We must rip up our environmental laws to address the extinction crisis



The Christmas Island pipistrelle (Pipistrellus murrayi) became extinct in 2009.
Lindy Lumsden

Don Driscoll, Deakin University; Desley Whisson, Deakin University; Euan Ritchie, Deakin University; Mike Weston, Deakin University; Raylene Cooke, Deakin University, and Tim Doherty, Deakin University

Humans are causing the Earth’s sixth mass extinction event, with an estimated one million species at risk of extinction.

Addressing this crisis requires transformative change, including more effective environmental law and implementation.

Improved legislation is one of five main levers for realising change identified in the recent United Nation’s global biodiversity report and the key lesson arising from the Senate’s interim report into Australia’s faunal extinction crisis.




Read more:
‘Revolutionary change’ needed to stop unprecedented global extinction crisis


The Senate’s interim report, based on 420 submissions and five hearings, shows Australia is a world leader in causing species extinctions, in part because Australia’s systems for conserving our natural heritage are grossly inadequate.

To allow the continued erosion of this continent’s spectacular and remarkable array of globally unique plants and animals is a travesty of the highest order.

Inadequate protections

One of the problems is species may decline from common to extinct quite rapidly – faster than the time it takes species to be listed as threatened under the federal Environment Protection and Biodiversity Conservation (EPBC) Act.

The Christmas Island forest skink was formally listed as a threatened species only four months before the last individual died in captivity, but 15 years after the decline was first reported.

Extinction of the forest skink, Bramble Cay melomys and Christmas Island pipistrelle between 2009 and 2014 may have been averted if the risk was formally recognised in a more timely manner and effective conservation actions, such as captive breeding programs, were implemented.

Currently, if a species is not listed, it is not a “matter of national environmental significance” and federal agency staff generally have no legal basis for acting to protect it.

The Christmas Island forest skink (left), Bramble Cay melomys (centre) and Christmas Island pipistrelle (right) all became extinct in 2009-14.
Left: Hal Cogger; centre: Queensland Department of Environment and Heritage Protection; right: Lindy Lumsden.

The black-throated finch has been listed as threatened on the EPBC Act for 14 years and during this time 600,000 ha of potential finch habitat has been destroyed. Worse still, five large coal mines, including the Carmichael Coal Mine, have been given approval (pending environmental conditions being met in Queensland) to clear more than 29,000 ha of black-throated finch habitat in one of its final strongholds, the Galilee Basin.

Coal mining will drive these finches into the critically endangered threat category, pushing them perilously close to extinction, and all with federal government approval.




Read more:
Why Adani’s finch plan was rejected, and what comes next


The controversial Toondah Harbour development in Brisbane is another example of how ministerial discretion can allow disastrous environmental outcomes. The project plans to build 3,600 apartments on wetlands that provide habitat for migratory waterbirds, including the critically endangered eastern curlew.

Despite being described as “clearly unacceptable” by the federal environment department and knocking it back twice, the minister allowed a third submission to proceed for further assessment.

It was reported this decision was made in the context of legal threats and donations from the developer in question. If true, this context would make it very difficult to make impartial decisions that protect biodiversity, as environmental law intends.

Increasing ministerial discretion was a key result of 2007 amendments to the EPBC act, which meant recovery plans were no longer required for threatened species.

The amendment allowed the minister to develop “conservation advices” instead of recovery plans. This amendment downgraded protections for threatened species because a minister can legally make decisions that are inconsistent with conservation advice, but not a recovery plan.




Read more:
It’s not worth wiping out a species for the Yeelirrie uranium mine


New environmental legislation

Based on these examples and many others that demonstrate the failings of current laws, the interim report concludes that we should rip up the EPBC act and develop stronger and more effective environmental legislation.

This includes establishing an independent Environmental Protection Agency to ensure enforcement of environmental laws, and, in a forward-looking addition by the Greens senators, an independent National Environmental Commission to monitor effectiveness of environmental legislation and propose improvements.

