Re-assessing the Commonwealth Endangered Species Act

Introduction

The timber industry is not popular with Commonwealth environment portfolio officials. Relations between portfolio agencies and the industry association are not good. This situation prevails, despite the fact that the timber industry does not manage the publicly owned forests and despite the fact that the foresters who do manage them are an important source of information about the incidence and welfare of forest-dependent fauna. Forestry has not been responsible for any known species extinctions, and bears, on any reckoning, only a very modest burden of responsibility for the population declines that are the defining feature of species vulnerability and endangerment. The industry considers that scientific knowledge of species endangerment provides no basis for ongoing attempts to criticise or constrict it on the basis of endangered species considerations, and that these attempts are a distraction from the fundamental reasons for species' declines - vegetation clearance, feral predation and competition for food and habitat from introduced species.

The Consitutional Basis of the Commonwealth's Role

The Endangered Species Protection Act 1992 ("the Act") deals with the problem created by this narrow constitutional base by requiring the Commonwealth to "seek the co-operation of the states" (S31(2), S33(2)) in the preparation of recovery plans for threatened species which occur "outside Commonwealth areas".

In practice, this severe limitation on the direct authority of the Commonwealth appears to have been overcome to some extent by the use of the Commonwealth's financial powers in order to assist state governments to carry out research and to undertake recovery programs. There is little information available about how these financial arrangements have worked in practice, or about whether the Commonwealth has applied its financial resources well or badly.

In another area of the Commonwealth's environment activities, there are grounds for believing that the very narrow constitutional basis on which these activities rest has lead to the extensive misuse of process and mandate by a Commonwealth statutory body. The (Attachment 1) gives an account of the protracted and determined efforts of the Australian Heritage Commission (AHC) to use its authority to bestow national estate listing on places and areas as a tool for "environmental protection" designed to constrict wherever possible the use of native forests for timber production. The industry regards this a serious and persistent abuse of the concept of national heritage and of the Australian Heritage Commission Act, and has placed its concerns before the AHC and the government.

The industry also regards the animus displayed towards it by the AHC as being widespread within the environment portfolio.

We do not know whether officials responsible for administering the Act have been complicit in the Heritage Commission's apparent abuse of its mandate. It should be noted however, that the methodology developed by the Heritage Commission makes provision for the conferring of national estate listing on areas of habitat of endangered species. These listings would have some of the character and force of the "protected area" declarations that can be made by state governments under their own wildlife protection or endangered species Acts. In assuming this perogative, the AHC may have found a way to circumvent the inability of the Commonwealth to make "protected area" declarations on land controlled by state governments. We think it is possible that some of the information used by the AHC in its self-appointed quest has been provided by officials responsible for administering the Act.

It is worth noting that in East Gippsland, where the first Regional Forest Agreement was signed, the AHC initially proposed the national estate listing of 148, 620 hectares on the grounds that it comprised habitat for rare and threatened species. This was not part of any coherent or comprehensive plan for the management of these species. Rather, it seems to have been part of the AHC's on-going campaign to constrict the use of the forests for timber production.

As far as we can tell, this problem is still receiving the Government's attention.

Quite apart from the question of whether officials administering the Act may have been complicit in the AHC's conduct, we raise the issue because it seems to us that the abuse may have arisen, at least in part, because of the narrowness of the constitutional basis for the role taken on by the Commonwealth, in comparison with the breadth of its ambitions. If that was the case, it would be prudent to see whether other problems in the area of environmental policy had arisen or might arise from the same circumstance.

Propositions for Consideration

1	The Act has been very successful in stimulating the production of lists, and in defining a statutory process by which these lists can be amended. The benefits of these lists to endangered species management, however, are not so obvious.

The entering of a species onto the lists in Schedules I - III of the Act does not confer any greater protection on these species than they already enjoy under wildlife protection acts in force in all states and territories. The Commonwealth's Endangered Species Program dates from 1989, and has been the main avenue for the provision of Commonwealth financial assistance to states for research and recovery plan preparation. Listing under the Act does not appear to influence priorities for the provision of this funding, nor to be a trigger for it.

The only other mechanisms that appear to be triggered by listing under the Act, are those that relate to the imposition of fines for taking, trading, keeping or moving listed species (S87) and the issuing of permits for taking (S89).

