Absolute Ownership – A Myth in Need of Updating

Some acquaintances react rather badly when they hear “first nations and settlers”. They don’t like being called “settlers”. Their reaction reflects a widespread failure to accept the fact that the lands, that we now call “our lands”, were previously called “our lands” by other folks who were here before our ancestors.


When our ancestors invaded these lands, they did not grasp the concept that the land was shared among many groups across communities. It was held as ‘common property’ and cared for under community-based resource management. Instead, our ancestors imported and adopted the concept that each piece of the land was owned by someone. If not held by individuals, that ownership fell to the governing body and the government could transfer ownership to individuals. Everything had to be owned absolutely by someone. Just sharing the use of the land among many was not part of the history of the colonial powers and not understood by them.


Many decades later, the notion of absolute ownership has been shown to be untenable. Several of the benefits that settlers wished to derive from their land clearly were not supplied by individual properties. Water flowed across property boundaries. So did the air above. If “owners” polluted the water or the air, the consequences fell on others. A basic violation of morality. So gradually we frayed the edges of absolute ownership toward community responsibilities. Owners could not legally claim ownership of flowing water or its chemical constituents. The same became legally true for the air above “their property”. And for “game” mammals and birds.


Absolute ownership lost its hold on water, air, soil, once eroded, the ability to add smoke or noise or smells, ability to build some types of structures, ability to use the “owned” lands for some purposes, etcetera. The “absolute” nature of ownership could not be claimed even under the imported colonial precepts. Nature forced some acceptance of sharing because the benefits that were desired often were available only by sharing.


To complicate the notion of ownership and its effects on our social interactions, we are neighbours to a culture that tends strongly toward capitalism – the ownership of material goods. How can we believe in ownership of material goods and not believe ownership of the land is absolute?


These two questions of ownership – of the land and of material goods – flow together naturally and easily become a criterion of societal success. Own it and flaunt it and you gain status. This force makes sharing the uses and the values of lands more difficult.


Folks who tend toward classifications call sharing “socialistic” and some of them consider it contradicts “capitalism” and therefore is undesirable. Many Canadians suffer in the tension between indigenous systems of community property and the intense promotion to claim ownership of material goods. Economic models built on profit, consumption and flow-through of goods and money do not accommodate community property and sharing.


Advocates of sharing are unable to match the impact of capitalistic advertizing and don’t reach large segments of the public. Many citizens, intensely affected by commercial advertizing, are faced with moral issues and fundamental fears of the global path that absolute ownership and consumption of material goods will take.


There are alternative models. Indigenous peoples left us many examples of “common property” cultures. Without any legislation, since about 1200 ‘allemansraat’ has given Swedish people the right to hike across and to camp on private property as long as no damage is done. It is usual today to cross property of others in Newfoundland — even the front porch. In Nova Scotia’s Cape Breton along the Margaree River and others, you need only a fly rod, to be welcome along a riverside path and there are benches for your relaxation and your appreciation of the beauty.


England and Wales probably gave us our colonial guidance on trespass. In those lands, it is an offence to damage anything on the property of others including plants but there is a right to collect fruit, flowers, foliage and fungi as long as they are not for sale. If you go on land without the owner’s permission, you are trespassing but this does not apply on public footpaths. Trespass in Scotland has been a civil wrong since the Trespass Act of 1865 but it was amended in 2003 to give the public the right to walk on private land to get exercise.


At one time, in North America, most unenclosed and undeveloped land was open to public access for hunting, gathering kindling and berries and for walking. Those rights have been lost. Private property is zealously guarded and it is reported that trespass has been prevented at gunpoint.


The notion and the legality of “trespass” varies greatly across Canada. In several provinces, wanderers are directed away from gardens, lawns, crops and enclosed or signed areas. Some, such as New Brunswick and Newfoundland and Labrador, note clearly no law against entering undeveloped or non-industrialized areas. Ontario is the most restrictive, making it possible to charge with ‘trespass’ for taking a photograph.


Globally, many countries are denying the rigidity of the imperialistic philosophy of absolute ownership of land. Instead they are exploring the philosophy of ‘rights of nature’ where the land and its natural components hold the rights rather than some human lord or corporation or even government agency.


In 2008, Ecuador rewrote its constitution to include the “rights of Nature’ in Chapter 7. It says ” Nature, or Pachamama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes. All persons, communities, peoples and nations can call upon public authorities to enforce the rights of nature.”


The first cases have been brought to court in Ecuador and the Rights of Nature were affirmed. In the first case the Vilcabamba River was the plaintiff. The court found in favour of the river and against a government road-widening project that would impact the river. Reparation of the impact was ordered.


In 2010, Bolivia hosted the World People’s Conference on Climate Change and the Rights of Mother Earth. A Declaration on the Rights of Mother Earth was presented to the U.N. General Assembly.


In February of 2016, the Green Party of England and Wales developed a Rights of Nature Policy.


In India, Nepal, Australia, Cameroon, Columbia and US there is ongoing work toward Rights of Nature.


