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Land clearing laws bring out worrying libertarian streak

Environmental officer Glendon Turner was allegedly shot and killed by a New South Wales farmer. AAP Image/NSW Office of Environment and Heritage, Turner Family

Last week, an environmental officer, Glendon Turner, was allegedly shot and killed by a farmer near the town of Moree in New South Wales.

A 79-year old man, Ian Turnbull, has been charged with Mr Turner’s murder. Police yesterday reportedly alleged that Mr Turner was inspecting an unrelated property when he was shot. Mr Turnbull will reappear in court on September 22.

Mr Turnbull was reportedly involved in a legal dispute with the New South Wales Office of Environment and Heritage over illegal land clearing, prompting speculation over whether this was a factor in Mr Turnbull’s alleged actions.

Private property v public environment

Vegetation laws have been politically controversial in several Australian states for well over a decade. Although different states have different laws, and changes of state governments sometimes result in changes to those laws, the rules over land clearing have largely become a fixture on the Australian legal landscape. So why the controversy?

Vegetation laws are controversial because they operate at the intersection of private property rights and public environmental law. Environmental laws have developed over time in response to the inadequacy of various existing laws related to land and natural resource ownership and use. They are designed to prevent environmental degradation and protect public health.

Environmental laws regulate land uses that were previously unregulated. In many cases they restrict and even prohibit activities that were previously encouraged by existing laws, especially property laws.

Property laws facilitate economic “growth” through profit-orientated uses of land and natural resources. Property rights are also associated with the political freedom of private individuals from the government. In recognition of the importance of property rights, the Australian Constitution requires the government to provide compensation for any property it acquires from a private citizen on “just terms”.

The importance of property rights to Australian law is reflected in cultural attitudes to the possession and deprivation of property rights. The Australian film [The Castle]( clearly portrays these expectations. Playing on the mythic notion that “a man’s home is his castle” the film’s main character, Daryl Kerrigan, argues that the government’s attempted acquisition of his home would be theft.

If these sentiments were limited to comedy movies there would be no controversy over vegetation laws. But they are not. Some members of the community believe that property rights should be immune to considerations of the public interest, and that the “environment” starts somewhere beyond their back yard.

Rights over responsibilities?

This view featured prominently in the responses to Mr Turner’s alleged murder. Public figures such as Federal Agriculture Minister Barnaby Joyce and Moree Mayor Katrina Humphries suggested that environmental laws can threaten and even violate property rights, and the political freedom and economic benefits that come with them.

“I am not overly surprised that something dreadful like this has happened,” Mayor Humphries told the media.

Yet the fact is that private property rights are not absolute, and never have been in Australian law. Property rights exist necessarily in relation to competing rights and interests. While the Constitution is often cited as proof of the priority of property rights in Australian law, the reason for the “just terms” provision is overlooked. Throughout Anglo-Australian legal history, the government has always held the legal right to grant, regulate and acquire private property.

Environmental laws indicate the government’s prerogative, indeed responsibility, to balance private rights against the public’s interest in health and environmental protection. In the 1800s, colonial government grants of private land in NSW were often subject to conditions including vegetation clearing, whereas today there are no such conditions, and environmental laws operate separately.

The environmental legacy of 19th century ideas of ownership and land use practices are precisely what modern environmental laws are designed to address.

Under the Native Vegetation Act 2003 (NSW), landholders who want to clear native vegetation usually need to apply for permission from the relevant catchment management authority or local council. Failing to do so can incur fines of up to A$1,100,000. Permission to clear vegetation is granted only after considering its environmental impact in accordance with the Act.

However, in response to resistance to the Act from some sectors of the community, the NSW government recently introduced reforms that purport to “strike the right balance between sustainable agriculture and protecting the environment”.

In effect, the new Native Vegetation Regulation 2013 (NSW) (which supplements the 2003 Act) offers wider exemptions from the need to seek permission to clear native vegetation, and restores some decision-making responsibility to private proprietors.

Property rights are not paramount

In a statement, Mr Turner’s family pointed out that he was “in the course of fulfilling his duty” when he died. Premier Mike Baird has called for cool heads to prevail. “Supporting this family and completing the criminal case, that’s the priority,” he said.

Meanwhile, public figures such as Joyce have been accused of attempting to justify Mr Turner’s death in terms of strong rural community antipathy to land clearing laws. This, critics say, smacks of a particular streak of ultra-libertarianism more often seen in parts of the United States (see also the “castle doctrine”) than in northwestern NSW.

Those who think the sanctity of property rights supersedes the need to comply with environmental laws have a view of land ownership that is based on individual entitlement. But environmental laws are designed to deliver benefits at a scale far larger than the individual.

*This article was amended on August 5 to reflect updated information about the allegations against Mr Turnbull.

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