Land reform in Scotland: is it achieving environmental justice?

Dr Aylwin Pillai & Ms Anne-Michelle SlaterUniversity of Aberdeen, School of Law

Email: a.l.pillai@abdn.ac.uk; a.m.slater@abdn.ac.uk

Introduction

• Environmental Justice – (1) In our teaching– (2) In our research– (3) In Scottish land reform:

• Scottish demographics

• Political context

• Land Reform (Scotland) Act 2003

• Evaluating land reform

– (4) In our student’s learning

(1) In our teaching:

Existing teaching:

• Rural Law (Honours)

• Environmental Law (Honours)

• Principles of Environmental Regulation (LLM)- average 28 students, offered in Oil and Gas Law and Law and

Sustainable Development programmes

• Sustainable Development and Law (LLM) - average 15 students, compulsory module for LLM in Law and

Sustainable Development

In planned teaching as part of University-wide curriculum reform:

• Sustainability - Interdisciplinary 6th Century Course available to all first year students across the University

from October 2010

• Sustainable International Development - Interdisciplinary 6th Century Course available to all second year students from 2011

- Developed out of new Centre for Sustainable International Development

- Focus on the developing world, using Africa as a case study

- Three lecturers from School of Law contributing to interdisciplinary teaching team of 24

(2) In our research:

• Research-led teaching

A.M. Slater – Planning, environmental justice

A. Pillai – Land law reform, sustainable development

– Slater and O.W. Pedersen, ‘Environmental Justice: lessons on definition and delivery from Scotland’ (2009), Journal of Environmental Planning and Management Vol. 52 (6) 797-812

– Pillai, ‘Sustainable rural communities? A legal perspective on the community right to buy’, Land Use Policy 27 (2010) 898–905

– Slater, Pillai and O. W. Pedersen, Newcastle University: Environmental Justice and Sustainable Development: A Scottish Case Study’ in French, D. (Ed) Global Justice and Sustainable Development, Brill, Leiden. Forthcoming 2010

(3) In Scottish land reform:

• Land Reform (Scotland) Act 2003 – flagship legislation of new Scottish Parliament

• 3 measures of land reform:• Part 1: Access to the countryside

• Part 2: Community right to buy land

• Part 3: Crofting community right to buy

• Environmental justice not an explicit policy objective but sustainable development is (Part 2)

• Agyeman, FoE (Scotland) and others have drawn links between land reform, environmental justice and sustainable development

Scottish demographics

• Small and ageing population (5,168,500)

• Recent statistics highlight income inequality:– 19% of the population live in poverty– 21% of children live in poverty

• Highly concentrated landownership

• History of social division

• Relatively low life expectancy

Scottish Political Context

Period Executive Body

Leading Party

Relevant SD Policy

Relevant EJ Policy

1999 – 2003 Scottish Executive

Scottish Labour/Scottish Liberal Democrats Coalition

UK SD strat. 1999

Down to Earth 1999

Dynamic Earth Address

2003 – May 2007

Scottish Executive

Scottish Labour/Scottish Liberal Democrats Coalition

Choosing Our Future 2005

Commissioning of EJ research, Planning policy, EJ fund,

May 2007 – current

Scottish Government

Scottish National Party

minority government

Economic Strategy 2007

EJ fund discontinued, focus on “social equity”

Linking land reform and EJ

• Time (LRPG deliberations and FOES campaign coincide)

• Shared social justice and EJ concerns including: – access to the countryside; – inequitable distribution of land, wealth and access

(legal rights) to resources in rural areas; and– community empowerment, self-determination and

participation in land management

Legislative Response

Sustainable development of rural communities encapsulating:

1. Redistributive justice: • Land Redistribution

– Part 2: Rural communities pre-emptive right to buy land

– Part 3: Crofting communities absolute right to buy

2. Procedural justice:• Community Empowerment and participation• Quasi-public ownership through company limited by

guarantee

Evaluating land reform

• Defining / understanding both EJ and SD in Scotland difficult because of changing political priorities

• EJ no longer a policy priority in Scotland – now incorporated into broader policy objectives

• At a policy level land reform demonstrates integration of environmental justice as the social pillar of sustainable development

• Focus on empowering rural communities through the legislation, accompanying policy and in funding provision

• In practice redistributive capacity of Land Reform (Sc) Act 2003 parts 2 and 3 severely limited

• Procedural justice also brought into question by perception that power of individuals within the community is not, in fact, strengthened – rather the Act replaces one private landowner with another, albeit a company limited by guarantee

(4) In our student’s learning:

• LLM courses draw students from Nigeria, Ghana, Angola, Pakistan, India, China, Thailand, Indonesia, Germany, France and, to a lesser extent, Scotland

• Most LLM students come from legal practice

• Sustainable Development and Law students use environmental justice as an evaluative tool to explore the meaning and practical application of sustainable development through examining:

– Relationship between sustainable development and environmental justice

– Case study on Scottish land reform

• Principles of Environmental Regulation LLM and Environmental Law (Honours) students study environmental justice as a distinct seminar topic

Student EJ workshop

• Generally international students responded much more enthusiastically to examining environmental justice, particularly those from developing world countries, than UK students

• In February 2010 we invited a group of 5 of our LLM students and 2 of our PhD students to discuss the role of EJ in our courses

• In class the previous year LLM students had been divided into 2 camps:

• Those who saw EJ only as a subset of SD (particularly in relation to public participation)

• Those who recognised the value of EJ as a concept

– Students acknowledged that after reflection they had changed their minds about the value of EJ:

• “The world’s focus is on economic development therefore environmental justice is necessary to create a balance” (Nigerian student of Sustainable Development and Law)

• “In Nigeria everyone thinks that environmental law is all about the environment and, therefore, I wasn’t interested. With environmental justice I learned that it’s all about people” (Nigerian student of Principles of Environmental Regulation)

• “Environmental justice is necessary. It’s all about empowering the people. It is all about making them part of the decision making process” (Nigerian PhD student examining the role of sustainable development in oil and gas exploration in the Niger Delta)

Conclusions

• EJ has had a turbulent history in Scotland due to political rhetoric, vague terminology and changing political preferences

• This presents difficulties in teaching the concept

• Notwithstanding, it is a useful evaluative tool in a number of teaching scenarios, not least as a tool to re-assess highly anthropocentric and development focused views of sustainable development

• Examined at a practical level in the context of land reform in Scotland, it is useful in assessing legislative responses to achieving sustainable development, land redistribution and community empowerment

• In a teaching context the procedural arm of EJ was recognised as particularly important in African countries where it is not being achieved and where the outcomes of environmental injustices are particularly apparent