Australia needs a well-resourced, independent umpire for the environment, with powers to investigate environmental concerns and scrutinise government policy, akin to New Zealand’s Parliamentary Commissioner for the Environment. While Australia’s Threatened Species Commissioner is an excellent champion for the environment, this role provides no ability to question government actions regarding environmental protection and nature conservation.




Read more:
Australia’s species need an independent champion


Although replacing the EPBC act with new legislation may seem like a radical step to some (but not all), the interim Senate report, and the global UN report, have independently concluded major reform is essential. We are not in a moment of time when tweaking the current system will do the trick.

Changing Australia’s environmental legislation is a relatively minor update compared with the fundamental social and economic changes recommended by the UN report.

Such changes are already recommended by scientific societies like the Ecological Society of Australia, non-government organisations like Birdlife Australia and the Australian Conservation Foundation, and are demanded by a growing section of society. New, fit-for-purpose legislation must be enforceable, apolitical and responsive.




Read more:
Australia’s draft ‘Strategy for nature’ doesn’t cut it. Here are nine ways to fix it


Opinion polls show that the level of environmental concern is higher in Australia than in other countries , while 29% of ABC Vote Compass respondents ranked the environment as the most important issue, up from 9% in 2016.

This groundswell of environmental concern has spawned mass protest movements like Extinction Rebellion. Young Australians also have shown their concern. In March 2019, thousands of school students took part in 50 rallies across the country to protest against “the destruction of our future”.

Decisions about what and how much we buy, what we eat, how much we travel and by what means, and family size, all contribute to our environmental footprints, and are the fundamental instigators of the biodiversity crisis.

However, we must also look to our political leaders to support effective change. The simplest and most powerful action you can take to reverse the extinction crisis is to vote for a party with policies best aligned with credible scientific advice on how we can get out of this mess.The Conversation

Don Driscoll, Professor in Terrestrial Ecology, Deakin University; Desley Whisson, Lecturer in Wildlife and Conservation Biology, School of Life and Environmental Sciences, Deakin University; Euan Ritchie, Associate Professor in Wildlife Ecology and Conservation, Centre for Integrative Ecology, School of Life & Environmental Sciences, Deakin University; Mike Weston, Associate Professor, Deakin University; Raylene Cooke, Associate Professor, Deakin University, and Tim Doherty, Alfred Deakin Post-doctoral Research Fellow, Deakin University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Death by 775 cuts: how conservation law is failing the black-throated finch


April Reside, The University of Queensland and James Watson, The University of Queensland

Nearly 20 years ago, Australia adopted national environmental legislation that was celebrated widely as a balanced response to Australia’s threatened species crisis. In the same year, Queensland introduced its Vegetation Management Act. Together, these laws were meant to help prevent further extinctions.

But have they worked?

A famous finch

We investigated whether these laws had successfully protected the habitat of the endangered southern black-throated finch.

Our study found that, despite being nominally protected under federal environmental law, habitat for the species has continued to be cleared. Just three out of 775 development applications that potentially impacted the endangered southern black-throated finch were knocked back, according to our new research.




Read more:
Queensland coal mines will push threatened finch closer to extinction


Defining exactly what is habitat for the black-throated finch is tricky – we don’t have oodles of data on their habitat use over time, and the extent of their sightings has declined substantially. But Queensland has excellent vegetation mapping, and we recorded all of the vegetation types in which the southern black-throated finch has been seen.

We then mapped the extent of this habitat in three different time periods: historically; at the advent of the environmental laws (2000); and current day.

Clear danger

We found that most of the black-throated finch’s habitat had been cleared before 2000, mainly for agriculture before the mid-1970s. The black-throated finch hasn’t been reliably seen in New South Wales since 1994 and is listed there as “presumed extinct”.

We looked at all the development proposals since 2000 that were referred to the federal government due to their potential impact on threatened species. 775 of these development proposals overlapped areas of potential habitat for the black-throated finch.

Only one of these projects – a housing development near Townsville – was refused approval because it was deemed to have a “clearly unacceptable” impact to the black-throated finch.

