Property rights and environmental conservation.

Abstract

The intention of this dissertation is not to embark on a discussion on the desirability of a property clause, nor to undertake a full analysis of the property and environmental clauses as they appear in both the interim and working draft constitutions. Instead it is my intention to analyze the inherent conflict that exists between property rights, specifically ownership, and environmental conservation. This will be assessed against the backdrop of the common law, case law and in the light of both the interim and working draft constitutions. Due to the fact that the terms "deprived" and "expropriate", as used in both constitutions, broadly correspond to the concepts of police powers and eminent domain, and since measures taken in the name of environmental conservation are invariably carried out under the auspices of the States police power, it is necessary to :- (a) assess the "deprivation"-"expropriation" conflict and emphasise the ambiguity that can arise in interpreting and differentiating between the two terms; (b) draw a distinction between police power deprivations and expropriatory deprivations. Foreign jurisdictions have experienced grave problems in drawing this distinction, which has been further exacerbated by the concept of inverse condemnation. U.S takings jurisprudence is analyzed to elicit the resultant chaos which will emerge if the courts do not come up with an adequate solution. A possible solution is offered which will provide the courts with an analytical framework within which to work; and (c) assess, although to a lesser extent, the courts ability to review Parliamentary enactments and administrative action.