FARMERS in WA could unwittingly be breaking the law when grazing livestock on wetlands.
The Environmental Protection (Environmentally Sensitive Areas, ESA) Notice 2005, which has only recently come to public attention, makes grazing land mapped out as wetlands, an ESA that requires a permit to clear.
This means anybody grazing on such land could be prosecuted by the Department of Environment and Conservation (DEC) for illegal clearing and face up to a $250,000 fine.
The 2005 notice slipped through parliament while a Labor government was in power and was not challenged by the Opposition during disallowance - a brief period of time when regulations or policies sit in parliament and can be knocked out.
In what is seen as a test case under the notice, the DEC is prosecuting Lake Muir farmer Peter Swift for unlawful clearing of an ESA.
Mr Swift, who is defending the charges, will make a second appearance in court at Manjimup on March 14.
In another situation a Gingin farmer received a warning letter from the DEC telling him he was effectively clearing without a permit by grazing his cattle.
He was told he could no longer graze cattle in an area that made up about one third of his property.
Gingin Private Property Rights Group president Murray Nixon helped the farmer draw up a letter in response, asking the DEC what laws allowed them to take such action and when the property had been declared an ESA.
The DEC replied, saying the farmer could continue to graze his land.
Mr Nixon said while he had been following WA property rights closely, he only became aware of the 2005 notice before Christmas when reading the DEC letter and finding out about the Peter Swift case.
He said there was huge confusion and few people were aware of the law.
"If you have a wetland on your property the DEC is interpreting that as meaning you can't graze on it," he said.
"Everybody knows you have to be careful before you clear with a bulldozer but farmers expect to be able to continue grazing land they have grazed in the past."
Mr Nixon said if the DEC won at Manjimup virtually all freehold land in WA would be subject to the ruling.
The Gingin Private Property Rights Group is supporting Mr Swift's legal defence with Mr Nixon personally pledging $1000 to help fight the case.
Mr Nixon said the maps used by the DEC to define wetlands in the South West were geomorphic maps compiled by the V and C Semeniuk Group.
He said the mapping of the South West wetlands had been a massive undertaking with most of it done on desktop.
"Any of the wetlands recorded on these maps are automatically defined ESAs," Mr Nixon said.
"There are no exemptions, it is watertight."
Mr Nixon said about two years ago the Planning Department had identified about 20,000 wetlands in the Wheatbelt which meant there were probably 30,000 to 40,000 throughout WA freehold land, mainly located below a line running from Kalbarri to Esperance.
Mr Nixon said historically wetlands had always been highly valued for agriculture.
"Civilisation developed on wetlands," he said.
"On the coastal plain summer green country is highly regarded and in the Gingin shire it has been grazed for more than 150 years."
Mr Nixon believed the 2005 notice had been a back door way to introduce earlier proposed wetlands policies that met strong opposition by farmers and were rejected by previous Liberal Environment Minister Cheryl Edwards and later by former Labor Environment Minister Mark McGowan, who had said it had been dumped.
"What they have done is use this notice to introduce the draft Swan Coastal Plains Wetlands Environment Protection policy through the back door," Mr Nixon said. "And it's worse because in that draft proposal, wetlands were to be at least assessed," Mr Nixon said.
"It has been disgraceful, undercover and covert.
"For the last 10 to 15 years everybody has tried to do the farmers without anybody knowing.
"They have gone to great trouble to lock the doors.
"The greatest scandal is that property rights have been stolen by the use of policies that have not been subject to parliamentary scrutiny."
Mr Nixon said that because of the amendment, farmers who had a legal permit to clear, were requested to advise the DEC of their progress.
He said those foolish enough to comply then had a soil conservation notice issued and if they continued to clear were charged with disobeying an order.
Mr Nixon said one farmer had already been to the courts and won but his right to clear was still being refused.
He said States other than WA, had land acquisition acts spelling our fair and just term compensation similar to the Federal Constitution.
"If the community wants to prevent the use of freehold land, the community must be prepared to pay compensation," Mr Nixon said.
After a forum on land clearing at Esperance last week, Environment Minister Bill Marmion said native vegetation clearing laws could be improved and that he would pursue amendments to clearing legislation if the government was re-elected.