3.1 Protected Areas, and Biodiversity Conservation

Recovery Plans and the EPBC Act

  • Minister's Discretion: Legislative changes in 2007 made the creation of recovery plans discretionary, shifting from a mandatory requirement to an optional decision by the Environmental Minister.

  • Wilderness Society Argument: The Wilderness Society contends that the Environmental Minister's failure to create recovery plans is a violation of the EPBC Act, arguing for the restoration of mandatory recovery plans.

EPBC Act - Section 269AA: Decision Whether to Have a Recovery Plan

  • Ministerial Obligation and Discretion:

    • The minister is mandated to decide whether to formulate a recovery plan for a listed threatened species or ecological community within 90 days following the species' listing.

    • The legislation permits the minister to make such a decision at any subsequent time, allowing for flexibility based on evolving circumstances.

  • Initial vs. Subsequent Decision: The legislation differentiates between the initial decision, which must occur within 90 days, and any subsequent decisions, acknowledging the dynamic nature of conservation needs.

  • Decision not to have a recovery plan: The minister retains the authority to decide against creating a recovery plan, provided that such a decision is justified and consistent with the objectives of the EPBC Act.

  • Three-year Timeframe: If the minister decides to create a recovery plan, it must be developed and implemented within three years of that decision to ensure timely conservation action.

SPRAT Database

  • Species Profile and Threats Database (SPRAT): The SPRAT database is accessible to the public for verifying whether a recovery plan has been mandated for a specific species and whether it has been implemented.

  • Non-compliance: A significant number of species lack recovery plans within the stipulated three-year timeframe, indicating a shortfall in the implementation of conservation measures.

  • Focus of Wilderness Society: The Wilderness Society is primarily concerned with the failure to implement recovery plans within three years after the decision is made, rather than disputing the initial discretionary decision.

Audit General's Report (March 17, 2022)

  • Low Completion Rate: Only 2% of recovery plans are completed within the statutory timeframe, highlighting systemic delays and inefficiencies in the recovery planning process.

  • Administrative Deficiencies: The administration of threatened species and ecological communities under the EPBC Act is significantly impaired by these delays.

  • Lack of Demonstrated Efficiency: The Department responsible is unable to provide evidence of efficiency in the recovery planning process, raising concerns about resource allocation and management.

  • The minister makes the decision to create a recovery plan based on advice from the scientific community, though the decision is ultimately up to the minister.

Iconic Species Without Recovery Plans

  • The Wilderness Society has identified 11 iconic species that currently lack recovery plans, raising concerns about their long-term conservation prospects:

    • Black-crested Cockatoo

    • Ghost Bat

    • Australian Lungfish

    • Greater Glider

    • Tasmanian Wedge-tailed Eagle

    • Australian Grayling

Greater Glider Example

  • Status: Critically Endangered, underscoring the urgent need for targeted conservation efforts.

  • Recovery Plan Required: The SPRAT database confirms that a recovery plan is required for the Greater Glider to address its ongoing decline.

  • Existing mechanisms are inadequate to address the decline and support recovery, the recovery plan is required to stop the decline and support recovery.

  • Date of Decision: The decision to create a recovery plan was made on February 5, 2016, far exceeding the three-year timeframe stipulated by the EPBC Act.

  • Legal Action: The Wilderness Society is pursuing legal action in the Federal Court, asserting that the failure to implement a timely recovery plan constitutes a breach of the EPBC Act.

Protected Areas and In Situ Conservation

Environmental Law and Habitat Protection

  • Biodiversity conservation is primarily achieved through habitat protection in protected areas, where natural environments are safeguarded from human disturbance.

  • Laws are enacted to protect habitats and regulate activities that pose threats to biodiversity, providing a legal framework for conservation efforts.

  • Protection involves the establishment of boundaries and buffer zones to delineate and safeguard protected areas:

    • Identified habitat is clearly bounded using demarcation techniques.

