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Biodiversity Legislation:

Species, Vegetation, Habitat


JOHN BRADSEN
Senior Lecturer in Law, University of Adelaide

A. Introduction
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The topic, biodiversity," is huge. It ranges
from the conservation of species and ecosystems
to the developmental right of nations to exploit
their naturally occurring genetic material. It
nvolves complex moral, philosophical, spiritual,
environmental, scientific, political, legal, and
economic issues. Driven by a range of concerns,
perhaps most notably by evidence of an unprecedented and accelerating species collapse, it is
rapidly becoming the most significant conservation issue of our time Indeed ofthe four fundamental environmental issues into which most
particular issues fall, namely, conservation of air,
of water, of land and of the diversity of life,
or biodiversity, it is the last which is increasingly
being seen as most fundamental.
The most remarkable, indeed the apparently
unique feature of the earth, is life. Increasingly
we learn that earth's extraordinary diversity of
life is a series of interrelated processes and that
damage to part of this system may have farreaching consequences. Even in relation to the
conservation of land, for instance, which we tend
to assess by reference to crude physical and
chemical measures, we will no doubt increasingly
see that the true measure lies in the life, the
biodiversity, ofthe soil. And so conservation of
biodiversity, including, of course, human life,
may become both the measure and the purpose
of even the other fundamental conservation
issues,
The particular aspect of biodiversity explored
here is the nature and effectiveness of two legislative models for the conservation of biodiversity,
referred to as the species approach and the
vegetation approach. Much legislation is not

considered, such as that dealing with parks and


reserves. Suffice it to say that this legislation
fa
g e n e r a l l y q u i t e inadequate in biodiversity
t e r m s b o t h n t h e s e l e c t i o n a n d t h e management
o f s u c h a r e a s R e l e v a n t biodiversity legislation
j therefore, to all areas, governweU
me^t a n d private
cal
The most
a l l e g i s l a t i v e m o del
biodiversity
is some form
ad
d tQ c o n s e r v e
o f r a r e a n d endangered species" Act the best
known

Endangered
o f l i f c fa l a
m Qr

b d

Unted

States

Species Act 1973. Since the diversity


, o f a naturally occurring
d
s

t h a t is habitat> in o r d e r

a c h i e v e t h i s conse rvation

to

goal, legislation must


t e e f f e c t i v e l y t 0 p r o t e c t habitat. The rare
a n d end angered species approach, although
operating by reference to species, ultimately does
operate very largely through protecting habitat,
But it is often a roundabout, excessively reactive
too-little-too-late way of doing so.
The critical issue for an effective preventive
legislative model is to identify habitat which may
be significant for the conservation of biodiversity
and to protect that habitat until an assessment
of its significance is made. The legislation which
has done this most effectively, whether one looks
m Australia or beyond, is the South Australian
Native Vegetation Management Act 1985, now
replaced by the Native Vegetation Act 1991 from
which, for present purposes, it hardly differs,
In identifying all native vegetation as potentially
significant habitat this vegetation model comes
close (in effect if not in terms), to what may
be called a habitat approach to conservation of
biodiversity. This is not, it must be said, an
either/or matter. Both models have a role to play
in the effective conservation of biodiversity.
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Environmental and Planning Law Journal

June

B. The Species Approach


_
The species approach is most notably
represented by the United States Endangered
Species Act 1973, an excellent concise explanation
of which can be found in the book, The
Endangered Species Act? It requires that the
Federal Fish and Wildlife Service maintain an
updated list of all endangered or threatened
species and makes it an offence within Federal
jurisdiction to "take" certain species. The
concept of "take" includes not just direct
intentional acts directed at individuals, such as
shooting or trapping. It is defined to include
"harm" which, it is well accepted, embraces a
threat to a listed species resulting consequentially
from otherwise legitimate activities. Such harm
is referred to as an indirect taking. This threat
extends beyond the more immediate survival of
a species and includes the failure of a species
to recover to the point where listing is no longer
required.

