Landholders' right to refuse: Protecting property

Landowners may get the right to refuse entry to miners

Senator Larissa Waters has introduced a private members bill into the Senate to deal with the stand off between landowners and miners, and to stop fracking. The Landowners Right to Refuse (Gas and Coal) Bill 2015 ('Bill') seeks to achieve two aims (section 3):

• To stop hydraulic fracturing (‘fracking’) by constitutional corporations; and
• To require informed landholder consent to entry onto land for the purpose of gas and coal exploitation.

The legal issues underlying the Bill’s aims are twofold. First is the Commonwealth power to legislate for land use and mineral exploitation, both of which are a state concern. I won't be dealing with this issue here, assuming the Commonwealth's corporations power enlivens its jurisdiction.

Of interest to me is the second question, of framing rights between two interest-holders in the same land: the miner and the landholder. Miners’ rights are directly derived from the State and are an expression of the bounds of the State’s original grant of land. Therefore this second question potentially involves redistribution of the boundaries of ownership between the State and the landholder. I have made a submission to the Senate Environment and Communications Committee that focuses on the latter issue of distribution of property rights between miners and landholders, and the purpose of the Bill in terms of property. I use Queensland law to illustrate my argument.

The gift: characterising exchange within intimate relationships

 

I am presently working on chapter two of my thesis on intimate partner constructive trusts. My thesis explores the gendered nature of the law in this area, asking whether it effects a just distribution of property between spouses - through equity, not through statutory family law. In this chapter I establish that the law focuses on the parties' acquisition of the matrimonial home in a way that privileges the parties' exchange in terms of a transaction. The reason for the law's inconsistency over time in my view, is because the acquisition of the home is an aspect of a complex relational exchange. The law thus falls short of encompassing the relational aspects of property distribution.

The law's emphasis on transactions is a manifestation of market liberalism and is hardly surprising in Australian private law. However while the transactional approach may serve a purpose in a commercial market context it demonstrates the poverty of legal thinking in terms of a just property distribution within an intimate context. 

In working on chapter two of my thesis I have read Richard Titmuss' The Gift Relationship (1970). In this post I set out some early thoughts on the utility of Titmuss' work in terms of explaining distribution of finances, property and services within an intimate relationship. I note that there is a considerable literature following publication of Titmuss' work in 1970, but this post relates only to my initial reactions on reading this text.

Lady Budgets: An Explainer

Every woman's dream*

The Prime Minister, Tony Abbott, again today finds himself the subject of attention following comments on a morning TV show. Asked for his greatest achievement yet as the Minister for Women, the PM said that it was 'repealing the carbon tax'. He went on to say:

'As many of us know, women are particularly focused on the household budget and the repeal of the carbon tax means a $550 a year benefit for the average family.'

Foreign Minister Julie Bishop, who herself does not view the world through the 'prism of gender', defended the PM by saying 'women's policy is everyone's policy'. She is of course correct. We would all benefit from advancing women's interests, giving substance to formal equality, ending feminised poverty and violence against women. Except that there is one thing remarkably absent from the PM's statement and indeed the government's own policies. And that is women themselves.

The PM's statement is a clear statement of the government view that equates women's economic standing with that of the household. This is incorrect and reinforces women's dependence at a structural level.

Planning law is not property: Sea level change in Queensland

The Torres Strait is already suffering sea level rises*

Queensland's Infrastructure Minister, Jeff Seeney, has ordered a local government authority to remove from its regional plan any references to climate change induced sea level rise. The stated objective of this directive is 'to ensure residents' rights to build and develop their properties were maintained and not restricted by their local council'. The Minister confirmed that he had intervened to protect property rights.

I suggest that instead, the Minister has a confused understanding of appropriate government authority to regulate land use, thus undermining government's own legitimacy in this area. Additionally he has generated a dissonance between the real-world market practice of insurers and the ideological myth of property as dominion. In doing so he may be exposing the local authority (and state government) to liability in the future. All in the name of property.

Does his argument have foundation? Or does it simply reflect an ideological position?

Women's property - the case for ambitious change

Were they ambitious enough?

The proposal for constitutional recognition of Aboriginal and Torres Strait Islander Australians is in the news again, with Tony Abbott putting the brakes on anything that looks like a 'bill of rights'. At the moment, it's looking like a split argument as between 'minimalists' and others - just as occurred with the republic referendum all those years ago.

