A while ago back on the blog, we were having a debate about whether the idea of property, and private property in particular, is a peculiarly human thing.
Certainly, I think animals have a notion of territory. Sometimes they have a very strong notion, and will chase any interlopers off their territory. Our dog had a notion of what was his. He had his own particular chair which no one else used, his own particular horrible chewed soft toys and his own basket. He knew, and we knew, that those things were his. If you got too close to him while he was eating a bone, a long rumbling growl would sound deep in his chest, signalling, “This is mine, all mine, keep away from it.” Still, I tend to agree with Lorenzo that the idea of legally enforceable property rights is a peculiarly human thing.
But should animals have legally enforceable property rights? An Australian researcher has suggested recently that animals ought to have such rights:
Australian research lecturer Dr John Hadley from the University of Western Sydney (UWS) said under his proposal, particular animals would be given legal property rights, and human guardians would be appointed to represent them in court.
But farmer associations are concerned about potential conflict.
President of the South Australian Farmers Federation Peter White said the proposal was ludicrous.
“It never ceases to amaze me how stupid some people can be,” he said.
“Why would somebody give animals more rights than humans?
“I think it would create World War III between environmentalists and between welfare groups and farmers.”
But Dr Hadley said giving animals legal ownership of their habitat might be the key to protecting biodiversity.
“This could be something that produces something useful,” he said.
“By discussing with the guardian, people could be persuaded to try another land management decision, (or) they may delay destroying the habitat until the end of the breeding season.”
He said people who wanted to modify habitat on their property would have to negotiate with guardians through an independent tribunal before taking any action.
My first rather bitter thought was that, for the most part, we haven’t even given indigenous people proper property rights in the land, let alone indigenous animals…
In any case, clearly the rights possessed by animals would not be exclusive rights in any sense. In their strongest incarnation, private property rights give rise to the rights such as a right to exclude, the right to alienate, the right to destroy and the right to use.
I am rather fascinated by the idea of animals having legal rights, as can be seen from a series of previous posts: animals being restrained from trespassing, a goat held on suspicion of committing an armed robbery, Chico the delinquent macaque, Santino the delinquent chimp (who suffered a most awful punishment), potentially tortious dolphins, a dog named “Trouble” who received a large bequest under a will, and lawyers who represent dogs or pets.
In fact, the idea of granting animals legal rights is not as crazy as it may sound. In New Zealand, apes have a right not to be experimented upon, and in Spain, ‘human rights’ have been granted to great apes. Germany has protected the right to dignity of animals in its Constitution.
Nonetheless, there remain questions about who enforces the rights on behalf of animals, how one interprets the wishes of animals, and why animals should be given legal rights when some humans do not yet possess that right. People are more likely to accord legal rights to animals with whom they can communicate, and who are further along the spectrum of sentience.
I can’t really see how Hadley’s proposal would work. Presumably he is thinking that someone could bring an action on behalf of a colony of endangered Leadbeater’s Possums, for example, which sought to prevent development in the area in which the colony lived?
(No, I’m not going to be rivalling DEM any time soon, I’m afraid…)
[ADMIN DEM: I would have gone a different way...]
What kind of property rights would the possums possess? A right to exclude people? Or some lesser usufructuary right (i.e. a right to go on land and gather things)? If the latter, how could it possibly be useful in protecting the animal? How would this proprietary right be measured in time and space? Would it be caveatable? Are there better ways of regulating this kind of problem which do not involve proprietary rights?
I can’t help thinking that granting animals proprietary rights is not the right way to go about protecting the poor possums. While reading Hadley’s proposal, and seeing the incandescent response of the farmers, I suddenly remembered an article by Stephen Dubner and Stephen Levitt about the unintended consequences of trying to protect endangered animals via legal regulation:
Consider the Endangered Species Act (E.S.A.) of 1973, which protects flora and fauna as well as their physical habitats. The economists Dean Lueck and Jeffrey Michael wanted to gauge the E.S.A.’s effect on the red-cockaded woodpecker, a protected bird that nests in old-growth pine trees in eastern North Carolina. By examining the timber harvest activity of more than 1,000 privately owned forest plots, Lueck and Michael found a clear pattern: when a landowner felt that his property was turning into the sort of habitat that might attract a nesting pair of woodpeckers, he rushed in to cut down the trees. It didn’t matter if timber prices were low.
This happened less than two years ago in Boiling Spring Lakes, N.C. “Along the roadsides,” an A.P. article reported, “scattered brown bark is all that’s left of once majestic pine stands.” As sad as this may be, it isn’t surprising to anyone who has examined the perverse incentives created by the E.S.A. In their paper, Lueck and Michael cite a 1996 developers’ guide from the National Association of Home Builders: “The highest level of assurance that a property owner will not face an E.S.A. issue is to maintain the property in a condition such that protected species cannot occupy the property.”
One notable wrinkle of the E.S.A. is that a species is often declared endangered months or even years before its “critical habitats” are officially designated. This allows time for developers, environmentalists and everyone in between to have their say at public hearings. What happens during that lag time?
In a new working paper that examines the plight of the cactus ferruginous pygmy owl, the economists John List, Michael Margolis and Daniel Osgood found that landowners near Tucson rushed to clear their property for development rather than risk having it declared a safe haven for the owl. The economists make the argument for “the distinct possibility that the Endangered Species Act is actually endangering, rather than protecting, species.”
So if you give Leadbeater’s Possum quasi-proprietary rights, I’m willing to bet that some people would be chopping down old hollow trees quicker than you could wink.
80 Comments
I’m sorry, I’ve got mental images of ‘the reasonable pig’ or ‘the reasonable duck’ going on here, along with those medieval woodcuts of animals on trial.
I think some people need to be introduced to the concept of ‘doli incapax’, quick smart.
