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Forging A Future For Nature: a comparative analysis of international, Commonwealth and ACT approaches to the law of biodiversity conservation
Natasha Nguyen*
Australia is one of the most ancient and naturally biodiverse places on Earth. However, unfolding in plain sight is an ecological extinction crisis characterised by the continual decline of Australia’s biodiversity at the genetic, species, ecological community and area levels. Although Australia is a signatory to both the World Charter for Nature and the Convention on Biological Diversity, its implementation of environmental laws have not optimally curbed this trend of biodiversity loss. In the face of these environmental challenges, this article explores the interplay of biodiversity conservation laws applying in the ACT and the Commonwealth. This involves an examination of whether either of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) or Nature Conservation Act (ACT) favours more strongly the conservation paths advanced by the World Charter for Nature or the Convention on Biological Diversity. It offers a comparative analysis of these international and domestic laws, in addition to discussion of the current condition of biodiversity and the achievement of biodiversity outcomes at the ACT and federal levels. The article concludes with suggestions for reform to provide for more transparent, efficient and participatory systems of law that give full credit to environmental values and ensure the preservation of the natural environment for future generations to come.
‘The human interaction with the landscape tells us the stories of where we have been, who we have been, and how we can choose to go forward’.[1] Humankind therefore has a fundamental duty to protect nature and its rich biodiversity. Although concern for the environment is not a new concept,[2] the discipline of environmental law has only emerged in the last 50 years.[3] Hence, there is a role for the law to provide structures of decision-making that give full credit to environmental values.[4] Accordingly, the ‘sustainable’ outcomes of these decisions should reflect an appropriate balance and integration of social and economic values.[5]
In consequence of Australia’s geographical isolation, the unique proliferation of flora and fauna has profiled Australia as ‘mega-diverse’ with respect to biodiversity.[6] This terrestrial and aquatic biodiversity is characterised by globally distinct ecosystems, supporting between 600,000 and 700,000 native species – with 85 percent endemic to Australia.[7]
However, following European settlement, methods of land use and resource exploitation rapidly replaced the environmental management systems that had been developed by indigenous peoples over thousands of years.[8] In this time, 13 percent of Australia’s native vegetation has been converted for land use and a further 62 percent is subject to varying degrees of disturbance.[9] This has had significant effects upon Australia’s biodiversity, which continues to decline.[10] Presently, there are more than 1700 nationally threatened species and ecological communities.[11] By contrast, 53 species are listed as threatened in the ACT.[12] Despite years of environmental regulation, Australia’s accelerated rates of biodiversity loss are considered to be second in the world.[13] This represents a significant management challenge to securing the long-term viability of Australia’s biodiversity.[14]
Globally, biodiversity continues to decline at the genetic, species, ecological community and area levels.[15] The pressures affecting these declines include over-exploitation, habitat clearance, agriculture, invasive species, disease, pollution, urban development, drought and climate change.[16]
Following the Stockholm Declaration on the Human Environment,[17] the World Charter for Nature was an influential movement towards nature conservation.[18] This agreement posited a positive obligation for States,[19] and persons other than States,[20] to protect habitat and its constituent flora and fauna. It is guided by the principle that all forms of life are unique and warranting respect.[21]
Subsequent movements for environmental protection were, for example, formally recognised in the Rio Declaration on Environment and Development.[22] However, it was the Convention on Biological Diversity (‘Biodiversity Convention’),[23] to which Australia is a signatory, that endorsed an ‘ecosystems approach’ to conservation management. It emphasises ‘the preservation of habitat as integral to the survival of species, and forms the basis of the concept of protection of biological diversity’.[24] The Convention requires signatories to develop national programmes that promote both ‘in-situ’[25] and ‘ex-situ’[26] conservation, the sustainable use of biodiversity, and the recovery of threatened species or ecosystems.[27]
Given that human activity has compounded the effects of climate change and accelerated the rate of forced adaptation and extinction of species,[28] common conservation practices take the form of:
(1) legal frameworks that establish ‘protected areas’ reserved for conservation purposes; and
(2) the listing of species or ecological communities as ‘threatened’, triggering further conservation measures or regulation of damaging activities.[29]
Nonetheless, historic Australian governmental strategies have struggled to co-ordinate integrated approaches to biodiversity conservation, and policies have tended to prioritise procedure over outcomes.[30] Australia’s large landmass and history of poor environmental stewardship further contribute to the governance challenge.[31] This includes inadequacies in resourcing, information on the state of the environment and long-term planning for biodiversity management.[32] The fragmentation of efforts to address biodiversity decline has failed to produce a sustained and coordinated conservation response.[33]
Although the national government bears ultimate responsibility for fulfilling Australia’s international treaty obligations, it has limited the scope of its role to the oversight of ‘matters of national environmental significance’ (MNES) in its own legislation. This includes listed threatened species, ecological communities and world heritage sites.[34] At the state and territory level, this oversight relates to conservation within territorial bounds.[35] Protections for reserves and listed species are further supplemented by other regulations including land use planning, tree protection and native vegetation clearance.[36]
Two Acts that give effect to the principles of the World Charter for Nature and Biodiversity Convention, are the ACT Nature Conservation Act 2014 (‘Nature Conservation Act’) and the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (‘EPBC Act’). Although these Acts share a similar listing regime,[37] the ACT legislation affords more general protections to native animals,[38] while the Commonwealth law protects only listed species.[39]
This article critically evaluates and compares the Commonwealth and ACT approaches to biodiversity conservation with the international law impacting the Australian legal system. This is prefaced on the notion that the Commonwealth and ACT are jointly committed to maintaining high environmental standards, by ensuring that Australia complies fully with all of its international environmental obligations.[40] Although the scope of this research is limited to Commonwealth and ACT legislation, it is notable that future avenues of research could involve comparisons to the laws of other states and territories, which are beholden to the same commitment. This article will compare the World Charter for Nature and the Biodiversity Convention, as against the Nature Conservation Act and the EPBC Act. This treatment deciphers whether either Act favours more strongly the conservation paths advanced by the Charter or the Convention. Moreover, this article will assess potential reforms to contend with ongoing biodiversity decline.
This research is underlain by the notion that nature has a right to exist in its own right.[41] Support for this concept is embedded in ACT legislation – i.e. the pre-cautionary, inter-generational equity, conservation of biological diversity and ecological integrity principles.[42] In particular, the broader notion of ‘ecologically sustainable development’ (ESD), as it is enlivened in judicial consideration,[43] denotes that the law can be utilised as a tool to prevent irretrievable harms to ecosystems and achieve environmental justice.[44]
The novelty of this research lies in its comparative analysis of the ACT and Commonwealth schemes. Specifically, this article examines the achievements of these Acts in protecting threatened species and ecological communities, beside conservation outcomes in legislation, international instruments[45] and national targets.[46] In view of the ACT State of the Environment Report 2019[47] and the Second Independent Review of the EPBC Act,[48] the importance of biodiversity conservation research is evident, in that current regimes do not achieve the conservation outcomes promoted by the over-arching international documents.
The article will further adopt a ‘future-thinking’ approach,[49] by shifting focus from ‘preserving “what is, or what was there” to “what more could be there”’.[50] Thus, I strive to ensure that current legislation optimally curbs biodiversity loss,[51] by espousing the view that ‘the next generation of environmental laws will need to recognise explicitly the role of humanity as a trustee of the environment and its common resources...’.[52]
This article utilises a multi-faceted methodology. First, a doctrinal approach will enable examination of primary sources of law, including international conventions and legislation of the ACT and Commonwealth jurisdictions, to observe the operation of laws governing conservation.[53] Comparative legal research will also facilitate comparison of domestic legislation at the territory and federal levels with international documents.[54] In particular, a selective comparison of legislative provisions will allow the article to determine the extent of legal evolution in the conservation law of Australia, as compared to the principles of the World Charter for Nature and the Biodiversity Convention.[55] The article will additionally reflect on judicial consideration in case law and draw from commentary in authoritative or peer-reviewed texts and government reporting.[56]
Thus, I begin this article by exploring the international law on biodiversity protection. This treatment particularly examines and compares the provisions of the World Charter for Nature and the Biodiversity Convention, and assesses the legal effect of each instrument on Australian law.
In the following section, I then compare the biodiversity conservation law at the Commonwealth and ACT levels. This involves an exploration of the provisions of the EPBC Act and the Nature Conservation Act in respect of their objectives and protected area and listing regimes.
In order to understand how the World Charter for Nature and the Biodiversity Convention have influenced domestic protections for biodiversity, the third section compares each of the domestic instruments with each of the international instruments. In this section, I inspect the current condition of biodiversity in Australia and the comparative merits of domestic Acts in relation to the World Charter for Nature and the Biodiversity Convention. This discussion evaluates whether the EPBC Act or the Nature Conservation Act have achieved adequate outcomes and protections for Australian species and ecological communities.
Further, this article also adopts a reform-oriented paradigm to evaluate the inadequacies of existing biodiversity conservation frameworks and formulate practical solutions in key areas of weakness.[57] In this way, the article concludes with recommendations for reform that reflect the environmental principles of the World Charter for Nature and the Biodiversity Convention. This section considers outcomes-driven and measurement-based approaches to the drafting of environmental statutes and conservation planning. Amendments to the EPBC Act and the Nature Conservation Act will also be suggested to increase the efficacy of reserve systems and species listing approaches.
In the mid-20th century, the scientific community observed an epochal shift away from the resilient Earth system of the Holocene era,[58] to the dawn of an unstable ‘Anthropocene era’.[59] Humanity’s impacts have continued to cause substantial changes to Earth’s biosphere,[60] including:
accelerated rates of world-wide biodiversity, soil, sedimentation and fresh water loss; growing global chemical consumption; changes to the global climate; a deterioration of the ozone layer; increased desertification; rising sea levels; and ever-increasing rates of human population and consumption of resources.[61]
These socio-ecological crises have no easily discernible solution.[62] Also known as ‘wicked problems’, these complex challenges have no universally accepted characterisation of their nature, cause, seriousness, or urgency.[63] Moreover, there is no agreed designation of what may be a correct authority or action to resolve these problems.[64] Nevertheless, the development of international environmental law has endeavoured to foster:
...an understanding of the problems of environmental degradation and their causes, of the legal processes for addressing these problems, including the processes of law-making, compliance monitoring and dispute resolution, of the players who cause the problems and those who make the law to address the problems, and of the legal principles that form the foundation for the treaty law that now dominates the field.[65]
These global efforts help define the environmental rights and obligations of nations to each other.[66] In relation to biodiversity conservation, these efforts are reflected by the World Charter for Nature and the Biodiversity Convention.[67] Hence, the following section sets out the objectives and substantive provisions of both the Charter and the Convention. I also explore the general principles and functions of each international agreement and examine how they provide necessary context for the high-level objectives of Australia’s conservation regimes.
Reflecting the concerns of the International Union for Conservation of Nature’s (IUCN) World Conservation Strategy of 1980,[68] the World Charter for Nature was adopted in 1982.[69] Within the international system of environmental law,[70] the Charter is an avowedly influential ecological instrument that emphasises the protection of nature as an end in itself.[71]
In its title, the Charter employs the ecologically inclined notion of ‘nature’,[72] as opposed to the utilitarian term of ‘environment’ distinctive in other global environmental declarations.[73] This ‘for nature’ proclamation is reinforced by the Charter’s preamble, in that:
Every form of life is unique, warranting respect regardless of its worth to man, and, to accord other organisms such recognition, man must be guided by a moral code of action...[74]
The Charter recognises a right to exist that is intrinsic to nature, irrespective of its perceived value to humans.[75] This understanding contrasts with the utilitarian construct of nature that derives an instrumental value from its functions[76] – for example, the ‘services’ that nature provides.[77]
The legislative intent of the World Charter for Nature is to protect nature for its own benefit. Hence, it moves beyond advancing the utilitarian human objectives pursued in other international instruments[78] that promote the ‘human environment’,[79] or reconcile ‘environment and development’ with anthropocentric concerns for ‘sustainable development’.[80] This intent of the Charter is pertinent to the consideration of whether its adoption in domestic legislation should reflect a need to protect biodiversity for the benefit of human utility or to safeguard its right to exist in its own right.
The Charter’s preamble further highlights the interdependency of humanity and nature, in that the continuance of life depends on ‘the uninterrupted functioning of natural systems’ and the ‘maintenance of essential ecological processes and life support systems’.[81] It is premised on the idea that human development is only sustainable so long as ecological limits are respected.[82] It also recognises the need for environmental cooperation at all societal levels.[83] Although the preamble acknowledges the permanent sovereign rights of states over their resources, the emphasis of the Charter is to encourage a moral code of action to maintain ecological balance and integrity.[84]
The Charter notes that the degradation of natural systems is consequent of ‘excessive consumption and misuse of natural resources’ and the ‘failure to establish an appropriate economic order’ among people and States.[85] This acknowledges the damaging consequences of a prevailing neo-liberal economic order that is skewed towards nature’s exploitation and mass-consumerism.[86] ‘Competition for scarce resources creates conflicts’, whereas the conservation of nature contributes to the maintenance of peace, stability and social order.[87]
Following from its preamble, the Charter then identifies 24 principles,[88] five of which set out general principles that guide human behaviour,[89] eight of which relate to functions,[90] and the remaining 11 which concern the implementation of the Charter.[91]
Article 1 of the Charter provides that ‘nature shall be respected and its essential processes shall not be impaired’. The following articles then propose that:
(1) The genetic viability of earth shall not be compromised;[92]
(2) All of nature shall be subject to principles of conservation, with special protections given to unique areas and species;[93]
(3) Nature shall be managed to maintain optimum sustainable productivity and preserve ecosystem integrity;[94] and
(4) Nature shall be secured against degradation by means of warfare or other activities.[95]
These principles potentially marked a ‘“paradigm shift in environmental law” to biocentrism’ through the creation of responsibilities to respect nature, adhere to the Earth system’s limits, and preserve its integrity.[96]
The Charter provides general emphasis that planning of social or economic development activities should be accompanied by a consideration of nature. The seven articles contained in this section pertain to recommended controls on economic development,[97] that allow for the conservation of natural resources,[98] and the avoidance of activities likely to cause irreversible damage to nature.[99] For example, art 10 implores that natural resources are not to be wasted and should be used with appropriate restraint.
Another key provision is art 11 which recommends the use of technology to take precautions against the environmental impact of activities. This includes requiring that activities likely to disturb nature shall be preceded by an assessment of their impacts.[100] A number of articles also advocate for more traditional methods of conservation relevant to soil,[101] water,[102] agriculture, grazing, forestry and fisheries practices.[103] The over-arching theme of the Charter’s ‘functions’ is that human development should have minimal adverse effects to nature.[104]
The ‘implementation’ section directs States to implement eleven types of activities that give effect to the general principles of the Charter.[105] These include:
(1) Enacting domestic and international environmental laws;[106]
(2) Disseminating knowledge of nature through education;[107]
(3) Increasing public participation in planning;[108]
(4) Creating funding and administrative programmes;[109]
(5) Supporting scientific research;[110]
(6) Implementing environmental monitoring;[111]
(7) Avoiding environmentally damaging military activities;[112]
(8) Encouraging cooperation among States, individuals and corporations;[113]
(9) Adopting administrative regulations for nature;[114]
(10) Allowing citizens a means of redress for environmental damage;[115] and
(11) Reaffirming the duty of all persons as caretakers of nature.[116]
As per arts 14 and 24 of the Charter, a duty for all persons to act as caretakers of nature can be demonstrated through Australia’s adoption of the EPBC Act and the Nature Conservation Act. Both Acts make provision for public participation in planning, environmental monitoring, biodiversity regulations and administrative review of decisions – in line with arts 16, 19, 22 and 23.
Although art 22 recognises the sovereignty of States over their natural resources, it nonetheless encourages States to give effect to the provisions of the Charter. This duty is further extended to ‘persons other than States’ in art 24. Further, art 23 supports the universal rights of persons to means of participation in environmental decision-making and redress in the case of environmental harms. For Australia, I argue that this establishes a guiding principle that it is the role of the State, as a caretaker of nature, to ensure adequate protections of nature.[117]
Despite its stridently ‘pro-nature’ approach, the World Charter for Nature is a non-binding international instrument and does not directly impose obligations on Australia.[118] Nevertheless, by virtue of its overwhelming endorsement by governments of the world at the time of its adoption, it cannot be relegated to a mere symbolic gesture.[119] The Charter is considered a ‘historic landmark in the evolution of global ethics’.[120] Its strong sense of ecological integrity has been developed in other international agreements, including the Biodiversity Convention and the Rio Declaration, as per art 14 which contemplates that all principles of the Charter shall be ‘...reflected appropriately in the law and practice of each State, as well as at the international level'.
Significantly, the Charter moves beyond an ‘anthropocentric and narrowly egocentric perspective’ of nature and its relative international importance reinforces the need to consider Australia’s biodiversity conservation regimes in light of the Charter’s provisions.[121]
Succeeding the World Charter for Nature, the Biodiversity Convention was concluded at the Earth Summit in 1992.[122] Australia ratified the Convention on 18 June 1993,[123] and hence became committed to advancing its three main objectives of: (1) conserving biological diversity; (2) sustainable use of biodiversity; and (3) fair use and equitable sharing of genetic resources.[124]
Described as a ‘landmark’ treaty,[125] this Convention has significantly enhanced the scope of international law to conserve Earth’s biological diversity.[126] It is a ‘framework convention’ which proffers a degree of flexibility for States to determine how its provisions should be implemented.[127] In most instances, the articles of the Convention are prefaced with qualifying remarks such as ‘in accordance with its particular conditions and capabilities’ and ‘as far as possible and appropriate’.[128] Although it has legal effect, The Convention relies primarily on non-obligatory instruments, in the form of ‘targets’, to achieve its objectives.[129] It is expected that States will put into practice these broadly framed provisions.[130]
In its preamble, the Biodiversity Convention echoes the World Charter for Nature, recognising the ‘intrinsic value’ of biological diversity and affirming its importance to the ‘life sustaining systems of the biosphere’.[131] This distinctively bio-centric preamble establishes the preservation of biological diversity as a crucial concern of humankind.
Article 3 sets out that although States have the sovereign right to exploit their own resources, they also have a responsibility to ensure that their activities do not damage environments beyond the limits of national jurisdictions.[132] Article 4 limits the application of the Convention’s provisions to biodiversity found within the limits of each State’s national jurisdiction.[133] Decisions of the Conference of the Parties (COP),[134] and reports of the Executive Secretary of the Convention on Biodiversity,[135] confirm a general expectation that state sovereignty must be balanced against responsibilities to protect biodiversity within national limits.[136] Article 6 further requires States to prepare a national blueprint on how the Convention’s objectives will be achieved.[137]
Article 7 encompasses a duty of States to monitor biodiversity and limit the adverse impacts to those subjects being monitored.[138] The data derived from identification and monitoring activities must also be maintained and organised.[139] In addition, a number of COP decisions have reiterated a need to implement art 7 on a national scale.[140]
Article 8 provides 13 subclauses related to environmental management. The relative strength of each subclause ranges from mandatory implementation of a particular action, to less strict requirements ‘to promote’ or ‘to endeavour’ to engage in a particular activity.[141]
The ‘mandatory’ category of activities comprises 10 subclauses, including a requirement to:
(1) Establish systems of protected areas;[142]
(2) Develop management guidelines for protected areas;[143]
(3) Regulate biological resources;[144]
(4) Rehabilitate ecosystems and promote species recovery;[145]
(5) Control risks associated with living modified organisms and biotechnology;[146]
(6) Control alien species that threaten biodiversity;[147]
(7) Respect, preserve and maintain knowledge and practices of Indigenous peoples;[148]
(8) Develop legislation to protect threatened species;[149]
(9) Manage adverse impacts on biodiversity;[150] and
(10) Cooperate and provide financial support for in-situ conservation.[151]
The remaining subclauses impose less stringent obligations on States to:
(1) Promote the protection of ecosystems and natural habitats;[152]
(2) Promote sustainable use of areas adjacent to protected areas;[153] and
(3) Endeavour to ensure that current uses are compatible with the Convention’s objectives.[154]
Article 8 has also been discussed extensively in successive COP decisions, that remind the parties of the need for conservation practices.[155] In relation to Australia’s biodiversity conservation laws, arts 8(a), (b) and (k) provide basis for the ‘protected area’ and species listing regimes.
