Friends' Work

// Property Rights, Sustainable Development and the Constitution

Submission to the All-Party Oireachtas Committee on the Constitution

FIE is also seeking to have the Constitution incorporate a distinction between goods and chattels, which are created property, and land and other forms of non created property

Contents

1 General provisions……….…………….........……........…2

1.1 Goods and chattels… ……….……….......................2

1.2 Land and non-created forms of property …........….3

2 Specific Provisions……………………………................…5

2.1 Access to the countryside………………………….....…4

2.2 The right to shelter……………………………………………......................5

2.3 Taxation of land……………………………………..........5

2.4 Rights of fictitious legal persons……………………………………...................6

Annex: Founding Principles of Friends of the Irish Environment.7



1. General provisions

A generalised statement in relation to property rights will fail to capture the important distinctions between different forms of property. We believe it would be appropriate to make the following distinctions.

The constitutional provisions should distinguish between, on the one hand

¬? Property in goods and chattels, and on the other hand

¬? Property rights in relation to the natural environment - land and other natural resources such as minerals, water, air, and the ecosystem's absorption capacity.

1.1 Goods and chattels

Goods have owners by virtue of the fact that they are created. We believe this ownership constitutes a natural law right and as such should be recognised by the constitution. Nonetheless, there are instances where these rights must be balanced against the common good. (Of course goods which have been lost, abandoned or otherwise fallen out of ownership do not necessarily have owners and the duty of the State to legislate for the common good is not limited by these natural law rights.)

In relation to the ownership of goods and chattels, we agree with the conceptualisation that ownership of goods exists but is limited by law in the interests of the common good. In this respect, we note the decision of the Supreme Court in the Derrynaflan case, and the findings of the court in relation to goods which are of heritage value. Similarly ownership of goods and chattels, whose ownership would be against the common good interest in biodiversity or sustainability, (e.g. endangered species) must be delimited by law.

A suitable provision could read:

The State recognises the right of natural persons to ownership of goods and chattels. It shall regulate by law this ownership to reconcile it with the welfare of the people as a whole, with due regard for the welfare of the people of other countries, to ensure the meeting of the legitimate needs of the current generation, to protect the interests of future generations, ensure the maintenance of ecosystem functions, maintain and restore biodiversity, and protect the natural, archaeological, cultural, spiritual and historic patrimony of the nation.


1.2 Land and other non-created forms of property

The natural environment - the land, the sea, and the air - is not created by human beings. Therefore they do not automatically have ownership. In addition they are in general limited in quantity. We would emphasise that property rights in land etc. are considerably more complex than the comparatively simple concepts of ownership of goods. Therefore they should be thought of as a complex range of rights rather than as simple ownership.

These property rights do not flow more or less automatically from an act of creation by a person/persons, but are determined by law in the interests of the common good. We believe that the conceptual formulation whereby property in land etc. is stated to be balanced against the common good is not the most meaningful way to think about these property rights. There are in a number of respects common good interests in establishing property rights in relation to land etc. These include (in a non-exhaustive list and no particular order):

¬? social justice
¬? the economic security of individuals, families and groups
¬? the fair comparative treatment of different individuals families and groups
¬? the protection of the environment
¬? the maximisation of economic efficiency
¬? the operation of a sustainable economy and society
¬? the protection of property in goods and chattels

The legal provisions in relation to property should be designed and elaborated in order to assist in meeting the various common good objectives which society sets for itself.

In this context we submit that the role of the Constitution is to set out in general and non-exclusive terms the common good objectives which must constrain property rights in the natural environment and protect the ecosystem's absorption capacity. We will return later in this submission to objectives which we wish to see included in the constitution and propose a wording.

As mentioned above, we recommend that the creation of rights in relation to land and other natural resources such as minerals, water, air, the capacity of the ecosystem to process waste, etc. should be governed by common good objectives. We recommend the following common good objectives be considered for inclusion:

¬? Sustainability, i.e. the meeting of the needs of the present generation without compromising the needs of future generation. This is a core principle. It forms part of the state's international commitments made through UN forums including the Rio Earth Summit and the Johannesburg World Summit on Sustainable Development. It has been incorporated in Irish legislation in the Planning and Development Act 2002 and is a guiding principle in the EU Treaties. We note that it is a principle of global and international application.

¬? Social justice

¬? Protection from arbitrary or unfair treatment

¬? The protection of biological diversity and its evolution

A suitable composite provision could read

The state shall provide as appropriate for individual, collective and public property rights in relation to land and other natural resources including minerals, water, air, and the capacity of the ecosystem to process waste. These rights will be provided for and regulated in such a way as to promote the welfare of individuals and of the people as a whole, with due regard for the welfare of the people of other countries, to ensure the meeting of the legitimate needs of the current generation, to protect the interests of future generations, to maintain and restore ecosystem functions, to maintain and restore biodiversity, and to protect the natural, archaeological, cultural, spiritual and historic patrimony of the nation. In providing for and regulating such rights, the State shall act in a manner which is proportionate and not arbitrary.


