The Winter Road

by Kate Holden

  Fran Pearce read her statement next. She explained, with dignity, the enormous personal cost of the aftermath of her brother’s death, and the responsibilities that had fallen to her and her partner. She spoke of her brother’s good character. She recounted various memories: telling her parents their son was dead; holding the weeping children; sharing a bed with McKenzie, worrying about money for a funeral and the mortgage repayments; enduring the revelation of how Turner died; sharing the ordeal of the trial. Her emotional health was shot now, Pearce said. ‘I drink too much to get through the things that are unbearable, and to dim the picture of my brother’s body in my head. I have panic attacks. I cannot watch TV or movies where people get shot.’

  The trial, she said vehemently, could have been avoided if Ian Turnbull had truly been remorseful and had pleaded guilty to murder: ‘We have had the life force of our family taken from us in horrendous and callous circumstances because of one person’s greed and arrogance that the laws do not apply to him.’ Pearce paused and, when she resumed, spoke deliberately. ‘He chose to pick up a gun. He chose to murder my brother. He chose to take Glen away from us.’

  Robert Strange told the court how his life was entirely ruined by the events of that night on Talga Lane. There were slow signs of recovery – he no longer had troubling thoughts that someone might shoot him through a window – but he had been emptied by the shock that came from the mouth of Turnbull’s little .22. He wore an air of enormous sadness. There wasn’t much to say, really, except how wrecked he felt; but he said it.

  THOMAS HOBBES, IN HIS work Leviathan (1651), believed nature was chaos. A mother bird may lament the eating of her chicks, a scavenger scared from a carcass by another might howl in protest. But there are no penalties in nature except natural consequence. Nature operates without the idea of crime. There is little concept of revenge. There are no courts of arbitration.

  Humans have laws to remedy these entropies, and to maintain our relations with one another.

  The evolution of laws to govern human actions over nature is, in the Western world, comparatively recent. In Australia, our environmental laws, like our assumptions, have their origins on the other side of the planet.

  In early-nineteenth-century Britain, faith in time-honoured institutions such as feudalist aristocracy and in the idea of a ‘balance of nature’ wavered in the face of increased manufacturing and a decline in agriculture, leading to a more individualistic mindset. Wealthy landowners were concerned about protecting their assets, especially, in the new age of steam, against straying pollution. At the same time, a respect for ‘natural law’, melding with the elemental logic in Locke’s popular model of property ownership and Bentham’s pragmatism, informed a utilitarian response to the consequences of what we now call environmental harms: they became crimes.

  Crimes against nature were also crimes against the future. Perhaps surprisingly, it was poet Samuel Taylor Coleridge who was often credited with developing the idea of ‘land as ideally held on trust across generations’ and who helped inspire the political will to protect it.

  Locke had proposed a kind of ‘sustainable development’ that worked to promote economic growth within certain constraints, including environmental parameters; the market would rule, inside a reasonable structure that recognised physical limits. Coleridge, an adrenalised devotee of mountaineering, opinion, poetry, risk, opium and political agitation, spoke of ‘higher needs’ in less tangible rudiments: beauty, virtue, mental health – and healthy land was the foundation of this. In Bristol in 1797 and 1798, young Coleridge met an extraordinary assembly of scientific talents: Humphry Davy, James Watt, Erasmus Darwin and other ‘sons of genius’. The result was some truly innovative conclusions about the place of humankind in the natural world. His was what might be called a ‘deep green’ attitude, which considers humans to be nature’s stewards, with the same privileges, dependencies and responsibilities of habitation as private estate owners.

  Coleridge put his finger on one of the crucial challenges of modern ecology. ‘The two antagonist powers of opposite interests of the state, under which all other state interests are comprized, are those of PERMENANCE and PROGRESSION,’ he wrote in On the Constitution of Church and State (1830). Nearly two hundred years later, the farmer and the environmental officer facing off over a gate would be arguing the same dilemma: must progress destroy its own foundations – and future – as it goes? Or must everything be maintained as it has been, forfeiting the potential of change? And who decides these questions?