Art 10 stipulates that each State must integrate the consideration of conservation and sustainable use of biological resources into the course of its national decision-making.[156] This should involve measures to prevent adverse impacts on biodiversity,[157] as well as public-private sector cooperation.[158] Customary and cultural uses of land that are compatible with conservation goals are preferable,[159] and States are encouraged to engage local populations to develop remedial action in degraded areas of biological diversity.[160] The implementation of art 10 has been discussed by the COPs, which have recommended an ecosystems-based framework to biodiversity conservation.[161]
Although the Convention is a legally-binding international agreement, it lacks the same specificity regarding how to achieve positive biodiversity outcomes, as was achieved by the World Charter for Nature. For example, although arts 5 to 10 contain a series of obligations directed towards activities that affect biodiversity, these provisions are expressed in ‘relatively flexible language’.[162] Perhaps, the more ‘idealistic’ and broad approach of the World Charter for Nature, was a consequence of awareness by the States agreeing to it, that it would not be legally binding.
Whether this Convention truly marks the same paradigm shift to ‘biocentrism’,[163] characteristic of the World Charter for Nature, is not so obvious. Consistent avoidance by the Charter of the term ‘environment’ in favour of the term ‘nature’,[164] is but one example of its acknowledgment of a non-anthropocentric and intrinsic value of nature.[165] By contrast, the Convention states that:
Conscious of the intrinsic value of biological diversity and of the ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values of biological diversity and its components.. [we] have agreed as follows...[166]
Although the non-anthropocentric value ‘ecological’ is expressed first, the Convention markedly balances the intrinsic value of nature against a range of anthropocentric values.[167] Compared to the Convention, the Charter places Earth-based principles at the fore, when weighing environmental protections against other needs.[168] Relevant to the influence of these documents on Australian law, the World Charter for Nature may be viewed to place the wellbeing of nature at the forefront of environmental decision-making; while the Biodiversity Convention provides greater scope to place other social or economic values above the environment.[169]
Australia’s legal framework for biodiversity conservation consists of a hierarchy of instruments operating at the international, national, state and local levels.[170] International instruments, such as the World Charter for Nature and the Biodiversity Convention, set high-level objectives for Australian law. Below this, conservation laws adopt a ‘two-pronged approach’.[171]
The first prong involves reserving areas of land for the purpose of protecting biodiversity,[172] although the objects of such reservations often include public recreation and enjoyment.[173] The ‘protection and sound management of natural habitats is of fundamental importance’[174] to implementing comprehensive, adequate and representative reserve systems.[175] Reservations can be created under legislation,[176] and as at 30 June 2020, the National Reserve System of Australia (NRS) consisted of some 13,540 public and private areas.[177]
The second prong involves species-specific methods,[178] through the listing of threatened species and ecological communities.[179] These approaches provide broader protections for components of biodiversity that are not located within reserves or land subject to property agreements.[180] Moreover, complementary protections generally take the form of prohibitions on harming species or their habitats without an appropriate permit[181] or licence.[182] Approvals will usually only be granted once the impacts of actions are considered through environmental impact assessment (EIA) frameworks.[183]
This section will explore how the World Charter for Nature and the Biodiversity Convention have influenced domestic protections for biodiversity. This will first involve an examination of the operation of the EPBC Act at the federal level and then the Nature Conservation Act at the territory level. Although not within the scope of this research, note that other legislation, relevant for example to water,[184] native vegetation[185] or catchments,[186] also play a significant role in achieving biodiversity outcomes in Australia.[187]
The EPBC Act commenced on 16 July 2000, enabling the federal government to produce a national scheme of environmental, heritage and biodiversity protection.[188] In administering the EPBC Act, the Australian Government has limited its oversight to MNES.[189]
Broadly, the objectives of the EPBC Act include:
(1) Providing environmental protections relevant to MNES;[190]
(2) Promoting ESD;[191]
(3) Promoting biodiversity conservation;[192]
(4) Providing protections for heritage;[193]
(5) Promoting co-operation of governments, communities, land-holders and indigenous peoples in environmental management;[194]
(6) Assisting co-operative approaches to fulfilling Australia’s international obligations;[195]
(7) Recognising the role of indigenous people in the conservation of Australia’s biodiversity;[196] and
(8) Promoting use of indigenous peoples’ knowledge of biodiversity.[197]
In enacting the ideals of the Charter and the Convention, this Act includes an express legislative intent to promote the conservation of biodiversity in s 1(3)(c). These protections include MNES, such as heritage places and listed threatened species and ecological communities.[198]
The EPBC Act establishes the Commonwealth’s authority over various types of protected areas.
One example of a protected area relates to the declaration of ‘world heritage properties’ under s 14 of the EPBC Act. These properties are usually included in the World Heritage List,[199] but an unlisted property may also be declared ‘world heritage’ if a Commonwealth submission is made under art 11 of the Convention Concerning the Protection of the World Cultural and Natural Heritage (‘World Heritage Convention’).[200]
These provisions of the EPBC Act replaced the now repealed World Heritage Properties Conservation Act 1983 (Cth). That Act was originally enacted to give the Commonwealth legal power to prevent the Tasmanian government from constructing a hydro-electric dam that would have had adverse effects on the Franklin River environment.[201] Following the case of Commonwealth v Tasmania,[202] the dam project finally ceased because the Tasmanian government did not succeed in arguing before the High Court that the legislation was unconstitutional. This case importantly held that it is within the legislative power of the Commonwealth to give effect to international environmental conventions under s 51 (xxix) of the Constitution (‘external affairs’).[203]
Criminal and civil penalties may apply if a person takes an action that results or is likely to result in any significant impact on the world heritage values of a world heritage property.[204] This was tested in Booth v Bosworth,[205] where the Court considered whether the respondent’s operation of electric grids that electrocuted a population of ‘Spectacled Flying Foxes’[206] had a significant impact on the ‘world heritage values’ of the Wet Tropics World Heritage area.[207] Ultimately this argument was upheld by Branson J of the Federal Court, who granted an injunction restraining the action.[208]
Management of reserves includes the creation of ‘management plans’ which outline how conservation policies are to be implemented.[209] Plans must be prepared by the Minister for all world heritage properties entirely within Commonwealth areas.[210] Governments must also take reasonable steps to act in ways consistent with the World Heritage Convention, world heritage management principles[211] and management plans.[212]
Ramsar wetlands are another form of protected area designated by the Commonwealth under art 2 of the Convention on Wetlands of International Importance Especially as Waterfowl Habitat (‘Ramsar Convention’) for inclusion in the List of Wetlands of International Importance.[213] The Minister may declare a Ramsar wetland if they are satisfied that the wetland is or likely to be of international significance and its ecological character is under threat.[214]
Protections for Ramsar wetland also rely on mixed use of criminal and civil penalties. In Minister for the Environment and Heritage v Greentree (No 3) for example, the Federal Court imposed on the respondent farmer civil penalties totalling $450,000.00 for unlawful clearance of a part of declared Ramsar wetlands known as the Gwydir Wetlands.[215] Relevant to management planning,[216] the Minister must make a plan for all listed Ramsar wetlands, consistent with the Australian Ramsar management principles.[217]
Commonwealth reserves may be declared over areas that are: (a) owned or held under lease by the Commonwealth; (b) in a Commonwealth marine area; or (c) outside Australia but in relation to which Australia retains obligations relating to biodiversity or heritage under an international convention.[218] If land[219] is already reserved for nature conservation under state or territory law, the Commonwealth cannot acquire the land to declare a Commonwealth reserve, without first attaining the consent of that State or Territory.[220]
Before a Commonwealth reserve is declared, the intention to claim a reserve must be publicly advertised.[221] It must also have a name, a stated purpose, identifiable geographical limits, and be assigned an IUCN[222] category prescribed by the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) (‘EPBC Regulations’) – see Figure 1.[223]
Figure 1. Table of IUCN Categories for Commonwealth Reserves[224]
When a Commonwealth reserve is declared, a ‘usage right’ related to the reserve area vests in the Director.[225] The Director must then prepare a ‘management plan’ for the reserved areas,[226] whereby activities affecting native and threatened species must comply with the management plan.[227] In the absence of a plan, the Director must exercise their powers in accordance with the reserve management principles of the IUCN category to which the reserve has been most recently assigned.[228]
While an area is being assessed for inclusion in a Commonwealth reserve, it is possible to declare it a ‘conservation zone’. This enables preliminary protections for biodiversity before an area is officially included in a Commonwealth reserve.[229] It would also permit the regulation of activities within those zones,[230] although prior usage rights usually continue to take effect.[231]
Outside of reserve areas, the Minister may enter into a ‘conservation agreement’ with any person,[232] that results in a ‘net benefit’ to enhance the conservation of biodiversity.[233] Before entering into conservation agreements, the Minister must have due regard for the provisions of the Biodiversity Convention and the National Strategy for the Conservation of Australia’s Biological Diversity.[234] Such agreements cannot be inconsistent with existing conservation plans.[235] Further, these agreements are enforceable[236] and not only legally binding on the parties to the contract, but also on ‘successors’ to any interest subject to the agreement.[237]
Currently, Australia boasts 65 Commonwealth protected areas.[238]
In relation to threatened species, the EPBC Act performs two main functions. First, the Act regulates export trade in native wildlife and wildlife products.[239] Second, it provides legislative protection for threatened species or ecological communities contained in statutory lists.[240]
Trade in wildlife contributes to wildlife vulnerability.[241] Thus, the Convention on International Trade in Endangered Species of Wild Fauna and Flora,[242] has appended a list of species that are subject to its protective measures.[243] Restrictions on trade activities are enlivened in Pt 13A of the EPBC Act,[244] and the courts have generally recognised a need to deter offenders of this kind.[245] As Deane J contended in Ackroyd v McKechnie,[246] interstate restrictions on trade may be valid if they ‘go no further than is necessary for legitimate regulatory or conservational purposes’.[247] Thus, threatened species are protected against being traded.
Before commencement of the EPBC Act, lists of threatened species, ecological communities and threatening processes were included under the now repealed Endangered Species Protection Act 1992 (Cth).[248] Now, consistent with the international standard of the IUCN Red List,[249] the EPBC Act classes threatened species according to categories of ‘extinct’, ‘extinct in the wild’, ‘critically endangered’, ‘endangered’, ‘vulnerable’ or ‘conservation dependent’.[250] Threatened ecological communities,[251] may also be listed as ‘critically endangered’, ‘endangered’ or ‘vulnerable’.[252] This listing criteria is reflected in the EPBC Act[253] and the EPBC Regulations.[254]
While listed, the Minister must maintain ‘approved conservation advice’[255] for each threatened species[256] or ecological community.[257] This advice sets out the grounds on which the subject is eligible to be included in a listed category, and any appropriate activities to prevent decline or support the recovery of that subject.[258] Threatened species and communities can be nominated for inclusion on these publicly available lists, which the Minister is responsible for updating.[259]
The lists can be varied and amended, following assessment or the Minister’s consideration of advice from the Threatened Species Scientific Committee (TSSC).[260] The Minister also administers the list of key threatening processes,[261] which specifies the processes that could cause species to become eligible for a higher level of endangerment, or that adversely affect two or more threatened species.[262] For example, a recent addition to this list was the ‘aggressive exclusion of birds from potential woodland and forest habitat by over-abundant noisy miners (manorina melanocephala)’.[263]
In addition, the Act confers on the Minister various other administrative responsibilities, including oversight of recovery plans, threat abatement plans, conservation orders or wildlife conservation plans.[264]
Civil and criminal penalties may apply if a person takes any action that has, or is likely to have, a ‘significant impact’[265] on a listed threatened species or ecological community.[266] In Minister for Environment Heritage and the Arts v Lamattina,[267] the respondent farmer was ordered to pay a pecuniary penalty of $220,000.00 for unlawfully clearing 170 eucalyptus trees which were likely to significantly impact the habitat nesting hollows of the listed South-Eastern Red-Tailed Black-Cockatoo. In Minister for Sustainability Environment Water Population and Communities v De Bono,[268] the respondent was ordered to pay a $150,000.00 civil penalty for clearing activities that significantly impacted a listed eucalyptus microcarpa ecological community.
The Nature Conservation Act commenced on 11 June 2015.[269] Note that a significant amendment, the Nature Conservation Amendment Act 2016 (ACT), was passed to enable greater consistency across national listing regimes.[270] This Act is the chief legislation in the ACT for the protection of native species and the management of protected areas.[271]
The main object of the Nature Conservation Act is to ‘protect, conserve and enhance the biodiversity of the ACT’.[272] Conservation objectives also include ‘protecting, conserving, enhancing, restoring and improving’:
(1) Native species and their habitats;[273]
(2) Ecological communities;[274]
(3) Biodiversity at the community, species and genetic levels;[275]
(4) Ecosystems and their constituent processes;[276] and
(5) Ecological connectivity.[277]
Other objects that supplement conservation activities include:
(6) Promoting the maintenance of biodiversity at local, regional and national levels;[278]
(7) Promoting co-operation between indigenous people, communities and government;[279]
(8) Encouraging public participation;[280]
(9) Recognising the role of Aboriginal and Torres Strait Islander peoples in conservation and ecologically sustainable use of biodiversity;[281]
(10) Recognising a duty of environmental stewardship owed by landholders;[282]
(11) Ensuring public education and participation in policy development;[283] and
(12) Promoting the principles of ESD.[284]
Areas of public land may be reserved under the ACT’s Territory Plan for a number of conservation purposes, including the establishment of a ‘national park’, ‘nature reserve’ and ‘wilderness area’.[285] This is facilitated by the Planning and Development Act 2007 (ACT), wherein the purposes of reservations may be determined by the management objectives for public land.[286]
The management objectives of national parks and national reserve include: (1) conserving the natural environment; and (2) providing for public use of the area for recreation, education and research.[287] The objects of wilderness areas expand this notion by limiting recreational use to ensure minimal disturbance to the environment.[288] Moreover, the entirety of Ch 8 of the Nature Conservation Act,[289] which mirrors the IUCN reserve management objectives, applies to reserve management and planning.[290]
Furthermore, the Nature Conservation Act strives to protect, conserve and enhance biodiversity,[291] including native species and ecological communities.[292] The Conservator must have regard to the Act’s objectives and is responsible for monitoring the state of nature, overseeing biodiversity management and providing information to the Commissioner for Sustainability and the Environment.[293]
The Minister bears responsibility for making threatened native species and ecological communities lists.[294] Per this listing regime,[295] the ‘national category’ of threatened native species and ecological communities, is reminiscent of the EPBC Act, according to the categories of ‘extinct’, ‘extinct in the wild’, ‘critically endangered’, ‘endangered’, ‘vulnerable’ or ‘conservation dependent’.[296] Species are also eligible for inclusion in a ‘regional category’, as ‘regionally threatened’, ‘regionally conservation dependant’ or ‘provisional’.[297] In relation to threatened ecological communities, the Act specifies only the national category for listing, and differs slightly from the threatened species provisions with the inclusion of a ‘provisional’ category, in substitution for the ‘conservation dependant’ category.[298]
In addition, the Minister must make a protected native species list,[299] dividing native species into categories of ‘restricted trade’, ‘rare’ and ‘data deficient’.[300] A native species has ‘special protection status’[301] if it is a threatened native species or listed species under the EPBC Act.[302] For example, ACT species threatened on a national scale include the Grassland Earless Dragon, the Striped Legless Lizard and the Pink-tailed Worm Lizard.[303]
With the exception of provisional listings, the Scientific Committee must prepare a ‘conservation advice’ about each item included in a list.[304] This advice must set out the grounds on which the item is eligible for inclusion,[305] and anything else required by conservation advice guidelines.[306] Where it is appropriate, the Conservator may prepare a draft native species conservation plan in respect of nominated land areas.[307] Once this plan is in force, the Conservator is bound to take reasonable steps to implement it.[308]
The Nature Conservation Act has a range of offences relevant to interference with native animals and plants,[309] including conduct that causes the death of any native animal and any other acts that result in the injuring, taking[310] or selling of non-exempt native plants and animals.[311] Exceptions include authorisation by a license, declaration or management agreement.[312]
When assessing the achievement of biodiversity conservation outcomes, it is useful to examine the work of the Australian Panel of Experts on Environmental Law (APEEL), comprising of experts in ‘environmental law, research, practice and design’.[313] The APEEL identifies a disparity between the drafting of environmental laws and the effectiveness of implementation.[314] Many principles listed in the World Charter for Nature and the Biodiversity Convention are relatively under-utilised, poorly defined or overridden by competing values in legislation.[315]
The Panel states that a number of institutional arrangements govern the uses of biological diversity,[316] including ecologically sustainable practices in national reserves, state forests, water catchments and on private properties.[317] Further, Australia’s laws recognise the deep connections of Aboriginal and Torres Strait Islander peoples to nature and traditional ‘country’.[318] Accordingly, ‘co-management’ arrangements are central to shaping a more equitable intercultural space for biodiversity conservation.[319]
National resource management arrangements have ranged from prescriptive regulation through to voluntary standards.[320] Formal arrangements have included EIA,[321] reserve systems, bioregional planning, species listing, prohibited activities and licences to use nature.[322] In contrast, voluntary approaches include Landcare groups,[323] private conservation agreements, environmental codes or consumer standards, and private philanthropy.[324]
Yet despite this abundance of environmental governance, the APEEL identifies the poor coordination and overlap of roles as problematic.[325] In particular, current conservation measures are ill-equipped to manage dynamic natural systems.[326]
In this section I explore whether the EPBC Act or the Nature Conservation Act favour more strongly the conservation paths advanced by the World Charter for Nature or the Biodiversity Convention. First, the section will determine the current condition of biodiversity at ACT and federal levels using the most recent State of the Environment (‘SoE’) reports. Then, I examine the achievement of biodiversity outcomes by the EPBC Act and the Nature Conservation Act beside the Charter and the Convention, by comparing their objectives, land reservation systems and finally, their classification and listing approaches.
Every five years, the Australian Government comprehensively reviews the state of Australia’s environment.[327] The latest national SoE report (‘Biodiversity SoE 2016’) was released in 2016.[328] The ACT has a similar reporting system which requires SoE reporting every four years.[329] The latest ACT SoE report (‘ACT SoE 2019’) was released in 2019.[330] Together, the Biodiversity SoE 2016 and ACT SoE 2019 provide detailed context for the current state of biodiversity in Australia and the ACT, and hence, the relative achievements of existing conservation regimes.
