A bit more news of the positive side of things this week,
From the grapevine
* Ian Causley (Fed Govt) will present the findings of the Cost of "public
good" conservation into parliament by the end of September.
* The NFF will be pushing the Property Rights / Public Good conservation
issue as the number one issue in the forth coming Federal Election.
Some or our news is
* The Townville Bulletin is doing a story on "Landholders for the environment"
* ABC radio National has invited Leon Ashby to do regular "Viewpoint"
segments for the Bush Telegraph program.
* Numerous people are making contact with us sharing news, ideas and
promoting our material. - We encourage our material being passed around if it
can help the community resolve any issue.
This Week we have
(1) Quotes from John Howard and John Anderson
(2) Canegrowers and public good conservation
(3) Native title in Qld
(4) Tree clearing listed as a threatening process in EPBC act
(5) NSW Landclearing civil disobedience threat
(6) Illegal clearing in SA
(7) ACF idea for tax incentives to raise 13 billion for environment
(8) Environment vs Irrigation - Qld
(9) Carbon trading in Qld?
(10) Statutory Theft - NSW Govt Departments Comments from the Cost of "Public
(*We will put the complete paper on our web site soon)
From John Howard`s speech on Aug 1st 2001 at the National Press Club
This is from his introduction
We are a government that has never shirked the hard decisions needed in
Australiaâ™s long term interest and weâ™ve provided good economic management
and pursued the strategic long term objectives vital for this nationâ™s
future. Australia is now heading in the right direction.
This is from his environment section of the speech
In the process the property rights of individual Australians must be fully
respected. The right to compensation must be included in our policy
From Queensland Country Life
John Anderson recently said this at the Qld National Party State Conference
" We cannot expect farmers to fulfil the expectations of the community, and
the legal requirements of government, to develop their properties, and then
expect the farmers to carry the whole cost when the community and government
changes it`s mind."
He is promising to achieve water rights and adequate compensation for
(* The Question is. Will the Govt shirk the hard decision to get a National
framework for property rights and progress good environmental outcomes?)
This is from Canegrowers
(2) FARMERS SHOULDER COST OF PROTECTING THE BUSH FOR NATIONAL BENEFIT
Concerned sugar producers in the Mackay-Proserpine region consider the State
Government has grossly underestimated the devastating economic impact, which
its new vegetation management legislation will have on individual landholders
and the regional economy.
âœIt is becoming clearer each day that restrictions on tree clearing will
financially cripple many individual cane farmers and cost the districtâ™s
sugar industry - and consequently the community - hundreds of millions of
dollars in lost future production,â warned Paul Schembri, Chairman,
CANEGROWERS Mackay today.
The Government proclaimed the Vegetation Management Act last September,
preventing the clearing of large tracts of native vegetation across
Queensland. It made no provision to compensate owners whose ability to bring
spare land into production.
Mr Schembri said the Government must acknowledge the devastating effect its
legislation will have on individuals and rural industries and either modify
the controls or provide appropriate compensation. âœWe now have farms with
large areas (up to 2000 hectares) that can only effectively function as
national parks, yet the owners are still expected to pay rates on these
unusable areas. Some owners are still paying off loans taken out to buy land
purchased with the reasonable expectation that it could be cleared and
brought into production. Some of these areas are now worthless in terms of
their contribution to improved productivity.â
Plane Creek (Sarina) and Proserpine districts would be hardest hit e.g. the
Plane Creek mill area could lose up to 300 000 tonnes of potential cane
He said revised maps issued recently by the Department of Natural Resources
contained some surprises for landholders, some of whom are probably not yet
aware they will be unable to clear their land for farming.
From QFF -
(3) Native Title - Qld - Where to get info
Brianna Casey and Noel Kennedy met with several staff from the Native Title
Services Unit of the Department of Premier and Cabinet Wednesday 25 July
2001. Noel is QFFâ™s cultural heritage and native title consultant, was
president of the United Graziersâ™ Association and has a long history with
Native Title issues. Native Title Services (NTS) was restructured in July
1998 and is the central agency for native title services. There are
currently 243 active Native Title claims in Queensland. NTS is comprised of
seven core areas:
Negotiations (07) 32276886, (07) 32276451
Legal (07) 32222977
Claims (07) 32222561
Historical and Anthropological (07) 32277964
Communications (07) 32258349
Administration (07) 34062107
Future Acts (070 32258349
From Brianna Casey (QFF)
(4) Tree Clearing already a threatening process in EPBC act
You mentioned in the last 'News and Views' that "tree clearing could become
listed as a threatening process under the EPBC act and therefore become
outlawed in all of Australia". I would suggest this is not a 'could' - the
listing has happened. In early April this year, the Federal Minister for
Environment and Heritage, Hon Senator Hill recommended unregulated clearing
be recognised as threatening under the Environment Protection and
Biodiversity Conservation Act 1999.
