Skinning cats, putting tigers in tanks and bringing up baby: A critique of the Threatened Species Conservation Act 1995 (NSW)

Environmental and Planning Law Journal

Volumn 14, Issue 1, 1997, Pages 17-37

  Smith, Jeff ^a  

^a UNIVERSITY OF NEW SOUTH WALES   (Australia)

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EID: 0007858472     PISSN: 0813300X     EISSN: None     Source Type: Journal    
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References (195)

1. In particular, it picks up (not always in the same form) many of the ideas and mechanisms used in the US, federal and Victorian legislation: see the Endangered Species Act 1973 (US).
2. Endangered Species Protection Act 1992 (Cth); and the Flora and Fauna Guarantee Act 1988 (Vic).
3. A representative sample might start with Corkill v Forestry Commission (No 2) (1991) 73 LGRA 126.
4. Corkill v Hope (1991) 74 LGRA 33.
5. Brown efa and North Broken Hill Ltd (1992) 75 LGRA 397.
6. Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270.
7. See, eg, the second reading speech of the Attorney-General, Jeff Shaw, Threatened Species Conservation Bill (NSW), Legislative Council, Hansard, 14 and 15 December 1995, p 4986.
8. For comment on this specific issue see D Farrier, "Conserving Biodiversity on Private Land: Incentives for Management or Compensation for Lost Expectations" (1995) 19 Harvard Environmental Law Review 303 at 403 and K S Yagerman, "Protecting Critical Habitat under the Federal Endangered Species Act" (1990) 20 Environmental taw 811 at 822-827.
9. United Nations Environment Programme, The Stale of the Environment 1972-1992 (Nairobi, UNEP 1992), p 54. For an analysis specific to Australia see also G D Meyers and S Temby, "Biodiversity and the Law: A Review of the Commonwealth Endangered Species Protection Act of 1992" (1994) 3 Griffith Law Review 39 at 50-53.
10. R C Nias, "Conservation in Australia-Threatened Species and Habitats" (1989) 2 Australian Biologist 14 at 19.
11. D J Rohlf, "Six Biological Reasons Why the Endangered Species Act Doesn't Work-And What To Do About It (1991) 5 Conservation Biology 273 at 279.
12. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
13. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
14. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
15. It is worth noting that the object under s 5(a)(vi) of the Environmental Planning and Assessment Act 1979 (NSW) (which seeks to encourage the protection of the environment) has been changed so as to make explicit the fact this involves biodiversity considerations. Beyond flagging the issue, this change does not seem to add anything to the overall legislative objects insofar as the protection of the environment will always involve its constituent elements of biodiversity.
16. Species presumed extinct are also listed: Threatened Species Conservation Act 1995 (NSW), Sched 1, Pt 4.
17. See B Elling, "Research on SEA in Denmark" in S Morel, R Verheem and N Lee (eds), EIA Methodology and Research: Third EU Workshop on EIA, Delphi 1994 (European Commission, 1994), p 61.
18. See B Elling, "Research on SEA in Denmark" in S Morel, R Verheem and N Lee (eds), EIA Methodology and Research: Third EU Workshop on EIA, Delphi 1994 (European Commission, 1994), p 61.
19. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
20. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
21. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
22. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
23. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
24. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
25. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
26. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
27. See B Elling, "Research on SEA in Denmark" in S Morel, R Verheem and N Lee (eds), EIA Methodology and Research: Third EU Workshop on EIA, Delphi 1994 (European Commission, 1994), p 61.
28. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
29. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
30. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
31. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
32. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
33. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
34. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
35. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
36. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
37. Curiously, listings made after the Act will be on a tighter time frame than species already listed.
38. Threatened Species Conservation Act 1995 (NSW), s 74(1).
39. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
40. Endangered Species Protection Act 1992 (Cth), s 17, Sched 3.
41. See "Nature's invaders 'threaten nation', " Sydney Morning Herald, 11 June 1996, p 3.
42. National Parks and Wildlife Act 1974 (NSW), s 118a. See also National Parks and Wildlife Act 1974 (NSW), s 1 18b.
43. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
44. A so-called eight-part test is established under the Act for determining whether there is likely to be a significant effect on threatened species, populations or ecological communities: see Threatened Species Conservation Act 1995 (NSW), s 94(2) and Environmental Planning and Assessment Act 1979 (NSW), s 5a.
