Deceloping an approach to the listing of ecological communities to achieve conservation outcomes

Australasian Journal of Natural Resources Law and Policy

Volumn 13, Issue 1, 2009, Pages 61-91

  Beeton, Robert J S ^a   McGrath, Chris ^a  

^a UNIVERSITY OF QUEENSLAND   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 68149132779     PISSN: 13205323     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (80)

1. Kurt Lewin, Field Theory in Social Science (1951).
2. Established under sections 502 and 503 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
3. Brian J Preston and Paul Adam, 'Describing and listing threatened ecological communities under the Threatened Species Act 1995 (NSW): Part 1 - the assemblage of species and the particular area' (2004) 24 Environmental and Planning Law Journal 250 ('Describing and Listing Pt 1') Brian J Preston and Paul Adam, 'Describing and listing threatened ecological communities under the Threatened Species Act 1995 (NSW): Part 2 - the role of supplementary descriptors and the listing process' (2004) 24 Environmental and Planning Law Journal 372 ('Describing and Listing Pt 2').
4. th ed, 2006)
5. M D Young, N Gunningham, J Elix, J Lambert, B Howard, P Grabosky and E McCrone, Reimbursing the Future: An Evaluation of Motivational, Voluntary, Price-based, Property-right, and Regulatory Incentives for the Conservation of Biodiversity. Report by CSIRO Division of Wildlife and Ecology, the Australian Centre for Environmental Law, and Community Solutions to the Biodiversity Unit, Department of the Environment, Sport and Territories. Biodiversity Series, Paper No. 9 (Australian Government Publishing Service, Canberra, 1996) ch 2; Allan Curtis and Michael Lockwood, 'Landcare and catchment management in Australia: Lessons for State-sponsored community participation' (2004) 13 Society and Natural Resources 61.
6. Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993). For text of the Convention see Secretariat of the Convention on Biological Diversity (SCBD), Convention on Biological Diversity. Text of the Convention (SCBD, Montreal, Canada, 2007) (Biodiversity Convention) 〈http://www.cbd. int/convention/convention.shtml〉 at 15 September 2007.
7. Hugh P Possingham, Sandy J Andelman, Mark A Burgman, Rodrigo A Medellin, Larry L Master and David A Keith, 'Limits to the use of threatened species lists' (2002) 17(11) Trends in Ecology and Evolution 503.
8. Reed F Noss, 'High-risk ecosystems as foci for considering biodiversity and ecological integrity in ecological risk assessments' (2000) Environmental Science and Policy 321; Possingham et al, above n 6.
9. Under section 475 of the EPBC Act.
10. Minister for the Environment and Heritage v Greentree (No 2) (2004) 138 FCR 198; [2004] FCA 741; and (No 3) [2004] FCA 1317; (2004) 136 LGERA 89.
11. For an overview of vegetation clearing laws in Australia, see Productivity Commission, Impacts of Native Vegetation and Biodiversity Regulations. Report No 29 (Productivity Commission, Melbourne, 2004) 〈http://www.pc.gov.au/inquiry/nativevegetation/docs/finalreport〉 at 30 May 2008; and, for Queensland, Chris McGrath, 'End of broadscale clearing in Queensland' (2007) 24 Environmental and Planning Law Journal 5.
12. Preston and Adam, 'Describing and Listing Pt 1' and 'Describing and Listing Pt 2', above n 3.
13. Peter Grabosky and Neil Gunningham, 'The agriculture industry' in Neil Gunningham and Peter Grabosky, Smart Regulation: Designing Environmental Policy (1998) 267, 278-9.
14. EPBC Act policy guidelines are available on the Australian Government, Department of Environment, Water, Heritage and the Arts [DEWHA(Cth)], 'EPBC Act policy statements' webpage 〈http://www.environment. gov.au/epbc/guidelines-policies.html#threatened〉 at 17 February 2009.
15. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 189.
16. See DEWHA, 'Threatened species and ecological communities' webpage 〈http://www.environment.gov.au/biodiversity/threatened/index.html〉 at 17 February 2009.