The Biodiversity SoE 2016 states that current understanding of the state of a majority of Australian species is limited by a lack of consistent national-level data.[331] This phenomenon was identified in every Australian jurisdiction.[332] Although information about the extent of vegetation communities was considered ‘good’, knowledge of their condition was limited.[333] Since the previous national report in 2011, understanding of the state of Australian mammal groups had improved by means of the significant reports, Action Plan for Australian Mammals[334] and State of Australian Birds.[335]
In relation to the EPBC Act listing regime, there are currently 92 listed threatened ecological communities.[336] Since 2011, there had been 45 new listings, with most being concentrated in south eastern Australia.[337] The overall number of listed threatened species had also increased by 154, to total 1918 species.[338] Because of the limited availability of information about the condition of Australian vegetation and species, the Biodiversity SoE 2016 concluded that the status of biodiversity in Australia was poor and worsening.[339]
In northern Australia, mammal declines have continued,[340] while in southern and eastern regions, the number of species of conservation concern have increased.[341] Bird groups trended in overall decline, with particular groups including woodland-dependent mallee and carnivore species in the arid zone showing significant declines.[342] Trend analyses of eastern Australian inland waterbirds and some migratory shorebirds also indicated that major indices related to total waterbird abundance, breeding species richness and abundance, were well below long-term averages.[343] Limited information was available to assess the status of listed reptiles, amphibians and invertebrates, with the exception of a few high-profile species.[344] Lastly, jurisdictional reporting on the condition of aquatic species and ecosystems were generally assessed as poor to moderate – although the information available was also described as poor or limited.[345]
The inadequacy of long-term data and monitoring was also relevant to national deficits in the understanding of key pressures on biodiversity.[346] For example, the report identified that threats to biodiversity in the ACT were habitat loss, pest species and altered fire regimes.[347] Nature’s connectivity was also being lost through developments and urban construction.[348] However, assessment of the distribution and abundance of species and the risks of fires were uncertain, due to limited data on the effects of these processes on biodiversity.[349]
The ACT SoE 2019 found that a total of 52 species were listed as threatened under the Nature Conservation Act. Since then this has increased to 53.[350] During the reporting period (2015-16 to 2018-19), 17 of these species were listed as threatened, while seven were transferred to critically endangered status in alignment with their Commonwealth status.[351] These included the Regent Honeyeater, Swift Parrot, Northern Corroboree Frog, the locally extinct Yellow-spotted Bell Frog, Canberra Spider Orchid, Brindabella Midge Orchid and the Kiandra Greenhood.[352] In addition, the ecological communities of Natural Temperate Grassland,[353] Yellow Box – Blakely’s Red Gum Grassy Woodland[354] and High Country Bogs and Associated Fens[355] were listed as threatened.[356] Moreover, listing of the ‘loss of mature native trees (including hollow-bearing trees)’ as a key threatening process in 2018,[357] was required to prevent adverse effects to the Superb Parrot, Brown Treecreeper, Glossy Black-cockatoo and Little Eagle.[358]
The report found that 141,000 hectares ACT land has conservation status.[359] Specific conservation measures have involved biodiversity offsetting of developments impacting Commonwealth-listed threatened species and communities.[360] Biodiversity offsetting is a tool that enables mitigation and compensation for residual harms associated with land development.[361] Since 2009, the area of environmental offsets in the ACT grew from 18 hectares to 1,865 hectares in 2019.[362]
Land offsets generally pertain to protection of White Box, Yellow Box, Blakely’s Red Gum Grassy Woodland, Natural Temperate Grassland, the Striped Legless Lizard, Golden Sun Moth, Pink-tailed Worm Lizard, Superb Parrot, and Button Wrinklewort.[363] Almost all environmental offsets are delivered as direct land offsets, while indirect offsetting is generally regarded as a ‘last resort’.[364] Indirect offsets have been established with respect to development of the Gungahlin and Molonglo Valleys.[365]
Gaps in knowledge remain a policy challenge in the ACT, given the administrative and resourcing difficulties of undertaking comprehensive monitoring. The ACT SoE 2019 stated that it was not possible to accurately assess: (1) the current condition of conservation areas; (2) the distribution and abundance of species; or (3) the capacity of biodiversity offsets to ensure no net loss of biodiversity.[366]
Thus, positive conservation outcomes for Australian species and ecological communities have not been achieved by either of the Commonwealth or the ACT biodiversity regimes.
I now analyse the achievements of the EPBC Act and the Nature Conservation Act beside the principles espoused in the World Charter for Nature and the Biodiversity Convention.
Both the World Charter for Nature and the Biodiversity Convention provide eco-centric recognition of the intrinsic rights of nature to exist and regenerate its vital cycles.[367] The objectives of the World Charter for Nature include respect for nature, protecting all ecosystems and species and maintaining the integrity of ecosystems.[368] The language of the Charter is especially directive, for example in its statement that all areas of the Earth ‘shall be’ subject to principles of conservation, and that ecosystems ‘shall be’ managed to achieve optimum sustainable productivity.[369]
By contrast, the objectives of the Biodiversity Convention generally relate to the conservation and sustainable use of biodiversity and equitable sharing of the benefits accrued from genetic resources.[370] Unlike the mandatory expression of the Charter, the Convention accords States greater autonomy in their decision-making and relative priority that they might assign to nature, by directing the contracting parties to enact the Convention’s provisions only ‘as far as possible and as appropriate’.[371] This framework leaves it to the State parties to determine how most of its provisions should be implemented.[372]
In contrast to the binding nature of the Convention, the Charter is not binding on States, although it may represent a crystallisation of custom,[373] which may in turn impose obligations.[374] Without evidence to the contrary, the Charter should be viewed as an ‘aspirational agreement’ relating to its principles, rather than an obligation owed by the Australian Government.[375]
At the federal level, the multiplicity of the EPBC Act’s[376] objects clauses obfuscates the relative importance of its different objectives.[377] Similar to the Biodiversity Convention, the Act includes verbs such as ‘to promote’, ‘further’ or ‘provide for’, and therefore grants the federal government full discretionary authority regarding the kind and extent of conservation measures that it administers.[378] Although the Act’s objectives incorporate a need to consider the biodiversity implications in decision-making, this does not correspond with the achievement of any specified outcome.[379] For example, one object of the EPBC Act is ‘to promote the conservation of biodiversity’. This creates a procedural purpose ‘to promote’, rather than a substantive purpose ‘to achieve’ an outcome.[380] In the view of the APEEL, the lack of clarity in defining the desirable outcomes of biodiversity conservation complicates the tasks of prioritising conservation efforts and selecting appropriate conservation tools.[381]
In contrast, the Nature Conservation Act promotes a ‘shift in the scope of legal purposes for conservation’,[382] where its singular ‘primary object’,[383] is followed by ‘subsidiary objects’ that define how the primary object can be achieved.[384] This definition aligns more closely with the views of the World Charter for Nature, which understands humans as a part of nature and places nature conservation as the paramount value of environmental legislation.[385]
The Nature Conservation Act was also the first statutory reference,[386] to the conservational significance of ecological connectivity, ecosystem processes, functions and landscapes.[387] Compared to other jurisdictions,[388] the Act allows conservation of native species redistributing from other jurisdictions under a ‘provisional category’.[389] This provides broader protection for threatened species that are temporary residents.[390] Such measures reflect ‘adaptive governance’, which refers to the law’s capacity to respond to dynamic, complex and uncertain systems.[391] Given the changing distributions and abundance of species under climate change, the principle of adaptive governance is recommended by the APEEL to increase the responsiveness of environmental management systems[392] – that which is lacking in the EPBC Act.[393]
The World Charter for Nature affirms the need to give special protection status to unique areas and habitats of rare or endangered species.[394] Article 8 of the Biodiversity Convention stipulates a need to establish systems of protected areas and conservation guidelines for biodiversity.[395] It is these particular articles of the Charter and the Convention,[396] that provide for the international legal legitimacy of land reservation and species-specific conservation efforts.[397]
Under both the EPBC Act and the Nature Conservation Act, land reservations can be established under different categories, that then guide the future planning and management of those reserves.[398] The Charter posits that States should inform conservation planning by closely monitoring the status of natural processes, ecosystems and species.[399] In addition, art 7 of the Convention creates an obligation for States to maintain data derived from identification and monitoring activities.[400]
At the federal level, planning of the NRS depends on mapping of landscapes to capture all levels of biodiversity across bioregions.[401] This reflects the Biodiversity Convention’s consideration of biodiversity at three levels: (1) genetic, (2) species, and (3) ecosystem.[402] These maps replicate elements of biodiversity, including soil landscapes, land systems, vegetation communities, climate and terrain.[403] Effective mapping assists the creation of reservation targets and monitoring programs to build a comprehensive, adequate and representative (CAR) reserve system.[404] The CAR principles make certain that the proportion of ecosystems in protected areas adequately provide for the ecological integrity of species.[405] Interconnected reserve networks can also conserve a representative diversity of ecological communities and provide habitat for migratory species.[406]
Over 19 percent of Australia's total land area is protected under the NRS[407] – inclusive of ACT reserves.[408] The use of IUCN reserve categories ensures that protected areas are managed according to IUCN management objectives.[409] Under the Biodiversity Convention, Australia is committed to Aichi Target 11 that ‘by 2020, at least 17 percent of terrestrial and inland water’ will be protected in ‘ecologically representative and well connected systems of protected areas’.[410] However, a 2017 report found that Australia is less than halfway to achieving this target, with some 1,691 ecosystems and 121 species of national significance lacking any representation in protected areas.[411] It was reported that only 36 of 85 Australian bioregions had fulfilled the requirements of Aichi Target 11.
The NRS further has limited adaptive capacity. It does not provide for climate change refugia; that is, areas where components of biodiversity can persist under changing climatic conditions.[412] The climate-driven redistribution of species has wide-ranging implications for human wellbeing and ecosystem function. However, the pace and magnitude of this shifting geography of life remains poorly understood.[413] Additionally, the native species, ecosystems and water resources of the Australian continent are particularly vulnerable to global warming.[414]
The fixed boundaries of protected areas do not account for climate-driven fluctuations in the distribution of species.[415] In both the EPBC Act and the Nature Conservation Act, future climate refugia of biodiversity is not a priority for inclusion in reserve systems.[416] This leaves many important regions outside of the protected areas, and hence, are more susceptible to destruction.[417] In order for Australia to optimise its protected area network in line with the Charter and the Convention,[418] it needs to expand into locations that overlap the distributional shifts predicted to occur with climate change.[419]
A further shortcoming of the federal and ACT reserve approaches is that the extent of protection is generally protection from harmful activities, rather than measures for the active improvement of biodiversity.[420] Even then, a protected area designation does not thoroughly safeguard a reservation from all potentially harmful activities. For example, where a proposed development triggers EIA measures, this appraisal does not necessarily prevent decisions being made that degrade the environment.[421] Neither Act contains express prohibitions on the approval of activities that cause significant adverse environmental impacts.[422] Instead, the realisation of biodiversity outcomes are largely self-regulatory, conducive to the greater discretions afforded by the Biodiversity Convention.[423] Thus, these frameworks are underlain by an assumption that adherence to legal and procedural environmental requirements will push decision-makers towards better biodiversity outcomes,[424] but that assumption has sadly proven doubtful.
The key feature of the EPBC Act and the Nature Conservation Act listing regimes is that listing will trigger the regulation of potentially harmful activities. This involves assessment of the impacts of proposed actions and conditional approvals that mitigate harmful impacts of activities.[425] In line with art 19 of the World Charter for Nature, these measures represent a national effort to monitor the status of ecosystems and species, enabling detection of threat and ensuring timely interventions.
At the federal level, the listing of species by the EPBC Act triggers the preparation of conservation advices, recovery plans, threat abatement plans and wildlife conservation plans[426] that identify the causes of species decline and guide future management.[427] In the ACT, the Nature Conservation Act has similar provisions for the creation of conservation advices, action plans and native species conservation plans.[428] Where there is an overlap of territory and nationally threatened items, it is possible to adopt an advice prepared by the Commonwealth.[429]
Article 3 of the Charter states that special protection should be given to representative samples of rare and endangered species. Under the Convention, Australia is committed to facilitating in situ protection of biodiversity.[430] This includes developing legislation to protect threatened populations of species.[431] However, Australia’s approaches to the listing of threatened species and ecological communities have significant shortcomings.
Species listing is not precautionary, given that the regime is predicated on human intervention after harm or significant decline has occurred.[432] Where species and ecological communities are not listed, the EPBC Act affords limited protection for groups residing outside the NRS.[433] By comparison, the ACT Nature Conservation Act legislates protections for listed native species and ecological communities, along with all native species.[434] The protected native species list is divided into categories that protect wild populations that are:
(1) likely to be negatively impacted by unrestricted trade in the species;
(2) not threatened species or given special protection status, but nonetheless are rare; and
(3) are ineligible for inclusion in any other category due to insufficient information about the species.[435]
This more expansive approach better represents the broader coverage of protections favoured by both the World Charter for Nature and the Biodiversity Convention. In particular, the listing of species under a ‘data deficient’ category,[436] accounts for situations where the potentially threatened class of fauna is at risk but, a lack of information prevents the species from listing in a threatened category. This contrasts with the EPBC Act, whereby listing largely depends on species being scientifically described.[437] This process is much more resource intensive than the Nature Conservation Act, where it demands complex preliminary scientific assessment and a high non-precautionary evidence base to support a threatened status.[438]
The choice of listings are largely discretionary with the national approach placing a high value on species rarity. This may depend on research preferences, funding, cultural priorities or the maintenance of iconic species.[439] The ACT approach to listings are equally influenced by factors such as preferences for particular species, improved knowledge or methodologies regarding species status and the number of taxa reviewed regularly.[440] Despite this, listed species and ecological communities continue to dominate the number of assessments carried out under both Acts.[441]
The EPBC Act’s listing method also fails to reflect the dynamic and multi-scale processes of biodiversity.[442] This view of interconnected natural systems is affirmed by the World Charter for Nature, which advocates for a holistic approach to environmental management.[443] The Nature Conservation Act arguably moves beyond the EPBC Act in its consideration of ‘ecological connectivity’.[444] This more holistic approach to listing of threatened species and ecological communities aims to account for the dynamism of species and ecosystem processes.[445]
Resourcing issues also hinder the effectiveness of both Acts. While considerable attention is given to the initial assessment and listing processes of the EPBC Act, very little attention is diverted towards management post-listing.[446] Article 17 of the Charter provides that States should furnish the necessary funds and programmes essential to conservation. Article 20 of the Convention similarly urges States to provide financial support and incentives for national activities that achieve biodiversity objectives. Relative to other States, Australian conservation efforts remain underfunded and hence, inadequately support the protection and recovery of threatened species.[447]
The high costs associated with recovering species and ecological communities means that recovery planning is limited by the availability of resources.[448] Listed threatened species are more likely to receive management and investment over their unlisted counterparts and often will experience greater beneficial outcomes if there is substantial investment.[449] However, biases in the selection of species for conservation funding means that certain species receive little attention regardless of their prospects for recovery.[450] This is particularly relevant to the recovery of under-represented species, including invertebrates, plants and fungi.[451]
Because listing and assessment processes are driven by ‘charisma, body size and level of knowledge or appeal’, funding for conservation is distributed inefficiently.[452] Cost-effective factors such as the genuine severity of threats, the recovery potential and comparative costs of conservation mechanisms, do not feature in this approach.[453] Australia’s inefficient and biased allocation of conservation listing efforts prevents meaningful debate on the adequacy of available funds or the appropriate prioritisation of conservation efforts.[454]
Contrary to the monitoring obligations of the Charter and the Convention,[455] even where species have had the benefit of listing, there are significant data gaps in the status of Australia’s biodiversity.[456] Listing regimes lack effective processes to measure the performance of conservation advices and recovery plans, or the extent to which existing management alleviates threats to species.[457] Increased monitoring and reporting of the status of biodiversity would significantly improve Australia’s capacity to report on the indicators and trends of threatened species and ecological communities.[458]
Finally, listing processes do not entirely halt potential harmful activities affecting a listed species or ecological community.[459] Most environmental outcomes of territory and federal developments are determined on a ‘project-by-project’ basis.[460] Hence, the cumulative environmental impacts of these activities are not systematically considered.[461] Even where protective conditions may be imposed on developers,[462] individual projects usually self-manage compliance with biodiversity objectives.[463] Failing to address the cumulative effects of developments will only allow ecological conditions to degrade.[464] For example, where there are multiple patches of land clearance, the cumulative effect of these activities may cause fragmentation of native vegetation and threaten their dependent species.[465] In this sense, Australia’s laws again appear to stray away from recognition of ecological connectivity by the Charter and stipulations to facilitate the compatibility of land uses with biodiversity objectives by the Convention.[466]
At the Commonwealth level, there is increasing pressure to alter or replace the EPBC Act. On the one hand, the Act has been assailed for its ineffective prevention of biodiversity decline,[467] while on the other, it has been seen as unnecessarily impeding development.[468] Regardless, greater protection of Australia’s biodiversity requires a firm commitment by all stakeholders and a suite of new environmental laws,[469] so that future generations can benefit from Australia’s unique environment and heritage.[470]
Biodiversity decline at the territory level means that the Nature Conservation Act has also not escaped criticism.[471] Ongoing concerns include fears that development approvals will diminish the remnant habitat of species, and that listing regimes inadequately protect native species.[472] For example, there are limited protections for key sub-critical species that have not yet justified nomination for listing but are approaching that situation.[473]
Although Australia supported the World Charter for Nature and is a signatory to the Biodiversity Convention, its domestic biodiversity conservation laws do not reflect these commitments.[474] Despite various policy instruments, public programs and the substantial expansion of protected areas, national biodiversity is under increasing threat.[475]
To meet its international obligations, Australia needs more effective management of human behaviours.[476] Internationally, the Convention requires that States adopt strategies that are behaviourally conducive to biodiversity protection.[477] These outcomes are driven by ecological, industrial and social processes involving many people.[478] Successful biodiversity strategies necessitate effective behaviour-management activities, including protected area management, citizen education and research programs.[479] These environmental management strategies can drive different types of intervention, perhaps in novel and unique ways.[480]
The following section discusses wide-ranging and multi-pronged law reforms to achieve Australia’s international biodiversity priorities.[481] First, the section explores the benefits of outcomes-driven approaches to environmental law. Then, I contend that this approach must be accompanied by measurable conservation objectives. Finally, the section concludes with recommendations for the reform of Australia’s reserve systems and listing approaches.
There is a need for clearer outcome objectives for environmental legislation.[482] Outcomes-based conditions are those which focus on achieving a specific environmental outcome, without prescribing how that outcome is to be achieved.[483] The APEEL proposes that the setting of hard outcomes, rather than merely steps thought appropriate to achieve them, can provide a baseline environmental standard and comparator.[484]
The benefits of outcomes-oriented laws may include:
(1) the implementation of assurance frameworks that require demonstrated progress towards specific outcomes;
(2) offering regulators a low-cost method of gaining compliance with regulatory goals via the encouragement of innovation in environmental management strategies; and
(3) building public confidence in environmental regulation through ‘progress-tracking’ and ‘success-measuring’ mechanisms.[485]
Laws need to be clearly defined in order to avoid strategic uncertainties when multiple principles can pull the interpretation of policies in different directions.[486] One example is the objective of ESD, where there is no agreement as to whether its interpretation should be more environmentally or economically inclined.[487] A lack of specificity and consistency among conservation objectives is also a challenge to coordinating uniform conservation action.