The listing does not give the Commonwealth power to intervene, however, it
does give the Commonwealth the power to make a Threat Abatement Plan for the
purpose of reducing the effect of a key threatening process (in this case
land clearing). However, it appears highly unlikely that a Threat Abatement
Plan for unregulated clearing will be developed.
The listing of unregulated clearing as a key threatening process occurred at
the same time Brigalow (Acacia harpophylla dominant and co-dominant) and
Bluegrass (Dichanthium spp) dominant grasslands of the Brigalow Bioregions
(North and South) were added to the list of nationally threatened
communities under the EPBC Act. We all know how contentious that decision
The EPBC Website www.ea.gov.au/epbc/index.html contains lists of all key
threatening processes, as well as up to date information on additional
From the EPBC web site
While recognising the broader issue of land clearing as a threatening process
, TSSC recommend that Clearing and degradation of lowland forest, feather
palm swamps, freshwater wetlands, grassland ecosystems, littoral rainforest
and other ecosystems, along the eastern seaboard (coastal lowlands)
bioregions of Queensland due to sugar cane farming and expansion is not
eligible for listing as a Key Threatening Process under the EPBC Act.
Fom ABC radio - there were 3 news items on this issue this week
(5) NSW Farmers threaten civil disobedience
Mr Amery's appeal for calm, while native vegetation plans are fully
developed, has fallen on deaf ears. In Nygan today, farmers are formally
tabelling the warning that they'll engage in "civil disobedience" unless
quick progress is made on their plan. These Regional Veg Plans, will dictate
the terms and conditions, for any future clearing in the region. Similarly,
in the Clarence, following a series of stakeholder meetings, graziers and
forestors have also rejected the preliminary draft of their local plan.
Farmers in the region want the planners to go back to the drawing board and
work from accurate maps, conduct a socio-economic study of the proposed
(6) alleged illegal clearance of vegetation near Port Germein - SA
The National Parks and Wildlife are investigating the alleged illegal
clearance of native vegetation on a property near Port Germein. Officers have
conducted an initial inspection of the property which has confirmed remnant
vegetation has been cleared. Frank Dalpieva, the Department's Manager of
Investigations and Compliance, says investigations into alleged breaches of
the Native Vegetation Act are always difficult, a site inspection is required
first and any site inspection requires them to evaluate the extent of the
clearance, they then work out what species have been cleared, so the
evaluation and extent of assessment processes is a complex one. They also use
photographs and also aerial photos to determine the clearance
(7) Environment Plan
How to get precious dollars out of the private sector to tackle Australia's
environmental problems? That's the thorny question that's been tossed around,
ever since a high-profile report last year suggested 65 billion dollars was
needed to tackle land and water degradation over the next decade. In order to
find an answer, the Australian Conservation Foundation joined forces with a
range of business leaders to commission a study into how it could be done.
The report suggests nearly 13 billion dollars over ten years could be raised
through a mix of policy and taxation incentives.
(* Good to see imaginative ideas being looked at, but we need a better
(8) Environment versus irrigation - Qld
A debate is raging in the North Burnett over water allocation, it's a debate
about the environment versus irrigation. Over the next month 6000 megalitres
of water is being released from Cania dam north of Monto, leaving just 4000
megalitres or just over 3% in the dam. The release is for irrigators
downstream of the dam. But the allocation of the water has been questioned by
local anglers, who suggest times are changing in regional Qld, and while
income generation through irrigation was once top priority, that's no longer
(* A bit of "public good" water conservation so it seems)
(9) Doors Open to Carbon Trading in Queensland - Qld
The Forestry and Land Title Amendment Bill was passed in Parliament Wednesday
8 August 2001. This means that primary producers, the Queensland forestry
industry and other landholders will now be able to register carbon rights on
their land title for potential financial benefits. The definition of a
â˜natural resource productâ™ as defined in the Bill includes parts of a tree
or vegetation (including grasses and shrubs) - including parts above and
below ground, alive or dead. Landholders can now enter into contracts about
the ownership, or exchange of ownership, and use of carbon rights generated
by trees and vegetation on freehold land.
By way of background, the Department of State Development (DSD) had reported
the lack of recognition of carbon rights in legislation as an impediment to
overseas investment. In order to address this, the State Government through
DNRM, DPI, DSD and the Premiers Department drafted amendments to the Forestry
Act 1959 and Land Title Act 1994.