45. See Threatened Species Conservation Act 1995 (NSW), ss 92(2) and 95(1) as well as Environmental Planning and Assessment Act 1979 (NSW), ss 77(3)(dl) and 112B(IB).
46. For example, Threatened Species Conservation Act 1995 (NSW).
47. Environmental Planning and Assessment Act 1979 (NSW), ss 84,85,87 and 113. However, under Pt IV, ss 22, 41,61 and 79 of the latter Act there does not seem to be any obligation to seek submissions on a SIS for non-designated development.
48. The Minister can, in certain circumstances, stand in the shoes of the Director-General or "call-in" matters for their own determination: see, eg, Environmental Planning and Assessment Act 1979 (NSW), ss 77a(3) and 77b, respectively. Only in the former situation does an obligation to consult arise: Environmental Planning and Assessment Act 1979 (NSW), s 77λ(5). See also Environmental Planning and Assessment Act 1979 (NSW), ss 112b and 112c.
49. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
50. Threatened Species Conservation Act 1995 (NSW), s 97 and Environmental Planning and Assessment Act 1979 (NSW), ss 77c and 11 2d.
51. Environmental Planning and Assessment Act 1979 (NSW), ss 90(1) and 111(4).
52. Environmental Planning and Assessment Act 1979 (NSW), s 34a. See also Environmental Planning and Assessment Act 1979 (NSW), s 26.
53. See Rundle v TMreed Shire Council (1989) 68 LGRA 308.
54. Namely, science, animal welfare and threats to life or property: see Threatened Species Conservation Act 1995 (NSW), s 91(2).
55. National Parks and Wildlife Act 1974 (NSW), s 91(3).
56. See B Elling, "Research on SEA in Denmark" in S Morel, R Verheem and N Lee (eds), EIA Methodology and Research: Third EU Workshop on EIA, Delphi 1994 (European Commission, 1994), p 61.
57. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
58. J Bradsen, "The 'Green Issues': Biodiversity Conservation in Australia" in B Boer, R Fowler and N Gunningham (eds), Environmental Outlook: Law and Policy (Federation Press, Sydney, 1994), p 190.
59. George Martin, the manager of the Beatles, rarely gets a mention in discussions about the band. On reflection, however, it is easy to appreciate his importance. And so it is for public participation in environmental decision-making processes.
60. It is obliquely mentioned under s 3(f) which aims to "encourage the conservation of threatened species, populations and ecological communities by the adoption of measures involving co-operative management. " Public participation is, of course, a central plank under the Environmental Planning and Assessment Act 1979 (NSW), which has been amended substantially by the Threatened Species Conservation Act 1995 (NSW). See s 5(c) of the Environmental Planning and Assessment Act 1979 (NSW). On the international stage, see Principle 10 of the Rio Declaration On Environment and Development, 1992.
61. Similar provisions exist for provisional listing for species presumed extinct: Threatened Species Conservation Act 1995 (NSW), ss 30-32.
62. There does not seem to be any obligation to seek submissions on a SIS for non-designated development. However, where a consent authority engages in the practice of notification a "reasonable expectation" may arise and such rights may be enforceable: Nelson v Burwood Municipal Council (1991)
63. LGRA 39.
64. Section 106 of the Threatened Species Conservation Act 1995 (NSW) has now replaced s 92c of the National Parks and Wildlife Act 1974 (NSW).
65. Threatened Species Conservation Act 1995 (NSW), s 147(1). The legislation creates an exception for development in relation to the Olympics: s 147(4). However, the treatment of the Green and Gold Bell Frog arguably demonstrates that the political sphere will ensure that this exception will not be of too much concern!
66. The public also has ready access to certain information held by public authorities. For example, recovery plans and threat abatement plans as well as registers of critical habitat and licences are available for inspection: see ss 67(2), 84(2) and ss 55(2), 104(2) respectively of the Threatened Species Conservation Act 1995 (NSW).
67. D Robinson, "Public Participation in Environmental Decision-Making" (1993) EPLJ 320. 62* Threatened Species Conservation Act 1995 (NSW), ss 57, 75, 95(1), 111(3)-(4) and Environmental Planning and Assessment Act 1979 (NSW), ss 77a(2), 77c, 1 12d and 11 2e.
