The Winter Road

by Kate Holden

  Contemplating the evolution and future vistas of environmental law at the time, co-authors Sarah Wright and Justice Nicola Pain of the New South Wales Land and Environment Court commented, ‘There is no doubt that environmental law is becoming more complex. The judgments in the first 10 years of the court’s operation were generally shorter and simpler. Judgments now deal with issues of more complexity.’ They quoted the then chief judge Peter McClellan, presciently: ‘It cannot be assumed that environmental law and the role of the Land and Environment Court will be free of controversy in the future. The court must contribute to the task of balancing the immediate needs of the present generation with the trust we hold for those who will come after us.’

  By the time the Turnbulls bought the blocks in Croppa Creek, the pace of land clearing had slowed, down to about 60 per cent of its previous levels, and the proportion of vegetation that remained was beginning to stabilise – though only about 10 per cent had been truly undisturbed. In 2014, the year of Turner’s death, WWF Australia released a report by ecologists Dr Martin Taylor and Professor Christopher Dickman claiming that more than a million animal deaths had been avoided over a decade. The preservation of habitat alone had saved 100,000 animals a year.

  But the same year that report was released, clearing accelerated massively, as landowners anticipated a long-desired change of laws.

  ‘WHAT I HAVE DONE,’ Turnbull said in a recorded phone call from jail, ‘is dropped a bomb to wake people up to what’s going on, that’s the way I look at it.’ In a later call, he said, ‘I hope they – even if they alter the law because of the shock treatment. I didn’t do it for that reason, but yeah.’

  A terrorist act, says Chris Nadolny now of the killing of Glen Turner. A terrorist act with political effect.

  In 2011, when Turnbull and his family contemplated buying ‘Colorado’ and ‘Strathdoon’, New South Wales was still running the version of the Native Vegetation Act that prohibited clearing on most rural land in the state without a property vegetation plan. Clearing would only be allowed when, under the ecologically sustainable development protocol, it ‘maintained or improved environmental outcomes’. Some reforms had been made to the Act: farmers were able to conduct some clearing for activities specific to farming, such as keeping roads available, and the approvals process was improved. There were farmers who were happy with the regulations, but complaints persisted. The Labor minister for the environment, Robyn Parker, invited submissions for a review of the law aimed at streamlining the approvals process, removing ambiguities and maintaining environmental standards.

  An Independent Biodiversity Legislation Review Panel was formed, chaired by Dr Neil Byron, who had previously chaired the Productivity Commission’s inquiry on native vegetation regulations. He was a known critic of the Act. Another member was Dr Wendy Craik, an eminent policy figure known from the Productivity and Murray–Darling Basin commissions. The ecological representative was Hugh Possingham, a respected scientist experienced in biodiversity management and ‘ecological economics’. The panel wrangled their way through the apparently paradoxical aims of supporting environmental standards while removing obstacles for landholders to clear ecologies. Fundamentally, an evaluation had to be made as to how well conservationists could trust landholders to clear responsibly, and how much farmers might concede to nature. There would be, threaded through the debates, the dilemma between the virtues of local, site-specific ecology and landscape-scale priorities.

  Up for revision were not only the Native Vegetation Act, but also the Threatened Species Conservation Act 1995, the Nature Conservation Trust Act 2001 and, tangentially, the Natural Resources Commission Act 2003. The parts of the National Parks and Wildlife Act concerning animals and plant provisions were due for review too, as well as the native vegetation management elements of the Catchment Management Authorities Act 2003. It was to be a comprehensive clearing and regeneration of the law.

  Momentum for change had come, not just from years of irritation among farmers, but due to a push from the Nationals and the Shooters and Fishers Party for more landowner rights. Farming is a tricky, expert business; how insulting to be patronised by out-of-town ‘experts’ and chastised by urban greenies. Where was the trust, where was the respect? Inspectors flew drones overhead, spying to catch farmers out, or encouraged neighbours to dob one another in. Communities were deliberately set at war, mortgages grew inflamed, and meanwhile all the work by grandfathers and great-grandfathers was being undone as the scrub grew back.