17. Attorney-General's Department, Environment and Heritage Legislation Amendment Act (No. 1) 2003, Act No 88 of 2003 as amended, incorporating amendments to Act No 165 of 2006 〈http://www.comlaw.gov.au/ComLaw/ Legislation/ActCompilation1.nsf/0/340B715E6AD6953CCA25728F001B90D4/$file/ EnvironHeriLegAmendNo12003.pdf〉 at 15 September 2007.
18. Preston and Adam, 'Describing and Listing Pt 1' and 'Describing and Listing Pt 2', above n 3.
19. Michael Eraut, 'Informal learning in the workplace' (2004) 26 Studies in Continuing Education 247.
20. Lewin, above n 1; C S Holling, Fikret Berkes and Carl Folke, 'Science, sustainability and resource management' in Fikret Berkes and Carl Folke (eds), Linking Social and Ecological Systems: Management Practices and Social Mechanisms for Building Resilience (1998) 342.
21. The relevant internet site entry point is the DEWHA (Cth), 'Threatened species and ecological communities' webpage 〈http://www.environment.gov.au/ biodiversity/threatened/index.html〉 at 17 February 2009.
22. R J S (Bob) Beeton, Kristal I Buckley, Gary J Jones, Denise Morgan, Russell E Reichelt and Dennis Trewin (Australian State of the Environment Committee), Australia State of the Environment 2006. Independent report to the Australian Government Minister for the Environment and Heritage (Department of the Environment and Heritage, Canberra, 2006).
23. Stephen Dovers, Environment and Sustainability Policy: Creation, Implementation, Evaluation (The Federation Press, Sydney, 2005) 12.
24. Ibid 15, 59-65; and ch 8 ('Policy monitoring and evaluation').
25. nd ed, 1994) 167.
26. There are many texts on regulatory theory and design. Two useful ones for environmental regulation are: Neil Gunningham and Peter Grabosky, Smart Regulation: Designing Environmental Policy (1998)
27. Malcolm K Sparrow, The Regulatory Craft: Controlling Risks, Solving Problems, and Managing Compliance (2000).
28. See generally, Ronald B Mitchell, 'Compliance Theory: An overview' in James Cameron, Jacob Werksman and Peter Roderick (eds), Improving Compliance with International Environmental Law (Earthscan Publications, London, 1996) 3.
29. These terms are explained by Neil Gunningham, 'Introduction' in Neil Gunningham and Peter Grabosky, Smart Regulation: Designing Environmental Policy (1998) 26-7, and will be discussed below.
30. See also Michael Jacobs, The Green Economy: Environment, Sustainable Development and the Politics of the Future (1991) 152.
31. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 266B as amended.
32. Preston and Adam describe the approach taken in the State of New South Wales: Preston and Adam, 'Describing and Listing Pt 1' and 'Describing and Listing Pt 2', above n 3.
33. The definition is the legal expression of what constitutes an ecological community; the description on the other hand is how one would recognise the community in the field.
34. Available on the website of the Australian Government, Attorney General's Department ComLaw [Commonwealth of Australia Law. Incorporating the Federal Register of Legislative Instruments], 'Inclusion of ecological communities in the list of threatened ecological communities under section 181 of the Environment Protection and Biodiversity Conservation Act 1999' (20 December 2005) 〈http://www.comlaw.gov.au/ComLaw/Legislation/ LegislativeInstrument1.nsf/all/search/5505C010D8C04939CA257169007DD7C6〉 at 30 May 2008.
35. Robert J S Beeton (chair TSSC), 'Advice to the Minister for the Environment and Heritage from the Threatened Species Scientific Committee (TSSC) on Amendments to the List of Ecological Communities under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act)' (adopted November 2004) 〈http://www.environment.gov.au/biodiversity/threatened/ communities/pubs/box-gum.pdf〉 at 17 February 2009.
36. M P Austin, 'Vegetation theory in relation to cost-efficient surveys' in C R Margules and M P Austin (eds), Nature Conservation: Cost Effective Biological Surveys and Data Analysis (CSIRO Australia, Melbourne, 1991) 17; Preston and Adam, 'Describing and Listing Pt 1' and 'Describing and Listing Pt 2', above n 3.