68. See, eg, the guidelines for recovery plans and threat abatement plans: Threatened Species Conservation Act 1995 (NSW), ss 57(1)(b) and 75(l)(b).
69. Threatened Species Conservation Act 1995 (NSW): see ss 60(2) (recovery plans), 78(2) (threat abatement plans).
70. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
71. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
72. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
73. Upon receiving such a "request" the Director-General "must" duly amend the plan. See also Threatened Species Conservation Act 1995 (NSW), ss 46, 64 and 82.
74. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
75. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
76. Environmental Planning and Assessment Act 1979 (NSW), ss 77a(3) and 112c(2).
77. See B Elling, "Research on SEA in Denmark" in S Morel, R Verheem and N Lee (eds), EIA Methodology and Research: Third EU Workshop on EIA, Delphi 1994 (European Commission, 1994), p 61.
78. J Rohde, "The Objects Clause in Environmental Legislation-The Nature Conservation Act 1992 (Qld) Exemplified" (1995) EPU 80.
79. (1991) 23 NSWLR 710 at 726.
80. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
81. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
82. For instance, see the wording of s 5(c) of the Environmental Planning and Assessment Act 1979 (NSW).
83. G M Bates, Environmental Law in Australia (4th ed, Butterworths, Sydney, 1995), p 24.
84. For example, see Principles 3, 4, 8, 15 and 16 of the Rio Declaration on Environment and Development 1992 and the Intergovernmental Agreement on the Environment, May 1992 (schedule to the National Environment Protection Council Act 1995 (NSW).
85. Acts Interpretation Act 1901 (NSW), s 33.
86. Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 and Australian Postal Corp v Botany Municipal Council (1989) 69 LGRA 86.
87. WCED, Our Common Future: Brundtland Report (Oxford University Press, Oxford, 1987). For the view that "sustainability" and related notions have a longer history see P Sands, Principles of International Environmental Law I: Frameworks, Standards and Implementation (Manchester University Press, Manchester, 1995), pp 198-199.
88. See B Elling, "Research on SEA in Denmark" in S Morel, R Verheem and N Lee (eds), EIA Methodology and Research: Third EU Workshop on EIA, Delphi 1994 (European Commission, 1994), p 61.
89. Sec, eg, R Eckersley, "The Concept of Sustainable Development" in J M Behrens and B M Tsamenyi (eds), Our Common Future (Faculty of Law, University of Tasmania, Hobart, 1991).
90. That is, the decision-maker must have regard to the objects of the Act (which includes ecologically sustainable development) amongst other considerations.
91. Threatened Species Conservation Act 1995 (NSW), ss 57(1)(a), 75(1 Xa) and s 97(1 Xe) as well as Environmental Planning and Assessment Act 1979 (NSW), ss 77c(g), 112(g) and 112e(I).
92. He or she is not bound by such principles in deciding not to make the declaration.
93. Threatened Species Conservation Act 1995 (NSW), s 116(2)(b).
94. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
95. See Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 and Australian Postal Corp v Botany Municipal Council (1989) 69 LGRA 86.
96. Sec, eg, provisions relating to critical habitat such as ss 44(1) and 47(1)(b) of the Threatened Species Conservation Act 1995 (NSW).
97. See E Christie, "The Eternal Triangle: The Biodiversity Convention, Endangered Species Legislation and the Precautionary Principle" (1993) EPLJ 470 at 480 and R C Earll, "Commonsense and the Precautionary Principle: An Environmentalist's Perspective" (1992) 24 Marine Pollution Bulletin 182.
98. See s 6(2)(a) of the Protection of the Environment Administration Act 1989 (NSW), which is adopted by s 4(1) of the Threatened Species Conservation Act 1995 (NSW).
99. See Principle 15 of the Rio Declaration on Environment and Development which is, however, arguably weaker insofar as it refers only to cost-effective measures.
100. Intergovernmental Agreement on the Environment, May 1992, s 3.5.1. This agreement has now been enshrined in legislation by virtue of parallel legislation passed by Commonwealth and State governments: see, eg, the schedule to the National Environment Protection Council Act 1995 (NSW).
101. Section 6(2)(a) of the Protection of the Environment Administration Act 1989 (NSW), which is adopted by s 4(1) of the Threatened Species Conservation Act 1995 (NSW).