There’s also the point that legislation in favour of animals imposes duties on humans, it doesn’t actually confer rights on animals. This means that ‘rights talk’ of this type is a category error.
What is any right, other than a duty imposed or accepted by those in power?
desipis, have you got to this guy yet?
http://en.wikipedia.org/wiki/Corelative
It sounds like you have
The environment would be better served by paying landowners a fee for the provision of environmental services, as suggested by the Wentworth Group of Concerned Scientists, among others.
BTW I’ve got four Brushed Tailed Phascogale and one microbat nest box in my trees. Sugar Gliders are currently using the BTP boxes and put on a great show at dusk. It’s amazing watching them glide between trees with such agility and precision.
I thought you were going to mention Ernest Weinrib, SL! Nooooooo!
Oh I ADORE microbats, Mel. That’s very cool.
Yes, Mel wins the cool backyard inhabitants prize by a country mile. Bats! And not flying foxes!
Gday all,
Who gets to choose which ‘particular animals’ and by what reasoning are they so judged to be? Of Course as Major said in Animal Farm …
Then there is the question of who is chosen to speak for the animals, who will be the human guardians? We already have many folk that assume guardianship of animal groups and not all of these agree. Farmers, zookeepers, parks rangers, Aboriginies, conservationists, pet owners, vets, game wardens, trainers, etc. Are we to believe that all of these folk are to be relieved of their guardianship in favor of some government appointed guardian?
To borrow an argument from Bolt, tet me guess at the politics of such a guardian. Would any such government appointed guardian appreciate that a particular class of endangered animal may be better off in a wealthy country that has been able to assume such wealth by timely and judicious harvesting of natural resources or would such guardians come from the better class of greeny ratbag that would stop at nothing to halt any so called desecration of country?
This isn’t about cuddly and furry friends with big eyes. This is a blatant grab by green groups for power.
Regards,…
Dear LE,
The inability of clients to instruct guardians does not undermine the coherence or application of human guardianship. Dementia patients or young children are the obvious examples. In fact, is ‘taking instruction’ or knowing their wishes even relevant in such cases? Isn’t it a case of the guardians needing to make third-person judgments about what is in the clients ‘best interests’; and we then consider their wishes as respected. If that is right, then the fact that we may not know precisely what animals want is no obstacle to an animal guardianship system. Society accepts that pet owners have an obligation to look after their animals and can make reasonable judgments about their welfare.Similarly, we know enough about the welfare of native animals to know clearing their habitat is against their interests.
On the issue of enforcement. I have suggested an independent tribunal established by govenrment initially then allowed to operate at arms length – like a Royal Commission or tribunal – ought to administer the system. Every effort should be made to have negotiations outside courts like in community justice centres or family court mediation.
Which animals? Well, this initiative is about biodiversity conservation not animal rights. The rights are merely the (admittedly controversial) means to the widely held, uncontroversial end – the conservation of endangered species. A policy priority of all govenrments around the country and the world. So, it would be animals on the threatened species list. There are about 350 nonplant endangered species in Australia, 80% at risk due to loss of habitat. We would need to identify discrete populations at risk and go from there.
Finally, you are probably right about the risk of panic clearing. I’m not sure that is an argument against my proposal but for taking extra care with its implementation. Would fear of vandalism of sacred site or rock artworks have stopped the introduction of native title? I think we would have worked around the probem somehow in that case. Same can be done with animal proerty rights.
Cheers,
John
Hi John, thanks for stopping by and commenting!
With young children or dementia patients, it is still easier to work out wishes than it would be for animals. With dementia patients, you have the memory of who the person used to be to go by. And because both are human, it is easier to analogise and know what we would want in that situation. It still bothers me about animals that we can’t quite know what they want, although as you point out, we can be pretty sure that they do NOT want their habitat destroyed.
If biodiversity is what is being protected, perhaps it is better to speak of ‘biodiversity rights’ than ‘property rights’. As the reaction of the farmers shows, when people think that someone is going to impinge on their property with conflicting property rights, there is a visceral and angry reaction. The word ‘property’ at its strongest means a right to exclude others from the land – so perhaps the farmers were fearing that the discovery of some rare animal would mean that they were totally excluded from their land (although this is not what you had in mind). I used to repossess houses for a bank (sad but true) and it has given me a very strong feeling for how angry people get when they think their fundamental property rights are being impinged upon.
In addition, our system of title means that we have to record interests precisely on the title (at least in the form of a caveat) so we would have to have a very good idea of (a) how long such rights would last and (b) how far they extend.
Fundamentally, as a lawyer, I am cynical about the ability of the law to fix these things. When native title was established I was so excited and felt that there would finally be justice for indigenous people. Instead, there was the same visceral reaction I mention above, the processes instituted by the initial Native Title Act were very complex and the subsequent amendments and High Court interpretation reduced the rights to be gained to almost nothing. As at the present date, the number of groups who have successfully claimed native title rights is very, very small because of the difficulties in proving it and the long, expensive and drawn-out nature of the negotiations. And this is almost 20 years on. The law is so slow and combative.
I’m definitely not saying, “Don’t do anything about biodiversity and native habitat”. Such things are important, and we should definitely respect native animals and their habitats. But yes, you do have to be very careful with the implementation of any law so that you don’t produce precisely the opposite effect of what you want. I shall think on other legal ways you could achieve the outcome you want while minimising the adverse consequences.
Note to regular commenters: John H@9 is the John in the post, not the John H who sometimes comments on health issues…
SL@3,
I hadn’t encountered Hohfeld yet, however “correlative” concept is more or less what I was getting at. The names I remember encountering so far include Hart, Dworkin, Fuller, McCormick and Hayek.
