Animal Liberation Act v Conservator of Flora and Fauna
[2014] ACAT 35
•11 June 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
ANIMAL LIBERATION ACT v CONSERVATOR OF FLORA AND FAUNA
(Administrative Review) [2014] ACAT 35
AT 14/28
Catchwords: ADMINISTRATIVE REVIEW – Culling of Kangaroos – decisions to issue licences to cull eastern grey kangaroo communities – translocation and fertility control as alternatives – unintended mortality resulting from culling activities – licensing conditions – effect of culling on biodiversity of areas subject to licence – consideration of endangered communities in those areas – animal welfare – overgrazing by kangaroos – estimation of kangaroo numbers
Legislation:Nature Conservation Act 1980, ss 30, 38, 44 and 103-113
Subordinate
Legislation:Nature Conservation (Licensing Criteria) Determination 2001 (DI2001-47)
Nature Conservation (Species and Ecological Communities) Declaration 2012 (No 1) (DI2012-11)
Nature Conservation (Draft Strategy) Approval 2013 (DI2013-
211)
Texts/Papers: ACT Government, Territory and Municipal Services, The ACT Kangaroo Management Plan (2010)
Australian Government, National Code of Practice for the Humane Shooting of Kangaroos and Wallabies for Non-Commercial Purposes (endorsed by the Natural Resources Management Ministerial Council) (2008)
Tribunal: Mr G. Lunney SC – Senior Member (Presiding)
Mr A. Davey – Senior Member
Mr P. Conway – Member
Date of Orders: 11 June 2014
Date of Publication of reasons for decision: 20 June 2014
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL AT 14/28
BETWEEN:
ANIMAL LIBERATION ACT
Applicant
AND:
CONSERVATOR OF FLORA AND FAUNA
Respondent
Tribunal: Mr G. Lunney SC – Presiding Member
Mr A. Davey – Senior Member
Mr P. Conway – Member
DATE:11 June 2014
ORDER
The Tribunal Orders that:
The decisions of the Conservator of Flora and Fauna to grant the licences the subject of this application being licenses LK2014659 to LK2014666 are confirmed.
The applicant’s application is dismissed.
The stay on operation of those licences continued until further order on 3 June 2014 is revoked.
Signed…………………..
Ms E. Symons – Presidential Member
For and on behalf of the Tribunal
REASONS FOR DECISION
This is an application brought to review a decision made by the Conservator of Flora and Fauna pursuant to section 104(1)(a) of the Nature Conservation Act 1980 (the Act) to grant licences to kill approximately 1,606 eastern grey kangaroos in 8 nature reserves in the ACT between 14 May and 31 July 2014.
Although the original application was expressed to be made in respect of one decision as was thought at the time that the application was lodged, it later became apparent that eight decisions were involved and the application was amended to make it clear that each of the decisions to grant a total eight licences was sought to be reviewed.
Each licence was issued on 12 May 2014. It was issued in response to an application to kill a specified number of kangaroos in a nature reserve in the ACT and in some cases on adjacent unleased land. It was subject to listed conditions which included the identity of the shooters who were authorised to undertake the culling pursuant to the licence. The licences were numbered from 20144659 to 20144666.
The application for review of decision was dated 13 May 2014 and was filed on the same day. At that time, the Statement of Reasons had not been prepared and filed and the application stated that only general reasons for opposition could be provided. No further details were later provided. The applicant filed a Statement of Facts and Contentions, and the Tribunal will take into account the contentions contained in that document.
A statement of reasons for each licence was issued by the Conservator on 16 May 2014.
The application stated that eastern grey kangaroos do not need to be killed to ensure that grasslands and woodlands are not overgrazed in order to protect threatened species and to prevent erosion, or otherwise to meet the objectives of the Nature Conservation Strategy. It further stated that there is no, or insufficient, evidence to support such a decision, and/or that the evidence used is inaccurate.