present context, yet its lack of substance makes


it less effectual than the United States Act.
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Anoth T
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Australian example of the species
approach, which in its substance is more like
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Parks and Wildlife Act 1974M(N.S.WO considered


m
* e recent Chaelundi Case.* The Forestry
Commission of New South Wales proposed
" * t h r e e compartments of the Chaelundi
Forest in north-east New South Wales. Corkill
took lega action arguing that the operations,
m c h included road works, smg tracks and some
^ r m n g , would infringe the National Parks and
f MhfeAct. In terms reminiscent of the United
St ates
,
Endangered Species Act, s 98 prohibits the
takin
S o f Protected species and s. 99 prohibits
** t a k , i n 8 of endangered species. Take was
defined to include d i s t u r b ,
The Court took the view that the critical
questions, in the present context, were whether
the sections prohibited an indirect taking and
whether such a taking would result from the
p r 0 p 0 s e d operations. It held, in what can only
terms, that the answer to
b e c a l l e d resounding

q
u
e
s
t
o
n
s
w
a
s
y
e
s . As to the former, and
b o t h
expressly drawing on cases dealing with the
U n i t e d S t a t e s A c t > i t h e l d t h a t t h e c l e a r object
av p u r p o s e of ss 98 and 99 were the preservation
o f s p e c i e s md t h a t t h i s r e q u i r e d protection of
the
i e s a s a w h o l e j n o t j u s t o f individual
cimens.
The concept of disturbance adopted
spe
which
b
e
C o u r t i n c i u d e s a n y activities
with the essential
behavioural
interfere
characteristics of a species including its breeding,
f e e d ing or nesting,
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, I n considering whether any species were m
fact s
^, the Court gave numerous
examples of * e sort of disturbance which can
o c c u r
They include allowing the ingress of
predator species, both feral and native, reduction
of understorey, loss of breeding and protective
hollows, the impact of fire and changes in
vegetation structure, with resulting changes to
the food supply. The Forestry Commission's 50
per cent canopy retention policy was seen rather
as a 50 per cent canopy removal policy. Wildlife corridors were seen as at best temporary
inadequate refuges. The test of disturbance was
not the likelihood of the elimination of a species
but the threat, perhaps best expressed as the
reasonable
likelihood,
of
population
fragmentation and decline.

It is now increasingly the case, with the impact


of economic growth, that many species are under
threat not so much directly from harm to
individuals but indirectly from developmental
activities. The threat comes, as the cases
illustrate, largely from the destruction of habitat.
A law which protects species from direct harm
is necessarily couched, and to be understood,
in terms of species. But a law which prohibits
an indirect taking of a species, despite its terms,
is really a law which seeks to protect that species'
habitat. Its operation by reference to species is
just one method of identifying the relevant
habitat. This is reflected in the provision for the
species-based identification of critical habitat.
The inadequacies of this method will be
explained after looking at Australian examples
ofthe species approach

The most obvious example is the Victorian


Flora and Fauna Guarantee Act 1988. It is
modelled, in part, upon the United States
Endangered Species Act. However, whereas that
Act includes the simple, substantive rule that
taking certain species is unlawful, the Victorian
Act is light on substance and weighed down by
procedure. It does provide that the whole of a
significant habitat can be identified as critical,
unlike the United States Act which provides that
only part can be identified; and has qualities
which warrant more detailed attention in the
176

1992

Biodiversity Legislation

The crucial point for present purposes,


however, is that, while the legislation is in formal
terms about prohibiting the taking of species,

is further examined after explaining the operation


of the vegetation approach,

in substance it is largely about the protection

C. Vegetation or Habitat Approach

of habitat. That is, a prohibition against the


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indirect taking of species ultimately must
operate, as the reasoning ofthe Court recognises,
as a law prohibiting the disturbance of habitat!
Expressed in these terms, it immediately
becomes apparent that a critical question is not
justoneofdisturbancebutofidentifyingrelevant
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habitat. The Court did not advert expressly to
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; purporting only to app y
its conclusions about what amounted to
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disturbance to the various species, it inescapably
raised this as a distinct question of law. The issue
is this. With a direct taking the species is by
definition known to be taken. If, however, one
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has an indirect taking through habitat
disturbance, there must be a test to know whether
the habitat can be identified as relevant. If a
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i v
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species
is rare, for example, it may not be known
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with certainty whether the habitat contains the
soecies or not

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In its formal operation the South Australian