37. G S Hope, 'Quaternary vegetation' in Robert S Hill (ed), History of the Australian Vegetation: Cretaceous to Recent (1994) 368
38. G Hope and J Kirkpatrick, 'The ecological history of Australian forests' in Kevin J Frawley and Noel M Semple (eds), Australia's Ever Changing Forests. Proceedings of the First National Conference on Australian Forest History, Canberra, 9-11 May 1988 [Special Publication No. 1. Department of Geography and Oceanography, Australian Defence Force Academy, Canberra, 1988] 3.
39. J C Z Woinarski, R J Williams, O Price and B Rankmore, 'Landscapes without boundaries: Wildlife and their environments in northern Australia' (2005) 32 Wildlife Research 377.
40. Ryan R J McAllister, Nick Abel, Chris J Stokes and Iain J Gordon, 'Australian Pastoralists in Time and Space: The Evolution of a Complex Adaptive System' (2006) 11(2) Ecology and Society 41.
41. R C Ellis, 'The relationships among eucalypt forest, grassland and rainforest in a highland area in north-eastern Tasmania' (1985) 10 Austral Ecology 297
42. L J Webb, 'Environmental relationships of the structural types of Australian rain forest vegetation' (1968) 49 Ecology 296.
43. For a discussion on condition, see Sue V Briggs and David Freudenberger, 'Assessment and monitoring of vegetation condition: Moving forward' (2006) 7(s1) Ecological Management & Restoration S74-S76.
44. That is, the assemblage of plants and animals in an area is no longer the ecological community in question.
45. Preston and Adam, 'Describing and Listing Pt 1' and 'Describing and Listing Pt 2', above n 3.
46. VAW (Kurri Kurri) Pty Ltd v Scientific Committee (2003) ('VAW') 58 NSWLR 631; (2003) 128 LGERA 419; [2003] NSWCA 297 at [6] (Spigelman CJ); Hornsby Shire Council v Vitone Pty Ltd (2003) 132 LGERA 122; [2003] NSWLEC 272 at [108] (McClellan CJ) and BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 at [138] (McClellan CJ).
47. Hornsby Shire Council v Vitone Pty Ltd (2003) 132 LGERA 122; [2003] NSWLEC 272, a case in which McClellan CJ held that the vegetation on the site had been modified over many years by clearing for orchards and crops, timber getting, mowing, major sewerage constructions work and filling with imported topsoil such that the vegetation was no longer part of the Blue Gum High Forest community. In Plumb v Penrith City Council [2002] NSWLEC 223, Pearlman CJ found that a somewhat degraded community did constitute part of the Cumberland Plain woodland.
48. VAW (2003) 58 NSWLR 631; (2003) 128 LGERA 419; [2003] NSWCA 297, in which the NSW Court of Appeal rejected challenges to the lack of precision in the description of the Kurri sand swamp woodlands.
49. Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources [2007] FCA 1480 at [50]-[58] (Stone J); and [2008] FCAFC 3 at [35]-[39] (Tamberlin, Finn and Mansfield JJ).
50. For the listing advice to the Minister, see DEWHA (Cth) Threatened Species and threatened ecological communities webpage, 'Bluegrass (Dichanthium spp) dominant grasslands of the Brigalow Belt Bioregions (North and South) Recommendation to the Minister for the Environment and Water Resources from the Threatened Species Scientific Committee (TSSC) on a public nomination for an ecological community listing on the Environment Protection and Biodiversity Conservation Act 1999 (the Act)' (effective 4 April 2001) 〈http://www.environment.gov.au/biodiversity/threatened/communities/ bluegrass.html〉 at 17 February 2009. Note: delisted 7 January 2009 as a review of this ecological community recommended its replacement by two ecological communities: 'Natural Grasslands of Queensland Central Highlands and the northern Fitzroy Basin', and 'Natural grasslands on basalt and fine textured alluvial plains of northern New South Wales and southern Queensland' (listing of both communities effective 7 January 2009): email from Assistant Director, Ecological Communities Section, DEWHA, John Vranjic, DEWHA, to E Newby, 24 February 2009.
51. This is described in Australian Government Department of Environment and Heritage, 'Ecological communities and the EPBC Act. A new approach to listing ecological communities' (May 2006) 〈http://www.environment.gov.au/ epbc/publications/pubs/ecological-communities-listing-approach-factsheet. pdf〉 at 17 February 2009. It includes the decision on listing of Box-gum grassy woodlands and derived grasslands as a threatened ecological community.