The efficacy of objects clauses can be improved by precisely identifying the purpose of an objects clause and drafting the clause to articulate that purpose. Then, the language of each object should be sufficiently specific to confine the interpretative bounds of that object. If there is potential that clauses may conflict, a mechanism within the objects clause, such as a designated priority between clauses, should resolve that conflict. Lastly, objects clauses must influence the exercise of discretionary powers under the statute, such as requiring a decision-maker’s consideration of the clauses or indicating that decisions must achieve one or more particular objects.[488]
The Honourable Chief Justice Brian Preston[489] suggests that the objects clauses of environmental statutes are often drafted at a ‘high level of generality and are hortatory and aspirational’.[490] The Second Independent Review of the EPBC Act critiqued the broadness of its objects for boasting little ‘clout’ and being ‘uninspiring and perfunctory’.[491] Although the EPBC Act contains multiple objects clauses, it neither proffers clear explanation of its desired outcomes nor provides sufficient constraints on the exercise of discretion to limits the effect of development on nature.[492]
In relation to the drafting of biodiversity objectives, I arrive at the following proposals. Objects clauses should be drafted to focus on outcomes rather than processes, and where they may be multiple objects, explicit guidance must be provided as to their relative weight.[493] The number of objects should be limited to those necessary to give effect to the desirable outcomes of the statute.[494] Additional subsidiary objects should be used sparingly, only when they are required to clarify discrete outcomes of the statute in question.[495] Moreover, a national-level high priority assigned to an object, such as to ‘conserve biodiversity and reverse its state of decline’ would be an outcomes-based approach to developing clear and specific parameters for biodiversity conservation.
In relation to the Nature Conservation Act, it has a singular over-arching objects clause to ‘protect, conserve and enhance the biodiversity of the ACT’.[496] Indeed the EPBC Act could benefit from adopting a similar approach by nominating a primary objective guiding all its environment-related laws.[497] For example, an over-arching goal to ‘ensure the extensive engagement of Australian communities to overturn the state of biodiversity decline’ could improve national consistency in biodiversity decision-making.[498]
The Nature Conservation Act also provides a series of subsidiary objects in support of its primary object.[499] For example, the objective of ‘protecting, conserving, enhancing, restoring and improving nature conservation’ with respect to native species, ecological communities, biological diversity and ecosystems.[500] Although this does commit decision-makers to make efforts to improve the state of biodiversity in the ACT, I argue that there is scope for these objects clauses to be enhanced.
One means by which the objects of the EPBC Act and the Nature Conservation Act could be improved is by expressing all objects as ‘directing principles’.[501] Directing principles are legally enforceable and guide the implementation of legislation.[502] For example, an objects clause could direct a decision-maker to consider the environmental principles of the World Charter for Nature and the Biodiversity Convention.[503] Directing principles could also be incorporated in objects regarding the engagement of the Australian public, Indigenous and scientific communities, government and business.[504] Mandatory consultation of these parties in decision-making would allow a concerted and culturally-conscious response to biodiversity declines.[505]
Both the Charter and the Convention recognise that the evaluation of conservation methods are crucial processes to effective conservation.[506] Thus, it is imperative that conservation objectives are qualitatively and quantitatively measured.[507] This is essential for supporting adequate resource allocation and public trust in conservation activities.[508] It also requires baseline data to inform the correct status and appropriate outcomes for protected matters.[509] When reinforced by accurate baseline data, an effective environmental management system can utilise quantitative thresholds that trigger the deployment of strong legal tools if the system is at risk of exceeding its thresholds.[510]
Both the EPBC Act and the Nature Conservation Act have been hindered by significant gaps in national data on biodiversity.[511] Much governmental activity pursued under the EPBC Act also remains obscure, including the content of pre-referral discussions and rationales for decision-making in EIA.[512] This lack of transparency creates difficulty in verifying the Act’s contribution to biodiversity outcomes.[513] Thus, both Acts would benefit from the introduction of a requirement to include measurable objectives in all statutory instruments made under them.[514] This would apply to all conservation advices and plans generated at the Commonwealth[515] and territory[516] levels.
Measurable objectives could be incorporated into provisions of the EPBC Act that require conservation-related plans to ‘state criteria against which achievement of objectives is to be measured’.[517] At the territory level, the Nature Conservation Act states that action plans may state requirements for monitoring species and habitats.[518] Similar discretion is afforded to the Conservator with respect to imposing monitoring requirements on native species conservation plans.[519] Hence, the Nature Conservation Act could benefit from mandatory provisions on conservation plans to state criteria against the achievement of measurable biodiversity outcomes – similar to the EPBC Act. This would also increase baseline and continuing data on the condition of biodiversity in the ACT.[520]
Currently, limited reporting and data restricts the development of a comprehensive understanding of the true extent of Australia’s biodiversity loss.[521] Thus, specific performance indicators for both Acts could be improved in a ‘SMART’ (specific, measurable, achievable, relevant, and time-bound) manner to ensure that goals are clear and feasible.[522] By choosing indictors based on measurement endpoints and practical limitations, such as data availability, governments can set clear objectives at the outset of planning and measure distance towards achieving targets.[523]
SMART objectives can also assist to ascertain whether current interventions are helping or hindering biodiversity adaptation to climate change, and whether they constitute efficient use of conservation funds.[524] Effective monitoring and analysis would also bridge the biodiversity data gaps identified in the Biodiversity SoE 2016 and the ACT SoE 2019.[525] Comprehensive data would increase our knowledge of nature,[526] and enable proactive conservation mechanisms that intervene before biodiversity becomes threatened or incurs loss.[527]
Land reservation systems and species listing approaches should be reformed to enable responsiveness to dynamic natural systems.[528] Legal responses to climate-related threats to biodiversity can be optimised through adaptive governance.[529] This takes account of the World Charter for Nature’s principles for safeguarding the long-term capacity of natural systems and initiating timely interventions to prevent adverse effects to nature.[530] This further reflects Australia’s commitment to fulfil art 6 of the Biodiversity Convention to adapt existing national plans for the conservation of biological diversity.[531]
These measures would be premised on the particular susceptibility of Australian biota to the effects of climate change, due to high rates of species endemism and specialisation, narrow species ranges, and limited capacity for independent dispersals.[532] The ability of species to disperse may be restricted by human-altered landscapes, the availability of isolated habitats or the vast terrain of flat landscapes.[533] Only five percent of Australian land is more than 600 metres above sea level.[534] This limited topographic availability diminishes the capacity of many species to adapt independently. However, this context presents an opportunity to introduce more climate-adaptive legal frameworks that can anticipate and respond to environmental changes.[535]
At the Commonwealth level, ensuring the completeness of NRS requires meeting the terms of the Biodiversity Convention’s Aichi Target 11.[536] One of the most important conservation values of the NRS is the wide diversity of native ecosystems and habitat that it provides.[537] This value pertains to coverage of the underlying geographic diversity of the landscape, including the ‘soils, geology, topography and micro-climate’ which determine the distribution and variation of ecosystem types.[538] To the extent that NRS protected areas remain representative of Australia’s biodiversity, the effects of climate are not likely to trigger changes in the species composition and ecosystem types in the next 50 years.[539]
However, there is scope to expand the NRS network to include future climate refugia.[540] Expansion of the NRS estate is plausible via acquisition of land for the public estate or the extension of protected area boundaries to private land reservations.[541] Enhancing the ecological connectivity of protected areas could also be facilitated through use of wildlife corridors and increased restrictions on land use.[542] Where certain areas are likely to be critical to the survival of species – being climate refugia in the event of extreme weather – the creation of ‘moveable reserves’ could be a viable approach at both Commonwealth and ACT levels.[543] Moveable reserves are those which have a temporary protection status and can be altered according to their location, in order to address variable conservation features.[544] For example, temporary protected areas could encompass fish recruitment or provide drought refuges for nomadic species.[545]
Climate-conscious selection criteria to target ecological diversity in the expansion of reserve systems could include:
(1) Areas of habitat at risk of environmental degradation;
(2) Refuges from developmental or climatic disturbances;
(3) Areas of high connectivity between ecosystems and habitats;
(4) Areas that will reduce gaps between existing protected areas; and
(5) Areas that support co-dependent ecological processes.[546]
Finally, adaptive approaches to protected areas will also require active management and funding.[547] This could include offsetting climate-related declines of species using human interventions to restore degraded habitat, deter invasive species, treat disease, supplement feeding or create artificial habitat.[548] By expanding the NRS, the Commonwealth could aim to achieve a net coverage of protected areas that is similar to the ACT, which boasts conservation status for approximately 60 percent of its total land area.[549]
Reform of the EPBC Act and the Nature Conservation Act could also introduce anticipatory listing categories to render ‘the future actionable’.[550] This method would borrow some aspects of the listing category for data deficient native species already found in the Nature Conservation Act, but expand listing protections to species that are ‘potentially at risk’ or ‘likely to be threatened’ by climate change or other factors.[551]
In these cases, there is often insufficient scientific evidence about such species for them to be eligible for listing.[552] For example, a suite of Australian terrestrial and inland water bird species were found to be either sensitive or exposed to the effects of climate change.[553] However, without listing protections, there is currently no legal mechanism at the Commonwealth level to protect those species.[554] Thus, the benefit of anticipatory listing is that it seeks to identify and quantify both the present and future risks to species, with a goal to predict and prevent future decline.[555]
Furthermore, the Nature Conservation Act could be improved via the inclusion of critical habitat listing like the EPBC Act.[556] Although it is defined in the Dictionary to the Nature Conservation Act, there is little reference to critical habitat in the Act besides its consideration in action plans.[557] In contrast, the EPBC Act allows for the listing of habitat if it is critical to the survival of threatened species or ecological communities.[558] Moreover, the scope of critical habitat protection could be expanded to include future climate refugia and important ecological networks.[559] Already, there are pertinent examples in Australia of a willingness to expand habitat protection beyond a species’ known habitat.[560] One example is the approach to critical habitat of the Tasmanian freshwater crayfish, which was recently redefined from ‘all areas currently occupied by the species’ to include habitat within the ‘known’ and ‘likely’ distribution of the species.[561]
Another way to address discrepancies between the Commonwealth and ACT listing regimes would be to integrate the threatened species and ecological communities lists across all national jurisdictions.[562] A single national threatened species list that would then serve to increase the efficiency of listing processes and avoid duplication of assessments or resource uses.[563] The promotion of information-sharing between all levels of government would further facilitate more effective use of conservation funding and allow for nationally-coordinated planning for the protection and recovery of listed species.[564]
If Australia is to remain ‘...one of the most ancient, naturally beautiful and biodiverse places on Earth’, there is still much work to be done.[565] Our human existence is embedded in nature and thus we are intimately connected with the natural environment and its condition.[566] All elements of nature bear a significant importance to humans for their intrinsic value, such that the conservation of biodiversity is a fundamental human obligation.[567] Consequently, it is vital that environmental laws serve to protect these unique environments and reduce the human impacts on biodiversity.
Unfortunately, Australia’s biodiversity continues to decline. The results of the Biodiversity SoE 2016 and the ACT SoE 2019 indicate that the condition of Australian biodiversity is considered poor and worsening.[568] Persistent problems that influence this decline include invasive species, agriculture, land clearing and the associated impacts of climate change.[569] Further, there is limited information to fully understand the impacts of pressures affecting biodiversity due to a lack of long-term data and environmental monitoring across Australian jurisdictions. In order to contend with these issues, Australia needs a robust system of environmental laws that can respond to emergent and continuing threats to biodiversity.
We have seen that the Australian environmental law system is overlain by the international instruments of the World Charter for Nature and the Biodiversity Convention. These documents establish influential codes of conduct for the preservation of nature and have emphasised that the consideration of natural systems is essential to social and economic development.[570] At the Commonwealth and territory levels, the EPBC Act and the Nature Conservation Act are the principal statutes intended to give effect to these principles of international law. However, in the course of this article, I have observed that our biodiversity conservation laws have fallen short of these international standards.
My examination of the objects clauses of both Acts found that the Nature Conservation Act more closely emulated the World Charter for Nature’s prioritisation of conservation as a paramount duty. By contrast, the objects of the EPBC Act were more akin to the Biodiversity Convention, which balances ecological values against other anthropocentric values such as the social or economic importance of nature. Where there were multiple objects clauses, there was further no explicit guidance as to the relative weight to be assigned to each object.
In relation Australia’s land reservation areas, this research found that protected area networks at the Commonwealth level were not sufficient to meet the criteria of Aichi Target 11 under the Biodiversity Convention. While the total land area of protected area networks in the ACT were proportionally higher than those at the Commonwealth level, both regimes failed to account for distributional shifts of migratory species and climate change refugia.[571] In addition, passive management of protected areas has failed to assist conservation efforts due to a heavy reliance on self-regulation.
The classification and listing approaches of the EPBC Act and the Nature Conservation Act were also observed to inadequately provide for the in situ protection of biodiversity. When compared to the EPBC Act, the Nature Conservation Act uniquely provided scope for listing of species in ‘provisional’ and ‘data deficient’ categories. However, both Acts were hindered by insufficient funding and resourcing of conservation efforts, bias in the selection of listed species, biodiversity data gaps and an inability to address the cumulative impacts of developments.
In order to optimally curb biodiversity loss and achieve positive biodiversity outcomes, I make the following recommendations. Firstly, the adoption of an outcomes-driven approach to the drafting of environmental objects clauses could streamline the implementation of Australia’s biodiversity laws. This could involve the setting of a singular conservation objective at the national-level to guide all biodiversity decision-making and the use of directing principles to guide the interpretation of objects clauses.
Second, the use of the SMART method to incorporate measurable objectives and performance indicators in conservation planning can facilitate the collection of comprehensive data on species and ecological communities. This in turn will benefit future management strategies as it will be possible to garner a more accurate assessment of the true condition of Australia’s biodiversity.
Third, there is scope to expand the land area of protected area networks at the territory and Commonwealth levels. Such expansions or the use of moveable reserves must be actively managed and account for the protection of ecological corridors and future climate refugia.
Fourth, listing approaches for threatened species or ecological communities could be improved by including anticipatory listing of ‘potentially at risk’ species. This would also be supported by the extension of critical habitat listing to include future climate refugia and important ecological networks or corridors. Additionally, all national listing approaches could be standardised through the establishment of singular national threatened species and ecological communities lists.
Founded on the values of ‘integrity, transparency and accountability’, I have argued that the reform of Australia’s environmental laws can enable the protection and conservation of our unique biodiversity.[572] In this way, we can work towards forging a future for nature and ensure that Australian laws better reflect the environmental principles espoused by the World Charter for Nature and the Biodiversity Convention.
* Natasha Nguyen is a 202[1] graduate
1 Foundation for National Parks and Wildlife, ‘Conservation’, Why Conservation? (Web Page, 2019) <https://www.fnpw.org.au/about/why-conservation#:~:text=We%20believe%20in%20conservation%2C%20not,a%20better%20future%20for%20all>.
[2] See, eg, Richard Thackway, ‘Significant Trends in Nature Conservation in Australia’ (1997) 17(3) Natural Areas Journal 233, 234-235. See generally Tim Bonyhady, The Colonial Earth (Melbourne University Press, 2002).
[3] Gerry Bates, Environmental Law in Australia (LexisNexis Butterworths, 10th ed, 2019) 1.
[4] Ibid 3.
[5] Ibid.
[6] Rosemary Lyster et al, Environmental and Planning Law in NSW (Federation Press, 4th ed, 2016) 389.
[7] Department of Agriculture, Water and the Environment, Australia’s Sixth National Report to the Convention on Biological Diversity 2014-2018 (Report, 24 March 2020) 160.
[8] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, 99-101 (Deane and Gaudron JJ).
[9] William Jackson et al, ‘Overview’ in Department of Agriculture, Water and the Environment, Australia State of the Environment Report 2016 (Report, 2016) 14.
[10] Australian Bureau of Statistics, Year Book Australia, 2009-10 (Catalogue No. 1301.0, 4 June 2010) 6-8 (‘Year Book Australia’).
[11] Department of Agriculture, Water and the Environment, Threatened Species under the EPBC Act (Web Page, 2021) <https://www.environment.gov.au/biodiversity/threatened/species>.
[12] Commissioner for Sustainability and the Environment, ACT State of the Environment Report 2019 (Report, 13 February 2020) 206 (‘ACT SoE 2019’); Nature Conservation Threatened Native Species List 2020 (ACT).
[13] Note that Indonesia has the highest percentage in the world for biodiversity loss: see Anthony Waldron et al, ‘Reductions in Global Biodiversity Loss Predicted from Conservation Spending’ (2017) 551(7680) Nature 364, 365. See also Timothy Dickson and Katie Woolaston, ‘The Balance of Environmental Protection and Economic Development in Federal Decision-making: An Investigation into Section 74A of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)’ (2021) 38(1) Environmental and Planning Law Journal 22, 23.
[14] Australian Panel of Experts on Environmental Law (APEEL), Terrestrial Biodiversity Conservation and Natural Resource Management (Technical Paper 3, 2017) 3.
[15] Stuart Butchart et al, ‘Global Biodiversity: Indicators of Recent Declines’ (2010) 328(5982) Science 1164, 1168; Gerardo Ceballos et al, ‘Accelerated Modern Human-Induced Species Losses Entering the Sixth Mass Extinction’ (2015) 1(5) Science Advances 1, 3-4.
[16] Sean Maxwell et al, ‘The Ravages of Guns, Nets and Bulldozers’ (2016) 536(7615) Nature 143, 144-145; Rachel Warren et al, ‘Increasing Impacts of Climate Change Upon Ecosystems with Increasing Global Mean Temperature Rise’ (2011) 106(2) Climate Change 141, 165-166.
[17] Report of the United Nations Conference on the Human Environment, UN Doc. A/Conf.48/14/Rev. 1 (16 June 1972) (‘The Stockholm Declaration on the Human Environment’).
[18] Ben Boer, ‘Cultural and Natural Heritage’ (1984) 1 Environmental and Planning Law Journal 112; D E Fisher, ‘The Impact of International Law Upon the Australian Environmental Legal System’ (1999) 16 Environmental and Planning Law Journal 372, 375.
[19] World Charter for Nature, GA Res 37/7, UN Doc A/RES/37/7 (adopted 28 October 1982) art 22.
[20] Ibid art 23.
[21] Ibid.
[22] Principle 7 of the Rio Declaration commits signatories to conserve, protect and restore the health and integrity of the Earth’s ecosystem: see Report of the United Nations Conference on Environment and Development, UN Doc A/CONF.151/26/Rev.1 (vol 1) (12 August 1992) annex 1.
[23] Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993) (‘Biodiversity Convention’).
[24] Bates (n 3) 351.
[25] ‘"In-situ conservation" means the conservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties’: see Biodiversity Convention (n 23) art 2.
[26] ‘"Ex-situ conservation" means the conservation of components of biological diversity outside their natural habitats’: see also Ibid art 2.
[27] Ibid arts 6-10.
[28] Bates (n 3) 349.
[29] Jan McDonald et al, ‘Adaptation Pathways for Conservation Law and Policy’ (2019) 10(1) Wiley Interdisciplinary Reviews: Climate Change 1, 2.
[30] On the failure or inadequacy of environmental responses by government, see Euan Ritchie et al, ‘Continental-Scale Governance and the Hastening of Loss of Australia’s Biodiversity’ (2013) 27(6) Conservation Biology 1133, 1133-1135; Sarah Clement et al, ‘Authority, Responsibility and Process in Australian Biodiversity Policy’ (2015) 32(2) Environmental and Planning Law Journal 93, 103-114.
[31] APEEL, Terrestrial Biodiversity Conservation and Natural Resource Management (n 14) 3.
[32] Ibid.
[33] In relation to the systemic challenges to rural natural resource management and biodiversity protection, see, eg, Paul Martin and Jacqueline Williams, ‘Next Generation Rural Natural Resource Governance: A Careful Diagnosis’ in Volker Mauerhofer (ed), Legal Aspects of Sustainable Development: Horizontal and Sectorial Policy Issues (Springer Publishers, 2015) 607.