In addition to these projects, over half a million hectares of the cleared habitat were not even assessed under federal environmental laws.

We estimate that the species remains in just 12% of its original range. Yet despite this, our study shows that the habitat clearing is still being approved within the little that is left.

So in theory, Australia’s and Queensland’s laws protect endangered species habitat. But in practice, a lot has been lost.

Critical habitat

The highest-profile development proposal to impinge on black-throated finch habitat loss is Adani’s Carmichael coalmine and rail project. Adani has been given approval to clear or otherwise impact more than 16,000 hectares of black-throated finch habitat, a third of which Adani deemed “critical habitat” But there are four other mines in the Galilee Basin that have approved the clearing of more than 29,000 ha in total of black-throated finch habitat.

But it’s not just the mines. In 2018 the federal government approved clearing of black-throated finch habitat for a housing estate and a sugar cane farm, both near Townsville. Several solar farms have also been proposed that would clear black-throated finch habitat around Townsville.

To further complicate matters, the black-throated finch’s habitat is also threatened with degradation by cattle grazing. The finch needs year-round access to certain grass seeds, so where grazing has removed the seeding part of the grasses, made the ground too hard, or caused the proliferation of introduced grasses such as buffel, the habitat suitability can decrease until it is no longer able to support black-throated finches.

So while they are losing their high-quality habitat to development, a lot of their habitat is being degraded elsewhere.

Heavy cattle grazing degrades habitat for the southern black-throated finch by removing edible grass seeds.
April Reside

The federal government has placed conditions on approved clearing of black-throated finch habitat, often including “offsetting” of any habitat loss. But securing one part of the black-throated finch’s habitat in exchange for losing another still means there is less habitat. This is particularly problematic when the lost habitat is of very high quality, as is the case for Adani’s Carmichael coalmine lease.

Little by little

Our research suggests there is a real danger of the black-throated finch suffering extinction by a thousand cuts – or perhaps 775 cuts, in this case. Each new development approval may have a relatively modest impact in isolation, but the cumulative effect can be devastating. This may explain why a stronger environmental response has not occurred so far.




Read more:
Does ‘offsetting’ work to make up for habitat lost to mining?


So how can we prevent the black-throated finch from going extinct? The finch is endangered because its habitat continues to be lost. So its recovery relies upon halting the ongoing loss of habitat – and ultimately, increasing it. Achieving this would require a political willingness to prioritise endangered species protection.

Australia has already lost hundreds of its unique plants and animals forever. In just the last few years, we have seen more mammals and reptiles disappear to extinction. If we continue on our current path, the southern black-throated finch could be among the next to go.The Conversation

April Reside, Researcher, Centre for Biodiversity and Conservation Science, The University of Queensland and James Watson, Professor, The University of Queensland

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Labor promises a comprehensive overhaul of federal environmental framework


Michelle Grattan, University of Canberra

Australia will get the biggest overhaul of its federal environment laws in two decades if a Labor government is elected next year.

Labor would establish a new Australian Environment Act and create a federal Environmental Protection Agency in its first term.

The commitments were flagged by Bill Shorten and approved by delegates at the ALP national conference, which is meeting in Adelaide.

The new legislation would replace the present Environment Protection and Biodiversity Conservation Act which was passed under the Howard government’s environment minister Robert Hill in 1999.

The new agency would oversee and enforce the revised act, conduct inquiries and advise the minister on environmental approval decisions.

Environment shadow minister Tony Burke said the current act was now twenty years old and had not been significantly reformed.

“It is time to bring it into the twenty-first century. In 2018, it is bizarre that the national environmental law does not properly factor in climate change”, Burke said.

He said the new EPA would have “the mission to protect Australia’s natural environment”.

“It will be informed by the best available scientific advice and ensure compliance with environmental law.”

It would “have the ability to conduct public inquiries on important environmental matters”.