As for backyard inhabitants, I’ll take anything over the vicious beasts that flock to the trees outside my bedroom window at 3 in the morning. I haven’t worked out what they are but the sound of their wings makes them sound the size of an albatross and their screech is like the cross between a hyena and a ring wraith.
The line about being able to infer wishes of a dementia patient from knowledge of who the person was is interesting – some animals can be accurately “read”, some can’t.
People can read dogs, but not cats. Photos/short clips of dogs and cats with known history and after examination by a vet shrink were shown to test subjects, who could reliably judge whether a dog was depressed, happy, etc – but not cats.
I’m a fan of a functional psychological basis for deciding rights – and there is no definition that draws a neat line between other animals and humans, unless it is speciesist.
Two scenarios are worth considering:
Laws should be consistent with a “do as you would be done by” rule of thumb. Would we want an ET with colonialist or resource extraction intent, an ET with a similar legal philosophy as ours, to declare Terra Nullius and go all B-grade movie, using a speciesist definition in /their/ laws’ or recognize our minds and capacity for culture, as individuals or groups?
All hominins (us, chimps, gorillas) overlap in abilities – chimp tribes have different cultures for arbitrary things (when “conversing” bum-on-ground, one tribe holds onto an overhanging branch with one arm, another doesn’t from lack of suitable branches – and individuals moving from one group take time to adjust – e.g. For some time, even in the open, holding one arm up when “having a chat” with another).
So, while biodiversity rights is one thing for dingoes, presumably they would be as happy if they have any supportive environment, whereas a tribe of chimps might even have a sense of special places akin to a dreaming, but not /quite/ able to express it. What about flored hobbits?
However, chimps might be tricky to define “instruction” because of a lovely experiment showing a difference between wishes and action:
It involved two chimps looking at two offerings of tokens (which translated to treats – jellybeans I think – given immediately after the game) or the actual jellybeans and one asked to point to the offering to be given to the /other/ chimp.
When tokens were used, say 3 on one plate, 5 on another, a chimp would reliably point to the “3″ plate – then get his 5 jellybeans. However, when /actual/ jellybeans were on the plate, the arm would point to the “5″ plate and then, even before the jellybeans were handed over, show obvious signs of frustration and anger at themself – which researchers likened to a Homer Simpson “Doh!” facepalm if he’d been given the same choice but using donuts instead of jellybeans. (Tongue in cheek, it’s as if the chimps would be better traders in jellybean futures derivatives than actual jellybeans).
Bottom line is that I think all hominins, not just hominids, deserve the same rights and protections, and just as we go to great effort to determine the wishes of people after car accidents with little motion or speech, but obvious awareness, we should do the same for chimps/gorillas, by training at least some tribal chimps in sign.
Its worth noting that chimps with sign language use it between themselves when they are unaware of human observers. The signing is most common in situations where human signing adds value to them – when one chimp is teaching or disciplining another, as if they have a new found tool to solve the problem of telling the other exactly what is pissing them off, “do /that/ again and you’ll be sorry, is that clear” rather than merely rely on conditioning.
I’ll put an even tougher case for rights – minimum wage for apes, and the right to spend their wages on what they want. Even Pliny the Elder suggested the capacity for primates to be used as a workforce in orchards, and indeed some /are/ traditionally used (on a one-to-one employer/employee basis) to gather fruit from difficult-to-climb trees. It’s not dissimilar from human fruit-pickers, given food and lodgings, time off, and wages. I’d argue that psychologists using chimps, and even zoos, should provide the opportunity for their chimps employees to choose what amount of their “wages” in any given week translate into what goods – perhaps from a selection of toys, treats and art materials.
“It still bothers me about animals that we can’t quite know what they want, although as you point out, we can be pretty sure that they do NOT want their habitat destroyed.”
You need to get a pet possum and try to grow some vegetables. You’ll find out it isn’t too hard too work out what they want (mine would like my neighbors can to die too). Given this, and speaking of doli incapax, I’m sure my pet possum (although I think mine sees the relationship in reverse since it really inherited me rather me inheriting it) knows exactly what it wants, and just has trouble expressing itself in that demonic sort of growling that brushtails make.
I understand that we want to comprehend what our animal friends’ wants and needs. But I think that adding a law about their likes and dislikes and from which point their territory starts and ends is still far away from reality. What if the animal’s territory was invaded? What would we do? Sue the other animal? I believe that it is still not the time, perhaps once our scientists learn more. Or maybe it will depend on which animal needs the law more.
I’m wondering it’d work better if you just gave a private right to individual people to live in a biodiverse world. Anyone unreasonably causing a reduction in biodiversity would be infringing on the rights of everyone else. Thus any private citizien could initiate legal action against anyone causing the harm. An action might need to be structed as a class action in order to gain sufficient damages to be worth while. Obviously the nature of a biodiverse world would need to be defined, but the concept could work generally for other environmental issues too.
It wouldn’t supprise me if this applied equally to humans as well.
John H says:
“Which animals? Well, this initiative is about biodiversity conservation not animal rights. The rights are merely the (admittedly controversial) means to the widely held, uncontroversial end – the conservation of endangered species. A policy priority of all govenrments around the country and the world. So, it would be animals on the threatened species list. There are about 350 nonplant endangered species in Australia, 80% at risk due to loss of habitat. We would need to identify discrete populations at risk and go from there.”
Sorry Jon H but as a country boy and a landowner with a passion for conservation I can tell you outright that your idea would definitely create incentives to clear endangered plants and to remove habitat that is currently used by endangered animals.
Rather than beating farmers with sticks (alienation of property rights, interfering guardians and courts) why not offer carrots as per the Wentworth Group of Concerned Scientists?