  Later in his life, Coleridge felt that the inheritance and protection of heritage of private estates was what enabled a state to exist at all. For Coleridge, the Westminster parliamentary system came to represent both permanence (hereditary aristocracy, trusted with ownership of land to be passed through generations in good health) and progress (the executive, enacting change for the good). But he proposed a third chamber, a clerisy made of scholars and representatives of the church, as ‘the beam of the scales’, to moderate the paradox. It would exist, he argued, to ‘preserve the stores, guard the treasures of past civilization, and thus to bind the present with the past; to perfect and add to the same, and thus to connect the present with the future’. His proposal for what we might call an independent commission is still worth consideration.

  Historian Ben Pontin argues that Coleridge and his followers, under the name of Romantic conservatism, played a significant and neglected role in the emergence of environmental law, even helping to slow Britain’s industrialisation. It is a quiet legacy, interrupting modern assumptions about liberal and conservative politics that eventually made their way to the other side of the world.

  When Australia was federated in 1901, there was no direct provision for the Commonwealth to regulate environmental issues. Small restrictions were placed in later years. By 1938, the New South Wales Soil Conservation Act 1938 No. 10 indirectly forbade clearing on both private and public land around water catchments. The state government did restrict ringbarking on Crown leases, though not on freeholds. The landmark Hunter Valley Conservation Trust Act 1950 meant that clearing on ‘declared lands’ required a permit, and it was backed up by successive legislations through the 1970s that put more and more regulatory thresholds between landholders or public agencies and the bare soil. But it took decades before conservation movements began to seriously impede the carefree felling of vegetation. When the Hawke government passed a law to protect the wilderness area threatened by the Franklin Dam in Tasmania, they had to use Section 51 of the Constitution, about respecting international obligations to protect World Heritage sites.

  In New South Wales, town planning and environmental law weren’t merged until the Environmental Planning and Assessment Act 1979, following Jack Mundey’s green bans movement in Sydney. Then came the establishment of the Land and Environment Court of New South Wales, which had the status of a ‘superior court’, to enforce the Act. It is composed of judges and trained commissioners who are experts in the fields of environmental science, town planning, heritage, architecture, engineering and land valuation. As a recent institution dealing with relatively new legislation, it often sets precedents that have far-reaching significance.

  Of the eight aims of the Act, seven concerned the administration of public submissions and advice. It revolutionised landowners’ reckoning with environmental consequences, and opened the door for members of the public to pursue action (‘open standing’) in the case of a breach: anyone could ‘bring proceedings in the Land and Environment Court for an order to remedy or restrain a contravention of this Act, whether or not any right of that person has been or may be infringed by, or as a consequence of, that contravention’.

  There was a fear that people would go berserk, dobbing in their neighbours, but for the most part that hasn’t happened. It is difficult, however, to pursue cases under open standing because, as in criminal law, an accused is innocent until proven guilty, and an accuser can find it difficult to provide evidence without
doubt that environmental harm has occurred.

  Phil Spark, when asked why he and Alaine Anderson didn’t mount an open standing case to stop the Turnbulls, shakes his head and exhales. Why not indeed, he wonders. He had been very busy at the time, he admits, including with a protest against the proposed Maules Creek coalmine; Alaine had both a farm and koala conservation on her hands every day. Both were preoccupied, tired. They had hoped, even as the prospect began to sag, that the government authorities would step in as they were supposed to. But they might have mounted the case, he concedes. The business with Turnbull, the clearing of those blocks, the life of Glen Turner, could have ended differently. But ‘the point’, he notes sharply, ‘is how far do the public have to go, doing what the laws are supposed to do?’

  In one version of reality, Spark would have been correct to trust the laws of the land, state and federal. In the other reality, that trust would have been naive.