I've written about my own views on constitutional recognition, suggesting that a full suite of changes is necessary to achieve the goal. In this post though, I'll explore another minimalist change to rights - that of married women's property. My suggestion is that in failing to be ambitious in the change ushered in, what looks like a win only really reinforces the status quo.

Unsettled Great South Land? 'Um' indeed

Australia: settled? Unsettled?

The Prime Minister, Tony Abbott, in a speech concerning foreign investment is reported as having said 

I guess our country owes its existence to a form of foreign investment by the British government in the then unsettled or, um, scarcely settled, Great South Land.

Similarly, this week New Matilda reported on Rolf Harris' racism, noting his 2008 comments that

The attitude is that in their [ie Aboriginal peoples'] original way of life they would really wreck the surrounding countryside that they lived in and they would leave all the garbage and they would go walkabout to the next place.

Without addressing the implications of the Prime Minister's equating English acquisition of Australian territory with the benign sounding 'foreign investment', the allegation of a 'scarcely settled' land deserves correction. Like Rolf Harris' statement, it represents a misunderstanding of the nature of connection, occupation and use of land by Aboriginal and Torres Strait Islander Australians. While I cannot speak for Aboriginal and Torres Strait Islander peoples, I believe that I can point out the obvious mistake in these outdated notions.

Women's Property

The Married Women's Property Acts made a big change...but women's property remains an exception*

I have been doing some deep reflection on the progress of my thesis. I have concluded that my thesis question seems to have suffered a little from 'drift' away from my initial goal, to something that incorporated it but was perhaps a little different.

In my last iteration, I was looking at the doctrinal incoherence of constructive trusts... Indeed I was immersed in the intricacies of why across four common law jurisdictions (Australia, Canada, New Zealand and England) the law of trusts was uniform in recognising the 'intimate partner' constructive trust - and so a means of recognising women's separate property - but so diverse in the doctrine harnessed to deal with the 'problem' of women's separate property.

I've spent this last few weeks going back to basics. What was I really trying to show? My (bigger than PhD) idea is that the notion of property is itself inappropriate to deal with contemporary issues. I think property theory, in its liberal market mould, is unsuitable for our contemporary culture (copyright), for culture in its wider sense (first nations/Indigenous peoples' customary 'title') and it is most certainly unsuitable to deal with the huge issue of the environment, including of course, climate change. My PhD thesis is about the gendered nature of property and how it upholds the economic dependence of married women (married in a legal and de facto sense).

In my view, all property does is support the creation of a new market based on the idea of atomised, separated, individuals who are 'rational profit maximisers' and are in competition and unconnected with anyone else.

I'm not anti-capitalism - I agree that markets have created the circumstances for improvement in people's lives. But there must be a balance to the greed that accompanies unaccountable, unrelated, disembodied beings who exist in the eyes of the law (and economic theory).

So I have returned, in my thesis, to the roots of the question that first engaged me. I ask: is property gendered?

Here is a prezi that embodies my present thinking about how this argument might run. I'd be interested to hear your thoughts.

*image from https://ontariorealestatesource.wordpress.com/tag/women/

Normative foundations of intimate partner constructive trusts

On 5-6 December the Melbourne Law School is hosting a Trusts Conference at which I will be presenting.  Here are the speaker notes and powerpoints for my presentation.
'Distribution, Redistribution or Maintaining the Status Quo? The Normative Foundations of Intimate Partner Constructive Trusts'

Judgments concerning intimate partner constructive trusts often claim not to effect a redistribution of property as between the legal and beneficial owners. Yet despite looking at the parties’ respective contributions and the context of their relationship, the courts’ findings embody assumptions about justice and the value of labor within marriage-like relationships. Therefore in finding a constructive trust and determining the date at which it arose, it is at least arguable that the courts are themselves allocating property interests. This paper examines key Australian decisions on intimate partner constructive trusts to identify and critique possible justificatory norms on which contemporary doctrine in this area is founded.

'Invisible substances': Can we trade them? Of course we can...

Today I heard the leader of the federal opposition, Tony Abbott, describe the government's proposed change to an emissions trading scheme, as:

A market in the non-delivery of an invisible substance to no-one.

This position is not new, and Mr Abbott has for some years described carbon in terms such as an 'invisible, odourless, weightless, tasteless substance'. Regardless of the science or the economics involved in characterising carbon and the effectiveness of a carbon market per se, what interests me is the problematising of a market in an 'invisible substance'. It also surprises me in light of the law's unambiguous acceptance of intangibles as property, which supports the commodification and therefore marketisation of a host of 'invisible, odourless, weightless, tasteless'...non-substances.