52. Chris McGrath, 'End of broadscale clearing in Queensland' (2007) 24 Environmental and Planning Law Journal 5.
53. See, eg, Philip Lowe, Graham Cox, Malcolm MacEwen, Tim O'Riordan and Michael Winter, Countryside Conflicts: The Politics of Farming, Forestry and Conservation (1986)
54. A Dennis Lemly, Richard T Kingsford and Julian R Thompson, 'Irrigated agriculture and wildlife conservation: Conflict on a global scale' (2000) 25 Environmental Management 2 485
55. I Gray and G Lawrence, A Future for Regional Australia: Escaping Global Misfortune (2001) ch 8
56. E F Lambin, B L Turner, H J Geist, S B Agbola, A Angelsen, J W Bruce, O T Coomes, R Dirzo, G Fischer, C Folke, P S George, K Homewood, J Imbernon, R Leemans, X Li, E F Moran, M Mortimore, P S Ramakrishnan, J F Richards, H Skanes, W Steffen, G D Stone, U Svedin, T A Veldkamp, C Vogel and J Xu J, 'The causes of land-use and land-cover change: Moving beyond the myths' (2001) 11 Global Environmental Change 261.
57. Land clearance is listed as a Key Threatening Process under the EPBC Act and is defined to include all forms of ecological communities - including grasslands: DEWHA (Cth) Threatened Species and threatened ecological communities webpage, 'Land Clearance. Advice to the Minister for the Environment and Heritage from the Threatened Species Scientific Committee on a public nomination of a Key Threatening Process under the Environment Protection and Biodiversity Conservation Act 1999' (effective 4 April 2001) (Land Clearance Advice) 〈http://www.environment.gov.au/biodiversity/ threatened/ktp/clearing.html〉 at 17 February 2009.
58. See the discussion by the Productivity Commission, above n 10.
59. See Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 43A and 43B.
60. See DEWHA, Land Clearance Advice, above n 49.
61. For the listing advice to the Minister, see DEWHA (Cth) Threatened Species and threatened ecological communities webpage, 'The community of native species dependent on natural discharge of groundwater from the Great Artesian Basin. Recommendation to the Minister of Environment and Water Resources from the Threatened Species Scientific Committee (TSSC) on a public nomination for an ecological community listing on the Environment Protection and Biodiversity Conservation Act 1999 (the Act)' (effective 4 April 2001) 〈http://www.environment.gov.au/biodiversity/threatened/communities/ gabsprings.html〉 at 17 February 2009.
62. For the listing advice to the Minister, see DEWHA (Cth) Threatened Species and threatened ecological communities webpage, 'Semi-evergreen vine thickets of the Brigalow Belt (North and South) and Nandewar Bioregions. Recommendation to the Minister of Environment and Water Resources from the Threatened Species Scientific Committee (TSSC) on a public nomination for an ecological community listing on the Environment Protection and Biodiversity Conservation Act 1999 (the Act)' (effective 24 December 1999) 〈http://www.environment.gov.au/biodiversity/threatened/communities/sevt. html〉 at 17 February 2009.
63. For the listing advice to the Minister, see DEWHA (Cth) Threatened Species and threatened ecological communities webpage, 'Brigalow (Acacia harpophylla dominant and co- dominant)' (effective 4 April 2001) 〈http://www.environment.gov.au/biodiversity/threatened/communities/ brigalow.html〉 at 17 February 2009.
64. The Environmental Defenders Office was acting on behalf of conservation NGOs. The threatened legal action did not eventuate and most of the communities were subsequently incorporated into much broader scale listings.
65. For the advice to the Minister, see 'Ecological Communities: A Way Forward. Threatened Species Scientific Committee Advice for The Minister for Environment and Heritage, September 2004' (2004) 〈http://www.environment. gov.au/epbc/publications/pubs/ecological-communities-listing-approach.pdf〉 at 17 February 2009.
66. See DEWHA (Cth) website, 'Threatened ecological communities under the Environment Protection and Biodiversity Conservation Act 1999 (last updated 21 January 2009) 〈http://www.environment.gov.au/biodiversity/ threatened/communities.html〉 at 17 February 2009.
