Enquiry into the impacts of native vegetation and biodiversity regulations

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State Cabinet

      1. In April 1995 State Cabinet endorsed a series of recommendations including proposals to:

  • remove the presumed right to clear native vegetation in landscapes containing less than 20% of the original vegetation;

  • modify the process for assessing clearing proposals to include the consideration of nature conservation;

  • provide better Government support to remnant vegetation protection and management.

      1. Amongst other recommendations of the Cabinet Minute were – That Cabinet;

      2. At 2. – Agree that existing controls on clearing under the Soil and Land Conservation Act and the Country Areas Water Supply Act be augmented by a system to ensure that other natural resource conservation issues are considered before any further clearing occurs on private land.

      3. At 3.(e) – Examining the case for compensation as part of the comprehensive review of the Soil and Land Conservation Act. ………;

      4. At 3.(f) – Drafting a modified Soil and Land Conservation Regulation under the Soil and Land Conservation Act to implement a), b) and c);

      5. Neither (e) nor (f) were acted upon by the Government. However cl.2 resulted in a Memorandum of Understanding (MoU) between the Agriculture Western Australia (AGWA), the lead agency, and the Department of Environmental Protection (DEP), Environmental Protection Agency (EPA) and others.

      6. The MoU became the controlling document for the actions of agencies in controlling land clearing. Over several years the validity of the MoU was persistently challenged by the environmental consultants Ferguson, Kenneison and Associates and it became a discredited document and was revoked by the present Minister for Agriculture.

      7. Several matters questioning the legality of the 1995 Cabinet Minute have been placed before the Western Australian Legislative Council Standing Committee on Public Administration Inquiry Into Land Clearing Applications by the Ferguson, Kenneison and Associates. It is argued that the endorsement by Cabinet of the AGWA proposals was an executive decision that was not backed by statute, and in doing so could have recommended actions that could be ultra vires to the Soil and Land Conservation Act 1945.

      8. It was also wrong that those affected by the Cabinet Minute were prevented from examining it because of “Cabinet confidentiality” notwithstanding that it was also in the hands of the Agencies. This is seen by many as an abuse of executive power, as the document, despite having an enormous impact on the farming community, was being treated as if it were black letter law – but it was not a public document. It was not a law that could be examined to see if landholders were being treated fairly and according to the law by the agencies. However, a copy of the Minute was obtained and once seen, questions regarding the legality of the document were quickly raised.

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