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.

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?

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.

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.