102. (1993) LGERA 270. The precautionary principle has been considered by the court on subsequent occasions: see Nichols v Director of National Parks and Wldlife (1995) 84 LGERA 397 and Greenpeace v Redbank Power Co Pty Ltd (1995) 86 LGERA 143. See also Simpson v Ballina Council (unreported, Land and Environment Court, Stewart A, 23/7/93) for the application of the principle in relation to the merits of a development application. For overseas cases considering the idea sec R v Secretary of State for Trade and Industry: Ex parte Duddridge (unreported, Queen's Bench Division, Farquharson LJ and Smith J, 4 October 1994).
103. Greenpeace New Zealand Inc v Minister for Fisheries (unreported, High Court of New Zealand, Gallen J, 27 November 1995); and Shehla Zia v Wapda SC (Pakistan), 12 December 1994, Vol XLVI All Pakistan Legal Decisions 693. The latter two cases cite Leatch.
104. Leatch v National Parks and Wildlife Service (1993) LGERA 270 at 282.
105. On this point, see J Cameron and J Abouchar, "The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment" in (1991) 14 Boston College of International and Comparative Law Review 1 at 3.
106. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
107. K S Yagerman, "Protecting Critical Habitat under the Federal Endangered Species Act" (1990) 20Environmental Law 811 at 819.
108. B Wynne and S Mayer, "How Science Fails the Environment" (1993) 138 New Scientist 33.
109. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
110. See, eg, Greenpeace v Redbank Power Co Pty Ltd (1995) 86 LGERA 143.
111. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
112. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
113. See Environmental Planning and Assessment Act 1979 (NSW), ss 26 and 34a. There is the potential problem that it is for the decision-maker under the planning regime to initiate such consultations. It is problematic whether the Director-General of Urban Affairs and Planning or, perhaps more relevantly, local councils are in the best position to know if critical habitat or threatened species, populations and ecological communities are going to be affected by planning instruments.
114. See Environmental Planning and Assessment Act 1979 (NSW), ss 90 and 111.
115. See, eg, Threatened Species Conservation Act 1995 (NSW), ss 10, 12, 14, 94, 110(g) and s 112 of the Environmental Planning and Assessment Act 1979 (NSW).
116. Such an interpretation would be consistent with the approach of the court to this issue under both pollution and planning law: see, eg, Randwick Municipal Council v Crawley (1986) 60 LGRA 277.
117. Jarasius v Forestry Commission (No 1) (1988) 71 LGRA 79.
118. Drummoyne Municipal Council v MSB (1991) 72 LGRA 186.
119. SPCC v Blayney Abattoirs Pty Ltd (1991) 72 LGRA 221. '
120. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
121. For example, see Threatened Species Conservation Act 1995 (NSW), ss 40(2), 44(1)(a) (critical habitat), 57 (recovery plans), 75 (threat abatement plans). For case law on this point see Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 and Australian Postal Corp v Botany Municipal Council (1989) 69 LGRA 86.
122. For a discussion of this issue see J C Kunich, "The Fallacy of Deathbed Conservation Under the Endangered Species Act" (1994) 24 Environmental Law 501 at 537.
123. R C Earll, "Commonsense and the Precautionary Principle: An Environmentalist's Perspective" (1992) 24 Marine Pollution Bulletin 182.
124. D Farrier, "Conserving Biodiversity on Private Land: Incentives for Management or Compensation for Lost Expectations" (1995) 19 Harvard Environmental Law Review 303 at 384-385.
125. D J Rohlf, "Six Biological Reasons Why the Endangered Species Act Doesn't Work-And What To Do About It" (1991) 5 Conservation Biology 273 at 276.
126. The latter situation is often more specifically referred to as the "polluter pays" principle. For a general discussion and overview of these issues sec R Ramsay and G C Rowe, Environmental Law and Policy in Australia: Text and Materials (Butterworths, Sydney, 1995), pp 77-87.
127. The legislation does make provision for a person convicted under newly created offences to mitigate or restore habitat damage: see s 11 8e National Parks and Wildlife Act 1974 (NSW). See also National Parks and Wildlife Act 1974 (NSW), Pt 8a generally.
128. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
129. See, eg, Threatened Species Conservation Act 1995 (NSW), s 110(2)(h) and (i).
130. The Squirrel Glider on Barrenjoey Peninsular became the first endangered population listed under the legislation. Furthermore, a preliminary determination has been made in relation to two endangered ecological communities (Eastern Suburbs Banksia Scrub and Cumberland Plains Woodlands) and another endangered population (Manly population of Little Penguin): see National Parks and Wildlife Service Information Circular No 2 (November 1996).
131. K Brebach, "The Bole of the Community in the Threatened Species Conservation Act 1995, " unpublished paper at the (NSW) Threatened Species Conservation Act. In Action Seminar, Australian Museum (31 May 1996). These figures seems to be consistent with US costings of an average of $US 60,000 per species: see N Kubasek, N Browne and R Mohn-KIee, "The Endangered Species Act: Time for a New Approach?" (1994) 23 Environmental Law 329 at 336.
132. J Angel, untitled seminar paper presented at the (NSW) Threatened Species Conservation Act. In Action Seminar, Australian Museum (31 May 1996).
133. Presumably, recovery plans prepared on behalf of ecological communities can sometimes reduce costs insofar as they will cover a number of different threatened species (albeit in a particular area).
134. See Threatened Species Conservation Act 1995 (NSW), s 57(1).
135. A separate debate exists as to the appropriate time frame over which economic value should be determined.
136. Something approaching the full flavour of the debate can be gleaned from the following: J Bradsen, "The 'Green Issues': Biodiversity Conservation in Australia" in B Boer, R Fowler and N Gunningham (eds), Environmental Outlook: Law and Policy (Federation Press, Sydney, 1994), p 189; HDoremus, "Patching the Ark: Improving Legal Protection of Biological Diversity" (1991) 18 Ecology Law Quarterly 265 at 269-275; S Edmonds and J Giddings, "Guaranteeing the Survival and Evolution of Endangered Species: An Analysis of the Flora and Fauna Guarantee Act (Victoria)" (1992) EPLJ 421 at 422; D Farrier, "Conserving Biodiversity on Private Land: Incentives for Management or Compensation for Lost Expectations" (1995) 19 Harvard Environmental Law Review 303 at 305.
137. Threatened Species Conservation Bill (NSW), Legislative Council, Hansard, 14 and 15 December 1995, pp 5018 (per Ryan) and 5021 (per Richard Jones); J C Kunich, 'The Fallacy of Deathbed Conservation Under the Endangered Species Act" (1994) 24 Environmental Law 501 at 522-528; D O Linder, "'Are AH Species Created Equal?' and Other Questions Shaping Wildlife Law" (1988) 12 Harvard Environmental Law Review 157 at 158-168, 176177; G D Meyers and S Temby, "Biodiversity and the Law: A Review of the Commonwealth Endangered Species Protection Act of 1992" (1994) 3 Griffith Law Review 39 at 54-59; M Sagoff, "On the Preservation of Species" (1980) 7 Columbia Journal of Environmental Law 33 at 47-53, 6365; E O Wilson, The Diversity of Life (Penguin, Ringwood, 1992), pp 330-332 and K S Yagerman, "Protecting Critical Habitat under the Federal Endangered Species Act" (1990) 20 Environmental Law 811 at 820.
138. See B Elling, "Research on SEA in Denmark" in S Morel, R Verheem and N Lee (eds), EIA Methodology and Research: Third EU Workshop on EIA, Delphi 1994 (European Commission, 1994), p 61.
139. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
140. Section 6(2)(b) of the Protection of the Environment Administration Act 1989 (NSW), which is adopted by s 4(1) of the Threatened Species Conservation Act 1995 (NSW).
141. Threatened Species Conservation Act 1995 (NSW), s 4(1) (definition of "biological diversity").
142. Convention on Biological Diversity (June 1992), Art 2.
143. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
144. See the definition of "animal" in Threatened Species Conservation Act 1995 (NSW), s 4(1). As to the definition of "fish" see Fisheries Management Act 1994 (NSW), s 5.
145. Attorney-General, Jeff Shaw, Threatened Species Conservation Bill (NSW), Legislative Council, Hansard, 14 and 15 December 1995, p 5101.
146. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
147. First priority goes to nationally endangered species, populations and communities: see Threatened Species Conservation Act 1995 (NSW), s 58(2).
