Charges brought by the Queensland government against Cape York grazier Scott Harris under the Aboriginal Cultural Heritage Act 2003 have been dismissed, in what has been described as a landmark victory.
David Kempton, a property rights lawyer in Cairns representing Mr Harris, said the judge in the case described the Act, a shield to protect cultural heritage, as being used by the government as 'somewhat as a sword in this case'.
"This prosecution was not about protecting Aboriginal cultural heritage as much as preventing lawful tree clearing," Mr Kempton said.
Mr Harris, the owner of Kingvale Station, 100km west of Laura, was charged in 2018 with failing to take all reasonable and practicable steps to ensure 50ha of tree clearing undertaken with state approval on the 55,000 ha property, did not harm Aboriginal cultural heritage.
The state claimed it was not necessary to prove that Aboriginal cultural heritage actually existed in the cleared area or that it was harmed, just that Mr Harris had not taken all reasonable and practicable steps prior to the clearing taking place to ensure harm did not occur.
Steps would include obtaining consent of the Aboriginal people, undertaking a survey or study, or entering into an agreement.
The charges were laid even though it has been over 50 years since Aboriginal people visited the land.
The court directed the jury to acquit Mr Harris as there was no evidence that supported the charges.
According to Mr Kempton, the judge observed that the legislation was poorly drafted, saying that if it was right, "I cannot cut down a tree in my back yard".
It was the first prosecution of its kind in Queensland and Mr Kempton said if Mr Harris had been found guilty, every landholder (including freeholders) who had cleared land, built a fence or firebreak, ploughed a paddock, or built a road or airstrip since 2003 would potentially be guilty of a criminal offence punishable by fines of up to $125,000.
Over 75 approvals for tree clearing for high value cropping have been granted in 2014-2015, and thousands of hectares have been cleared with no other investigations or prosecutions.
RELATED: Cropping a success at Strathmore
Mr Harris says he is keeping his sense of humour and pushing on after his latest joust with the state government over land clearing.
The latest charges, which have been dismissed, follow Mr Harris's $450,000 fine in 2019 for illegally clearing 2875ha of native vegetation at his home property, Strathmore Station near Georgetown.
Speaking for the first time outside court, Mr Harris said the decision was a victory for the future of agriculture in Queensland.
"We face more and more regulation and bureaucratic interference with our right to manage our land," he said. "The politicians and regulators trust us to put high quality Australian grown food on their tables, but they won't trust us to look after our land."
Saying while he had been made out to be some kind of environmental or cultural vandal, his father-in-law has lived on Kingvale for 50 years and was highly respected by the Aboriginal elders.
"Had he been aware of anything at all that was significant to the Aboriginal people from Kingvale, we would have pulled up right away"
Mr Harris said it was obvious governments didn't want development in the north.
"This has been going on since Federation," he said.
"Politicians come out with $5b for feasibility studies to develop the north but when someone actually does something, they can't go back to more feasibility studies.
"They say they want it to happen but they don't really."
He said the sad part of the court case was that it would have been cheaper to plead guilty, pay the $30,000 fine and step away.
"But if I had, the ramifications for the rest of Queensland were that anyone who mowed a lawn or cut down a tree since 2003 would be automatically liable.
"We fought it and got the right result, but we'll have no change out of $100,000."
Mr Harris said he intended to clear another 2800ha on Kingvale, with the intention of growing crops and possibly cotton, to blend in with his operations at Strathmore.
However, late last year federal Environment Minister Sussan Ley used her powers under the Environment Protection and Biodiversity Conservation Act to refuse plans to clear that land, on the grounds of unacceptable impacts on threatened species and habitats.
The Kingvale clearing application was subjected to numerous scientific reports to gain state HVA approval.
According to a Property Rights Australia social media post in May 2018, there is no mapped essential habitat in the area and no endangered, vulnerable or near-threatened species.
"The land has less than 1.5pc slope; red stable sandy loam to sandy clay loam soil type. Clearing wetlands is not allowed and no clearing allowed within 100 metres of waterways," the post went on.
It also said the clearing permit was for an area in the Normanby river catchment that goes to Princess Charlotte Bay, an inlet of the Coral Sea.
Mr Harris's lawyer, David Kempton said that where a state department gave a valid permit to undertake an activity, a landholder should not be left guessing as to what liabilities come with that approval and what action other departments might take against them.
"This case also serves as a warning that if the state uses legislation for a purpose other than for what it was intended, the courts are ready to intervene to protect landholders' rights," he said.
While Mr Harris was found not guilty, Mr Kempton said the way forward for landholders was unclear because as the law stands, every landholder in Queensland was on notice that they must take all reasonable and practicable steps to ensure any activity does not harm Aboriginal cultural heritage in circumstances where it would be reasonable to assume significant cultural heritage exists and the activity is likely to harm that object or area.
Property Rights Australia chairwoman Joanne Rea said the state government had tried to use the Aboriginal Cultural Heritage Act for a purpose it was not intended.
"If the state had won in this case it would more readily stop perfectly legal land management through a completely unrelated Act," she said. "It does put people on notice though that they have to make inquiries if there's any thought of Aboriginal cultural heritage present before they do something."
Mr Harris speculated that the state government would change the legislation as a result of last week's court outcome.
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