Who Owns Nature? A Debate

By: Ned Hettinger, College of Charleston




Abstract

I argue that certain elements of deeply ingrained modern conceptions of property are extremely detrimental to achieving a sustainable and ecologically just future. I identify Biblical and Lockean sources for this idea of land ownership as "lordship" and begin to develop an alternative ecologically-friendly notion of land ownership that has Native American and Leopoldean roots. Landowners are trustees with duties to preserve the land, not sovereigns whose land is taken by a community's insistence that the land and its diversity not be destroyed. I explore the implications of this conception of land ownership for the debate about whether biodiversity should be treated as a common heritage of humanity or whether nations should have sovereignty over the biological resources within their borders.

Introduction

Property institutions fundamentally shape human societies. Our views about legitimate ownership powerfully influence how we see ourselves in relation to others and the world at large. Answering the question of who owns nature and the earth's biodiversityãand what it would mean to own such thingsãrequires making judgments about how individuals should relate to society and about how societies should relate to each other. Answering these questions also requires an understanding of the proper place for humans in the natural world.

I believe that certain conceptions of propertyãland ownership in particularãthat are deeply ingrained in modern cultures and institutions are extremely detrimental to these relationships. They distort our understanding of ourselves and our ties with other people and with nature. A sustainable and ecologically just future requires that we root out these dangerous ideas of property and cultivate a sense of ownership that makes possible global and ecological community. This is an extremely difficult task, for as Aldo Leopold is reported to have said, "To change ideas about what the land is for, is to change ideas about what anything is for."

Damaging notions of property

Let me begin by identifying some ideas about ownership of nature that I find pernicious. A powerful and ongoing interpretation of the Judeo-Christian creation story with enormous influence on contemporary views of nature ownership relies on a well-known passage from Genesis:

Then God said, "Let us make man in our image, after our likeness". . . So God created man in his own image . . . and God blessed them, and God said to them, "Be fruitful and multiply, and fill the earth and subdue it; and have dominion over the fish of the sea and over the birds of the air and over every living thing that moves upon the earth."

The idea that flows from this is that humans (and only humans) are divine-like beings who have a God-given right to subdue and dominate all creatures of the earth. Human dominion over the earth means that we have supreme authority over and absolute ownership of it. Certainly, this is not the only acceptable interpretation of this passage. However, it is one that has significant consequences for modern conceptions of land ownership and for people's understanding of their relationship to the planet, including implications for exponential human population growth and loss of wild lands and species.

John Locke, perhaps the most influential property theorist in the history of philosophy, takes up this dominion idea and develops it in even more damaging ways. Locke characterizes our lordship over the rest of creation as follows:

There cannot be supposed any such Subordination among us, that may Authorize us to destroy one another, as if we were made for one another's uses, as the inferior ranks of Creatures are for ours. . . The Earth, and all that is therein, is given to Men for the Support and Comfort of their being. . .and [for] the greatest Conveniences of Life that they were capable to draw from it. . .Yet being given for the use of Men, there must of necessity be a means to appropriate them one way or other before they can be of any use, or at all beneficial to any particular Man. . . Tis Labour then which puts the greatest part of Value upon Land, without which it would scarcely be worth anything. . .Nature and the Earth furnished only the almost worth less Materials, as in themselves.

Locke takes the biblical idea of humans as superior beings who reign supreme over the planet廣 biodiversity seen as our God-given property and adds the notion that uncultivated, unowned, undeveloped land is a "waste." Locke believes it is human labor that creates virtually all the value of nature, at one point suggesting that labor creates 99.9% of the value of land. Unless nature is transformed by humans, removed from the commons, and made personal property, Locke thinks it has no value to us and provides us with no benefits. Locke廣 paradigm relation to nature is one of maximum exploitation and consumption.

Modern industrial society has taken Locke's ideas to heart and made them a reality. Land, in its natural state, it is believed, needs "development." Those who cut down the trees, drive away the animals, and pave the land into a biotic desert are called "developers." Maximum economic exploitation of land is assumed to be its "best and highest" use. As was Locke, our culture has been blind to tremendously important values that nature on its own provides for all of us in commonãfrom pollination services to pollution filtering to climate stability to beauty and wonder. One recent study concluded that the total value of natural ecological services to humanity exceeded that of the gross national product of the entire world. We need a notion of land ownership that is sensitive to the incredible fertility of the earth apart from human labor or appropriation, and one that allows for significant chunks and dimensions of nature to remain in common for the benefit of all, humans and nonhumans.

