From The Australian:

HUNGER striker Peter Spencer has ended his 52 day protest over farmers’ property rights and Australia’s climate change responsibilities but will continue his fight “on the ground” supporters said today.

In a statement released shortly after 9:30 am today, his supporters said he would now be hospitalised until doctors could determine his medical condition.

“As much as the nation is concerned about me, my concerns are directed at the families of the hundreds of farmers who have suicided and the politicians who have failed to show any concern, compassion or morality for what the government has done to these families and the nation’s Constitution. My committed stance on the tower was to press the point,” Mr Spencer said.

His spokesman Alistair McRobert said Mr Spencer has been under increasing pressure from supporters about his welfare and in response has said, “On day 52 of his hunger strike, which was initiated to correspond with the United Nations Framework Convention on Climate Change (UNFCCC) at Copenhagen, Peter Spencer (61 years old) comes down from the suspended platform part way up a wind monitoring tower on his Shannon’s Flat property “Saarahnlee” near Cooma, NSW,” the statement said.

“Spencer’s passive protest is not in vain. It has placed issues at the forefront of every Australian and gained unprecedented attention across Australia, and the world concerning thousands of Australian farming family’s property rights which have been stolen to meet Australia’s entire Kyoto Protocol International Treaty Obligations and in so doing, breaching Australia’s Constitution.”

As I have commented on this blog before, I still need to see evidence that this was a conspiracy between the Commonwealth and the States. If anyone has such evidence, let us see it.

Read it here.

Native vegetation rules

One of the key claims made by Peter Spencer is that the NSW native vegetation laws (the Native Vegetation Act 2003 and the Native Vegetation Regulation 2005) were used in order to “lock up” vegetation to use as carbon sinks in order to meet obligations under the Kyoto protocol. Since it is the State legislation under which those determinations were made, I undertook further research into the processes under which development consents and PVPs (property vegetation plans) were considered.

Under Regulation 24 of the Native Vegetation Regulation 2005, the Minister adopted a document entitled the Environmental Outcomes Assessment Methodology. The document sets out in detail the criteria by which applications for PVPs and development consents should be judged, and can be downloaded from the NSW Environment web site here. The following extract is taken from the overview (my emphasis):

The environmental outcomes of clearing are highly variable and depend on a range of issues such as the type of vegetation being cleared, how the clearing will be undertaken and the existing state of the landscape in the area where the clearing is proposed. This document and the data that underlies some of the requirements (see Chapter Section 2.4) reflect this complexity.

To facilitate timely assessment of clearing proposals in accordance with the computer models set out in this document, the scientific information in the models has been codified into a decision support tool called the PVP Developer. This allows local environmental variables and details of the clearing and any offset proposals to be entered into the computer, with the results of ensuing computations being available to assist decision making by the appropriate authorities as to whether the proposed broadscale clearing is to be regarded as improving or maintaining environmental outcomes in accordance with this Environmental Outcomes Assessment Methodology. An officer delegated by the Minister must certify that the PVP Developer complies in all aspects with the Environmental Outcomes Assessment Methodology. Decisions made in accordance with the PVP Developer will be regarded as improving environmental outcomes.

…

Broadscale clearing must be assessed in accordance with Chapters 2 to 6. The overall impacts of proposed broadscale clearing are to be determined by separately assessing the impacts of the proposal on:

• water quality (Chapter 3);
• salinity (Chapter 4);
• biodiversity (Chapter 5); and
• land degradation (soil) (Chapter 6).

These are effectively the only criteria on which the decision can be based, and nowhere in this document does it permit an officer any discretion to base a decision on anything related to climate change, carbon sequestration or carbon sinks. Therefore, if an officer were to refuse an application for land clearing on that basis, such an officer would be acting outside his powers.

I would appreciate comments.

The Australian reports that an eviction order may be served on Peter Spencer for him to leave his farm:

AUTHORITIES are expected to serve an order taking possession of hunger-striking farmer Peter Spencer’s property, possibly as early as today.

