Bentham, Stewardship, and Hydraulic Fracking: Explaining the Occupation and Ownership of Property

Aditya Kanuparthi, University of Kent

In the modern world, it is often construed that when a person owns the land, he has full rights over the property, with the owner equipped with the ability to enjoy exclusive possession, and make a profit from the property. There is however something which is seemingly lost within the realities of land ownership, which is as John Locke puts it, “Ownership of land should not amount to spoilage, as wasting its usefulness would not allow society to flourish.” This concept of spoilage points out the existence of a theory of land ownership called stewardship. According to the concept of stewardship, the land is not owned[1] but rather held by a person. The reason, which is used to justify this concept, is that, land given as private property, to ensure the effective usage of the property as far as society requires. Spoilage of land is not however limited to underusing the property but even overusing the property. In an essay written by John E.Roemer where he discusses spoilage, attributing it to how excessive fishing in a lake will ultimately lead to a decrease in the amount of fish for other fishermen. He contemplates the idea of ‘tragedy of the commons’, where oftentimes, restraint on part of the fisherman is essential to allow society as a whole to enjoy the lake.[2] In the context of land we see a similar pattern, for example with farming, underusing the land may lead to loss of fertility or degradation of the soil. Overusing the land and extensively farming also leads to eroding of the soil and as a result soil erosion occurs. On the part of the farmer, it is often the case that there is a certain amount of restraint, which they must show, to profit from the land in a long run. Stewardship considers these two aspects of land use and works in favor of society. 

Natural rights and labor theory which John Locke uses as a way to explain how land ownership came about, addresses issues regarding how a person might acquire land, by mixing labor onto something. However, it fails to address the issues raised by the reasoning behind stewardship regarding the role of the state, the need for society to show restraint, and how the state controls the land. This is even prominent in the theory set out by Jeremy Bentham. Jeremy Bentham in contrast to Locke says that property did not exist before the state. In the UK, while it is often the perception of people that they own the land, it is the crown, or Her Majesty rather who owns all the land. Rather than land ownership, the term freehold is used to describe the type of ownership which a typical landowner would have. This is supported even in the Land Registration Act of 1925, where two types of ownership were given to the British subjects; freehold and leasehold. These were introduced as a way of limiting the number of legal estates. In the Land Registration Act, 1925, it was stated that a freehold in itself means an interest in the land rather than an outright claim of ownership. When a person sold his/her property, it was the selling of that interest in exchange for monetary payment. We could through this idea of a freehold, understand that even the owners of property in the UK are stewards, holding land for the benefit of society and the crown.

The new world as they once called it, was a region occupied by the Native Americans who saw a new challenge before them, the European colonists. At first like any colony, it started off with trade, then as the Europeans saw how behind in technology and scattered as a race they were, they started buying off their lands for lesser prices until one day where they just started simply taking away their lands. Pushing them further and further until they had little or no lands.[3] The reason for this, as a Puritan minister justifies for taking the native American land for little or no payment, was that “the Indians made no use of it…but for hunting”[4]. The concept of stewardship itself ties into this declaration. The European colonizers felt that by taking away their land, they would use it appropriately and optimally. Detaching this from the immoral actions of stealing land from its occupier, but rather in view of optimization of property value, this fits perfectly within the realms of stewardship, by adhering to its defining factor, spoilage. While Native American lands were being taken and not nearly compensated for sufficiently, a Baptist minister in Rhode Island stated that “God was pleased to make ready a place prepared as an asylum….he has since wonderfully driven out and consumed the natives by his devouring judgments”. While speaking on the reason for this hostility against them, he said that they appeared to be “the least improved of the human species”.[5] This idea of them not using their lands for the English industry and the European way of life, in their minds, was enough reason to occupy their lands and dethrone them from the role of being stewards, as they were incapable of using the land effectively. 