The application was listed on 20 May 2014, and an expedited hearing was listed on 29 May 2014. Directions were made relating to preparation for the hearing and a stay of the operation of the licences was granted.
There were difficulties in complying with the preparation timetable and the hearing actually commenced on Tuesday 3 June 2014 and concluded on Friday 6 June 2014. The Tribunal’s decision was reserved.
Legislative Provisions
It is an offence to kill kangaroos in the Territory. That offence is created by section 44 of the Act.
44 Killing native animals
(1) A person shall not, except in accordance with a licence, kill a native animal.
The licences at issue in these proceedings were issued pursuant to the Act. Part 11 - which comprises sections 103 to 113 - deals with the issue and regulation of licences. The subject licences were issued pursuant to section 104. Section 106 permits the Minister to determine criteria for the issue of licences, imposition of conditions, and duration of licences.
Such criteria have been promulgated and are contained in the Nature Conservation (Licensing Criteria) Determination 2001 (DI2001-47) (Licensing Criteria).
Other provisions of the Act and subordinate legislation made under it are relevant to this application.
The ACT Nature Conservation Strategy 2013 was approved by the Minister in the Nature Conservation (Draft Strategy) Approval 2013 (DI2013—211), pursuant to section 30(1) of the Act. Section 30 is part of Division 3.1 of the Act which provides for the drafting of a Nature Conservation Strategy, consultation regarding it, and its approval. This replaced a previous Nature Conservation Strategy which had been approved in 1997.
When determining an application for a licence, the Conservator must have regard to the objectives set out in the Nature Conservation Strategy.[1]
[1] Clause 7(1), Licensing Criteria
Under clause 10(a) of the Licensing Criteria, the Conservator, when determining an application for a licence relating to animals, must have regard to the degree of unintended mortality of animals that is likely to occur.
Under section 38(2) of the Act, the Minister may declare that an ecological community is endangered. Pursuant to this provision, in the Nature Conservation (Species and Ecological Communities) Declaration 2012 (No 1) (DI2012—11), Natural Temperate Grassland and Yellow Box/Red Gum Grassy Woodland communities in the Territory were declared to be endangered communities.
The eight reserves in respect of which the licences were issued consist of or include such communities.
The ACT Kangaroo Management Plan was published by the ACT Government in 2010. This details a plan for management of kangaroos in the ACT. The applicant concedes that this document sets out the government’s policy in relation to kangaroos in the Territory.
The Applicant’s Case
The applicant called five witnesses and provided witness statements in respect of all of them. Those statements were admitted into evidence.
The first witness was Professor Garlick. He based his expertise more on his experience with wild life rescue and rehabilitation, which mainly involved macropods. His evidence and experience was echoed by his wife, Dr Rosemary Austen, who engaged in the rescue and rehabilitation activities with him. They gave evidence of extensive observation of kangaroo populations over a period of about 14 years.
Two papers authored by them were admitted into evidence.
They said that there was concern about what they termed psychological extinction of surviving kangaroos following culling due to chronic stress and post traumatic stress disorder brought about by family break up and other factors.
Professor Garlick enlarged on his reference to family break up in examination in chief, describing it as dismemberment of a grouping of kangaroos causing fragmentation, disharmony and dispersal.
Professor Garlick did not suggest that his views represented a strong body of scientific thought relating to kangaroos, nor that they were the result of controlled testing and evaluation in the field.
It is possible that his views may be sound, however, interpreting observed animal behaviour as being due to some underlying process equating to human emotion does not appear to be an accepted point of view. It is possible that unexpected events such as culling might lead to change in animal behaviour, but to what extent and for what period was not even guessed at by the Professor.
Professor Garlick’s views about group disintegration and post traumatic stress disorder run contrary to later testimony of Dr George Wilson.
Professor Garlick’s and Dr Austen’s views were relevant to the licensing consideration referred to above of unintended mortality. For the reasons referred to above the Tribunal is not of the view that psychological damage is a likely consequence of culling.