The sheriff’s office is expected to serve a notice this week following legal proceedings by members of Mr Spencer’s family to sell the Shannons Flat farm, near the NSW town of Cooma, and recover a debt owed to them. If served today, the notice would coincide with a rally organised by Mr Spencer’s supporters. (source)

After my review of the judgments, my thoughts on the case are that Mr Spencer has been unable, and will in all likelihood continue to be unable, to convince the courts that there is the necessary link between a decision of  planning officers to decline development consent for land-clearing under the NSW Native Vegetation Act, and an intention by the Commonwealth government to deprive farmers nationally of their land to comply with the obligations of the Kyoto Protocol requiring compensation under section 51 (xxxi) of the Constitution. And nobody more than me would like to see this government held to account for that kind of action. In hindsight, Mr Spencer would probably have been well served to follow the Farmer Exit Assistance scheme, allow the sale of his farm to the Nature Conservation Trust, difficult though that surely would have been.

Whilst I, like anyone else following the story, have immense sympathy with Mr Spencer’s position, I cannot help feeling that the claims he makes about the “conspiracy” between the States and the Commonwealth to deprive farmers of their livelihood have little legal merit. I may yet be proved wrong, of course, if the decision in Arnold goes the other way, and Mr Spencer successfully obtains special leave to appeal to the High Court. I will update you about that as soon as it is published.

Legal analysis

Putting my other hat on (my lawyer’s hat), I decided to take a look at the various legal proceedings that Peter Spencer has been through in the last three years. Firstly however, a bit of factual background.

The Native Vegetation Act 2003 (NSW) requires that before any clearing of native vegetation takes place, the landowner must obtain a development consent under the Environmental Planning and Assessment Act 1979 (NSW) (“EPA”), much like you need a development consent to build an extension to your house. Mr Spencer applied for consent to clear 1402 hectares at his property, but was refused. The letter refusing consent said that Mr Spencer may qualify for the Farmer Exit Assistance, which is a scheme to allow farmers to sell their properties to the Nature Conservation Trust, if there was hardship as a result of the decision. Under such scheme, an an independent valuation of the property would be obtained, and the property purchased at that price.

The first foray to the courts was in early 2007, in Spencer v Australian Capital Territory, NSW and the Commonwealth. Mr Spencer claimed damages (for diminution in value of his property and loss of profits) of $1.2 million, and restitution (for the appropriation of carbon credits between 1990 and 2020) of $37.5 million.

In this particular action, Mr Spencer claimed an “interim payment” of $5m “towards the eventual liability of the Commonwealth”. The defendants in that action, the ACT, the state of NSW and the Commonwealth, responded by seeking to have that claim struck out and the proceedings dismissed. Unfortunately, Mr Spencer had no legal representation and represented himself, and there isn’t much a judge likes less than seeing a “litigant in person.” Furthermore, reading the judgment, it is clear that the statement of claim was very poorly drafted, and that is not a criticism of Mr Spencer, merely a comment that in such complex matters, it is essential to have legal representation. The claims against the ACT and NSW were dismissed, but the claim against the ACT, which was in essence for nuisance arising from the incursion of wild animals, was not unarguable. Mr Spencer would have to re-submit his claim, properly formulated. Mr Spencer’s claim for an interim payment was also dismissed. There does not, however, appear to be any further reported judgments in this case, and it is therefore unclear whether Mr Spencer bothered to pursue the claim against the ACT, as it was tangential to the main claim. I would assume, therefore, that he did not.

However, now we move to the Federal Court of Australia, which deals with Commonwealth matters. On 17 July 2007, Mr Spencer filed a Statement of Claim in the Federal Court. By now, Mr Spencer has legal representation in the form of Dr J Walsh. As reported in Spencer v Commonwealth of Australia [2007] FCA 1415, the Commonwealth again sought to have his claim dismissed, as it had no reasonable prospects of success. Mr Spencer claimed that although the Native Vegetation Act was a State act of NSW, it was somehow linked to a Commonwealth act. This was the important point.

