Australian Brumby Alliance Inc v Parks Victoria Inc - [2020] FCA 605

FEDERAL COURT OF AUSTRALIA
Australian Brumby Alliance Inc v Parks Victoria Inc [2020] FCA 605

File number(s): VID 1569 of 2018

Judge(s): O'BRYAN J

Date of judgment: 8 May 2020

Catchwords: ADMINISTRATIVE LAW - Environment Protection and Biodiversity Conservation Act 1999 (Cth) Act s 15B(5) – action to prevent removal of brumbies from the Bogong High Plains and Eastern Victorian Alps within the Australian Alps National Parks and Reserves - whether removal will have or is likely to have a significant impact on the National Heritage values of the Australian Alps National Parks and Reserves - whether prohibiting the removal is reasonably appropriate and adapted to give effect to Australia’s obligations under Article 8 of the Biodiversity Convention – whether brumbies are part of the National heritage values of the Australian Alps National Parks and Reserves – whether the Biodiversity Convention protects cultural and social values - proper construction of s 15B(5) and (6)

Legislation:
Competition and Consumer Act 2010 (Cth)

Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Evidence Act 1995 (Cth)

Trade Practices Act 1974 (Cth)

Flora and Fauna Guarantee Act 1988 (Vic)

National Parks Act 1975 (Vic)

Parks Victoria Act 2018 (Vic)

Cases cited:
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225

Australian Competition and Consumer Commission v Pacific National Pty Limited [2020] FCAFC 77

Booth v Bosworth (2001) 114 FCR 39

Commonwealth v Tasmania (1983) 158 CLR 1

Director of Public Prosecutions (Cth) v Poniatowska (2011) 244 CLR 408

Minister for the Environment & Heritage v Greentree (No 2) (2004) 138 FCR 198

Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1

Monroe Topple & Assocs Pty Ltd v Institute of Chartered Accountants in Australia (2002) 122 FCR 110

Povey v Qantas Airways Limited (2005) 223 CLR 189

Secretary, Department of Primary Industries, Parks, Water and Environment v Tasmanian Aboriginal Centre Inc (2016) 244 FCR 21

Secretary, Department of Sustainability and Environment (Vic) v Minister for Sustainability, Environment, Water, Population and Communities (Cth) (2013) 209 FCR 215

Seven Network Limited v News Ltd (2009) 182 FCR 160

Taikato v The Queen (1996) 186 CLR 454

Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331

Universal Music Australia Pty Ltd v ACCC (2003) 131 FCR 529

Victoria v The Commonwealth (1996) 187 CLR 416

National Parks and Conservation Association v Babbitt (2001) 241 F (3d) 722

Date of hearing: 19 July 2019

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 261

Counsel for the Applicant: Mr D Star QC with Ms K Grinberg and Mr A Yuile

Solicitor for the Applicant: Phoenix Legal Solutions

Counsel for the Respondent: Mr C Caleo QC with Mr E Nekvapil and Ms R Amamoo

Solicitor for the Respondent: Maddocks

ORDERS

VID 1569 of 2018

BETWEEN:
THE AUSTRALIAN BRUMBY ALLIANCE INC

Applicant

AND:
PARKS VICTORIA INC

Respondent

JUDGE:

O'BRYAN J

DATE OF ORDER:

8 MAY 2020

THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’s costs of the proceeding.
3.Orders 1 and 2 be stayed for a period of five days.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
O’BRYAN J:
INTRODUCTION

The respondent (Parks Victoria) proposes to trap and remove feral horses, also known as brumbies, from the Bogong High Plains and the Eastern Alps within Victoria’s Alpine National Park (Action). The Action was set out by Parks Victoria in the Protection of the Alpine National Park – Feral Horse Strategic Action Plan 2018-2021 (Plan).
The Alpine National Park forms part of the Australian Alps National Parks and Reserves (Australian Alps). The Australian Alps comprises areas of Victoria (including the Alpine National Park), NSW and the ACT. It is common ground that the Australian Alps are:
(a)included in the National Heritage List (kept by the Minister under Division 1A of Part 15 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBCAct), together with National Heritage values identified by reference to the National Heritage criteria prescribed in the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) (the EPBC Regulations), and are therefore a National Heritage place pursuant to s 324C(3) of the EPBC Act; and
(b)in an area in respect of which Australia has obligations under Article 8 of the Convention on Biological Diversity (Biodiversity Convention).
The applicant, The Australian Brumby Alliance Inc (ABA), seeks injunctions under s 475 of the EPBC Act to restrain Parks Victoria from taking the Action. Specifically, the ABA seeks injunctions restraining Parks Victoria from:
(a)trapping, removing, or otherwise interfering with any brumby in the Bogong High Plains in the Alpine National Park under the Plan; and/or
(b)taking any action that might cause significant depletion of any of the other populations of brumbies in the Alpine National Park under the Plan,
without an approval to do so under Pt 9 of the EPBC Act or a decision from the Commonwealth Minister for the Environment under Pt 7 of the EPBC Act that the Action is not a controlled action. Alternatively, the ABA seeks an injunction requiring Parks Victoria, in accordance with section 68 of the EPBC Act, to refer the Action as set out in the Plan to the Minister for the Minister's decision, whether or not the action is a controlled action.
Section 475(1) of the EPBC Act provides, among other things, that if a person proposes to engage in conduct consisting of an act or omission that constitutes a contravention of the Act, an interested person may apply to the Federal Court for an injunction. Parks Victoria accepts that the ABA is an interested person and that Parks Victoria proposes to take the Action. The question raised by the proceeding is whether the Action would constitute a contravention of the EPBC Act.
The ABA contends that the Action would constitute a contravention of ss 15B(5) and 15C(10) of the EPBC Act.
Section 15B(5) is a civil penalty provision and provides as follows:
A person must not take an action that has, will have or is likely to have a significant impact on the National Heritage values of a National Heritage place in an area in respect of which Australia has obligations under Article 8 of the Biodiversity Convention.
The prohibition in s 15B(5) is subject to a qualification in s 15B(6) which provides as follows:
Subsection (5) only applies to actions whose prohibition is appropriate and adapted to give effect to Australia’s obligations under Article 8 of the Biodiversity Convention. (However, that subsection may not apply to certain actions because of subsection (8).)
The prohibition in s 15B(5) is also subject to a qualification in s 15B(8). Relevantly, s 15B(8) provides that subsection (5) does not apply to an action if an approval of the taking of the action is in operation under Part 9 of the Act for the purposes of s 15B or there is in force a decision of the Minister under Division 2 of Part 7 of the Act that s 15B is not a controlling provision for the action. It is common ground that there has been no approval of the Action under Part 9 of the Act, nor a decision of the Minister under Part 7, and that s 15B(8) does not apply to the Action. As is apparent from the terms of the injunction sought by the ABA, it has brought this proceeding because it considers that the Action is unlawful without such approvals.
Section 15C(10) is a criminal offence provision and provides as follows:
A person commits an offence if:
(a) the person takes an action; and
(b) the action is likely to have a significant impact on the heritage values of a place; and
(ba) the heritage values are National Heritage values of the place; and
(bb) the place is a National Heritage place; and
(c) the National Heritage place is in an area in respect of which Australia has obligations under Article 8 of the Biodiversity Convention.
The offence in s 15C(10) is subject to a qualification in s 15C(14) which is in materially the same terms as s 15B(6) and a qualification in s 15C(16) which is in materially the same terms as s 15B(8).
It can be seen that the prohibition in s 15B(5) (as qualified by s 15B(6)) is in materially the same terms as the offence in s 15C(10) (as qualified by s 15C(14)). Accordingly, for the purposes of the ABA’s application for an injunction under s 475(1) of the EPBC Act, it is only necessary to consider the prohibition in s 15B(5) and the qualification in s 15B(6).
Having regard to the terms of ss 15B(5) and (6), the proceeding gives rise to two questions:
(a)first, would the Action, if taken, be likely to have a significant impact on the National Heritage values of the Australian Alps; and
(b)second, is the prohibition of the Action appropriate and adapted to give effect to Australia’s obligations under Article 8 of the Biodiversity Convention?
The parties agree that the National Heritage values of the Australian Alps are those specified in the Schedule to the Commonwealth of Australia Gazette No S237 dated 4 November 2008 (the Gazette). They are set out in detail below.
Article 8 of the Biodiversity Convention relevantly provides:
Article 8. In-situ Conservation
Each Contracting Party shall, as far as possible and as appropriate:
(a) Establish a system of protected areas or areas where special measures need to be taken to conserve biological diversity; …
(c) Regulate or manage biological resources important for the conservation of biological diversity whether within or outside protected areas with a view to ensuring their conservation and sustainable use;
(d) Promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings; …
(h) Prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species; …
(i) Endeavour to provide the conditions needed for compatibility between present uses and the conservation of biological diversity and the sustainable use of its components;…
The parties agree that brumbies in the Australian Alps are members of the species Equus caballus. They also agree that the species Equus caballus, when occurring in the Australian Alps, is an “alien species” within the meaning of the Biodiversity Convention.
It is common ground that the ABA bears the burden of proof on both questions set out above. In other words, the ABA must establish on the balance of probabilities that the Action would constitute a contravention of ss 15B(5), and that requires the ABA to establish that the Action would, if taken, be likely to have a significant impact on the National Heritage values of the Australian Alps and that prohibiting the Action is appropriate and adapted to give effect to Australia’s obligations under Article 8 of the Biodiversity Convention. To succeed, the ABA must establish both matters. If it fails on either, the Action is not prohibited by s 15B(5) (or 15C(10)). In closing submissions, both parties addressed the question arising under s 15B(6) first. I will do likewise in these reasons.
It should also be noted that the requirement in s 15B(6) is not concerned with the question whether the Action is the most appropriate and best adapted action to give effect to Australia’s obligations under Article 8 of the Biodiversity Convention, or whether some other action might be more appropriate and better adapted for that purpose. The requirement is concerned with the question whether prohibiting the Action is appropriate and adapted to give effect to Australia’s obligations under Article 8 of the Biodiversity Convention.
For the reasons that follow, I am not satisfied that the Action would constitute a contravention of ss 15B(5) (which conclusion is also applicable to s 15C(10)). Specifically, I am not satisfied that the prohibition of the Action is appropriate and adapted to give effect to Australia’s obligations under Article 8 of the Biodiversity Convention. Having reached that conclusion, it is strictly unnecessary to determine whether the Action would be likely to have a significant impact on the National Heritage values of the Australian Alps. Nevertheless, I am not so satisfied. I therefore dismiss the ABA’s application with costs.
In their evidence and submissions, the ABA tended to use the word “brumby” while Parks Victoria tended to use the expression “feral horses”. The expressions are synonymous, but each carries connotations. The origins of the name “brumby” are unclear. It is an Australian term for feral horses and its use can be traced back to the 1870s. Banjo Paterson’s poem “The Man from Snowy River”, which is referred to in the National Heritage values of the Australian Alps, does not use the expression, referring to the feral horses in the poem as the “wild bush horses”. However, his poem “Brumby’s Run” was published in 1894. The ABA’s preference for using the term “brumby” is understandable as it more closely connects with the heritage values that the ABA seeks to protect and relies on in this proceeding, and therefore has heritage connotations. Conversely, Parks Victoria’s preference for the expression “feral horses” is understandable because it more closely connects with the ecological issues that are at the forefront of Parks Victoria’s Plan, and therefore has ecological connotations. In these reasons, I would prefer to avoid using either expression so as to avoid the connotations the expression might convey. However, as explained in Dr Norman’s evidence, it is inaccurate to use the expression “wild horses” because that term is used to describe horses that have never been domesticated, such as the endangered Przewalski's horse which is native to the steppes of Central Asia. For reasons of convenience, I have chosen to use the expression “brumby” when referring to the horses that are the subject of the proceeding while expressly putting aside any connotations associated with the use of that name.
OVERVIEW OF THE EVIDENCE
In terms of evidence from lay witnesses, the ABA read the following affidavits:
(a)An affidavit of Jill Pickering sworn 3 March 2019. Ms Pickering is the inaugural and current President of the ABA and gave evidence about the work of the ABA and her personal experience of brumbies.
(b)Affidavits of Collen O’Brien sworn 12 December 2018 and 4 June 2019. Ms O’Brien is the President of the Victorian Brumby Association (VBA) and gave evidence about the work of the VBA in receiving brumbies removed from the Alpine National Park, training the brumbies and finding homes for them (referred to as “rehoming”), as well as the brumbies in the Bogong High Plains.
(c)An affidavit of Stephen Baird affirmed 8 March 2019. Mr Baird operates a homestead, stable and horse riding tour business called “Bogong Horseback Adventures" which is licensed by Parks Victoria to conduct horse riding tours in and around the Alpine National Park. He gave evidence about his business and his perception of the experience of his customers.
(d)Affidavits of Francis Beecher sworn 11 December 2018, 20 March 2019, 3 June 2019, 11 June 2019 and 3 July 2019. Ms Beecher is a lawyer for the ABA and adduced documentary evidence.
The ABA also adduced evidence from Dr Anne Jacobson who is a veterinarian and whose practice is predominantly equine. Dr Jacobson has experience with veterinary management of recently captured brumbies through her work with the VBA and other wild horse rehoming organizations.
None of the foregoing witnesses for the ABA were cross-examined.
The ABA also tendered a number of documents. Some of the documents involved studies of the impact of brumbies on the environment and were relied on in the cross-examination of the ecological experts (referred to below). Exhibit A8 was two versions of the Australian $10 note which depicted Banjo Paterson, a man on horseback which suggested the main character from the poem “The Man from the Snowy River” and, on one of the notes, a herd of brumbies.
The principal evidence for Parks Victoria was given by Dr Mark Douglas Norman, who is the Chief Conservation Scientist and Executive Director Environment & Science for Parks Victoria. Dr Norman was cross-examined. There was no challenge to his credit or reliability and I accept his evidence.
Parks Victoria also tendered a number of documents. Some of the documents related to Parks Victoria’s consultation process for the Plan and the public release of the Plan.
The parties adduced expert evidence in three areas: genetics, ecology and heritage. They also filed a document outlining the issues arising in the proceeding in each of the three areas of expertise. However, the parties did not agree on how the issues should be stated and therefore the document was of limited utility in framing the issues for decision.
The genetic evidence addressed the question whether there is likely to be genetic differences between the populations of brumbies in the Eastern Victorian Alps and the Bogong High Plains, and the minimum population size for a herd of brumbies to be viable. The ABA relied on the genetic evidence in support of the contention that prohibiting the Action (in so far as it related to the brumbies in the Bogong High Plains) would be appropriate and adapted to give effect to Australia’s obligations under Article 8 of the Biodiversity Convention. Genetic evidence was given for the ABA by Professor Julius van der Werf, and was given for Parks Victoria by Dr Andrew Raymond Weeks. The parties tendered an agreed statement of matters agreed by the genetic experts. The genetic experts were not cross-examined.
The ecological evidence addressed the question whether brumbies threatened ecosystems, habitats or species in Victoria’s Alpine National Park and whether the Action is an appropriate control of the threat and thereby an action that is appropriate and adapted to give effect to Australia’s obligations under Article 8 of the Biodiversity Convention. Ecological evidence was given for the ABA by Dr David McKenzie Berman, and was given for Parks Victoria by Prof Richard James Williams and Dr James Martindale Shannon. In addition to their individual reports, the experts filed a joint report and they were cross-examined concurrently.
The heritage evidence addressed the question whether the Action is likely to have an impact on the National Heritage values of the Australian Alps specified in the Gazette, focussed on the values in criterion (a), (e), (g) and (h), including the questions of how the Action is likely to impact, the nature and extent of the impact and whether the impact is likely to be significant? Heritage evidence was given for the ABA by Dr Susan Mclntyre-Tamwoy and for Parks Victoria by Mr Ian John Travers and Ms Deirdre Ann Slattery. For the reasons given below, I ruled Ms Slattery’s evidence inadmissible. In addition to their individual reports, Dr Mclntyre-Tamwoy and Mr Travers filed a joint report and they were cross-examined concurrently.
During the course of the trial, various objections to evidence were resolved between the parties and I ruled on other objections which do not require separate reasons. I set out below my reasons for evidentiary rulings that were the subject of more substantive argument, concerning the admissibility of parts of the reports prepared by Dr Berman and the whole of the report of Ms Slattery.
FACTUAL BACKGROUND