Neither of these provisions could be said to confer significant benefit on endangered species because:

1. They apply only to those specimens occurring on the 1% of the continent owned or managed by the Commonwealth.

2. The taking of native fauna species is already an offence, so the issuing of permits for taking actually reduces protection already enjoyed, rather than increasing it, at least for the specimens taken.

1	It may be a weakness of the Act, and a disservice to public understanding, that it focuses official and public attention solely on species in trouble.

This is no accident, of course, but it results in a one-sided presentation to the public of the changes in the distribution and abundance of flora and fauna that have taken place since 1788, and contributes to a widespread sense of failure and guilt about our record in environmental management. Many species have in fact prospered, some to the extent of becoming pests. Not only the larger macropods, but also many bird species, have benefitted from no longer being hunted for food, by the creation of a multitude of water storages, and by patterns of European settlement. The Act does not require the documentation of instances of species proliferation, and the population control measures that are occasionally required are frequently misunderstood (and misrepresented) as further evidence of environmental mismanagement.

A better approach, and one that would not lend itself quite so readily to the appearance of crisis management, might be one that focussed more on monitoring indigenous species in general, so that successes and failures of environmental management can be considered as part of a single picture.

2	The Act does not encourage the collection and dissemination of information about the success or failure of the species recovery plans that are its main focus.

This would seem to be the most likely explanation for the paucity of information about which activities under the Act have been successful and which have not. Admittedly the Act has not been in place for very long. Nevertheless, a Commonwealth official addressing a workshop in December 1995 was able to do no more than outline the Commonwealth's intentions, and describe the resources it had set aside to realise those intentions, (Male, 1996). Almost two years later, there is still no information publicly available about the effectiveness of action taken in meeting the requirements of the Act. There has been plenty of action by the states, but none of it is obviously attributable to the existence or the provisions of the Act.

In December 1995 the Commonwealth had not approved any recovery plans at all. Two years later, in October 1997, it has apparently approved a number of recovery plans for species that occur mainly on land controlled by state governments. It is not known what value those plans add to activities already being undertaken by state governments. No announcement has yet been made to inform the public of their approval, or about the activities that will now take place under them which were not previously taking place.

3	The Act contains an unexplained bias which:
	(i)	bears little relation to the reasons for species recovery and decline;
	(ii)	flies in the face of much that is now known about the influences that shaped the Australian landscape before European settlement, and maintained the habitat of species now considered endangered or vulnerable.

The attached paper on the Forests and the National Estate describes how the Australian Heritage commission chose to attach a particular value to forest landscapes that it regarded as "undisturbed", apparently for the purpose of securing the exclusion of timber production from such forest. A growing body of scientific opinion, which is identified in the paper, regards this concept of "undisturbed" or "pristine", or "wilderness" as historically absurd and ecologically unsound, given that there was no part of the landscape from which aboriginal people saw fit to exclude themselves, and no part that did not reflect the disturbing influence of their activities, particularly their widespread and constant use of fire.

In Part 5 of the Act, which deals with Conservation Orders, there is a pre-occupation with preventing disturbance, of exactly the same kind that the Australian Heritage Commission has chosen to champion. For example:

"S52(1)	A conservation agreement may, for example, provide for all or any of the following:
	(a)	controlling or prohibiting, in any areas to which the agreement applies, activities that may disturb species, ecological communities habitats or potential habitats that the agreement is intended to conserve..."
"S57	Subject to Section 58, the Minister may, by instrument in writing, make an interim conservation order:
	(a)	prohibiting or restricting specified activities on
	or in: (i)	all Commonwealth areas..." (emphasis added)

Despite the lengths that the Act subsequently goes to to limit the use of the prohibition to those activities likely to have an adverse impact on an endangered species, the provisions amount to a bias because:

1. they ignore that in many cases it is not the activities of man that has created the species decline, but the activities of introduced predators, particularly foxes and cats.

2. it invites a presumption that prohibiting human activity will have a beneficial impact, despite the benign influence that constant and repeated disturbance by human activity has had in shaping the Australian biota.

3. It fails to draw a simple and easy distinction between "activity" which is irreversible, such as vegetation removal for agriculture and urban development, and activity which constitutes short-term disturbance, from which full recovery is almost certain, including burning and forest harvesting.

