Landholders' right to refuse: Protecting property

Landowners may get the right to refuse entry to miners

Senator Larissa Waters has introduced a private members bill into the Senate to deal with the stand off between landowners and miners, and to stop fracking. The Landowners Right to Refuse (Gas and Coal) Bill 2015 ('Bill') seeks to achieve two aims (section 3):

• To stop hydraulic fracturing (‘fracking’) by constitutional corporations; and
• To require informed landholder consent to entry onto land for the purpose of gas and coal exploitation.

The legal issues underlying the Bill’s aims are twofold. First is the Commonwealth power to legislate for land use and mineral exploitation, both of which are a state concern. I won't be dealing with this issue here, assuming the Commonwealth's corporations power enlivens its jurisdiction.

Of interest to me is the second question, of framing rights between two interest-holders in the same land: the miner and the landholder. Miners’ rights are directly derived from the State and are an expression of the bounds of the State’s original grant of land. Therefore this second question potentially involves redistribution of the boundaries of ownership between the State and the landholder. I have made a submission to the Senate Environment and Communications Committee that focuses on the latter issue of distribution of property rights between miners and landholders, and the purpose of the Bill in terms of property. I use Queensland law to illustrate my argument.

Planning law is not property: Sea level change in Queensland

The Torres Strait is already suffering sea level rises*

Queensland's Infrastructure Minister, Jeff Seeney, has ordered a local government authority to remove from its regional plan any references to climate change induced sea level rise. The stated objective of this directive is 'to ensure residents' rights to build and develop their properties were maintained and not restricted by their local council'. The Minister confirmed that he had intervened to protect property rights.

I suggest that instead, the Minister has a confused understanding of appropriate government authority to regulate land use, thus undermining government's own legitimacy in this area. Additionally he has generated a dissonance between the real-world market practice of insurers and the ideological myth of property as dominion. In doing so he may be exposing the local authority (and state government) to liability in the future. All in the name of property.

Does his argument have foundation? Or does it simply reflect an ideological position?

The cost of 'regular' freehold over Indigenous land in Queensland

Opening up land for development*

There is perhaps a tension within the way we understand these communities as both an expression of Indigenous autonomy but also with a more oppressive colonial past. This tension is implicit in the complicated relationship between ideas of being treated the same - having a 'regular' freehold title - and recognising communal title and traditional ownership as prevailing norms within Indigenous communities.

The Queensland government has now passed the Aboriginal and Torres Strait Islander Land (Providing Freehold) Act 2014. The Act's primary purpose is to enable the freeholding of land in Aboriginal and Torres Strait Islander communities. Presently much of this land is held as Aboriginal or Torres Strait Islander freehold or on trust for the community. The current arrangements limit the grant of these interests to traditional owners or other Aboriginal or Torres Strait Islander inhabitants of the community. The existing freehold is therefore a limited type of freehold.


The aims of this reform is to 'introduce the option of ordinary freehold title into Aboriginal and Torres Strait Islander communities'. According to the government, this will 'provide greater economic development opportunities and remove barriers to home ownership in Aboriginal and Torres Strait Islander communities.' While this may well be the effect, it raises the question: at what cost?

Are there boundaries to freedom of contract?

Contract law recognises the application of power

Does contract as we know it continue to exist? That it may not is a fairly bold proposition...greatly discussed of course since Grant Gilmore's 'The Death of Contract' in 1974. Gilmore argued that:

The most dramatic changes touching the significance of common law in modern life also came about, not through internal developments in common law, but through developments in public policy which systematically robbed contract law of its subject matter…removing from ‘contract’ transactions and situations formerly governed by it... [p6]

In August this year, a Queensland Court of Appeal decision provided evidence to support Gilmore's thesis, upholding a purchaser's right to end an otherwise valid residential land purchase. The reason? The vendor's solicitors, in sending the contract to the purchaser's solicitors, failed to draw their attention to the warning statement attached to the front page. This breached s368A(2) of the Property Agents and Motor Dealers Act 2000 (Qld) ('PAMDA').

Does this provision, and its interpretation, really protect consumers? Or is it instead a blunt instrument that erodes all the assumptions we make about the foundations of contract law?

The Ecology of Land Regulation in Queensland

In the last couple of weeks, the Queensland government has passed changes to tree clearing legislation and introduced provisions allowing cattle to graze in certain national parks and reserves. Both changes represent a regulatory shift in land use priorities relating to biodiversity and conservation and the ecological sustainability of industrial farming that threaten legislative and policy progress on ecological sustainability.

Learning Land Law - and More

The mountains surrounding Cairns

Most legal practitioners when hearing 'land law' mentioned will roll their eyes.  Renowned as one of the most boring and archaic of the sub-disciplines taught in the law degree, they will recount their nightmares about the rule against perpetuities, future interests, and the doctrine of tenure.

But what if land law were taught differently?  What if land law, rather than representing an archaic and irrelevant list of rules were viewed through a different prism?