The applicant also called Mr Marcus Fillinger. He was a very willing witness of a number of related occupations. He had substantially a photographic and firearm background.
He was apparently trained, skilled and well experienced in use of and delivery of tranquillisers, fertility control or medicines to large animals by means of dart gun. He has appropriate licences in New South Wales (NSW).
Professor Garlick also gave evidence regarding the desirability of translocation.
On the evidence of Dr Graeme Coulson and Dr Wilson, the technical development of translocation or fertility control has not progressed sufficiently at this stage as to allow it to be considered a practical alternative to culling by firearms. The Tribunal accepts that is the present position.
The applicant also called Dr William Taylor. He is a retired plant scientist. His present activities are associated with peer review of papers for publication.
He was very critical from a peer review perspective of a review that had been commissioned by the Territory in respect of aspects of the ACT Kangaroo Management Plan.
That review was not intended for publication as an academic paper. The Tribunal noted Dr Taylor’s comments on the paper, however regards Dr Taylor’s evidence about peer review as not directly relevant to the decisions at issue.
The applicant also called Mr Raymond Mjadwesch.
Mr Mjadwesch provided a Curriculum Vitae which established that he was well qualified as an ecological consultant for mostly local government in NSW. This work had involved some work with kangaroo populations. He did not have a higher degree.
He confidently expressed views on many relevant matters. However, some of those views were directly contrary to published statistics or studies, and some were directly contradicted by better qualified experts, also called in the proceedings.
The Tribunal took the view that Mr Mjadwesch was giving evidence not as an expert witness, but as an advocate for a bioethical position which opposed kangaroo culling. The Tribunal was not assisted by his evidence.
Evidence of the Respondent
The respondent called a number of witnesses, the first of which was Dr Donald Fletcher. He had provided witness statements which were admitted into evidence.
He had been involved in most stages of the cull process. This was criticised by the applicant on the basis of conflict of interest and bias. Dr Fletcher is a well qualified staff member of the nature conservation policy division of the Environment and Sustainable Development Directorate, for whom a principal function of his employment was oversight of kangaroos in the Territory. He thus has an extensive knowledge of their numbers, locations and conditions under which they live. In a relatively small jurisdiction such as the ACT, it is quite possible that one person would discharge all the duties that might be shared by a number of people in the States.
The Tribunal acknowledges that there is some potential for conflict of interest, but notes that Dr Fletcher was excluded from the actual decision to grant the licence for each area. He was involved in advising prior to that, and in preparation of the reasons for decision when they were requested. However, he is not the decision authority. It is the Conservator of Flora and Fauna who is obliged to consider and balance the several factors listed in the notified decision criteria.
Dr Fletcher gave extensive evidence about the process which led up to the decision to reduce kangaroo numbers in a number of reserves and then the decisions to issue licences for the actual culling. He was cross examined, however, he did not depart from the oral evidence and written material which he had provided.
The Tribunal was satisfied with Dr Fletcher’s expertise and was of the view that his evidence together with the documentary evidence that he referred to, established a solid scientific basis for the issue of the licences. Much of his evidence conflicts with that of Mr Mjadwesch, however, having regard to the Tribunal’s previous comments about Mr Mjadwesch’s evidence, where there is conflict between the two witnesses, the Tribunal prefers the evidence of Dr Fletcher.
The respondent also called Dr Graeme Coulson. The Tribunal accepted that Dr Coulson is a well recognised Australian authority on kangaroo ecology. He supported the evidence of Dr Fletcher and the scientific grounding for the issuing of the licences.
In particular, he stated that in his view translocation and fertility control were not viable alternatives to culling at this stage.
The respondent finally called Dr George Wilson and tendered an undated statement commenting on the evidence of Professor Garlick, and a report that Dr Wilson prepared in 2012 when he had been engaged during a cull to monitor compliance with the National Code of Practice for the Humane Shooting of Kangaroos and Wallabies for Non-Commercial Purposes. He is a qualified veterinarian, and has extensive experience in that area.