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f e t a t i o n clearance egislation appears to
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differently. Brief background is
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erat on
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w m c h
a r e
art o f
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over-clearance of native vegetation, initially
largely for land degradation reasons. The first
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attempt was through a 1945 amendment to the
Conservation Act 1939 which required three
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months notification
of
intended clearance tou be
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c u
u
& ; r e c e n ^ ' ^ 1 8 w a s f o l !. w a J b y , a
luntary s c h e m e ^
^ u n c l e a i * d land could
b e re
f t e r e d a s a h e 5 l t a S e ea, the incentive
being fencing costs and rate remission. Land only
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t n c k l e d
n t ot h e s c h e
a n d c l e a r a n c e COn
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a a e A! s a r e s u l t a r a n c e w a
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h b!f
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without prior approval by an amendment to the
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Planning
Act 1982 which included clearance in
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definition of development. This was defeated
by the High Court,4 which held that uncleared
agricultural land was notionally being used for
agriculture and that the right to clear was therefore ensured under the existing use provisions
* t h e c t *
T h i s
implausible reasoning and mischievous
r e s u l t
l e d t o t h e
enactment of the Native
Vegetation Management Act 1985 which provided
tha
* clearance without permission was an offence,
A
landholder who was refused permission and
w h o
P la ced the land under a heritage agreement
a
( statutory agreement which precludes cornmereiai use and which is binding in perpetuity
u n l e s s
changed by agreement between the
Minister and the landholder) was automatically
entitled to financial assistance which reflected
any resulting diminution in value. This Act was
subsequently replaced by the Native Vegetation
Act 1991 which removed the automatic entitlement to compensation and which placed greater
emphasis on re-establishment and management
of native vegetation.
The process of legislative development has,
as stated above, been influenced by a concern
for land degradation and by a general attitude
of seeking to control over-clearance. It was as
if native vegetation had some vague intrinsic
value and controls on its clearance could be
justified without more. In more recent times,

The Court dealt with this question by adopting


what would appear to be a test of reasonable
likelihood of presence. Mere possibility of
presence was not enough. In assessing reasonable likelihood of presence, as with the concept
of disturbance, the Court was very heavily
influenced by expert biological assessment that
the presence of a species was likely. It suggested
various measures including scats or skeletal
evidence. But the test of greatest significance,
for present purposes, is that the species was
known to occur in the general vicinity and that
the habitat in the area in question was suitable
for the species.
One can summarise the effect of the case in
these terms. The legislation formally protects
certain species. In its operation, however, it
protects habitat (identified by reference to the
presence or reasonable likelihood of presence of
a species), from disturbance (measured by
reference to the reasonable likelihood of a threat
to the long-term survival ofthe species). As stated
above, the species approach to the conservation
of biodiversity is really, therefore, ultimately
largely concerned with the protection of significant habitat. It is, however, not a particularly
effective method of doing so, a conclusion which
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Environmental and Planning Law Journal

June

however, the legislation has increasingly been


seen as the most effective biodiversity legislation
in Australia. This requires further explanation
ofthe operation ofthe 1985 and 1991 Acts which,
for present purposes, may be regarded as much
the same.
The most obvious feature of the model is the
prohibition against clearance without permission
which would appear to be the fundamental rule
ofthe system. This rule is then modified in two
respects. First, application to clear may be made
to the Native Vegetation Council under the
Native Vegetation Act 1991 (Native Vegetation
Authority under the Native Vegetation Management Act 1985). Secondly, regulations under the
Acts exempt clearance, that is, permit a clearance
without permission in certain circumstances.
These largely fall into three groups covering a
few governmental activities (but far from all since
the Acts bind the Crown), certain property
protection and the continuation of certain
existing uses. It is, however, the detailed rules
governing the clearance application process
which give the Acts their true character.
When an application to clear is made the
Native Vegetation Council (or Authority) is
required to decide in accordance with specific
statutory biological (and land degradation)
criteria. These provide, for example, that the
vegetation shall not be cleared if it consists of
important habitat for wildlife, contains rare or
endangered plant species or plant associations,
has a high plant species diversity, is important
remnant vegetation or is associated with a
wetland.

assessment of the vegetation and prepare a


detailed report for the Council (or Authority)
on the application ofthe criteria to the vegetation,
They may conclude, for instance, that it
comprises important habitat for wildlife. This
may be obvious enough where, for instance, the
area clearly contains rare or endangered species,
It may be, however, that this conclusion is drawn
o n the basis
that, while the species have not
actually been seen in the area, they are known
t0 exist in the
vicinity and the habitat is suitable
for them. The Council (or Authority) is required
to decide as to the cogency of this conclusion.
Then it is necessary for the report to consider
whether clearance, either for agriculture, grazing,
woodcutting or otherwise, will operate to the
detriment of its qualities as habitat, which is in
large measure a matter of looking at the impact
of clearance on key species. Clearance is, of
course, more likely to be unacceptable if for
agriculture rather than for what may be thought
to be sustainable native timber production. Even
so, in the latter case the removal of breeding
hollows and ecological disturbance may well
result in a recommendation precluding clearance.
In making its decision the Council (or Authority)
assesses the cogency of these reports in light of
landholder and other submissions,
It should come as no great surprise that this
model has circled around into the species model
outlined in the Chaelundi Case. Indeed, the
vegetation clearance model can be explained as
another way of protecting species by protecting
habitat. But that is to belie its basic thrust,

