I have just checked the fine print on my insurance policy and I can assure you that it is loaded in favour of the Insurance company not the policy holder. To allow access for birders other than on an occasional or infrequent visit would require an endorsement on the policy for the activity which is obviously not a farming or agricultural activity. Knowing insurance companies, this would probably include additional conditions and a hefty hike in premiums. I am obliged to take all reasonable steps to ensure the safety of any person on my property, including those entering without my knowledge or permission. To further cover myself from claims I should also sight the insurance policy of any contractor or tradesman that I engage to carry out any work on the property. A person appears to have a right to enter my property from the gate to the front door “for a legitimate purpose”. If, for example, I did not answer the door and they then moved to the rear or the house or to any other part of the property it could then become a trespass. The world has become litigation made. Warren Thompson =============================== To unsubscribe from this mailing list, send the message: unsubscribe (in the body of the message, with no Subject line) to: birding-aus-request@vicnet.net.au http://birding-aus.org ===============================
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9 responses to “NOT GOOD NEWS”
Thanks for making that clear Eric Of course I am not suggesting that any one should turn up to any landholder demanding access while quoting “it’s a lease and therefore access is legal for whatever reason”. Such a suggestion also makes me cringe. If anyone or an association etc. with the time and inclination wishes to make representation to Government about formal access to birding sites on SA Pastoral leases generally, I have written this information so there are some known facts about the topic. Regards Ian May ———————————————————————— =============================== To unsubscribe from this mailing list, send the message: unsubscribe (in the body of the message, with no Subject line) http://birding-aus.org ===============================
I think Eric makes a very valid point – it’s always best to work in co-operation with landholders/leaseholders rather than against them. I joined a field research group for four years over 30 years ago which camped and conducted ecological research on leasehold land in north-western Australia. The field research team had been visiting that property regularly, for 2 to 3 weeks at a time, for nearly 20 years by the time I had joined it. When the visits began in the 1960s the research team had gained permission from the leaseholder to camp on the land. But the land changed hands in the late 1970s and the research team continued to camp on the land without consulting the new leaseholder. When the new leaseholder found the research team camping on the land (in 1982) he was not very pleased that he had not known about it for five years. But when the leader of the research team explained why they were there and the history of its previous relationship with the past leaseholder, the current leaseholder was happy to assist in any way possible. Among other things, it led to the leaseholder offering the research team accommodation in the shearers’ quarters and even trail bikes to assist with getting around the property. The research group reciprocated by checking with the leaseholder before embarking on subsequent trips if he wanted us to bring any special supplies for him from Perth. The leaseholder was also really grateful to receive papers that were published from the results of the research. Regards, Stephen Ambrose Ryde NSW —–Original Message—– [mailto:birding-aus-bounces@lists.vicnet.net.au] On Behalf Of Eric.Vanderduys@csiro.au Sent: Monday, 26 August 2013 1:12 PM Cc: wjthom@tpg.com.au; birding-aus@vicnet.net.au Lyndhurst Station – NOT GOOD NEWS Greetings Birds Ozers, While I think it’s legitimate to know your rights in relation to public interest, access to leasehold lands, etc, I don’t think entertaining the idea of using public right to gain access is a good idea in this instance. It doesn’t sound like the landholder is anti-bird, or even strongly anti-birdo. There seems to be no immediate need for strong conservation efforts for CBWFs. Accessing the land and using public right as your welcome mat is extremely adversarial and is likely to get landholders way off side. Far better to attempt gentle persuasion and a love of the birds, (which already seems to be in place), and if that fails, live a little and go and find them somewhere else. I regularly work on leasehold properties and the idea of having someone go before me who has explained to the landholder that it’s a lease and therefore access is legal for whatever reason makes me cringe. Going back to the original post on this topic, the fences that will require mending will be 5 strand, barbed, electrified etc. If the landholder has said he’d like visitors to call 2 weeks in advance, well, you know what to do. Cheers, Eric =============================== To unsubscribe from this mailing list, send the message: unsubscribe (in the body of the message, with no Subject line) http://birding-aus.org ===============================