Buying a book: How hard can it be?

Books as things no longer?*

The news this week that ebooks purchased from Barnes & Noble will self-destruct upon the expiry of the purchaser’s credit card, again raises the question of what exactly is an e-thing, and what are we buying.

I’ve written before about the nature of virtual goods at law, and whether they constitute property or not.  The issue here is related.

Property and Procreation: Problematising Sperm

Recently in the US, bills have been sponsored in a number of states providing for personhood for sperm.  One bill, for example, provided that ejaculating anywhere outside a woman's vagina constitutes 'an action against an unborn child'.  These bills were put up in response to legislation regulating women's reproductive rights - curtailing women's access to contraceptives and abortion.

The law in the US (and elsewhere) continues to regulate the reproductive rights of women with wide acceptance that this is appropriate.  In contrast, the 'sperm bills' are considered satirical.  It's OK to regulate women's reproductive rights, but patently ridiculous to regulate men's.

This shows that reproductive rights and regulation of gametes is obviously a complex issue for the law. (See my previous post here)

This complexity is borne out through a comparison of a recent Canadian decision (JCM v ANA), a forthcoming Canadian case (deBlois), and a 2011 Australian decision (Edwards). (I've written about this case here.)  To what extent does the law recognise rights to sperm, in terms of property; procreation; and parenting?

Businesses, boats, securities...

This recent post by Marshall Chambers looks at personal property and the issue of security interests under the new Personal Property Securities Act (Cth).  I suspect that we will hear more of this Act as it settles in.  It seems to have faced a few teething problems in terms of reliability of the register system in its first weeks of operation. It will be interesting to see if any disputes arise out of this, and how they will be resolved.

What is the ‘Truth About Marriage’?

...Right-faction powerbroker Joe De Bruyn said marriage had been the union of a man and a woman ''since the dawn of humanity''...

...The Australian Christian Lobby reacted swiftly to the resolution, saying the party - in defiance of Ms Gillard - had chosen to be on the "wrong side of truth".

(The Australian, 3 December, 2011)

These comments by Joe de Bruyn in 2011 piqued my interest.  As I’ve written here before, marriage is, in my view, an institution of the law that seeks to subjugate women.  In a related context, in my view, it is a relationship concerning property.  Yet there is a very strong notion that marriage is so much more than this.

I have no opinion on private or religious views of marriage within the context of religious practice or how one chooses to celebrate it with one’s family and friends.  My interest lies in the legal construction of this private relationship – and de Bruyn’s comments, as with all comments in the same-sex marriage debate, occur in the context of law-making.

So I’ve been doing a little reading into the context of marriage and its regulation by the law.  I’ve a long way to go in learning about this complex institution, but even a preliminary overview provides some interesting contrast to the bluster of the political debate.

Is it true that marriage has been between a man and a woman since the dawn of humanity?  If you consider this as a moral or religious question, it need not enter the legal debate.  In the context of the law, I think that this is the wrong question.  I think that the right question is: since when has the law been so certain about its role in marriage, and in what circumstances?

Is it Possible to Steal Virtual Goods?

According to media reports, a court in the Netherlands has recently upheld the conviction of a boy who stole another boy's 'virtual goods'. These are items used in an online computer game, that have no tangible form.  This raises the question of whether or not ‘virtual goods’ are property.  In the Australian context, I am inclined to think that they are not.  I think that this highlights the limitations of our system of classification of property.

 

An attempt to explain online gaming

Disclaimer: I am not a gamer myself, and therefore possibly have a fairly simplistic view of what goes on…  

The idea of virtual goods arises in online gaming.  My understanding is this.  A person writes some kind of program that allows many people to connect via the internet and play a game online.  The game involves a quest of some sort, and as a result of winning one may acquire ‘prizes’ within the context of the game.  In the online environment, these have a visual form and are used to advance in the game.  It is possible also within the context of the game to earn points that take the form of game money.  This money can likewise be used to acquire virtual goods, again in the context of the game. 

The ‘money’ and ‘goods’ in this context have no existence outside the context of the game and are created through the author’s code.  So are they property?