    • A buffer zone is created around the protected area to minimize external impacts.

    • Rules and regulations govern permissible activities within these areas to ensure biodiversity conservation.

Lychee Case

  • The first test case of the EPBC Act centered on a World Heritage Area and a Lychee farm, examining the extent of environmental protection.

  • Issue: The core issue was whether the activities of Lychee farming, specifically the electrocution of flying foxes, adversely affected the ecological values of the World Heritage Area.

  • Interpretation: The EPBC Act was interpreted to include indirect impacts on World Heritage Areas, establishing it as a Commonwealth matter and setting a precedent for broader environmental protection.

In Situ Conservation

  • In situ conservation, which involves protecting species in their natural habitats, remains the cornerstone of biodiversity conservation efforts worldwide.

  • Zoos (ex situ conservation) play a limited role and are insufficient to protect the majority of species, highlighting the importance of preserving natural ecosystems.

Historical Rationale for Protected Areas

  • The establishment of protected areas is rooted in a complex set of historical factors and motivations that vary across regions and time periods.

  • In the 1800s, the creation of protected areas in Europe was partly driven by a reaction to the environmental degradation caused by the industrial revolution.

  • Motivations for establishing protected areas in the New World included the desire to preserve hunting grounds for recreational purposes and to promote tourism, capitalizing on natural landscapes.

New World Influence

  • The protected area regime, characterized by government-managed conservation zones, largely originated in the New World, with significant contributions from Canada, the US, South Africa, Australia, and New Zealand.

  • Key milestones in the development of protected areas include:

    • Yellowstone (1872): Designated as the world's first national park, marking a pivotal moment in the history of conservation.

    • Royal National Park: Recognized as the second oldest national park globally, situated 25 km south of Sydney, Australia.

Yosemite and Yellowstone

  • Yosemite:

    • Initially declared a state park in 1864, signaling early recognition of the area's natural value.

    • President Lincoln granted California the Yosemite Valley and the Mariposi Big Tree Grove for public use, resort, and recreation, promoting accessibility and enjoyment.

    • California's Inability to Care: The surge in tourism overwhelmed California's capacity to manage and protect the area effectively, leading to environmental degradation.

    • Federal Protection: The surrounding parks in the Sierra Nevada were integrated into three federally protected parks: Yosemite, Sequoia, and Kings Canyon, ensuring comprehensive conservation management.

  • Yellowstone Park Act of 1872:

    • Withdrew land from settlement, occupancy, or sale, preventing further development and resource exploitation.

    • Dedicated the area as a public park for the benefit and enjoyment of the people, emphasizing public access and stewardship.

    • Ignored the fact that people were already living in the area: Overlooked and disregarded the presence and rights of indigenous communities.

    • The PA movement involved the removal of people from places.

Four Characteristics for the National Park Movement (Nash, 1970)

  • Experience and valorization of the American wilderness ideal, romanticizing untouched natural landscapes.

  • The democratic state allows land to be held in trust by the state for the people, ensuring public ownership and stewardship.

  • Significant underdevelopment of the land, preserving natural conditions and minimizing human alteration.

  • Affluence of the nation allows land to be set aside, allocating resources for conservation efforts.

Conception of Nature

  • Our understanding and perception of nature profoundly influence the creation and management of modern Protected Areas (PAs):

    • Nature as wilderness and people as a threat, emphasizing the need to separate human activities from natural environments.

    • Nature as a spiritually charged wilderness, imbuing natural landscapes with intrinsic value and reverence.

    • The intrinsic value of nature, recognizing the inherent worth of natural ecosystems and species, independent of human use.

    • Nature as a resource, viewing natural resources as commodities to be managed and utilized sustainably.

Wilderness Idea

  • The concept of pristine wilderness often conflicts with historical realities, as many areas designated as wilderness have been shaped by human activities over centuries.

  • Cronin, "The Trouble with Wilderness": The establishment of national parks often coincided with the displacement of indigenous peoples following the final Indian Wars, leading to social and cultural disruption.