Greetings Birds Ozers, While I think it’s legitimate to know your rights in relation to public interest, access to leasehold lands, etc, I don’t think entertaining the idea of using public right to gain access is a good idea in this instance. It doesn’t sound like the landholder is anti-bird, or even strongly anti-birdo. There seems to be no immediate need for strong conservation efforts for CBWFs. Accessing the land and using public right as your welcome mat is extremely adversarial and is likely to get landholders way off side. Far better to attempt gentle persuasion and a love of the birds, (which already seems to be in place), and if that fails, live a little and go and find them somewhere else. I regularly work on leasehold properties and the idea of having someone go before me who has explained to the landholder that it’s a lease and therefore access is legal for whatever reason makes me cringe. Going back to the original post on this topic, the fences that will require mending will be 5 strand, barbed, electrified etc. If the landholder has said he’d like visitors to call 2 weeks in advance, well, you know what to do. Cheers, Eric On 26/08/2013, at 12:22 PM, “Ian May” <birding@ozemail.com.au> wrote: =============================== To unsubscribe from this mailing list, send the message: unsubscribe (in the body of the message, with no Subject line) http://birding-aus.org ===============================
Hello again Having been contacted to provide some more explanation about this subject, the most relevant information in the <>South Australia Pastoral Land Management and Conservation Act 1989 Act relating to rights of Public Access are to be found in; See http://www.legislation.sa.gov.au/LZ/C/A/Pastoral%20Land%20Management%20and%20Conservation%20Act%201989.aspx Part 2 4 Objects & Duties (e) to provide the community with a system of access to and through pastoral land that finds a proper balance between the interests of the pastoral industry and the interests of the community in enjoying the unique environment of the land. Division 1–Public access routes and stock routes <#Elkera_Print_BK62> 45 Establishment of public access routes and stock routes <#idb51f7ab6_acb5_4f3c_8747_1bf6321fe192> Division 3–Public access <#Elkera_Print_BK71> 48 Right to travel across and camp on pastoral land <#ida331b81b_d9a5_4194_8ad5_a3102be5d22e> 48 (2) Subject to this Act and to the terms (if any) of an ILUA relating to public access and activities on the land in force in relation to the land, a person may, on giving oral or written notice to the lessee, travel across pastoral land (otherwise than on a public access route) by any means other than a motor vehicle, a horse or a camel and, in the course of so traveling, camp temporarily on the land. 48B Trespassers on pastoral land the subject of an ILUA <#Elkera_Print_BK77> 49 Public access not to be obstructed <#Elkera_Print_BK78> Other relevant info is Part 1 3 Interpretation Authorised officer means– (a) a police officer; or (b) a person appointed by the Minister as an authorised officer for the purposes of this Act; ILUA means an indigenous land use agreement registered under Part 2 Division 3 of the Native Title Act 1993 of the Commonwealth, the parties to which must include, but are not limited to, the Crown, a lessee of pastoral land and a native title group; Motor vehicle means any vehicle capable of being driven or ridden that is propelled by means of an engine; The main point is that Sec 48 (2) makes it clear that it is legal to walk and camp (subject to conditions) into a South Australian Pastoral lease by giving verbal or written notice to the lessee. My memory of the term Camping temporarily is regarded as up to two weeks but must not be closer than 500 meters of active stock watering points or within 1000 meters of the homestead or outstations etc. Now I don’t want to open a can of worms here but it is important to know that under the Objects of the Act, “the interests of the community in enjoying the unique environment of the land” is provided for and should not be forgotten in this debate. Regards Ian May Ian May wrote: =============================== To unsubscribe from this mailing list, send the message: unsubscribe (in the body of the message, with no Subject line) http://birding-aus.org ===============================