  ‘It’s all part of the disconnect,’ Phil Spark reflects. ‘That’s my big thing – the government’s approach to all these land management issues. They don’t come out and seriously put up the science and seriously explain to people why we need to be managing land in a particular way. They just put it out there, and they actually talk against their own regulation rather than go the other way and justify it. And I see that all the time, and it’s been that way for years.’

  Conservationists, meanwhile, felt that biodiversity laws weren’t strong enough. The laws focused on primary producers but overlooked other parties, such as mining companies and urban developers, and farmers, unable or unwilling to work with the laws, were clearing regardless of law. Then there were concerns over the implications for carbon pollution. Hoping for improvement, conservation alliances agreed to participate in a review.

  In 2011, a preliminary review suggested amendments to the approvals process, and that more ‘routine agricultural management activities’ should be permitted. In 2013, as the Turnbulls were clearing, there was a recommendation that more types of clearing could be self-assessed. In March 2014, four months before Turner’s death, the OEH published two reports. One confirmed that rates of clearing woody vegetation were generally decreasing.

  The other report offered provisional guidance on how farmers might self-assess the clearing of invasive native species and paddock trees, and thin existing native vegetation. No one liked these drafts: conservationists saw the worrisome lack of oversight; landholders thought them too technical, impractical. ‘We reviewed all the legislation leading up to this point,’ remembers Spark, ‘and wrote massive submissions about all the flaws of it.’ He was with the Northern Inland Council for the Environment at the time. ‘And I think even we underestimated the potential of it.’

  Two months later, the Shooters and Fishers Party introduced a bill into the New South Wales parliament to fully renovate the old laws. Social and economic factors, according to that bill, should be in the mix, instead of the test on maintaining or improving environmental outcomes.

  Finally, in December 2014, five months after Turner’s murder, the Independent Biodiversity Legislation Review Panel delivered its first report on revising native vegetation laws, with Chapter 1 titled ‘A Clear Case for Reform’. Existing regulations had ‘created mistrust’, it said. ‘[E]ducational, suasive and incentive measures’ should be used more often, and ‘a risk-based approach be taken to regulation’, emphasising voluntary compliance while ‘still giving regulators the tools to take strong enforcement action’. The report suggested that a site-specific focus on protecting biodiversity be replaced by landscape-wide outcomes. There were forty-three recommendations, and the balance between environmental and landholder needs could only, only be kept if all of the recommendations were taken up. Implicit in the plan was a philosophy that the community should pay for the long-term shared benefits when farmers had to set aside productive land.

  Maintaining and improving an environmental state on a particular property was, as the Shooters and Fishers Party had hoped, no longer to be a test of any proposed development. Losses of biodiversity could happen. But there would be more support for private land conservation; now there could be both set-asides and offsets. New agricultural projects, such as clearing old grazing blocks for cropping, would be rigorously tested, instead of written off as simply a continuation of earlier land management. There would be significant funding for detailed maps to help landholders
divine biodiversity quality and location. And there would be compliance with the protocol of ecologically sustainable development, even up to consideration of social outcomes and needs.

  By late 2014, self-assessable codes were introduced to cover woody invasive weeds, vegetation thinning and isolated paddock trees. Landholders could also self-assess the wildlife present on a property, perhaps with a consultant ecologist, and judge if it was robust enough to survive clearing. Landholders had to notify of what they were doing, and their assessment might be checked, but they did not need a property vegetation plan or a permit. No approval or expert evaluation was needed before bringing out the dozer.

  The koalas up in the trees of ‘Colorado’ were oblivious, but they had lost some of their protection. Things were a long way from restoration, and a thousand animal species were still threatened with extinction in New South Wales. But it was only in areas the OEH judged to be ‘sensitive’ that an inspection was needed before a landholder was given approval to clear.