“The new legal framework will compel the Australian government to actively protect our unique natural environment and demonstrate national leadership”

The decisions are a victory for the Labor Environment Action Network (LEAN), a group within the ALP membership that lobbies on environmental matters. LEAN got about 480 branches to sign up to its push for extensive reforms.

While LEAN did not obtain its whole agenda, it won extensive elements of what it was pressing for.

The changes were promoted by the left of the ALP.

It was reported that there was resistance from Burke to some of the LEAN demands.

Burke said Labor would establish a working group of experts including scientists, environmental lawyers and public policy thinkers to refine the detail of the changes. Stakeholders, including states and territories, Indigenous representatives, affected industries, business groups, unions and civil society would also be involved.“

“The Australian Environment Act will aim to tackle problems identified by industry, which has identified inefficiencies, delays and hurdles. The new law will protect the environment while aiming to give business more certainty”, Burke said.

The Greens said the environmental protections endorsed by Labor would “fail without proper investment and a commitment to no new coal, oil and gas”.

The Places You Love alliance of 54 environment groups said: “The ALP’s commitment to stronger laws that will help end the decline of nature and our extinction epidemic, and an independent national watchdog to enforce those laws, represents a step by a major political party towards rectifying decades of neglect of Australia’s environment”.

Labor’s reform agenda was attacked by the Minerals Council of Australia which said it would “add another layer of green bureaucracy, which will cost jobs, discourage investment and make it easier for activists to disrupt and delay projects”.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Passing the brumby bill is a backward step for environmental protection in Australia


Don Driscoll, Deakin University; Euan Ritchie, Deakin University, and Tim Doherty, Deakin University

Late on Wednesday night the so-called “brumby bill” was passed without amendment in the New South Wales Parliament. The controversial Coalition bill, supported by the Christian Democrats and the Shooters, Fishers and Farmers Party, means that feral horses must be kept in Kosciuszko National Park.

It also creates a community advisory panel, with no scientific experts appointed, to advise the minister on how to manage the horse population in the alpine ecosystem.

The NSW government has attracted accusations of a conflict of interest. Former Nationals member Peter Cochran, who now runs a commercial venture offering brumbie-spotting rides through the National Park (and who has donated extensively to Deputy Premier John Barilaro) reportedly commissioned lawyers to draft the bill. Peter Cochran, John Barilaro and Gladys Berejiklian have denied all accusations of conflict of interest and underhanded conduct.




Read more:
NSW’s no-cull brumby bill will consign feral horses to an even crueller fate


The bill has also been criticised by scientific bodies. In a letter to NSW Premier Gladys Berejiklian this week, the Australian Academy of Science noted that the legislation removes consideration of scientific advice, and called for the bill to be withdrawn or substantially amended.

In a rare move, the International Union for the Conservation of Nature has also written to the NSW government, expressing concern over the potential degradation of this internationally significant national park.

Damage caused by feral horses in the Australian alps.
D Thompson and Stuart Rowland, Friends of Currango/Flickr

Out of step with other states

The NSW Labor Party does not support the bill and has pledged to repeal the legislation if elected next March. The legislation represents a radical change in NSW’s management of feral horses, coming after a 2016 draft strategy that recommenced reducing their population by 90% over 20 years.

NSW now stands in contrast to other Australian states. Last Saturday, Victoria launched its Feral Horse Strategic Action Plan. That plan aims to protect native species and ecosystems in national parks by removing or controlling feral horses and is a welcome step in the right direction. Victorian environment minister Lily D’Ambrosio called on the NSW and federal governments to support a unified approach to feral horse management in Australia’s alpine regions.

Is culling in or out?

The Victorian plan excludes aerial culling but will revisit horse control methods if the proposed trapping methods don’t reduce environmental impacts. Aerial culling is widely practised throughout Australia, including Western Australia, the Northern Territory, Queensland (where culling was used to improve road safety), and the Australian Capital Territory, which borders Kosciuszko National Park.

Barilaro argued against aerial culling when he presented the Brumby bill to parliament, calling it cruel and barbaric. He reiterated that the bill is meant to prevent lethal control in his response to Victoria’s announcement. But surprisingly, the draft legislation makes no mention of control methods, lethal or otherwise.