It is established that a State act which interferes with property rights does not have to provide just compensation for such interference. Therefore, the Native Vegetation Act by itself is perfectly entitled to restrict the use of a farmer’s land, and there is no obligation for it to make any compensation payment. This is unlike the situation with Commonwealth acts, where any acquisition of property must be made on just terms, under section 51 (xxxi) of the Constitution. Mr Spencer therefore argued that this was all part of a bigger picture. He claimed that the Native Vegetation Act was linked to a number of Inter-Governmental Agreements between the Commonwealth and NSW. Further he claimed that the funding for the States to implement those agreements came from a Commonwealth source, and therefore obliged the Commonwealth to provide compensation under section 51 (xxxi).

[Read more…]

Peter Spencer

Yesterday, The Australian reported on “serious doubts” about Peter Spencer’s hunger strike (see here for previous posts on this), with his family saying his hunger strike is about more than just land-clearing, and that he owes $1m to his family:

Graham Spencer, Peter Spencer’s brother, criticised the politicians, reporters and activists who have turned his brother into a cause, saying they did not know the full story.

Mr Spencer’s remarks are a swipe at, among others, Nationals senator Barnaby Joyce, who publicly took up Mr Spencer’s cause.

The issue provoked a public split between the Coalition partners, with Liberal senator Bill Heffernan describing Mr Spencer’s protest as “barbaric” and urging that he be pulled down.

He said while Australia’s Kyoto obligations and legislation such as the Native Vegetation Act had restricted his brother’s use of the land, they were not his only problems. “It’s something that’s come up after the trouble started,” Graham Spencer told The Australian.

Mr Spencer is protesting at restrictions on land clearing, imposed as greenhouse gas abatement measures.

He has vowed to maintain his protest until the government agrees to hold a royal commission.

…

Graham Spencer said his brother owed “more than a million dollars” to a family member after being given a loan to prevent the bank seizing his farm. “Peter doesn’t owe money to the bank, but to the family,” Graham Spencer said.

“One of the family members lent him the money, and I think the arrangement was he would make the interest payments.”

Graham Spencer said the family had made numerous attempts to accommodate Peter Spencer’s failure to pay the debt, which had been outstanding for some years.

But in October the family had been forced to seek a writ of possession that could force the sale of the property. (source)

Today, The Australian publishes a statement from Peter Spencer’s family, which, like yesterday’s article, downplays the issues that we thought he was protesting against:

We are concerned by some television, print media and niche internet publications coverage of the issue and its politicisation by various interest groups and parliamentarians to further their own agendas, at the expense of Peter’s health and welfare.

Native vegetation laws enacted over 10 years ago by State Governments (and certainly not the ETS proposals and “Carbon Sinks” which are a far more recent development) are not the sole reason for the collapse of Peter’s farm, and really have had a very small part to play. For MANY reasons the farm has not been profitable for a long time. Peter spent several years in Papua New Guinea on various business ventures, including an advisory role to the PNG government of the time. During this time he was unable to look after the farm adequately, an issue that was clearly a product of his then circumstance.

…

We are devastated with the conspiracy theories, innuendoes and utter rubbish sprouted by some members of news forums and websites declaring to support Peter who clearly know nothing about this situation but have taken whatever they have read at face value, and accepted it as gospel. Peter is an amazing, courageous man. But the loss of his farm is not due to governments, big business or climate change. There is no conspiracy by wind companies or any other organisation to rob Peter of his land. What we are concerned about is that certain people may be taking advantage of a vulnerable man faced with losing his property and using him to their advantage. The issues being touted are not wholly true and Peter’s situation is a very poor example for any Native Vegetation/ Kyoto/ ETS/ Rudd/ Howard/ State/ Federal concerns and anything else which is being included in the argument. It will do no benefit to any disgruntled farmer’s cause by continuing to use Peter as their martyr. If people are genuinely concerned for Peter please convince him to come down. Then find a more suitable way of expressing their concerns. Please remember this is an election year. [What an odd comment – Ed]

