The implications of property diversity for community

In 1984, Joseph Sax identified community as the missing blank in American law. Sax opined that ‘[t]he notion of community entitlement is virtually empty space in the legal constellation’[1] Twenty-six years later, despite intermittent filling of that space, Sax sees little change, noting that; ‘almost every conception of land in modern times has ignored community values.’[2] Sax’s observations highlight the dilemma of reconciling community and property in land, a challenge with existential and normative implications. This paper examines the marginalized links between property and community, a subject matter said to be ‘left unexplored within property scholarship,[3] and asks whether property diversity may present some answers to that dilemma. For as Sax also says ‘[d]iversity is a good thing, in human settlements as well as nature. Or, to put it another way, eclecticism is not a bad thing.’[4] To ‘see’[5] property diversity in land is to escape a limiting ‘centrality of logic’[6], and to recognise the breadth of individual and collective relationships between people, community, and land. Property diversity recognises that communities are ‘intensely propertied’ places that the orthodox ownership models fail to represent.[7] The paper uses as a case study a regional community in northern New South Wales, Australia, defying the industrialization of its rural landscape through coal seam gas (CSG) exploration and mining. The refracting lens of this volatile land use conflict reveals ‘several [alternative] futures of property’[8]that have the effect of uniting rather than dividing this community. It also reveals the deficiencies of dominant paradigms that are abstract and de-objectified. How community is conceived, and how it operates, are issues with property implication. The perspective of property diversity further enhances that seeing by challenging dominant conceptions of property uniformity, and unleashing the potential of Sax’s ‘eclectic’ [1] Joseph L. Sax, ‘The Rights of Communities: A Blank Space in American Law’ presented July 11, 1984, Natural Resources Law Center, University of Colorado, School of Law. [2] Joseph L. Sax, ‘Ownership, Property and Sustainability’ 2010 Wallace Stegner Lecture, 13. [3] G S Alexander & E M Penalver Property and Community (2010) xxxiii.. [4] Joseph L Sax, ‘Do Communities Have Rights? The National Parks as Laboratories of New Ideas’, (1984) 45 University of Pittsburgh LR 499, 509. [5] Carol M. Rose, Property and Persuasion Essays on the Histoory, Theory, and Rhetoric of Ownership (1994). [6] A J van der Walt, ‘Property & Marginality” in Property and Community (G S Alexander & E M Penalver eds., 2010) [7] Nicholas Blomley, Unsettling the City Urban Land and the Politics of Property (2004) [8] Carol M. Rose, ‘The Several Futures of Property: Of Cyberspace and Folk Tales, Emission Trades and Ecosystems’ (1998) 83 Minnesota Law Review 129