The Winter Road

by Kate Holden

  Asked by the researchers if they felt like victims of crime, many participants hesitated. Some were uncomfortable with the implied sledge to their masculinity. Others calibrated it pragmatically. Actions that dramatically impacted the function of a farm were crimes, such as deliberate polluting, water theft or sabotage – and illegal land clearing. Others were written off as accidents, non-malicious or once-offs. In the study, more than 80 per cent of farmers agreed that deliberate pollution was as bad a crime as stealing – perhaps this goes back to the idea of ‘takings’. Many felt strongly about water theft. But in New South Wales, the hottest topic was management of ‘woody weeds’ and restrictions on clearing them: restrictions that were soon to change.

  ONE REASON WHY ONLY a fraction of landholders join Landcare groups, why they agitate so fiercely against regulation and why many continue to clear illegally is because for two centuries Australians were told to bash the bush. Why, suddenly, should they stop? ‘They think it looks better cultivated,’ Phil Spark says with a shrug.

  Barclay and Bartel rather bravely focused their research on land clearing because it is such a nightmare for compliance. Nearly 60 per cent of landholders in their survey agreed to some degree that illegal clearing was wrong. But at the same time, most believed in absolute property rights, with some confusion between American and Australian laws, and saw clearing as ‘improvement’. A quarter said they were unsure or neutral on the criminality of illegal clearing. Sometimes regulations were themselves regarded as encouraging damage to the land.

  One farmer said it would be a crime if he flattened everything on his land. Another respondent, an agronomist, claimed it was important to distinguish between a man cutting down one tree and another felling acres. A second agronomist denied there’d been any damage in the previous twenty years in New South Wales from clearing, legal or illegal: he saw it all as improvement. It was pointed out that some woody weeds increase erosion, so restrictions on cutting them seemed to worsen the situation. Another farmer said most farmers would think illegal clearing wasn’t a good idea, but not really a crime compared to assault or theft. ‘I think it’s a funny world we live in,’ he told the authors, ‘when we are starting to look at environmental crimes as such – when cutting down a tree is a bigger crime than abusing a woman or breaking into someone’s house.’

  You work your land. You pay for it. You plant an oak tree, and you stoop one day to pick up its acorn: your acorn. It’s bitter, then, to be told your oak is a mistake, your acorn is unjust, that you must chew on your loneliness until, like raw acorn in your mouth, it poisons you.

  7

  The tree which moves some to tears of joy is, in the eyes of others, only a green thing which stands in the way … As a man is, so he sees.

  —William Blake, letter to Reverend John Trusler, 1799

  There is a fable by Australian author and artist Shaun Tan called ‘Stick Figures’. It is a dreamlike illustrated tale, in which frail, spectral figures, made of dead branches and grassy clods of earth, haunt the suburbs of modern Australia. The stick figures loiter uncertainly in this melancholy landscape, revenant and watchful. Boys, Tan explains, like to idly smash the figures. ‘It becomes boring, somehow enraging, the way they just stand there and take it. What are they? Why are they here? What do they want? Whack! Whack! Whack!’ The images show figures silhouetted on front lawns, hesitating behind an empty bus shelter; spindly shadows extend across the dry concrete of a car park. ‘It’s as if they take all your questions and offer them straight back: Who are you? Why are you here? What do you want?’

  The uncanny rises when we are most complacent. Repression is anxious and imperfect: sometimes the bodies of murdered Aboriginal peoples were simply thrown in rivers or over cliffs. The bodies were buried lightly or not at all. The bones bleached in the sun after the dogs had had at them. Millions of native animals, too, have rotted before their time. Evacuating the land of its original inhabitants meant it became spooky, spectral. It was empty of what should have been there and full of the emptiness. Two hundred years of heroic settler mythos has not quietened those bones.

  LATE 2012 AND THE paperwork continued. Glen Turner began chasing Luc Farago at the Catchment Management Authority, who had met with the Turnbulls back when the properties were first purchased. Phil Spark was in touch with the Environmental Defenders Office about launching his own prosecution under the principle of ‘open standing’, which seemed possible if Turnbull could be shown to have knowingly destroyed endangered species under the Environment Protection and Biodiversity Conservation Act. Spark thought he had a strong case, since Turnbull had been spotted at his koala workshop in Croppa Creek in the early days of the clearing.

