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National wildlife corridors plan a major threat for landholders - unless guarantees are provided.

Mick Keogh - Wednesday, November 07, 2012
The recent announcement by Environment Minister Tony Burke of the development of a national wildlife corridors plan highlights some fundamental weaknesses in Australian law regarding the ownership and management of land, and has the potential to create significant challenges for some landholders, unless the legal issues are addressed.

The National Wildlife Corridors Plan announced by Minister Burke involves a process whereby there will be a declaration process which establishes 'an enduring network of wildlife corridors' across the Australian landscape. There are very scant details available concerning how the declaration process will work, or what criteria will be used to determine whether or not a particular corridor of land should be declared. Despite a detailed and glossy document being published, the details of exactly how the declaration process will work are not spelled out.

However, once a corridor has been declared, it is not at all clear what the implications will be for a landholder whose land happens to be in the declared corridor. The broad indications appear to be that land in that corridor will be given priority when it comes to the allocation of biodiversity funding, but given the weakness in the Australian legal system in clarifying the legal rights of landholders, there is a considerable risk that the declaration will become a blight on that land, decreasing its market value and limiting the uses to which it can be put subsequent to that declaration.

This arises because, under the Australian Constitution (Section 51(31)), the Commonwealth is required to pay compensation to a landholder if it acquires that land (for example for a road or defence base), but to date the High Court has ruled that if the Commonwealth simply removes some of the rights to that land without actually acquiring it, then no compensation is payable. In addition, State Constitutions do not have a 'just terms' clause guaranteeing protection of landholders rights, and therefore the States have much greater powers to remove some or all of the rights associated with ownership of land, without having to pay compensation. 

This means that the Australian or State Governments could effectively restrict a landholder from most uses of an area of land, but as long as the landholder still retains legal ownership of that land, then no compensation is payable.

Consequently, in the case of land 'declared' to be part of a wildlife corridor, two scenarios are possible. The first is that the Commonwealth uses its powers under the Environmental Protection and Biodiversity Conservation Act to restrict possible activities (such as cropping or vegetation clearing) on that land. In that case, there is no requirement for the Commonwealth to pay any compensation, and the landholder could face a situation where farming activities were increasingly limited, and there was no option but to sell the land - presumably to the Government at a greatly reduced value.

The second scenario is one where the Commonwealth Government exerts pressure on State Governments to restrict land management activities on that land through either Threatened Species or Native Vegetation legislation, leaving the landholder few options other than to agree to some form of conservation covenant or to sell the land for biodiversity conservation purposes. 

Under either scenario, not only individual landholder but also any neighbouring landholders could be affected by the potential 'blight' on their land, and face few options other than to agree to conservation covenants or sale of the land.

While the Commonwealth Government says that the implications of a declaration will only be that the area becomes a priority area for biodiversity conservation payments,there is no legal guarantee that this will remain the case in the future. The Commonwealth cites 15 year conservation covenant agreements that have been undertaken by landholders as an example of the potential outcome, but the reality is that even if landholders did agree to such an arrangement, there is nothing to guarantee that at the end of that period the landholder will have any choice but to maintain that land in that state. 

Is Minister Burke  willing to guarantee in legislation, for example, that at the conclusion of any conservation agreement, the landholder is free to convert that land back to productive agricultural use by removing the trees and biodiversity? Is the Minister also prepared to guarantee in legislation that the fact that a particular area has been declared a wildlife corridor will have absolutely no implications if a landholder in that area applies to the State Government for permission to change the nature of landuse on that land?

In the absence of such guarantees in legislation, landholders should be extremely concerned about the implications of the proposed wildlife corridor declaration process. And for those who counter that the Australian Government would never be so callous as to act in a way that deprived landholders of their ability to manage land without compensation, perhaps they should examine a little of the background to the Spencer vs the Commonwealth case, currently before the High Court.
 


 
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