By Michael Eburn, PhD and Barrister – September 24, 2018
This question touches on a significant issue in rural or bush fire fighting. The details provided by my correspondent, a volunteer with the NSW Rural Fire Service, are very extensive, but I have edited them down to distil the essential facts whilst trying not to identify the participants, the location or the fire.
The gist of the issue is that my correspondent was with a volunteer brigade that had been sent out of area to assist at a large campaign fire. The incident controller had determined ‘that there would be no active, direct firefighting’. Even so the firefighters were approached by people whose properties were at risk. They understood that they were ‘being directed not to help the local farmers when they are in effect begging for help’.
This is not the first time this has happened – see Self help firefighting in Victoria(August 30, 2014).
In this paper, Michael Eburn and his colleague Geoff Cary 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.
Today’s question relates to the application of natural justice and conflicts of interests in NSW RFS disciplinary matters. My correspondent asks:
Can an appointed investigator of alleged allegations against a RFS volunteer be then placed as the Chairperson of the Zone Discipline Panel to make decisions on the same allegations?
The critical issue here is ‘natural justice’. One of the key elements of natural justice is that the decision maker must not have a stake in the matter and must hear from both sides and decide the issue before them without prior judgment.
This post contains a legal assessment of the question “You Own the Fuel, but Who Owns the Fire?” by Mr Michael Eburn (whom we have much respect).
The VFFA would like our readers to consider not only the legal ramifications but the consequence of failing to properly manage fuel loading.