  Spark began haunting the fencelines of the properties. He documented the steady clearing, the species remaining, the crops going in. The cleared areas were being ploughed. He took photos and video and sent them to everyone who cared or should: the media, the authorities, conservation groups. There was an urgency: the Turnbulls weren’t just felling trees, but would soon plough more too. ‘That was always our cry,’ remembers Spark sadly, ‘you know: you’ve got to stop him now, you’ve got to stop him now, because when he gets the plough in all that regeneration’s just going to be annihilated. But they still couldn’t stop him.’

  In the New South Wales parliament in early October 2012, the Greens’ Cate Faehrmann and Labor’s Luke Foley asked environment minister Robyn Parker why the clearing, which appeared to be of endangered ecological communities, hadn’t been stopped. The CEO of the Office of Environment and Heritage, also in attendance, took the question. Whether the Turnbulls had permission, Sally Barnes said, was still under investigation. In fact, no permits had been issued. She admitted that the OEH hadn’t reissued the stop-work order because they didn’t want to waste the money.

  Faehrmann asked why, if there was evidence in February 2012 sufficient for a stop-work order, still nothing had been done to stop the work, eight months later.

  The investigation, Barnes said stolidly, should be finished by Christmas. There was no problem, she insisted, with the department’s execution of investigating and halting illegal land clearing. ‘We need to go through our procedures to make sure, as I said, there is procedural fairness —’

  Faehrmann cut her off. ‘With respect, how long does that process take?’

  The Environmental Defenders Office helpfully wrote to Barnes the next day, pointing out that she had the discretion to issue a stop-work order again. Faehrmann seconded the suggestion in a media release. The EDO noted that the federal minister, too, had powers to ‘cause to be taken’ any steps required, including prevention and remediation orders. But the federal investigation appeared to have ceded to the state one, believing they had a better chance of success.

  Spark’s patience was wearing thin. ‘We had everything, but everything we tried, it was just going nowhere.’ He laughs incredulously. ‘It was unbelievable!’

  The Environmental Defenders Office kept up the hard work. Alaine Anderson continued writing letters to the federal member, Mark Coulton. The Greens, the Nature Conservation Council and the Total Environment Centre all issued media releases about the issue. A few environmental reporters at Fairfax were kept alerted. An article appeared in The Sydney Morning Herald, featuring an interview with Spark. Jeff Angel of the Total Environment Centre, deeply involved in the campaign, was quoted decrying the ongoing clearing. The OEH, under pressure now, told reporter Ben Cubby that a prosecution was imminent.

  On 13 December 2012, a year after he began clearing on the two blocks, Ian Turnbull was charged for his part in and directing of the first six weeks of what would become nearly three years of illegal clearing.

  THE OEH LAUNCHED THE prosecution in the Land and Environment Court for ‘an offence against s12 of the Native Vegetation Act 2003, in relation to the unlawful clearing of native vegetation on “Colorado” and “Strathdoon”’ between 1 November 2011 and 18 January 2012. It had taken a while, but was the begin
ning of a sliding avalanche of suits, as the OEH progressively prosecuted Turnbull, then Grant and Cory, for various phases of land clearing on the two properties. The chronology becomes slippery – one case was concluded even as another was being answered; an appeal was being launched while a new investigation began. The family was ordered to replant on properties even as they were still clearing them; they were newly accused and convicted as they appealed the previous charges or penalties. Each member of the family had his own thread of legal matters – and in the middle of things, new investigations of Roger Turnbull’s clearing at ‘Royden’ were begun. The whole horrendous mess commenced in December 2012; nearly ten years later, matters are still unfinished.

  Meanwhile, the trees were still being pushed. The ground, with native grasses and remnant seeds, was ploughed, grinding out the potential for healthy regeneration. The crops continued to be sown.

