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Michael Eburn (Associate Professor at the ANU College of Law, the Australian National University, Canberra) has published a paper with his colleague Geoff Cary (Associate Professor within the Fenner School of Environment and Society at the ANU) entitled ‘You own the fuel, but who owns the fire?’

This paper is a development of a paper that was presented at the 2016 AFAC Conference in Brisbane.

You can visit Michael Eburns web site by clicking here or the image (above).

Abstract

In this paper, we argue that the statement ‘Whoever owns the fuel owns the fire’ implies a duty on landowners to manage fuel on their land to reduce the likelihood of bushfires, however started, from spreading to neighbouring properties. However, the notion ‘Whoever owns the fuel owns the fire’ has not been analysed from a legal perspective. This paper reviews Australian law to identify who is legally responsible for fire that starts on privately owned land. We argue that the correct interpretation of existing Australian law is: ‘Whoever owns the ignition owns the fire’ – that is, liability to pay for losses caused by bushfire has always fallen on those that intentionally start a fire, not on the owner of the fuel that sustains the fire. That legal conclusion could have dramatic implications for fire management policies. It will be shown that liability for starting a prescribed burn is clear-cut whereas liability for allowing accumulated fuel loads to contribute to the spread of fire is almost unheard of. As a result, we argue that the law is pushing landowners in a direction away from the policy direction adopted by all Australian governments. After identifying the current legal position, we recommend changes to align the law with the national policy direction.

Conclusion (from the paper)

This paper set out to test the hypothesis ‘Whoever owns the fuel owns the fire’. While that claim may reflect a moral position, the question considered here was whether it was reflected in Australian law.

The conclusion is that the law is clear: whoever owns the ignition owns the fire. The question of whether the ‘owner’ of the fuel ‘owns’, or is legally responsible for, the fire has not been tested. Analysis of the law shows that the best that can be said is: whoever owns the fuel might own the fire. That means that a (legally) cautious landowner, considering whether to set a prescribed burn, would be correct to conclude that the legally lower-risk option is to do nothing.

If the law says that it is safer to do nothing, then the law is pushing landowners in a direction away from the policy direction adopted by all Australian governments. National policy is focused on all stakeholders doing their share to make communities resilient to hazards, in this case bushfire. If the law discourages action designed to mitigate risk, the law is pushing in the wrong direction.

It follows that the laws should be amended to bring them into line with national policy. This could be achieved by:

  1. Providing landowners with a defence if they set a prescribed burn in accordance with the terms and conditions of any permit;
  2. Providing that landowners who do not comply with legal obligations to manage fuel loads are prima facie liable for the damage caused by the fire, the fire suppression efforts, or both; and
  3. Providing that landowners, even in the absence of formal notice, have a duty to mitigate risk by managing fuel loads on their land.

If those amendments were put in place, then it would be the case that ‘whoever owns the fuel owns the fire’. This would encourage a landowner, when conducting a risk assessment, to conclude that to do nothing is a greater risk than acting to reduce the risk of fire. And with more action to reduce the risk of wildfires, communities in fire-prone environments may be safer and more resilient.

You own the fuel, but who owns the fire? (159 downloads)

Your comments and feedback are most welcome.

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