When the European culture that Locke epitomizes came in contact with the native peoples of North America, there was a significant clash of perspectives about nature ownership. Listen to the Sioux warrior Sitting Bull speak of that very land that Locke had argued was a "waste" until human labor transformed it into something of value:

Behold, my brothers, the spring has come; the earth has received the embraces of the sun and we shall soon see the results of that love! Every seed is awakened and so has all animal life. It is through this mysterious power that we too have our being and we therefore yield to our neighbors, even our animal neighbors, the same right as ourselves, to inhabit this land. Yet, hear me, people, we have now to deal with another race small and feeble when our fathers first met them but now great and overbearing. Strangely enough they ave a mind to till the soil and the love of possession is a disease with them. These people have made many rules that the rich may break but the poor may not. They take tithes from the poor and weak to support the rich who rule. They claim this mother of ours, the earth, for their own and fence their neighbors away; they deface her with their buildings and their refuse. That nation is like a spring freshet that overruns its banks and destroys all who are in its path.

From this Native American perspective, the idea that humans have sovereignty over the earth is a malignant myth based on the white man's origin story. On their view, the earth does not belong to humans, humans belong to the earth. Owning the earth is like owning one廣 mother, that from which one came; to own the earth's biodiversity is to own one廣 kin, the four leggeds, the green things, and the wings of the air. We have much to learn about land ownership from North America廣 original peoples.

A few years ago, a rancher, attempting to save grass for his livestock, installed a twenty-eight-mile-long fence across open fields in the northern plains. The fence blocked the migration path of a herd of sixteen-hundred pronghorn antelope. Unable to move to their wintering grounds, the antelope risked starvation. No notion here of sharing the land with its nonhuman inhabitants. A population of mesa mint, a federally-endangered plant species, was uprooted by a private land developer and then deliberately destroyed "to insure that subsequent requests for federal construction grants would not be delayed." Some who own private property around Yellowstone National Park and oppose wolf-restoration have their own remedy to what they perceive to be "the wolf problem." When wolves come onto their land, they "shoot, shovel, and shut up."

One of the most troubling contemporary manifestations of this idea of landownership as lordship is the attempt to dramatically extend what counts as a regulatory taking of property that constitutionally requires compensation. In legislatures and courts throughout the nation, property rights advocates are attempting to require governments to compensate landowners for obeying land-use regulations. When the Nation's premier biodiversity law, the Endangered Species Act, prohibits landowners from cutting trees that are habitat for endangered red-cockaded woodpeckers, the government had better pay the landowner for the lost timber value. If wetlands can't be drained and filled, then the government should pay the owner for lost development rights. One commentator claims that "In midwestern small-town coffee shops, the right to ruin the land through erosion is an assumed stick in the bundle of ownership entitlements. Farmers demand compensation for nearly every erosion-control step. The right to till from edge to edge is also an assumed right, and payment is expected when acres for wildlife are left untilled."

The recent decisions that allow patenting life forms and the instructions of life are another troubling tendency. If possessiveness is a disease of our society that gets in the way of a proper understanding of our relationships to each other and to the earth, then perhaps we should not allow private property rights in life forms and genes. Perhaps allowing patenting of portions of the genomes of indigenous peoples or patenting genetically manipulated species of animals (and plants) is not the most appropriate way to stimulate desirable biotechnological innovation.

Land Ethic Ownership

Pernicious notions of property pervade our society. In particular, the belief that a landowner is a "land lord" makes no sense in this age of ecological awareness, exploding human populations, and global interdependence. An alternative vision of land painted by Aldo Leopold almost 50 years ago can help us re-conceive our ideas about owning nature.

He wrote:

We abuse land because we regard it as a commodity belonging to us. When we see land as a community to which we belong, we may begin to use it with love and respect. . . In short, a land ethic changes the role of Homo sapiens from conqueror of the land-community to plain member and citizen of it. It implies respect for his fellow members, and also respect for the community as such.

I want now to briefly explore what land ownership means if humans are conceived to be plain members and citizens of the land community.

Ownership is no one thing. Our children belong to us, as do our bodies, pets, toasters, ideas, and homes. We talk about each of these things as mine or yours, as we do about our spouses, countries, and parents. This should help us see that there is no reason to think that ownership of land and the living processes of the land must be understood in the same way as ownership of toasters. There is no natural, inevitable way that human societies must construct ownership relations and there are many legitimate purposes that property rights can and should serve. Property in the modern age of global and ecological interdependence ought to be constructed in ways that heal our damaged relationships to each other and to the earth.

