Lee Godden

The power of the Sovereign state to acquire property, the process of acquisition, and whether compensation is due to property holders, and on what terms, are contentious issues in property law – partly due to the very strong protections embedded in property law for some, but not all property interests. This chapter examines these legal dilemmas by reference to contemporary situations where conflicts arise when environmental, land-use planning, and natural resources laws impact upon property interests. In this context, US regulatory takings laws are contrasted with Australian jurisprudence on environmental regulation and property interests. While these environment/property tensions are highlighted, that discussion is framed against the historical dispossession of Indigenous peoples, the limited compensation accorded to many of these Peoples, and the nascent Australian jurisprudence on compensation for cultural loss for Australia’s native title holders.

Property, law, and society are strongly interconnected conceptually and practically. It is difficult, if not impossible, to speak of one of these terms without also acknowledging the impact of the others. In this Introduction to the Handbook, the editors outline the nature of the connections between property, law, and society by reference to the multiple forms of property scholarship that have emerged in recent decades. We consider how socio-legal property scholarship relates to more traditional doctrinal scholarship and reflect on the range of disciplines that participate in the field. The introduction also outlines the structure of the book and provides a succinct summary of each of the chapters.

This handbook brings together diverse perspectives, major topics, and multiple approaches to one of the biggest legal institutions in society: property. Property touches on many fundamental human questions. It involves decisions about power, economy, morality, work, and ecology. It also involves ideas about where humans fit in the world and how humans relate to more-than-human life. This book will ask in myriad ways such questions as: what property means, what kinds of property there are, what is and should be the relationship between owned and owner, and what is the impact of different forms of property on life in this world? Drawing on a range of socio-legal and empirical methodologies, renowned scholars and rising stars in property from around the world present current issues and map future directions in research. Coming from the place of law but reaching out through cognate disciplines, this handbook provides a comprehensive and accessible survey of current research at the interface of property, society, and the environment. This handbook will appeal to students and researchers across a range of disciplines, including law, sociology, geography, history, and economics.

Increased scrutiny and contestation over recent water allocation practices and licencing decisions in the Northern Territory (NT) have exposed numerous inadequacies in its regulatory framework. Benchmarking against the National Water Initiative shows that NT lags behind national standards for water management. We describe key weaknesses in NT’s water law and policy, particularly for Indigenous rights and interests. NT is experiencing an acceleration of development, and is conceptualised as a ‘hydrological frontier’, where water governance has institutionalised regulatory spaces of inclusion and exclusion that entrench and (re)produce inequities and insecurities in water access. Regulations demarcate spaces in which laws and licencing practices provide certainty and security of rights for some water users, with opportunities to benefit from water development and services, while leaving much of NT (areas predominantly owned and occupied by Indigenous peoples) outside these legal protections. Water allocation and planning, as well as water service provision, continue to reinforce and reproduce racialised access to (and denial of) water rights. Combining an analysis of the law and policies that apply to water for economic development with those designed to regulate domestic water supply, we present a comprehensive and current picture of water insecurity for Indigenous peoples across the NT.

Australia is an energy resource rich country. The laws and regulations for energy are strongly influenced by its federal constitutional and government arrangements. Subnational governments control most upstream production due to the vesting of energy resources in these jurisdictions. A process of energy law and policy centralisation over the 20th century has combined energy liberalisation and privatisation with the interconnection of energy transmission and distribution systems, creating national energy markets in electricity and gas. These national markets are governed under cooperative frameworks facilitated by reciprocal energy regulation laws, which have been enacted in participating jurisdictions. While carbon-based generation is still predominant, transition to renewable energy is underway, precipitating challenges for national energy market regulation. The failure of the national government to lead on climate change action has seen subnational governments take a proactive role on climate measures, while federal attention is directed to energy security and affordability.

Environmental water governance is a highly contested space in which the legitimacy of institutional and legal models for water managing relies heavily, but indirectly, upon the effectiveness of community engagement. Accordingly, this article explores the relationship between legitimacy and participatory forms of decision-making in relation to public institutions with responsibility for environmental water governance in Australia. This examination explores the role that law and systems theory, working as transdisciplinary, theoretically informed praxis, can bring to an understanding of socio-ecological systems for environmental water governance. The Olifants River case study in South Africa provides a counterpoint to the investigation of environmental water institutions in the Murray–Darling Basin in Australia. As a grounded analysis of emergent forms of community engagement, the South African model illustrates how systemic affordances can introduce greater flexibility and choice, and thereby enhance the legitimacy of environmental water governance.

Water reforms in Australia over a decade ago have seen large-scale recovery of water for the environment. While the recovery programme commenced with bilateral political support, there has remained ongoing debate in the media around the recovery volume, method of recovery and delivering of this water through the river system. In November 2017, a group of academics and practitioners met to discuss the need for legitimacy as a core component of environmental water programmes. We discuss legitimacy in terms of both the process and outcome of an environmental water programme. This article, along with the others in the special issue, makes the case for investing in community support for, and demonstrating outcomes from, environmental water programmes.

The editors in this chapter introduce the topic of innovation in energy technology and energy law. They highlight some of the pathbreaking changes that have occurred during recent years in both realms, which the chapter authors will address in detail. No factor stimulating energy innovation is more prominent than the need to address climate change around the world. Climate change is joined by other environmental concerns, sustainability, economic efficiency, energy security, energy justice, and geopolitical concerns in shaping the development of energy innovation. The authors also explore the academic topic of innovation and identify its relevance to legal innovation in the energy field.

‘Smart infrastructure’, such as smart meters, are innovative, information-based energy technologies designed to promote systemic energy efficiency, cost savings, and to transition energy markets toward sustainable outcomes, including reducing climate change impacts. Smart meters promise innovation in electricity markets–as an enabler of demand-side services and a more distributed energy system. The chapter examines three case studies of legal reform for smart meter introduction in Australia and Germany. It concludes that the realization of the innovation promise of smart infrastructure requires the legal system to address consumer-oriented social and economic changes. While legal responses are growing in sophistication, significant questions around consumer protection remain, although Germany emphasizes consumer privacy more than Australian case studies. Finally, Germany most closely links innovation to climate change and electricity system transitions, whereas, increasingly, Australian policies emphasize the consumer benefits and innovation in the business models for electricity distribution.

The final chapter links contemporary political and economic developments with an historical overview of innovation in energy technologies and energy transition. In order to achieve the goals of the Paris Agreement both technological innovation and legal innovation will be essential and wide-ranging. This chapter canvasses the role of governing legal frameworks in facilitating energy innovation. Against this background it provides a summary of the key conclusions from the various chapters and discusses energy law, energy globalization, and energy nationalism. The chapter provides predictions of future directions in energy law and transformation by reference to the three factors of energy markets and new actors, climate change and sustainability, and energy security.