Graham and Shoemaker: Property Rights and Rural Power
In Property Rights and Power Across Rural Landscapes, Nicole G. Graham (University of Sydney Law School) and Jessica A. Shoemaker (University of Nebraska College of Law and co-creator of this Project) explore the relationship between legal reality and cultural experience across rural landscapes, focusing on a series of small land-use case studies from Australia and the United States. As in most English-speaking nations, the legal choices concerning property rights were used in both Australia and the United States as tools to shape and change rural landscapes. The authors focus on more recent ways that two property law features—relativity and abstractness—continue to shape rural experience.
Traditionally viewed, property law identifies an owner of an asset and then sets the terms of that owner’s rights and responsibilities concerning that asset. In other words, at its core, property is often viewed in popular discourse as creating individual islands of property rights patchworked together over a landscape. The authors point out, however, that this “absolutist” vision of property rights quickly falls apart in the real world. Inevitably, landowners create social and cultural relationships, with both ecological and economic impacts, via interactions with other landowners and non-owners. The legal ramifications of such interactions mean that the protection of property rights is often extended on relative to other rights—either the property rights of others or the priority afforded to other important rights, including public health, equality of opportunity, and freedom of movement. Simply put, the authors emphasize how property rights are fundamentally relative—and, as such, constantly subject to negotiation and renegotation.
The authors further show that legal discourse about property rights tend to impose a sense of abstractness, disconnecting legal fictions like “property estates” from the lived reality of the actual, material world. The authors assert that this tendancy toward abstraction in property law can create a vulnerability in the ongoing evolution of property institutions, leaving a vulnerability to cultural and political manipulations that can have adverse outcomes.
Utlimately, the authors explore the complex relationship between legal and cultural discourses around property rights with specific examples from both Australia and the United States.
The Australian case study shows how the “absolutist” view of property is used by the National Farmers’ Federation (NFF) in that country to direct law reform, often without relative regard for the interests of the more-than-human members of landscape ecologies and the attendant risks and harms of an anthropocentric model of property. In particular, the discussion tracks right-to-farm legislation debates and incoporates the counterveiling reality of critical loss of koala habitat. More than 71 percent of koala populations were lost in the catastrophic fire season of 2019-2020, called “Black Summer” in Australia.
The United States example compares and contrasts the objections of Indigenous communities—particularly the Standing Rock Sioux Tribe—to a proposed oil pipeline across ancestral lands and the contemporaneous protests by certain western ranchers to federal regulation of their grazing activities on public lands. These grazing disputes ultimately culminated in a violent takeover of the Malheur National Wildlife Refuge in Oregon. This case study is used to show how the recognition (or lack of recognition) of property rights is itself a product of social construction. This comparision also reveals how cultural discourses about property rights can drive legal outcomes, even when formal legal rights are not recognized.
Ultimately, both case studies illuminate how property law and property discourse make manifest power relations across rural landscapes, with both environmental and social consequences. The authors stress the need for further attention to how current cultural conceptions of absolutist and abstract property rights may undermine our collecitve ability to address the social and ecological challenges of the 21st century.