I confess to having practised in land law (property and commercial law and some native title) for some 16 years, and to having taught it since 2004.  But in all those years of experience, it is clear to me that this subject remains central to our understanding of the common law.  The subject lies at the intersection of law and sustainability - sustainability of governance, of society and culture, of the economy and of the environment.

How the Law Constructs the Environment: The Wandoan Coal Case

The Wandoan coal case (Xstrata v Friends of the Earth [2012] QLC 013) handed down last week shows how far our property law and environmental and resource management systems need to evolve to deal effectively with contemporary and future environmental issues.

It is acknowledged that climate change is a global problem (and indeed the parties in the Wandoan coal case did not dispute the science of climate change).  It is not the first global environmental issue – acid rain and the pollution of the world’s great rivers are examples of other, earlier inter-jurisdictional environmental issues.  Unfortunately, the evolution of environmental law in Australia, as elsewhere, exists still in a political era of sovereignty and control over a nation’s own territory or in the Australian context, that of a State.  The territory does not represent anything outside the context of law.  This construction of ‘the environment’ limits the law’s ability to deal with incremental and cumulative impacts of activity within a territory, on an otherwise interconnected world.

This territorial approach to the environment is compounded by the compartmentalisation of land into differential resources each with their own regulatory regime – for example, minerals, water and vegetation.  (I have written on this before.)  This further reduces the way we think about environmental impact of human activity into a variety of policy approaches, regulatory and licensing frameworks and ultimately different procedural jurisdictions.  Therefore while the environmental impact of one project may have various effects on the environment, the law may treat each aspect of the activity under a different regime.  This is an unrealistic way to understand and deal with the environment.

The law’s construction of ‘the environment’ in terms of a series of independent resources within a boundary determined by law is illustrated by the decision in the Wandoan coal case.

Bats, Dangerous Creatures & Domain Over Land

Bob Katter has recently called for landowners to have 'control over his (sic) backyard'.

"So if he decides to remove a deadly animal, like this bat up here, or a snake, it's his backyard, not the crown's. 

In Mr Katter's view:

"As a race of people we have moved away from (the idea of) 'this backyard belongs to us'."

What I take his meaning to be is that the state has too much regulatory power over activities undertaken upon freehold land.  That is, he is seeking a more libertarian approach in terms of elevating private property above state intervention.  In other words that a person's home is their castle.

Unbundling Interests in Land

It used to be that 'a man's house is his castle' and indeed this aphorism is reflected in the common law doctrine of cuius est solum, eius est usque ad coelum et ad inferos or he who owns the soil is theirs up to heaven and down to hell. Increasingly however this doctrine has been narrowed as interests in land have become unbundled.

I draw a distinction here between the recognition that one cannot literally own 'up to heaven' or 'down to hell' and what is considered to constitute 'land'.  

Originally the only reservation in a grant of land was the royal metals, gold and silver, which were reserved to the Crown.  That is to say, one would own the 'land' except for any gold/silver contained in it.  In Australia, various other minerals and metals were extracted from land over time - not by mining, but through legislative reservation of minerals for the Crown.  This resulted in creation of one subject of property rights - land - and a second subject of property rights - minerals.

Likewise, the common law recognised riparian rights - rights to water that flowed over or adjacent to land.  So water was considered to be part of the land.  This too has become 'unbundled', creating yet another subject of property rights.

The contemporary clash over coal seam gas in Australia represents another dimension of this progressive unbundling whereby the landowner loses control over access to resources under the ground and according to some landowners, also lose control over permissions to access land: they 'don't have a choice' in giving permission for the gas wells.

The result, as reported in The Weekend Australian there is an alliance between environmentalists and farmers both of whom reject coal seam gas as an interference in the farmers' control over farmlands.

The consequence of unbundling of property rights in this context is the creation of another market for private property interests (coal seam gas) that ostensibly directly competes with an existing private property interest (land ownership).  While there may not be anything inherently wrong with a private property interest or market (depending on your ideological persuasion of course) what does need to be considered here is the foundation that justifies the making of laws that allow this direct competition.

If private property interests are to be elevated above all else (a libertarian view of property) then there seems to be an inherent conflict between the pre-existing (private) property rights of the landowner and the subsequent interests of the coal seam gas rights holders.  Perhaps such competition is regarded as putting resources to their highest use (see eg Adam Smith and comparative advantage).  In this case, the law's granting of permission to extract coal seam gas will presumably be based on a public interest argument - that this land is put to more productive use by coal seam gas extraction than from farming.  Coal seam gas extraction seeks to meet global demand for energy production - a pressing public need.

The arguments by farmers and environmentalists challenge this.  These arguments seem to be based not just on protection of pre-existing private property, but are likewise public interest arguments about the utility of food production, land quality and wider environmental protection.  On this basis, not only is there a private property competition, there is also a competition for public goods.

It is my observation that these private/public issues are becoming increasingly prevalent, particularly in the context of the unbundling of property rights in land.  Where globalisation of problems - climate change, environmental degradation, human rights, sustainability, energy production - result in the need for national public responses, it is interesting to note the solutions proposed often, though not always, utilise private property interests and free market mechanisms.