  In 2000, the federal Environment Protection and Biodiversity Act came in to comprehensively renovate all existing legislation. The Act has to cover a wide landscape, literally and metaphorically, because it deals with the Great Barrier Reef and the health of inland waterways; endangered species and uranium mining; water table assessments to do with coal-seam gas exploration and local wetlands; World Heritage properties and conservation programs for small native mammals. At its birth it was praised as a triumph of synthesis, a coherent, broad-scale system to integrate the best expertise and administration to guard the largest range of national natural assets. But critics also immediately spotted its flaws: rather than viewing a landscape in its entirety, it concentrates on threatened entities, so by the time an ecological community is declared endangered it’s already virtually gone. And the minister of the day has almost total concentration of decision-making. Since the election of the Coalition in 2013, the Act has been used to stop developments such as wind turbines on Lord Howe Island, deemed visually ‘intrusive’, and a wind farm in Queensland. Farm activity referrals form less than 3 per cent of assessments. And in 2019, a joint study by academics from the University of Queensland, the Australian Conservation Foundation, WWF Australia and the Wilderness Society calculated that between 2000 and 2017, approximately 93 per cent of land cleared across the continent had never been referred to the federal government for assessment at all. Those cleared lands included more than 7.5 million hectares of potential habitat for threatened species. An estimated 1 million acres of threatened species habitat had been cleared in New South Wales and Queensland alone within thirteen years.

  ON 23 JUNE, JUSTICE Johnson was ready to deliver the sentence for murder on Ian Turnbull. He had weighed up all the relevant factors and composed them in light of the law. Turnbull was elderly, and it seemed he had had a degree of mental impairment at the time of the shooting, perhaps a mild adjustment disorder. But he’d killed a government officer doing his job. There was deterrence to be considered – both so that Turnbull wouldn’t offend again, and so that no one else would think they could commit the same act without significant penalty either.

  Alison McKenzie had low hopes for the sentencing. The defence team had been unremitting, mounting every objection or special plea they could. Turnbull was supported by his respectable family, and they had such wealth on their side. They could afford silks and solicitors to string out the trial for those extra weeks. ‘I just want justice for Glen,’ she told Gregory Miller’s camera. She was tired and tense. She wanted it to be over, so she could go home and grieve.

  There were the politics, too. The nation was horrified by this crime. Anger had inexorably mounted among environmentalists and greenies at the events in which a man had died protecting the bush. Then there was the flush of feeling in support for Ian Turnbull, the farmer ‘pushed to the brink’. The trial had been reported in all major media, as well as contested in comment threads and forums. Everyone had a reaction to Ian Turnbull’s actions. What would be the outcome?

  At the bench, Justice Johnson began: Turnbull’s crime was as serious as it could be. Turner was a public servant. He was also ‘a loving and caring husband, father, brother and son’. He had much to offer the community, ‘not only in his family role, but in his service as a public official exercising duties in an important public capacity’.

  Johnson reprised the facts of the case, as agreed by all parties: the purchase of the two vegetated properties; the conversion to cropping land by clearing; the Office of Environment and Heritage’s statutory obligations to investigate; the general attitude around Moree towards the Native Vegetation Act. ‘It is fair to describe the offender,’ he observed, ‘as an old-fashioned farmer, with firm views about land ownership and use of the land. It may be inferred readily that the offender, and members of his family, did not look kindly upon the level of scrutiny, accountability and regulatory action required under the Native Vegetation Act, and the extent to which it may slow down, if not stop, the planned conversion of the two properties to broadacre farms.’ Turner, said the judge, had behaved with ‘diligence and persistence’ throughout the chronicle of the investigations and prosecutions, and this had made Turnbull hate him.

  Government officers such as Glen Turner and Robert Strange often had to go out to isolated sites to confront hostile landholders who owned firearms, the judge observed. Compliance officers in Australia, unlike their colleagues in the United States, are unarmed.

  ‘I accept,’ Johnson continued, ‘that the offender was and is a stoical type of person and an old-style farmer. I accept that, in the period before 29 July 2014, he spoke frequently to relatives and friends about action being taken by the OEH. I accept that he manifested a single-minded approach in this regard which focused upon Mr Turner, although he had not had physical or telephone contact with Mr Turner for more than two years before the murder.’

  The tale was told again: the scene at the car, Glen dropping to his knee with a hand to his face. You’ve ruined the Turnbulls. Strange desperately trying to call triple zero. I’m going home to wait for the police. The midnight arrest.