[34] Department of Agriculture, Water and the Environment, Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) (Web Page, 2021) <https://www.environment.gov.au/epbc>.
[35] McDonald et al, ‘Adaptation Pathways for Conservation Law and Policy’ (n 29) 2.
[36] Environmental Defenders’ Office, ACT Environmental Law Handbook, ed Camilla Taylor (Environmental Defenders’ Office (ACT), 3rd ed, 2015) 90. For applicable legislation in the ACT, see generally Australian Capital Territory (Planning and Land Management Act 1988 (Cth); Environment Protection Act 1997 (ACT); Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’); Planning and Development Act 2007 (ACT); Water Resources Act 2007 (ACT); Nature Conservation Act 2014 (ACT) (‘Nature Conservation Act’).
[37] EPBC Act (n 36) pt 13. Cf Nature Conservation Act (n 36) ss 69, 111.
[38] Nature Conservation Act (n 36) ch 4.
[39] EPBC Act (n 36) ss 178, 181, 183, 207A, 209, 248.
[40] See eg, Fisher (n 18) 375-377; Bilateral Agreement made under s 45 of the Environment Protection & Biodiversity Conservation Act 1999 (Cth) relating to environmental assessment between the Commonwealth of Australia and the Australian Capital Territory (signed and entered into force 6 June 2014) 3.
[41] Georgina Mace, ‘Whose Conservation?” (2014) 345 (6204) Science 1558, 1559-1560; Richard Pearson, ‘Reasons to Conserve Nature’ (2016) 31(5) Trends in Ecology and Evolution 366, 367.
[42] Planning and Development Act 2007 (n 36) s 9.
[43] On the common law application of the principle of intergenerational equity in Queensland and New South Wales see Gray v Minister for Planning [2006] NSWLEC 720; (2006) 152 LGERA 258; New Acland Coal Pty Ltd v Ashman and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24; New Acland Coal Pty Ltd v Smith [2018] QSC 88; (2018) 230 LGERA 88; Gloucester Resources Ltd v Minister for Planning [2019] NSWLEC 7; (2019) 234 LGERA 257.
[44] Intergovernmental Agreement on the Environment (1992) s 3.5.2, cited in Edward Cleary, ‘Judicial Consideration of Intergenerational Equity in Australian Coal Mine Approval Litigation’ (2021) 38 Environmental and Planning Law Journal 3, 6.
[45] See, eg, Biodiversity Convention (n 23); Convention on International Trade in Endangered Species of Wild Fauna and Flora, opened for signature 3 March 1973, 993 UNTS 243 (entered into force 1 July 1975); Convention on Migratory Species, opened for signature 23 June 1979, 1651 UNTS 333 (entered into force 1 November 1983).
[46] Biodiversity Convention (n 23); Convention on Biological Diversity Secretariat, Australia – National Targets (Web Page, 2020) <https://www.cbd.int/countries/targets/?country=au>.
[47] ACT SoE 2019 (n 12) 16, 204-273, 357-367.
[48] Graeme Samuel, Independent Review of the EPBC Act – Final Report (Final Report, October 2020) 26, 39-56, 191-192 (‘Second Independent Review of the EPBC Act’). Note that there is a statutory provision for review of the EPBC Act at intervals of no more than 10 years since its commencement: EPBC Act (n 36) s 522A(2).
[49] Brian Preston, ‘Benefits of Judicial Specialization in Environmental Law: The Land and Environment Court of New South Wales as a Case Study’ (2012) 29(2) Pace Environmental Law Review 396, 440.
[50] Jean-Louis Martin et al, ‘The Need to Respect Nature and its Limits Challenges Society and Conservation Science’ (2016) 113(22) Proceedings of the National Academy of Sciences 6105, 6111.
[51] Year Book Australia (n 10) 6-8.
[52] Australian Panel of Experts on Environmental Law (APEEL), A Blueprint for the Next Generation of Australian Environmental Laws (Overview Paper, 2017) 1.
[53] Dennis Pearce et al (‘Pearce Committee’), Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission (1987) vol 3, 17, cited in Terry Hutchinson, ‘Developing Legal Research Skills: Expanding the Paradigm’ [2008] MelbULawRw 33; (2008) 32(3) Melbourne University Law Review 1065, 1068.
[54] Mark Van Hoecke, ‘Methodology of Comparative Legal Research’ (2015) 12 Law and Method 1, 21-23.
[55] Ibid.
[56] See, eg, ACT SoE 2019 (n 12); Second Independent Review of the EPBC Act (n 48).
[57] Pearce Committee (n 53) 1068.
[58] Bates (n 3) 53. See also Will Steffen et al, ‘The Anthropocene: Conceptual and Historical Perspectives’ (2011) 369(1938) Philosophical Transactions of the Royal Society 842.
[59] Louis Kotzé, ‘A Global Environmental Constitution for the Anthropocene?’ (2019) 8(1) Transnational Environment Law 11, 12.
[60] Anthony Barnosky et al, ‘Approaching a State Shift in Earth’s Biosphere’ (2012) 486(7401) Nature 52, 57.
[61] Bates (n 3) 53, citing Hayley Stevenson, Global Environmental Politics (Cambridge University Press, 2017) 1.
[62] Ibid.
[63] Hayley Stevenson, Global Environmental Politics (Cambridge University Press, 2017) 142-148.
[64] Ibid 140.
[65] David Hunter et al, International Environmental Law and Policy (Foundation Press, 2nd ed, 2002) vi, quoted in Bates (n 3) 53.
[66] Kotzé (n 59) 12.
[67] Note that the World Charter for Nature was adopted by a majority of 111 votes in favour by member states of the United Nations General Assembly (UNGA) in 1982, while the Biodiversity Convention was opened for signature on 5 June 1992 at the Rio ‘Earth Summit’, and remained open for signature until 4 June 1993, by which time it had received 168 signatures and was adopted by the United Nations Environment Program (UNEP): see Convention on Biological Diversity Secretariat, History of the Convention (Web Page, 31 August 2021) <https://www.cbd.int/history/>.
[68] Peter Jackson, ‘A World Charter for Nature’ (1983) 12(2) Ambio 133.
[69] The majority vote consisted of 111 votes in favour, 18 abstentions and a single dissenting vote from the United States: see 'World Charter for Nature' (1983) 10(2) Environmental Policy and Law 37, 41.
[70] Max Herriman et al, Australia’s Oceans Policy, International Agreements, Background Paper 2: Review of International Agreements, Conventions, Obligations and Other Instruments Influencing Use and Management of Australia’s Marine Environment (Report, October 1997) [18.8], cited in Only One Planet, World Charter for Nature (Web Page, 2021) <http://www.onlyoneplanet.com/World_charter_for_nature_1982.htm#:~:text=The%20World%20Charter%20for%20Nature%20is%20a%20non%2Dbinding%20international,provisions%20in%20a%20general%20way.> .
[71] Philippe Sands et al, Principles of International Environmental Law (Cambridge University Press, 3rd ed, 2012) 37.
[72] For the use of ‘nature’ in other global declarations, see, eg, Harmony with Nature, GA Res 64/169, UN Doc A/RES/64/169 (12 February 2010, adopted 21 December 2009).
[73] For the use of ‘environment’ in other global declarations, see, eg, Global Pact for the Environment (La Sorbonne, Paris, 24 June 2017) <https://www.iucn.org/sites/dev/files/content/documents/draft-project-of-the-global-pact-for-the-environment.pdf>; Towards a Global Pact for the Environment, GA Res 72/277, UN Doc A/RES/77/277 (14 May 2018, adopted 10 May 2018).
[74] World Charter for Nature (n 19) Preamble.
[75] Pearson (n 41) 367.
[76] John Vucetich et al, ‘Evaluating Whether Nature’s Intrinsic Value is an Axiom or Anathema to Conservation’ (2015) 29(2) Conservation Biology 321, 322-323.
[77] The ‘services’ may include natural processes such as decomposition, pollination, water purification or climate regulation, or even the aesthetic value of nature to humans: see Pearson (n 41) 367.
[78] Kotzé (n 59) 29.
[79] See, eg, The Stockholm Declaration on the Human Environment’ (n 17).
[80] See, eg, Report of the United Nations Conference on Environment and Development (n 22).
[81] World Charter for Nature (n 19) Preamble.
[82] Louis Kotzé and Duncan French, 'The Anthropocentric Ontology of International Environmental Law and the Sustainable Development Goals: Towards an Ecocentric Rule of Law in the Anthropocene' (2018) 7(1) Global Journal of Comparative Law 5, 33.
[83] Ibid.
[84] Kotzé (n 59) 30.
[85] World Charter for Nature (n 19) Preamble.
[86] Kotzé and Duncan French (n 82) 34.
[87] World Charter for Nature (n 19) Preamble.
[88] Ibid.
[89] Ibid arts 1-5.
[90] Ibid arts 6-13.
[91] Ibid arts 14-24.
[92] Ibid art 2.
[93] Ibid art 3.
[94] Ibid art 4.
[95] Ibid art 5.
[96] Kotzé (n 59) 30.
[97] Harold Wood Jr, ‘The United Nations World Charter for Nature: The Developing Nations' Initiative to Establish Protections for the Environment’ (1985) 12(4) Ecology Law Quarterly 977, 980-981.
[98] World Charter for Nature (n 19) art 10(d).
[99] Ibid art 11(a).
[100] Ibid art 11(c).
[101] Ibid art 10(b).
[102] Ibid art 10(c).
[103] Ibid art 11(d).
[104] Ibid arts 11, 13.
[105] Wood Jr (n 97) 981.
[106] World Charter for Nature (n 19) art 14.
[107] Ibid art 15.
[108] Ibid art 16.
[109] Ibid art 17.
[110] Ibid art 18.
[111] Ibid art 19.
[112] Ibid art 20.
[113] Ibid art 21.
[114] Ibid art 22.
[115] Ibid art 23.
[116] Ibid art 24.
[117] James May and Erin Daly, Global Environmental Constitutionalism (Cambridge University Press, 2015) 56; Rachel Pepper and Harry Hobbs, ‘The Environment is All Rights: Human Rights, Constitutional Rights and Environmental Rights’ [2020] MelbULawRw 19; (2020) 44(2) Melbourne University Law Review 1, 15-16; Sophie Tepper, ‘Climate Change Risk and the Urban Landscape’ (2020) 37(3) Environmental and Planning Law Journal 403, 408.
[118] Herriman et al (n 70) [18.8].
[119] Kotzé and French (n 82) 33.
[120] Brendan Mackey, ‘The Earth Charter and Ecological Integrity – Some Policy Implications’ (2004) 8(1) World Views 76, 85.
[121] Jurgen Moltmann, ‘Reconciliation with Nature’ (1991) 11(2) World and World 117, 121.
[122] The Convention was ratified with over 170 other countries. Note also that it was one of three international environmental agreements concluded at the Earth Summit – the other two agreements were the Framework Convention on Climate Change and the Convention to Combat Desertification.
[123] Annette Davison et al, ‘Microorganisms, Australia and the Convention on Biological Diversity’ (1999) 8(10) Biodiversity and Conservation 1399, 1402.
[124] Biodiversity Convention (n 23) art 1.
[125] Lyle Glowka et al, A Guide to the Convention on Biological Diversity (IUCN Gland and Cambridge, 1994) 3.
[126] Emma Carmody, ‘The Silence of the Plan: Will the Convention on Biological Diversity and the Ramsar Convention be implemented in the Murray Darling Basin?’ (2013) 30(1) Environmental and Planning Law Journal 56, 63 quoting Alan Boyle and Patricia Birnie, International Law and the Environment (Oxford University Press, 2nd ed, 2002) 568.
[127] Glowka et al (n 125) 1.
[128] Carmody (n 126) 63.
[129] Stuart Harrop, ‘‘Living In Harmony With Nature’? Outcomes of the 2010 Nagoya Conference of the Convention on Biological Diversity’ (2011) 23(1) Journal of Environmental Law 117.
[130] Susan Bragdon, ‘The Convention on Biological Diversity’ (1996) 6(2) Global Environmental Change 177, 178.
[131] Biodiversity Convention (n 23) Preamble.
[132] Ibid art 3.
[133] Ibid art 4.
[134] See, eg, Biodiversity Convention, COP 3, Decision III/9 – Implementation of Articles 6 and 8 of the Convention (4-15 November 1996), which reaffirms the importance of the implementation of all parties of national strategies, plans and programmes for biodiversity conservation.
[135] Report of the Executive Secretary of the Convention on Biological Diversity: Implementation of the Convention on Biological Diversity (Background Paper 1, 2002) 4-5.
[136] Carmody (n 126) 64.
[137] Biodiversity Convention (n 23) art 6; Glowka et al (n 125) 29.
[138] Biodiversity Convention (n 23) art 7(a)-(d).
[139] Ibid art 7(d).
[140] See, eg, Biodiversity Convention, COP 3, Decision III/10 - Identification, Monitoring And Assessment, UNEP/CBD/COP/3/38 (4 to 15 November 1996); Biodiversity Convention, COP 5, Decision V/7 - Identification, Monitoring and Assessment, and Indicators, UNEP/CBD/COP/5/23 (15 to 26 May 2000); Biodiversity Convention, COP 6, Decision VI/7 - Identification, Monitoring, Indicators and Assessments, UNEP/CBD/COP/6/20 (7 to 19 April 2002).
[141] Note that Australian courts have interpreted the requirement ‘to promote’ as not giving rise to an obligation to ‘look to the effect’ of a particular action: see New South Wales Council for Civil Liberties Inc v Classification Review Board (No 2) [2007] FCA 896; (2007) 159 FCR 108.
[142] Biodiversity Convention (n 23) art 8(a).
[143] Ibid art 8(b)
[144] Ibid art 8(c).
[145] Ibid art 8(f).
[146] Ibid art 8(g).
[147] Ibid art 8(h).
[148] Ibid art 8(j).
[149] Ibid art 8(k).
[150] Ibid art 8(l).
[151] Ibid art 8(m).
[152] Ibid art 8(d).
[153] Ibid art 8(e).
[154] Ibid art 8(i).
[155] See Biodiversity Convention, COP 2, Decision II/7 – Consideration of Articles 6 and 8 of the Convention, UNEP/CBD/COP/2/19 (4 to 8 September 1995); Biodiversity Convention, COP 3, Decision III/9 - Implementation of Articles 6 and 8 of the Convention, UNEP/CBD/COP/3/38 (4 to 15 November 1996); Biodiversity Convention, COP 7, Decision VII/13 – Alien species that threaten ecosystems, habitats or species (Article 8 (h)), UNEP/CBD/COP/DEC/VII/13 (13 April 2004); Biodiversity Convention, COP 7, Decision VII/16 – Article 8(j) and related provisions, UNEP/CBD/COP/DEC/VII/16 (13 April 2004); Biodiversity Convention, COP 8, Decision VIII/5 – Article 8(j) and related provisions, UNEP/CBD/COP/DEC/VIII/5 (15 June 2006); Biodiversity Convention, COP 8, Decision VIII/27 – Alien species that threaten ecosystems, habitats or species (Article 8 (h)): further consideration of gaps and inconsistencies in the international regulatory framework, UNEP/CBD/COP/DEC/VIII/27 (15 June 2006); Biodiversity Convention, COP 9, Decision IX/13 – Article 8(j) and related provisions, UNEP/CBD/COP/DEC/IX/13 (9 October 2008); Biodiversity Convention, COP 10, Decision X/43 – Multi-year programme of work on the implementation of Article 8(j) and related provisions of the Convention on Biological Diversity, UNEP/CBD/COP/DEC/X/43 (29 October 2010); Biodiversity Convention, COP 11, Decision XI/14 – Progress in the implementation of Article 8(j) and related provisions and its integration into the various areas of work under the Convention on Biological Diversity, UNEP/CBD/COP/DEC/XI/14 (5 December 2012); Biodiversity Convention, COP 12, Decision XII/12 – Article 8(j) and related provisions, UNEP/CBD/COP/DEC/XII/12 (13 October 2014); Biodiversity Convention, COP 13, Decision XIII/18 – Article 8(j) and related provisions, CBD/COP/DEC/XIII/18 (17 December 2016); Biodiversity Convention, COP 13, Decision XIII/19 – Article 8(j) and related Articles: other matters related to the programme of work, CBD/COP/DEC/XIII/19 (12 December 2016); Biodiversity Convention, COP 14, Decision 14/13 – Glossary of relevant key terms and concepts within the context of Article 8(j) and related provisions, CBD/COP/DEC/14/13 (30 November 2018); Biodiversity Convention, COP 14, Decision 14/14 – Other matters related to Article 8(j) and related provisions, CBD/COP/DEC/14/14 (30 November 2018); Biodiversity Convention, COP 14, Decision 14/17 – Integration of Article 8(j) and provisions related to indigenous peoples and local communities in the work of the Convention and its Protocols, CBD/COP/DEC/14/17 (30 November 2018).
[156] Biodiversity Convention (n 23) art 10(a).
[157] Ibid art 10(b).
[158] Ibid art 10(e).
[159] Ibid art 10(c).
[160] Ibid art 10(d).
[161] See Biodiversity Convention, COP 7, Decision VII/12 – Sustainable Use (Article 10), UNEP/CBD/COP/DEC/VII/12 (13 April 2004).
[162] Fisher (n 18) 377.
[163] Joshua Bruckerhoff, ‘Giving Nature Constitutional Protection: A Less Anthropocentric Interpretation of Environmental Rights’ (2008) 86(3) Texas Law Review 615, 618.
[164] See, eg, World Charter for Nature (n 19) arts 1, 5, 7, 11, 13, 15-21.
[165] Susan Emmenegger and Axel Tschentscher, ‘Taking Nature’s Rights Seriously: The Long Way to Biocentrism in Environmental Law’ (1994) 6(3) Georgetown International Environmental Law Review 545, 571.
[166] Biodiversity Convention (n 23) Preamble.
[167] Given that the intrinsic and ‘ecological’ values of biodiversity are expressed first, this potentially emphasises their relative importance compared to other comparators. Indeed however, most of the values listed in the Biodiversity Convention are anthropocentric: see Ibid; Emmenegger and Tschentscher (n 165) 568.
[168] Peter Burdon, ‘A Theory of Earth Jurisprudence’ (2012) 37 Australian Journal of Legal Philosophy 28, 30-31, 50; Dickson and Woolaston (n 13) 24-25.
[169] Ibid.
[170] Jan McDonald et al, 'Promoting Resilience to Climate Change in Australian Conservation Law: The Case of Biodiversity Offsets' [2016] UNSWLawJl 61; (2016) 39(4) University of New South Wales Law Journal 1612, 1616.
[171] Ibid 1617.
[172] Relevant legislation is at the territory and federal level: see, eg, EPBC Act (n 36); Nature Conservation Act (n 36). See also National Parks and Wildlife Act 1972 (SA); National Parks and Wildlife Act 1974 (NSW) pt 4; Conservation, Forests and Lands Act 1987 (Vic); Nature Conservation Act 1992 (Qld).
[173] Bates (n 3) 353.
[174] Intergovernmental Agreement on the Environment (n 44) sch 9.
[175] This covers 19.75 percent of the country (over 151.8 million hectares): see Natural Resource Management Ministerial Council, Australia's Strategy for the National Reserve System 2009-2030 (2009) 4.
[176] Bates (n 3) 353.
[177] Department of Agriculture, Water and the Environment, National Reserve System (Web Page, 2021) <https://www.environment.gov.au/land/nrs>.
