ENVIRONMENT Minister Stephen Dawson is to be congratulated for undertaking a review and redrafting of the Environmental Protection Act 1986 (Submissions can be made up until the end of January, inquire at the Department of Environment and Water).
Generally, I think the wording of the new draft is an improvement on the old, but I have concern when the minister appears to want the department to have more power.
Good law should be clear and reduce arbitrary decisions to a minimum.
The original act was very appropriate and relative for the time.
Major amendments in 2003 were introduced when public opinion swung away from encouraging development and the protection private property rights to a view that native vegetation was the most beneficial land use, and was best protected by locking it up and State governments (unlike the Commonwealth) did not consider they had to pay compensation to property rights taken for environmental conservation.
It was a time when the Federal government was signing international agreements with little or no consultation with the States that are constitutionally responsible for land management and there was a need for complementary State legislation.
The 2003 amendments authorised the 'Environmental Protection (Environmentally Sensitive Areas) Notice of Environmentally Sensitive Areas Notice 2005- (ESA Notice) that was introduced by devious means and has since been subject to parliamentary enquiry.
It was never well understood by the general public and most particularly by the land owners it concerned.
It should be noted that the Exposure Draft of the proposed bill indicates that the ESA Notice is to be rescinded and replaced with a regulation dealing with ESAs.
Land owners should be aware that the details of that regulation will only apply when published, and until then, the ESA Notice is the law.
Land owners would be most unwise to do any clearing unless they check first with DWER. The department has access to satellite imaging and as well as a fine, it could also carry a criminal conviction with all the problems that causes.
We have an opportunity to solve the problems and injustice that has occurred under the law. The view that private property rights can be over ridden by government in the common interest has been subject to a comprehensive review by the Australian Law Reform Commission at the request of the then Attorney General, George Brandis.
The final report 129, published in December 2015, into Traditional Rights and Freedoms-Encroachments by Commonwealth Laws, made it very clear - that property could be taken for public purposes, but under entrenched common law, only if fair compensation was made.
The report also noted that the Federal Environment Protection and Bio-diversity Conservation Act 1999 did not restrict any legal existing land use, but controlled changes to land use in the future.
This could not have been by accident, but must have been following legal advice.
It brings into question the legality of the ESA Notice 2005, which makes it a criminal act to graze livestock on most of the Swan Coastal Plain although grazing has been the major land use since European settlement.
Grazing these areas should be covered by the same controls as other agricultural land.
After almost a quarter of a century, we can judge whether the act, regulations and notice have achieved their aim, or are in need of change.
Certainly the Green view that native vegetation is best protected by locking it up has been proven a failure.
The need for regular cool fires to reduce the fuel load has been clearly demonstrated.
While not the direct subject of this act, the establishment of more national parks and the reduction in the area of forest that can be harvested has not resulted in an improved environment and the preservation of flora and fauna as is clearly demonstrated in the fires devastating the Eastern States in particular.
The restriction of fire-breaks to three metres on privately-owned land certainly needs increasing.
It should be a minimum not a maximum and in dense or high bush should be increased as required.
Firebreaks in themselves sometimes halt fires, but their main use is to enable back burning. Clearing is always the best way to control bush fires and the current legislation that prevents the re-clearing of regrowth more than 20 years old should be changed to enable the re-clearing of land that was legally cleared regardless of the time period.
If our natural environment is to be protected, increased resources must be allocated to deal with the greatest threats, generally the introduced weeds and vermin that thrive on Crown land.