  By the time Turnbull received his summons in December, neighbours were reporting to authorities that trees were being torched on the properties. The biggest ones, which couldn’t be pushed, were set alight, Alaine Anderson wrote to her federal member; levees banked up around piles of felled timber had a match put to them. The fire jumped. The Rural Fire Service was called; they were refused entry; the police had to be sent for. They were allegedly seen to burn stacks on days of total fire ban. In the high summer weather of January 2013, Alaine Anderson was frantically hosing the vegetation along the fenceline shared with ‘Strathdoon’ to save eucalyptus for koalas as flames chased the animals into her property.

  Another day, Anderson was putting water out for koalas on the fenceline with ‘Strathdoon’ when, as she described it to Mark Coulton, a dozer came crunching through the scrub beside her, clearing all along the fence only a hundred metres away. No one was checking for koalas resting from the midday sun in the shade, though Cory’s uncle Grant had been seen, she claimed, at a Moree talk about koalas only two months before. Disoriented animals were regularly huddling in Anderson’s trees, and wandering onto County Boundary Road and into the main roads of Croppa Creek itself, she said.

  A reply arrived in her postbox, the one sometimes torn out by neighbours: Coulton shared the good news that koala numbers were up. His office apparently didn’t understand that the animals were visible because they were fleeing, their habitat being burnt; didn’t read Anderson’s descriptions of koalas found starved to death. ‘Having unmanaged forestry is also a danger to Australia’s fauna. Thank you for taking the time to write to me about your concerns,’ he finished. ‘All the best for the coming year.’

  FOUR MONTHS LATER, IN April 2013, Grant, Cory and Cory’s wife, Donna, were given directions to conduct remedial work on ‘Strathdoon’ and ‘Colorado’ due to the clearing in late 2011 and early 2012, for which Ian had been charged. They were not being prosecuted yet: this was a shot across the bows.

  Remediation meant first causing no further damage to a site, and then the careful replanting and sustaining of new growth, ideally of the same native species that had been destroyed. All exotic species, commercial crops and non-native species had to be removed in designated areas. The Turnbulls had to allow native species to regenerate as much as they could, and encourage this with ground preparation, seed stimulation and monitoring. If the ground was too damaged for scrub to regrow alone, they would have to plant it, including choosing the right species and density, digging the very soil to plant in and looking after the saplings. They had to maintain records of all their efforts, and keep the OEH informed all the way. The directions would usually be in place for fifteen years.

  Remediation orders are issued by the OEH and legislated by the Land and Environment Court. Soon after receiving them, the three landowners appealed the extent and conditions of that remediation.

  The law concerning remediation is notoriously, as Simon Smith puts it, ‘weak’. It is often used when the OEH doesn’t feel confident in a full prosecution, or as a courteous compromise; it hopes to achieve some restoration to damage, and it allows, in some readings, the convenience that cleared land may yet be utilised while the net ecological value is maintained. Smith sees it as ‘a very poorly designed piece of legislation’ that is ‘very easy to get around’. Complicated technical arguments about tree coverage, species variety and maintenance can be spun out in court for months or years. What’s more, the time required for an appeal, and the redrafting and issuing of new directions, could be well used.

  The same day in May that Grant, Cory and Donna’s appeals were heard, Turnbull was entering a guilty plea for the clearing – but only grudgingly. He disputed the extent, the amount and the harm he had done. This meant it had to go to a sentencing hearing in which that harm could be evaluated. It guaranteed some time.

  A MONTH LATER, IN June 2013, Turner was again on his way back from Boggabilla when he came down County Boundary Road. As he had a year earlier, he took photos from points along the fenceline. He sent them to the department’s solicitor, Rasheed Sahu-Khan, for the records. ‘Crop extends,’ he wrote in his notebook, ‘to the fence running North–South through the centre of “Colorado”.’

