Of Protest, the Commons, and Customary Public Rights: An Ancient Tale of the Lawful Forest

In this article, John Page and I explore an ancient tale of customary public rights that starts and ends with the landmark decision of Brown v Tasmania. In Brown, Australia’s highest court recognised a public right to protest in forests. Harking back 800 years to the limits of legal memory, and the Forest Charter of 1217, this right is viewed through the metaphor of the lawful forest, a relational notion of property at the margins of legal orthodoxy. Inherent to this tale is the tension that pits private enclosure against the commons, a contest that endures across time and place – from 13th century struggles against the Norman legal forest, through to modern claims of rights to the city.

This article is now available as an Advance copy with the UNSW Law Journal.


Water justice struggles as a process of commoning

The discourse of the human right to water has been critiqued for being overly individualistic, technical, compatible with the commodification of water (Bakker, 2007; Roithmayr, 2010; Bond, 2012), and as running the risk of overly centring the state (Dwinell and Olivera, 2014; Haiven, 2015; Angel and Loftus, 2017). These concerns have also been borne out to varying degrees in the institutional recognition and articulation of the right at both the United Nations and national levels (Clark, 2017). Due to the consensus-driven, ‘post-political’ nature of these forums (Rancière, 2004), Sultana and Loftus (2012: 9) acknowledge that this institutional engagement risks stripping the right to water of its conceptual weight – rendering it ‘a floating signifier devoid of any political content’. But they also signal a note of caution against overemphasizing the significance of these largely theoretical debates at the expense of empirical realities (Sultana and Loftus, 2012, 2015).

I have argued elsewhere that community-level water justice campaigns that elect to employ the discourse of the human right to water often successfully resist the deradicalizing risks of engaging with both the state and rights discourse (Clark, 2017). Building on this thesis, this paper will emphasize the everyday empirical realities water justice campaigns to explore whether the process of articulating and, particularly, of claiming the right to water can itself be described as a practice of commoning.

— Read more over at the Community Development Journal