Land clearing not a farmer's friend

With the current controversy over native vegetation law in NSW, there has been a lack of clarification over some basic legal issues. We hope that this article will help to dispel some misunderstandings.

Does the law stop farmers from clearing land?

Not entirely. While the objects of the Native Vegetation Act 2003 include the prevention of broadscale clearing and the protection of high conservation value native vegetation, there are still several ways that native vegetation may be cleared.

For instance, “routine agricultural management activities” or “RAMAs” allow clearing around temporary or permanent fences, the removal of dangerous trees and noxious weeds and firewood collection.While many of these exemptions are reasonable and most farmers do not exploit them, some landowners use RAMAs to clear more native vegetation than is necessary, knowing that the onus is on the government to prove that it was excessive.

It is also possible to get a property vegetation plan for clearing or private native forestry approved by the Minister for the Environment. In recent years the Minister has been approving about 100,000 hectares of land per year for private native forestry.

Farming is a tough business, and some farmers regard these controls on clearing as restrictive or bureaucratic. It’s not just a question of the one-off value of potentially cleared land that is at stake, they argue, but their ability to make a living utilising their whole property over a long period.

The counter-argument is that Australia already has the largest percentage of land clearing in the world, and that if they need more cleared land, they can buy it. Environmentalists also point out that the legislation leaves loopholes big enough to drive a logging truck through.

Should farmers be compensated for the loss of income from not being able to clear their land?

Under the NSW Land Acquisition (Just Compensation) Act 1991, the state government is required to pay compensation on just terms or at market rates for land acquired by the state. However, the enactment of legislation that restricts the clearing of vegetation is not an acquisition of land, so compensation is not payable by the government.

Legislation and government decisions often affect the value of properties. If, for instance, the government approves a change in flight paths over a busy airport, property values may be affected, but there is no statutory or common law right to compensation. Likewise, if you are in a town or suburb with detached houses and the zoning is changed on adjacent land to allow approval for medium or high density housing, that affects your amenity and the value of your property.

Governments may decide to offer financial compensation or other incentives (such as free roofing insulation under flight paths). In the case of land affected by the Native Vegetation Act, in 2006 the NSW Government announced a three-year, $37 million Farmer Exit Assistance Program to help those farmers who experienced financial hardship as a result of the new legislation. Where farmers could show their land had become financially unviable because it could not be cleared, the government allocated funds to buy them out.

The question is whether landholders should be paid the value of their land before or after the implementation of the legislation. But this is a political question rather than a legal one.

Is the federal government using native vegetation law to implement its climate change obligations?

No. The NSW legislation was enacted in 2003. Australia did not ratify the Kyoto Protocol until December 2007. Since then, the carbon lost through land clearing must be accounted for under Australia’s Kyoto commitments, but this would be the case whether or not we had land clearing legislation. Also, land clearing is regulated by state governments, whereas our obligations under Kyoto are the responsibility of the federal government.

Australia is one of the few developed countries that has been allowed to increase emissions under Kyoto. Given that the base year, 1990, saw extensive land clearing, a reduction in clearing is appropriate to meet our target of 108% of 1990 emissions by 2012. The 2006 National Greenhouse Accounts show that between 1990 and 2004 there was a 59% reduction in emissions from land use change, approximately 70% of which is attributed to a fall in the rate of clearing in Queensland.

Doubts have been raised about the extent of this reduction. Either way, emissions from the industrial, energy, and transport sectors are predicted to increase by at least 25% between 1990 and 2012. The reduction in land clearing would not be so important if we were pulling our weight in other areas. But it appears that the native vegetation legislation has been primarily responsible for the reduction in clearing, not voluntary efforts by farmers.

Some farmers have taken advantage of native vegetation legislation by applying for catchment management authority funding for biodiversity and watercourse conservation, which may be to their long-term benefit. While agriculture has been exempted from the proposed Carbon Pollution Reduction Scheme, in the near future rural landholders are also likely to benefit financially from the carbon sequestered in any additional plantings. Trees, including natives such as oil mallees, may prove to be the farmer’s best friend.

 

Mark Byrne is education officer at the EDO Northern Rivers. For more information or help about this or any other environmental law issue, please call 1300 369 791 or email edonr@edo.org.au.


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