  Nadolny, Turner and another compliance officer, Terry Mazzer, headed back to Croppa Creek in September, but were halted at Moree by news that the Turnbulls had lodged an objection to the inspection. Calls were being made in Tamworth and Moree, lawyers were frantically emailing. Nadolny read a novel in the park beside Moree Courthouse while Turner and Mazzer filled in paperwork for a hearing. Optimistic, they set off in the afternoon, and made it as far as the fence of ‘Colorado’ before another flurry of calls ended with one from their regional manager. Turner answered; the hearing had gone well, he told Nadolny, but the department was concerned with adverse publicity. They were not to enter the blocks. The ecologist took notes from the fence, gazing at huge fields of wheat where a year earlier there had been a tangled mess of fallen trees, with a few still standing.

  Turner and Nadolny returned to the properties in December. This time, the gates were locked.

  ‘I drove along the County Boundary Road,’ Turner wrote in his notes, ‘and then along Talga Lane. I parked the vehicle on the road reserve adjacent to the northern boundary of “Colorado”.’ This was where he would park with Robert Strange eight months later, on the winter road.

  The Turnbulls’ lawyers were still challenging the OEH’s access to the property. The two officers had permission to enter, as far as they were concerned, with an Authorisation of Entry onto Land document in hand. So they decided to climb the fence.

  ‘I felt pretty exposed,’ remembers Nadolny. ‘Before we went on, I said, “Glen, Glen, let’s talk about this threat.”’ He was referring to the threat on Turner’s life that Turnbull had made the year before. ‘And we did – we had a good ten-minute discussion about it. Glen’s point of view was that he didn’t think the Turnbulls were criminals. He felt that the threat was bravado. And the other thing was they’d obviously spent a huge amount of money on legal defences, so if they took [matters] into their own hands then that’d all come to naught. So anyway, he convinced me at that time that any threat would be unlikely. But I still felt pretty worried about going in.’

  They were limited by how far across the property they could get on foot, so they walked through the cleared land collecting koala scat and vegetation samples and taking photographs. There was a raptor nest in the crown of a brigalow, remnant brigalow and belah, some brigalow regrowing its suckers.

  The country was dry, though not yet in drought. The groundcover was parched, and there were kangaroo corpses lying here and there, gunshot wounds still visible. There were no workers to be seen, no roar of dozers. But it was a very different landscape to that the Turnbulls had purchased two years earlier.

  Turner wanted the full picture. He arranged for a light aircraft belonging to the National Parks and Wildlife Service to survey from the air. He was preparing for a new prosecution – in January that year, his notebook recorded phone calls from Croppa Creek locals. Someone ha
d been asked to work for the Turnbulls on ‘Colorado’; they’d felt nervous, and didn’t want to give their name. And a neighbour of Grant’s, Brenton Whibley, had seen some clearing. The work was back on.

  THREE MONTHS AFTER TURNER and Nadolny cautiously walked across ‘Colorado’ on that hot summer morning, in early March 2014 Turnbull was tried in the Land and Environment Court in Sydney for the illegal clearing of 2011–2012.

  It was stuffy in the court, the air-conditioning broken. Judge Sheahan removed his robes and suggested the other legal figures did too. Turnbull was represented by Queen’s Counsel Todd Alexis, a handsome, alert man with white hair and dark brows.

  The old farmer sat listening staunchly. First up was what advice the family had sought from the CMA about clearing those blocks. Luc Farago testified that he’d visited the site to meet Cory and Ian and do a preliminary assessment. He saw that some of the previously cleared areas had a fair amount of regenerating native grass; where there was over 50 per cent it couldn’t be cleared at all. He advised, he insisted, that there’d be no permission granted to clear remnant trees, even if they were in the middle of regrowth areas; the brigalow and belah and poplar box there were potentially protected. After further consideration, he told Cory that he thought continuing use provisions might cover some of the cleared land, as the Scotts had done a little cropping in their time, but Cory shouldn’t do anything until he legally owned the property. ‘Continuing use’ meant a restricted allowance for activities, such as cropping, that had been in train before the state laws had been revised in 2003. A month after the conversation, Glen Turner, on behalf of the EPA, sent Cory a letter explicitly reminding him of the need for permission and of the force of the law. Six weeks after that, the Turnbulls began clearing the block.