How the Law Constructs the Environment: The Wandoan Coal Case

The Wandoan coal case (Xstrata v Friends of the Earth [2012] QLC 013) handed down last week shows how far our property law and environmental and resource management systems need to evolve to deal effectively with contemporary and future environmental issues.

It is acknowledged that climate change is a global problem (and indeed the parties in the Wandoan coal case did not dispute the science of climate change).  It is not the first global environmental issue – acid rain and the pollution of the world’s great rivers are examples of other, earlier inter-jurisdictional environmental issues.  Unfortunately, the evolution of environmental law in Australia, as elsewhere, exists still in a political era of sovereignty and control over a nation’s own territory or in the Australian context, that of a State.  The territory does not represent anything outside the context of law.  This construction of ‘the environment’ limits the law’s ability to deal with incremental and cumulative impacts of activity within a territory, on an otherwise interconnected world.

This territorial approach to the environment is compounded by the compartmentalisation of land into differential resources each with their own regulatory regime – for example, minerals, water and vegetation.  (I have written on this before.)  This further reduces the way we think about environmental impact of human activity into a variety of policy approaches, regulatory and licensing frameworks and ultimately different procedural jurisdictions.  Therefore while the environmental impact of one project may have various effects on the environment, the law may treat each aspect of the activity under a different regime.  This is an unrealistic way to understand and deal with the environment.

The law’s construction of ‘the environment’ in terms of a series of independent resources within a boundary determined by law is illustrated by the decision in the Wandoan coal case.

Is Local, Organic Sperm the Next Big Thing?

Findlaw recently reported that the US Food and Drug Administration was seeking to stop Trent Arsenault from donating his sperm on the basis that he was in the business of manufacturing human cells. This apparently is in contravention of US regulations.  While Mr Arsenault has received no payment for his sperm donations, it was his lack of 'sexual intimacy' with any of the recipients that caused him to fall foul of the rules.

The primary concern of the charges against Mr Arsenault (in fact 'his Establishment') is that in failing to screen his sperm for certain agents, he has failed to 'provide adequate protections against the risks of communicable disease transmission'.

To those interested in the question of property in the human body, this case draws attention again to the nature of human cells and the human body itself as an object (rather than a subject) of law.  In deeming Mr Arsenault's gifts of his sperm as 'manufacture', the regulations in question suggest a categorisation of sperm as a thing outside of oneself rather than something that forms part of us (well, as part of Mr Arsenault).  As something considered under the regulations to be independent of a human, the sperm arguably then become capable of being the subject of property rights and interests - in spite of a long-term reluctance of the common law, including US law, to find a property interest in the human body (though exceptions do exist).

It is not suggested that sperm donation be free of regulation - though there does appear to be inconsistency in US regulation of sperm donation that needs to be resolved.  It is however interesting to note that the framework of regulation of 'recovery' and distribution of sperm (and other human cells) adopts the language of manufacture within an 'establishment'.  This gives the appearance of an economic enterprise, presupposing the production of goods, or personal property.  This raises questions such as: can the FDA confiscate Mr Arnault's sperm?  At what point in the 'production' process do his sperm become contraband, or unlawful?  These questions highlight the problematic nature of considering ejaculation and conception as a manufacturing process.

Some argue in favour of investing the human body with the characteristics of property, and others argue against.  In either case, any regulatory framework needs to be clear and consistent in its purpose, and to use language appropriate to the unique character of the human body and its component parts.

(The title is a reference to an article in the Daily Mail Online.)

Live Cattle Exports and Plain Cigarette Packaging: Public/Private Tensions

There are two hot issues in the twittersphere and in the Australian press at the moment that involve a similar paradox - live export of cattle from Australia and cigarette packaging.  While the latter issue has attracted the attention of libertarians, the former takes a more directly economic focus.  Both however involve an intersection between the public and the private.

The cattle industry in Australia is of course regulated in a number of ways, including in terms of animal welfare and public health.  The live export trade is trending though because of the horror attendant on footage of inhumane treatment of live animals in Indonesian abattoirs. Public outcry has resulted in the suspension of live exports to Indonesia until the welfare of cattle can be guaranteed.

While petitions have gained widespread public support, there has been criticism of the government's decision.  The mayor of Charters Towers for example, asks just how far policing of cattle treatment will go.  Similarly, the ABC reports the loss of 'real Indigenous jobs' as a result of the suspension of exports.  Both these arguments are based on economic impacts of the decision - a decision made based on public interest grounds ie animal welfare, that affect private or market based interests. 