Ownership involves a bundle of separable, more specific features, typically including rights to possess, use, and manage one's belongings, as well as prohibitions against harmful or destructive use. Often it includes responsibilities of care and duties to others as well. Appropriate ownership of land and its biodiversity is as much about taking care of the land and preserving its biodiversity as it is about rights of control and use over these things. Property rights in land are not absolute. The idea that owning land gives the owner a right of unfettered control and personal fiat over the land, in total independence of other's wishes, and without regard to what is good for the land, its neighbors, or the human and natural community at large, is an idea we must bury. Land ownership must be restricted so that uses of the land do not damage others' use of land or harm the common good that land helps to create. When a property owner fills a wetland, neighbors will watch the flood waters rise and the geese population fall. Regulations that prevent filling wetlands do not take owners' property rights away, but interpret ownership in a way that requires respect for the land, its neighbors, and the common good.

In thinking about who owns the world, we need to see a fundamental difference between owning human artifacts and owning natural givens. Artifacts were made for certain purposes, they exist for our benefit, and their value is arguably reducible to those benefits. In contrast, earthen nature and its diversity of life were not created for our use. Nature exists on its own and its meaning and value is not reducible to our purposes and uses for it. Respect for nature as other, as an independent being that unfolds on its own, should inform our understanding of permissible ways to own it. Nature, unlike artifacts, is found, not made. It is not the product of human labor. Thus the powerful labor justification for individual property rights I made it, and hence it is mineãdoes not apply to natural givens.

This should help us to begin to see why the right to destroy should not be included as part of land ownership or the ownership of biodiversity on the land. Destroying a toaster that humans made is one thing, destroying land that we inherited is something quite different.

Landownership involves the right to possess, use, and benefit from the land. It does not include a right to destroy the land, but a duty to preserve it. Landowners may use their land for sustainable timber production or farming, but they may not practice silvicultural or agricultural techniques that poison or so erode the land that it is unsuitable for future use.

This limitation on land ownership and property in biodiversity is further supported by distinguishing between renewable and nonrenewable natural givens. Oil is an example of a nonrenewable natural given. Ownership of oil, if it is to allow use of that oil, must allow for consumption of oil and in this sense destruction of it. In a similar way, land ownership ought to include the right to consume the produce from the land. But it is an audacious idea that landowners have the right to destroy the land itself, a perpetual resource and fountain of life. We must object to the idea that the owner of land has the right to destroy endangered species on that land, and we must reject the notion that the community takes one of his rightsãand thus should compensate himãwhen it prevents such destruction. Biodiversity and the land are renewable natural givens. Owning them involves more than the rights of possession and use. Ownership, in these cases, is also trusteeship. Owning the land is more like owning children or having a spouse than it is like a owning a toaster.

Biodiversity: national sovereignty or common heritage?

I now draw some implications of this view of land ethic ownership for the debate concerning national sovereignty versus common heritage treatment of genetic resources. Is biodiversity, most of which is found in poor, developing countries of the southern hemisphere, a commons belonging to all of humanity or do these countries of origin have national sovereignty over these biological resources?

I have suggested that individual landowners may possess and use the biodiversity found on their land, but with restrictions. Their ownership is a kind of trusteeship involving duties to preserve the renewable natural resources of the land. The ecological services the land provides (flood control, wildlife habitat, climate stability, maintenance of biodiversity and so on) are not something over which the landowner is sovereign. To prohibit the landowner from destroying these capacities of the land is not to take any rights away from him, for these common goods of the land are held in public trust. This is the kind of land ownership that is compatible with a land ethic.

In a similar way, biodiversity around the globe is a common heritage, not just of humanity, but of all life, both present and future. All communities of the world have legitimate interests in what a country does with the biological resources found within its territory. The earth's biodiversity is a global treasure, a natural wonder of the world. The Grand Canyon, the Yellowstone Geysers, the vast temperate rainforests of the Pacific Northwest are not just a common heritage of the people of the United States. The United States holds these wonders in trust and may not permissibly destroy these world treasures by, say, damming the Grand Canyon for cheaper electric power or unsustainably harvesting these rainforests and extirpating their endemic species in order to accelerate economic growth. That it is the United States (rather than some other country) that holds these lands in trust means that the U.S. may possess, use, and benefit from these lands, including charging reasonable access fees to them.

I have argued that sovereignty is the wrong way to understand ownership of nature generally, and I believe that national sovereignty is also the wrong way to look at a county廣 ownership of genetic resources and the biodiversity found within its borders. Does Mexico have national sovereignty over Monarch Butterflies because, after a 2000 mile journey from all over North America, the Monarchs winter in a few places within Mexico's political borders? National sovereignty would permit the countries of the South to burn their rainforests and thus wipe out perhaps half of the diversity of life on the planet, without this violating any duties to the rainforest, its life forms, or to other peoples of the world.