May I also suggest that you actually get out of your university chair and actually come down to the country and talk to farmers about what can be done to improve the environmental values on their farm? It would also help if you read some of the pertinent literature on working with rather against landowners, try for example Temperate Woodland Conservation and Management by David LIndenmayer et al.
I’m sorry John H but folk like you, who deliberately antagonise landowners with unworkable and punitive ideas, make the job of folk like me- an active participant in landcare groups etc.. – so much harder because you create an Us and Them mentality. There are much smarter ways to achieve the goals we both support.
I get the feeling that what Dr Hadley wants to accomplish could be achieved by a human(s) owning a lot of land and many animals and then putting said animals on said land.
this killer possum would certainly be able to enforce its property rights – makes “drop bears” look tame.
Actually, if you were the “guardian”, you wouldn’t want to go anywhere near them to receive instruction.
I rather wish the megafauna hadn’t died out, although perhaps I should be glad that those particular possums aren’t about any more. I always wanted to see those massive wombats!!!
“I rather wish the megafauna hadn’t died out …”
Agreed LE. I’d give almost anything to be able to go back 50,000 years in time and see what Oz looked like without people.
caught in mod guys, ta.
I thought the Thylacoleo was a big Thylacine, but it seems from wikipedia that the two were quite distant relatives.
The Thylacine (and briefly the Thylacoleo) were also recent subjects of the monster talk podcast.
From the standpoint of curiosity, the relatively recent extinction of a lot of Australian species is kind of depressing. The obvious one being the thylacine.
Even on the mainland the thylacine was still running around ~2000 years ago and the Tasmanian Devil was possibly still around on the mainland only 400 years ago.
I am glad this megafauna is exitinct though.
Hi LE,
“our system of title means that we have to record interests precisely on the title (at least in the form of a caveat) so we would have to have a very good idea of (a) how long such rights would last and (b) how far they extend.”
Yes. This points to the biggest obstacle to the theoretical coherence, to say nothing of the practical application, of an animal property system. If the way animals use space varies across species and contexts to such an extent that authoritative judgments about habitat size and duration cannot be made, then it is difficult to see how certainty of title can be preserved. But, while natural behaviour may seem nebulous, concepts like territory and home range have been productively employed in environmental assessment and planning processes which in turn can qualify or shape property rights incidents. This shows that the law can accomodate evidence from ecologists.I am presenting working with two ecologists, one an expert on dingo territorial behaviour, the other looking at how primates use space. We are aiming to develop principles that will be applicable across species and contexts, and provide a greater degree of certainty than the existing empirical methodologies.
Also, some of your readers might be interested in seminal papers on guardianship for animals.
Favre, David. (2000) “Equitable Self-Ownership for Animals” Duke Law Journal 50:473-502.
Stone, Christopher (1972) “Should Trees Have Standing? Towards Legal Rights for Natural Objects” Southern California Law Review, 45
Cheers,
John
“I’d give almost anything to be able to go back 50,000 years in time and see what Oz looked like without people.”
And get eaten by a 7 foot duck?
John, I shall read those pieces with interest.
“And get eaten by a 7 foot duck?”
I’d need an Elephant Gun.
In case John Hadley is still about, I’ll give an example of a specific concern I have about his idea. It is by no means my only concern. Connecting Country, an environment group in my area in northern Victoria have installed 400 Brush Tailed Phascogale boxes on private land over recent months, obviously with the consent of landholders. Suitable nest sites are recognised as a major limiting factor regarding the abundance and distribution of this animal, which is currently absent from a vast area that is otherwise suitable habitat. Under John’s proposal, folk who want to contribute to conservation efforts in this way while still having a working farm could be dissuaded from encouraging BTP onto their farms thru setting up nest boxes as this would interfere with their property rights should the “Guardian” establish that BTPs now occupy the property. Moreover any resulting caveats could be perceived as lowering resale value.
The money you want to spend on guardians, tribunals etc would be better spent paying farmers a modest amount based on the environmental services performed on their land. This could be a stable income that farmers would receive even in times of drought, flood, poor commodity prices etc and it would not have to be huge to be appreciated, given the surprisingly low rate of return most farmers receive per hectare of land. The rate of payment could be based on an environmental assessment done once every five or so years.
Ideally, such a system would be funded by replacing much of the disaster payments currently made to farmers. Hopefully useful synergies would be created, for example a farmer might be less tempted to plant a crop in an ephemeral natural wetland in the expectation of a dryish year as she/he would be content to allow it to revert to nature and pocket an environmental services payment
Mel@29. The environmental assessment of farmland could be there for two purposes – generic things that might affect water, and services to native flora/fauna. The first might be able to use satellite photos without a site visit, and could be calculated annually for quicker returns on investment by landowners, the second might be best assessed by quick census of key indicator species, in the 5 year cycle you mentioned.
The other environmental service that could allow quick ROI by landholders is a bounty on introduced nasties like cats/rabbits/foxes/pigs/canetoads.
(and I wouldn’t limit the bounty to landowners or just rural areas)
Of course, a real incentive for landowners to provide environmental services in non-forested areas would be meat eaters choosing more roo – allowing artificial watering holes to be shut down away from ferals. The issue for landowners is that the divvying up of bonus for roo populations, whether from harvesting or census, is that it needs to be done by “catchment area” as roos are mobile.
Similar considerations of catchment area apply to smaller mammals – without corridors between holdings, no matter how fauna-friendly one landholder is, the net benefit to native spp is zilch.
Just for the record, I agree completely with Mel’s comments.
Presuming that the point of the exercise was not simply a green power grab (which is what it looks like) but to change people’s behaviour, then adding to people’s possibilities rather than threatening their present ones seems a better way to go.