[178] McDonald et al, 'Promoting Resilience to Climate Change in Australian Conservation Law: The Case of Biodiversity Offsets' (n 170) 1617.
[179] Relevant legislation is at the territory and federal level: see, eg, EPBC Act (n 36); Nature Conservation Act (n 36). See also National Parks and Wildlife Act 1972 (n 172); Flora and Fauna Guarantee Act 1988 (Vic); Nature Conservation Act 1992 (n 172); Threatened Species Protection Act 1995 (Tas); Biodiversity Conservation Act 2016 (NSW); Biodiversity Conservation Act 2016 (WA).
[180] Bates (n 3) 354.
[181] See EPBC Act (n 36) s 19; Nature Conservation Act (n 36) s 262.
[182] See EPBC Act (n 36) s 18. See also generally Nature Conservation Act (n 36) ch 6.
[183] See EPBC Act (n 36) s 527E, pts 7, 9; Nature Conservation Act (n 36) ss 268-269. For discussion of the inclusion of indirect influences or effects of an action with the meaning of ‘impact’: see Minister for Environment and Heritage v Queensland Conservation Council Inc (2004) 139 FCR 24, 38 (Black CJ, Ryan and Finn JJ).
[184] See, eg, Water Act 2007 (Cth); Water Resources Act 2007 (n 36). See also Water Act 1989 (Vic); Water Act 1992 (NT); Water Management Act 1999 (Tas); Water Management Act 2000 (NSW); Water Act 2000 (Qld).
[185] See, eg, Council of Australian Governments (COAG), Standing Council on Environment and Water, Australia’s Native Vegetation Framework (2012); ACT Government, ACT Nature Conservation Strategy 2013–23 (2013). See also Native Vegetation Act 1991 (SA); Vegetation Management Act 1999 (Qld); Nature Conservation Act (n 36) ch 3; Local Land Services Act 2013 (NSW) pt 5A; Biodiversity Conservation Act 2016 (n 179) pt 12 div 7.
[186] See, eg, ACT Government, ACT and Region Catchment Strategy 2016–46 (2016). See also Soil and Land Conservation Act 1945 (WA); Conservation and Land Management Act 1984 (WA); Catchment and Land Protection Act 1994 (Vic); Water NSW Act 2014 (NSW); Landscape South Australia Act 2019 (SA).
[187] McDonald et al, 'Promoting Resilience to Climate Change in Australian Conservation Law: The Case of Biodiversity Offsets' (n 170) 1617.
[188] Department of Agriculture, Water and the Environment, About the EPBC Act (Web Page, 2021) <https://www.environment.gov.au/epbc/about>.
[189] Council of Australian Governments (COAG), Heads of Agreement on Commonwealth and State Roles and Responsibilities for the Environment (1997).
[190] EPBC Act (n 36) s 3(1)(a).
[191] Ibid s 3(1)(b).
[192] Ibid s 3(1)(c).
[193] Ibid s 3(1)(ca).
[194] Ibid s 3(1)(d).
[195] Ibid s 3(1)(e).
[196] Ibid s 3(1)(f).
[197] Ibid s 3(1)(g).
[198] Ibid pt 3 div 1.
[199] Presently, Australia has 20 properties on the World Heritage List: see Department of Agriculture, Water and the Environment, Australia's World Heritage List (Web Page, 2021) <https://www.environment.gov.au/heritage/places/world-heritage-list>.
[200] See Convention Concerning the Protection of the World Cultural and Natural Heritage, opened for signature 16 November 1972, 1037 UNTS 151 (entered into force 17 December 1975) (‘World Heritage Convention’) art 11.
[201] Bates (n 3) 358.
[202] [1983] HCA 21; (1983) 158 CLR 1 (‘Tasmanian Dams Case’).
[203] Ibid 5. See also Murray Raff, ‘Climate Litigation in Australia’ (2021) 12(4) ANU Centre for European Studies Briefing Paper Series 1, 9-10.
[204] EPBC Act (n 36) ss 12, 15A. On the application of the World Heritage Convention, see generally David Haigh, ‘World Heritage: Principle and Practice: A Case for Change’ (2000) 17(3) Environmental and Planning Law Journal 199; David Haigh, ‘Australian World Heritage, the Constitution and International Law’ (2005) 22(5) Environmental and Planning Law Journal 385.
[205] [2001] FCA 1453 (‘The Flying Fox Case’).
[206] Note that the respondent’s private land was within the Wet Tropics World Heritage Area: see Department of Agriculture, Water and the Environment, Australia's World Heritage List (n 199). The flying foxes played an important role in pollinating plants within the world heritage area, so loss of them affected the world heritage values of the area.
[207] Chris McGrath, ‘The Flying Fox Case’ (2001) 18(6) Environmental and Planning Law Journal 540, 542.
[208] The Flying Fox Case (n 205) [115].
[209] EPBC Act (n 36) Pt 15; Rachel Miller et al, ‘Protecting Migratory Species in the Australian Marine Environment: A Cross-Jurisdictional Analysis of Policy and Management Plans’ (2018) 5(229) Frontiers in Marine Science 1, 3, 10.
[210] EPBC Act (n 36) s 316(1).
[211] Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) (‘EPBC Regulations’) sch 5. For the extent of inquiry necessary to be undertaken by the Minister with respect to the impact of a proposed development activity on a World Heritage Area: see, eg, Queensland Conservation Council Inc v Minister for the Environment and Heritage [2003] FCA 1463.
[212] EPBC Act (n 36) s 22.
[213] Convention on Wetlands of International Importance especially as Waterfowl Habitat, opened for signature 2 February 1971, 996 UNTS 245 (entered into force 21 December 1975); EPBC Act (n 36) s 17(1).
[214] The international significance of the wetland may relate, for example, to its ecology, botany, zoology, limnology or hydrology: see EPBC Act (n 36) ss 17(2) and 17A.
[215] [2004] FCA 1317 [1]-[2] (Sackville J).
[216] Ibid ss 328-334.
[217] See EPBC Regulations (n 211) sch 6. Note also that state management plans and authorisation processes relevant to Ramsar wetlands can also be accredited under bilateral agreements: see EPBC Act (n 36) s 45(2).
[218] See EPBC Act (n 36) ss 24, 344, 345, 345A.
[219] Land in this context means the land of a State or self-governing Territory (except the Northern Territory) or the Northern Territory outside both Uluru-Kata Tjuta National Park and the Alligator Rivers Region (as defined by the Environment Protection (Alligator Rivers Region) Act 1978 (Cth)): see Ibid s 344(2)(a)(i)-(ii).
[220] Ibid s 344(2).
[221] Ibid s 351.
[222] The IUCN is the International Union for Conservation of Nature: see International Union for Conservation of Nature, IUCN (Web Page, 2021) <https://www.iucn.org/>.
[223] EPBC Act (n 36) ss 346-347.
[224] EPBC Regulations (n 211) reg 10.03H.
[225] A usage right is an estate or a legal or equitable charge, power, privilege, authority license or permit: EPBC Act (n 36) s 350(7).
[226] Ibid s 366-367.
[227] Ibid Pt 12, s 354(1). For cases involving contraventions of s 354(1) or contrary activities to Commonwealth reserve management plans, see Minister for the Environment and Heritage v Wilson [2004] FCA 6; Minister for the Environment and Heritage v Warne [2007] FCA 599; Minister for the Environment v Thermal Dell Pty Ltd [2014] FCA 1442; Minister for the Environment and Heritage v Karstens [2015] FCA 649; Minister for the Environment v Hansen [2016] FCA 1146.
[228] EPBC Act (n 36) s 357. With respect to the Australia IUCN reserve management principles for each management category, see EPBC Act (n 36) s 348; EPBC Regulation (n 211) sch 8.
[229] EPBC Act (n 36) ss 390C, 390D, 390J.
[230] See EPBC Regulations (n 211) reg 13.02.
[231] EPBC Act (n 36) ss 390E, 390H.
[232] Ibid ss 305, 306, 306A, 307.
[233] Ibid s 305(2)(i).
[234] Ibid s 305(6). Note that the Minister must take into account these particular provisions of these two documents: see Biodiversity Convention (n 23) arts 8(j), 10(c), 18(4); Department of the Environment, Sport and Territories, National Strategy for the Conservation of Australia’s Biological Diversity (1996) objective 1.8.2. Note also that there have been newer iterations to this Strategy: see Natural Resource Management Ministerial Council, Australia's Biodiversity Conservation Strategy 2010-2030 (2010).
[235] EPBC Act (n 36) s 305(2)(ii).
[236] For example, by an application for injunction to the Federal Court: see Ibid s 476.
[237] Ibid s 307.
[238] This includes six Commonwealth National Parks, the Australian National Botanic Gardens and 58 Commonwealth Marine Parks: see Department of Agriculture, Water and the Environment, National Parks (Web Page, 2021) <https://www.environment.gov.au/topics/national-parks>.
[239] Bates (n 3) 397-402.
[240] EPBC Act (n 36) ss 178, 181.
[241] Bates (n 3) 398.
[242] This Convention has since been ratified in Australia: see Convention on International Trade in Endangered Species of Wild Fauna and Flora (n 45).
[243] See Ibid apps I, II , III.
[244] EPBC Act (n 36) ss 303CC, 303CD, 303DD, 303EK.
[245] See R v Robinson (1992) 62 A Crim R 374; Klein v R (1989) 39 A Crim 332; Spreitzer v R (1991) 58 A Crim R 114, cited in Bates (n 3) 400.
[246] [1986] HCA 43; (1986) 66 ALR 287, 294 (Deane J).
[247] Prohibitions on interstate trade could be complicated by the freedom of trade provisions in s 92 of the Constitution: see Brian Preston, ‘Section 92 and Interstate Trade in Wildlife: A Moral Question’ (1987) 4 Environmental and Planning Law Journal 175, 176-178.
[248] Endangered Species Protection Act 1992 (Cth) schs 1-2.
[249] The International Union for Conservation of Nature Red List of Threatened Species, founded in 1964, is the world's most comprehensive information source on the global extinction risk status of animal, fungus and plant species: see International Union for Conservation of Nature, IUCN Red List of Threatened Species (Web Page, 2021) <https://www.iucn.org/resources/conservation-tools/iucn-red-list-threatened-species>.
[250] EPBC Act (n 36) s 178(1). See also Department of Agriculture, Water and the Environment, EPBC Act List of Threatened Fauna (Web Page, 2021) <https://www.environment.gov.au/cgi-bin/sprat/public/publicthreatenedlist.pl>.
[251] Also defined as assemblages of natives species in particular areas of nature: see EPBC Act (n 36) s 528. See also Department of Agriculture, Water and the Environment, EPBC Act List of Threatened Ecological Communities (Web Page, 2021) <http://www.environment.gov.au/cgi-bin/sprat/public/publiclookupcommunities.pl> .
[252] EPBC Act (n 36) s 181.
[253] In relation to listing criteria for threatened species: see Ibid s 179. In relation to listing criteria for threatened ecological communities: see Ibid s 182.
[254] EPBC Regulations (n 211) reg 7.01-7.02.
[255] The Minister must provide have regard to such advice and provide approval in writing: see, eg, Tarkine National Coalition Inc v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCA 694; Tarkine National Coalition Inc v Minister for the Environment [2015] FCAFC 89.
[256] Except one that is extinct or that is a conservation dependent species: EPBC Act (n 36) s 266B(1).
[257] Ibid s 266B.
[258] Ibid s 266B(2)(a)-(b).
[259] The Minister may amend any list referred to in ss 178, 181 or 183 of the EPBC Act (n 36): see Ibid s 184.
[260] Ibid ss 178(4), 181(4), 184-187, 189-190, 194, 194E. With respect to the criteria for nominations: see EPBC Regulations (n 211) div 7.2. Note also that the TSSC is a body established under ss 502 and 503 of the EPBC Act (n 36).
[261] Department of Agriculture, Water and the Environment, Listed Key Threatening Processes (Web Page, 2021) <http://www.environment.gov.au/cgi-bin/sprat/public/publicgetkeythreats.pl> .
[262] EPBC Act (n 36) ss 183, 188.
[263] See Department of Agriculture, Water and the Environment, Listed Key Threatening Processes (n 259).
[264] EPBC Act (n 36) ss 270(1), 270A, 271(1), 285, 287-298, 464-465.
[265] On the assessment of ‘significant impact’ in relation to nationally protected Grey Box Woodlands and Grasslands, see Henderson v Corporation of the City of Adelaide (No 2) [2012] FCA 9.
[266] EPBC Act (n 36) ss 18, 18A, 19. In relation to other offence provisions related to taking, killing or injuring a threatened species for ecological community in a Commonwealth area, see also ss 196, 196A, 196B, 196C, 196D, 196E, 197, 198 207B.
[267] [2009] FCA 753 [19]-[80] (Mansfield J).
[269] Note that the Nature Conservation Act was passed by the ACT Legislative Assembly on 27 November 2014: see Environment, Planning and Sustainable Development Directorate, Nature Conservation Act 2014 (Web Page, 2021) <https://www.environment.act.gov.au/nature-conservation/nature-conservation-act-2014>.
[270] Ibid.
[271] Ibid.
[272] Nature Conservation Act (n 36) s 6(1).
[273] Ibid s 6(2)(a)(i).
[274] Ibid s 6(2)(a)(ii).
[275] Ibid s 6(2)(a)(iii).
[276] Ibid s 6(2)(a)(iv).
[277] Ibid s 6(2)(a)(v).
[278] Ibid s 6(2)(b).
[279] Ibid s 6(2)(c).
[280] Ibid s 6(2)(d).
[281] Ibid s 6(2)(e).
[282] Ibid s 6(2)(f).
[283] Ibid s 6(2)(g).
[284] Ibid s 6(2)(h).
[285] Planning and Development Act 2007 (n 36) s 315.
[286] Ibid ss 316-317.
[287] Ibid sch 3.
[288] Ibid.
[289] Ibid ss 173-174.
[290] Ibid pt 8.3.
[291] Ibid s 6.
[292] Ibid ss 11-17.
[293] Ibid s 21.
[294] Ibid ss 63, 69, 76.
[295] Being a list notified under Ibid s 91.
[296] Ibid s 63(2).
[297] Ibid s 63(3).
[298] Ibid s 69.
[299] Ibid ss 111-112.
[300] Ibid s 111(2).
[301] The Conservator may make a native species conservation plan for a species that has special protection status: see Ibid s 117(a).
[302] Ibid s 109. See also EPBC Act (n 36) s 528.
[303] See Department of Agriculture, Water and the Environment, EPBC Act List of Threatened Fauna (n 250).
[304] Nature Conservation Act (n 36) ss 90C, 90E.
[305] Eligibility for the threatened native species list is dealt with in s 64 and s64A. Eligibility for the threatened ecological communities list is dealt with in s70. Eligibility for the key threatening processes list is dealt with in s 77.
[306] Nature Conservation Act (n 36) ss 90B, 90C(3).
[307] Ibid ss 115-117.
[308] Ibid s 124.
[309] Ibid s 130. See also Bannister v Bowen (1985) 65 ACTR 3, cited in Bates (n 3) 418.
[310] See, eg, Preston v Carnall [2015] ACTSC 325.
[311] See generally, Nature Conservation Act (n 36) divs 6.1.2-6.1.3.
[312] See generally, Ibid pt 6.2. A license may include a nature conservation license under s 262 of the Nature Conservation Act (n 36), a public unleased land permit or a licence under s 303 of the Planning and Development Act 2007 (n 36). A declaration may include a restricted activity under an activities declaration by the Conservator, dealt with by s 256 of the Nature Conservation Act (n 36). Management agreements may include a management agreement under s 310, a controlled native species management plan under s 158, a cultural resource management plan under s 168A, or a fisheries resource management plan: see also Nature Conservation Act (n 36).
[313] Australian Panel of Experts on Environmental Law (APEEL), Our Panel (Web Page, 2021) <http://apeel.org.au/expert-panel> .
[314] APEEL, A Blueprint for the Next Generation of Australian Environmental Laws (n 52) 4.
[315] Ibid.
[316] APEEL, Terrestrial Biodiversity Conservation and Natural Resource Management (n 14) 10.
[317] Ibid.
[318] Leanne Claire Cullen-Unsworth et al, ‘A Research Process for Integrating Indigenous and Scientific Knowledge in Cultural Landscapes: Principles and Determinants of Success in the Wet Tropics World Heritage Area, Australia’ (2012) 178(4) The Geographical Journal 351, 352. See also Nature Conservation Act (n 36) s 6(2)(e); EPBC Act (n 36) ss 3(1)(d), 3(1)(f)-(g).
[319] Rosemary Hill, ‘Towards Equity in Indigenous Co-Management of Protected Areas: Cultural Planning by Miriuwung-Gajerrong People in the Kimberley, Western Australia’ (2011) 49(1) Geographical Research 72, 83. See also Biodiversity Convention (n 23) art 8(j).
[320] APEEL, Terrestrial Biodiversity Conservation and Natural Resource Management (n 14) 10.
[321] Also known as ‘Environmental Impact Assessment’ (EIA).
[322] APEEL, Terrestrial Biodiversity Conservation and Natural Resource Management (n 14) 10.
[323] For the work of Landcare groups in Australia to increase biodiversity, eliminate invasive species and promote sustainable land-use practices, see Guy Fitzhardinge, ‘Landcare and Private Conservation Trusts: Fertile Common Ground?’ (2006) 7(1) Ecological Management and Restoration 3; Genevieve Simpson and Julian Clifton, ‘Funding and Facilitation: Implications of Changing Government Policy for the Future of Voluntary Landcare Groups in Western Australia’ (2010) 41(3) Australian Geographer 403; Shaun McKiernan, ‘Managing invasive plants in a rural-amenity landscape: the role of social capital and Landcare’ (2018) 61(8) Journal of Environmental Planning and Management 1419.
[324] APEEL, Terrestrial Biodiversity Conservation and Natural Resource Management (n 14) 10.
[325] Ibid.
[326] Ibid.
[327] Department of Agriculture, Water and the Environment, State of the Environment (SoE) Reporting (Web Page, 2021) <https://www.environment.gov.au/node/23077/backlinks>.
[328] See Ian Cresswell and Helen Murphy, ‘Biodiversity’ in Department of Agriculture, Water and the Environment, Australia State of the Environment Report 2016 (n 9) iii-iv (‘Biodiversity SoE 2016’).
[329] Commissioner for Sustainability and the Environment Act 1993 (ACT) s 19.
[330] See ACT SoE 2019 (n 12).
[331] Biodiversity SoE 2016 (n 328) 10.
[332] Ibid 14.
[333] Ibid 42.
[334] See John Woinarski et al, The Action Plan for Australian Mammals 2012 (CSIRO Publishing, 2014).
[335] See, eg, Birdlife Australia, The State of Australia’s Birds 2015 (Report, 2015); Rob Clemens et al, Australian Bird Index Phase 2 – Developing Waterbird Indices for National Reporting (Report, October 2019).
[336] See Department of Agriculture, Water and the Environment, EPBC Act List of Threatened Ecological Communities (n 251).
[337] Biodiversity SoE 2016 (n 328) 42.
[338] These species being both flora and a fauna: see Ibid; Department of Agriculture, Water and the Environment, EPBC Act List of Threatened Fauna (n 250); Department of Agriculture, Water and the Environment, EPBC Act List of Threatened Flora (Web Page, 2021) <https://www.environment.gov.au/cgi-bin/sprat/public/publicthreatenedlist.pl?wanted=flora>.
[339] Biodiversity SoE 2016 (n 328) 42, 48-79.
[340] Ibid 65, 68-69.
