Papers by Daniel Fitzpatrick
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This book re-considers property law for a future of environmental disruption. As slogans such as ... more This book re-considers property law for a future of environmental disruption. As slogans such as “build the wall” or “stop the boats” affect public policy, there are counter-questions as to whether positivist or statist notions of property are fit for purpose in a time of human mobility and environmental disruption. State-centric property laws construct legal fictions of sovereign control over land, notwithstanding the persistent reality of informal settlements in many parts of the Global South. In a world affected by catastrophic disasters, this book develops a vision of adaptive governance for property in land based on a critical re-assessment of state-centric property law
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University of New South Wales Law Journal, 2019
Australian lawyers often extol the virtues of the Torrens system as a means to secure property in... more Australian lawyers often extol the virtues of the Torrens system as a means to secure property in land. Yet, the comparative evidence of benefits is mixed and context-dependent, particularly in terms of the nature, provenance and capacity of the state. This article analyses ways in which positivist land laws, including Torrens systems of title by registration, create legal understandings of property that are tied closely to projections or assumptions of state territorial authority. The intertwining of property and sovereignty constructs allodial conceptions of property based on possession or custom as subordinate, if not illegal, simply because they exist in social orders that lie beyond the administrative systems of the state. As a result, there is a chronic fragmentation of legal and social understandings of property in areas of the world with Torrens law and large numbers of informal settlements. The case studies include the Philippines and the Solomon Islands.
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Anthropogenic climate change is likely to be associated with an increase in sea-level rise and ex... more Anthropogenic climate change is likely to be associated with an increase in sea-level rise and extreme weather events, which will exacerbate migratory pressures in the western Pacific. Much attention has recently been paid to the prospect of transnational refugee flows from the territories comprising low-lying atolls, such as Kiribati, the Marshall Islands, Tokelau and Tuvalu. However, very little attention has been paid to the localised relocations that are likely to occur within the larger and more mountainous states, such as Papua New Guinea or Solomon Islands. Furthermore, while most land in the Pacific is formally held under customary tenure, existing scholarship tends to emphasise state-based norms and institutions and largely overlooks the role of customary systems in shaping adaptation to climate change. This emphasis is also reflected in national regulatory frameworks governing land and climate change adaptation. This chapter draws on existing literature and preliminary fieldwork in several sites in Solomon Islands to highlight the centrality of customary land tenure systems in facilitating or impeding relocation arising from environmental change. Existing literature on climate change and displacement in the Pacific often mentions the significance of customary tenure regimes but tends to conceptualise these systems as a source of marginalisation for at-risk groups and an obstacle to relocation. This chapter acknowledges that customary tenure regimes have the potential to contribute to the marginalisation of vulnerable groups, but also draws attention to the potential for customary tenure systems to facilitate relocation. In particular, it highlights the relationship between climate-induced movement of people and historical pathways of human mobility, including networks created by trade and intermarriage among kin-based groups. James Scott identifies a tendency for government officials to 'see like a state' − to simplify complex social relations, such as customary land arrangements, into regulatory constructs that facilitate state control (Scott 1998). There is a related tendency for climate change interventions to 'look for a state', and to identify state apparatus that can be strengthened in order to achieve adaptation or mitigation objectives. The desire to work through state channels is particularly clear in interventions concerned with identifying and accessing land for relocation.
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The adaptive characteristics of customary land systems deserve greater recognition in disaster or... more The adaptive characteristics of customary land systems deserve greater recognition in disaster or climate change policy frameworks. Policy frameworks on disasters and human mobility tend to focus on the role of governments in responding to displacement and on state-based mechanisms for facilitating relocation. However, Pacific states face a number of governance constraints in responding to disaster-related human mobility, not least of which is the fact that more than 80% of land in most Pacific countries is classified as customary land, that is, is held by local groups.
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Proceedings of the International Conference on Law, Governance and Islamic Society (ICOLGIS 2019), 2020
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The adaptive characteristics of customary land systems deserve greater recognition in disaster or... more The adaptive characteristics of customary land systems deserve greater recognition in disaster or climate change policy frameworks.
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The Cambridge Handbook of Disaster Risk Reduction and International Law, 2019
This chapter provides a study of disaster risk reduction (DRR) and planned relocation after Typho... more This chapter provides a study of disaster risk reduction (DRR) and planned relocation after Typhoon Haiyan, which hit the central Philippines in 2013. Typhoon Haiyan was the strongest recorded storm to make landfall. Soon after the disaster, the Recovery after Yolanda (RAY) plan proposed ‘no- build zones’ along shore and water lines, and resettlement of over 200,000 households, as a measure to reduce the risk of future disasters. The RAY plan implemented the National Disaster Risk Reduction Plan, which required relocation of local populations from hazardous areas purportedly to ‘meet commitments’ under the Hyogo Framework for Action. 4 The National Disaster Risk Reduction Plan is a product of the Philippine Disaster Risk Reduction and Management Act, which created a national framework for implementing the Hyogo Framework for Adaptation Action (Hyogo Framework). The Hyogo Framework is the predecessor instrument to the Sendai Framework. The Haiyan case illustrates the filtering of priority actions under international DRR instruments through national preparedness planning to disaster recovery programming
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SSRN Electronic Journal, 2017
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Alternative Law Journal, 2010
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SSRN Electronic Journal, 2016
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Adaptation to Climate Change, 2015
With anthropogenic climate change, there is a high probability that intensification of extreme we... more With anthropogenic climate change, there is a high probability that intensification of extreme weather events will combine with disaster vulnerability to increase the impacts of natural disasters in the Asia-Pacific region. As a result, adaptation to climate change includes proposals to “build back better” after natural disasters. Yet building back better is not a one-off or sui generis technical response to natural hazards as it involves adjustments to human systems that have evolved over long periods of political conflict and environmental stress. This paper argues that there is a link between human systems for managing land and adaptation to extreme weather events in the Philippines. In the Philippines, the government plans to relocate as many as 200,000 people away from the foreshore in the aftermath of Typhoon Haiyan. However, the Philippines government has provided little guidance on security of land tenure as an element of relocation planning, or as part of recovery efforts for people wishing to remain in their pre-disaster locations. While the current relocation program offers the Philippines the opportunity to provide secure land tenure rights to large numbers of vulnerable coastal dwellers, a failure to provide secure rights will almost inevitably result in households returning to hazardous areas, or continuing to reside in unsafe zones because they have been excluded from the relocation program. Moreover, outside relocation areas, there are risks that farmers and farm workers will miss out on a historic opportunity to obtain secure land tenure through agrarian reform due to the loss of land records as a result of Typhoon Haiyan
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The Yale Law Journal, 2006
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Papers by Daniel Fitzpatrick