In his Economic Analysis of Property RIghts Yoram Barzel notes difference between UK and US habitat law, which I summarised as:
The famous example of giving people a stake in preserving wildlife is giving local people ownership rights over their local elephants rather than just banning poaching. The former means that live elephants are a continuing source of income, the latter means the only profitable elephant is a dead elephant.
If live possums or whatever a boon for the farmer, then there will be more live whatevers. There is no such thing as an endangered profits-from-owning species.
In Coase’s classic The Problem of Social Cost (pdf) these sorts of interactions are considered.
Property rights evolved as a way of creating productive boundaries. Harold Demsetz, in his classic 1967 article Towards a Theory of Property Rights use the example of beavers in North America. As the fur trade developed, Amerindians developed property rights in beaver dams. An example of productive interactions, considered by Steven Cheung, is bee-keepers and apple farmers.
This proposal does not create productive boundaries, it creates anti-productive boundaries. It does not increase human possiblities, it lessens them. Not a clever idea.
Property-rights environmentalism has a lot to be said for it, but precisely because it increases human possibilities, not because it undermines them.
re L@31
Lorenzo and Mel in accord! Wow! Either somebody has slipped happy pills into someone’s coffee, someone has slipped hallucinogens into mine, or the positiion is FAR too sensible to get the support of major party politicians!
I’m slightly surprised and wondering where the catch is, but I also agree entirely with Mel@29, 18 and 4.
I am afraid, DB, it is your latter. I am immune to happy pills.
Hi Mel,
Thanks for the post. The placement of nesting boxes is just the kind of measure that guardians, during negotiations with landholders, would be in a position to suggest. Alternatively, they could suggest some other business model or land use regime that the land holder may not have considered. They could even steer them towards NGO or agencies that afford grants for conservation along the lines you suggest. Who knows what might come up in the negotiations? There is no reason why we can’t look upon the negotiations as an opportunity for advice and support. Why do so many land holders react with hostility to the idea of having to talk to others about their land use decisions? I might be an optimist but considering all the other supposed regulatory burdens upon land holders, is what I’m suggesting all that more demanding? A negotiation session, in good faith, under the auspices of a tribunal and overseen by a mediator? Like LE, I’m surprised by the vociferous opposition. The other common response to my proposal that strikes me has been the blanket assumption, by people I assume we can reasonably adjudge as ‘pro-landholder’ (whatever that means), that land holders will react to the proposal by destroying the habitat. I know a number of land holders who would find that offensive. What does it say about farmers when biodiversity conservation is such a mainstream value worldwide? Many farmers do alot for conservation now. My proposal is entirely consistent with the shift in consciousness that has taken place in recent years.
Cheers,
John
On a related note, Victoria’s Trust for Nature conservation covenants currently protect over 43,116ha of land. These covenants are entered into by landholders on a voluntary basis. Trust for Nature covenants are permanent and provided for by the by the Victorian Conservation Trust Act 1972. The land covered is one-quarter the size of the Grampians National Park.
John is correct about a “shift in consciousness”. Approx 2% of Mt Alexander Shire’s population attended Connecting Country seminars on woodland birds. Many attendees were rural landholders.
That is mighty impressive. Nonetheless I remain convinced that his punitive and confrontational approach would sour the current goodwill if ever adopted by Government.
Gday all,
John @#35, How would your guardians that are going to suggest similar things that are already occurring
get paid for this font of regurgitated wisdom?
Would the guardian be paid by their wards and if so where would that money come from?
Would the guardian be paid by the state and if so what would the revelant public service pay rate be?
Would the guardian be paid by imposition of a levy on the landholders who already,
?
Regards,
Frank
Hi Henry,
If we think the initiative that Mel mentioned – the nesting boxes – is a good thing, then a system that provides an opportunity for that initiative to talked about and potentially implemented further afield would have to have some merit.That was the point I was trying to make.
I had not thought about payment for guardians. I had envisaged them being voluntary. But it’s not a bad idea. Thanks for the suggestion! Payment would make it an attractive position for people with particular expertise and skills that might be useful to have included in the negotiations.
As for who would pay? My suggestion is for an independent tribunal established through an initial government outlay then run at arms length from government. My preference would be for the guardian stipend to be part of the tribunal budget.
Cheers,
John
Thank goodness for that! For a moment there I thought you might be going to suggest that we taxpayers foot the bill.
Dear John,
My earlier point @8 was that we already have
already and at no extra impost on the public purse.
Regards,
Frank
On further thinking (and while I very much agree with Mel’s comments) if such a process of guardianship was to come to pass, then I’d much rather a paid government functionary than a volunteer zealot in charge of negotiations with individual landholders.
Yes, I can easily imaging a volunteer zealot negotiating with a landholder ending up in front of a paid government functionary of one form or another anyway…
JH@35
Because there are only so many ours in the day? Because it is their livelihood one is talking about? Because their experience of other examples is not a happy one?
Here is a question: would landholders be compensated for their loss of rights, or a we talking about simple theft here? A property right is a right of control up to a boundary. You create “property rights” for animals, then any previously existing right of control in that boundary is eliminated. Someone else — the landowner in this case — loses rights. So, payment for such loss or is going to be simple theft?
As for “talking to others”, once one shares control of some attribute, one raises transaction costs, lowering the number and return on such transactions. To quote Michael Kirby, then High Court Justice, certainty is the central demand of land law. Clear boundaries allow productive trades. Unclear boundaries undermine such: sometimes profoundly. If a way exists to eliminate the problem, it is likely to be taken.
Discretionary controls by officials inevitably become dominated by the politically well-connected. The notion that this would be a reliably benign process is belied by an enormous amount of experience.
As for appealing for “good intentions” by landlords, incentives matter. They matter a great deal. Given the potential power over land use this proposal gives, one must expect that people will politically organise to gain control over that power.