Read more:
Hold your horses – brumby fertility control isn’t that easy


The deputy premier also referred to the Guy Fawkes National Park horse cull in northern NSW in 2000 to support his argument against aerial culling. But an independent enquiry found that the cull was an appropriate humane response to the situation, where horses were starving to death and causing environmental damage after a fire. The RSPCA and independent reports show that aerial culling is an acceptable and humane way to manage horse numbers.

Further, the brumby bill now locks in the predictable outcome that thousands of horses are likely to starve to death in the next drought or after large fires. It is therefore puzzling that actions likely to increase horse suffering are not of great concern to many within the pro-brumby lobby.

Greater emphasis, instead, has been put on a cultural argument for protecting feral horses: for example, by claiming that feral horses made enormous contributions to Australia’s World War One effort. However, the cultural heritage report prepared for the NSW National Parks Service says “there is no definitive evidence that remount horses were directly taken from the brumby population of what is now Kosciusko National Park”.

The Sydney Olympics opening ceremony was also offered as evidence that brumbies are integral to Australian culture. However, Australian Stock horses, not brumbies, were showcased at the Sydney Olympics – a distinct breed, established by horse enthusiasts in the 1970s.

That said, it is true that horses in the snowy mountains do have local cultural value. But so too does the native fauna and flora threatened by feral horses, many of which only occur in Australia’s high country. This includes species such as the southern corroboree frog, alpine she-oak skink, broad-toothed rat, Raleigh sedge and mauve burr-daisy.

Can we compromise?

Is a compromise possible, in which both cultural and conservation goals can be accommodated? We think so. The feral horse population can be removed from the national parks and sensitive ecosystems. Brumby herds can thrive on extensive private property in the region, an approach already proven in South Australia’s Coffin Bay National Park.

The brumby bill was written and presented to parliament by groups with at best a perceived conflict of interest, and promoted by using inaccurate information about culling and heritage. It has been roundly criticised by leading national and international scientific bodies for not taking adequate account of science and the key role of national parks in conserving biodiversity.




Read more:
Essays On Air: The cultural meanings of wild horses


The ConversationThat this bill has now passed the NSW upper house is a further backward step for conservation goals and Australia’s international reputation for environmental protection, and sets a dangerous precedent by undermining prominent national and state environmental policy. It remains to be seen how this legislation aligns with the federal Environment Protection and Biodiversity Conservation Act, given that it literally tramples over several matters of national environmental significance.

Don Driscoll, Professor in Terrestrial Ecology, Deakin University; Euan Ritchie, Associate Professor in Wildlife Ecology and Conservation, Centre for Integrative Ecology, School of Life & Environmental Sciences, Deakin University, and Tim Doherty, Research Fellow, Deakin University

This article was originally published on The Conversation. Read the original article.

Supreme Court ruling on NZ’s largest irrigation dam proposal respects conservation law and protected land



File 20170725 5139 auwmjj
This aerial view shows the catchment of the Makaroro river, in the Ruahine Forest Park. The river was to be dammed for the Ruataniwha irrigation scheme.
Peter Scott, CC BY-ND

Christine Cheyne, Massey University

Earlier this month, New Zealand’s Supreme Court rejected a proposed land swap that would have flooded conservation land for the construction of the country’s largest irrigation dam.

The court was considering whether the Hawke’s Bay Regional Council’s investment arm could build a dam on 22 hectares of the protected Ruahine Forest Park in exchange for 170 hectares of private farm land. The proposed dam is part of the $900 million Ruataniwha water storage and irrigation scheme.

The New Zealand government’s response to the ruling was to consider a law change to make land swaps easier. Such a move flies in the face of good governance.

Natural capital vs development

The Supreme Court ruling has significant implications for the Ruataniwha dam. In addition, it asserts the importance of permanent protection of high-value conservation land.

The ecological value of the Ruahine Forest Park land was never in question. The conservation land includes indigenous forest, a unique braided river and wetlands that would have been destroyed.

