Property rights gone for the 'general good'

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

* Comments were accidentally disabled on this article when it was posted yesterday. Please feel free to submit your comments in the below. FarmOnline apologises for any inconvenience caused.

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No rights
19/06/2012 9:36:22 AM

Our shire (Eurobodalla) is being used as a test area for another government trading scheme. It is a new version of "Biodiversity certification" (passed just before Labor lost office) where most private property in our shire was either locked up or severely restricted using the new "standard council LEP" (Local area plan). This included most undeveloped urban land. Council and the OEH then give themselves development "credits" for lands they lock up or restrict (taken without compensation from rural land owners) and sell or "trade" them to urban land owners to bypass the restrictions. AuSyria?
19/06/2012 11:04:45 AM

WA a coalition national partnership, is also blighting private property with quasi greening laws, while in land belonging to council,state and crown, development of commercial, industrial,rack and stack and cottage lots have convienently ticked all the right boxes with EPA, . reveniew dropped nearly 2% to 47% for national taxes on property. Property owners would like to know , who is gaining the benefits of carbon offsets.
19/06/2012 2:09:07 PM

A very emotive article and good story. Pity about the facts. Seems to overlook the damage done to our environment over the last 200 years whilst well and truly in private hands. We are not all enviro vandals but there is a lot who unchallenged and unchecked will degrade anything in search of a dollar. Look at the impact forestry, wood chipping, grapes, cotton etc have had. How about a bit of balance in your articles?
19/06/2012 4:58:10 PM

Govt departments in Qld have put the loss of productivity because of the veg management act as $500m per annum, and increasing yearly. This loss is virtually out of the pockets of the landowners without any compensation.
19/06/2012 5:33:50 PM

In the longer term removal of property without just terms compensation, all because the word acquisistion is not used, is going to result in serious problems for Australia. It really is easy to pay just terms compensation for the "property" removed from the owner. Those who support this theft rightly should come up with the funds and help government return this property to the crown by purchase. Anything else is theft! This land was sold to the owner for agriculture, carbon is not an excuse to steal property!
Frank the Furious Farmer
19/06/2012 6:12:33 PM

Make no mistake about this, the carbon credits are being traded from other people's carbon property by both banks and government. Travelling thru Qld at the moment and I'm amazed at the loss of productive agricultural land to regrowth. This is blatant theft of other peoples property and is a disgrace!
19/06/2012 6:21:59 PM

A good article from David but BB from Bluey. We are here in the 21st where people are much more aware of the environment around us. We know if we make a mistake we have to correct it. Properties that have been degraded in the past usually end up being sold at reduced prices but can then be restored. I know because I have been there and done that. One of the obstacles I have come across are echoed in the attitudes of the likes of Bluey. Totally uncaring and unhelpful. Time for there ilk to get out and observe what is happening today rather than rely on memories from bygone eras.
19/06/2012 8:41:02 PM

Hey Blue – you may have to check your own ‘Facts’ amigo, for instance you say: “Pity about the facts. Seems to overlook the damage done to our environment over the last 200 years whilst well and truly in private hands.” So what you are saying mate is that ‘Private Land’ (freehold) was established before ‘Crown Land’. Given the nature of exactly how things work in this Country mate, farm land starts off as ‘Crown Land’ then it moves to ‘Leasehold’ (still Crown Land) then it can be ‘Converted’ to ‘Private Land’ (freehold).
No rights
19/06/2012 10:17:08 PM

In response to "Blue" above. Forestry and wood chipping? The damaging practices you see there is by government contractors in state forests mate! Even the greens admit that the damage started after they got rid of private loggers. Look up "tragedy of the commons" to understand why private management is far superior. Or go to China and breath deeply! As for grapes and cotton, you can wear hair shirts and drink the governments industrial waste fluoridated water if you like (they scrape the fluoride from inside aluminium smelter chimney stacks in China you know?) I toast your bravery.
The Serf
20/06/2012 5:38:50 AM

Good article David; there needs to be a lot more radical thinking on behalf of landowners to protect their property rights, extreme measures like the withholding of primary products to disrupt the food supply chain to change the simpering gutless whining of farm bodies; CCA comes to mind; also selection of candidates for federal parliament and a new Boston Tea Party outlook; if we do not then we will really be the subjugated serfs that fought for their property rights prior to Blackstone. Some further research David is the "The Tenures Abolition Act 1660 (12 Car 2 c 24)". Please write more
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Agribuzz with David LeyonhjelmCommentary, news and analysis with agribusiness consultant David Leyonhjelm. Email David at


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