The first set of laws that banned farmers from clearing trees on privately-owned farmland were introduced without warning by then NSW Premier Bob Carr on the 10th August, 1995. Overnight, the NSW State Environmental Planning Policy No. 46 (or SEPP46 as it became known as) made it illegal for farmers to remove any trees that had been present on their land on 1 January, 1990. The excuse given for the policy ambush was that if farmers were given advance warning, there would be panic clearing from ‘Bathurst to Broken Hill’, and hence irreparable damage to the environment.

Despite a promise that subsequent legislation would be quickly introduced to make the policy more manageable for farmers; and despite massed farmer protests in Macquarie Street, the Premier being barricaded in the Walgett Airport by angry farmers, and numerous farmer roadblocks to prevent NSW Government officials inspecting farms, the legislation that become the NSW Native Vegetation Act has not (until the present time) been the subject of serious reform.

The reason that the legislation was, and remains so controversial is that, at its heart, it imposes a significant cost on a relatively small group of landholders to achieve what is undoubtedly a benefit that is enjoyed by the entire community.

Similar legislation enacted after 2000 in Queensland at least involved some degree of monetary compensation being provided for those landholders most affected by the tree-clearing bans – something which has never been provided to NSW landholders. This despite the fact that an inquiry by the Productivity Commission in 2004, ABARES research in 2006, and more recently a Senate Inquiry concluded in 2012 all heavily criticised the legislation and its inequitable cost impact on affected landholders, which ABARES estimated would have exceeded $1 billion by 2006.

The tree-clearing bans were imposed with the stated objective of biodiversity conservation, an outcome which is unquestionably a ‘public good’ – the benefits of which are enjoyed by the entire community. Subsequently, an additional even more substantial public benefit was achieved as a consequence of international greenhouse emission accounting rules under the Kyoto Protocol, which enabled Australia to count estimated emissions arising from land clearing in 1990 as part of the nation’s baseline emissions under that agreement. This meant that the subsequent reduction in emissions which occurred as a result of the bans imposed on landholders resulted in a very large drop in national emissions, and enabled Australia to achieve its Kyoto Protocol emission target – despite emissions in every other sector of the economy increasing significantly over the relevant accounting.

The environmental groups that so stridently campaign to maintain and strengthen land clearing bans have never acknowledged the glaring inequity associated with imposing these bans (and their associated cost) on privately owned farmland. In fact, their campaigns often try to hide the fact by referring to the legislation as providing protection for trees in forests or woodlands – as if the affected lands were some sort of public reserve that farmers don’t own, but want to desecrate for their own greedy benefit.

Virtually every other nation on earth – even developing nations such as Brazil – has created equitable policy arrangements that share the cost of maintaining biodiversity on private land between the landholders and the wider community. These ‘stewardship’ programs have been trialed on a very short-term basis in Australia, but never adopted as settled policy.

Interestingly, the current Emission Reduction Fund (ERF) policy implemented by the Australian Government has for the first time in Australia implemented a system under which farmers can enter into a contract to provide environmental benefits – specifically greenhouse emission abatement – and are paid under a long-term contract for the provision of that service. A total of 66.7 million tonnes or 72% of the 93 million tonnes of abatement achieved under the first two ERF auctions has been achieved from contracts undertaken by farmers, demonstrating that farmers are very willing participants in measures aimed at achieving public benefits – as long as they are treated equitably. It is somewhat ironic that the Queensland Government now wants to change land clearing laws – but wants the Australian Government to pay farmers for this by quarantining part of subsequent ERF auctions for Queensland projects!

After more than twenty years of controversy, one would think that both the NSW and Queensland Government would recognise the fundamental inequity in their policy approaches to this issue, but it seems this is not the case.

To paraphrase Albert Einstein, “Policy insanity is doing the same thing over and over again and expecting different results!”