title: Nature as Other: The Legal Ordering of the Natural World: Natural Heritage Law and Its Intersection With Property Law and Native Title
Creators: name: Godden, Lee
Publisher: name: Griffith University
Year: 2000
Subjects: subject: Environmental law
subject: Order
subject: Property law
subject: Natural heritage

description: This thesis argues that the legal ordering of the natural environment represents a culturally contingent 'order of things'. Within this process of categorisation, Nature is constructed as an 'other' to the human subject. This opposition allows nature to be conceived as either an object of control, as found in property law, or as a wilderness to be preserved apart from human society. This latter view is implicit to the principles informing early environmental laws for the protection of natural heritage in international law and within Australia. More recently, this distinctively western legal ordering has been challenged to be more culturally inclusive and to include concepts that incorporate human interaction with the natural environment. In making this argument, the thesis adopts a theoretical framework derived from Foucault's 'Order of Things'. Modem western understanding of the natural environment is directly informed by western science. Scientific discourses, with origins in the Enlightenment, have been extremely influential in determining the legal ordering of the natural environment. In this context, the thesis provides an overview of the conceptual shift from a pre-scientific, organic conception of the relationship between people and nature to a people/nature dichotomy that persists as the nature/culture meta-narrative in modern society. The rise of a more holistic conception of the natural environment, based in ecological principles, has only partially displaced the latter view. The thesis also examines the manner in which property law constitutes the 'proper' order of the natural world within western culture. The bundle of rights concept, implicit to modern conceptions of property, finds resonances in western scientific understanding of the natural world. In particular, property law replicates the subject /object distinction that is central to modern western thought. The positing of nature as an object of control through the property relationship has been a resilient ordering of the natural environment. It has directly contributed to an instrumental perception of the natural environment. Indeed, the property concept was the central way of 'constructing' the Australian natural environment at law from colonisation to well into the twentieth century. The initial legal designation of Australia as 'terra nullius' allowed received English property law to form the template for ordering the occupation of the Australian natural environment by British civilisation. In the second half of the 20th century the wilderness ideal, in concert with ecological 'balance' concepts, gained currency in international and domestic law as the foundation for the protection of natural heritage. Natural heritage protection was a high profile aspect of early environmental laws in Australia. Thus the World Heritage Convention assumed an importance for natural heritage protection within Australia due to specific historical, political and constitutional factors. The adoption of 'holistic' definitions of environment in many pieces of Australian legislation has served to partially displace the instrumental, proprietary view of nature. However, the legal recognition of natural heritage, when based around wilderness ideals, remains predicated upon the western people/nature dichotomy. More recently, reforms to early environmental laws have been instituted and case law reveals a state of flux in how natural heritage areas are to be identified and valued. The traditional western legal constructions of nature have served to occlude Aboriginal and Tones Strait Islander peoples' relationships with 'country'. Such legal frameworks continue to be problematic if a more culturally inclusive and holistic conception of heritage, such as cultural landscapes, is to be adopted. Further, while the recognition of native title has led to a re-examination of many fundamental legal principles, reexamination of our western legal constructs remains incomplete. One of the crucial areas yet to be fully worked through is how to accommodate western dualistic notions of the relationship between people and the natural environment with the legal requirements to establish native title. The need for accommodation has direct practical ramifications in that many world heritage, national estate and other 'wilderness' areas are, or may be, subject to native title claims. Therefore, the thesis considers the need to re-assess western, scientifically derived conceptions of natural heritage as the prevailing principles for environmental preservation. Finally the thesis discusses the contingency of any legal ordering of the natural world. Western representations of nature have exerted tremendous influence upon the legal regimes that have regulated and ordered nature across the Australian continent. These classifications are embedded within a particular cultural narrative. Parts of the Australian natural environment that are designated as property, as natural heritage, as native title, or as cultural heritage do not achieve this legal characterisation due to any inherent value or features of the natural environment itself. These areas are not necessarily property or heritage or native title until incorporated within, or recognised by, western legal frameworks. As such, any decision to ascribe a given legal status to the natural environment as part of the legal ordering needs to be seen as involving issues of choice that have direct distributive justice implications.