The amendments, outlined in the Forestry and Land Title Amendment Bill
address freehold land only.
Recognition of carbon credits on leasehold land will be pursued over the
coming months. The Bill allows for the recognition of carbon sequestration
on freehold land, but do not address whether carbon has a value or not.
Effectively, the amendments allow for trees and carbon to be seen as separate
entities ie a landholder could sell the trees to one purchaser, and the
carbon sequestered by those trees to a different purchaser by contractual
arrangement. The legislation does not define who â˜ownsâ™ the carbon however
- this would need to be clearly outlined in the contract.
Finally excerpts from Comments from a NSW Government Official on behalf of a
number of government departments to the Cost of "Public Good" Conservation
Steadily increasing Government expectations about the environmental outcomes
required of owners of private land are eroding property rights and amount to
theft by statute. Somewhat paradoxically, this is occurring at a time of
increasing recognition that stronger property rights for a wide range of
commercial and natural resources lead to better commercial and environmental
The key to clarifying property rights for land and ensuring that the entire
community equitably pays for public good environmental restrictions is to
define an appropriate â˜duty-of-careâ™ for landholders. Regulations that
impose additional restrictions in excess of this standard should trigger
public funding. Unfortunately, Governments in Australia and overseas have
been remarkably reluctant to define a duty-of-care for owners of land, no
doubt seeking to avoid paying for community environmental demands.
The occasion was a November 2000 hearing of a Commonwealth Parliamentary
Committee inquiring into the cost of public good conservation restrictions on
private land. Appearing before the Committee was a representative of the NSW
State Government, who was speaking to a submission prepared on behalf of a
number of NSW State Government Departmentâ™s that have an involvement in land
The Committee members were questioning the witness on the concept of the
â˜duty-of-careâ™ a landholder should normally be expected to exercise in
managing land. The significance of the question is that if landholders face
regulations that go beyond this duty-of-care, then they are obviously being
regulated to achieve a public benefit, at a private cost. The Committee asked
the State Government
The main beneficiary of this policy is Government and the general public,
because by not defining a duty-of-care, Governments can impose
ever-encroaching regulations over private land use to meet ever-increasing
environmental demands, at no cost to the public purse.
Lessons from the USA.
Landholders in the USA have experienced problems similar to those encountered
in Australia concerning the definition of property rights, and appropriate
limits to landholdersâ™ duty-of-care. A key difference in the US is that their
Constitution incorporates a Bill of Rights, partly via the Fifth Amendment,
which expresses clearly the rights of US citizens in relation to property.
What are referred to as the takings and due process clauses state âœNo person
shall â¦ be deprived of life, liberty or property without due process of law;
nor shall private property be taken for public use, without just
compensation.â The historical origin of this is Chapter 39 of the Magna
Carta, signed by King John in 1215. It prevented the King from taking
property belonging to others, except as punishment, or when fair compensation
Much of the debate in the US about this issue has involved the question of
what is referred to as â˜partial takingsâ™ - which is the taking of some
property rights by regulation for the benefit of the public, without
necessarily acquiring title to the property. Up until the 1980â™s, the US
Supreme Court had adopted the same approach as the Australian High Court has
in cases such as the Tasmanian Dams Case where it was ruled that regulations
that remove some property rights, but do not involve Government acquiring
title to property, do not trigger any constitutional rights (under S 51(xxxi)
- the â˜just-terms clauseâ™) to compensation for the landholder. This is
despite recognition by some High Court judges that this allows Governments to
effectively acquire a personsâ™ property without paying compensation.
A series of US Supreme Court decisions throughout the 1980s has altered this
interpretation somewhat in the USA, irrespective of whether or not Government
acquires title to land. The result has been a series of rules the Court uses
to decide whether a regulation amounts to a taking of property. These are
referred to as the Agins Rules . In that judgement, the Court stated that for
a property regulation to be constitutional, it must;
have as its purpose a â˜legitimate state interestâ™,
it must substantially advance this interest, and
it must not deny the owner âœeconomically viable use of his land.â
The third rule has subsequently been explained to contain two tests, which
can apply to part or all of a property. First, the regulation must not make
it commercially impractical to develop the property, and second, there must
be no undue interference with the ownerâ™s investment-backed expectations. In
addition, in some of these situations the burden of proof now rests with the
Government to prove property has not been taken, rather than with the
property-owner as in the past.
