About six years ago Ashley McKay a softly spoken cattleman from south western Queensland was prosecuted by the Queensland Government for clearing cypress pine on his property. McKay had a permit to clear trees from the Department of Natural Resources and Mines (DNRM), but not a permit from the Department of Primary Industries (QDPI) Forestry Division. The second permit was apparently necessary to clear the pine trees scattered amongst the other trees.
It is now folklore in western Queensland that the decision by government bureacrats to prosecute the local hero was taken because McKay appeared on national television program Sixty Minutes speaking out against the government and then new Queensland Vegetation Management Act 1999.
Thousands of cattleman are being investigatged for illegal clearing under the legislation which many claim is unworkable.
The advice has been if your prosecuted, plead guilty because government and the courts will show no mercy if you take a stand.
Ashley McKay was proof of that. He has fought six court cases over the original charge of illegally clearing cypress pine. A central issue, continually disputed, is whether or not the original tree clearing permit permitted the clearing of the cypress pine trees.
I waded through the 77 page Decision handed down in August last year following ’round five’. It seemed to me that McKay had lost big time as he was found guilty and fined $270,000 and by the Chief Magistrate.
Some weeks later Property Rights Australia, an organisation founded in part to help McKay fight government, announced he would appeal the decision.
Last Friday the District Court in Queensland upheld the Appeal and reduced the charge from $270,000 to $10,000. I was amazed.
The Queensland Government could yet appeal this decision.
While Ashley fights on. The odd Constitutional law expert is starting to take an interest in the Vegetation Mangement Act 1999 and consider whether indeed it is constitutional, click here for a review by Prof Suri Ratnapala.
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Campaigns by the Wilderness Society have given the impression that western Queensland has been turned into wasteland as a consequence of tree clearing. But according to the State Government report Land Cover Change in Queensland 1999-2001 (Department of Natural Resources and Mines, published January 2003) even during the height of clearing, the annual clearing rate was 0.71 per cent of the 81 million hectares of woodland, forest and shrub cover across Queensland. According to page 14 of the same report, there has been a 5 million hectares increase in the area classified as woody vegetation over the period 1992 to 2001.
In other words, while large areas have been cleared, larger areas have regrowth.
Official statistics from the Queensland Herbarium (a part of the government’s Environment Protection Agency) show 81 percent of Queensland is covered in remnant vegetation – a figure that has remained constant over the last decade.
The dictionary definition of ‘remnant’ is ‘little or few that remains, a fragment or scrap’. Interestingly in Queensland ‘remnant’ is the dominant vegetation classification. Use of the word ‘remnant’ is deceptive as it suggests only a small amount of natural vegetation remains when in reality over 80 per cent remains.
The current legislative definition of ‘remnant’ is vegetation with 50 percent of its original cover and 70 per cent of its original height. Trees re-grow, so the relatively high level of remnant vegetation cover in Queensland is at least in part achieved by ‘re-growth’ turning into ‘remnant’ over a period of time.
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I’ve written about how hard it can be to understand the ABS tree clearing statistics here, http://www.onlineopinion.com.au/view.asp?article=2098
Jennifer Marohasy BSc PhD is a critical thinker with expertise in the scientific method.
The appeal won by Ashley McKay was more than a simple victory against an unjust government applying unjust laws.
The decision handed down by Judge Watson of the District Court of Appeal reaffirmed that the government can not rely on an uncertain and ambiguous permit at the expense of the innocent permit holder.
The policy side of vegetation managment aside- this is case about legal due process. This is something which the Queensland State Government and its officers think they can blatantly overrule. Ashley McKay has been viciously persecuted for an act which has been proven to be legal. Whether a person receives a permit to clear trees or sell used cars- the validity and integrity of the permit must be affirmed.
However, at what cost has Ashley McKay and his wife Doris had to endure to ensure such justice? Over $500 000 in personal legal costs and the same amount from rural fighting funds, lost production on his business asset and unimaginable mental and emotional strain of enduring this case for 6 years. Added to this, the Crown prosecution would have expended well over $1 000 000 in attempting to prosecute on this flawed charge and 6 years of inefficiently tying up an already under resourced legal sector.
This is a dangerous period we live in. Dangerous because of the powers which governments such as the Queensland State government yield and the diminishing ability of individuals to defend themselves. It is also dangerous because this issue was for the ‘environment’ and was fought with fervor befitting a religious preacher than an accountable government department.
Due process and accountability is the cornerstone of any successful society. However, too often such fundamental principles are over looked on the grounds of supposed ‘public interest’ or ‘for a good cause’. If you can’t play by the rules, bend them- or in the case of the Queensland DRNM- don’t play by them at all.
At a time where resources are increasingly scarce it is imperative that we do not walk away from the fundamentals of our society. Due process and the rule of law must be maintained and we all, as members of such a great society, should pay tribute to the courage and conviction of families such as the McKays.
Some how I doubt that many environmnetalists who hounded the McKays and supported the DNRM in this ruthless legal action will see justice in this process. Trees will be viewed more valuable than people- no matter what the cost.
If bureaucrats were personally liable for the costs of their actions, their decision-making would very quickly return to its original designation – servitude.
Bureacrats are now being investigated: http://www.jennifermarohasy.com/blog/archives/001918.html
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