As already indicated, much of the factual background is uncontroversial. The area of controversy primarily concerns the expert evidence, particularly the ecological evidence directed to Article 8 of the Biodiversity Convention and the heritage evidence directed to the National Heritage values. The following sets out the (largely) uncontroversial factual background.
Inclusion of the Australian Alps on the National Heritage List
Part 15 of the EPBC Act establishes a framework for the listing of protected areas on various lists such as the World Heritage List and the management of such listed places. Division 1A of Part 15 provides for the listing of places on the National Heritage List. Section 324C provides that a place may be included in the National Heritage List only if the Minister is satisfied that the place has one or more National Heritage values. Section 324D provides that a place has a National Heritage value if and only if the place meets one of the criteria prescribed by the relevant EPBC Regulations. Regulation 10.01A(1) specifies that the National Heritage criteria are categorised as natural heritage values, indigenous heritage values and historic heritage values. Regulation 10.01A(2) defines each of the National Heritage criteria (comprising paragraphs (a) to (i)).
The usual process for the inclusion of places in the National Heritage List involves the Minister inviting people to nominate places for inclusion on the National heritage List (s 324J). The Minister then gives the nominations to the Australian Heritage Council (s 324JA). There is then a statutory process for prioritising an assessment list, and the Australian Heritage Council then undertakes an assessment of places on the list and gives each assessment to the Minister (s 324JH). After receiving an assessment, the Minister must decide whether or not to include the place on the National Heritage List (s 324JJ). A decision to include a pglace on the National Heritage List must be published in the Gazette which must include the National Heritage values of the place.
The Australian Alps were included on the National Heritage List on 4 November 2008. The National Heritage values of the Australian Alps are set out in the relevant Gazette by reference to specified criteria (for convenience, I will refer to the relevant Gazettal notice, in which the listing of the Australian Alps and their National Heritage values is recoded, as the “National Heritage Listing” or “Listing”). In this proceeding, the ABA places reliance on only a small part of the overall National Heritage values of the Australian Alps. It relies on certain of the values listed under criteria (a), (e), (g) and (h), which are reproduced below. It does not rely on other criteria and associated values that are listed, being criteria (b) and (d). In order to understand the issues raised by the ABA in context, it is necessary to set out the full set of National Heritage values for which the Australian Alps have been listed, even though the statement is lengthy. The values on which the ABA relies are marked by the use of italic font.

Criterion Values

(a) the place has outstanding heritage values to the nation because of the place’s importance in the course, or pattern, of Australia’s natural or cultural history. In respect of that criterion, the Listing states the following values
The Australian Alps National Parks and Reserves (AANP) are part of a unique Australian mountainous region. Human interaction with the region has been distinctive in its response to the challenges and opportunities presented by this unique environment.

Glacial and Periglacial Features

The assemblage of glacial deposits and features in the AANP includes five alpine lakes, thirteen cirques and associated moraines, ice-grooved and polished pavements and erratic boulders. Periglacial features, both fossil and modern, include block streams, permafrost and solifluction deposits. These features are the material expression of the cold-climate, high-altitude history of the AANP, unique in the low-latitude, low-altitude Australian continent. The glacial and periglacial features contribute uniquely to our understanding of the nature of landscape response to climate during the ice ages of the late Quaternary and into the present and therefore has outstanding heritage value to the nation for its importance in the pattern of Australia’s natural history (Percival 1985; Galloway 1989; Yeates 2001a; ISC 2004; AALC 2006).

Fossils

The Mt Howitt fish fossil site demonstrates remarkable fossil species diversity and preserves fish fossils across a wide range of life stages from larvae to mature fish, over tens of millions of years. The site contributes an important narrative about the evolution of fish across a number of different marine and freshwater environments, and the development of features that enabled vertebrates to leave the water to exploit terrestrial environments for the first time. Fossils revealed at the site have outstanding heritage value to the nation for their place in vertebrate evolution during the so-called 'Age of Fish' (Vickers-Rich and Rich 1993; Cook ed. 2007).

Karst

The Yarrangobilly karst area contains an outstanding collection of surface karst features including gorges, arches, blind valleys, springs and pinnacle fields. It also contains several hundred caves including six show caves with many intricate cave decorations, open for public viewing (ISC 2004). Yarrangobilly has yielded valuable information on the long-term dynamics of landscape formation. The thick flowstone sequences in Jersey Cave span half a million years and provide the longest continuous fire history record from a single site in Australia (DEH 2006b). Yarrangobilly has outstanding value to the nation for its features and karst processes evident in the limestone karst landscape.

Biological Heritage

The Alps are one of eleven sites recognised in Australia by the IUCN as a major world centre of plant diversity. During the late Quaternary and into the present, the high-altitude, cold-climate environment has provided refuge for species in an increasingly arid climate. Containing most of the contiguous montane to alpine environments in Australia, the AANP supports a rich and unique assemblage of cold-climate specialist species that have evolved unique physiological characteristics, enabling them to survive in an environment subject to extreme climate variation. Outstandingly rich flora taxa in the AANP include the daisies (Asteraceae), willow-herbs (Onagraceae), starworts and cushion-plants (Caryophyllaceae), southern heaths (Epacris), bottlebrushes (Callistemon), orchids (Pterostylis, Prasophyllum and Dipodium) and pimeleas (Thymaelaeaceae). Cold-climate adapted and endemic fauna species include the mountain pygmy-possum (Burramys parvus), the alpine she-oak skink (Cyclodomorphus praealtus), Snowy Mountains rock skink (Egernia guthega), Baw Baw frog (Philoria frosti), southern corroboree frog (Pseudophryne corroboree), and the northern corroboree frog (P. pengilleyi). Species of a great many invertebrate taxa are endemic to the Alps. These include stoneflies, caddisflies, mayflies, grasshoppers, and earthworms. Many display cold-climate adaptations, such as the mountain grasshopper (Acripeza reticulata), mountain spotted grasshopper (Monistria concinna) and alpine thermocolour grasshopper (Kosciuscola tristis). The Bogong moth undertakes regular migration in Australia and an essential part of its lifecycle occurs within the AANP. The AANP is a vital refuge for alpine and sub-alpine flora and fauna species, with a high level of richness and endemism across a wide range of taxa, and therefore has outstanding value to the nation for encompassing a significant and unique component of Australia's biological heritage (Nankin 1983; Costin 1989; Strahan 1995; Good 1995; Boden and Given 1995; WWF and IUCN 1995; Cogger 1996; Crabb 2003 Good 2003; ISC 2004; DSE 2005; AALC 2005; DEC 2006; McDougall & Walsh 2007, ANHAT 2007).

Moth Feasting

The use of an adult insect – the Bogong moth – as the basis for past large-scale annual gatherings of different Aboriginal groups for ceremonies sets the gatherings in the AANP apart from other Aboriginal ceremonial gatherings and has captured the Australian imagination, making it exceptional in Australia (White 2006). Therefore the AANP has outstanding heritage value to the nation because of the importance of Aboriginal social gatherings based on moth feasting in the course, or pattern, of Australia's cultural history.

Transhumant Grazing

The AANP has outstanding heritage value for its association with historic transhumant grazing that commenced in the 1830s. The practice of using alpine high plains to graze stock during the summer months was a significant pastoral activity of the nineteenth and twentieth centuries and was continuously practised for a period of over 150 years; making a considerable contribution to the early pastoral industry of south-east Australia. Transhumant grazing created and sustained a distinctive way of life that is valued as an important part of Australia's pioneering history and culture. Evidence of transhumant grazing includes huts, the former grazing landscapes, stock yards, and stock routes.

