Farmer's land clearing Kyoto case turfed

A Mungindi farmer claimed laws regulating the clearing of native vegetation were invalid.
A Mungindi farmer claimed laws regulating the clearing of native vegetation were invalid.

A NSW farmer's bid to overturn land clearing laws by claiming his land is being compulsorily acquired from the fallout of the Kyoto Protocol has no reasonable prospect of success, a court has ruled.

Mungindi farmer Robert Alexander Houston had claimed laws regulating the clearing of native vegetation were invalid because they had a disproportionate or discriminatory effect on his farming operations.

In order to give effect to the Kyoto Protocol, the federal government made a series of agreements with the states and territories to implement a "net-zero broadscale land clearing" policy.

The restrictions on land clearing, and subsequent orders to remediate cleared land, effectively amounted to property acquisition, he argued.

He pointed to section 51.31 of the Constitution - made famous by 1998 cult film The Castle and calling for property acquisition "on just terms".

But unlike Darryl Kerrigan, Houston's case was thrown out of court before it got going.

The Federal Court on Friday agreed with NSW that the farmer's case had no reasonable prospect of success.

The High Court had repeatedly said the constitutional provision wasn't brought into play just because a law adversely affected or terminated a pre-existing right that an owner enjoys in relation to his property.

NSW wasn't getting a benefit of a proprietary character, Justice John Griffiths said.

"The reduction of emissions from forest conversion and the provision of deforestation offsets relating to the Commonwealth's commitments under the Kyoto Protocol cannot be described as being of a proprietary character," the judge said.

The court also agreed with NSW that the farmer never possessed an unrestricted right to clear native vegetation on his land.

Houston was ordered to pay the state's costs.

The farmer brought the case after being prosecuted over alleged unlawful clearing of native vegetation.

That prosecution, for which he faces a maximum fine exceeding $1 million, also left him liable to conduct remedial work.

Australian Associated Press