[341] Ibid 59-62.
[342] Ibid 71-72.
[343] Ibid 87.
[344] Ibid 74-79.
[345] Ibid 80-86, 94-101.
[346] Ibid 14.
[347] Ibid. See also ACT SoE 2019 (n 12) 209.
[348] Biodiversity SoE 2016 (n 328) 14.
[349] Ibid; ACT SoE 2019 (n 12) 229.
[350] See Nature Conservation Threatened Native Species List 2020 (n 12).
[351] ACT SoE 2019 (n 12) 208, 214.
[352] Each of these species is concurrently listed as ‘critically endangered’ under the EPBC Act: see Department of Agriculture, Water and the Environment, EPBC Act List of Threatened Fauna (n 250); Department of Agriculture, Water and the Environment, EPBC Act List of Threatened Flora (n 338).
[353] This ecological community is consistent with the ‘Natural Temperate Grassland of the South Eastern Highlands’ ecological community listed under the EPBC Act: see Department of Agriculture, Water and the Environment, EPBC Act List of Threatened Ecological Communities (n 251).
[354] This ecological community is consistent with the ‘White Box – Yellow Box – Blakely’s Red Gum Grassy Woodland and Derived Native Grassland’ ecological community listed under the EPBC Act: see Ibid.
[355] This ecological community is consistent with the ‘Alpine Sphagnum Bogs and Associated Fens’ ecological community listed under the EPBC Act: see Ibid.
[356] See Nature Conservation Threatened Ecological Communities List 2020 (ACT); ACT SoE 2019 (n 12) 219.
[357] See Nature Conservation Key Threatening Processes List 2018 (No 1) (ACT); ACT SoE 2019 (n 12) 222.
[358] Nature Conservation (Loss of Mature Native Trees) Conservation Advice 2018 (ACT). Note also that these named species are all listed as vulnerable in the ACT: see Nature Conservation Threatened Native Species List 2020 (n 12).
[359] This proportion is approximately 60 percent of the total land area of the ACT and is a significantly higher proportion compared to other jurisdictions: see ACT SoE 2019 (n 12) 223.
[360] Ibid 12.
[361] For further discussion of the function and purpose of biodiversity offsets, see Martin Fallding, ‘Biodiversity Offsets: Practice and Promise’ (2014) 31(1) Environmental and Planning Law Journal 11, 12-13; Brian Preston, ‘Biodiversity Offsets: Adequacy and Efficacy in Theory and Practice’ (2016) 33(2) Environmental and Planning Law Journal 93, 96-98.
[362] ACT SoE 2019 (n 12) 209.
[363] Ibid 222; EPBC Act (n 36) ch 2 pt 3; Planning and Development Act 2007 (n 36) ss 111B(1)-(2), 111F, 111M, 111N, 111V.
[364] ACT SoE 2019 (n 12) 222. For discussion of direct and indirect offsets, see Nigel Martin et al, ‘Using Offsets to Mitigate Environmental Impacts of Major Projects: A Stakeholder Analysis’ (2016) 179 Journal of Environmental Management 58.
[365] Ibid 12.
[366] Ibid 229, 284.
[367] Although these international documents may differ according to the relative priority to be assigned to nature’s rights. See also Susana Borras, ‘New Transition from Human Rights to the Environment to the Rights of Nature’ (2016) 5(1) Transnational Environmental Law 113, 114.
[368] World Charter for Nature (n 19) arts 1-5.
[369] Ibid arts 2, 3.
[370] Biodiversity Convention (n 23) art 1.
[371] See generally Ibid arts 5-14.
[372] Freya Dawson, ‘Analysing the Goals of Biodiversity Conservation: Scientific, Policy and Legal Perspectives’ (2004) 21(1) Environmental and Planning Law Journal 6, 17.
[373] General Assembly Resolutions and advisory opinions have been highly persuasive in guiding decisions of the International Court of Justice and hence, indicating to State’s the Court’s views on international law: see Teresa Mayr and Jelka Mayr-Singer, ‘Keep the Wheels Spinning: The Contributions of Advisory Opinions of the International Court of Justice to the Development of International Law’ (2016) 76(2) Heidelberg Journal of International Law 425, 430.
[374] Though this question is beyond the scope of this paper, other authors have noted that this would be an interesting question worthy of further attention: see Annika Reynolds et al, ‘Green Lawfare: Does the Evidence Match the Allegations? – An Empirical Evaluation of Public Interest Litigation under the EPBC Act from 2009 to 2019’ (2020) 37(4) Environmental and Planning Law Journal 497, 511.
[375] Ibid.
[376] Phillipa McCormack; ‘The Legislative Challenge of Facilitating Climate Change Adaptation for Biodiversity’ (2018) 92 Australian Law Journal 546, 554.
[377] Allan Hawke, Final Report of the Independent Review of the Environment Protection and Biodiversity Conservation
Act 1999 (Final Report, October 2009) 17, 57 (‘First Independent Review of the EPBC Act’); Second Independent Review of the EPBC Act (n 48) 74.
[378] See Australian Panel of Experts on Environmental Law (APEEL), The Foundations of Environmental Law: Goals, Objects, Principles and Norms (Technical Paper 1, 2017) 3, 29-33.
[379] EPBC Act (n 36) s 3(1)(c). See also Jeff Smith, ‘Skinning Cats, Putting Tigers in Tanks and Bringing Up Baby: A Critique of the Threatened Species Conservation Act 1995 (NSW)’ (1997) 14(1) Envrionmental and Planning Law Journal 17, 22-23.
[380] McCormack (n 376) 554; Susan Tridgell, ‘Evaluating the Effectiveness of the Environment Protection and Biodiversity Conservation Act 1999 (Cth): 2008-2012’ (2013) 30 Environment and Planning Law Journal 245, 249.
[381] APEEL, Terrestrial Biodiversity Conservation and Natural Resource Management (n 14) 30. See also Alejandro Camacho et al, ‘Reassessing Conservation Goals in Climate Change’ (2010) 26(4) Issues in Science and Technology 21, 21-22.
[382] McCormack (n 376) 551-552.
[383] Nature Conservation Act (n 36) s 6(1).
[384] Ibid s 6(2)(a)(i)-(vii).
[385] Kwaw Nyamekeh Blay and Ryszard Piotrowicz, ‘Biodiversity and Conservation in the Twenty-First Century: a Critique of the Earth Summit 1992’ (1993) 10(6) Envrionmental and Planning Law Journal 450, 452.
[386] This trend has since been continued in NSW: Biodiversity Conservation Act 2016 (n 179) cl 1.3.
[387] On the importance of these concepts in facilitating biodiversity adaptation: see Michael Dunlop et al, Climate-Ready Conservation Objectives: A Scoping Study (Final Report, 2013) 3; Nicole Heller and Erika Zavaleta, ‘Biodiversity Management in the Face of Climate Change: A Review of 22 Years of Recommendations’ (2009) 142(1) Biological Conservation 14; Jonathan Mawdsley et al, ‘A Review of Climate-Change Adaptation Strategies for Wildlife Management and Biodiversity Conservation’ (2009) 23(5) Conservation Biology 1080.
[388] Cf Biodiversity Conservation Act 2016 (n 179) cl 4.3(1)-(2); Nature Conservation Act 1992 (n 172) s 160(7); Threatened Species Protection Act 1995 (n 179) s 3.
[389] Nature Conservation Act (n 36) s 64(7).
[390] For example, migratory birds and other highly mobile species: see ACT SoE 2019 (n 12) 213.
[391] Ahjond Garmestani et al, ‘Can Law Foster Social-Ecological Resilience?’ (2013) 18(2) Ecology and Society 37; Brian Chaffin and Lance Gunderson, ‘Emergence, Institutionalization and Renewal: Rhythms of Adaptive Governance in Complex Social-Ecological Systems’ (2016) 165 Journal of Environmental Management 81, 81-82.
[392] APEEL, Terrestrial Biodiversity Conservation and Natural Resource Management (n 14) 30.
[393] Sophie Whitehead, ‘Rethinking Threatened Species Legislation in the Context of Climate Change’ (2017) 34 Environmental and Planning Law Journal 94, 111.
[394] World Charter for Nature (n 19) arts 2-3, 6-9.
[395] Biodiversity Convention (n 23) art 8(a)-(m).
[396] Given its binding nature cf the World Charter for Nature.
[397] McDonald et al, 'Promoting Resilience to Climate Change in Australian Conservation Law: The Case of Biodiversity Offsets' (n 170) 1617.
[398] McDonald et al, ‘Adaptation Pathways for Conservation Law and Policy’ (n 29) 3.
[399] World Charter for Nature (n 19) Ibid art 19.
[400] See Biodiversity Convention (n 23) art 7(d).
[401] Natural Resource Management Ministerial Council, Directions for the National Reserve System – A Partnership Approach (2005) 24.
[402] Biodiversity Convention (n 23) arts 1-2.
[403] Natural Resource Management Ministerial Council (n 401) 24.
[404] Ibid 14, 24.
[405] Task Force on Marine Protected Areas (TFMPA), Understanding and Applying the Principles of Comprehensiveness, Adequacy and Representativeness for the NRSMPA (Report, November 1999) 7; Daniel Beaver and Ghislaine Llewellyn, Designing A Comprehensive, Adequate And Representative (CAR) Network Of Marine
Protected Areas For Australia’s Commonwealth Waters (Progress Report, 2009) 12.
[406] Michael Dunlop et al, The Implications of Climate Change for Biodiversity Conservation and the National Reserve System: Final Synthesis (Final Report, September 2012) 47-52; Michael Dunlop, ‘Strategy Conservation’ (2013) 3(12) Nature Climate Change 1019, 1019-1020.
[407] Department of Agriculture, Water and the Environment, Protected Area Locations (Web Page, 2021) <https://www.environment.gov.au/land/nrs/science/protected-area-locations>.
[408] Which cover more than 60 percent of the Territory’s land area: see ACT SoE 2019 (n 12) 223.
[409] Reserves in the ACT generally fall under the IUCN categories of Wilderness Area, National Park or Habitat/Species Management Area: see ACT Government, Nature Conservation Act 2014 Q&As (Report, June 2015) 5.
[410] See Biodiversity Convention, COP 10, Decision X/2 – The Strategic Plan for Biodiversity 2011-2020 and the Aichi Biodiversity Targets, UNEP/CBD/COP/DEC/X/2 (29 October 2010).
[411] MFJ Taylor, Building Nature’s Safety Net 2016: The State of Australian Terrestrial Protected Areas 2010-2016 (Report, 2017) 3, 15.
[412] Gunnar Keppel et al, ‘Refugia: Identifying and Understanding Safe Havens for Biodiversity Under Climate Change’ (2012) 21(3-4) Global Ecology and Biogeography 393, 394.
[413] Connor Gervais et al, ‘Species on the Move around the Australian Coastline: A Continental-Scale Review of Climate-Driven Species Redistribution in Marine Systems’ (2020) 27(14) Global Change Biology 3200, 3201.
[414] Victoria McGinness and Murray Raff, ‘Coal and Climate Change: A Study of Contemporary Climate Litigation in Australia’ (2020) 37(1) Environmental and Planning Law Journal 87, 89.
[415] April Reside et al, Climate Change Refugia for Terrestrial Biodiversity (Final Report, 2013) 2, 9-10. In relation to climate-driven changes in the distribution of Australian species: see generally, Linda Beaumont and Lesley Hughes, ‘Potential Changes in the Distributions of Latitudinally Restricted Australian Butterfly Species in Response to Climate Change’ (2002) 8(10) Global Change Biology 954; Johannes Overgaard et al, ‘Sensitivity to Thermal Extremes in Australian Drosophila Implies Similar Impacts of Climate Change on the Distribution of Widespread and Tropical Species’ (2014) 20(6) Global Change Biology 1738.
[416] McDonald et al, ‘Adaptation Pathways for Conservation Law and Policy’ (n 29) 2.
[417] With respect to the vulnerability of threatened species outside of Commonwealth and state/territory protected areas: see, eg, Ramona Maggini et al, Protecting and Restoring Habitat to Help Australia’s Threatened Species to Adapt to Climate Change (Final Report, 2013) 39-40; Jennifer Cane et al, Supporting Evidence-Based Adaptation Decision-Making in the Australian Capital Territory: A Synthesis of Climate Change Adaptation Research (Report, 2013) 25; Victoria Graham et al, ‘Prioritizing the Protection of Climate Refugia: Designing a Climate-Ready Protected Area’ (2019) 62(14) Journal of Environmental Planning and Management 2588, 2599-2601.
[418] World Charter for Nature (n 19) arts 4, 9; Biodiversity Convention (n 23) art 8(a)-(e).
[419] Maggini et al (n 417) 39-40.
[420] McDonald et al, ‘Adaptation Pathways for Conservation Law and Policy’ (n 29) 3.
[421] EPBC Act (n 36) pt 3. A similar case applies to contemporary climate litigation: see McGinness and Raff (n 414) 99-116.
[422] Brian Preston, ‘Contemporary Issues in Environmental Impact Assessment’ (2020) 37(4) Environmental and Planning Law Journal 423, 424.
[423] Biodiversity Convention (n 23) art 8.
[424] These legal and procedural requirement may include, for example, mechanisms of assessment and expert consultation: see Neil Craik, ‘The Assessment of Environmental Impact’ in Emma Lees and Jorge Vinuales (eds), The Oxford Handbook of Comparative Environmental Law (Oxford University Press, 2019) 880.
[425] See Murray Raff, ‘Ten Principles of Quality in Environmental Impact Assessment’ (1997) 14(3) Environmental and Planning Law Journal 207, 209-217.
[426] Note that wildlife conservation plans do not apply to listed threatened species (except conservation dependant species), but instead apply to any listed migratory or marines species that occurs in Australia or an external Territory, as well as species of cetacean that occurs in the Australian Whale Sanctuary: see EPBC Act (n 36) s 285(1)(a)-(d), (2).
[427] Ibid ch 5 pt 13 div 5; APEEL, Terrestrial Biodiversity Conservation and Natural Resource Management (n 14) 13.
[428] Nature Conservation Act (n 36) pts 4.4, 4.5, 5.3.
[429] Such an advice must correspond or substantially correspond with the requirements for a conservation advice mentioned in Ibid s 90C(3).
[430] Biodiversity Convention (n 23) arts 6, 8.
[431] Ibid arts 8(d), (f), (k).
[432]James Fitzsimons, ‘Urgent Need to Use and Reform Critical Habitat Listing in Australian Legislation in Response to the Extensive 2019–2020 Bushfires’ (2020) 37(2) Environmental and Planning Law Journal 143, 144, 151.
[433] McDonald et al, ‘Adaptation Pathways for Conservation Law and Policy’ (n 29) 3.
[434] Nature Conservation Act (n 36) pt 5.2.
[435] See Ibid ss 110-112; Nature Conservation Protected Native Species List 2015 (No 1) (ACT).
[436] Nature Conservation Act (n 36) s 111(2)(c).
[437] EPBC Act (n 36) s 178; Sophie Lloyd, ‘Reconsidering the Species-Specific Approach: Insects and the Environment Protection and Biodiversity Conservation Act’ (2020) 37(2) Environmental and Planning Law Journal 242, 265.
[438] Second Independent Review of the EPBC Act (n 48) 44.
[439] Jan McDonald et al, ‘Rethinking Legal Objectives for Climate-Adaptive Conservation’ (2016) 21(2) Ecology and Society 25, 28-30; McDonald et al, ‘Adaptation Pathways for Conservation Law and Policy’ (n 29) 3.
[440] ACT SoE 2019 (n 12) 214.
[441] Particularly as triggers of development impact assessments: see Second Independent Review of the EPBC Act (n 48) 44; ACT Nature Conservation Strategy 2013–23 (n 185) 8-10.
[442] Whitehead (n 393) 100. See also, Karen Poiani et al, ‘Biodiversity Conservation at Multiple Scales: Functional Sites, Landscapes, and Networks’ (2000) 50(2) BioScience 133, 133, 139-140.
[443] World Charter for Nature (n 19) Preamble.
[444] Nature Conservation Act (n 36) ss 6(2)(v), 49(2)(c), 101(3)(c).
[445] See, eg, ACT Government, Canberra Spatial Plan (2004) 12, 23, 32, 72, 86; Department of Sustainability, Environment, Water, Population and Communities, National Wildlife Corridors Plan (2012); ACT Nature Conservation Strategy 2013–23 (n 185) 14-15, 24.
[446] Second Independent Review of the EPBC Act (n 48) 44.
[447] Taylor (n 411) 3, 15; Anthony Waldron et al, ‘Targeting Global Conservation Funding to Limit Immediate Biodiversity Declines’ (2013) 110(29) Proceedings of the National Academy of Sciences 12144, 12146-12147.
[448] McDonald et al, ‘Adaptation Pathways for Conservation Law and Policy’ (n 29) 3.
[449] David Farrier et al, ‘Threatened Species Listing as a Trigger for Conservation Action’ (2007) 10(3) Environmental Science and Policy 219, 224-227; Paul Ferraro et al, ‘The Effectiveness of the US Endangered Species Act: An Econometric Analysis Using Matching Methods’ (2007) 54(3) Journal of Environmental Economic and Management 245, 255-256. Stephen Kearney et al, ‘Estimating the Benefit of Well-Managed Protected Areas for Threatened Species Conservation’ (2020) 54(2) Oryx 276, 281-282.
[450] Examples of bias in the listing of species pertain to the over-representation of mammals, birds and amphibians in species lists: see Jessica Walsh et al, ‘Trends and Biases in the Listing and Recovery Planning for Threatened Species: An Australian Case Study’ (2013) 47(1) Oryx 134, 140-141; Lloyd (n 437) 249-250.
[451] Biodiversity SoE 2016 (n 328) v, 176; ACT SoE 2019 (n 12) 264. For the conservation importance of under-represented species: see, eg, Neale Bougher and Teresa Lebel, ‘Sequestrate (Truffle-Like) Fungi of Australia and New Zealand’ (2001) 14(3) Australia Systematic Botany 439; George Schatz, ‘Plants on the IUCN Red List: Setting Priorities to Inform Conservation’ (2009) 14(11) Trends in Plant Science 638; Gary Taylor et al, ‘Strategic National Approach for Improving the Conservation Management of Insects and Allied Invertebrates in Australia’ (2018) 57(2) Austral Entomology 124.
[452] Walsh et al (n 450) 141.
[453] Erik Harvey et al, ‘Recovery Plan Revisions: Progress or Due Process?’ (2002) 12(3) Ecological Applications 682, 684; Farrier et al (n 449) 223, 226; Jeremy Simmonds et al, ‘Vulnerable Species and Ecosystems are Falling Through the Cracks of Environmental Impact Assessments’ (2019) 13(3) Conservation Letters 1, 7.
[454] Madeleine Bottrill et al, ‘Is Conservation Triage Just Smart Decision Making?’ (2008) 23(12) Trends in Ecology and Evolution 649; Walsh et al (n 450) 141.
[455] World Charter for Nature (n 19) art 19; Biodiversity Convention (n 23) art 7(d).
[456] Biodiversity SoE 2016 (n 328) 10, 42-43; ACT SoE 2019 (n 12) 264.
[457] S. M. Davey, ‘Reporting Australia’s Forest Biodiversity II: Threatened Forest-Dwelling and Forest-Dependent Species’ (2018) 81(4) Australian Forestry 214, 228.
[458] Alejandro Ortega-Argueta et al, ‘Compliance of Australian Threatened Species Recovery Plans with Legislative Requirements’ (2011) 92(8) Journal of Environmental Management 2054, 2057.