This is one of those basic analytical differences. Libertarians and others presume that private interests are endogenous to the political process and will game it according to the incentives generated. Progressives of various stripes presume that political processes can somehow be made exogenous to private interests and “control them” from outside. This is nonsense on stilts, and pernicious nonsense at that.
The more proponents argue for this proposal, the more alarming I find it.
Following on from Lorenzo’s point, section 51(xxxi) of the Australian Constitution, at least as I understand it, requires compensation on just terms for the acquisition of property rights. How does John Hadley propose to meet this obligation?
I’ll also give another example of how John’s idea falls over in the face of reality. I have extensively planted two endangered species of Dianella on my block. I wouldn’t be surprised if I now have the most extensive and healthy population of matted flax lily, Dianella amoena, in North Central Victoria. If John’s Guardian found out about this, he may well attach an onerous caveat on my property title that makes it almost impossible to sell it to anyone who isn’t a Greeny such as myself. In other words, I would be punished rather than rewarded for doing the right thing by the environment.
Conversely, under a Stewardship scheme, my property would be eligible to receive a modest stipend for environmental services, in this case the conservation of an endangered species. If I decided to sell my property it would be up to the new owner to decide whether to apply appropriate management techniques to ensure the ongoing conversation of my rare species and thus continue to receive the stipend or alternatively risk losing it by applying inappropriate management techniques.
I think John has the right end-goal in mind but he has picked a very poor vehicle for achieving that goal.
These days I am not surprised by the way in which people react when they feel that their property rights are being threatened. As I say, I think it comes of working in repossessions for a few years, and in the courts for some years as well.
I have a personal theory that farmers have a particular connection with the land – the land is almost an extension of their identity, more than it is for the average person. I noted that farmers made up a high proportion of those who became litigants in person, fighting the repossession of their land by alleging various conspiracy theories. Nothing like taking away someone’s land to get them riled… The only thing which is worse for getting people riled is family law – which I don’t touch!
The just terms property provision is an interesting point, Mel. I know that no compensation has been paid to indigenous people for land that was taken pre-native title, but now compensation does have to be paid. I presume the same would be the case with this scheme?
“I have a personal theory that farmers have a particular connection with the land – the land is almost an extension of their identity, more than it is for the average person. ”
Very true, LE.
Most farmers don’t make much money and it is their sense of connectedness to the land that keeps them battling on thru the droughts, floods and mice plagues like the one that is currently spreading thru SE Oz!
ps. I hope you’ve made a full recovery from your illness.
Most taking of Aborigine land pre-dates the Constitution by a good distance!
Mel raises an excellent point about the Constitutional limitation. I believe the High Court has ruled that even regulatory takings, if extensive enough, can be an acquisition of property requiring just compensation.
There is, alas, a simple way around the Constitutional provisions: have the State Government do it — it can expropriate property any time it feels like it. The Constitutional provision only binds the Commonwealth government.
Regarding indigenous property, that was a point of contention between Crown and settlers for the entire history of the Empire. Indeed, George III’s Royal Proclamation of 1763 was one of the triggers for the American War of Independence.
(It is a useful exercise, asking why the Canadian colonies did not revolt, since they suffered the same taxes — lack of slaves, so they were not threatened by Somersett’s case; lack of numbers to expand into Indian land, so were not peeved by George III’s eccentric idea that all his subjects should have their basic property rights respected; division between English and Quebecois so they needed the imperial arbiter.)
Somersett’s case (1772 — note the date) established that common law did not recognise slavery. It made the American colonists’ status as mere petitioners to London rather more economically threatening.
I also agree with Mel that this issue is not the intention, but the means suggested.
LE’s point about farmer’s connectedness to the environment should in my view be qualified – excluding agribusiness that has more a quarterly balance-sheet view rather than a long-term perspective, a sense of stewardship (even if only to descendants) common in farming families.
As to property rights, I suspect the poor ability of some to see the full nature of benefits of anything but exclusionary goods, that non-exclusionary goods probably, with good management, have the potential for greater quasi-keynesian benefit-multiplers within complex systems like the environment, color attitudes to things like environmental services, with collective benefits and the need for collective covering of costs of investment (i.e. tax expenses). NIMBY-ism is the other side of the same coin.
It’s odd that the mining lobby, an extractive industry, can get special treatment, whereas the fauna and flora that provides competitive advantage in the rewnewal tourist industry (but once lost or degraded, the resource is irreplaceable), gets pushed to the sidelines and treated as a cost rather than an investment in good maintenance and restoration where still possible.
‘benefit-multipliers’ – is there a multiplier greater than 1? I am not aware of any conclusive or even very convincing evidence, everyone simply seems to model a multiplier according to their own utterly imaginary conceptions, no-one ever finds proof post-facto.
The defining Scots case on the slavery point is Knight v Wedderburn (the latter are still a prominent Edinburgh family). The Court of Session ruling is much more emphatic than Somersett, but then Scotland’s law in that period was almost wholly Roman law, and someone making a slavery argument was asking the Scottish Romanists to ‘tick a series of Justinianic boxes’ when it came to deciding whether something was slavery or not:
http://www.nas.gov.uk/about/071022.asp
DB@51
Markets with clear rules have shown excellent ability to trade attributes to their most efficient holders. For example, we pay to have the attribute ‘liable to catch fire’ allocated to insurance companies according to rules which work fairly well. The trick is being able to define boundaries to the attributes and to trade them to mutual benefit.
If one does not have such defined boundaries, one just has a mess. And the experience of officials (actual or quasi) having joint control over attributes with private property owners is not a happy one. (Such as NIMBY and BANANA — build absolutely nothing anywhere near anyone.) It is not a lack of imagination which leads to the scepticism about this proposal, it is the application of experience against comforting theories about good intentions.