4. It fails to focus attention on the main reasons for species decline, and by so doing, distracts attention from the issues and problems where attention, energy and resources need to be concentrated.

If vegetation clearance is the only clearly identified human activity that has put flora and fauna species at risk, then that is what the Act should target. No native species are known to experience life threatening problems as a result of the general presence and general activities of humans, except perhaps when they are hunted and eaten.

5.	The performance of the government under those provisions of the Act that deal with the publication of decisions, assessments and information seems to have been poor. There appear to be three main problems. .

1. Only some of the decisions taken in relation to the listing of endangered species are explained in the public announcements that the government makes from time to time. On 20 August the Minister announced a number of changes to listings of vulnerable and endangered species under the Act. The additions were explained, but the deletions and downgradings were not. Requests by NAFI for an account of the reasons for the deletions, as provided for in S19 of the Act and in the Minister's declaration have not elicited a response. Were the mammal, bird and reptile species that were deleted from the list never vulnerable, or have recoveries in their populations taken place? If population recoveries have taken place, were they spontaneous, or did recovery plans play a part? If no change in population numbers has been observed, how did the apparently mistaken assessment that the species were vulnerable come to be made? That information appears to be pertinent to an assessment of how well the Act is operating, but it is apparently not available, despite what S19 of the Act says.

2. Much of the information published by officials responsible for administering the Act bears no relation to the information that the Act requires to be published.

   Most of the published Commonwealth information about endangered and vulnerable species listed under the Act is contained in a series of documents called "Action Plans". (eg."The Action Plan for Australian Reptiles"). These documents contain what are described as "Species Recovery Outlines". Neither the "Outlines" nor the "Plans" are recognised or have any standing under the Act. The Act recognises recovery plans, and threat abatement plans, but none of the government's publications fall into either of those categories. So as far as the Act is concerned, nothing has been published. The closest the government has come to publishing something required by the Act seems to be the "Draft Threat Abatement Plan for Predation by the European Red Fox", published in November 1996.

   The "Action Plans" and "Recovery Outlines" could easily be mistaken as documents satisfying the requirements of the Act, and as providing some information about activities taking place in fulfillment of the requirements of the Act, but they are not. Neither is it certain that any of these will ever become recovery plans, for reasons discussed below.

3. According to information supplied by officials, the only place that publications produced by the Commonwealth dealing with endangered species can be purchased is the bookshop at the Botanical Gardens in Canberra. While the turnover of this bookshop is not known, it seems fair to say that it is not easily accessible to most of the population. This does not look like a strong basis from which to increase public understanding of the needs and problems of endangered species, or of the actions that can and should be taken to ensure their survival.

The introduction to this document notes that:

"There is abundant anecdotal, circumstantial and experimental evidence that fox predation is a major threat to the survival of native Australian fauna (Sanders et al 1995)."

"The management of fox predation to protect nationally threatened native wildlife is a complex and costly undertaking. Fundamental to the approach proposed in this threat abatement plan is the recognition that foxes cannot be eradicated or even controlled over most of their Australian range". (p1)

"One achievement of particular significance was the removal of the woylie (or burrowing bettong) from the schedule to the Endangered Species Protection Act 1992, as it is no longer threatened. This is the first instance of a threatened species being removed from the schedule to the Act because of the success of a recovery plan funded by the Endangered Species Program. The very significant and continuing efforts of the Western Australia Department of Conservation and Land Management should be acknowledged for their contribution to this achievement." (p2)

7.	Whether recovery plans prepared or endorsed by the Commonwealth under the Act have much or anything to contribute to the national effort on endangered species is an open question at this stage, but the answer could be "possibly not".

The chairperson of the Commonwealth's Endangered Species Scientific Subcommittee (ESSS), Dr Andrew Burbidge, wrote in 1996 that:

"Many critically endangered and endangered Australian taxa are not the subject of recovery plans. Accordingly, no or few recovery actions are being undertaken to prevent their extinction. There are four main reasons for this:

1. Numerous taxa are threatened.

2. Conservation agencies have been slow to prioritize threatened taxa in terms of degree of threat.

3. "Flagship" taxa, or taxa for which research data are available, tend to have been treated first.