Scientific Research

The AANP has outstanding heritage value for the scientific research that has taken place since the 1830s, demonstrated by the density and continuity of scientific endeavour. Research sites within the AANP include those relating to botanical surveys, soil conservation exclosures, karst research, fauna research, meteorology, fire ecology plots, arboreta and glacial research sites. Space tracking undertaken in the ACT with Honeysuckle Creek Tracking Station having played a significant role in the Apollo 11 moon landing mission.

Water Harvesting

Water harvesting in the AANP has outstanding heritage value to the nation for its contribution to the social and economic development of Australia. Water harvested from headwaters in the AANP contributes to the water needs of Canberra and Melbourne. The Snowy Mountains Hydro-electric Scheme and the Kiewa Valley Hydro-electric Scheme also contributes to the electricity needs of south-eastern Australia. Both schemes were major post-war reconstruction projects, encouraging migration to Australia and employing over 60,000 displaced persons from post war Europe. Evidence of water harvesting in the AANP for power and irrigation includes the major pondages along with the numerous tunnels, aqueducts, power stations, huts, roads and former settlements, town and work camp sites.

Recreation

The AANP has outstanding heritage value for the longevity and diversity of its recreational use. Snow sports commenced in Kiandra in 1861 with the establishment of the Kiandra Snowshoe Club and expanded from an ad hoc activity by enthusiasts to a multi-million dollar snow sport and tourism industry characterised by the groomed ski slopes, ski lift infrastructure and substantial village resorts. The chalets supported by government were major features of the expanding activity and were established in scenic locations in the early twentieth century when mountain retreats were highly regarded for good health. These include the Mount Buffalo Chalet, the Yarrangobilly Caves House Precinct, the Chalet at Charlottes Pass, and the former Hotel Kosciusko and Mount Franklin Chalets.

(b) the place has outstanding heritage value to the nation because of the place’s possession of uncommon, rare or endangered aspects of Australia’s natural or cultural history
Landscape and Topography

The high altitudes of the plateaus and peaks in the AANP are prominent in a continent with an average elevation of only 330 metres above sea level. The AANP includes most of continental Australia's peaks over 1,700 metres and all of those over 1,900 metres. These high peaks and plateaus contain the vast majority of alpine and sub-alpine environments in Australia. The AANP experiences extensive snow coverage on a seasonal basis, and its glacial lakes are the only wetlands on the Australian mainland covered by ice sheets in winter. The high-altitude landscape of the AANP has outstanding heritage value to the nation for its topographic heights, uncommon alpine and sub-alpine ecosystems and glacial lakes. (AALC 2005; DEC 2006; Geoscience Australia 2007).

Glacial and Periglacial Features

Continental Australia and its southern territorial islands have experienced periods of historic glaciation, with current snow and ice coverage limited to the highest peaks and altitudes. On mainland Australia, the AANP preserves a concentration of glacial and periglacial features without comparison from the ice ages of the late Quaternary Period. The Kosciuszko Plateau is unique in mainland Australia as the only place irrefutably exhibiting landforms shaped by Late Pleistocene glaciers during a series of glacier advances known as the Late Kosciuszko Glaciation. The active and fossil periglacial landforms of the AANP include blockstreams and solifluction features (solifluction is the gradual movement of waterlogged soil down a slope, especially where percolation is prevented by a frozen substrate). They are the most striking and extensive in mainland Australia and demonstrate the widespread effects of cold climate in the Quaternary, mild climate in the Holocene and the absence of intensive Pleistocene ice modification of the elevated landscape of the Victorian and ACT Alps. Therefore the AANP has outstanding heritage value to the nation for containing uncommon glacial and periglacial features (Percival 1985; Yeates 2001; Barrows et al. 2001).

Fossils

The Mt Howitt fish fossil site is globally rare because it preserves a diverse array of fossil fish in uncommon detail at all stages of their lives. It is unique nationally in providing a snapshot of a complete freshwater vertebrate community from the past, and for yielding fossils from all stages of growth of a species, from tiny fish larvae to adult fish, and therefore has outstanding heritage value to the nation because of its preservation of an uncommon aspect of Australia's natural history (Long 2002; Cook ed. 2007).

Alpine and Sub-alpine Ecosystems

The AANP has outstanding heritage significance to the nation for possessing extremely uncommon aspects of Australia's natural history. Alpine and sub-alpine ecosystems are uncommon in the generally arid and warm climate of Australia. The distribution of cold-climate species on the mainland retreated to the higher altitudes of the Alps in the Late Pleistocene as conditions began to warm up. The AANP contains most of the alpine and sub-alpine ecosystems on mainland Australia, supporting flora and fauna species that have evolved to the harsh conditions of the high altitudes. Many of these species are endemic to the Alps and are found nowhere else in Australia. The bog and fen groundwater communities are supported by organic soils and contain exceptional water retention properties. These communities play an integral role in ecosystem function by regulating the slow release of water from saturated peatbeds to the surrounding alpine humus soils, streams and other alpine communities (Good 1995; AALC 2006b).

Eucalypt Flora Community

The AANP provides an outstanding example of the adaptability of a plant genus, the genus Eucalyptus, along a steep topographical transect. The eucalypts dominate the AANP vegetation from the lowlands to as high as the alpine region, where the snow gum (E. pauciflora) defines the treeline. Much of the highest land in Australia occurs within the AANP, which also demonstrates very large topographical variations, which in turn is reflected in the high diversity of eucalypt species replacing each other along the altitudinal and climatic gradient (Costin 1988; Kirkpatrick 1994; ISC 2004; ANHAT 2007).

(d) the place has outstanding heritage value to the nation because of the place’s importance in demonstrating the principal characteristics of (i) a class of Australia’s natural or cultural places; or (ii) a class of Australia’s natural or cultural environments
North-East Kosciuszko Pastoral Landscape

The landscape is outstanding for demonstrating the use of mountain resources, namely the summer grasses and herbfields. As a relict landscape of past grazing leases it conveys the principal characteristics of transhumance and permanent pastoralism in a remote environment, these being large areas of open grassy landscapes between timbered ridges and hills, stockman's huts, homestead complexes, stockyards and stock routes. The grasslands with swathes of pioneer shrubs include the Kiandra landscape, Boggy Plain, Nungar Plain, Gulf Plain, Wild Horse Plain, Tantangara Plain, Dairymans Plain, Currango Plain, Long Plain, Cooleman Plain, Kellys Plain, Blanket Plain, Peppercorn and Pockets Saddle (KHA 2008). Homestead buildings include Cooinbil and Old Currango and the modest homestead complexes of Currango and Coolamine with additional features including exotic plantings, sheds, barns, and workers' accommodation. Former stock routes, now fire trails, include the Port Philip Fire and Murrays Gap Fire Trails. Located in the former grazing leases are stockman's huts, Bill Jones Hut, Circuits Hut, Gavels Hut, Hains Hut, Hainsworth Hut, Millers Hut, Oldfields Hut, Pedens Hut, Pockets Hut, Townsends Lodge, Gavels Hut, Long Plain Hut, Gooandra Hut, Schofields Hut, and Witzes Hut (KHA 2008), which in their use and re-use of available materials typify a lifestyle and vernacular bush building technology using hand tools. The array of characteristics relate to over a century of alpine grazing.

(e) the place has outstanding heritage value to the nation because of the place's importance in exhibiting particular aesthetic characteristics valued by a community or cultural group
The AANP is a powerful, spectacular and distinctive landscape highly valued by the Australian community. The mountain vistas, including distinctive range-upon-range panoramas, snow covered crests, slopes and valleys, alpine streams and rivers, natural and artificial lakes, the snow-clad eucalypts and the high plain grasslands, summer alpine wildflowers, forests and natural sounds evoke strong aesthetic responses. Much of the terrain of the AANP is highly valued for its remoteness, and naturalness, including views to and from the region that capture snow clad ranges and mountain silhouettes against clear skies as well as expansive views of natural landscapes from the high points of the Alps.

The upper Snowy River and Snowy Gorge, Mount Buffalo, the Kosciuszko Main Range, Lake Tali Karng, Dandongadale Falls the peaks and ridges between and including Mt Cobbler, Mt Howitt and the Bluff, and other high peaks, ridgelines, granite outcrops and escarpments are examples of dramatic awe-inspiring landscapes. Recreational pursuits in these landscapes are enhanced by aesthetic appreciation of their wild and natural quality.

Snow-covered eucalypts, huts in mountain settings and mountain landscapes are distinctive Australian images captured by numerous artists and photographers. The mountain landscapes have inspired poets, painters, writers, musicians and film makers.

(g) the place has outstanding heritage value to the nation because of the place's strong or special association with a particular community or cultural group for social, cultural or spiritual reasons
The Australian Alps have a special association with the Australian community because of their unique landscapes, the possibility of experiencing remoteness and as the only opportunity for broad-scale snow recreation in Australia. The AANP is widely recognised by Australians as the 'high country' and many community groups have a special association with the AANP for social and cultural reasons.

Mount Kosciuszko is an iconic feature for all Australians and visited by over 100,000 people each year. It was named by the explorer Paul Edmund Strzelecki after the Polish freedom fighter, General Tadeusz Kosciuszko, in appreciation of freedom and a free people, an association that is highly valued by Australia's Polish community.

The pioneering history of the high country is valued as an important part of the construction of the Australian identity featuring in myths, legends and literature. The ballad of The Man from Snowy River epitomises horsemanship undertaken historically in the rugged landscape. The stories, legends and myths of the mountains and mountain lifestyles have been romanticised in books, films, songs, and television series and many such as the Elyne Mitchell’s Silver Brumby novels are part of Australia's national identity.

The mountain huts of the AANP constructed for grazing, mining and recreation are valued by communities as a physical expression of the cultural history of the region. They have special associations with many groups, such as mountain cattlemen, skiers and bushwalkers but particularly with huts associations that have been maintaining mountain huts and associated vernacular building skills for over 30 years.

(h) the place has outstanding heritage value to the nation because of the place's special association with the life or works of a person, or group of persons, of importance in Australia's natural or cultural history
Baron Ferdinand von Mueller is highly recognised nationally and internationally for his contribution to Australian botany, particularly his extensive and thorough botanical collections of the Australian Alps undertaken in several botanical collecting trips on horseback, each of several weeks' or months' duration (Costin et al. 1979).

Eugen von Guerard was a significant nineteenth century artist producing a prolific record of Australian landscapes. His 1863 painting the North-east view from the northern top of Mount Kosciusko is regarded as one of his finest artistically and is in Australia's national collection.
Through his ballad The Man from Snowy River, Andrew Barton 'Banjo' Paterson captured the imagination of the Australian people, stimulating a passion for the High Country and the way of life associated with the mountains. His iconic ballad has had a lasting influence on Australians.

The writer Elyne Mitchell and poet David Campbell lived near the mountains and their strong association with the place is expressed in much of their nationally important literary works.