  Then the court rose. ‘The aggregate sentence,’ announced Johnson, ‘will comprise a head sentence of thirty-five years and a non-parole period of twenty-two years.’

  Justice Johnson was satisfied that Turnbull’s motive ‘involved a desire for retaliation or revenge’. Turnbull had told a psychiatrist he was sorry about killing Glen Turner, but it didn’t amount to remorse. In addition, Turnbull had left it late to plead guilty to the count of detaining Robert Strange. As such, there would be only a small concession on that conviction, which usually received fourteen years.

  The sentence would date from July 2014, when Ian Turnbull had been taken into custody, meaning he had already served nearly two years. But Johnson noted, ‘I have taken into account that this sentence will almost certainly constitute a de-facto life sentence, with the offender dying in custody before the expiration of the non-parole period. I am satisfied that no lesser sentence is appropriate in all the circumstances of the case.’ There was a unit at Long Bay especially for elderly male inmates where he could be housed.

  In the dock, Turnbull showed no emotion. The settler gaze was firm. He only nodded once, and raised a hand to Robeena, sitting in the front row of the court.

  The families walked out of the courthouse to a pack of media. Alison McKenzie and Fran Pearce stepped forward. The verdict was a good one, McKenzie said. It would never bring Glen back, but they were glad that justice had prevailed.

  Pearce lifted her face to reporters. ‘It’s a hard emotion to describe,’ she said. ‘“Pleased” doesn’t really cover it. It’s very relieving. It’s probably more than we even hoped for. We hoped he’d die in jail, to be honest. Glen didn’t get a chance to go home to his family, so we think that’s fair.’

  Grant cleared his throat in the midst of a media scrum and spoke again of farmers’ frustration, of native vegetation laws, of the government and the Act. ‘The politicians need to listen,’ he told the microphones. ‘The ways this
Act is administered: that’s what needs to change. Otherwise this tragedy will happen again. And there’ll be two families torn apart forever – over a piece of paper.’ He shook his head. ‘A legislation in parliament.’

  A reporter pointed out that problems with the Native Vegetation Act are not justification for murder.

  Grant nodded. ‘That’s correct. But the frustration that’s out there: it’s not just one farmer. It’s many people out in rural New South Wales that are extremely frustrated – extremely frustrated – with the way it’s administered, and the Act itself.’

  Robeena was photographed leaving the scene in her necklace and cream jacket, wiping her eyes. Her husband, like his victim, would never come home. Turner’s death, as Johnson had said, ‘diminished us all’.

  18

  A noble tree is in some measure a matter of public concern; nor ought its proprietor to be allowed wantonly to strip his country of its fairest ornament.

  —John Ramsay, landlord of ‘Ochtertyre’ in Scotland, 1736–1814

  Conservation movements and farming advocates both are fond of the idea of timelessness: the ancient pastoral traditions of harvest; the eternal composure of nature. But they, and their landscapes, are very much formed by the historical. Colonisation was one such historic moment in Australia. Glen Turner’s death was another. Events occur. And, like harvests ripening, cultural movements have their own forms to take. By the last decade of the twentieth century, Ian Turnbull was busy buying farms and Turner had begun his professional life, but in the world beyond there was huge interest in programs of social justice.

  During the decade, popular books by John Ralston Saul, Camille Paglia, Naomi Wolf, Germaine Greer, Toni Morrison, bell hooks, Umberto Eco and others helped to interpret the covalency of gender, race, culture and class within personal politics. Feminism of the time felt almost triumphant, powered by punk and by political achievements. Meanwhile, Vandana Shiva, Gary Snyder, David Suzuki, Tim Flannery and others mined the histories of human destruction of the land, suggesting variously ‘deep green’, ‘emancipist’ or custodial relationships for the future. The Rio Earth Summit in 1992 inspired many; conservation agencies such as Greenpeace, Friends of the Earth and The Wilderness Society were household names. The exploitation of traditional lands such as the Amazon Basin and the Pilbara brought Indigenous issues into the mix, and threats to rainforests were highlighted. In Australia, as Libby Robin says in her detailed history of the time, ‘the “green” and the “black” began to negotiate shared ground’. The environment was now a moral cause.