Professor Ross Fitzgerald » Blog Archive » Green lobby threatens land rights

Green lobby threatens land rights

27 March 2010 9,711 views 4 Comments

NEW environmental laws are undermining indigenous and non-indigenous property rights.

The protection of property rights in Australia is an important issue that is uniting indigenous and non-indigenous landholders.

Both are concerned that in recent years the introduction of vegetation clearing laws, compulsory property acquisitions and, recently, the Wild Rivers legislation in Queensland threaten their livelihoods. So they are seeking recognition and protection of their rights where they have been removed by environmental and heritage laws, and just compensation if these rights are removed.

One unlikely champion to take a stand on this issue was Peter Spencer. Although his past and business record did not bear close examination, earlier this year Spencer became a folk hero during his hunger strike on his property in southern NSW. Denied use of his land by the commonwealth commitments to the Kyoto Protocol enacted by the state government and denied the compensation that the Australian Constitution entitled him to because the NSW government, rather than Canberra, implemented the land use laws, he decided to take a stand. He certainly won’t be the last.

Surely indigenous and non-indigenous people have a reasonable expectation that control over their land means they will determine future land use and management subject to a fair and reasonable regulatory framework.

This is critical if governments and interest groups are to be dissuaded from seeking to impose their will without fear of legal challenge or the need to consider statutory provisions for negotiation or compensation.

As Noel Pearson has pointed out, the Wild Rivers legislation introduced last year by the Queensland Labor government is symptomatic of the weakness of the system of property rights, and ever-bolder actions will certainly follow if such actions are left unchallenged.

Although the commonwealth Constitution provides for compensation on “just terms” where there is an acquisition of property, this is not binding on the states.

Amendment of the Constitution to make it binding on the states is practically impossible. What may be possible is to use existing provisions of the Constitution to make governments pay “just terms” compensation.

It may be possible in some circumstances to argue that the states have acted as an agent of the commonwealth in implementing environmental laws, , for example where states have acted to meet the Kyoto Protocol on behalf of the commonwealth, or in implementing a Council of Australian Governments agreement, or to protect the values of a World Heritage area.

Indigenous peoples in Australia have been fighting for the recognition of their property rights for the past 200 years. According to Pearson, “that is what the struggle for land rights was fundamentally about”. Yet just as land rights are being gained, Pearson claims “state governments and extreme green groups are legislating to reduce the property rights of indigenous Australians”.

This whole issue is fundamentally about land rights, he says, not the environment.

Some Cape York indigenous groups believe they have a compelling case against the Queensland government for taking away their native title right to “speak for country”; in other words to plan and make decisions for their lands.

They also believe there is a compelling case in relation to the removal of economic development rights by the Wild Rivers declarations. This is because there is a strong argument that the restriction of land use for conservation purposes is an acquisition.

The Wild Rivers Act, like Queensland’s Vegetation Management Act, makes no allowance for provision of fair and just compensation. Indigenous and non-indigenous landholders are not compensated for the loss of property value and property rights that result from any declaration.

The lack of basic safeguards in the Wild Rivers legislation has arguably led to a breakdown of integrity and accountability mechanisms and has perpetrated a serious injustice against indigenous people. A clear example is the decision by the Queensland government to declare the Aurukun wetlands as a high preservation area without consulting indigenous landholders.

The state government intends to place up to 80 per cent of Cape York, including large tracts of indigenous land, under Wild Rivers declarations. Until relatively recently, conservation areas in Queensland such as national parks or nature refuges could only be declared following the acquisition of the land and just compensation to the landholder, or through the agreement of the landholder.

The Wild Rivers Act explanatory notes advise that the level of preservation sought for wild rivers is higher than for ecologically sustainable development but below that generally provided in a national park. ESD is a well-established principle that reasonably allows for development that meets the needs of the present without compromising the ability of future generations to meet their needs.

But Wild Rivers declarations seek to achieve a level of protection closer to a national park, where economic development is virtually prohibited.

For indigenous people on Cape York and elsewhere on the continent, a key concern is the recognition and protection of their rights, followed by compensation for the denial of rights. For many indigenous people it seems ironic that, while they have recently seen the return of their traditional lands, control over these lands is being removed by government at the behest of white-dominated conservation and heritage groups.

Recently, federal Opposition Leader Tony Abbott introduced a wild rivers private member’s bill. The Senate has referred this bill for inquiry and report, with submissions closing at the end of this month. Hopefully this will provide an opportunity for the Senate to give full consideration to the effects of environmental laws on indigenous and non-indigenous landholders, as well as dealing with the integrity and accountability issues that arise where there are inadequate safeguards to landholders’ rights.

The application of the Constitution to provide just compensation where the imposition of such environmental laws removes landholder rights would be an important step to achieving an equitable system. All Australians — indigenous and non-indigenous — deserve just compensation in situations where the imposition of environmental and heritage laws removes their rights as landholders.

4 Comments »

Dave Kimble said:

The Wild Rivers legislation is definitely NOT an attack on Land Rights. All landholders have to obey the laws, including Vegetation Management Act (tree-clearing), wetlands, Wild Rivers (in designated pristine catchments), potentially acid sulphate soils, coastal erosion, World Heritage and on and on. The aim of all this legislation is to have good land management, and indigenous landowners should obviously have to obey the law, just like anyone else. It would be racist if one race had to obey the law and another race didn’t.

Land Rights has always been supported by greens, because the indigenous communities have declared that they love their land. They treat it as “sacred”. And they rightly point out that they have looked after it well enough for it to be called “pristine”.

