WHEN the great William Blackstone codified the English common law in the 1760s, he placed great significance on property rights.
In his view:
So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community.
Although they are among the inheritors of the common law, farmers have watched in dismay as their property rights have dwindled in the face of government encroachments, always defended as for the “general good of the whole community”.
The rain that falls on their property may now comprise part of the water rights owned by someone else. There are major restrictions on the subdivision of land for lifestyle blocks. Riparian rights and biodiversity corridors reduce property options. Mineral rights are owned by the Crown, allowing others to explore without permission. The former Queensland Government’s Wild Rivers legislation deprived aboriginals of the right to earn a living from their land in Cape York.
And right at the top of the list sits the prohibition on clearing native vegetation. Blackstone would have been horrified at that.
The origin of the ban was the Howard government’s determination to comply with the Kyoto treaty on climate change despite having refused to ratify it. Under the terms of the treaty, preserving vegetation could be offset against greenhouse gas emissions from other sources.
Through threats and incentives the states were induced to pass legislation making it illegal to clear land except after jumping through high regulatory hoops. Evidence from satellites and local snitches was used in show trials to intimidate farmers into compliance.
The consequences were devastating. Farms were almost frozen in time, with owners unable to clear land and not game to plant trees for fear they would be unable to remove them. Properties on which regrowth had established were rendered almost valueless. The harvesting of private native forests was severely limited.
Some farmers were forced out of business including Peter Spencer, who famously lasted 52 days on a hunger strike while up a 10 metre tower on his property near Canberra.
Some of the heat is beginning to go out of the issue as new conservative state governments start to lower regulatory hurdles. The O’Farrell government in NSW has announced new draft regulations that, if implemented, will remove some of the worst aspects, such as requiring approval to remove trees the farmer has planted himself or for clearing around boundary fences, roads and sheds.
Limited clearing of invasive native species will be permitted provided it is done in accordance with a code of practice. This will allow thinning, managed burns, chemical spot treatment, stem injection, ringbarking or grubbing. Currently farmers need a Property Vegetation Plan and the approval of their Catchment Management Authority for these. More substantial clearing will still require them.
While the proposals are a step in the right direction, they are like being tortured with electricity alone when previously the torture involved beatings as well. Private property will still be violated for the “general good”, only not as egregiously.
It’s not all positive either. The new regulation will allow the Minister to protect trees that regrow after harvesting on a private native forest, which is not currently the case, and there are no plans to amend the Native Vegetation Act itself.
There is evidence of green religiosity as well. Notwithstanding its origin, the NSW Office of Environment and Heritage defends controls on land clearing on the basis that: "The widespread decline in native vegetation has been identified as one of the major environmental issues facing Australia."
It’s a line straight out of the green lobby handbook.
The government says the changes will “empower the farming community to protect the environment and manage farms sustainably”, while clearly showing it thinks it knows best. Indeed, the proposed changes reflect a prescriptive view of environmental protection based mainly around soil protection. It expects farmers to cause damage, so it keeps control over the big stuff.
The perverse thing about all this is that there is plenty of evidence to show the environment does better when it is in private hands, away from the tentacles of government. We saw that very clearly in the difference in environmental quality between the former Communist countries and the west when communism collapsed. Here at home we see uncontrolled weeds and feral animals in our government-owned national parks.
Quite simply, government control is incompatible with the promotion of environmental values. And as Blackstone would say, the government should stop violating private property.
David Leyonhjelm is an agribusiness consultant with Baron Strategic Services. He may be contacted at firstname.lastname@example.org.
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