  When the new legislation was proposed, Spark and his colleagues presented the Turnbull case to the state environment minister as an example. They asked if the clearing done by the Turnbulls, so painfully investigated and prosecuted, convicted and appealed, fined and argued about and paid for by a man’s life, would be legal under the new law. The minister, by their account, said yes.

  ‘So.’ Spark pauses. ‘Yeah.’

  If Turnbull hadn’t been elderly, if he hadn’t felt an anxious urgency, if he could have just waited a couple more years, if he hadn’t felt it was the last of the black soil, if he hadn’t felt it was the last of his strength, he might have got away with it. Turner would have lived. Grant and Cory would have had their investments intact. The blocks would still have been cleared, the koalas homeless, the brigalow and belah splintered and burned, but Talga Lane would have remained quiet.

  ‘What greater slap in the face could you have for Glen’s family, you know? They lost their father and husband and then the government’s admitting that it [would be] all legal.’

  19

  Ill fares the land, to hastening ills a prey, Where wealth accumulates, and men decay…

  —Oliver Goldsmith, ‘The Deserted Village’, 1770

  In July 2016, yet another court case cascaded onto Sylvester Joseph’s overloaded desk at Cole & Butler in Moree. Roger’s patience had cracked. He was suing his parents for that inheritance.

  Like Robert Strange, Roger submitted documents in support of his claim to the equity division of the Supreme Court. His father had bullied him and his wife, he said. There had been a clear understanding; he had sacrificed other opportunities to observe that understanding, and had invested ‘substantial capital’ back into the family business. And now his dad was stiffing him.

  Ian denied it all. There had never been any promise, he riposted. Roger had been paid, in food and board, a car and fuel, and he’d had a share of profits. Ian had never bullied him or Annette. The only thing he did concede was that there’d been a partition agreement: a complete severance of all interests between Roger and his parents’ business. It had been a waiver arrangement. He was entitled to absolutely nothing.

  Meanwhile, the administration of the Turnbulls’ assets was in Grant’s hands. Grant, from where Roger stood, was clearly the favoured heir.

  Roger pursued the case for months, awaiting a court date. He and Annette continued to live on ‘Royden’, across the road from ‘Yambin’. Robeena was now living with Grant in Toowoomba, but she came back to visit occasionally. The situation was difficult for Cory, caught in the middle. He still owned ‘Strathdoon’, and he and his uncle Grant were linked by the prosecution cases still spooling out of the OEH for the clearing.

  The lawyers’ bills mounted. Ian Turnbull’s health wasn’t improving in jail. And in the end, in early 2017, Roger gave up the case. It was just too much grief. The inheritance was passed from the patriarch’s possession to Robeena’s. His mother wouldn’t see him right, he felt. Everyone was loyal to his father – a convicted murderer, and the man Roger saw as a bully and Annette called ‘an arrogant, disgusting pig’. Roger was on his own.

  MORE THAN TWO YEARS on from Turner’s murder, it seemed the OEH was still cautious about provoking confrontations with farmers or taking on cases it didn’t feel it had a certainty of winning. In late 2016, the ABC’s Lateline program sent reporter Kerry Brewster to country New South Wales to investigate what was happening with land-clearing laws.

  One curious case, Brewster noted, was the abrupt dropping of the investigation into twelve farmers near Wee Waa, ninety minutes’ drive southwest of Moree, known for its intensive cotton farming. The farmers had been told that their properties were soon to be inspected by the OEH due to alleged illegal land clearing. Then nothing happened. No inspections. No further investigation. No explanation.

  There were rumours that department staff were discouraged from using surveillance technology to confirm illegal clearing and that they were told, at times, to ignore reports of it. Brewster got hold of a May 2015 email sent by Kevin Humphries, in whose electorate Wee Waa sits, to other members of state parliament, including premier Mike Baird. He’d bluntly suggested all agencies back away from the case: ‘It is too explosive and not warranted.’ Farmers, he explained, were already agitated and ready to begin blockading their properties from the OEH. ‘It will be the start of something,’ he warned, ‘that will escalate very quickly between farmers from around the state and the authorities.’