Also, agree with P@52, multipliers are much more comforting myth than anything resembling empirically established phenomena. The incumbent Government congratulating itself in managing the only apparently successful fiscal stimulus in the developed world can point to maybe 43,000 extra jobs for the expenditure of $42bn, gives a cost of $1m per job: not evidence for a positive multiplier. Particularly as, even in economic theory, the fiscal multiplier in a small open economy with a floating exchange rate is zero (pdf).
The real reason Australia did so much better in the recent GFC and Great Recession was (1) our Reserve Bank managed monetary policy much better than did the Fed (2) our housing market did not collapse (3) our prudential regulation of banks worked better, admittedly in less stressful conditions (4) the floating exchange rate took much of any economic shock, including a dramatic, if temporary, drop in commodity prices (5) more Australians are employed in ways which allowed their income to dip without losing their jobs (6) China continues to take apparently any commodities we are willing to sell to them.
I suspect the UK response of fiscal austerity to pay down debt, and so allowing looser monetary policy, will work rather better than the US response of fiscal panic coupled with tight monetary policy followed by mild loosening.
That should be $43bn. It was not the secret of the universe in play
For more informed scepticism about multipliers, this study (pdf) estimates that more private sector jobs were forestalled/destroyed by the US stimulus than private sector jobs were preserved/created.
(Of course, if you think the intention was to permanently shift the US to a larger public sector, then that would be a sign of the stimulus “working”.)
The should be “public sector jobs were preserved/created”. Sigh.
L@54 I largely agree with your points re surviving the GFC, except I think the Reserve Bank’s contribution is grossly overstated, and the basic commonsense of the community is not mentioned at all.
The RBA basically has two gears (if you ignore ‘do nothing’) – lift or reduce interest rates. I’ve read endlessly about how the RB ‘looks forward through’ various ‘one-off, never to be repeated’ financial events, arriving somehow at a precice movement (up or down) of the only baseball bat they’ve been given – neatly measured in a 1/4 of a percent, or “25 basis points”.if you’re wanting to appear knowledgable on television. No wonder both sides of politics place great emphasis on the RBA’s independence – because they haven’t a clue either.
I think that Mr Stevens is overpaid, under informed, and just as prone to error as any other bank governor around the world. Further I think he could be replaced in an instant by any normal punter with a modicum of common sense – given all he can “do” is move one lever (out of many) either up or down.
What was the name of that dog who was first into space? He did an equivalent job, with about equivalent control and similar understanding of his environment.
Let me just add that, although I am not in thrall to the wisdom of our RBA, at the very least we got one thing right by appointing businessmen to the Board. That, at least, was a good move.
I’m not that big a fan of the RBA kvd, especially as every man and his dog could see that they were hoisting sails right as we turned into the wind when they raised rates just as the GFC landed!
But fortune favours the brave and they collect their share of the praise, however vicariously earned.
That said, I would restate L’s reasons as follows:
(1) our Federal debt levels were much lower allowing the Reserve Bank free scope to manage
dmonetary policy much better than did the Fed;(2) our housing market was much better designed and thus did not collapse;
(3) our prudential regulation of banks worked better and was not hi-jacked by panicked and wholly captured regulators, admittedly in less stressful conditions;
(4) the floating exchange rate took much of any economic shock, including a dramatic, if temporary, drop in commodity prices;
(5)
moreLess Australians are employed in sheltered over-unionised dead man walking manufacturing jobsways which allowed their income to dip without losing their jobs;(6) China continues to take apparently any commodities we are willing to sell to them, and, unlike the
Cartercurrent US administration, we let our companies sell them.(hope I didn’t screw that mark-up up)
kvd@59 & P@60 If you think the Reserve Bank is bad, what about other central bankers one might mention!
The Reserve Bank did not seriously tighten monetary policy in an unexpected way, which is what the Fed did. Though I will admit Mr Stevens’ recent comments on the Oz housing markets were not inspiring.
Also, our housing markets are not better designed, they just did not have the utterly mad interventions the US federal government engaged in coupled with unfortunate financial “innovation”.
But, with those quibbles, I take Patrick’s amusing mark ups
P@60 not only am I in awe of your awesome markup ability, but I also agree with your resummarisation. Except I would note that our press and public seemed somewhat more relaxed about the ability of Australia to respond to the GFC, for some reason – which was a good thing.
For example the GFC was doggedly referred to as the ‘Global Economic Downturn’ by The Institute of Chartered Accountants, while the rest of the world went into rapid meltdown.
For those who want to get a picture of how utterly mad US federal housing policy was (and to a significant degree continues to be) this review puts things in context.
L@63 it makes depressing reading, but I did wonder about one para:
I suppose it’s indicative of how easily one becomes inured to these large figures, but somehow $389 billion seems quite small to me. So I’m wondering if this figure is maybe under-/mis-stated?
Also, I will take this opportunity to correct your @61 – “if you think the RB is bad”. That is not the case at all. Simply put, I don’t consider the RBA to be worthy of the superlatives it receives. I think it has done its job well, and as you rightly say, much better than some of its peers.
kvd@64 I believe we may be in furious agreement. The $389bn does seem on the low side, only about 5% of total liabilities.
Fascinating, I think I might look out Guaranteed to Fail based on that review alone.
He did make a slight error though – the British bank Northern Rock didn’t fail through exposure to sub-prime investments. The business model they chose [run by a man with no experience or qualifications in banking!] was overly reliant on affordable access to the short-term inter-bank lending market rather than retail deposits or mortgages. This meant Northern Rock collapsed when inter-bank lending essentially ceased – nobody was able to quantify how much exposure they or anyone else in the market had to sub-prime/CDOs anymore and the banks simply stopped lending to each other. Yes the failure was kind of related to sub-prime, but only at a remove.
