Shepheard, Mark

Martin, Paul

2012

There is a tension between the idea that property rights give rise to minimal legal accountability, and alternatively that property rights holders should exercise care in the enjoyment of their rights. This tension provides a basis for a discourse about stewardship and the practical meaning of a statutory duty of care to protect the environment. The discourse of stewardship and care that ordinarily occurs at the local or national level reflects sustainable development principles advanced in international agreements. The tension created by competing understandings and expectations of property is reflected in administrative rules that seem to make stewardship a legal obligation. These new rules mask the competing meanings embodied in the language used in international environmental dialogue, but in embedding competing meanings of terms in the legal discourse they potentially sow the seeds of future conflicts. This is in part because the pursuit of expanded stewardship responsibility is occurring alongside the creation of ever-broader legally secure property rights to the environment. The tensions are given a public expression in the heated 'farmers' property right' movement, which by 2010 is becoming increasingly strident. Thus there are three parallel forms of discourse about stewardship for natural resources which interact: formalised political discourse about desired norms, spilling over from international to parliamentary contexts; the inchoate legal discourse related particularly to the implementation of instruments; and the informal political discourse of political activism. All three discourses share characteristics that would be readily identified by a student of Foucault. The symbolic meaning of the language is not shared, and contests about meaning are also contests over power. The form of the discourse is specific to the context and follows 'rules of engagement' specific to that context for discourse. In this chapter we shall consider the interaction between the two formalised discourses that demonstrate competition. The competition we observe is complex. The different contexts and the resulting expectations of the participants in the discourse result in different basic assumptions, including assumptions about the specificity of meaning to be attached to the symbolic words. A contest between world views about humans and the environment, of the type identified by Dryzek, is evident in both discourses. An important distinction between the legal and the policy contexts is that the meaning of symbols that will emerge eventually through formal legal processes will determine which of the categories within Dryzek's taxonomy will emerge as dominant in legal practice. This is a power conflict over the specific meaning to be assigned to a particular set of linguistic symbols.

Environmental Discourses in Public and International Law, p. 71-95

9781107019423

9781139094610

https://hdl.handle.net/1959.11/11923

en

Cambridge University Press

Connecting International Law with Public Law

1

The political discourse of land stewardship reframed as a statutory duty

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