The Council (or Authority) has no power to

De A n

refuse an application unless the clearance would


infringe the criteria. In effect, therefore, the
fundamental legislative rule is not that no
vegetation may be cleared without permission
but rather, that vegetation having specified
biological or biodiversity qualities (or certain
land degradation benefits) may not be cleared.
The true character of the legislation lies,
therefore, in the biological (and land
conservation) values expressed in the clearance
decision-making criteria. This can be explained
further by reference to the process.
When a clearance application is lodged,
scientific officers from the Native Vegetation
Management Branch in the Department of
Environment and Planning carry out a biological

Assessment: The Two Approaches

These two models may now be related to one


another to explain the comments made about
them at the outset. Each is, in its way, an
approach to the conservation of biodiversity and
each seeks its goal essentially by the protection
of habitat.
There are, however, important differences,
perhaps the most striking being this. Even given
a clear rule protecting a species as with the United
States Endangered Species Act or as in
Chaelundi's case, the legislation of itself provides
little protection, in that habitat can be removed
and the species prejudiced unless the matter is
glaring enough to result in protective legal action.
That is, habitat remains unprotected until action
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1992

Biodiversity Legislation

is taken, by reference to some particular species,


to protect it.
The impact on species tends to be death by
a thousand cuts as development nibbles away
at habitat. Few areas contain such a wealth of
significant species that clearing the vegetation
is as profoundly contrary to biodiversity principles as was the case with Chaelundi. Thus
habitat continues to be destroyed without there
being a clear effective basis upon which to step
in.
The enactment of legislation which seeks more
directly to protect habitat rather than just protect
species, requires some legislative mechanism
which of itself identifies the habitat requiring
protection. This may be possible to achieve by
reference to species, but it would need a
legislative mechanism requiring the pro-active
identification of all relevant habitat. This task
would be very time-consuming and constantly
be overtaken by better information.
The vegetation model strikes directly at the
source of the major threat to biodiversity,
namely, destruction of habitat by adopting what
would seem to be the simplest, most flexible
method of identifying the relevant habitat. This
model is based upon the recognition that since
most important habitat consists of native
vegetation, and possibly vice versa, the solution
is to protect most native vegetation by
prohibiting clearance until its biodiversity value
is assessed. (This may not be so usable in the
old world where "native vegetation" is not
readily identified as is the case in Australia.) This
approach is also flexible in that information
balancing a range of biological values can be
applied as it becomes available.
In response to any suggestion that this is too
drastic a solution, the South Australian
experience is informative. There has long been
a temptation, if not a habit in Australia to point
to a sweep of native vegetation and say that it
just "goes on for miles", that it's "all the same".
But perhaps the most instructive aspect of the
South Australian experience, where vegetation
proposed for clearance has been subject to biodiversity assessment since 1985, is that
Australia's vegetation (certainly what is left of
it), is far more diverse and far more likely to
be biologically significant than most people have
realised. Indeed, it is simply for this reason, not
for reasons of legislative or administrative policy
179

that the rate of refusal for clearance applications


in South Australia has moved from about 50 per
cent to reach 96 per cent. There can be no doubt,
based on this experience, that a great deal of
biologically important habitat is being removed
elsewhere in Australia. It is no answer that
policies are being developed to deal with the
question, or that notification of clearance must
be given with a power of disallowance. It is clear
that assessment in accordance with statutory
criteria is essential to an effective programme.
Another way of expressing the difference
between the two models is to say that the
vegetation or habitat approach applies the
precautionary principle. The legislation, of itself,
protects habitat, without the need for further
legal action, until it is assessed and approval to
clear or modify the vegetation is given. The
argument that people will break the law and clear
unless stopped, in the same sense as they will
modify habitat and thus break the law by
indirectly taking species, is ill-founded. The
South
Australian experience is that, in the
vegetation clearance context, as with most areas
o f law
> m o s t P e o P l e o b e v t h e l a w Landholders
are not less law-abiding or less democraticallyspirited than other groups in society,
The precautionary approach to biodiversity
conservation is necessary, not simply because of
the species collapse but because in this, as in
other environmental spheres, prevention is better
than cure. It is simply irrational, not to mention
very difficult, to allow habitat destruction to the
point that species are rare or endangered and then
seek to protect them to the point that they cease
to have that classification, which, for most
species, must be the aim.
A further fundamental difficulty with the
species approach is that it tends to focus on
particular species, hence away from ecosystems,
At worst this may support the view that one
can protect a few rare plants by placing drums
over them, or a rare animal by having a few
pairs in a patch of vegetation akin to an outdoor
zoo.
The Court in Chaelundi rightly recognised
that, to protect a species, its supporting ecosystem must be protected, including, for
example, protecting sufficient numbers of prey
species. But a legislative focus on a species tends
to place this at the end of a line of reasoning,
Where legislation concerns itself more directly