The area is home to a dozen plants and animals that are classified as threatened or at risk. The developer’s ecological assessment acknowledged the destruction of ecologically significant land and water bodies. However, it argued that mitigation and offsetting would ensure that any effects of habitat loss were at an acceptable level.

The Mohaka River also flows through the Hawke’s Bay.
Christine Cheyne, CC BY-ND

Challenge to NZ’s 100% Pure brand

New Zealand’s environmental legislation states that adverse effects are to be avoided, remedied or mitigated. However, no priority is given to avoiding adverse effects. Government guidance on offsetting does not require outcomes with no net loss.

In Pathways to prosperity, policy analyst Marie Brown argues that offsetting is not always appropriate when the affected biodiversity is vulnerable and irreplaceable.

Recent public concern about declining water quality has provided significant momentum to address pollution and over-allocation to irrigation. Similarly, awareness of New Zealand’s loss of indigenous biodiversity is building.

These issues were highlighted in this year’s OECD Environmental Performance Review and a report by the Parliamentary Commissioner for the Environment on the parlous state of New Zealand’s native birds.

Both issues damage New Zealand’s 100% Pure branding and pose significant risks to tourism and the export food sector. Indigenous ecosystems are a huge draw card to surging numbers of international tourists.

Battle lines in fight for the environment

Powerful economic arguments have been put forward by business actors, both internationally and in New Zealand. For example, Pure Advantage supports protection of ecosystems and landscapes. Yet, governance mechanisms are limited.

Since 2009, environmental protection and conservation have increasingly become major battle lines as the National government doggedly pursues its business growth agenda. This favours short-term economic growth over environmental protection.

A key principle behind the Supreme Court decision is that protected conservation land cannot be traded off. It follows a High Court case in which environmental organisations argued unsuccessfully that the transfer of land was unlawful.

However, in August 2016, the Court of Appeal ruled against the Director-General of Conservation’s decision to allow the land transfer. It had been supported on the grounds that there would be a net gain to the conservation estate. The court’s ruling said that the intrinsic values of the protected land had been disregarded.

The Supreme Court has reinforced the importance of the permanent protection status recognised by the Court of Appeal.

Anticipatory governance

In response to the court’s decisions, the government argued that land swaps of protected areas should be allowed. It may seek to amend legislation to facilitate such exchanges.

The Supreme Court made reference to section 2 of the Conservation Act 1987. It defines conservation as “the preservation and protection of natural and historic resources for the purpose of maintaining their intrinsic values, providing for their appreciation and recreational enjoyment by the public, and safeguarding the options of future generations”.

Section 6 of the act states that the Department of Conservation should “promote the benefits to present and future generations of the conservation of natural and historic resources”. As such, the legislation and the department contribute to what is known as “anticipatory governance”.

Anticipatory governance is fundamental to good governance, as Jonathan Boston argues in his recent publication Safeguarding the future: governing in an uncertain world.

It requires protecting long-term public interests. Conservation of our unique ecosystems and landscapes protects their intrinsic values and the services they provide. These include tourism benefits and basic needs such as water, soil and the materials that sustain human life.

The department has correctly recognised that conservation promotes prosperity. However, long-term prosperity is quite different from the short-term exploitation associated with the government’s business growth agenda.

This promotes exploitation in the form of mining on conservation land and increased infrastructure for tourism and other industries, such as the proposed Ruataniwha dam.

The ConversationAmending the Conservation Act to allow land swaps involves a significant discounting of the future in favour of present day citizens. This is disingenuous and an affront to constitutional democracy. It would weaken one of New Zealand’s few anticipatory governance mechanisms at a time when they are needed more than ever.

Christine Cheyne, Associate Professor, Massey University

This article was originally published on The Conversation. Read the original article.

We quibble over ‘lawfare’, but the law is not protecting species properly anyway


Ted Lefroy, University of Tasmania and Benjamin Richardson, University of Tasmania

The federal government is set to go ahead with its crackdown on environmental “lawfare”, which would restrict green groups’ legal standing to challenge mining approvals and other developments.