Parks Victoria

Parks Victoria is a body corporate, created by the Parks Victoria Act 2018 (Vic). Its objects include to protect, conserve and enhance the land it manages, including natural and cultural values of such land, for the benefit of the environment and current and future generations. Its functions include to control and manage Parks Victoria “managed land”, in a manner that protects, conserves and enhances the land and in a manner which provides for the land to be appropriately used, enjoyed and appreciated. Parks Victoria “managed land” is any land in the Parks Victoria land record and any land managed under the National Parks Act 1975 (Vic) (National Parks Act). Dr Norman gave evidence that Parks Victoria is responsible for managing an expanding and diverse estate covering more than 4 million hectares, or about 18 per cent, of Victoria. It also manages parks in the context of their surrounding landscape and in partnership with Traditional Owners.
Section 4(a) of the National Parks Act provides that the objects of the Act include to make provision, in respect of national and State parks:
(i)for the preservation and protection of the natural environment including wilderness areas and remote and natural areas in those parks;
(ii)for the protection and preservation of indigenous flora and fauna and of features of scenic or archaeological, ecological, geological, historic or other scientific interest in those parks;
(iii)for the study of ecology, geology, botany, zoology and other sciences relating to the conservation of the natural environment in those parks; and
(iv)for the responsible management of the land in those parks.
Section 17(2) of the National Parks Act provides that Parks Victoria has the control and management of each national and State park and must:
(a)ensure that each national park and State park is controlled and managed, in accordance with the objects of the National Parks Act, in a manner that will -
(i)preserve and protect the park in its natural condition for the use, enjoyment and education of the public;
(ii)preserve and protect indigenous flora and fauna in the park;
(iii)exterminate or control exotic fauna in the park;
(iv)eradicate or control exotic flora in the park; and
(v)preserve and protect wilderness areas in the park and features in the park of scenic, archaeological, ecological, geological, historic or other scientific interest;
(b)…
(c)promote and encourage the use and enjoyment of national parks and State parks by the public and the understanding and recognition of the purpose and significance of national parks and State parks;…
Dr Norman
Dr Norman has been employed by Parks Victoria since 2016, holding the positions of Chief Conservation Scientist and Executive Director Environment & Science. From 2009 to 2016, he was Head of Sciences at Museums Victoria and, before that, he was a Senior Curator in Natural Sciences at Museums Victoria. He holds a Ph.D. and a B.Sc. (Honours) in Zoology from the University of Melbourne. He is a senior research scientist with deep knowledge across Victoria's biota, habitats and natural environments, in terrestrial, freshwater and marine systems. Over the past 30 years, he has led and participated in hundreds of research projects. His current and past professional roles also include:
(a)Flora and Fauna Guarantee Scientific Advisory Committee, Victorian State Government, 2016 - Present;
(b)Biodiversity Strategy and Flora and Fauna Guarantee Act Review Panel, Victorian State Government, 2015 - 2016;
(c)Vice-Chair, Council of Heads of Australian Faunal Collections, 2015 - 2016;
(d)Chair, Council of Heads of Australian Faunal Collections, 2012 - 2015;
(e)Victorian Environmental Advisory Council, Scientific Advisory Committee, 2012 - Present;
(f)Research Associate, Biosciences, University of Melbourne, 2005 - Present;
(g)Scientific Advisory Panel, Victorian Coastal Council, 1997 - 2017;
(h)Editorial Advisory Committee, Invertebrate Systematics, 1999 - 2005; and
(i)Chair, Conservation Committee, Fisheries Co-management Council, Fisheries Victoria, 1997 - 1998.
Dr Norman has knowledge of Victoria's national parks, through 40 years of biological research in parks around the State, but more recently through his Chief Conservation Scientist role at Parks Victoria and in his previous role leading Museum Victoria teams on 14 Bioscan surveys across Victoria. This includes knowledge of threatened species biology and ecosystem science, regional conservation issues and threats, and community issues and perspectives across terrestrial, freshwater and marine ecosystems.
Dr Norman gave evidence that Australia is a signatory to the Biodiversity Convention which was signed on 5 June 1992 and effective from 29 December 1993. Article 8(a) of the Biodiversity Convention requires Australia, as far as possible and as appropriate, to establish a system of protected areas or areas where special measures need to be taken to conserve biological diversity. Australia meets that obligation through its National Reserve System. The protected areas making up the National Reserve System are listed in the Collaborative Australian Protected Area Database, which is maintained by the Commonwealth Department of the Environment and Energy (now the Department of Agriculture, Water and the Environment). Protected areas in Victoria include the Alpine National Park. In terms of Victorian legislation giving effect to the Biodiversity Convention, s 10(1) of the Flora and Fauna Guarantee Act 1988 (Vic) (FFG Act) provides for the listing of any taxon or community of flora and fauna which is threatened and s 10(2) provides for the listing of potentially threatening processes. The relevant Minister may recommend a potentially threatening process be listed after considering a recommendation from the Scientific Advisory Committee established under section 8 of the FFG Act.
Dr Norman deposed that modern horses, in the subspecies caballus, are generally domesticated, although some populations live in the wild as feral horses. Such feral horses are not truly "wild horses", as that term is properly used. That term is used to describe horses that have never been domesticated. A feral animal is literally (from the Latin "fera") a "wild" animal; however, the word "feral", when used in writing about environmental conservation and biological diversity, usually refers to animals or populations that have escaped domestication or are descended from domesticated animals. Australia has an estimated 400,000 feral horses, mainly found in central and northern Australia, with scattered populations also found in alpine and subalpine areas of New South Wales and Victoria. In 2014, an aerial survey was conducted across 5,430 square kilometres of the Australian Alps for the Australian Alps National Parks Co-operative Management Program (Stuart Cairns and Geoff Robertson, A report on the 2014 survey of feral horses (Equus ferus caballus) in the Australian Alps (2015) (2014 Survey)). By reference to the 2014 Survey, the population of feral horses in the Australian Alps in 2014 was estimated to be 9,450.
Dr Norman deposed that horses have been feral in the Australian Alps for more than 150 years. Members of the region’s current feral horse population are considered to be descended from released and escaped domestic stock. Much of the region was initially grazed without fences, so it was common for domestic horses to escape pastoral properties or be released. In 1843, it was reported that 70 mares and two stallions were deliberately released into the Black Mountain region in Victoria's eastern highlands, forming the first feral horse population in what is now the Victorian part of the Australian Alps. As machines and vehicles gradually replaced horses in a range of tasks, many horses were released to join already-established herds. Historically, feral horse numbers have been managed in what is now the Victorian part of the Australian Alps by pastoralists and "brumby runners". Brumby running is an activity that began in eastern Victoria soon after the arrival of horses in the region. It involves skilled horse riders chasing targeted feral horses on horseback and capturing them using a rope or halter.
Dr Norman deposed that the adverse environmental impact of feral horses on the Australian Alps has been studied and well-documented. In 2012, feral horses were listed as a threatening process under s 10(2) of the FFG Act and, in 2013, under s 183 of the EPBC Act.
Dr Norman gave evidence that the Bogong High Plains is a section of plains located in the Alpine National Park bounded by the Ovens, Kiewa, and Mitta Mitta watersheds. An aerial double-count survey undertaken by Parks Victoria in May 2018 counted 109 feral horses as being present in the Bogong High Plains. The Bogong High Plains contains a large proportion, 28%, of the "high altitude wetlands" ecological vegetation division occurring across the Victorian Alps. This comprises some of Victoria's most endangered ecological vegetation classes, as well as comprising the Alpine Bog Community and Fen (Bog Pool) Community which are listed as threatened under the FFG Act and the Alpine Sphagnum Bogs and Associated Fens which are listed as threatened under the EPBC Act.
Dr Norman deposed that Mount Nelse is a high point on the northern side of the Bogong High Plains and has a population of approximately 15-20 horses. There are several threatened species present on Mount Nelse, to which feral horses are a threat.
Parks Victoria released the Plan on 1 June 2018. Dr Norman deposed that the Plan is intended to protect threatened ecosystems, habitats and species, including those listed under the EPBC Act and the FFG Act and is intended to give effect to Parks Victoria's obligations under section 17(2) of the National Parks Act and expresses Victorian Government policy on feral horse management in the Alpine National Park. Dr Norman observed that the Plan contains an estimate of the number of feral horses present in the Alpine National Park, being 80-100 feral horses in the Bogong High Plains and 2,350 feral horses in the Eastern Victorian Alps (estimated in 2014). Population modelling work was undertaken in 2014, which indicated that removing 400 animals per annum over a three-year period (including consideration of potential population growth) would reduce the Eastern Alps population by up to one-third of its estimated 2014 size over the life of the Plan. Achieving the Plan's target would require the scaling-up of existing programs for feral horse removal.
In cross-examination, Dr Norman gave evidence that, in implementing the Plan, Parks Victoria would seek to maximise the rehoming of captured brumbies but, despite that, he expected that the vast majority of brumbies would not be rehomed but would be culled.
Protection of the Alpine National Park – Feral Horse Strategic Action Plan 2018-2021
In its Executive Summary, the Plan states:
Horses are not a natural part of the Australian environment. Their hard hooves can cause serious damage to alpine, subalpine, montane and floodplain environments. This includes the destruction of habitat critical to many threatened plant and animal species, damage to waterways, degradation of fragile vegetation, and soil disturbance that results in erosion or compaction. A reduction in the abundance of feral horses in Victoria’s national parks is necessary to protect natural and cultural values and meet obligations under the National Parks Act 1975 (Vic.), Flora and Fauna Guarantee Act 1988 (Vic.), Environment Protection and Biodiversity Conservation Act 1999 (Cwlth), and the international Ramsar Wetlands Convention.
This plan describes where and how feral horses will be managed in the Alpine National Park, and adjacent state forests between 2018 and 2021. Over recent years, low numbers of horses have been removed from the Victorian Alps, in cooperation with relevant stakeholders. However, this process has not been sufficient to mitigate the severe impacts of horses on vulnerable areas, particularly to riverine wetlands, alpine peatlands and streambanks. As a result, some areas of the Alpine National Park, are in poor condition and are not showing resilience to the impacts of horses. To ensure the persistence of healthy ecosystems and their function in the Alps, an increased rate of removal of feral horses is needed.
In chapter 3 headed “Background”, the Plan states:
An aerial survey conducted across the Australian Alps in 2014 has estimated the population in the Eastern Victorian Alps to be around 2350 horses (Cairns & Robertson 2014). The Bogong High Plains has a smaller, more isolated population of around 80–100 animals.
…
Between 150 and 200 horses have been removed annually from the Alpine National Park since 2008. This has not reduced the population. The impacts of feral horses in the Alpine National Park and other contiguous areas have now reached critical levels, and without intervention horses will continue to cause long-term and severe degradation of wetlands and waterways and prevent the recovery of these areas. The Alpine National Park contains outstanding natural and cultural values. In recognition of this, it is reserved under Schedule 2 of the National Parks Act 1975 (Vic.).
For some members of the public and community groups, horses provide a living link to Victorian pioneer and grazing history in the Barmah region and the Alps, and form part of Australian folklore as depicted in ‘Banjo’ Paterson’s poem ‘The Man from Snowy River’. Management of horses in national parks and public lands must balance three elements: the right level of protection for our natural environment and pre-European cultural heritage; the humane treatment of feral horses; and social expectations for either a continued heritage connection to the ‘brumby’ or their management. This plan aims to strike that balance between these elements.
In Chapter 4, headed “Environmental values”, the plan states:
Australia’s ecosystems have evolved without the grazing pressures of heavy, hard-hoofed animals. Such animals can have significant impacts on soils, vegetation communities, stream and river banks, and wetland zones (Dawson & Axford 2011, Dyring 1990, Robertson et al. 2015, Clemann 2009, Walter 2003). Impacts on sensitive alpine and floodplain ecosystems include selective grazing, trampling, pugging, degradation of waterways and water quality, removal of vegetation and exposure of bare ground, soil compaction, streambank slumping, opening tracks through vegetation, and distribution of weeds.
Australian ecosystems and their native inhabitants are not adapted to these relatively recently arrived pressures (240 years versus hundreds of thousands of years of evolution without hard-hoofed animals). A combination of climate change effects, recreation activities, and other invasive species puts significant additional pressures on these natural but now changing landscapes (Scientific Advisory Committee [SAC] 2011).
Vegetation communities in the alps are diverse and complex (Figures 3-5). They include grasslands, snow-gum woodlands, heathlands, and peatland communities, all of which are impacted by feral horses. The alpine and subalpine communities are very rare in Australia and support many species that are rare and endemic to the parks, including state and nationally threatened vegetation communities such as alpine sphagnum moss peatlands, snowpatch communities, and associated wetland bogs. Feral horses are a known threat to these vegetation communities and individual species. An assessment of peatlands through the East Alps showed evidence of horse impacts occurring at 85 of the 98 sites surveyed (Tolsma 2008).
Feral horses pose a threat to a variety of native fauna (Tolsma 2008, Hope et al. 2009). They compete for resources with native herbivores. Alpine habitats are critical for some of these native species, often only occurring in highly localised patches. Habitats are either destroyed or significantly simplified with fewer foraging, nesting and roosting opportunities for native animals, including water birds, small mammals, reptiles, frogs and invertebrates. Native species that utilise shallow aquatic, stream and river bank habitats, especially frogs and reptiles, struggle to exist in habitats where the loss of vegetation and soil structure leads to a subsequent loss of feeding, shelter and thermoregulation opportunities (Clemann 2009).
In chapter 5, headed “Heritage values”, the plan refers to the Aboriginal cultural heritage values in the Greater Alpine Parks and the post-settlement heritage values of horses. In respect of the latter, the Plan states:
Post-settlement cultural values including mining sites, stockyards and mountain huts are remnant evidence of the history of early European use of the Alps. Feral horses and perceptions of them in the natural environment can be linked to pioneer and grazing history.
The heritage values connected to post-European settlement industries (mining, farming and grazing) on lands that are now national parks are considered important to some sections of the community. The heritage values of ‘brumbies’ were nominated as a primary interest by 10% of participants in their response to the Engage Victoria public review of the draft plan. There are divergent views around the historical values of horse presence in these parks versus the impact of horses on the natural environment and wildlife.
Historical evidence of the presence of horses in the Australian alps is widely referenced (Context 2015, pp. 36- 38). High country grazing played a key part in horses being turned free for agistment and then recaptured by stockmen. It is important that the values of the brumby and associated places, such as alpine cattlemen’s huts, is known and shared through experience and information. It is acknowledged that the ‘brumby’ is part of Australian folklore.
This plan recognises that the history of the horse in these places is important to some members of the community as a living link to the pioneer and grazing history in the Alps and adjacent agricultural lands, and it is also recognised that some people do not support their removal, either in part or whole.
Chapter 6, headed “Known and potential impacts of feral horses”, describes various negative impacts of feral horses on the environment, including damage to vegetation, the compaction of soil that accelerates drying-out and erosion, waterway degradation and loss of plant cover and soil structure, amongst others. Under a subheading “Visitor experience”, the Plan states:
For some visitors, horses provide a positive experience. The sight of horses provides a visual reminder of the bygone days of pioneering life. This experience is promoted to visitors taking part in licensed private and commercial horse activities in parks. Parks Victoria supports recreational horse-riding, trail-riding, access for horseback camping, and licensed horseback tour operators within specified areas across Victoria’s parks estate.
While some visitors seek or enjoy seeing horses in the Alpine National Park, the presence of feral horse can conflict with other visitors’ expectations of a natural environment and the key attributes of national parks. Horses can impact water quality through faecal contamination and sedimentation. This is particularly the case at popular camping areas and affects access to potable water. Other issues around horse presence on roadways and campsites have also been raised by park visitors. Some horses (e.g. a stallion protecting its mob from a perceived threat), have been known to intimidate visitors.
In chapter 7 headed “Conservation and welfare – objectives and outcomes”, the Plan describes short-term (outcome measurable in 1-2 years), medium term (outcome measurable in 3 years) and long term objectives. One of the short term objectives is “Phase up the removal of horses from the Eastern Alps (with consideration of both rehoming capacities and animal welfare issues), up to an aspirational target of 400 horses per year”. The medium term objectives include “Removal of Bogong High Plains (BHP) horses; commence management of potential reinvasions to the BHP by populations outside the national park” and “Significant reduction in the Eastern Alps population through removal of up to 1200 horses from the Eastern Alps over the duration of three-year plan. Population contained and prevented from spreading”.