In conclusion, while there are some fantastic supporters of Peter’s who deserve much praise, there are too many others taking advantage of him for their own political causes. We don’t know why people want Peter to continue starving himself, and putting his health at such risk. Here is a man with TOO MUCH TO LIVE FOR and we urge the media to properly undertake research and check claims before merely producing them as “news” and encouraging Peter’s plight through politicising it. (source)

All most bizarre. So, according to his family, the problems are mainly of his own making and really nothing to do with the cause that he himself has explained to the media again just three days ago, and which the farming community seems to understand perfectly. And the impression one gets is that his family are portraying him as an attention seeker who needs help rather than support in his cause for standing up for the property rights of farmers, despite the fact that he and his barrister have spent considerable time, and money, fighting this issue through the courts.

“They’re welcome to take my land but the constitution says they have to pay,” Peter [Spencer] said.

…

Peter King is Peter Spencer’s barrister. Before any hunger strike, the two Peters spent years fighting for compensation in the courts – to no avail.

“It’s my opinion, and I’ve offered that in support of Peter Spencer’s case, that it is unconstitutional for this reason. That there has been an acquisition of his land and that’s now been acknowledged by the lower courts, that there’s been a benefit to the Commonwealth, both in terms of an interest in his land and in terms of financial outcomes. And it hasn’t been paid for. Now in our country, under our constitution, the notion that we have, that is fundamental to our democracy, is that nobody loses his or her or its land unless it’s been paid for,” Peter King said. (source, video here)

My feelings are summed up by a letter writer in The Australian this morning:

SO, after the expose on Peter Spencer (“Family financial dispute helped send hunger striker up the pole”, 8/1), do we take it that there is no issue with farmers having their land locked up as “carbon sinks” with no compensation? I’m now confused and would appreciate The Australian coming out and saying that the issue only exists in Spencer’s mind and that farmers must continue to pay rates and Land Protection Board levies on land they can no longer use.

David Ready, Padstow, NSW (source)

UPDATE: Jo Nova:

We would hope that The Australian would stand up for … Australians. Instead our National masthead is not investigating the claims of an Australian farmer against our government, they’re not interviewing constitutional law experts, they’re interviewing his brother.

…

If Peter Spencers claims are true they pose real questions indeed, but not about Peter Spencer so much as about the health of our Australian constitution. That’s the elephant in the kitchen. It could be that the only thing afflicting Spencer is an unfailing sense of justice and dodged determination. After being shredded by successive governments and failed by our legal system and our media, Peter Spencer’s actions are justifiably desperate and very sane. It may seem like an extraordinarily risky gamble to the rest of us in safe-house-suburbia, but remember this man has been left with nothing to show for 30 years of work, robbed by the people who are supposed to protect him, and left without dignity or a home. His choice of a rock and a hard place means there was enough of an optimist in him to hope that this last desperate move might pay off somehow. If he had no hope at all, presumably he would have grabbed a gun like others have and disappeared into an ABS statistic. (source)

Supporters

Whilst Kevin Rudd sits and home and takes the credit for a children’s book about his pets written by someone else, Peter Spencer is into his 43rd day of hunger strike protesting against the confiscation of his land (without compensation) for use as a carbon sink, in order for Australia to meet its Kyoto obligations (see here for more stories on this).

More than 300 people have rallied outside Parliament House in Canberra in support of hunger-striking New South Wales farmer Peter Spencer.

Mr Spencer has spent 43 days without food on top of a tower on his property at Shannons Flat near Cooma, in protest against state laws which stop him from clearing vegetation on his land.

He wants the Commonwealth to compensate farmers whose land has been used as ‘carbon sinks’.

…

Nationals Senator Barnaby Joyce also addressed the crowd, calling for a Royal Commission into vegetation laws.

He said farmers across Australia have been unjustly divested of their land.

“It might have been legally possible but it was totally unjust,” he said.

Read it here.