  • Original inhabitants were deemed inappropriate, and their uses of the land were redefined as illegal.

  • The idea that these places were exempt from human influence is a misconception.

  • Wilderness Act 1987: Continues to enshrine the wilderness ideal in legislation, defining wilderness as an area:

    • Area is not substantially modified by humans or is capable of being restored to such a state.

    • Area is of sufficient size to make maintenance feasible.

    • Area is capable of providing opportunities for solitude and appropriate self-reliant recreation.

Fortress Conservation

  • The protection model involves bounding and locking up the identified habitat, restricting human access and activities within protected areas.

  • Criticism:

    • Pre-existing communities have always existed in these places, challenging the notion of pristine, uninhabited wilderness.

    • Core area buffer zones exclude humans, leading to displacement and disruption of traditional livelihoods.

Consequences of the Traditional PA Model

  • Conservation Exclusion: Inhabitants and users are excluded through forced relocation, denying them access to resources and cultural heritage sites.

    • Mark Dowie describes this as conservation exclusion, highlighting the social and economic costs of restrictive conservation practices.

Transitioning to Inclusive Conservation

  • Conservation is increasingly embedded with inclusive social justice and equity concerns, recognizing the rights and needs of local communities.

    • Transitioning from exclusionary to inclusive practices, promoting collaborative partnerships and community-based conservation initiatives.

    • Efforts to engage collaboratively through community-based wise use management, empowering local communities to participate in decision-making processes.

  • Brockington: Protected areas seek to protect nature by abstracting them from complex social contexts, often overlooking the intricate relationships between people and the environment.

    • Much legislation is an exercise in virtualism, defining what human behavior ought to be, rather than addressing the root causes of environmental degradation.

  • Raymond et al: Traditional approaches to top-down management are no longer sufficient, emphasizing the need for inclusive and participatory decision-making processes:

    * Accountability

    * Efficiency

    * Transparency

    * Legitimacy

    * Inclusivity

Global Influence and International Organizations

  • The regimes are influenced by the historical evolution of the New World order and key global institutions (IOs).

  • The UN has been involved in crafting the approach to biodiversity conservation through habitat preservation and the PA movement.

  • IUCN (International Union for the Conservation of Nature):

    • Voluntary organization of professionals working in conservation.

    • Provides expertise on the conservation of the natural and cultural world.

    • Provides the global definition of a protected area.

IUCN Definition of a Protected Area

  • A clearly defined geographical space recognized, dedicated, and managed through legal or other effective means to achieve the long-term conservation of nature with associated ecosystem services and property management.

IUCN Categories for Protected Areas

  • Six different types of categories according to their management objectives.

  • Categories set the global standard:

    • Strict Nature Reserves

    • Wilderness Areas

    • National Parks

    • Natural Monuments or Features

    • Habitat/Species Management Areas

    • Protected Areas with Sustainable Use of Natural Resources

30 by 30 Targets

  • Coming Montreal Protocol that pledged to the global biodiversity framework conserving 30% of terrestrial and marine habitat by 2030 through protected areas (PAs) and OECMs.

National and State Frameworks

  • The National Reserve System (NRS) aims to secure the long-term protection for samples of all diverse ecosystems and plants and animals.

  • Built around the bioregional framework.

Bioregionalism

  • Large land areas characterized by broad landscape-scale natural features and environmental processes that influence the functions of the entire ecosystem.

    • Captures large-scale geophysical patterns across Australia.

    • Linked to fauna and flora assemblages and processes at ecosystem scales.

    • New South Wales regions are defined by bioregionalism.

Australia's National Reserve System

  • Based on 89 bioregions and 419 sub-regions.

  • About 22% of the landmass is protected through some form of NRS system.

  • Crosses state boundaries and is not restricted to Commonwealth territory.

Protected Areas in New South Wales

  • National Parks and Wildlife Act of 1974.