4. There are insufficient data on the limiting factors for many taxa and defining recovery actions is often difficult or can not be done with any degree of certainty."

Dr Burbidge, who is an employee of the WA Dept of Conservation and Land Management (and co-author of the successful woylie recovery plan), also had some pertinent observations to make about the best way to prepare species recovery plans:

"Recovery plans should be written by or under the guidance of a recovery team There are two issues here - ownership and accuracy. No one likes to be dictated to from outside. A recovery plan that is written by someone outside the relevant recovery team is less likely to be readily accepted by the team set up to implement it. As well, accuracy of information and the practicality of recovery actions are likely to be enhanced in a plan that is prepared by or in interaction with a recovery team that includes people who are to be involved in implementation. The preparation of a recovery plan by a person who has no stake in its successful implementation should be avoided."

The superfluous nature of the Commonwealth's imprimatur on the recovery plans approved by the minister on 16 September is suggested by the fact that nine of the thirteen species concerned occur exclusively in state-controlled areas, and the remaining four species are found in both state and Commonwealth areas. Since the ratio of state to Commonwealth land is 99:1, it is probably safe to assume that the distribution of the populations concerned is in roughly the same ratio.

What practical involvement the Commonwealth will have in the implementation of its newly approved recovery plan for Eucalyptus rhodantha (Rose mallee) for example, or in the recovery plans for any of the other species said to occur solely in State areas, is not yet known because the plans haven't been published.

8.

The constitutional exclusion of the Commonwealth from decisions about land management and resource use over 99% of the continent mean that most of the Act's provisions dealing with restrictions or prohibitions on activities by individuals are of marginal relevance to managing the problem of species endangerment. The Act fails to come to grips with perhaps the most important role that the Commonwealth could play in these matters - informing and leading public opinion.

The powers conferred on the Minister by the Act seem to be of little practical use, since they empower the minister only in respect of less than 1% of the continent. According to officials, for example, none of the powers conferred under S107 (Repair of Damage) or S118-S129 (Powers of Officers) have ever been exercised.

As well, the minister has not made any interim or permanent conservation orders, as provided under S56-S77, nor has the minister made any "impact assessment conservation orders" under S78-S84 of the Act.

The Director has entered into a total of one conservation agreement under the provisions of S50-S55 of the Act. This was apparently in regard to specimens of pimelia spicata occurring on a golf course constructed on land leased from the Commonwealth, near Camden in NSW.

This almost complete lack of activity under substantial parts of the Act is not a measure of the diligence of officials or governments. More likely, it is a measure of the irrelevance of much of the Act to the real problems of managing species endangerment.

Given that there is so little constitutional scope for the exercise of legal authority by the Commonwealth Minister, it might be regarded as surprising that the Act was not framed so as to formally seize the initiative in an area where there are no impediments to the Commonwealth playing an important and responsible role, namely in informing and leading public opinion.

The Act does not preclude the Commonwealth from taking this role, but it equally does not invite or require it. As a result of the Commonwealth's inactivity in this area, public opinion has been the plaything of environmental groups seeking to create public alarm about this or that species, with varying degrees of justification. Arguably, for example, there is no scientific justification for the attempt by green groups to excite public alarm over the impact on the dugong of the Port Hinchinbrook development. The Hinchinbrook Channel is near the southern extremity of the dugong's range in Australian waters, and the numbers involved are consequently small. Less than 4% of Australia's total dugong population is to be found south of Cape Bedford, near Cooktown. The Commonwealth, which possesses this information, could usefully have contributed it to the public debate over Port Hinchinbrook, but it did not do so. The provision of sound information by the Commonwealth in this instance, might have helped avoid cost, delay, misunderstanding and confrontation.

The timber industry has been aware that the Commonwealth is also an important absentee from the public discussion of endangered species issues in the context of forest management. The Commonwealth has preferred not to point out publicly that the evidence does not support any charge that native forest logging is a significant cause of species endangerment. Public opinion has been left to be the plaything of environmental NGO's who have made repeated emotional appeals to the plight of endangered species in their attempts to curtail timber harvesting in native forests. Attachment 2 provides an illustration of how misinformation has been able to flourish in the absence of a readily available supply of accurate and authoritative information. NAFI believes that if the Commonwealth aspires to a high-profile role in these matters, it has the obligation to at least ensure a properly informed public debate.