In chapter 8 headed “Management approach”, the Plan includes the following actions:
An initial target of up to 1200 horses to be captured over three years has been established as an aspirational goal to both contain population growth and reduce abundance of feral horses. Population modelling identifies that a target of 400 animals removed from the Eastern Alps is needed to start reducing the population. A target of 200 animals per annum would keep the current population stable, including births and natural deaths. Based on current trapping rates for the Victorian alps this will mean a significant trapping increase, up to 10 times the average for the period 2007-2017.
…
In accordance with the Greater Alpine National Parks Management Plan (Parks Victoria 2016), isolated populations of horses will be removed where feasible. The Bogong High Plains population of around 100 horses presents this option. Reduction of this population to zero horses is a medium-term management objective.
Chapter 8 also sets out the proposed methods for removal of horses. The Plan states that trapping is the principal activity to be used in the period 2018-2021 in the Alpine National Park and will be used as the preferred primary control method. Trapping involves establishing trap yards and using lures such as salt, molasses and/or lucerne to encourage feral horses to go into the trap yards. Once inside the trap yard, a tripwire triggers the closure of the entry gate. Mustering will be trialled as a secondary control method. Mustering involves using horse riders, ground vehicles or helicopters, or a combination of these, to gather and move groups of feral horses into a yard. Of other control methods, fertility control and shooting will not be used and roping and fencing will be further evaluated. With respect to captured horses, the Plan states that Parks Victoria has and will continue to work with the horse rehoming groups to provide rehoming or ownership opportunities for captured horses, but that it is not proposed that Parks Victoria will manage holding properties for captured horses, therefore rehoming interest and capacity in the community is critical to a successful rehoming program. The Plan also acknowledges that:
Under prescribed circumstances, horses will need to be humanely put down within or close to trap yards by shooting under strict protocols. These circumstances are:
•Where the horses are injured, ill, of very poor body condition and/or too aged for successful rehoming
•Where remote trap locations are established and transporting horses from these areas is likely to be inhumane
•Where rehoming opportunities have not been secured
The Australian Brumby Alliance
The ABA was registered as an incorporated association on 7 January 2009. It has been registered as an animal advocacy charity with the Australian Charities and Not-for-profits Commission since 3 December 2012.
The ABA currently has six member organisations: Coffin Bay Brumby Preservation Society Inc, Victorian Brumby Association Inc, Save the Brumbies Inc, The Australian Brumby Horse Register Inc, South East Queensland Brumby Association Inc and Kaimanawa Heritage Horses Inc (NZ). The objectives of the ABA, set out in its Rules of Association, are to:
(a)further the welfare and wellbeing of Australian brumbies;
(b)promote brumby heritage values to governments, their agents and the community;
(c)advocate for non-lethal humane methods of controlling excess brumby numbers wherever there are reasonable alternatives to pursue;
(d)lobby governments for secure long-term land allocations for brumbies to continue living and evolving in their wild state;
(e)facilitate information exchange, networking and support for member group activities;
(f)raise funds on a national scale to support Australian brumby welfare and heritage; and
(g)seek legislative changes to protect Australian brumbies.
Ms Pickering’s evidence
Ms Pickering is the inaugural and current President of the ABA. Ms Pickering gave evidence about the range of activities undertaken by the ABA related to the protection and conservation of Australia's brumby populations. That included participation in round table meetings with Parks Victoria in relation to the formulation of the Plan.
Ms Pickering also gave evidence about her personal passion for, and commitment to, brumbies, which grew from her love of horses. Ms Pickering deposed that she contracted polio at the age of 9 and, around that time, her parents encouraged her to take horse-riding lessons. She continued riding throughout her life. Ms Pickering first saw brumbies about 15 years ago when she was on a horse trek in the Bogong High Plains. She described the experience of being able to see the brumbies with their families in the wild as incredible.
Ms O’Brien’s evidence
Ms O’Brien is the President of the VBA, which is a member of the ABA. For the past 11 years, she has worked on a full-time volunteer basis for the VBA and has been responsible for managing and operating its training and rehoming programs, as well as working with and lobbying for better management of wild populations of brumbies across South-Eastern Australia. Ms O’Brien manages the Bogong High Plains brumby rehoming program, which includes liaising with Parks Victoria, collecting brumbies that have been captured, and bringing them to the VBA Brumby Junction Sanctuary so that they can be cared for and trained. Ms O’Brien deposed that the VBA was formed in 2007 after several years of informal brumby rescue. One of the VBA's main objectives is to rescue, train and rehome brumbies that have been trapped and removed from public lands. In fulfilling this aim, over the past decade the VBA has taken in more than 500 brumbies from the Alpine National Park in Victoria and the Kosciuszko National Park and Bago State Forest in New South Wales.
During the hearing, I received the following evidence of Ms O’Brien on a provisional basis, subject to relevance. Ms O’Brien deposed that the VBA is the only organisation in Victoria that rehomes brumbies. She estimated the current capacity of the VBA to rehome brumbies to be approximately 50 per year. The VBA is capable of increasing that capacity, if the numbers of brumbies removed by Parks Victoria from the Alpine National Park (including the Bogong High Plains area) were to increase. However, Ms O’Brien considered that it would not be possible to find spaces in programs or homes for the number of brumbies proposed to be removed from the Alpine National Park under the Plan and that it is more likely that the horses would be slaughtered. In my view, the fate of the brumbies once they have been removed from the Bogong High Plains and the Eastern Alps is not relevant to the issues arising in the proceeding. The issue under s 15B(5) of the Act is whether the Action (the removal of the brumbies) is likely to have a significant impact on the National Heritage values of the Australian Alps; the issue does not concern the impact on the brumbies themselves. Accordingly, I consider that that aspect of Ms O’Brien’s evidence is not relevant.
Ms O’Brien expressed the opinion that the brumbies in the Bogong High Plains, in comparison to those in the Eastern Alps or the Kosciusko National Park, have a high percentage of Clydesdale horses in them. Ms O’Brien said that their unique physical characteristics are quite noticeable, having more feather (long hair on the lower legs), white markings (that are consistent with Clydesdale heritage), larger than a lot of brumbies from different areas, and almost all are either black or very dark brown. Ms O’Brien also expressed the opinion that the unique characteristics of the 'Bogong' brumbies are not only physical, but also psychological, stating that they have a very quiet and introspective learning style. I made an evidentiary ruling under s 136 of the Evidence Act 1995 (Cth) that this evidence would be received on the limited basis that the evidence relates only to horses that Ms O’Brien has personally observed and that no formal study has been conducted by Ms O’Brien. The potential for genetic differences in the brumbies in the Victorian Alpine National Park is the subject of expert evidence, considered below.
Mr Baird’s evidence
For more than 30 years, Mr Baird has spent his summers in the High Country running horseback tours in the Bogong High Plains. His current business is called Bogong Horseback Adventures. It runs packhorse-based tours through the Bogong High Plains (a pack horse is a horse that is used for transporting supplies). There are approximately 10 expeditions a year with 10 people at a time. The business receives customers from other States of Australia and around the world who are interested in horses. Mr Baird gave evidence that brumbies are an attraction to his tour visitors.
Mr Baird expressed the opinion that, if the brumbies were not in the Bogong High Plains, it would remove the regional difference that the area has and would result in a loss of local identity. Mr Baird deposed that he remembered when the cattle were removed from the high country. He expressed the opinion that, over time, it changed the community because the cattlemen were no longer there, and that this disappointed some but pleased others. Mr Baird deposed that now the cattle are removed, the high country has become more 'theme park' tourism-based rather than visitors really experiencing it. While Parks Victoria has kept the old cattlemen's huts for people to look at, Mr Baird expressed the opinion that it is not the same and the experience has been lost. Mr Baird said that if the brumbies were removed too, then it would be another “nail in the coffin” of the area.
Mr Baird expressed opinions, based on his personal observations, that the brumbies of the Bogong High Plains are isolated by geography from other brumbies and Mr Baird can see differences in the physical characteristics of the brumbies in the Bogong High Plains. I made a ruling under s 136 of the Evidence Act that this evidence would be received on the limited basis that the evidence relates only to horses that Mr Baird has personally observed and that no formal study has been conducted by Mr Baird. As noted already, the potential for genetic differences in the brumbies in the Victorian Alpine National Park is the subject of expert evidence, considered below.
Mr Baird deposed that, every year in Corryong, Victoria, "The Man From Snowy River Bush Festival" is held over a long weekend. The festival has been running since 1995 and celebrates and showcases the region’s heritage, history, the skills of horsemanship, cattle dogs, the animals, and music and poetry. "The Man from Snowy River Challenge" is the main event of the festival and has a number of different events to test all-round horsemanship. This includes stock handling, a packhorse competition, whip cracking, riding bareback, horse shoeing, cross country horse riding, young horse handling skills and buckjumping. One of the final events in this challenge is the brumby catch where finalists attempt to halter a horse in an arena within 3 minutes, in order to display young horse handling skills and horsemanship.
Dr Jacobson’s evidence
Dr Jacobson holds the degrees of Bachelor of Science (Vet Biol) and Bachelor of Veterinary Medicine and Surgery, Murdoch University, WA. Between 1982 and 1997, Dr Jacobson was engaged in veterinary practice in Tasmania with a predominantly equine case load. In 1997, Dr Jacobson moved to Victoria and continued her equine focussed veterinary practice first in Echuca (1997-1999), then in western Victoria (2001-2006) and then in Clarkes Hill, north-east of Ballarat (2006-2016). Dr Jacobson has experience with veterinary management of recently captured brumbies through her work with the VBA and other wild horse rehoming organisations and, in the course of this work, has treated, identified, assessed and otherwise observed several hundred brumbies. Since 2007, Dr Jacobson has done regular veterinary work for the VBA, which largely involved the castration of male horses recently brought in from the wild. Dr Jacobson deposed that this work exposed her to brumby behaviour, and also to the response and reaction of the animals to the restraints of captivity and human interaction.
Dr Jacobson expressed the opinion that brumbies from the Bogong High Plains are of a distinct physical type and also have typical temperament traits across the population. She also expressed the opinion that brumbies from the Bogong High Plains generally have the following characteristics: dark brown or black coat colour; many will have striking white markings - socks on the lower legs and stripes, stars and snips on the face; solid build and medium stature; extensive "feathering" - that is, long hairs on lower legs even with summer coat, and in ears, under chin and flanks with winter coat; kind and sensible temperament; and relatively fearless attitude compared to other wild or unhandled horses. I made a ruling under s 136 that this evidence would be received on the limited basis that the evidence relates only to horses that Dr Jacobson has personally observed and that no formal study has been conducted by Dr Jacobson.
GENETIC EXPERT EVIDENCE
Genetic expert evidence was given for the ABA by Prof van der Werf and was given for Parks Victoria by Dr Weeks. Prof van der Werf prepared two reports dated 14 March 2019 and 31 May 2019. Dr Week prepared one report dated 18 April 2019.
Prof van der Werf is Professor in Animal Breeding and Genetics in the School of Environmental and Rural Science at the University of New England, Armidale, NSW. He holds the degrees of B.Sc. Animal Science (1981), M.Sc. Animal Breeding & Agric. Economics (1984) and Ph.D. Animal Breeding & Genetics (1990) all from Wageningen Agricultural University in the Netherlands. In addition to his teaching and other responsibilities at the University of New England, Professor van der Werf has co-edited four books and written numerous book chapters and papers published in refereed journals. He holds a number of positions on scientific committees:
(a)Editor in Chief of Genetics, Selection and Evolution (INRA, France & Bio Med Central), since 2015;
(b)Subject Editor Journal of Animal Breeding and Genetics (Blackwell) since 2003;
(c)Program Manager (Genetics) Australian Sheep CRC, since 2006;
(d)Technical Committee Sheep Genetics (MLA/AWI), since 2008;
(e)Southern Australian Livestock Research Council, since 2015;
(f)Management Committee Livestock Productivity Partnership (2017-2018);
(g)National Livestock Genetics Consortium TaskForce (Meat & Livestock Australia), since 2017; and
(h)Member of the College of Experts, Australian Research Council (2019).
Dr Weeks is a Senior Research Fellow in the School of BioSciences at the University of Melbourne, Victoria. He holds the degrees of B.Sc. (Honours) and Ph.D. Evolutionary Genetics both from La Trobe University, Bundoora, Victoria. Dr Weeks’ expertise is in ecological and evolutionary genetics and he has specialised in the conservation genetics field over the last 10 years. His work has centred around understanding population structure and genetic uniqueness of threatened species and developing genetic strategies to improve conservation outcomes. Central to this research has been determining and understanding the impacts of small population size and inbreeding on adaptation, fitness, population genetic structure and genetic uniqueness. He has undertaken genetic research and/or developed genetic conservation strategies for a large number of Australian native and invasive fauna including marsupials, fish, birds, mammals and invertebrates. His research on these topics has been published in leading international journals in science. He is a member of three State threatened species recovery teams in the capacity as each team's 'conservation geneticist', advising on genetic issues in relation to recovery efforts for these species.
The ABA asked Prof van der Werf to answer the following questions:
1. What will be or is likely to be the impact of the BHP [Bogong High Plains] Proposed Action in the Alpine National Park in Victoria?
Please explain your answer. If you consider it appropriate and relevant, please address the following topics and any other topics you regard as relevant to the question above:
a. whether the BHP brumbies are or are likely to be genetically different or unique compared to other brumby mobs and commercially available horses;
b. any significance or importance of any genetic difference;
c. the effect or likely effect of the BHP Proposed Action on matters referred to in Article 8 of the Biodiversity Convention (having regard only to those matters within your expertise);
d. any impact of the BHP Proposed Action on the future viability of BHP brumbies;
e. any research or work required to answer the question above or answer the question more definitively.
The questions were directed to the brumbies in the Bogong High Plain. The ABA sought to rely on the genetic evidence in support of the contention that prohibiting the Action, in so far as it related to the brumbies in the Bogong High Plains, would be appropriate and adapted to give effect to Australia’s obligations under Article 8 of the Biodiversity Convention (satisfying s 15B(6) of the EPBC Act).
In response to Prof van der Werf’s report, Parks Victoria asked Dr Weeks to answer the following question:
Assume that the assumptions and opinions set out in Prof van der Werf's expert report were correct. What is the likelihood that any genetic differences between the feral horses in the Bogong High Plains and feral horses in other parts of the AANPR or other domestic horses would represent beneficial genetic adaptations in response to the ecosystems, habitats or species in the Bogong High Plains?
The parties tendered the statements of each of the genetic experts as well as a statement of matters agreed by them. The matters agreed were as follows:
(a)feral horses in the Australian Alps are members of the species Equus caballus;
(b)the difference in environment between the Bogong High Plains and the Eastern Victorian Alps is not large enough to expect adaptive differentiation between the populations of feral horses in each area;
(c)however, if the assumptions made by Professor van der Werf are correct:
(i)there may be genetic differences between the populations of feral horses of the Eastern Victorian Alps and the Bogong High Plains, and this could be established by DNA testing;
(ii)any genetic differences that exist may be the result of genetic drift and/or different founding populations;
(iii)based on a rule of thumb that an inbreeding rate of 1% is tolerable for a viable population of animals, the Bogong High Plains brumbies would need to have an effective population size of approximately 50 to be viable, which is possible on the current evidence about the census size of the Bogong High Plains brumbies; and
(d)as to feral horse populations in the Australian Alps since the late 19th Century, the experts have no specialised knowledge about the average proportion of offspring born over time from parents from outside of the Australian Alps population.
Given the extent of agreement reached between the experts, the parties chose not to cross-examine them.
By way of further elaboration of the agreed opinions, both experts assumed that there have been brumbies in the Bogong High Plains since approximately 1860 to 1870, being a period of approximately 150 years, which equates to about 15-20 generations. As to the isolation of the population, the experts were asked to assume that it is possible that domestic horses may occasionally have been added to the population of brumbies in the Bogong High Plains over that time. In the agreed matters, the experts expressly noted the limitation that they have no specialised knowledge about the proportion of offspring born from parents from outside the Australian Alps.