2. Specific Provisions

In addition, for the avoidance of doubt in some important areas there are a number of specific provisions which would be advisable.


2.1 Access to the countryside

The Constitution should provide for a right of access to the countryside limited by law in the interests of protection of agriculture and other legitimate use of land and privacy. As with all constitutional provisions this should be general for specific regulation by statute. The provision of the Swedish constitution is a good model:

All persons shall have access to nature in accordance with the right of public access, notwithstanding the above provisions. [Article 18, Swedish Instrument of Government, Chapter 2: Fundamental Rights and Freedoms.]

We suggest either the Swedish formulation or

The State acknowledges the right of the citizens to have physical access to the land, regulated by law, in a manner and at locations compatible with protection of the environment, the carrying out of agriculture and other legitimate uses of land, privacy and other appropriate considerations.

2.2 The right to shelter

The Constitution should recognise a right to shelter and impose a duty on the State to vindicate that right. Unlike property rights in relation to land, we believe this right to be a natural law right. We are confident that organisations active in the area will propose suitable wording.


2.3 Taxation of land

We agree with the general concern that the State should be able in a fair manner regulated by law to recover increases in value resulting from zoning or planning decisions. We do not believe that the current constitutional provisions would prevent this. However we see no reason not to make an appropriate explicit provision. We believe this recovery of value would most appropriately be done through taxation. Taxation would be superior in all or almost all respects to the recently suggested mechanism of "step-in rights" by compulsory purchase. It would be easier and cheaper to administer, would raise revenue, be fairer, more transparent, less contestable and involve fewer conflicts of interest and less scope and incentive for corruption. Therefore we recommend that the Constitution specifically provide that the use of land may be taxed.

A possible wording would be:

The State may, in a manner which is not arbitrary and promotes the common good, impose taxes on the use of land and other natural resources.

2.4 Compulsory acquisition

Powers of compulsory acquisition of property rights are an important element of the delimiting of property rights and the promotion of the common good. We believe the appropriate tests for such acquisition are
¬? The public interest
¬? Proportionality, and
¬? Non-arbitrary character

A possible wording would be:

The compulsory acquisition of property rights may be provided for by law but such acquisition must be demonstrated in each case to be in the public interest, proportionate and not arbitrary.


2. 5 Rights of fictitious legal persons

We note and agree with the view of the Constitution Review Group in its 1996 report that constitutional protection for property rights should be limited to natural persons. We consider that this is an essential distinction. Legal fictions, as neither human beings nor citizens, are not entitled to the rights of citizens or human beings. Indeed, the vindication of those rights would in all likelihood be an issue primarily in cases where it would be to the detriment of the interests of natural persons or the common good. Fundamentally, as creations of subsidiary law they should not have constitutional rights. As the existence of legal non-natural persons is a matter for statute, so are their rights.




FRIENDS OF THE IRISH ENVIRONMENT


Founding Principles

Friends of the Irish Environment is a network created by conservationists in Ireland in order to monitor the full implementation of European environmental law, to work for changes in the Irish planning laws, and to pursue concerns and cases in both the built and
the natural environment.

We support

¬? A root and branch reform of Irish planning laws. We believe that the Planning Acts must contain clear legally binding land use principles based on the concept of sustainable development.

¬? The full implementation in Irish law of European environmental legislation with a particular focus on the environmental impact assessment directive and the habitats directive.

¬? The maintenance of areas of scenic importance in the Irish landscape and the maintenance of traditional economic activities which sustain the population.

¬? The existing conservation designations and zonings in Ireland including national monuments listed buildings natural heritage areas special areas of conservation and areas zoned for amenity purposes in local authority development plans.

¬? The idea that urbanisation should not be at the expense of the countryside; the town-countryside boundary must be maintained. The Irish countryside should not be turned into a suburban subdivision.

¬? The traditional right of access to the land by the people of Ireland as well as the right of public access to the foreshore.

¬? The maintenance of traditional Irish nucleated settlements including villages towns and hamlets.

¬? The retention of agricultural land in agricultural use and the retention of rural character including old hedgerows and existing stone walls.

¬? Non-intensive agriculture with an emphasis on organic farming.

¬? The rejuvenation of the natural woodlands of Ireland with native species by means of appropriate forest design to avoid monoculture in order to enhance the landscape and enhance the variety of sustainable use of our woodlands.

¬? The sustainable use of the sea including the maintenance of wild fish stocks.

¬? Owner-occupied and social housing while opposing investment-led housing.

¬? Sustainable tourism that favours keeping revenue in the local community where it is spent. We oppose environmentally and socially destructive tourism projects.

¬? Coalitions of locally owned businesses in order to gain more control of the tourism sector both economically and environmentally.

¬? Non-car oriented transport both public and private: buses train community transport taxis and bicycles.

¬? Small scale interventions in the landscape as well as the use of traditional materials in residential building.


¬? We oppose

¬? The introduction of large centralised out of town shopping centres and support policies to maintain and enhance the viability of the local family owned retail sector.

¬? The use of flood plains for developments of any kind.

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