[459] APEEL, Terrestrial Biodiversity Conservation and Natural Resource Management (n 14) 13; Biodiversity SoE 2016 (n 328) 24-27; ACT SoE 2019 (n 12) 85.
[460] APEEL, Terrestrial Biodiversity Conservation and Natural Resource Management (n 14) 13; Second Independent Review of the EPBC Act (n 48) 1, 18, 42-44.
[461] Second Independent Review of the EPBC Act (n 48) 42.
[462] Ibid; McDonald et al, ‘Adaptation Pathways for Conservation Law and Policy’ (n 29) 3.
[463] Second Independent Review of the EPBC Act (n 48) 42.
[464] Rebecca Nelson, ‘Breaking Backs and Boiling Frogs: Warnings from a Dialogue Between Federal Water Law and Envrionmental Law’ [2019] UNSWLawJl 42; (2019) 42(4) University of New South Wales Law Journal 1179, 1204.
[465] Megan Evans et al, ‘The Spatial Distribution of Threats to Species in Australia’ (2011) 61(4) BioScience 281, 285; Ayesha Tulloch et al, ‘Understanding the Importance of Small Patches of Habitat for Conservation’ (2016) 53 Journal of Applied Ecology 418, 419.
[466] World Charter for Nature (n 19) Preamble; Biodiversity Convention (n 23) art 8(i).
[467] Bates (n 3) 415. On the ineffective and inefficient operation of the EPBC Act: see, eg, Chris McGrath, ‘Swirls in the Stream of Australian Environmental Law: Debate on the EPBC Act’ (2006) 23(3) Environmental and Planning Law Journal 165, 169; Lloyd (n 437) 249-251; Dickson and Woolaston (n 13) 34-35; Kenny Ng, ‘Towards an Outcomes-Driven Approach to Environmental Law: The Environment Protection and Biodiversity Conservation Act 1999 (Cth)’ (2021) 38(3) Envrionmental and Planning Law Journal 223, 224-236.
[468] Clement et al (n 30) 93-94.
[469] Second Independent Review of the EPBC Act (n 48) 41-42, 45.
[470] Lisa Cox, ‘Australia Urged to Overhaul Environment Laws and Reverse 'Decline of Our Iconic Places'’ The Guardian (online, 28 January 2021) <https://www.theguardian.com/australia-news/2021/jan/28/australia-urged-to-overhaul-environment-laws-and-reverse-decline-of-our-iconic-places>; Bates (n 3) 415; Second Independent Review of the EPBC Act (n 38) viii-ix.
[471] ACT SoE 2019 (n 12) 27, 207.
[472] See Ibid 361-367. Current criticisms of Nature Conservation Act mirror also some of the criticisms of its predecessor, the Nature Conservation Act 1980 (ACT): see, eg, ACT Flora and Flora Committee, Draft Submission to Department of the Environment, Climate Change, Energy and Water, Review of the Nature Conservation Act 1980 2-3; Friends of Grasslands, Submission to Department of the Environment, Climate Change, Energy and Water, Review of the Nature Conservation Act 1980 (16 February 2011).
[473] Ibid.
[474] Paul Martin et al, ‘Engagement: Australia’s Weak Link in Biodiversity Protection’ (2017) 34 Environmental and Planning Law Journal 383, 383-386.
[475] Second Independent Review of the EPBC Act (n 48) ii-iii, viii-ix, 40, 44.
[476] Martin et al (n 474) 395-396.
[477] Biodiversity Convention (n 23) arts 6, 11, 20.
[478] Martin et al (n 474) 387.
[479] Biodiversity Convention (n 23) art 12-13, 16-19.
[480] See, eg, Susan Michie et al, ‘The Behaviour Change Wheel: A New Method for Characterising and Designing Behaviour Change Interventions’ (2011) 6(1) Implementation Science 42.
[481] APEEL, Terrestrial Biodiversity Conservation and Natural Resource Management (n 14) 3.
[482] Ibid 29.
[483] See Department of Agriculture, Water and the Environment, Outcomes-Based Conditions Policy (Report, March 2016) 6-8.
[484] Ng (n 467) 225-226.
[485] Ibid 226; Department of Agriculture, Water and the Environment, Outcomes-Based Conditions Policy (n 483) 4, 10-11; Sharon Gilad, ‘Process-Oriented Regulation: Conceptualization and Assessment’ in David Levi-Faur (ed), Handbook on the Politics of Regulation (Edward Elgar Publishing, 2013) 429.
[486] Andrew Macintosh, ‘The Impact of ESD on Australia’s Environmental Institutions’ (2015) 22(1) Australasian Journal of Environmental Management 33, 41-43; Brian Preston, ‘The Australian Experience on Environmental Law’ (2018) 35(6) Environmental and Planning Law Journal 637, 649.
[487] Macintosh (n 486) 41; Ng (n 467) 226. For the consideration of ecological sustainable development in case law: see, eg, Telstra Corp Ltd v Hornsby Shire Council [2006] NSWLEC 133; (2006) 67 NSWLR 256.
[488] Brian Preston, ‘Internalising Ecocentrism in Environmental Law’ (Wild Law Conference Speech, Griffith University, 16-18 September 2011); Brian Preston, ‘Internalising Ecocentrism in Environmental Law’ in Michelle Maloney and Peter Burdon (eds) Wild Law – In Practice (Routledge, 2014) 76–78; Preston, ‘The Australian Experience on Environmental Law’ (n 486) 649-650. In relation to judicial consideration of the influence of objects clauses to constrain the exercise of powers under an Act: see Woollahra Municipal v Minister for the Environment (1991) 23 NSWLR 710, 726 (Kirby P).
[489] The Honourable Justice Brian Preston is the Chief Judge of the Land and Environment Court in New South Wales.
[490] Preston, ‘The Australian Experience on Environmental Law’ (n 486) 649.
[491] Second Independent Review of the EPBC Act (n 48) 48, 76-77.
[492] Ibid 43, 48; Dickson and Woolaston (n 13) 23.
[493] Brian Preston, ‘Adapting to the Impacts of Climate Change: The Limits and Opportunities of Law in Conserving Biodiversity’ (2013) 30(5) Environmental and Planning Law Journal 375, 378. See also EPBC Act (n 36) s 3.
[494] APEEL, The Foundations of Environmental Law: Goals, Objects, Principles and Norms (n 378) 5.
[495] McCormack (n 376) 561.
[496] Nature Conservation Act (n 36) s 6(1).
[497] APEEL, The Foundations of Environmental Law: Goals, Objects, Principles and Norms (n 378) 5; McCormack (n 376) 561.
[498] McCormack (n 376) 561-562.
[499] Nature Conservation Act (n 36) s 6(2).
[500] Ibid ss 6(2)(a)(i)-(vii).
[501] McCormack (n 376) 561.
[502] Macintosh (n 486) 40-41; APEEL, The Foundations of Environmental Law: Goals, Objects, Principles and Norms (n 378) 3, 39.
[503] World Charter for Nature (n 19) arts 1-5; Biodiversity Convention (n 23) arts 3, 8.
[504] EPBC Act (n 36) ss 3(d)(g); Nature Conservation Act (n 36) ss 6(2)(b)-(g); Martin et al (n 474) 386-389.
[505] McCormack (n 376) 561; Martin et al (n 474) 389, 395-397.
[506] World Charter for Nature (n 19) art 19; Biodiversity Convention (n 23) art 7(d).
[507] Yinqiu Ji et al, ‘Reliable, Verifiable and Efficient Monitoring of Biodiversity via Metabarcoding’ (2013) 16(10) Ecology Letters 1245, 1245-1247.
[508] Timothy Tear et al, ‘How Much Is Enough? The Recurrent Problem of Setting Measurable Objectives in Conservation’ (2005) 55(10) Bioscience 835, 837-844; McCormack (n 376) 561.
[509] Department of Agriculture, Water and the Environment, Outcomes-Based Conditions Policy (n 483) 10.
[510] Measurable thresholds as they relate to threatened or native species may include data regarding species abundance, distribution, migration patterns, etc.: see APEEL, Terrestrial Biodiversity Conservation and Natural Resource Management (n 14) 29-30; Second Independent Review of the EPBC Act (n 48) 6-8, 10, 24, 29, 57-72
[511] Biodiversity SoE 2016 (n 328) 10, 42-43; ACT SoE 2019 (n 12) 264.
[512] Tridgell (n 380) 258.
[513] See Ibid; Tear et al (n 508) 837-84.
[514] McCormack (n 376) 561.
[515] This includes conservation advices, recovery plans, threat abatement plans and wildlife conservation plans: see EPBC Act (n 36) pt 13 div 5.
[516] This includes conservation advices, action plans and native species conservation plans: see Nature Conservation Act (n 36) pts 4.4, 4.5, 5.3.
[517] See EPBC Act (n 36) ss 270(2)(b), 271(2)(b), 287(2)(b).
[518] Nature Conservation Act (n 36) ss 100(a)(i)(E), 108(1)(a)-(b).
[519] Ibid ss 23, 116(b)-(c).
[520] Renee Brawata et al, Conservation Effectiveness Monitoring Program: An Overview (Technical Report, April 2017) 12-13.
[521] NSW Young Lawyers Environment and Planning Committee and Animal Law Committee, Submission to the Environment and Communications References Committee, Australia’s Faunal Extinction Crisis (17 August 2021) 14.
[522] The SMART framework has been applied as a performance indicator across various environmental policy areas: see, eg, Senate Standing Committee on Environment and Communications, Parliament of Australia, Effectiveness of Threatened Species and Ecological Communities’ Protection in Australia (Report, August 2013) 75-76; Robert Watson et al, Sustainable Development Goals and Targets for Australia (MSI Report No. 14/3, August 2014) 46-49; Geoff Park, ‘Do Farmers Love Brolgas, Seagrass and Coral Reefs? It Depends on Who’s Paying, How Much, and for How Long’ in Dean Ansell, Fiona Gibson and David Salt (eds), Learning from Agri-Environment Schemes in Australia: Investing in Biodiversity and Other Ecosystem Services on Farms (ANU Press, 2016) 53, 54-55.
[523] B. Essex et al, ‘Proposal for a National Blueprint Framework to Monitor Progress on Water-Related Sustainable Development Goals in Europe’ (2020) 65(1) Environmental Management 1, 1-2, 7.
[524] McCormack (n 376) 561.
[525] Biodiversity SoE 2016 (n 328) 10, 42-43; ACT SoE 2019 (n 12) 264.
[526] World Charter for Nature (n 19) art 18; NSW Young Lawyers Environment and Planning Committee and Animal Law Committee (n 521) 14; Second Independent Review of the EPBC Act (n 48) 23-25, 147-148.
[527] For the benefits of proactive conservation approaches: see Martin Drechsler et al, ‘Does Proactive Biodiversity Conservation Save Costs?’ (2011) 20(5) Biodiversity and Conservation 1045, 1046-1047, 1053-1054; Louisa Ponnampalam et al, ‘Aligning Conservation and Research Priorities for Proactive Species and Habitat Management: The Case of Dugongs Dugong Dugon in Johor, Malaysia’ (2015) 49(4) Oryx 743, 746-748; Brawata et al (n 520) 10; Second Independent Review of the EPBC Act (n 48) 25, 27, 54.
[528] Jan McDonald and Megan C. Styles, ‘Legal Strategies for Adaptive Management under Climate Change’ (2014) 26(1) Journal of Environmental Law 25, 28, 52-53.
[529] Phillipa McCormack, ‘Conservation Introductions for Biodiversity Adaptation under Climate Change’ (2018) 7(2) Transnational Environmental Law 323, 325-326.
[530] World Charter for Nature (n 19) arts 1-4, 8, 13, 16.
[531] Biodiversity Convention (n 23) arts 6, 8(a)-(f).
[532] Will Steffen et al, Australia's Biodiversity and Climate Change: A Strategic Assessment of the Vulnerability of Australia's Biodiversity to Climate Change (Report, August 2009) 8-9, 12, 15, 93, 111, 116, 178-179; McCormack, ‘Conservation Introductions for Biodiversity Adaptation under Climate Change’ (n 529) 324.
[533] Andrew A. Burbidge et al, ‘Is Australia Ready for Assisted Colonization? Policy Changes Requires to Facilitate Translocations under Climate Change’ (2011) 17(3) Pacific Conservation Biology 259, 259; McCormack, ‘Conservation Introductions for Biodiversity Adaptation under Climate Change’ (n 529) 324.
[534] Steffen et al (n 532) 15-16.
[535] McDonald et al, ‘Adaptation Pathways for Conservation Law and Policy’ (n 29) 4.
[536] Aichi Target 11 commits Australia to guaranteeing the protection of ecologically representative and well connected systems in at least 17 percent of terrestrial and inland water bodies: see Natural Resource Management Ministerial Council (n 401) 24; Biodiversity Convention, COP 10, Decision X/2 – The Strategic Plan for Biodiversity 2011-2020 and the Aichi Biodiversity Targets (n 410); Taylor (n 411) 5-6, 16.
[537] Michael Dunlop et al, Implications for Policymakers: Climate Change, Biodiversity Conservation and the National Reserve System (Report, September 2012) 9.
[538] McDonald et al, ‘Adaptation Pathways for Conservation Law and Policy’ (n 29) 4.
[539] Dunlop et al, The Implications of Climate Change for Biodiversity Conservation and the National Reserve System: Final Synthesis (n 406) 48-50; Alison Johnston et al, ‘Observed and Predicted Effects of Climate Change on Species in Protected Areas’ (2013) 3(12) Nature Climate Change 1055, 1058-1059.
[540] See Joshua J. Lawler et al, ‘Planning for Climate Change through Additions to a National Protected Area Network: Implications for Cost and Configuration’ (2020) 375(1794) Philosophical Transactions of the Royal Society B: Biological Sciences 1, 3-6; Yadvinder Malhi et al, ‘Climate Change and Ecosystems: Threats, Opportunities and Solutions’ (2020) 375(1794) Philosophical Transactions of the Royal Society B: Biological Sciences 1, 4.
[541] April Reside et al, ‘Adapting Systematic Conservation Planning for Climate Change’ (2018) 27(1) Biodiversity and Conservation 1, 14-15.
[542] McDonald et al, ‘Adaptation Pathways for Conservation Law and Policy’ (n 29) 5; Jodi Hilty et al, Guidelines for Conserving Connectivity through Ecological Networks and Corridors (Best Practice Protected Area Guideline No. 30, 2020) 13-16.
[543] Reside et al (n 541) 15.
[544] Sílvia B. Carvalho et al, ‘Conservation Planning under Climate Change: Toward Accounting for Uncertainty in Predicted Species Distributions to Increase Confidence in Conservation Investments in Space and Time’ (2011) 144(7) Biological Conservation 2020, 2026-2028.
[545] Robert L. Pressey et al, ‘Conservation Planning in a Changing World’ (2007) 22(11) Trends in Ecology and Evolution 583, 584; Robert L. Pressey and Madeleine Bottrill, ‘Approaches to Landscape- and Seascape-Scale Conservation Planning: Convergence, Contrasts and Challenges’ (2009) 43(4) Oryx 464, 468-469.
[546] Dunlop et al, Implications for Policymakers: Climate Change, Biodiversity Conservation and the National Reserve System (n 537) 9.
[547] James Fitzsimons, ‘Private Protected Areas in Australia: Current Status and Future Directions’ (2015) 10(10) Nature Conservation 1, 18-19.
[548] Rachael Alderman and Alistair J. Hobday, ‘Developing a Climate Adaptation Strategy for Vulnerable Seabirds Based on Prioritisation of Intervention Options’ (2017) 140 Deep-Sea Research II 290, 290-291; McDonald et al, ‘Adaptation Pathways for Conservation Law and Policy’ (n 29) 5.
[549] ACT SoE 2019 (n 12) 223.
[550] Ben Anderson, ‘Security and the Future: Anticipating the Event of Terror’ (2010) 41(2) Geoforum 227, 229; Irus Braverman, ‘Anticipating Endangerment: The Biopolitics of Threatened Species Lists’ (2017) 12(1) Bio Societies 132, 155.
[551] McDonald et al, ‘Adaptation Pathways for Conservation Law and Policy’ (n 29) 5. In relation to the Nature Conservation Act’s data deficient listing category for protected native species: see Nature Conservation Act (n 36) ss 111(2)(c), 112(3)(a)-(b).
[552] See, eg, Nature Conservation Act (n 36) s 112(3).
[553] Stephen Garnett et al, Climate Change Adaptation Strategies for Australian Birds (Final Report, January 2013) 55-57.
[554] McDonald et al, ‘Adaptation Pathways for Conservation Law and Policy’ (n 29) 5. A number of species have been assessed for listing as threatened species by the TSSC under the EPBC Act, but were found to have insufficient information to determine that they were eligible for listing as threatened: see Department of Agriculture, Water and the Environment, Data Deficient Species (Web Page, 2021) <https://www.awe.gov.au/environment/biodiversity/threatened/nominations/data-deficient-species>.
[555] Braverman (n 550) 137.
[556] EPBC Act (n 36) ss 207A-207C.
[557] Note that the only relevant mention of ‘critical habitat’ in the Nature Conservation Act is where it may require consideration in the drafting of an ‘action plan’, which is a document that may not be binding on decision makers: see Nature Conservation Act (n 36) ss 100(a), 101(3)(d); Fitzsimons, ‘Urgent Need to Use and Reform Critical Habitat Listing in Australian Legislation in Response to the Extensive 2019–2020 Bushfires’ (n 432) 147.
[558] EPBC Act (n 36) s 207A(1), (4).
[559] Cameron W. Barrows et al, ‘Identifying Climate Refugia: A Framework to Inform Conservation Strategies for Agassiz’s Desert Tortoise in a Warmer Future’ (2016) 15(1) Chelonian Conservation and Biology 2, 3; Reside et al (n 541) 7-10; Hilty et al (n 542) 13-16.
[560] McDonald et al, ‘Adaptation Pathways for Conservation Law and Policy’ (n 29) 5.
[561] Ibid. See also Department of Primary Industries and Water, Giant Freshwater Lobster Astacopsis gouldi Recovery Plan 2006-2010 (2006) 13. Cf Department of Environment and Energy, Recovery Plan for the Giant Freshwater Crayfish (Astacopsis gouldi) (2017) 6, 13.
[562] Walsh et al (n 450) 141.
[563] First Independent Review of the EPBC Act (n 377) 18, 28, 74-75.
[564] Ibid 18, 22, 28.
[565] APEEL, A Blueprint for the Next Generation of Australian Environmental Laws (n 52) 8.
[566] Ibid; Christopher D. Ives et al, ‘Human-Nature Connection: A Multidisciplinary Review’ (2017) 26-27 Current Opinion in Environmental Sustainability 106, 110-111; Victor Cazalis and Anne-Caroline Prévot, ‘Are Protected Areas Effective in Conserving Human Connection with Nature and Enhancing Pro-Environmental Behaviours?’ (2019) 236 Biological Conservation 548, 553-554.
[567] APEEL, A Blueprint for the Next Generation of Australian Environmental Laws (n 52) 8.
[568] See generally Biodiversity SoE 2016 (n 328); ACT SoE 2019 (n 12).
[569] Ibid.
[570] Wood Jr (n 97) 980, 990.
[571] Over 19 percent of Australia's total land area is protected under the NRS, while ACT reserves cover more than 60 percent of the Territory’s land area: see Department of Agriculture, Water and the Environment, Protected Area Locations (n 407); ACT SoE 2019 (n 12) 223.
[572] APEEL, A Blueprint for the Next Generation of Australian Environmental Laws (n 52) 8.
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