It is Noel Pearson and Tony Abbott who are in favour of mining, logging, irrigated farming on creek-banks, tourism infrastructure – all potentially having serious impacts on the river catchments. Pearson wants indigenous people to have jobs driving bulldozers strip-mining their “sacred land” for bauxite and whatever else will earn the mining companies a quick dollar. You can imagine how much the miners care about rehabilitating the land afterwards. Land Rights was never about the right to strip-mine the land.

If the development proposals will have no impact, or a manageable impact, then they will be allowed to proceed. If they will seriously harm the river catchment, then the development application will not be granted.

Since development applications are just that – applications, no compensation is due if an application is knocked back, so all this constitutional talk is just nonsense.

Make no mistake, this is nothing to do with Land Rights, and everything to do with mining.

# 27 March 2010 at 2:23 pm

Ian Hampton said:

I just saw your article “Land rights under threat gtom the green lobby” in Weekend Australian – thanks for that…. bit by bit the Spencer case and that of estimated 30,000 other farmers/landholders in NSW and Queensland is getting out. I am one of the people supporting Peter Spencer in his on-going campaign which will include an upcoming Full Bench hearing in the High Court. I thought you might be interested in our latest media release (sent out 24 March) in support of Peter Spencer and the “Tower of Hope” people power movement (see below). If you would like to get future media releases – please let me know and provide me with an e-mail address – and I will put you on our data base.
Regards, Ian Hampton

# 4 April 2010 at 1:26 pm

Steve Truman said:

In today’s Weekend Australian Peter Spencer is not only acknowledged as a National Folk hero for the stand he has taken on secure property rights, but what he has been saying for five years which was largely scoffed at by the academic elites and mainstream is now written about as fact.

I have an inkling of how satisfying this recognition finally, for what he has been saying, must be for Peter. I have been writing about it for three years and have been dismissed and ridiculed by farmers, greens, conservationists, business people, politicians and in particular the State Farming Organizations and the National Farmers Federation (NFF) as an “idiot” and a “red necked radical”.

Hot on the heels of the “enlightened” coming out of the NFF this week on the issue, today to his full credit we have Professor Ross Fitzgerald (pictured below) a well-known and influential Australian writer, broadcaster, academic and political commentator, Professor of History and Politics, personal Chair, 1996- 2002, and Professor Emeritus, History and Politics, Griffith University, 2003 to the present coming out all guns blazing in his widely read column in the Weekend Australian.

Land rights under threat from the green lobby

“THE protection of property rights in Australia is an important issue that is uniting indigenous and non-indigenous landholders. . Both are concerned that in recent years the introduction of vegetation clearing laws, compulsory property acquisitions and, recently, the Wild Rivers legislation in Queensland threaten their livelihoods.

So they are seeking recognition and protection of their rights where they have been removed by environmental and heritage laws, and just compensation if these rights are removed.

One unlikely champion to take a stand on this issue was Peter Spencer ….. earlier this year Spencer became a folk hero during his hunger strike on his property in southern NSW.

Denied use of his land by the commonwealth commitments to the Kyoto Protocol enacted by the state government and denied the compensation that the Australian Constitution entitled him to because the NSW government, rather than Canberra, implemented the land use laws, he decided to take a stand.

He certainly won’t be the last.”

Emeritus Professor Ross Fitzgerald’s influential weekly column is widely read by academics, bureaucrats, those in the judiciary and Politicians.

# 4 April 2010 at 1:32 pm

Syd Walker said:

ESD may indeed be a “well-established principle that reasonably allows for development that meets the needs of the present without compromising the ability of future generations to meet their needs”.

But one may reasonably echo Gandhi’s words from a previous era:
“What do I think of Western civilization (ESD)? I think it would be a very good idea.”

In few cases – taking Australia’s land mass as a whole – do we have baseline data, procedures in place or even an agreed theoretical basis necessary to monitor ecological sustainability with any real confidence.

Huge changes will clearly be required – worldwide – in human organisation and customs if we are to retain more than a small fraction of this planet’s biodiversity longterm. Naturally, this will give rise to many conflicts with notions of ‘property rights’ developed in and for earlier times.

I suggest there are few absolutes in this debate.

Do landowners have an absolute compensatable ‘right’ to contribute, knowingly, to the liklihood that other species will become extinct? I think not.

Coherent planning and land management controls are invitable in our era – even if they were often absent during Australia’s ‘frontier’ past. You acknowledge this yourself with the phrase: “subject to a fair and reasonable regulatory framework”. But you never return to that rather crucial topic…

I take it you are personally in favour of private property ownership? If so, the notion that land ownership confers responsibilities as well as rights is your friend. To reject that is to hand Leninists a strong card indeed, as ‘responsibility-free’ private land ownership is incompatible with a sustainable future for billions of people.

We need constructive discussion about how to bring about the necessary changes in our economy and land management so humanity’s wellbeing – along with this planet’s biological riches – are better protected longterm. Meanwhile, desirable parts of our cultural heritage that are compatible with a sustainable future should be cherished while we shed what’s not compatible with sustainability as painlessly and fairly as possible.

That’s a complex topic requiring subtle thought.

Rants about ‘property rights’ as though they’re an absolute good are not helpful. They’re already on offer from pundits such as Bolt and Devine, a variety of shock-jocks and numerous unreconstructed conservative politicians.

Why add to the dross, Ross?

# 10 May 2010 at 4:55 pm