THE LAND COURT JUDGEMENT FOR QUEENSLAND FARMERS

Source:  Lock the Gate Alliance
      Darling Downs farmers have scored a legal victory in their battle against New Hope Coal.  This is a case of the Oakey Coal Action Alliance, EDO Queensland and the 30 other community members, taking their battle to save their farmland and their water to the courts – and winning!  
Congratulations are in order to those brave souls who never gave up and took their stand to court!  And of course a big thank you to those who supported the cause for the farmers and community affected by this mine.  I would think a big thank you is due to radio personality Alan Jones who has supported the people all along.

We read:
     “The Land Court judgement concluded that “The principles of intergenerational equity are breached.….with the potential for groundwater impacts to adversely affect landholders in the vicinity of the mine for hundreds of years to come”.
“This is an extraordinarily strong and important outcome - but unfortunately it is not binding on the Queensland Government. It is only a recommendation for them to consider.  And we’ve seen strong recommendations from the Land Court watered down by politicians before.”

David and Heather Pascoe have on their Facebook Page:    
      “…The Queensland Land Court has ruled in favour of the farmers against all the odds – and certainly against the wishes of all Queensland State politicians….”
They continue:  “This fight has never been about money for us, nor about greed. This fight has always been about truth, integrity and doing the right thing by our community.  This fight has always been about saving our farmland and our water….”
The folk now need all the help they can muster to put pressure on mines minister Anthony Lynham to refuse a mining licence for the Acland Stage 3 mine expansion!

THE ‘FACELESS UMPIRES’:  CHICKENS NOW ROOSTING IN LARGE NUMBERS
      The chickens are coming home to roost as the saying goes.  The headlines read:  “Faceless umpires defy Minister Dutton, and so foreign criminals litter our streets”, Nick Cater complains, “Migrant riffraff make fools of us” at The Australian 30 May 2017.
      Well, I would have thought Nick felt urged to investigate the origins of the problems Australia now faces as the “migrant riffraff” thumb their noses at Minister Dutton and law-abiding Australian citizens.
For your information Nick, the ‘chickens first took flight’ quite some time ago.  It was in 1929 when England’s Lord Chief Justice, Lord Hewart of Bury, was warning the public about the ‘faceless umpires’ in “The New Despotism” (found here…. https://www.alor.org/.../HEWART%20Lord%20Of%20Bury-The_New_Despotism_1929.pdf).  
He wrote:

“A little inquiry will serve to show that there is now, and for some years past has been, a persistent influence at work which, whatever the motives or the intentions that support it may be thought to be, undoubtedly has the effect of placing a large and increasing field of departmental authority and activity beyond the reach of the ordinary law… the pretensions and encroachments of bureaucracy-the new despotism…”

Essential Nature and Tendency should be Clearly Exhibited
Lord Hewart continued:

“…Whether this influence ought to be encouraged, or whether it ought rather to be checked and limited, are questions into which, for the moment, it is not necessary to enter.  But it does at least seem desirable that the influence itself should be clearly discerned, that its essential nature and tendency should be quite plainly exhibited, and that its various methods and manifestations should not be allowed to continue and multiply under a cloak of obscurity.

“The citizens of a State may indeed believe or boast that, at a given moment, they enjoy, or at any rate possess, a system of representative institutions, and that the ordinary law of the land, interpreted and administered by the regular Courts, is comprehensive enough and strong enough for all its proper purposes.
But their belief will stand in need of revision if, in truth and in fact, an organized and diligent minority, equipped with convenient drafts, and employing after a fashion Part of the machinery of representative institutions, is steadily increasing the range and the power of departmental authority and withdrawing its operations more and more from the jurisdiction of the Courts.

Administrative Law Profoundly Repugnant to English Ideas
“In order to perceive clearly the nature of this influence or tendency, and the relation in which it stands to the essential foundations of the Constitution, it may be well to examine briefly, first, the meaning and implications, on the one hand, of the Rule of Law, and, on the other hand, of the Continental system of so-called Administrative Law" with which the Rule of Law is sharply contrasted.

“The apologists of the growing system, or lack of system, which it is here proposed to explore sometimes permit themselves to speak of it as if it were "Administrative Law".

But the description, it will be seen, is quite curiously the reverse of the truth.

