Infrastructure Act: Attack on Private Ownership Rights: Part 2

In the first part of this two-part post, I explored the effect of the Infrastructure Act 2015, and focused on its relationship with the extraction of natural resources. The balance which the Act strikes is that private owner’s land rights can be displaced by persons wishing to use the strata beneath their soil to extract natural resources. The private owner’s land rights are then equated to money and the individual receives money. The issue which I sought to explore is why the private landowner’s rights are placed beneath the rights of the energy companies when the private landowner is a fundamental objector to the use of his land in that way, and where the private landowner has the best title to land- a fee simple- and his ownership to land is circumvented by other concerns which equate his proprietary interest to financial compensation. This pattern is unusual considering the shift towards renewable energy (IPCC’s report) and the large protest to the hydraulic fracturing, which the Infrastructure Act facilitates. This part will look at this issue through a comparative lens, and consider how land is valued in other legal systems.

Land as a commodity is a relatively new phenomenon, considering ownership of land has been an issue from the birth of mankind. Peter Birks, in his article ‘Five keys to Land Law’, emphasizes the importance of land in relation to everyday life. The core of this is the importance of land in terms of functionality: every business needs a premises; every factory needs a site, even in the modern age of online operations. The value of land is still important to many, and although the Law of Property Act 1925 has treated it as a commodity, the inherent value of land cannot be forgotten, and, indeed, other legal systems have recognized this inherent value.

The Aboriginal people of Australia have an intensely symbolic relationship with the land, and there are various land rights laws that exist in all six territories of Australia for the renewed ownership of land. The High Court of Australia first recognized native title in Australia in the case of Mabo v Queensland (No.2) (1992) 175 CLR 1. What is of particular interest in this case is how the modern view of ownership does not run parallel with the Aboriginal’s view as to their rights in land. Under the modern view of ownership, the Aboriginals would be considered the owners of the land, and, on reference to the facts, Queensland could not own the land “[free] from all other rights interests and claims whatsoever.” However, under the Aboriginal’s view of the land, a more appropriate title would be custodian of the land. The beliefs instilled in their culture relate to how the land is sacred and the symbolic relationship that arises there from. It is interesting that there is no parallel of this in law. Relating this to the Infrastructure Act, it is accepted that there is no parallel in the UK to the Aboriginal people. Although, the Aboriginal’s view of land as being sacred can be translated over to some people’s view of their land in the UK. It is not surprising that owners of land object to the use of their land in that way, as they have environmental concerns about the actual process of horizontal drilling. Thinking through this perspective, it seems strange that the Government ignored, both in the consultation stage, and the promulgation of the legislation, the fundamental concerns objectors have to this.

Further, in relation to the specific issue of the extraction of natural resources, Bolivia provides a good example as to how natural resources can be protected in a legal system, particularly in light of the 2009 Constitution which protected indigenous rights. In Bolivia, 55% of the national territory is considered to be of potential hydrocarbon interest; thus the extraction of natural resources proves to be an important issue. The Constitution allowed for collective ownership of land and more regional and local autonomy. This therefore meant that indigenous people would have rights in the land being used for the extraction of natural resources, and due to the delegation of powers to local government the local regions had more administrative control over these resources. Again, this idea of collective ownership allows for private land rights to be represented and contest those of the energy companies seeking to extract natural resources.

The right to exclude is thus being represented in these instances by allowing indigenous people to have claims to the land. In the UK, just because there is a shift to treat land as a commodity, the fundamental function of land should not be forgotten. Land is inherently valuable and ownership of land necessarily entails a right to exclude. The other legal systems, which here have been assessed, allow indigenous people a platform to defend their land rights. Whilst in the UK this forum for discussion is too heavily influenced by the economic advantages of exploiting land, and, consequently, the heavy objection to this Act has been ignored. The value of land should not be forgotten, and this value cannot be equated to monetary compensation lightly.