Moving onto a more modern setting, the legislation that hints at the validity of stewardship is that of the Infrastructure Act, 2015. The legislation was introduced in the UK as a way of accelerating development. One of the controversial parts of this act remains with regards to the automatic access given to companies for hydraulic fracking[6], in instances where the access is more than 300m below the land. If we look at this legislation in light of stewardship, it can be noted that, by ensuring fracking in these areas with private property, due to the demands of society and so as not to diminish development, it would fit within the image of stewardship. Private property here would also indicate that land was being held by stewards and by the losing the very concept of exclusive possession in this instance they were not in actuality the owners of the property. This would however stand as a very one-sided interpretation without taking into consideration the environmental implications which the owners could stand behind as one of the ways to prevent this. In a case of Derbyshire Waste Ltd v Blewett[7], which surrounded the use of a former colliery as a place for waste disposal by landfill, the decision in the court of appeal was that a waste management strategy was not prepared nor was the best environmental option noted. This case was cited in the later case of R(Edwards) v Environmental Agency[8], where it was understood that it would be unrealistic for every single environmental impact to be mentioned, however, what was important was to throw light on the major concerns involved with environmental protection, making It essential for mineral planning authorities to scope the environmental statement and be aware of the relevant issues.  Considering these two cases, it is important to note that a recent matter regarding shale gas, R v North Yorkshire CC and Third Energy UK Gas Ltd[9], where judicial review was not awarded for the mineral authority’s decision to grant planning permission for a production bore-well.[10] The decision of the court in this matter may suggest that it is becoming less likelier for landowners to prevent the appropriation of their property.  Private ownership is becoming more irrelevant if we consider legislation like the infrastructure act, with exclusive possession which is the obvious counter-argument to stewardship is also infringed on. 

The difference between the instance when the native Americans were driven out of their lands and when the British government passed legislation that would infringe on the notion of private property, was that here the native Americans were under no obligation to seize territory on the precedent that they lived under the European colonizers. In contrast, while taking England into account, the civilians living under the rule and authority of the government, are required to do so, as their property was a responsibility to the British society at large. If this example of Native Americans being deprived of land on the grounds of poor stewardship should show anything, it’s that there are so many instances in history where this has happened. 

In entirety, stewardship conceptually proves to be a conundrum for private ownership, with poignant historical accounts of the Native Americans grimly depicting an example of how stewardship was relevant centuries ago. The Infrastructure Act, 2015, serves as another reminder of the state of land ownership in the UK. Freeholders depict this misconstrued understanding that as owners of the land, our property is not solely ours, our rights even in our property is limited. Stewardship thus could be recognized as an alternative understanding to property ownership, which gives people the right to hold land, while elucidating the relationship between the government and its citizens, while prioritizing the need to optimize the value of the land.


Aditya Kanuparthi is a law student at University of Kent.


Photo Credits: Ken Jack/AFP

Notes:

[1] Jeremy Bentham and H.L.A Hart, “Ch.XVI, Sect 26,” in The Collection of the Works of Jeremy Bentham: Introduction to the Principles of Morals and Legislation, ed. J H Burns (London: Oxford university Press, 1970), pp. 211

[2] John E. Roemer, “A Public Ownership Resolution of the Tragedy of the Commons,” Social Philosophy and Policy 6, no. 2 (1989): pp. 74-92, https://doi.org/10.1017/s0265052500000649.

[3] Lyons, David. “THE NEW INDIAN CLAIMS AND ORIGINAL RIGHTS TO LAND.” Social Theory and Practice 4, no. 3 (1977): 249-72. Accessed July 27, 2020. http://www.jstor.org/stable/23557725.

[4] Stoddard Solomon, An Answer to Some Cases of Conscience Respecting the Country(Boston, New-England: B. Green, 1722).

[5] John Callender and Romeo Elton, An Historical Discourse on the Civil and Religious Affairs of the Colony of Rhode-Island, third (Boston, Massachusetts: Thomas H.Webb and company , 1843).

[6] Matthew Cotton, “Fair Fracking? Ethics and Environmental Justice in United Kingdom Shale Gas Policy and Planning,” Local Environment 22, no. 2 (2016): pp. 185-202, https://doi.org/ 10.1080/13549839.2016.1186613.

[7] [2004] EWCA Civ 1508

[8] [2008] UKHL 22

[9] [2016] EWHC 3303

[10]Laura Taylor, “A Victory for the Development of Shale Gas in England?,” Fieldfisher (Fieldfisher, January 1, 1AD), https://www.fieldfisher.com/en/services/public-and-regulatory/public-regulatory- law-blog/a-victory-for-the-development-of-shale-gas-in-england.

 

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