Bob, A document could be crafted which should protect a landowner, if it contained an acknowledgment by the birder that they are entering at their own risk, and will not sue the landowner for anything including negligence. If you were trying to protect the landowner as much as possible the birder could agree to indemnify the landowner for any loss or liability they suffer as a direct result of the birder entering the land (though query whether it’s reasonable for the birder to have to do so). Of course one can never say this would mean the landowner “can’t be sued” – it would give them a strong defence against an action by the birder and might mean the birder had to cover the landowner’s legal costs, if someone was silly enough to try suing after signing such a document. There were changes to tort law about a decade ago designed to prevent people being liable for injuries for “obvious risk”. So the idea that a landowner can be held liable for a birder breaking their ankle in a random rabbit hole in the outback doesn’t stack up. On the other hand, if there was blatant negligence (e.g. the landowner sets a whole lot of illegal traps right where he knows birders are going and doesn’t warn them and someone gets badly hurt), then it might be questionable if the landowner could rely on something the birder signed to absolve him of all liability. The point Ian raised about people having a right to enter pastoral leases is interesting and worth looking into some more. Anyone know if this particular site is freehold or pastoral lease? There also seem to be some misconceptions about insurance. If a university / bird club / bird tour company has public liability insurance it will only cover the university / bird club / bird tour company’s liability. It wouldn’t protect the owner of land they happened to be on at the time. Cheers, Murray Lord =============================== To unsubscribe from this mailing list, send the message: unsubscribe (in the body of the message, with no Subject line) http://birding-aus.org ===============================
Correct me if I’m wrong but I was once told a waiver of liability is not worth the paper it’s written on. In a legal sense the landowner or activity operator can still be sued, is this correct. Bob Green =============================== To unsubscribe from this mailing list, send the message: unsubscribe (in the body of the message, with no Subject line) http://birding-aus.org ===============================
There are other longer term options when the public is denied access to a pastoral lease for what many would reasonably consider a legitimate low impact purpose such as bird watching. Option 1. Direct permission request to the Minister. Under the SA Pastoral Act it is possible for the Minister to allow access to a pastoral lease. Perhaps the ornithological societies should be pursuing this option for their members. Option 2. Lobby the Minister to declare the access track to the site a Public Access Route (PAR). There is management system prescribed under the act to provide precisely for this Option 3 Lobby to have an area declared a Regional Reserve under the NPW Act. This would allow for managed access to the area and could provide for managed camping too It should be remembered that pastoral lease is not freehold land, it is crown land and a pastoral lease is issued under the SA Pastoral Act primarily for the lessee rights to use the land for managed pastoral purposes. ( see http://www.legislation.sa.gov.au/LZ/C/A/Pastoral%20Land%20Management%20and%20Conservation%20Act%201989.aspx ) Access and camping rights is reasonably required for this site only for an area of about 2 square km extending to no more than about 1 km north from the main road. Unless the regulations have changed recently it should be understood that it is legal to walk into a pastoral lease. My memory of the Act requires that permission must be sought from the landholder to drive a motor vehicle into the lease area, but not required for a member of the public to walk into the area on foot Regards Ian May John Leonard wrote: =============================== To unsubscribe from this mailing list, send the message: unsubscribe (in the body of the message, with no Subject line) http://birding-aus.org ===============================
I can understand birders’ frustration, especially as you would expect that the common sense view of of ‘everything at your own risk’ to apply here. But surely there must be other sites where the CBWF can be found? John Leonard On 23 August 2013 15:09, Bob and Trish <randtsothman@bigpond.com> wrote: — John Leonard Canberra Australia http://www.jleonard.net I want to be with the 9,999 other things. =============================== To unsubscribe from this mailing list, send the message: unsubscribe (in the body of the message, with no Subject line) http://birding-aus.org ===============================
Today I am attending a Laser Skirmish birthday party with two of my children. I have signed a waver of liability form for myself and my two children. I have previously done this with other activities such as swimming with dolphins in New Zealand and travelling on The Spirit of Enderby from Albany to Hobart. It would seem the same principle could be applied to birding on private land. Perhaps I am just “old school’ believing that I am responsible for my own actions. Rob Hamilton =============================== To unsubscribe from this mailing list, send the message: unsubscribe (in the body of the message, with no Subject line) http://birding-aus.org ===============================