148. These are the two main models identified by Bradsen in his analysis of biodiversity legislation. He also identifies the "reservation" or "conservation" model based on the idea of hiving off areas as a preserve for wildlife (either as protected areas or under private conservation agreements). The National Parks and Wildlife Act 1974 (NSW) exemplifies this approach. See generally J Bradsen, "Biodiversity Legislation: Species, Vegetation, Habitat" (1992) EPU 175180. The habitat model also feeds into environmental impact assessment and the identification of harmful processes and activities.
149. Threatened Species Conservation Act 1995 (NSW), s 37(1).
150. Such a determination requires the preparation of a SIS which, in turn, requires consideration of ameliorative or mitigating measures. Such measures undoubtedly will include measures for habitat protection: see, eg, Threatened Species Conservation Act 1995 (NSW), s 94 and s 112(1 b) of the Environmental Planning and Assessment Act 1979 (NSW). As to the contents of SISs see Threatened Species Conservation Act 1995 (NSW), s 110 generally.
151. (1991)73 LGRA 126. In this well-known and discussed case, old offences of "taking" fauna under the National Parks and Wildlife Act 1974 (NSW) were held to include indirect disturbance to habitat.
152. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
153. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
154. H Latin, "Regulatory Failure, Administrative Incentives and the New Clean Air Act" (1991) 21 Environmental Law 1647 at 1681.
155. J Bradsen, "Biodiversity Legislation: Species, Vegetation, Habitat" (1992) 9 EPU 175-180
156. As to the cultural influences on, and sustained by, regulatory agencies generally see generally H Latin, "Regulatory Failure, Administrative Incentives and the New Clean Air Act" (1991) 21 Environmental Law 1647-1720.
157. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
158. Threatened Species Conservation Act 1995 (NSW), s 58(2).
159. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
160. Threatened Species Conservation Act 1995 (NSW), s 37(1).
161. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
162. This assumption seems sustainable in lieu of the discussion above.
163. This, of course, does not diminish the vital role of threat abatement plans in fighting key threatening processes associated with non-native species: see "Nature's invaders 'threaten nation'" Sydney Morning Herald, II June 1996, p 3. See also S Edmonds and J Giddings, "Guaranteeing the Survival and Evolution of Endangered Species: An Analysis of the Flora and Fauna Guarantee Act (Victoria)" (1992) 9 EPLJ 421 at 423.
164. For an overview of these issues see G M Bates, Environmental Law in Australia (4th ed, Butterworths, Sydney, 1995), pp 179-189. See also E Christie, "The Eternal Triangle: The Biodiversity Convention, Endangered Species Legislation and the Precautionary Principle" (1993) 10 EPLJ 470 at 483 on the need for a new approach.
165. J C Kunich, "The Fallacy of Deathbed Conservation Under the Endangered Species Act" (1994) 24 Environmental Law 501 at 534.
166. See B Elling, "Research on SEA in Denmark" in S Morel, R Verheem and N Lee (eds), EIA Methodology and Research: Third EU Workshop on EIA, Delphi 1994 (European Commission, 1994), p 61.
167. See Latin's fourth "law" of administrative behaviour: ie, agencies will not meet statutory deadlines where resources, etc are inadequate: H Latin, "Regulatory Failure, Administrative Incentives and the New Clean Air Act" (1991) 21 Environmental Law 1647 at 1666-1670.
168. See the discussion and resolution (of sorts) of this issue in Threatened Species Conservation Bill (NSW), Legislative Council, Hansard, Wand 15December 1995, pp5104-5106.
169. This seems to be a term of art in the US. See D Farrier, "Conserving Biodiversity on Private Land: Incentives for Management or Compensation for Lost Expectations" (1995) 19 Harvard Environmental Law Review 303 at 407.
170. See B Elling, "Research on SEA in Denmark" in S Morel, R Verheem and N Lee (eds), EIA Methodology and Research: Third EU Workshop on EIA, Delphi 1994 (European Commission, 1994), p 61.
171. See N Kubasek, N Browne and R Mohn-Klee, "The Endangered Species Act: Time for a New Approach?" (1994)
172. Environmental Law 329 at 333 and J C Kunich, "The Fallacy of Deathbed Conservation Under the Endangered Species Act" (1994) 24 Environmental Law 501 at 536-537 who outline the US position.
173. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
174. Threatened Species Conservation Act 1995 (NSW), s 17(2).
175. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
176. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
177. See B Elling, "Research on SEA in Denmark" in S Morel, R Verheem and N Lee (eds), EIA Methodology and Research: Third EU Workshop on EIA, Delphi 1994 (European Commission, 1994), p 61.
178. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
179. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
180. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
181. B Preston, "Some Elements of Effective Environmental Laws" (1987) EPLJ 280 at 281. There is a wealth of (sometimes confused, sometimes inspiring and sometimes esoteric) material on environmental ethics. For a start see B Devall & G Sessons, Deep Ecology: Living as if Nature Mattered (Peregrine Smith Books, Salt Lake City, 1985); R Eckersley, Environmentalism and Political Theory: Towards an Ecocentric Approach (ACL Press, London, 1992); L Ferry, The New Ecological Order (University of Chicago Press, London, 1995); E C Hargrove, Foundations of Environmental Ethics (Prentice Hall, New Jersey, 1989); A Leopold, A Sand County Almanac (Oxford University Press, Oxford, 1949); M W Lewis, Green Delusions: An Environmentalist Critique of Radical Environmentalism (Duke University Press, London, 1992); J Lovelock, Gaia: A New Look at Life on Earth (Oxford University Press, Oxford, 1995) and C Merchant, The Death of Nature: Women, Ecology and the Scientific Revolution (Harper & Row, New York, 1980).
182. H Doremus, "Patching the Ark: Improving Legal Protection of Biological Diversity" (1991) 18 Ecology Law Quarterly 265 at 316.
183. See generally D Robinson, "Public Participation in DecisionMaking" (1993) EPLJ 320-340 and W R D Sewell and T O'Riordan, "The Culture of Participation in Environmental Decision-making" (1976) 16 Natural Resources Journal 121. The courts have also been at pains to express the value of public participation: Scurr v Brisbane City Council (1973) 133 CLR 242 at 251-252.
184. Canterbury District Residents and Ratepayers Association Inc v Canterbury Municipal Council (1991) 73 LGRA 317 at 320.
185. S R Amstein, "A Ladder of Citizen Participation" (1969) Journal of the American Institute of Planners 216-223.
186. R Ramsay and G C Rowe, Environmental Law and Policy in Australia: Text and Materials (Butterworths, Sydney, 1995), pp 114-115.
187. P Alviano, "Environmental Conflict and the Failure of Community Participation" (1995) 6 ADRJ 33 at 35.
188. The obligation to consider submissions is usually mandated under the Act: see Threatened Species Conservation Act 1995 (NSW), ss 42,62,68(2), 80,85(2), 97(1)(b) and 125 as well as Environmental Planning and Assessment Act 1979 (NSW), ss 77c(c), 112d(c) and 112e(c). However, even if this were not so, decision-makers must always consider relevant factors: see Parramatta City Council v Hale (1982) 47 LGRA 319. In the unlikely event that the statute does not impose a duty to consider representations and a representation is "irrelevant" then decision-makers should not consider it: Parramatta City Council v Hale (1982) 47 LGRA 319.
189. The foregoing is not meant to denigrate or underestimate the vital importance of open standing provisions which are, at once, a symbol of the strength of the environment movement in NSW and a substantial check on governmental power. Such participatory rights have been hard-fought and won, lost and granted over the course of a long struggle.
190. The court is not concerned with whether the decision is "good" or "bad" but, rather, with whether it is "manifestly unreasonable" or reasonably open: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. See also Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223.
191. S Edmonds and J Giddings, "Guaranteeing the Survival and Evolution of Endangered Species: An Analysis of the Flora and Fauna Guarantee Act (Victoria)" (1992) 9 EPLJ 421 at 426.
192. These functions are essentially restricted to advising, consulting, reviewing and monitoring: see Threatened Species Conservation Act 1995 (NSW), s 139.
193. No doubt conscious of this fact, the government did not support the establishment of the Advisory Council. Rather, the amendment was passed with the help of the Opposition on the motion of Richard Jones: see Threatened Species Conservation Bill (NSW), Legislative Council, Hansard, 14 and 15 December 1995, pp 5100 and 5113-5114.
194. D O Linder, '"Are All Species Created Equal?' and Other Questions Shaping Wildlife Law" (1988) 12 Harvard Environmental Law Review 157 at 158.
195. See Threatened Species Conservation Bill (NSW), Legislative Council, Hansard, 14 and 15 December 1995, p 5119.