The ABA put its case under subsection (5) on two bases: the first was that the brumbies are part of the National Heritage values of the Australian Alps relied on by the ABA; the second, put in the alternative, is that the brumbies are an attribute or physical reminder of those values. Parks Victoria disputed that the brumbies were any part of the National Heritage values. In that sense, a principal area of dispute between the parties concerned the question of the significance of the brumbies to the National Heritage values, in order to determine whether the Action would have a significant impact on the National Heritage values.
I reject the ABA’s contention that the brumbies are part of the National Heritage values of the Australian Alps. The brumbies are not directly referred to in the National Heritage values and are only indirectly referenced through the literary works of Banjo Paterson and Elyne Mitchell and other references to the pastoral history of the Australian Alps. In my view, there was consensus between the heritage experts that brumbies were not a part of the National Heritage values of the Australian Alps. Dr Mclntyre-Tamwoy considered that the brumbies were an attribute of the values, in the sense that they are a physical reminder of the historic pastoral and grazing practices and lifestyle in the Australian Alps and form part of the broader social and cultural connections between the descendant pastoral communities and the Australian Alps, which are reflected in the National Heritage values. In contrast, Mr Travers considered that the brumbies were an attribute of secondary importance to most of the other attributes included in the National Heritage Listing, largely because: the statement of the values in the Listing made no express reference to the brumbies in contrast to other physical reminders of the historic pastoral and grazing practices; the horse population of the Australian Alps has changed over time in size and geographic extent; and the process of interaction between people and the brumbies has changed because the horses are no longer being rounded up and ridden.
A conclusion that the brumbies are not part of the National Heritage values does not end the enquiry under s 15B(5). The relevant question is whether the Action, which will reduce the number of brumbies in the Australian Alps, is likely to have a significant impact on the National Heritage values. In my view, it is possible for an action to have such an impact even though the subject of the action is not a listed “value” in and of itself. However, in undertaking the enquiry required by s 15B(5), it is necessary to remain focussed on the listed values and assess the impact of the proposed action on those values. It is not permissible to expand the values or re-write the values based on reports or submissions to the Australian Heritage Council. As noted earlier, the differences in the opinions of Dr Mclntyre-Tamwoy and Mr Travers are largely explained by the priority they gave to the statement of the National Heritage Values of the Australian Alps in the National Heritage Listing. Generally, Mr Travers gave the statement a higher priority than Dr Mclntyre-Tamwoy, who saw the brumbies as an important attribute of the values by reason of a range of documents that were extraneous to the National Heritage Listing.
In the discussion that follows, I place primary weight on the statement of values in the National Heritage Listing. However, I also have regard to the National Heritage Assessment Report which, in my view, provides useful context in which to consider the final statement of values in the Listing. I largely disregard the Truscott, Sullivan and Context Reports. In my view, there is nothing scientific or technical in the National Heritage values that requires explanation by those reports. The difficulty in having regard to those reports is that they contain views and opinions of the authors that ultimately do not end up in the statement of values in the National Heritage Listing. For that reason, the reports have a tendency to distract attention from the values themselves.
It is necessary to consider each of the values relied on by the ABA separately.
Criterion (a)
Under criterion (a), the National Heritage value relied on by the ABA concerns the historic pastoral practices conducted in the Australian Alps and particularly transhumant grazing. Those practices were described in the National Heritage Assessment Report as follows:
Transhumant Grazing
The Alps hold a significant place in Australia's pastoral history. In response to the drought of 1837-1844, many pastoralists in south-eastern Australia began to open up routes to move their stock to the high country where food and water were abundant. This began a pattern of annual migration of stock, known as transhumance which continued for over 150 years. In the later years of the nineteenth century governments introduced controls to the practice by a system of leased blocks and annual licences. The leases for the Bogong High Plains were issued in the 1860s and alpine grazing leases in New South Wales in the 1880s. According to King (1959, 129), the highlands of Tasmanian and south-eastern New South Wales were the only places in Australia that played a role in relief grazing.
The transhumance practice lead to the establishment of well defined stock routes and stock mustering points such as the town of Jindabyne (King 1959, 131). Important stock routes of transhumance in Kosciuszko were a complex of tracks and routes that provided access from all directions. They are noted and schematically plotted by King (1959, 136-7). Transhumance can be compared to other significant pastoral activities such droving and stock movement. Other epic journeys of overlanders along routes like the Marrnji Track, the Birdsville Track and the Canning Stock Route are an important part of Australia's cultural history. While transhumance in the AANP differs in terms of nature and scale of these journeys, the continuity of practice makes it a significant pastoral activity at a national scale and it led to a distinctive high country way of life.
The AANP has outstanding heritage value to the nation under criterion (a) for historic values relating to transhumant grazing.
The ABA submitted that the brumbies in the Australian Alps provide a clear link and evidence of Australia's transhumant grazing and pastoralism history. The ABA further submitted that to remove an entire population of brumbies from one region (the Bogong High Plains) and around half of the population from another region (the Eastern Alps) would likely have a significant negative impact on the National Heritage value of transhumant grazing in the AANP.
I accept the ABA’s submission that the brumbies in the Australian Alps provide a link to and evidence of Australia's transhumant grazing and pastoral history. However, I do not consider that the proposed removal of the brumbies from the Bogong High Plains, and the removal of about half of the present population of brumbies from the Eastern Alps, satisfies the test in s 15B(5) of a significant impact. It is helpful to consider the matters of context and intensity as referred to by Branson J in Booth.
As to context in the present case, the value that is sought to be protected is a value associated with a form of pastoral activity that has now ceased in the Australian Alps. Recognising that the value is of an historic heritage kind, it is notable that the statement of the value in the Listing does not refer to brumbies, but refers to other physical reminders of the activity in the landscape (huts, the former grazing landscapes, stock yards and stock routes). I do not read that list as an exhaustive statement of the present-day physical reminders of transhumant grazing. But I do agree with Mr Travers’ opinion that the omission of any reference to brumbies is significant. It does not mean that brumbies are irrelevant to the value; nor that the removal of brumbies would have no impact on this National Heritage value. However, in my view it does indicate that brumbies are secondary to the physical manifestation of that value.
As to intensity, the action will not remove all brumbies from the Australian Alps. The Action will remove all brumbies from the Bogong High Plains and about half the population from the Eastern Alps. It follows that a population of brumbies will remain in at least the Victorian Alps section of the Australian Alps. As noted by Mr Travers in his evidence, it is likely that the population of brumbies in the Australian Alps has changed over time. As such, there would be no necessary connection between the population and location of brumbies at the time that transhumant grazing was practised and the present. Therefore, the proposed reduction in the spread of brumbies, and their overall population would have a less intense impact on the transhumant grazing value.
Overall, I am not satisfied that the proposed Action is likely to have a significant impact on the “transhumant grazing” value under criterion (a).
Criterion (e)
Under criterion (e), the ABA relies on the “aesthetic” value of the Australian Alps, reflected in the statements that “The AANP is a powerful, spectacular and distinctive landscape highly valued by the Australian community … Snow-covered eucalypts, huts in mountain settings and mountain landscapes are distinctive Australian images captured by numerous artists and photographers”.
The ABA acknowledged that brumbies are not referred to in the aesthetic value of the Australian Alps described under criterion (e), but submitted that they are part of and contribute to this value. In that respect, the ABA argued that it is relevant that the statement of the value in the National Heritage Listing refers to huts in mountain settings, which are linked to the region's pastoralism and transhumant grazing history. The ABA also sought to draw support for its argument from various passages in the National Heritage Assessment Report relating to imagery and community associations. It is necessary to reproduce the relevant passages so that they can be read in context.
Defining Images
The mountain peaks of the AANP repeatedly feature in art. Mount Kosciuszko has become a cultural icon not only because it is Australia's highest mountain, but because it is repeatedly painted and photographed. Responses to its visual purity date from its European discovery (Strzelecki in 1845 and the geologist Clarke in 1860), and this was soon represented by von Guérard (1860s) for others to see. Later artistic images for travel and tourism, commemoration, and artistic purposes are seen nationally each year. Some 30,000 people walk or ski to the summit of Mount Kosciuszko every year.
The Victorian alpine mountain peaks are regarded as 'inspirational landscapes' eliciting aesthetic responses by artists, photographers, writers such as von Guérard's North-east view from the northern top of Mount Kosciuszko 1863, Mount Kosciuszko seen from the Victorian border (Mount Hope Ranges) 1866, Chevalier's The Buffalo Ranges, Victoria 1864, Streeton painted the Bogong Plains and Mount Feathertop (Crocker and Davies 2005b). Nicholas Caire's photos of Mount Bogong, taken in 1877, are well known. Frank Hurley (1885-1962) produced a number of images of the Alpine NP, including photos of Mount Bogong, held by the National Library of Australia. Harry Nankin's books contain images of Alpine landscapes and other well known photographers have also published photos taken in the park, eg David Tatnall and Steve Parish (Crocker and Davies 2005b, 36). John Bowman's Mount Kosciusko drawing of 1873 later became and (sic) engraving. Piguenit painted the Kosciuszko massif Mount Kosciusko and the Valley of the Upper Murray in 1883 and Kosciusko in 1903 (Andrews 1991). Imant Tillers painting of Mount Analogue (1985) is an interpretation of von Guérard's Mount Kosciuszko painting.
Alpine features included in paintings and photographs are: Mount Speculation, Mount Bogong (Victoria's highest peak), Mount Buffalo, Mount Cobberas, Mount Cobbler, Mount Cope, Mount Feathertop, Mount Howitt, Mount Pinnibar, Mount Warwick, Mount Wombargo, The Bluff, The Pinnacles, Mount Kosciuszko, Mount Townsend and general views of Great Dividing Range.
A number of films have been shot in the Alps area including The Man from Snowy River (1982), The Plains of Heaven (1982), Snow: the Movie (1982), Cool Change (1986), The Far Country (1987), The Man from Snowy River II (1988), and The Silver Brumby (1993). The works of Banjo Paterson - The Man from Snowy River and Elyne Mitchell - The Silver Brumby have been inspirational to Australians of all ages, encouraging romantic appreciation of the alps landscape. Poets and writers such as Banjo Paterson, Marie Pitt, Albert Bartlett, Sidney Jephcott, Henry Kingsley, Rolf Boldrewood, Edward Harrington, Barcroft Boake, Henry Kendall, David Campbell, Betty Casey Litchfield and Sidney Porteus have referred to the mountain landscapes. A number of films use the landscape as settings such as The Plains of Heaven (1982), The Far Country (1987), The Man from Snowy River (1982), Snow: the Movie (1982), Cool Change (1986) as well as, The Man from Snowy River II (1988), and The Silver Brumby (1993) (Crocker 2005). The mountains and mountain way of life have inspired music and the Numeralla and Nariel folk festivals feature folk music associated with the mountains.
The Alps have featured in numerous posters, books, guides, tourism and bushwalking publications, calendars, and large format books for over 30 years. Crocker and Davies (2005 b, 36) referred to some examples being, Alps at the Crossroads, Dick Johnson, Victorian National Parks Association 1974; Australia A Timeless Grandeur, Reg Morrrison and Helen Grasswill, 1981; Discover Australia's National Parks and Naturelands, Michael and Irene Morcombe, 1983; Wild Australia, Readers Digest, 1984; Australia's Wilderness Heritage, Vol 1, Geoff Mosley et al, 1988 Weldon Publishing with the ACF, New South Wales; Victoria's National Parks Explorers Guide 1999; Inspired by Nature, Steve Parish 2004; Australia's National Parks - A Journey of Discovery, Steve Parish, 2004.
Alpine scenery such as snow clad eucalypts is a distinctly Australian image has been captured by photographers and appears in books, calendars, travel and tourist information celebrating Australia's beauty.
Community Associations
The community's attachment to the Alps is demonstrated in the depth and breadth of community responses and the popularity of artistic alpine imagery. The landscape has been painted, photographed and filmed to become part of our national identity. Photographs of snow gums, alpine wild flowers, high country animals, snow scenes and mountain huts, often location free, are instinctively recognised as the Alps. Community action has contributed to the declaration of the Alps as national parks.
Several community groups' workshops held for the Regional Forest Agreement (RFA) studies (1999 and 2000) identified the Alps and its features as significant for aesthetic value. This shows that the AANP is well-known and valued by the regional and the wider community for their aesthetic values.
The AANP is the largest contiguous snow clad landscape in Australia. Other mountain ranges in Australia having National Heritage aesthetic value include the Blue Mountains, the Grampians, Glass House Mountains and the Warrumbungles. The Blue Mountains and the Grampians are significant for their dramatic landscape, the aesthetic responses experienced from scenic drives and lookout points, as a defining image painted by artists and with the Grampians for its concentrations of rock art. The Warrumbungles display distinctive and spectacular volcanic landscape of spires, domes, plugs and dykes that is uncommon in Australia and have scenic vistas important to the community. The Glass House Mountains are noted for embodying significant landmark qualities for the community and evoke strong emotional responses. They are a dominant and instantly identifiable landform from a number of distant observation points and their summit lookouts offer strong aesthetic experiences including broad panoramas. The Glass House Mountains have inspired a number of works by significant Australian artists.
The AANP compares strongly with all these inspirational mountain landscapes. As the only alpine area in Australia it has provided defining images which have inspired art, literature and film. Its dramatic and uncommon landscape contains features of beauty and inspiration. Today the region has become appreciated for their difference from the 'typical' Australian landscape. Their distinctiveness continues to inspire artistic and emotional reactions that emphasise the aesthetic value the AANP holds for Australians.
I reject the ABA’s submission that the brumbies are an attribute of the listed “aesthetic” value of the Australian Alp under criterion (e). Both the statement of the value in the National Heritage Listing and the National Heritage Assessment Report make plain that the aesthetic value, which contributed to the listing of the Australian Alps as a National Heritage place, concerned the dramatic mountain landscape. The aesthetic value is reflected in “The mountain vistas, including distinctive range-upon-range panoramas, snow-covered crests, slopes and valleys, alpine streams and rivers, natural and artificial lakes, the snow-clad eucalypts and the high plain grasslands, summer alpine wildflowers, forests and natural sounds evoke strong aesthetic responses. Much of the terrain of the AANP is highly valued for its remoteness, and naturalness, including views to and from the region that capture snow clad ranges and mountain silhouettes against clear skies as well as expansive views of natural landscapes from the high points of the Alps.” The brumbies are not referred to in those descriptions. I agree with the opinion of Mr Travers that the omission of any reference to brumbies indicates that brumbies do not speak to the values identified.
The ABA placed reliance on the reference, in the Assessment Report, to the central role of brumbies in the poem The Man from Snowy River and Elyne Mitchell's Silver Brumby novels. However, the reference to the films of those literary works in the Assessment Report does not support a conclusion that brumbies are part of the aesthetic National Heritage value. That section of the Assessment Report refers to the significance of the Australian Alps as the backdrop to those films, not the subject matter of the films themselves.
The ABA also placed reliance on the reference to the community attachment to the Australian Alps. In my view, that does not support the ABA’s argument. The Assessment Report is referring to the community’s attachment to the aesthetic value of the Australian Alps as described.
For those reasons, I am not satisfied that the proposed Action is likely to have any impact on the “aesthetic” value under criterion (e).
Criterion (g)
Under criterion (g), the ABA relies on the “pioneering identity” value, reflected in the statements that “The pioneering history of the high country is valued as an important part of the construction of the Australian identity featuring in myths, legends and literature. The ballad ‘The Man from Snowy River’ epitomises horsemanship undertaken historically in the rugged landscape.”
As submitted by the ABA, the brumbies are an important part of the story depicted in the poem “The Man from Snowy River”. The poem tells the story of a valuable horse, the colt from Old Regret, worth a thousand pounds, that had got away and joined the wild bush horses, which was the expression Banjo Paterson used for the brumbies. Pastoralists, referred to as bushmen in the poem, go out to retrieve the colt. The story is ultimately about one of the bushmen, referred to in the poem as the man from Snowy River, who demonstrates great bravery and horsemanship in pursuing the colt and bringing it back. Elyne Mitchell's Silver Brumby novels are children’s fiction in which the central characters are anthropomorphic brumbies.