  ‘They’re driven by this little core minority,’ says Phil Spark, ‘that seem to have all the political clout.’ Humphries, Spark recalls, put the news of the closure of the investigations in Wee Waa on his website.

  Brewster asked Humphries about his email to Baird and others. Was it warning of a threat of violence, as had occurred to Glen Turner? Humphries reminded her of conflict in the Macquarie Valley in 2007, when police were sent in to protect compliance officers. He explained his email as sincere concern. ‘We don’t want to go back to the stage where we need police to protect the authorities to go out to investigate things.’ Under Brewster’s persistent questioning, he denied he had perverted the course of justice.

  The field operation in Wee Waa was suspended, Brewster explained to viewers, because the OEH feared there was an ‘extreme risk’ of another catastrophe. Apparently frontier violence was still an issue in the twenty-first century. One OEH officer had, in internal documents seen by The Guardian, considered that ‘the comments of Mr Humphries amount to a threat which cannot be adequately assessed in the available time’.

  The official OEH explanation was that a decision had been made ‘to postpone’ the investigation for ‘operational reasons’. It was simply a matter of priority and evaluation, the agency said. In the year to June 2016, the OEH had overseen ‘520 advisory letters, 320 warning letters, 78 penalty notices, 42 remedial directions, 14 native vegetation prosecutions and secured penalties exceeding $1m’.

  The Nature Conservation Council and the Environmental Defenders Office were among the bodies that sprang to call for further probing: an investigation into non-investigations. The connection between the Nationals, big agribusiness and regulation authorities must be examined, they said. There was a clear implication of political interference in the application of native vegetation protection laws.

  Those native vegetation protection laws were due to be changed in state parliament that very week.

  ‘THE CURRENT NATIVE VEGETATION law puts the onus of biodiversity entirely on farmers – it doesn’t share the responsibility across society,’ Kevin Humphries said in August 2016. He had worked to repeal the Native Vegetation Act since he’d been elected in 2007. He spoke of farmers who didn’t want to clear. He explained that many of them understood the importance of native vegetation for soil health. He used the word ‘balance’. He did not mention that in the Golden Triangle – which sits, of course, in his electorate of Barwon – cleared land can sell for more than $6800 a hectare, making i
t the richest cropping country in the continent. At least two farmers would later testify that Humphries, around this time, was pledging to landholders that the laws would be overturned and so they could soon clear with impunity.

  In March 2015, the government had adopted all of the Independent Biodiversity Legislation Review Panel’s forty-three recommendations. Then in May 2016, a draft package of legislation was released. At first glance it looked like a victory for conservation but, as Chris Nadolny puts it, ‘the devil was in the detail’. There were exploitable gaps between the revised Local Land Services Act 2013 No. 51, which managed natural resources, and the new conservation law; the legislation definitely did not, Nadolny and many others judged, comply with the principles of ecologically sustainable development. Neither the precautionary principle, intergenerational equity nor the preservation of ecological integrity appeared to have been applied.

  Submissions were invited from stakeholders and the community. Debates were once more thrashed out. By February 2016, the conservation groups asked to contribute to the draft laws had had enough; they walked out of consultations with the OEH. Now they constellated as the Stand Up for Nature alliance, with the Nature Conservation Council of New South Wales, WWF, Humane Society International, NSW Wildlife Information Rescue and Education Service, and the National Parks Association of NSW all contributing their authority and resources. The NSW Farmers Association declared that they were persisting with negotiations and accused the conservation groups of pique.

  Again, the submissions poured in, the concerns, the frustrations. The state environment department reported just over 1000 submissions to the panel in 2014. But more than 7000 were received by the second round, in 2016: the Stand Up for Nature alliance of conservation groups had mustered more than 5000. A mere 150 of the total were identified as being from the farming sector, which fumed over ‘click and submit’ urban-oriented campaigns. The majority, by far, wanted stronger laws and more environmental protection.