Several countries have recognized the rights of humans to a healthy environment including Spain, France, Portugal, Greece and Finland. But this is very different from recognizing the Rights of Nature. Rights of humans to healthy environment are closely related to the popular ‘Goods and Services’ approach. In both, human benefits are given priority. Rights of Nature arguments hold that structures and processes of natural systems should have priority over human or materialistic desires.


Belief systems that hold that land can be owned absolutely and thus can be made unavailable to non-owners have already been modified to degrees by legal and societal admission that some natural processes must be given priority over capitalistic and individualistic desires. Thus, in many lands, it is no longer acceptable to discharge damaging materials and forces into the atmosphere. It also is becoming unacceptable to impact floral and faunal structures by removing or introducing destructive organisms or forces. It is commonly true that landowners cannot own some components of ecosystems such as game and fish. In some urban areas, ownership also has surrendered rights regarding noise, light, building structure and aesthetics to varying degrees. Absolute ownership of land has been partially surrendered to social pressures.


Societal needs have made ownership of lands and waters less than absolute in order to safeguard community and even global processes. And climate change will force us to regulate and manage other aspects of ownership to protect and benefit the common good. Is it possible for social pressures to change public behaviour enough to allow some degree of non-damaging public access on private lands? Is it time to accept the impossibility of successfully stewarding our living systems entirely on public lands?


Economic and business models are poorly suited to guide stewardship of global forces that control our living conditions. Forces of the biosphere, that entire global ecosystem, are being recognized as in control of the water quality in the lakes where we have our summer cottages. It is said that increasing atmospheric carbon dioxide causes eutrophication just as does increasing total phosphorus. The linkages between forest quality and amount and atmospheric carbon are coming clear. As are the linkages between forest harvesting and global rainfall patterns. The needs of humans, especially urbanites and growing children, for the psychological support of ecosystems and landscapes is accumulating experiential support and growing professional evidence. Residual belief in absolute ownership of land inhibits progress in development of community behaviours that would adapt us to our changing global forces. Are those residual beliefs based solely on economic models that rely on consumerism?


The other side of ownership is responsibility. If there was no ownership of the land, who would take care of it? A workable arrangement would designate ownership of some aspects of the lands and waters to individuals but they would not be able to freely do as they wish. This is close to the ongoing arrangement. Except that owners often do not permit others to use the lands and waters that the owners control. If we could change owners’ reluctance to let others use their lands and waters, the arrangement would be improved but not fair to the owners. They would bear responsibility for the care of the land but would receive no physical or economic help in executing that stewardship.


So with permissive use of private land we could imagine that public pressure could inhibit the sale of harvested timber on the grounds that it would reduce the natural value of the land to the public. We might even imagine public pressure on an owner to spend funds on professional foresters to better manage the owner’s forest on the grounds that the entire municipality needs to have all forests managed sustainably.


How do we share responsibilities and values of the lands and waters?

Fundamentally, if the public wishes private owners to steward their lands and waters and to allow public access to them, then there should be some contribution from the public toward the care of those lands and waters. This cannot function fully on one property at a time.


Plant and animal populations use mosaics of diverse land over an area that involves many private holdings. (Populations on smaller land areas commonly become locally extinct.) For some species, the required area can be several square kilometers.


Properties of multiple owners may also be required to deliver the benefits expected by the human community. For example, the benefits to our community from a healthy forest can be assured only by managing many hectares of forest, commonly involving many owners. To learn whether our forest is declining or is capable of a steady rate of production of forest products can only be answered by monitoring across multiple woodlots. Similarly, managing the black bear population or the deer population must be done on multiple properties.


If the public wants all the owners in one of these areas to manage natural riches professionally, either a government agency must do it with tax dollars or we must find a way to compensate the property owners for the resources they put into the management. For example, if we want harvestable forests to be well managed, we should supply the owner with forestry consultants and professional tree markers to designate the trees to be harvested. The political inability of government agencies to provide sufficient resource management on private lands has become very clear in Ontario. Many land care responsibilities have been down-loaded onto the land owners and the public.


Now economic constraints have forced government agencies to retain only responsibilities that are required by enacted legislation. For example they regulate game populations and harvesting but are not responsible for the habitats that are required by those populations. Agencies regulate industrial emissions of carbon dioxide into the atmosphere but are not responsible for amounts of carbon sequestration or emissions from natural systems such as bogs and melting permafrost. Could community property management do better?


Environmental and social sustainability both require a new community-based belief system to replace the dysfunctional belief in absolute ownership of natural riches and the base of lands and waters that support those riches.








There are many refereed articles on “common property”. Here is a sample:

Berkes, Fikret, Feeny, David, McCay, Bonnie J. and Acheson, James M. (1989), ‘The Benefits of the Commons’, 340 Nature, 91-93.


Hanna, Susan and Munasinghe, Mohan (eds) (1995c), Property Rights in a Social and Ecological Context; Case Studies and Design Applications, Stockholm and Washington, DC, The Beijer International Institute of Ecological Economics and The World Bank


Ostrom, Elinor and Schlager, Edella (1996), ‘The Formation of Property Rights’, in Hanna, Susan, Folke, Carl, and Mäler, Karl-Göran (eds), Rights to Nature, Washington, DC, Island Press, 127-156.

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