Cigarette packaging might seem a world away from live cattle exports, but this issue shares a similar tension.

On the one hand, the Australian government's policy on smoking is based on a public health argument.  Senator Penny Wong in a radio interview identifies that tobacco companies 'market their products and what this does is remove one of the mechanisms for marketing, which is the labelling'.  Cutting smoking will in turn improve public health outcomes and reduce the cost associated with health care for smoking-related disease.

On the other hand, there are two libertarian arguments against a plain packaging policy.  The first of these rests on the right of an individual to engage in whatever behaviours they like - such as smoking.  'Who is the government to tell me not to smoke?'  The second lies in what amounts to compulsory acquisition of the intellectual property in tobacco companies' logos and packaging. 

Part of the debate about the plain labelling is uncertainty about whether it will actually work to reduce the number of smokers.  In one sense though this is a side issue to the tension between the public and the private.  So while this is a cost-benefit (economic) argument (that would require some evidence that plain packaging would result in the cost savings assumed), it is also a values-based argument. This argument goes along the lines of how much regulation of private interests do we want and expect.  Likewise, live exports represents a values-based argument: in what circumstances do we make regulatory decisions that impact on economic interests.

Perhaps what is needed is a debate about the values upon which we make decisions to regulate.  This is not simply a big government/small government issue, but rather a prioritisation of public values.  Such a debate would forestall the need for focus groups or emergency and reactive online petitions to force government action.  It would lead as well as reflect community expectations, and map a clear pathway towards good policy and clear and consistent foundations for regulation.

The Husband, his Widow, his Sperm and the Court...

A recent decision in the New South Wales Supreme Court found that Ms Edwards, the wife of a deceased man had a possessory interest in his sperm, removed after his untimely death.  The decision is interesting to property lawyers for a number of reasons.  First, it discusses at some length the nature of the interest found to vest in the applicant wife.  Secondly, it highlights the challenges involved in identifying rights in the human body, or parts of it, in favour of third parties.

The case again affirmed the turn of the (20th) century Australian decision in Doodeward v Spence, which held that there was no property in the human body unless the so called 'work and skill' exception applied:

'...when a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it...'

Doodeward v Spence is one in a long line of cases that demonstrates the courts' reluctance to find property in the human body - dead or alive - or in parts of the human body.  In one sense, the recent NSW decision does likewise.
The court identified that Ms Edwards held a right to possess her deceased husband's sperm.  The Court referred to a High Court decision:

"Property" is a comprehensive term which is used in the law to describe many different kinds of relationship between a person and a subject-matter; the term is employed to describe a range of legal and equitable estates and interests, corporeal and incorporeal. Accordingly, to characterise something as a proprietary right (and, a fortiori, a quasi-proprietary right) is not to say that it has all the indicia of other things called proprietary rights. Nor is it to say "how far or against what sort of invasions the [right] shall be protected, because the protection given to property rights varies with the nature of the right". (Citations omitted).

This wide and inclusive definition of 'property' has been identified as problematic in relation to genetic material.  A 2003 Law Reform Commission Report, for example, recommended against regarding genetic material (which would include sperm) as property.  To do so may imply its suitability for transfer sale and management.  Possession however would be appropriate.

In the Edwards case, the Court therefore had the task of identifying what kind of right might vest in the sperm.  It found that this right whether property or not, amounted only to possession.  It seems though that even this possessory right was limited.

While it was clear that Ms Edwards would seek to use the sperm for the purposes of IVF, the Court was not in a position to award possession for this purpose.  Indeed the Court was asked 'to put aside any consideration of what she might do with it as a result of such possession' - legislation in New South Wales forbids the use of gametes for IVF where the gamete provider is deceased and there is no (written) consent.

In finding even this limited possessory right, the Court had to overcome a number of obstacles in identifying Ms Edwards herself as the party entitled to that possession.  First, was it Mr Edwards who had an interest in his own sperm?  If this were the case, then the right to the sperm would vest in his administrator (Ms Edwards) as property. The Court found that he did not - he did not have an interest in his sperm before death, so he did not have one afterwards.

Secondly, applying the 'work and skill' exception to no property in the human body, did the doctors who removed the sperm post mortem have property in the sperm?  Again, the Court found that they did not.  In this case, they undertook this work on behalf of Ms Edwards and for her benefit.