The Senate Standing Committee on Environment and Communications yesterday endorsed the proposed changes to the Environment Protection and Biodiversity Conservation Act, citing the “costs to proponents and consequences for economic activity when major development projects are delayed by judicial review”.

The move was first announced in August, in the wake of a successful Federal Court challenge to the approval of the planned Adani mine in Queensland (since reapproved).

At the time, Attorney General George Brandis described such litigation as “vigilante” action by “radical green activists”, while agriculture minister Barnaby Joyce added in an ABC radio interview that the only people who should have standing to challenge mine proposals are those nearby who might be affected by dust, noise or water contamination.

But by seeking to limit who has the right to appeal its decisions, the government misunderstands the purpose of environmental legislation.

The amendments not only go against the progressive development of environmental law worldwide, which has helped to make approvals more open to public scrutiny, but they are also a grave injustice to nature itself.

Appealing prospects

Under the proposed amendment, a person or group will not be able to appeal a decision unless they can show that they will be “aggrieved” by the development, which typically implies suffering some direct and material adverse impact.

But, as Joyce also acknowledged, this is not a simple matter of physical proximity. Groundwater pollution, for instance, can affect people living many kilometres downstream. Determining who is or isn’t aggrieved could represent an entire new source of green tape.

Moreover, silencing legitimate public concerns in this way does not guarantee that a government’s preferred projects will be protected from legal challenge – a lesson the Tasmanian government learned when green groups collaborated with financial investors to defeat the Gunns pulp mill, in spite of the ignominious Pulp Mill Assessment Act.

But there is something more fundamental at stake here.

Against the tide

The question of whom or what should be protected by environmental law was raised by the US scholar Christopher Stone in his 1972 polemic Should Trees Have Standing? He argued that only by granting legal rights to nature would we change the culture that sees nature as an expedient resource at our disposal.

This would help to resolve a false dichotomy raised by the US environmentalist Aldo Leopold in a 1949 essay that helped to kickstart the environmental movement, in which he wrote that “we abuse nature because we treat it as a commodity which belongs to us rather than a community to which we belong”.

Clearly, nature is both community and commodity.

In 1999 the Australian government came close to recognising this when it passed the Environment Protection and Biodiversity Conservation Act. Yet this protection is constrained in various ways, such as by being limited to designated threatened species (about 1% of Australia’s named plants and animals), areas of national environmental significance (such as world heritage properties), or certain areas under Commonwealth management.

So while anyone who can show they are likely to be affected by a decision has standing, usually only plants and animals that are threatened with extinction can qualify for legal protection. To use a medical analogy, they can only bulk bill if they’re terminally ill.

Prevention vs cure

Should we really only consider protecting nature when it’s on the way out? The fact that only 9% of species listed as threatened have ever recovered sufficiently to come off the list (and many have promptly gone back onto it) suggests that the Act is not working, even for the species it covers. It is not working because it is often not triggered until it’s too late, and the list of threatened species just keeps growing.

People on all sides of politics are currently arguing about who is being excluded from the EPBC Act. Meanwhile the law is failing to protect the plants and animals that are supposed to be included.

An alternative vision that evokes Christopher Stone’s ideal is beginning to find legal expression in some countries, such as New Zealand, where a long dispute between the government and Maori over management of a major river concluded in 2012 with an historic agreement that the Whanganui River is a legal person, with its own rights. Two guardians, one appointed by the local Maori iwi and the other by the government, will protect the river’s interests forever.

The challenge for science and the law is to develop criteria for protection based not on how rare something is, but on how significant it is to both nature and people – as both natural community and natural commodity. We should then empower environmental groups or other entities to act as guardians of that protected interest – and to defend it in any court.

The Conversation

Ted Lefroy, Director, Centre for Environment, University of Tasmania and Benjamin Richardson, Professor of Environmental Law, University of Tasmania

This article was originally published on The Conversation. Read the original article.