The National Heritage Assessment Report provided the following background information and commentary in respect of this value:
The social value of the AANP is expressed through the tangible elements of the landscape and the intangible cultural associations with that landscape. The mountain cattlemen of the high country have national recognition. The 'community', in this case, consists of those men and women who share the interest of the traditional practice of alpine grazing; with around 150 years of traditional practice of grazing on the summer pastures of the alpine region. These people have a strong attachment to the place. The community of mountain cattlemen is sizeable although dispersed across the region. The community of mountain cattlemen and its association with the place and traditional practice has recognition beyond the region and the state. Representatives from the Mountain Cattlemen Association of Victoria (MCV) attended regional community workshops to identify places of social value for the Regional Forest Assessment process. The community holds events such as 'get togethers' which commenced in 1983, parades at shows and rallies as listed in the nomination to the National Heritage List. The national recognition of the community is evident through literature, and public media such as the books by Holth and Barnaby (1980), Holth and Barnaby (1990, 225-35), and Holth (1991, 155-63).
The practice was handed down from one generation of the community to the next, adapting and modifying to changing circumstances over its long history. Most of the practice and rituals undertaken by the associated community are now undertaken outside Alpine National Park. Although transhumant alpine grazing in the AANP was gradually reduced over time until it ceased in 2005, the imagery of the cattlemen/stockmen/horsemen generally retains iconic popularity with many Australians.
The mountain cattlemen community have been associated with the place since the 1830s through the traditional practice of grazing in the high country. Transhumant grazing was also practiced in the high country of Tasmania, specifically on the Central Plateau, the sub-alpine areas around Cradle Valley, Middlesex Plains, Vale of Belvoir and the Surry Hills area. The practice in Tasmania commenced by the late 1830s, progressing until well into the twentieth century but declining before the Second World War (Cubit and Russell:1999, p.40).
Although the association between cattlemen and the high country still exists in Tasmania, the community association is stronger in the Alps because of its extent and its longevity. The national significance is based on how the place is treasured by the community, the longevity of the community association, the direct association of the nationally important story, as described under criterion (a), and how the story is continuing as an iconic story that has recognition in the nation.
The mythology created by Banjo Patterson's the Man from Snowy River, arguably Australia's best known ballad, maintains the sense of the AANP as a distinctive part of Australia's cultural heritage and has contributed to our national identity. The iconic association is demonstrated in the depiction of the Man from Snowy River on the Australian $10 note and the representation in the opening ceremony of the 2000 Sydney Olympic Games (Truscott et al. 2006). Elaine Mitchell's Silver Brumby novels further enhance the association of the Australian community with the AANP. The AANP has heritage value to Australians for the iconic mythology of the Man from Snowy River and the horsemanship undertaken in a very rugged landscape, known as the 'high country'.
Parks Victoria submitted that this value did not include the brumbies. Rather, the value derived from The Man from Snowy River is “horsemanship undertaken historically in the rugged landscape” and the value derived from the Silver Brumby novels are stories, legends and myths of the mountains and mountain lifestyles. In my view, this is too narrow a view of the value.
In assessing whether the proposed Action is likely to have a significant impact on this National Heritage value, I accept Dr Mclntyre-Tamwoy’s opinion that the values listed under this criterion are about association of people and place and refer to a range of communities of people who have an association with the Australian Alps, including the descendants of the pastoralists who grazed cattle in the Alps. I also accept Dr Mclntyre-Tamwoy’s opinion that the continuing presence of brumbies in the Australian Alps contribute to this National Heritage value through the social connection of the pastoral community to the Australian Alps and in the maintenance of the “myths, legends and literature” of the Australian Alps.
Thus, the context in which to assess the impact is the social and cultural connection between communities, including particularly the descendants of the pastoralists who grazed cattle in the Alps, and the brumbies and the myths and stories associated with them. However, it is important not to overstate the significance of the brumbies in that context. The brumbies are one aspect or attribute out of many that establish the connection between communities, including the pastoral community, and the Australian Alps. As noted above, this aspect of the National Heritage values that is sought to be protected is associated with a form of pastoral activity that has now ceased in the Australian Alps. Thus, the brumbies are one physical reminder of the historic activities and, in that sense, contribute to the social connection of the pastoral community to the Australian Alps.
With regard to the intensity of impact, it is again relevant that the Action will not remove all brumbies from the Australian Alps. The Action will remove all brumbies from one area, the Bogong High Plains, and will reduce the population in another location, the Eastern Alps.
Having regard to the foregoing factors, on balance I do not consider that the proposed Action is likely to have a significant impact on this National Heritage value. While there will be some impact by reason of the connection of the brumbies to the myths, stories and legends of the Australian Alps with which communities have a connection, the retention of a significant population of brumbies in the Eastern Alps has the result that the Action cannot be regarded as significant.
Criterion (h)
Under criterion (h), the ABA relied on the “Australian writers” value, reflected in statements that “Through his ballad ‘The Man from Snowy River’, Andrew Barton ‘Banjo’ Paterson captured the imagination of the Australian people, stimulating a passion for the High Country and the way of life associated with the mountains” and “The writer Elyne Mitchell and poet David Campbell lived near the mountains and their strong association with the place is expressed in much of their nationally important literary works.”
The evidence of Dr Mclntyre-Tamwoy on this value fluctuated somewhat. In her report, Dr Mclntyre-Tamwoy expressed the opinion that this value is about association of people to place, relevantly here Banjo Paterson and Elyne Mitchell. She gave evidence that if all traces of the world that their works evoke are removed from the landscape, so as to create a new landscape of an imagined natural past, then the connection reflected in the National Heritage value would be diminished in the physical cultural landscape. However, in the joint report of the heritage experts, Dr Mclntyre-Tamwoy said that while the proposed Action would diminish this value, she agreed with Mr Travers that the Action would not have a significant impact on the value. In re-examination, however, Dr Mclntyre-Tamwoy backed away from that concession.
I am not satisfied that the proposed Action is likely to have a significant impact on this value. The value concerns the connection between various writers, of relevance here Banjo Paterson and Elyne Mitchell, and the Australian Alps. It can be accepted, as Dr Mclntyre-Tamwoy said, that if all traces of the world that their works evoke were removed from the landscape, then the connection reflected in the National Heritage value would be diminished to some extent. However, the brumbies are only one element of the works of Banjo Paterson. While the brumbies are central to Elyne Mitchell’s stories, other attributes of the stories connect them closely with the Australian Alps. Further, the proposed Action will reduce the number of brumbies in the Australian Alps, but not remove them completely.
Conclusion on the section 15B(5) issue
In conclusion on the s 15B(5) issue, I am not satisfied that the Action, involving the removal of brumbies from the Bogong High Plains and the reduction in number of brumbies in the Eastern Alps, will have or is likely to have a significant impact on the National Heritage values of the Australian Alps.
CONCLUSION
In conclusion, the ABA has not satisfied me that, for the purposes of s 15B(6) of the EPBC Act, prohibiting the Action is appropriate and adapted to give effect to Australia’s obligations under Article 8 of the Biodiversity Convention. Accordingly, s 15B(5) is inapplicable to the Action. If it were necessary to decide the issue, I am also not satisfied that, for the purposes of s 15B(5), the Action will have or is likely to have a significant impact on the National Heritage values of the Australian Alps. The same conclusions apply to s 15C(10).
Accordingly, I dismiss the application with costs.