Dr. Wilson did not agree with the evidence of Professor Garlick regarding social disruption and family disintegration. Dr Wilson also stated that there were difficulties associated with translocation which was not a viable alternative to culling at this stage.
In cross examination, he agreed that it would be likely that there would be some orphaning of young at foot as a result of the culling. It could be inferred from his evidence that eventual death of a number of semi independent young at foot would be a probable consequence of a cull, and that this was an undesirable outcome. He did not say that this was unacceptable or that it rendered culling undesirable, if otherwise justified on substantial grounds.
Contentions of the Applicant
The contentions of the applicant were grouped under a number of headings. The first of these was that the decisions were contrary to environmental objectives. This assertion was followed by a number of sweeping statements which were either argumentative or unsupported by either the evidence called by the applicant, or by the respondent. It was asserted that relevant matters were not taken into consideration during the decision making process. This assertion was without evidentiary support.
The applicant also contended that the ‘precautionary principle’ would support a decision not to grant the licences. It is not clear what support there is for this contention. The respondent also relies on this principle. Dr Fletcher said that it was important to anticipate damage to the environment, because irreparable damage can result from a ‘wait and see’ approach. He added that in his view it would be worse not to cull at all rather than to overcull. Kangaroos in the Territory were capable of recovery, and there were areas where previously there had not been significant populations of kangaroos and now such populations were well established.
It was also contended that there had been a failure to consider alternatives. It was clear that alternatives had been considered and there was ongoing research into this area. The Tribunal accepts the evidence that the alternatives of translocation and fertility control are not yet practicable.
The applicant contends that the respondent did not sufficiently take into account a number of matters relating to animal welfare. It was clear to the Tribunal that this was not the case. The evidence established that the conditions of the licence and the monitoring that had been commissioned during previous culling operations demonstrated a high awareness of the safeguarding of animal welfare.
It is unlikely that a perfect outcome could be achieved in practice, however the Tribunal is satisfied that attention to animal welfare is being constantly reviewed, and the system applying under the present licensing conditions is designed to achieve the best possible outcome.
Contentions of the Respondent
The contentions of the respondent identified the legislative background for management of kangaroos in the territory in order to control the impacts of grazing pressure by them.
The respondent contended that the ACT Nature Conservation Strategy actually requires the Conservator to implement the ACT Kangaroo Management Plan approved by the Government, and to ensure the effective protection of the declared endangered ecological communities.
A precautionary approach should be adopted in order to manage kangaroo impact by overgrazing in order to prevent loss of habitat of endangered species before such loss occurred. Counting of kangaroos in reserves had identified the need to reduce numbers in a number of those reserves.
The ACT Kangaroo Management Plan identified culling by shooting as the preferred technique to reduce kangaroo populations. Other methods were currently impractical.
Biodiversity in the Territory would not be affected by the culling proposed. However, biodiversity would be threatened by loss or damage to the declared endangered communities in the reserves due to excessive kangaroo numbers.
The respondent also contended that no expert evidence from the applicant challenged the data on damage to ecological communities. Similarly, it was contended that claims about regional population decline of eastern grey kangaroos had been shown to be spurious.
Consideration
The decision to issue each licence involves a balancing of competing ecological interests. On the one hand is the preservation of the existing populations of kangaroos in the relevant reserve area. On the other hand is the assessment of the reserves as containing endangered communities. The proposed culling does not threaten the eastern grey kangaroo as a species. However, allowing overgrazing and degradation of the environment may lead to significant impact on the endangered communities within the reserves.
The Tribunal takes the view that the integrity of the communities must not be jeopardised, and it is preferable to establish an effective program of culling in areas where indicated by the circumstances. All community interest cannot be met by doing so, but the decisions that have been made are the correct and preferable ones having regard to all the evidence that has been put before the Tribunal during the hearing.
………………………………..
Mr G. Lunney – Senior Member
For and on behalf of the Tribunal
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