Green lobby threatens land rights
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.