Some of the other issues on which the Commonwealth could seek to lead public opinion, if the Act so provided, include:

• The opportunity for city dwellers to provide habitat for native species by planting their gardens mainly or exclusively with native flora previously endemic;

• The opportunity for city dwellers to re-think popular attitudes to the keeping of cats and dogs as pets;

• The opportunity to investigate the possibility of domesticating a range of native animals as pets;

• The scope for commercial breeding programs to play a part in restoring depleted populations of both flora and fauna;

• The opportunity to involve the community in trapping and destroying invasive pests such as starlings, mynah's and blackbirds; and

• The opportunity for the community to financially sponsor species recovery programs.

9.	The Commonwealth has been a significant source of funds for research for many years, including long before the Act was passed. It is doubtful whether the Act was needed to enable this assistance to continue.

The provision of financial assistance to the states for research and the preparation and implementation of recovery plans is covered by S44 and S48 of the Act, but the giving of such assistance predates the Act, and almost certainly occurred under the provisions of the National Parks and Wildlife Conservation Act 1975.

Moreover, a great deal of environment portfolio activity appears to take place without the need for any particular head of legislation. There is, for example, no legislative provision at all for the resources employed by the Dept of the Environment in the development of Regional Forest Agreements or the implementation of the National Forest Policy Statement. In the circumstances, it is doubtful whether S44 and S48 or the Act are necessary to enable the assistance provided to endangered species programs to continue.

At the same time, there is little doubt that the state governments value the assistance they receive. Assistance provided by the Commonwealth usually takes the form of "project finance", in the sense that it does not go to meet the overheads of salaries and administrative support, the costs of which are met by state governments. Some estimates put the Commonwealth's share of the total costs for those projects to which it contributes at around 20%. The states do not complain about this, as far as is known. It has helped some things to happen which otherwise might not have happened. But the funds would probably have continued to flow without the passing of the Act.

10.

Provisions in the Act have created opportunities for opponents of the timber industry to prosecute their campaign against the industry under the Act, despite the fact that the industry bears no more than a very small share of responsibility for species endangerment, and no responsibility at all for species extinctions.

The Australian Conservation Foundation has tried unsuccessfully on two occasions to have "vegetation clearance", (defined to include timber harvesting) listed as a "key threatening process" under the provisions of S23 of the Act (see Attachment 3). The industry learned of these bids after the event, and was afforded no opportunity to comment on the proposals, or put forward a statement outlining, for example, the important contribution that the industry makes to species monitoring or maintenance, or on the understanding that science is now acquiring about the role of continued disturbance in ensuring viable populations of Australian flora and fauna.

NAFI has been advised that a third bid to employ the Act for the purpose of "demonising" and further constricting the industry is now under way, although this time the industry, at its own request, is to be consulted in some way.

NAFI has been advised by the Executive Officer of the Endangered Species Scientific Subcommittee (ESSS) that a public nomination has been received for the listing of:

"Loss of hollow-bearing trees in native forests and woodlands due to ecologically unsustainable firewood harvesting, and

Loss of hollow-bearing trees in native forests and woodlands due to ecologically unsustainable forestry practices."

1. there is no agreed definition of what constitutes either "ecologically unsustainable firewood harvesting" or "ecologically unsustainable forestry practices".

2. The information so far provided does not identify any species allegedly threatened by the processes nominated.

Whilst NAFI is grateful to have been notified that another bid is being made by green groups to wield the Act against the industry, it regrets that a piece of government legislation should have created the opportunity for such misadventure, and that the processes in place for dealing with it are so lacking in transparency and accessibility that the industry has needed to ask to be consulted.

11.

The Act contains several provisions requiring the publication of documents (Sections 29, 42, 47, 54, 63, 74, 84, and 98). It contains only two Sections which require that consultation take place with individuals or groups affected by or interested in the operation of the Act - S39 and S90. This may be part of the reason why, to a group like NAFI, the operation of the Act appears to be completely lacking in transparency and accessibility.

This paper commented earlier (proposition 5) on the poor record in relation to the publication of information to meet the requirements of the Act. The performance of the government under the more limited number of provisions requiring consultation may be, if anything, worse. S90 provides for individuals or groups to register their desire to be consulted about applications for the issue of permits to "take" listed native species. It is not known how much, if any, consultation has taken place under this provision, although it may be that the register of people and groups wishing to be consulted is very large.

