource use with landscape ecological limits and the social wellbeing of communities. The objective of the chapter is to evaluate catchment or watershed management approaches in four case studies that define stewardship expectations regarding resource user rights and interests. The evaluation adopts a model of stewardship to interrogate and extend resource user accountability for sustainability in a defined catchment or watershed.