Cobar Western NSW, local farmer Alastair McRobert (pictured) spokesperson for the Commonwealth Property Protection Association writes:
On Tuesday 26th August in the Federal Court the Honourable Justice Emmett J brought down his decision on weather the matter of Peter Spencer v The Commonwealth proceeds to Trial.
The decision contains a finding important to all farmers concerned with obtaining the benefit of carbon sequestration rights in respect of their land.
In paragraph 149 of the decision there is a strong endorsement of the Property Rights of Peter Spencer as quoted.
149
“I consider that Mr Spencer has established that there is a serious question to be tried as to whether he has suffered such sufficient detriment as a consequence of the 1997 Vegetation Act and the 2003 Vegetation Act as might constitute a taking or acquisition in respect of Saarahnlee.
Further to the extent that there was a benefit to be derived from the grant of carbon sequestration rights by undertaking voluntary restraint, it is certainly arguable that Mr Spencer has been deprived of that benefit.
Whether the restriction is such as to constitute a taking or acquisition or expropriation may depend upon detailed evidence of value.
Nevertheless there is at least a seriously arguable case for concluding that there has been an acquisition of property of Mr Spencer’s”.
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Nonetheless the Judge then held that Peter had no right to claim compensation for the loss of those property rights from the Commonwealth because the intergovernmental agreement between NSW and the Commonwealth, which led to the acquisition of property, was not authorized by any Commonwealth statute.
The case was stood over by the Judge until Thursday for further argument.
On Thursday counsel Peter King successfully argued that there was grounds for appeal and the Judge accepted his argument and granted an appeal.
The question of compensation is under appeal as it is a fundamental principle of our democratic society, embedded in the Constitution section 51(xxxi), that if the Commonwealth takes property including any property right whether by law or otherwise it should pay Just Terms Compensation.
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Have Your say or ask Alastair a question.
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Tags: Alastair McRobert, NETS, Peter King, Peter Spencer
Good work fellas.
Do you have any scope for examining the extent to which the intergovernmental agreement between Feds and state amounts to an agreement between principal (Feds) and agent (the state)?
Have you looked at the likelihood that regrowth constitutes an “improvement” after the state has originally required the land to be cleared as a condition of grant of title?
And have you looked at the possibility that the requirement to retain vegetation that will continue to grow and use more and more rainfall constitutes a “development” on the part of the state, by way of a “material change” in the existing lawful use (the water use) which has not been through the proper development assessment process?
And have you looked at the extent to which the acquisition of the carbon credits by the state amount to activities of a corporation in trade or commerce, and are therefore not protected by the shield of the crown under the state fair trading legislation. (ie, exemptions under trade practices are for natural resource management but not for carbon credits arising out of natural resource management).
Good hunting
Hopefully the appeal of the case will further reinforce a basic right that stems from the Magna Carta and that is the right of compensation if these property rights are ever impaired.
Far too often are governments through planning instruments and the like extinguishing property rights such as building permits and water collection rights without granting any consideration or consultation with the landholder.
Congratulations Peter Spencer you have done us all proud.
Unfortunately I’ll bet NSW Farners are doing nothing to help financially. They are so weak that they are probably funding the Governments case.