Thirdly, if Ms Edwards as administrator of the estate has a 'quasi' property right to the body of the deceased, did she have 'quasi' property in the sperm?  This right is limited to possession for the purpose of burial, not for the extraction and possession of sperm from the deceased.  Ms Edwards' role as administrator though was relevant in influencing the Court's discretion as to possession of the sperm:

"Ms Edwards is the only person in whom an entitlement to property in the deceased's sperm would lie. The deceased was her husband. The sperm was removed on her behalf and for her purposes. No-one else in the world has any interest in them. My conclusion is that, subject to what follows, it would be open to the Court to conclude that Ms Edwards is entitled to possession of the sperm." 

The Court in this case, in citing the Law Reform Commission Report, acknowledged the appropriateness of a case by case approach - an approach that will weigh up the public interest and private rights at stake in each set of circumstances.  The outcome of this decision is instructive of the challenge of the public private divide in determining which rights exist and which are at stake.

This case was resolved in terms of property interests in sperm.  While the Court accepted that the sperm would be capable of being subject to a property right, it nonetheless exercised caution in finding a possessory interest.  This represents the caution exhibited by the Courts in such cases, where they seek to avoid opening the possibility of creating property and therefore a market in human body or tissue.

On the other hand, the private interest of Ms Edwards in having a child with her late husband and the consequences for a possible child create a matrix of considerations that weigh in against the wider public interest of maintaining the dignity of human life.  In light of these complex questions, it remains to be seen as to whether dealing with human gametes in terms of proprietary (via possessory) interests is of any value or whether an alternative framework of thinking might provide a less problematic answer.

Unbundling Interests in Land

It used to be that 'a man's house is his castle' and indeed this aphorism is reflected in the common law doctrine of cuius est solum, eius est usque ad coelum et ad inferos or he who owns the soil is theirs up to heaven and down to hell. Increasingly however this doctrine has been narrowed as interests in land have become unbundled.

I draw a distinction here between the recognition that one cannot literally own 'up to heaven' or 'down to hell' and what is considered to constitute 'land'.  

Originally the only reservation in a grant of land was the royal metals, gold and silver, which were reserved to the Crown.  That is to say, one would own the 'land' except for any gold/silver contained in it.  In Australia, various other minerals and metals were extracted from land over time - not by mining, but through legislative reservation of minerals for the Crown.  This resulted in creation of one subject of property rights - land - and a second subject of property rights - minerals.

Likewise, the common law recognised riparian rights - rights to water that flowed over or adjacent to land.  So water was considered to be part of the land.  This too has become 'unbundled', creating yet another subject of property rights.

The contemporary clash over coal seam gas in Australia represents another dimension of this progressive unbundling whereby the landowner loses control over access to resources under the ground and according to some landowners, also lose control over permissions to access land: they 'don't have a choice' in giving permission for the gas wells.

The result, as reported in The Weekend Australian there is an alliance between environmentalists and farmers both of whom reject coal seam gas as an interference in the farmers' control over farmlands.

The consequence of unbundling of property rights in this context is the creation of another market for private property interests (coal seam gas) that ostensibly directly competes with an existing private property interest (land ownership).  While there may not be anything inherently wrong with a private property interest or market (depending on your ideological persuasion of course) what does need to be considered here is the foundation that justifies the making of laws that allow this direct competition.

If private property interests are to be elevated above all else (a libertarian view of property) then there seems to be an inherent conflict between the pre-existing (private) property rights of the landowner and the subsequent interests of the coal seam gas rights holders.  Perhaps such competition is regarded as putting resources to their highest use (see eg Adam Smith and comparative advantage).  In this case, the law's granting of permission to extract coal seam gas will presumably be based on a public interest argument - that this land is put to more productive use by coal seam gas extraction than from farming.  Coal seam gas extraction seeks to meet global demand for energy production - a pressing public need.

The arguments by farmers and environmentalists challenge this.  These arguments seem to be based not just on protection of pre-existing private property, but are likewise public interest arguments about the utility of food production, land quality and wider environmental protection.  On this basis, not only is there a private property competition, there is also a competition for public goods.

It is my observation that these private/public issues are becoming increasingly prevalent, particularly in the context of the unbundling of property rights in land.  Where globalisation of problems - climate change, environmental degradation, human rights, sustainability, energy production - result in the need for national public responses, it is interesting to note the solutions proposed often, though not always, utilise private property interests and free market mechanisms.