Under S39, which deals with the solicitation of public comments on draft recovery plans, information provided by officials indicates that no consultation has ever taken place.

The reason for this may be that the first recovery plans approved by the minister under the Act only received that approval on 16 September, but if that is the case, the procedure used would appear to contravene the terms of the Act. S39 requires the publication of notices, by the Director, inviting comments on draft plans. S39 makes no provision for ministerial approval to be sought or given before draft plans have been aired publicly and commented upon. Section 41(1) makes explicit provision for the minister to approve the draft plan after the consideration of public comments.

The fact that there has been no public consultation under the main provisions of the Act since it was passed in 1992 has undoubtedly contributed to the view held by this industry association, and probably others, that the matters covered by the Act are dealt with behind closed doors, and that the views of industry bodies are not welcome.

In other important areas of the Act, such as the operations of the Advisory Committee or the ESSS, no information is required to be made public, and no consultation is required to be entered into. S157 provides that the Advisory Committee may invite a person to attend its meetings. According to officials this has occurred from time to time, but this association, despite the (undeservedly) high profile of the timber industry in endangered species matters, has never received such an invitation.

A case could be made that the scientific impartiality of the ESSS should not be compromised by requiring it to consult anyone but its own members. A case that the deliberations of the ESSS should remain confidential, on the other hand, is not easily defensible. A proper public understanding of species endangerment would be assisted by the provision of access to the learned deliberations of the ESSS.

12

There are no listed "endangered ecological communities" under the Act, despite there having been some nominations. Officials maintain that this is due principally to the existence of a technical deficiency in the regulations, which has now been remedied. Another explanation might be that the Act defines "endangered ecological communities" in a way that requires a scientifically rigorous identification of constituent species and interrelationships before the definition was met. It is possible that no proponent was able to satisfy these exacting criteria. Under changes to the regulations announced recently, the need for scientific rigor has been significantly diluted, and the Act now invites misadventure of the same kind that it has stimulated through its invitation of public nominations of key threatening processes.

This issue is discussed at greater length in Attachment 4.

((Email the National Association of Forest Industries to obtain attachments refered to in this document)

Conclusion

Most of the Act would appear to have been of little use, in as much as:

1. Major parts of the Act have been used very little or not at all (incl. Parts 4, 5, 6 &7).

2. It will never be principally the Commonwealth's responsibility to prepare species recovery plans, because the Constitution limits its involvement in land management and because the state governments that will have responsibility for implementing those plans in almost all cases, will want, and are capable, of doing the job themselves.

The Commonwealth has avoided taking an active part in an important area of activity from which the Constitution does not exclude it, namely informing and leading public opinion about the causes of species endangerment, and the community responses needed to overcome the problems.

It is not clear that it would matter very much if the Act did not exist. It is certain that the most important contribution that the Commonwealth makes, financial assistance, would continue to be given, not only under programs that pre-date the Act, but also under more recent programs such as the National Heritage Trust.

It does not seem possible to conclude that the Act has been a major influence in shaping the nature of the Commonwealth's own activities in this area, much less those of the states.

With hindsight, the Act could be seen to represent a genuine but misguided attempt to fill a gap that does not really exist, or it may have been a more cynical attempt to endow the Commonwealth with a stake in the endangered species game for political purposes. When seen in the context of the constitutional limitations that apply, and the paucity of visible activity meeting the requirements of the Act, the legislation looks more like a piece of environmental tub thumbing than a carefully targeted piece of enabling legislation.

If the pretence that the Commonwealth is much more than a funding source in this area is to be maintained, there are changes that could usefully be made to the Act. These would be concerned mainly with:

• Putting its operations on a more consultative, open and transparent basis.

• Restoring the scientific rigor that has recently been removed by changes to regulations concerning endangered ecological communities.

• Concentrating the role of the Commonwealth in areas where there are no constitutional impediments to its activities, namely in informing and leading public opinion.

• Creating some disincentive to the lodging of mischievous nominations, so that the Act is less at risk of being misused for political purposes that have little to do with the main causes of species endangerment.

References