He’s probably correct that even better regulation wont be able to save Fannie or Freddie which seems a shame as to amateur ears, securitising US-style 30-year term mortgages seems to make a lot of sense (obviously with better risk controls). What probably needed to happen was to turn them both into the world’s largest Building Societies instead of going for a speculative hedge-fund model.
DEM for World Bank Govenor!
DEM@66 Fascinating further details on Northern Rock, ta. On the building society model, that was what the Savings&Loans aka ‘Thrifts’ essentially were: as the S&L crisis showed, the US Federal government has shown a truly awful ability to (mis)manage this sector.
Henry, maybe not World Bank, but the IMF is currently advertising.
It’s very difficult in comments to adequately express the depth of disgust I sometimes feel about the effective takeover of good ideas (building societies, S&Ls, and co-operatives in general) by the financial wizards. Somewhere along the line, managers became valued by profit instead of probity – and then we all fall down. No matter, there’s always another group of thrifty people to bedazzle with thoughts of higher earnings on things so basic as housing.
I’ve kept a quote from the SMH (22 October 2010 – discussing a possible interest rate hike) for a while now
which sums up the disconnect between those of us (then) paying 25 year mortgages at an interest rate of around 6.25% (financed as to nearly half by depositors receiving around 4.5%) and the Masters Of The Universe.
At the very least I would suggest there should be a clear legal (very high) fence between people who just want a reasonable return on funds and the pirates who cannot see that 20% returns imply someone else ‘losing’ 20%. More specifically – merchant banking services should never be mixed with the provision of something as basic as a roof over one’s head.
By all means let the Masters play, but let them play with other peoples’ money – those who can afford a trip to the races.
{mutters} Sarcasm does not become you…
Lorenzo@68 – Again, the diversification problem. While concentrating on their ‘core business’ the S&L industry worked just fine, but moving from an investment model to a speculative one wrecked the lot (outright fraud didn’t help in several cases).
I think bankers need to go back to being content to be boring, and I’m definitely with you kvd on separating the investment and retail banking arms of the big banking institutions (can you even call them ‘banks’ given the levels of speculation they tolerate these days?).
I’d be no use at the IMF, though. The staff could outrun me every time.
With respect, kvd, that comment is the stuff of an alternate reality. You ought to know better than that!
DEM, don’t worry, as good socialists I’m sure they hold some down for you. Egalité and all that.
No sarcasm intended.
Just thinking…. any brute animal is capable of asserting property rights, giving things away, especially things useful to you (even of marginal utility) requires something higher than brutishness. If Aristotelian/Victorian “great chain of being” notions are applied with devil’s advocacy, then the appropriateness of and strength of desire for property rights would be a bell curve over sensitivity, and consistent with the notion that human/skyfairy hybrid said “give away all that you own”.
With respect, Patrick@71, I thought you were trekking in PNG – assumed that was you and your mates DEM published?
You are quite correct to note that it’s very easy to get a return of 20% on equity, if you’ve for instance got 10 other equivalent sources of funds each earning you a net 2% – but the point remains that this sort of return really is an ‘alternate reality’ compared to the roughly 3-4.5% cash investment rate, or the 6-7% lending rate, and the margin thereby earned.
Just for interest’s sake (not seeking to make any point of it) the ANZ half year ended 31 March notes ROE of 16.7% with dividend before franking of (very) roughly 9% based on present share price. Those percentages translate to a half year net of $2.8bn.
To my amateur ears that sounds reasonable for a mature business, kvd. Now here’s my problem – book cooking for fun and profit. Even when they entirely conform to local accounting standards and rules they’re not accurate. I was made deeply suspicious during the GFC when all those banks in crisis posted a series of profitable quarters in the midst of market carnage, until the ONE quarter when everyone seemed to decide it was alright to post a loss and the whole industry did it (even those banks NOT being bailed out). That strikes me as a little convenient.
How on earth can you accurately judge the value a business as an external investor when you know d@mn fine that the financial reports aren’t accurate?! It seems like only large institutional investors have the kind of access to the financial administration of a company that would make it possible to really tell what is going on. I’m a big Warren Buffet fan, and on the surface “value investing” makes a lot of sense, it’s just impossible to do. Small investors may as well be throwing darts at a page of the Financial Times.
Now DEM, to suggest the financial reports aren’t accurate is accounting heresy! To mangle a phrase from Hilary Clinton’s husband, it only then remains to figure out what is meant by ‘accurate’, to whom, and for what purpose.
I completely agree with your conclusion, and I really don’t think it matters much to the small investor if the accounts (of large stable companies) are ‘accurate’ in any sense. You have to look to your own aims and timelines in making your decisions. Like you I admire Mr Buffet, but let’s acknowledge he is both a market influencer, and a company influencer – which gives him two distinct advantages over Josephine Punter.
For the JP, I think if you want to bet your future on the market, then all you can do is spread your risks over market sectors, in stable companies with a good dividend history, and hope they don’t embark on any significant new venture outside the area of their basic expertise. After that, all you have to worry about is that government policy remains relatively benign as to both your investments, and your own investment vehicle (super fund etc).
OR you could have a beer at the pub, and use the darts – and probably do nearly as well.
That or the “dogs of the dow” automatic investing strategy and rely on the reversion to the mean…
DEM@77 – yes. It might remove the intellectual satisfaction of thinking for yourself, but this method has a pretty good track record, and passes my basic test of requiring little actual knowledge of the market or specific companies; in other words, it reflects basic reality for the average punter.
Like the Royal Bank of Scotland?
Two-track banking is a good idea.
Unfortunately, there would be constant pressure from those ring-fenced into the boring low returns to get at the juicy high returns.
And kvd is right: in financial matters, there is no substitute for probity.
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