National sovereignty would encourage the South to take the attitude that if the global community wants protection of Third World habitats, they better pay for it. This attitude is analogous to that of the individual landowner who believes in absolute property rights and insists that the government must pay him for not destroying wetlands or endangered species on his property. Conceiving of individuals or countries as having sovereign property rights over resources on which the entire world community depends is an awful idea. The communities of the world need the Earth's forests as a carbon sink; we need the earth's biodiversity for foods, medicines, and wonder. The cumulative impact of each nation of the world exercising its sovereign right to destroy its forests and biodiversity is global impoverishment and potential disaster.

This is not to say that the wealthy, industrialized countries of the North have no obligations to help the South preserve what I'm suggesting we think of as a global commons. Far from it. Common heritage implies common responsibilities. If the developing countries can't afford to preserve the rainforests and species within their territories, then the North must do it for them. Consider an analogy. A country had a vast collection of paintingsãVan Goghs, Renoirs, and Cezannesã which they are burning in order to survive a particularly cold winter. Rather than insisting to the citizens of that country that they stop burning the paintings and freeze to death, we ought to come to their assistance and help them exploit their resources sustainably so they can survive without causing such a tragic loss. Our obligations would be even stronger if we had already foolishly and immorally burned impressionist paintings under our control in order to feed our frivolous, over-consumptive lifestyles, thus making the remaining paintings all that more precious. And if the country was forced into the situation of burning these paintings to survive in large part because of our past dubious dealings with them, our obligations would be stronger still. If the people of this country could survive and prosper by charging reasonable access fees to these paintings over which they are trustees, we should happily comply.

Conclusion

Who owns nature? Earthen nature is a common heritage of all the earth's communities of life. No individual, nation, or species has lordship over the nature in its possession and under its control. Ownership of nature, in the sense of possession, use, and some control over parts of the world, is essential for individuals, nations, and species to survive and flourish. That these owners act as trustees over that part of the common good that is under their control is also essential for the survival and flourishing of our planet.

NOTES

1. This statement was attributed to Leopold by Delores LaChapelle in Sacred Land, Sacred Sex: Rapture of the Deep (Durango, CO: Kivaki Press, 1992).
2. Genesis 1: 26-28.
3. For a useful analysis of Locke's views of property and their implications for environmental ethics, see Eric Katz廣 "The Traditional Ethics of Natural Resources Management," in Nature as Subject: Human Obligation and Natural Community (Lanham, MD: Rowman & Littlefield Publishers, Inc., 1997), pp. 224-30.
4. John Locke, Second Treatise of Government, chap. II, para. 6.
5. Ibid., chap. V, para. 26.
6. Ibid., chap. V, para. 34.
7. Ibid., chap. V, para. 26.
8. Ibid., chap. V, para. 43.
9. Robert Costanza, et al., "The Value of the World廣 Ecosystem Services and Natural Capital," Nature 387 (15 May 1997): 253-260.
10. As quoted in T.C. McLuhan, Touch the Earth: A Self-Portrait of Indian Existence (New York: Outerbridge & Dienstfrey, 1971), p. 90.
11. For one account of this case, see Eric T. Freyfogle, "Owning the Wolf: Green Politics: Property Rights, Ecology Rights," Dissent (Fall 1994), p. 485.
12. As quoted in Holmes Rolston, III, "Property Rights and Endangered Species," University of Colorado Law Review 61 (1990): 284.
13. Freyfogle, "Owning the Wolf," p. 486.
14. For a detail analysis and criticism of patents on life forms and genes, see Ned Hettinger, "Patenting Life: Biotechnology, Intellectual Property, and Environmental Ethics," Boston College Environmental Affairs Law Review 22 (Winter 1995): 267-305.
15. Aldo Leopold, A Sand County Almanac (New York: Oxford University Press,1966), p. x.
16. Ibid., p. 219-20.
17. For a somewhat different approach, see Gary Varner's "Environmental Law and the Eclipse of Land as Private Property," in Frederick Ferre and Peter Hartel, eds., Ethics and Environmental Policy: Theory Meets Practice (Athens: University of Georgia Press, 1994), pp. 142-160. Varner argues that because land is so heavily and justifiably regulated, we should no longer consider it as capable of being owned as private property. Varner's paradigm for private ownership is the personal fiat we have over things, like toasters. I believe that there are multiple paradigms of ownership, many of which do not involved such unfettered control. I also think that it would be a serious political mistake to claim that proper respect for nature requires abandoning the notion of land as capable of being privately owned.
18. For an elaboration of this position, see Eric Katz, "Artifacts and Functions: A Note on the Value of Nature," in Katz's Nature as Subject.


Updated: July 23, 1998

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