67. 'Deep History': history beyond our ability to measure. See Joel Cracraft, 'Deep-History biogeography: Retrieving the historical pattern of evolving continental biotas' (1988) 37(3) Systematic Zoology 221
68. Brett R Riddle, 'The molecular phylogeographic bridge between deep and shallow history in continental biotas' (1996) 11 Trends in Ecology and Evolution 207). All Australian ecological communities have over the last 60,000 years been subject to two glacial periods and human influences. Consequently, we can often only speculate about the historic influences on the current expression of an ecological community.
69. The most dramatic cause of this is the loss of water flow because of a decline in Great Artesian Basin pressure due to agricultural and, more recently, mining-related extraction of artesian water, and the use of the springs as unfenced and reticulated watering points.
70. When communities intergrade they may do so over some considerable but variable distances. Typically species composition changes gradually and the point where one community stops and the other starts is not knowable.
71. P Jones and W H Burrows, 'State and transition models for rangelands. 13. A state and transition model for the mulga zone of south-west Queensland' (1994) 28 Tropical Grasslands 279.
72. IBRA - Australia's 85 Bioregions. See DEWHA, 'Interim Biogeographic Regionalisation for Australia - Regions' (22 February 2008)). For a description of the regionalisation, see DEWHA (Cth) Caring for Country website, 'Maps: Australia's bioregions (IBRA) 〈http://www.environment.gov.au/parks/nrs/ science/bioregion-framework/ibra/index.html〉 at 17 February 2009.
73. See DEWHA (Cth) 'Communities for Communities' newsletters avail 〈http://www.environment.gov.au/biodiversity/threatened/publications/ communities-newsletter/inrdex.html〉 at 17 February 2009.
74. In most areas, this will be a cessation of land clearance but exceptions may occur.
75. See 'The community of native species dependent on natural discharge of groundwater from the Great Artesian Basin. Recommendation to the Minister of Environment and Water Resources from the Threatened Species Scientific Committee (TSSC) on a public nomination for an ecological community listing on the Environment Protection and Biodiversity Conservation Act 1999 (the Act)' (effective 4 April 2001) 〈http://www.environment.gov.au/biodiversity/ threatened/communities/gabsprings.html〉 at 17 February 2009.
76. See listing advice on White Box-Yellow Box-Blakely's Red Gum Grassy Woodland and Derived Native Grassland at DEHWA (Cth) Species Profile and Threats Database 'White Box-Yellow Box-Blakely's Red Gum Grassy Woodland and Derived Native Grassland'
77. (effective 17 May 2006) 〈http://www.environment.gov.au/cgi-bin/ sprat/public/publicshowcommunity.pl?id=43&status= Critically20Endangered〉 at 17 February 2009; and listing advice on Peppermint Box (Eucalyptus odorata) Grassy Woodland of South Australia at DEHWA (Cth) Species Profile and Threats Database, 'Peppermint Box (Eucalyptus odorata) Grassy Woodland of South Australia' (effective 21 June 2007) 〈http://www.environment.gov.au/cgi-bin/sprat/public/publicshowcommunity.pl? id=36&status=Critically20Endangered〉 at 17 February 2009.
78. See, eg, Ben Boer, 'World Heritage disputes in Australia' (1992) 7 Journal of Environmental Law and Litigation 247; Nicola Pain and Sarah Wright, 'The rise of environmental law in New South Wales and federally: Perspectives from the past and issues for the future' (Paper presented at the national Environmental Law Association Annual conference, Broken Hill, NSW, 24 October 2003) 〈http://www.lawlink.nsw.gov.au/lawlink/lec/ll-lec.nsf/ vwFiles/Speech-24Oct03-PainJ.pdf/$file/Speech-24Oct03-PainJ.pdf〉 at 25 April 2008; US Department of Justice, Overview of the Endangered Species Act and highlights of recent litigation. Prepared by the Wildlife and Marine Resources Section, Environment and Natural Resources Division, United States Department of Justice, Washington DC) (updated January 04) 〈http://www. abanet.org/environ/committees/endangered/OverviewoftheESA.pdf〉 at 25 April 2008.
79. Reed F Noss, Edward T LaRoe III and J Michael Scott, Endangered Ecosystems of the United States: A Preliminary Assessment of Loss and Degradation. Biological Report 28 (National Biological Service, US Department of the Interior, Washington DC, 1995).
80. Dovers, above n 22, 12.