  • Manages more than 890 protected areas covering 7,500,000 hectares of land (about 10%).

  • Includes National Parks, reserves, Floral Reserves, World Heritage Areas, rainforests, beaches, alpine areas, etc.

Objects of the National Parks and Wildlife Act

  • Conservation of nature.

  • Conservation of habitat, ecosystems, and ecosystem processes.

  • Biological diversity at community, species, and genetic levels.

  • Conservation of landforms of significance.

  • Significant landscapes biological diversity.

Different Types of Protected Areas in NSW

  • National Parks

  • Historic Sites

  • State Conservation Areas

  • Regional Parks

  • Karst Conservation Reserves

  • Nature Reserves

  • Aboriginal Areas

National Park Category

  • Purpose: Preserving land as a national park is to identify, protect, and conserve areas containing outstanding or representative ecosystems, natural or cultural features, or landscapes that provide opportunities for public appreciation, inspiration, and sustainable visitors.

  • Plan of management: National parks require a plan of management that contains information about the natural environment, Aboriginal heritage, histories, and recreational opportunities.

Biodiversity Conservation Act of 2016

  • Allows for the designation of an Area of Outstanding Biodiversity Value (AOBV).

  • Criteria for AOBV:

    • Importance at the state, national, and global scale

    • Contributes to the persistence of threatened species and ecological communities

    • Irreplaceable biological distinctiveness

    • Outstanding ecological value for educational scientific research.

Wollemi Pine Example

  • A relic species known to occur in only one population in the Wollemi National Park.

  • Critical habitat declaration.

  • Declared AOBV as an asset of intergenerational significance.

Jurisdictional Issues

  • Some PAs lie within the scope of state legislation (National Parks and Wildlife Act, Wilderness Act, Biodiversity Conservation Act).

  • Some PAs lie within the scope of federal legislation (one of nine MNES's, World Heritage Sites, Ramsar Sites) and are subject to the EPBC Act.

Inclusive Conservation

  • Engagement with diverse actors and community conservation is the idea of promoting both social and ecological justice.

  • Environmental human rights: The right to a healthy and clean environment.

  • United Nations General Assembly: All human beings have a right to a clean and healthy environment.

  • That right to a clean and healthy environment embeds these principles means a right to:

    • access to information around environmental issues

    • participate in decision making

    • access to justice and challenge decision making

Aarhus Convention

  • Convention on Access to Information, Public Participation and Access to Justice and Environmental Matters is the gold standard for participation in environmental decision making.

  • Early two thousands legally binding mostly in Europe .

  • Enormously influential and persuasive and aspirational

  • The Aarhus convention has those three elements, three pillars, and these of course echo our MEA's multilateral environmental agreements principle 10 of the 1992 Rio declaration:

    • access to information

    • public participation decision making

    • access to justice

Global Biodiversity Framework Target 22

  • Global Biodiversity Framework Target is all about ensuring participation in decision making and access to justice and information related to biodiversity for all.

  • ensuring the full equitable inclusive effective and gender responsive representation patient decision making and access to justice information related to biodiversity by indigenous peoples and local communities, respecting their cultures and their rights over lands, territories, resources and traditional knowledge, as well as by women and girls, children and youth and persons with disabilities and ensure the full protection of environmental human rights defenders.

Warragamba Dam Wall Example

  • Proposal to raise the Dam's wall leading to possible flooding of Blue Mountains.

  • 14-day window to comment on proposals.

  • The information was only put out so people could have a SAC but there was no language assistance only in English for participation.

  • The issues with being able to understand English only came to light 3-4 month prior to proposal due date.

Summary

  • Biodiversity conservation essential to the existence of all life.

  • Well-established complex processes for creating protected area threatened species regimes through listing processes.

  • In situ conservation is essential to how we do biodiversity conservation.

  • We have international, federal, and state regimes.

  • Moving away from traditional fortress conservation to more inclusive conservation practices.