USA Property rights Strengthened
These decisions have strengthened property rights in the USA, and placed
limits on the extent to which Governments can regulate landuse, without
paying compensation. However, the issue is by no means resolved, and most of
the key decisions in the US Supreme Court have been decided on a narrow
majority. In addition, it is generally conceded that progressing this issue
through the justice system is a slow, expensive and inexact pathway -
essentially a â˜back-endâ™ process that only occurs after the damage is done.
A Better Approach
The alternative â˜front-endâ™ approach is one where legislation is enacted
that requires lawmakers to assess the potential impact of their legislation
on property rights, before new laws or regulations are enacted. This is
similar to the approach that has been taken in Australiaâ™s native title
legislation (the future acts provisions) under which Governments are
prevented from carrying out â˜actsâ™ that may have an impact on the enjoyment
of any potential native title rights without first negotiating compensation.
In this situation, the onus rests with the Government to prove the proposed
â˜regulationâ™ will not damage the rights of the title-holder, which stands in
stark contrast to the approach taken for other property owners.
There are at least six pieces of legislation of this type progressing through
the US Congress and Senate, and the election of President Bush is likely to
speed these up.
Towards an Australian â˜duty-of-careâ™ for land.
The starting point in defining a duty-of-care for landholders in Australia
must be the broader legal principles surrounding this concept that have
already been spelt out by the Courts. It is fortunate that these coincide
fairly neatly with economic principles that dictate that the removal of
unnecessary regulation and the â˜beneficiary paysâ™ principle is the best way
to maximise productive use of resources within an economy.
Few would disagree with the ancient common law maxim - âœSic utere too at
alienum non laedasâ - one should use his own property so as not to injure
others. Australian Courts have refined this by requiring that any injury or
harm caused must have been reasonably foreseeable, there must be reasonable
proximity between cause and effect, and there is an overall test of fairness,
justice and reasonability about the duty-of-care.
These tests have been developed for situations where harm is already alleged
to have occurred, but as has been pointed out previously, the duty-of-care
concept protects both sides of the argument and these principles are just as
applicable in a situation where Government imposes a regulation that
restricts a landholder. In such a situation, a landholder would be eligible
for compensation for any economic loss unless Government could prove that
harm to another person or property would otherwise have occurred. Australian
Courts have already clarified that in situations where the aim is to prevent
harm occurring in the future (quia timet proceedings) the burden of proof
rests with those seeking to have the restriction applied.
Arguments already tested in Court
It may be claimed that landuse regulations that aim to protect biodiversity
or moderate greenhouse emissions are justifiable on the basis that in their
absence, harm will occur to the environment that is the property of the
entire community. This argument has also been tested in Australian Courts,
which have found that a reduction in scenic amenity or damage to biodiversity
do not constitute a nuisance. On this basis, the same ruling would be likely
to apply in relation to regulations concerning greenhouse emissions and
Threatened species regulations would also fail this test on the basis of
reasonableness and fairness. It is inconceivable that a Court would agree to
impose an economic cost on one individual, to achieve a benefit (the
preservation of a species) that is desired and enjoyed by the entire
community. The same would apply to restrictions imposed to prevent dryland
salinity. The lack of proximity between cause and effect, and the obvious
lack of justice and fairness in regulating one person to benefit the entire
community, means that these regulations would not pass the duty-of-care tests.
Can we get a Win - Win?
Some may argue that this would prevent Governments achieving environmental
objectives. But far from reducing Governmentâ™s ability to manage for
environmental outcomes, this approach would actually enhance it, as it would
require Governmentâ™s to specifically define community environmental
objectives, and where these are in excess of the duty-of-care, purchase these
outcomes from private landholders. This would make it beneficial for
landholders to identify and preserve desirable environmental characteristics
of their property, rather than the current approach that encourages them to
hide or destroy them.
The end result would be better, not worse, as far as environmental outcomes
Based on the US experience, the best way to implement this is via a
â˜front-endâ™ regulatory assessment process, rather than have it develop in a
slow and piecemeal fashion via legal decisions. A complication under
Australian law is that while the just-terms clause of the Constitution binds
the Commonwealth, it is the States that have responsibility for land
management. This means that legal precedent will only be created by
challenging regulatory actions of the Commonwealth, (which admittedly are now
more likely given the enactment of the Commonwealth Environmental Protection
and Biodiversity Conservation Act).
As they currently operate, these regulations simply amount to a theft of
property rights, under the guise of statutory regulations. Those responsible
for their enactment and implementation are clearly in breach of the
duty-of-care imposed on Governments, which requires that they treat all
citizens with equity and fairness. January 2001