Property Rights Australia

David Kempton

Property Rights under attack
My name is David Kempton. I grew up on a very small cattle property in central New South Wales and have had a passionate interest in the cattle industry all my life.

 

Being a lawyer is not about winning or losing but achieving the best possible outcome for my clients. Mostly I try to at least give people a chance where they thought there was none.

 

I subscribe to Alf Collins idea of hard work and clever thought.

 

In the early nineties we saw a shift in the administration of land in Queensland.

 

The Department of Natural Resources (or lands department) remained the owner of the land  however the management of state owned land  in Queensland was handed over lock stock and farm gate to the Environmental Protection Agency. This shift brought about the biggest bureaucratic conflict of interest in history of Queensland.

 

We have witnessed the implementation of some dreadful  policy and legislation since this time that has brought about the systematic erosion of our property rights. The inevitable side effect of this shift has been a marked reduction of our ability to use and occupy freehold land.

 

Coming back from a meeting near Georgetown last week I wondered at what the term “property rights” means.

 

I looked it up in Oxford Australian dictionary.

 

Property  “ a persons land or house, a thing owned”

 

Rights  “ being entitled to what is just”

 

Property rights involve the right to occupy, use ( ie economic gain) and  to enjoy. (The common law provides in any landlord and tenant situation that the tenant has a right to peaceful enjoyment of the lease area.)

 

Somehow the notions of “ownership” and “justice” have been lost in the raft of Government initiatives implemented over the past 20 years.

 

What is worrying about this trend is that it is being driven largely by unrepresentative minority green groups.

 

The greens are able to develop and implement policy as the EPA by and large employs like minded (or perhaps single minded) people and of course the States unhealthy preference deal.

 

We have seen legislation such as the
Conservation Management Act,
Vegetation Management Act,
Integrated Planning Act,
Water Act,
Wild Rivers Act
 and policy such as the State Forest Program.

 

It is not only the legislation that if of concern.

 

The manner in which it is often implemented follows no rules of fair play.

 

There is this wonderful thing called the precautionary principle. If there is any room for doubt about the outcome of a decision then the decision maker will apply caution in favour of the objective of the legislation.

 

Codes and guidelines are established after so called consultation and then abandoned .Ask Ashley and Doris McKay.

 

This public consultation for those that have been involved in it is a joke.

 

There seems to be a notion enshrined in all this legislation that the landscapes can only be preserved by locking them up.

 

There is no doubt that across Australia landscapes are being degraded by natural and man made processes.

 

 By locking the land up these processes will not be arrested and will continue.

 

This is where the conflict of interest arises. Land cannot be managed by an administration whose policy is to prevent sustainable management.

 

 True conservation can only come about by active land management.

 

 Proper land management can only arise if the manager has an interest in the outcome and an economic incentive to develop and manage the land.

 

 Sounds to me like farmers  and graziers are the most likely candidates.

 

If only Mr Beattie were a farmer.

 

I would like to share several recent cases that I hope will highlight the problem.

 

 

Case 1

 

The Lohse family

 

Many of you will remember the empassioned plea by Rob and Sharon Lohse to Minister Robertson at the Rockhampton PRA meeting who promised he would “look into it”

 

Spring vale near Kilkevan has been in the Lohse family for over 100 years. In the late 90’s the Premier Beattie promised the greens he would convert all State forest and timber reserves in Queensland to national parks. There are hundreds of term leases for grazing purposes on timber reserves throughout Queensland. Lohse’s property was one. There was no consultation with the landholders or the Lohse family

 

The policy provided that as leases expired they would not be renewed and landholders would be expected to move off the land without compensation. The State said it would consider short term permits in cases of hardship.

 

Never mind the property might be a families sole source of income and that some hundreds of thousands of dollars might be owing to the banks.

 

Rob and Sharon sought help from Agforce who said they could not help but referred them to their solicitors. The Lohse’s spent more time in the waiting room than with the lawyer and (several hundred dollars later) were told there was nothing they could do. You can’t fight the State.

 

In the thirty years I have been in practice and even as a kid I could never accept the word can’t.

 

Maybe that was the reason for many of the beltings I copped.

 

The Lohse’s were told by DNR they could not renew their lease and they would have to move off the lease.

 

We immediately made formal application to renew the lease.

 

The State said it would not accept the application as it had no intention of renewing the lease.

 

We suggested to them that under the Land Act they had no choice.

 

They accepted the application but refused to grant a renewal.

 

We made application to the Supreme Court to review this decision

 

The State then advised it would go ahead and declare the area a  national park anyway.

 

We said if you do we will injunct you

 

They tried we did.

 

About a week before the matter was due to go to court for final hearing the State capitulated and renewed the lease. The lease is for the original term and is renewable.

 

The reason?

 

The Minister in making his decision ignored the dozen or so matter required by the Land Act including the interests of the Lessee and relied solely upon a letter from the EPA saying the land was required for national park.

 

A dozen or so other landholders in the same position have had a similar outcome.

 

I have had leases renewed all over the State in circumstances where the EPA has sought to prevent the Minister from exercising his proper duties

 

That people are discouraged by DNR officers from even applying for renewal (which is a right enshrined in the Land Act) is not only deceptive but despicable conduct.

 

You may think that in the scheme of things term leases over timber reserves do not comprise a very large part of the pastoral holding in Queensland and that pastoral leases are otherwise secure.

 

Let’s consider case 2

 

Strathmore Station at 2.4 million acres is the largest cattle property in Queensland. The Harris family purchased the property in 2004 for in excess of 20 Million dollars.

 

They did all the usual searches and obtained the ministers consent to transfer the lease and met with DNR. All seemed OK.