“The Continental system of "Administrative Law", profoundly repugnant as it is to English ideas, is at least a system.  It has its Courts, its law, its hearings and adjudications, its regular and accepted procedure.
It would be a strange misuse of terms if the name of "Administrative Law" were to   be applied to that which, upon analysis, proved to be nothing more than administrative lawlessness…”

THE ORIGINS AND GROWTH OF COMMON LAW…  AND EQUITY
      Lord Hewart wrote that ‘Administrative Law’ was profoundly repugnant to English ideas’.  It is worth exploring why this is so. The following is mainly from an Owen Barfield article found here…
https://archive.secondspring.co.uk/articles/Barfield%20on%20Equity.pdf.

     It is in the study of the customs of our Anglo-Saxon forebears that we must look for the origin of the English common law. One has only to read one of the Icelandic Sagas to realise two things:
First, that a Viking was obliged to give a far greater portion of his time and attention to the business of conducting lawsuits than, let us say, a member of the stock-exchange;
Secondly, that the operation of law, even at its most primitive stage, when nearly every dispute ended in personal combat, was bound hand and foot by the necessity for correctness of form.

     Everything depended on using the correct words in your summons. A right was enforceable only if there happened to be some established form of action (and there were none too many) which would fit the particular infringement of which you had to complain. If not, no matter how unjustly you had been treated, the courts could do nothing for you. “Where there is a remedy,” ran the old maxim, “there is a right.”  Whereas it is quite instinctive with us to reverse the order and say: “Where there is a right, there must be a remedy.”

     This creeping limitation of the right of action lasted in England well into the thirteenth century, and the remedy, when it came, took a rather curious form. People who had a genuine grievance for which, owing to formal reasons, no relief was available at law, turned to the King as the ultimate fountain of justice: and the person who had to deal with their petitions was the King’s highest official, the Chancellor.

     Down to the Reformation this official was invariably an ecclesiastic, and he was known among other titles, as the “Keeper of the King’s Conscience.”… the story of equity is the story of how the relief which the Chancellor gave to oppressed and remediless suitors became more and more systematic, until it eventually resulted in a whole set of courts existing parallel to and yet quite distinct from those of the common law, and known as the Courts of Equity or “courts of conscience.” It is from these extraordinary courts, whose jurisdiction was both concurrent with, and superior to, that of the courts of common law, that the present Chancery Division of the High Court has descended.

     The term “courts of conscience” was in many ways a singularly correct description of the courts of equity, and indeed it conceals in itself the very essence of equity. For, while on the one hand it is still necessary today for a lawyer to have some understanding of the meaning of this phrase, “courts of conscience,” even for the ordinary practical purposes of his business, at the other end of the scale it carries us deep into the roots of human consciousness. What does it mean?

     Equity is of course a branch of civil law, and the court would move only at the instance of a plaintiff with some grievance. But in spite of this, the principle which underlay the relief granted was not, as at common law, the satisfaction of the aggrieved plaintiff. On the contrary, the court was concerned to clear the conscience of the defendant. His conscience could be cleared only by repentance, and in order that he might repent, it was necessary that he should first of all make restitution to the person whom he had wronged. One cannot, as the King in Hamlet knew, “be pardoned and retain the offence.”

     Now the common law took no account of such personal rights as these. A man might be a notorious rogue, but nevertheless he could succeed in evicting from a piece of land (if he could show that it was technically “his”) another man whose personal right to the land was universally admitted to be far better than his own. This was where equity stepped in. When such a situation arose, the sufferer could apply to the Chancellor, and, if satisfied of the rights of the case the Chancellor would say, in effect, to the oppressor:

“It is perfectly true that you have this legal right to the land, and if you choose to go to law to enforce it, the common law will assist you. I cannot stop that. But there is something else which I both can and shall do. The moment you begin any such action, in order to prevent you going on with it, I shall imprison your person for contempt of my court.” Thus the would-be oppressor was helpless.  He had a legal ‘right,’ but equity prevented him from enforcing it for ‘personal’ reasons. The maxim was: “Equity acts in personam*.”

* In personam is a Latin phrase meaning "directed toward a particular person". ... In personam means that a judgment can be enforceable against the person wherever he/she is.
In personam – Wikipedia  https://en.wikipedia.org/wiki/In_personam

Continue reading the full Owen Barfield article here….
https://archive.secondspring.co.uk/articles/Barfield%20on%20Equity.pdf

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