Regard comparatif sur l’obligation réelle environnementale et le conservation easement comme outils potentiels de mise en commun

Abstract

This article uses a comparative lens to examine methods of private environmental stewardship, situating them within the broader commons movement. Since 2016, French law has recognized the obligation réelle environnementale—a legal device that allows a landowner to enter into an agreement with a public authority, a public body, or a private legal person acting for the protection of the environment in order to impose both negative and positive obligations on the landowner and on subsequent owners. This mechanism enables a property owner to encumber land with an obligation serving environmental protection. It constitutes the civil law counterpart to the conservation easement, which has been recognized in common law jurisdictions for some sixty years. These are two innovative legal tools that make it possible to reconcile private property with the public interest.

This article argues that, although remaining within a proprietary paradigm may entail certain risks for environmental protection, it nevertheless appears necessary to develop tools that are grounded in the existing property framework in order to initiate a concrete transition toward the alternative framework of the commons. More specifically, the article advances the thesis that, subject to certain conditions aimed at limiting proprietary absolutism and exclusivity, private stewardship instruments such as the obligation réelle environnementale in French law and the conservation easement at common law can facilitate the pooling of certain natural resources, thereby strengthening the shift toward the commons that is required in the Anthropocene. The same could hold true in Quebec were a similar instrument to be introduced through legislative reform.