The stimulus for this post is a story from ABC Kimberley reported by ABC Online – Ben Collins, ‘Indigenous rangers in WA north priced out of bushfire prevention by insurance price jump’ ABC News (Online) (1 February 2021). The gist of the story is that:
Indigenous ranger groups in the north of Western Australia will have to stop their bushfire suppression work at the end of June unless a solution can be found to a more-than-doubling of fire insurance premiums in the space of a year.
The report says that the Department of Fire and Emergency Services (DFES) ‘would be meeting with the ICA to try to find a resolution to the issue’ whilst, at the same time, approaches are being made to the Federal Government’s National Indigenous Australians’ Agency (NIAA) for funding to cover the extra premiums.
Discussion
This story demonstrates some key issues that are familiar to those in the sector and, with all due modesty, some that were reported by Geoff Cary and I in our article ‘You own the fuel but who owns the fire’ International Journal of Wildland Fire 26(12) 999-1008 https://doi.org/10.1071/WF17070.
The first issue, reported many times over (see for example Productivity Commission National Disaster Funding, 1 May 2015), is that mitigation costs much less than response. Spending money now to mitigate risk will mean a manyfold saving in the amount that may have to be spent responding to mega fires. As Mr Durack is quoted as saying:
“If we don’t do our jobs then they will be faced with more claims from property owners, from tourist ventures because infrastructure has been burnt down because of the large late-season fires,” he said.
The other issue, that Cary and I reported, is that the legal risk of taking action is much higher than the risk of doing nothing. As Mr Durack says ‘if we burn something down and we don’t have insurance, then we bankrupt the organisation’. But doing nothing won’t expose the organisation to legal risk, even if there is a mega fire that has more devastating impacts.
Property owners can insure their assets against loss by fire. Whether that fire is an unplanned, naturally occurring wildfire or a hazard reduction that goes wrong, it is still loss by fire. If they are insured, they can look to their insurer to cover their losses. The position is different for the insurer. An insurer stands in the shoes of the insured. If the fire is started by natural causes, the insurer wears the loss. If it is a hazard reduction that does not go to plan, they can look to the agency that started the fire (or more accurately the agencies insurer) to make good their losses. As we discuss in our paper, there is almost strict liability associated with lighting a fire as there is always the option to not light the fire if conditions and resources are not right (see also Landowner’s liability for hazard control burn conducted by the NSW Rural Fire Service (April 28, 2020)).
If a property is not insured, then the risk of loss by fire falls to the owner. If there is no-one to sue, they must bear the cost. If they can find a defendant who lit the fire, then they can look to them for compensation.
One can see the risk to an organisation such as the Kimberley Land Council. The legal risk of doing this work is higher than the risk of doing nothing even though doing the work brings many advantages and benefits to many communities.
The solutions suggested, working with the insurance council or trying to find money to pay the inflated premiums, are short term measures. Another solution, put forward by Cary and I, may be more useful in the long term. In our paper we said
Bushfire management legislation should provide that where a landowner obtains a permit to conduct a prescribed burn, and the landowner honestly and in good faith complies with the restrictions, requirements and conditions of any permit, that should be prima facie evidence that the landowner’s conduct was reasonable and should provide a defence to any claim in negligence should the fire escape….
Putting that suggestion into context the Western Australian government could pass legislation to the effect that where appropriate risk management strategies are in place there is no liability for the escape of fire. For insured property owners they are still insured but their insurance company could not look to the Land Council for a remedy. Uninsured property owners are left without a remedy, but they are already wearing the risk of loss by fire and it is likely that their losses will be less than those caused by an out-of-control mega-fire.
Mr Durack said the work came with inherent but manageable risks…
He said there could be severe consequences if Indigenous fire management could not continue.
“By us putting in fire early in the dry season, you mitigate against that large, uncontrolled fire,” he said.
“So, people are at risk. People’s lives will be at risk of large, uncontrolled fires as we’ve seen in other places.”
Mr Durack said larger, and unmanaged fires also increased risks to the environment and the economy of the region,
“Without running an early season program, we will change the landscape. You will burn it too often and too hot,” he said.
“A lot of the work we do protects against late-season fire running into pastoral properties, so [there would be] significant economic impact.”…
Indigenous rangers have increasingly managed bushfire in the Kimberley over the last decade, and Mr Durack said this had demonstrated the benefits of this practice.
Conclusion
This depressing story confirms that despite years of rhetoric around building resilient communities the gap between theory – that mitigation and prevention saves money, lives and assets when compared to response – and reality remains ever present. And the law doesn’t help
… 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 [or land manager], 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 [and managers] 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.
Australian Emergency Law 
Unfortunately, this is likely to become a more common issue in the next year or two, as the public liability insurance market has hardened, and is likely to continue to do so.
Australia may be returning to the situation in the late 1990’s, when certain activities became uninsurable, before the last round of tort reform.
In the 1980s it wasn’t tort law that was the problem, but the way insurers, like HIH were managed. The moral panic about tort law was led by the Murdoch Press and capitalised on by politicians like Bob Carr. The tort law reforms have made tort law much more complex and led to litigation but I’m not sure they’ve done much else but I say that without evidence either way but see https://www.lawcouncil.asn.au/policy-agenda/access-to-justice/tort-law-reform.