Environmental and Planning Law Journal

June

with habitat, ecosystems become of more


immediate concern. This is illustrated by the
South Australian vegetation or habitat approach
where plant associations or natural groupings of
plants (not a fully ecological concept but a move
in that direction), are themselves protected. This
is also part of the precautionary approach as the
threat to some species very likely suggests a threat
to others.
Another significant aspect of the tendency to
focus on conspicuous species rather than habitat
lies in the emphasis thus placed upon trees. This
focus on trees diverts attention away from the
full extent of what is being lost by the clearance
of diverse native vegetation. Australia has a
programme which aims to plant one billion trees
in the decade. Yet just in South Australia, in
half that time, applications have been made to
clear some half a billion trees. More significantly,
however, this represents perhaps some 20 billion
significant plants, many more if all the little
things are counted. If an area contains one
hundred species, for example, only a handful will
be trees. The key importance of small species,
not to mention the processes of ecology, tends
to be cast into the shadow by the species emphasis
placed upon trees.
The contrast between the two models is clearly
apparent in the context of resource guarantee,
guaranteeing the right to cut certain native
forests. It is not possible to assess in a short
period in advance the true biological value of
very extensive areas. Hence the destruction of
valuable biological material is also assured unless
a guarantee is subject to progressive assessment
on the basis of unfolding information before
particular clearance events occur, both as to the
significance of habitat and disturbance. This is
what any serious commitment to biodiversity
would require but it is then no guarantee at all.
This should not be confused with "right to farm"
legislation which worldwide tends to mean only
the right to remain free from, or unable to exploit,

urban encroachment onto rural land. It is very


difficult in this age to justify guaranteeing the
exploitation of native vegetation except in terms
which are subject to scientific assessment and
biodiversity constraints.
This is not to say, of course, that biodiversity
legislation should seek to freeze the landscape,
All landscapes are biologically dynamic. Most
are, moreover, increasingly, in one sense or
another, subject to human pressures and
therefore need to be, in one sense or another,
managed. The extraction of wealth from the
landscape has long been a feature of human
existence and will continue. But those aspects
of the landscape which most closely resemble
the natural are increasingly vulnerable and if
biodiversity is to be conserved, action which
disturbs them, and thereby threatens
biodiversity, requires consideration other than
through economic forces,
There is much more yet to be said on biodiversity. For the moment, several closing points
may be made. Any serious concern for
ecologically sustainable development requires a
biodiversity programme which cannot effectively
be provided through the species model. The
native vegetation approach including statutory
biological criteria is essential. This is not to say
that the former has no role to play. It is a valuable
adjunct where activities or processes not readily
caught by the vegetation or habitat approach are
concerned. In this, legislative nourishment may
be had from the Victorian Flora and Fauna
Guarantee Act. It is also a way of dealing with
the problem of existing uses. The protection of
such uses by exemption is a feature of the South
Australian model. This protects grazing, for
example, no matter how unimportant it is to
production and no matter how significant the
biodiversity impact. If a way cannot be found
to tune such exemptions, then the issue is one
which may be dealt with by using the species
approach.

References
1. This article explores briefly one aspect ofthe conservation
of biodiversity. Being written while on the move on study
leave, and hence without research materials, it is a
thoughts article rather than a research one. The sparse
documentation will be rectified in a more extensive work.

2. D. J. Rohlf (Stanford ELS).


3. Corkill v. Forestry Commission (N.S.W.) (1991) 73
L.G.R.A. 126.
4. Dorrestijnv. South Australian Planning Commission (1984)
59 A.L.J.R. 105.
180