 

The Harris’s had purchased a standard pastoral lease.

 

Imagine their surprise when within two years they received notification that over 1 million acres of their lease was to be declared under the Wild Rivers Act.

 

This Wild Rivers Act was the brain wave of the Wilderness Society again implemented by Mr Beattie as an election promise

 

We immediately worked out a strategy to deal with this threat.

 

Our idea was to develop a comprehensive property management plan with conservation outcomes to replace the onerous and restrictive codes of practice that went with the declaration. The State embraced this idea at the highest level so we spent over $100,000 compiling a comprehensive plan which was presented to Government.

 

As part of this process the senior office in charge of the wild rivers program came to Strathmore to gain first hand knowledge of what was proposed. This proposal involved an economic and environmentally sustainable plan to develop a cattle enterprise that would see a breeding herd of 90,000 and to employ 50 people.

 

On our side of the table we had over 130 years of experience in the cattle industry.

 

To break the ice and get things started I asked this character how much previous experience he had with the pastoral industry. He shrugged apologetically and said he has watched McLeod’s daughters on TV.

 

 The legislation said the declaration would not impact upon grazing. To the State officers this meant the cattle could still walk about and eat grass. They had not considered fencing, roads, dams pasture improvement yards and so on all an integral part of a grazing enterprise. All of these activities were of course strictly controlled by the codes.

 

As an aside we flew over one of these wild rivers and despite many efforts the so called expert could not identify which of the straggly line of trees on the ground represented the pristine wild river.

 

The State accepted delivery of our plan and buried it.

 

When the Premier announced he was going to proceed with the declaration we commenced proceedings in the Supreme Court for an order that the declaration process was unlawful and therefore invalid.

 

The flagship of the Wild Rivers Act sank and the State paid costs.

 

The State had to start all over again which it promptly did.

 

When I pointed out that we would commence new legal action because the second declaration was as faulty as the first the State simply legislated away all our rights including a fundamental right to natural justice.

 

This rule provides that before any decision maker can make a decision affecting the rights of a third party the decision maker must put the facts of that decision before the affected party and allow them time to respond.

 

This is the law in Queensland.

 

 However as in this case the State can legislate to take away these fundamental rights. The amendments to the Wild Rivers Act said everything the State  had done  in the past is now lawful, there will be no consultation and there is no right to review the decision.

 

We moved from the legal to the political arena at the Atherton Cabinet meeting and convinced the State that where an appropriate property management plan was put in place that provided conservation outcomes then the declaration might be modified to allow for the development proposed by the plan. Through intense lobbying we were able to have this proposal incorporated in the amending legislation.

 

We had come the full circle however this time we at least have some legislative foothold.

 

One man had been able to bring about 2 amendments to the Wild Rivers Act in as many months.

 

How successful our property plan will be and whether the Harris family will be able to fulfil their ambitions  remains to be seen.

 

The intention of the legislation was convert ½ of a pastoral lease into a quasi national park without notice, without consultation and without compensation.

 

Case 3

 

Barney and Marilyn Clark have own  several hundred acres of freehold land near Cooktown for nearly 30 years. This land was always zoned rural.

 

The cook shire council advertised a new planning scheme under IPA about 12 months ago. In this proposed scheme the Council indicated it proposed to include about a third of the Clarks land in a conservation zone. This would severely curtail the use to which the land might be put.

 

At the same time the Council indicated it would include several properties held by Aboriginal interests in the conservation zone. These were similarly previously zoned rural.

 

The Clarks objected setting out very good arguments about why the land should not be rezoned and in fact offering up part of it that might be considered to have some conservation value provided they could retain the rest.

 

The council in its wisdom and without reference to the Clarks went ahead and adopted a plan that actually increased the conservation to include half of the Clarks land. This included and old airstrip, gravel pit and slat flat.

 

The Clarks took the matter to Court and then on appeal on the basis that Council had an obligation to allow them to respond before taking away their rights.

 

 

This was a requirement of the Integrated Planning Act. Remember the rules of natural justice.

 

The result

 

In Queensland when considering the balance of convenience between a council amending its town plan and the property rights of individuals the public interest is better served by council not having to consult with affected landholders.

 

This decision is clearly wrong whether we look at it from practical legal or moral viewpoint.

 

We now have to shift from the legal to a political arena to resolve this issue.

 

2 asides to this story

 

The conservation zone was an initiative of  EPA as a referral agency.

 

The local land council wrote to the Minister about the Aboriginal lands affected and he directed the Cook Shire Council to exclude those properties from the conservation zone. Which it did.

 

 

The message in all this is simple whether you are eking out an existence in the foothills surrounded by national park or sitting on a freehold cattle empire. In Queensland your rights to use and occupy land can be taken away without notice and without a right to be heard and without compensation.

 

What to do

 

If you have a 30 year lease and want to renew it. Don’t accept a 10 year lease or anything less than what you are entitled to.

 

Don’t accept that your tree clearing permit has been refused.

 

Don’t accept that your water allocation has been halved or refused.

 

Fight to retain your property rights. Your right to occupy, use and enjoy your land.

 

If the State wants to take land or rights from you it means you have something they want. Don’t give up anything unless you get something back. Negotiation is the key. Litigation simply serves to strengthen your negotiating position.

 

If a wild rivers act or wild mountain act or save the hairy numbat act is cast upon you work out a strategy to deal with it.

 

Be vigilant

 

Don’t ever listen to any one who says you can’t fight the state or you can’t do anything about it. It is my view they will have a vested interest in the outcome. If your industry body or adviser tells you this seek a second opinion.

 

No-one can look after your rights as well as you.

 

Oh and support property rights Australia.

 

Thank you