I certify that the preceding two hundred and sixty-one (261) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Bryan.
Associate:
Dated: 8 May 2020

File number(s):	VID 1569 of 2018
Judge(s):	O'BRYAN J
Date of judgment:	8 May 2020
Catchwords:	ADMINISTRATIVE LAW - Environment Protection and Biodiversity Conservation Act 1999 (Cth) Act s 15B(5) – action to prevent removal of brumbies from the Bogong High Plains and Eastern Victorian Alps within the Australian Alps National Parks and Reserves - whether removal will have or is likely to have a significant impact on the National Heritage values of the Australian Alps National Parks and Reserves - whether prohibiting the removal is reasonably appropriate and adapted to give effect to Australia’s obligations under Article 8 of the Biodiversity Convention – whether brumbies are part of the National heritage values of the Australian Alps National Parks and Reserves – whether the Biodiversity Convention protects cultural and social values - proper construction of s 15B(5) and (6)
Legislation:	Competition and Consumer Act 2010 (Cth) Environment Protection and Biodiversity Conservation Act 1999 (Cth) Evidence Act 1995 (Cth) Trade Practices Act 1974 (Cth) Flora and Fauna Guarantee Act 1988 (Vic) National Parks Act 1975 (Vic) Parks Victoria Act 2018 (Vic)
Cases cited:	Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 Australian Competition and Consumer Commission v Pacific National Pty Limited [2020] FCAFC 77 Booth v Bosworth (2001) 114 FCR 39 Commonwealth v Tasmania (1983) 158 CLR 1 Director of Public Prosecutions (Cth) v Poniatowska (2011) 244 CLR 408 Minister for the Environment & Heritage v Greentree (No 2) (2004) 138 FCR 198 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 Monroe Topple & Assocs Pty Ltd v Institute of Chartered Accountants in Australia (2002) 122 FCR 110 Povey v Qantas Airways Limited (2005) 223 CLR 189 Secretary, Department of Primary Industries, Parks, Water and Environment v Tasmanian Aboriginal Centre Inc (2016) 244 FCR 21 Secretary, Department of Sustainability and Environment (Vic) v Minister for Sustainability, Environment, Water, Population and Communities (Cth) (2013) 209 FCR 215 Seven Network Limited v News Ltd (2009) 182 FCR 160 Taikato v The Queen (1996) 186 CLR 454 Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 Universal Music Australia Pty Ltd v ACCC (2003) 131 FCR 529 Victoria v The Commonwealth (1996) 187 CLR 416 National Parks and Conservation Association v Babbitt (2001) 241 F (3d) 722
Date of hearing:	19 July 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	261
Counsel for the Applicant:	Mr D Star QC with Ms K Grinberg and Mr A Yuile
Solicitor for the Applicant:	Phoenix Legal Solutions
Counsel for the Respondent:	Mr C Caleo QC with Mr E Nekvapil and Ms R Amamoo
Solicitor for the Respondent:	Maddocks

Criterion	Values
(a) the place has outstanding heritage values to the nation because of the place’s importance in the course, or pattern, of Australia’s natural or cultural history. In respect of that criterion, the Listing states the following values	The Australian Alps National Parks and Reserves (AANP) are part of a unique Australian mountainous region. Human interaction with the region has been distinctive in its response to the challenges and opportunities presented by this unique environment. Glacial and Periglacial Features The assemblage of glacial deposits and features in the AANP includes five alpine lakes, thirteen cirques and associated moraines, ice-grooved and polished pavements and erratic boulders. Periglacial features, both fossil and modern, include block streams, permafrost and solifluction deposits. These features are the material expression of the cold-climate, high-altitude history of the AANP, unique in the low-latitude, low-altitude Australian continent. The glacial and periglacial features contribute uniquely to our understanding of the nature of landscape response to climate during the ice ages of the late Quaternary and into the present and therefore has outstanding heritage value to the nation for its importance in the pattern of Australia’s natural history (Percival 1985; Galloway 1989; Yeates 2001a; ISC 2004; AALC 2006). Fossils The Mt Howitt fish fossil site demonstrates remarkable fossil species diversity and preserves fish fossils across a wide range of life stages from larvae to mature fish, over tens of millions of years. The site contributes an important narrative about the evolution of fish across a number of different marine and freshwater environments, and the development of features that enabled vertebrates to leave the water to exploit terrestrial environments for the first time. Fossils revealed at the site have outstanding heritage value to the nation for their place in vertebrate evolution during the so-called 'Age of Fish' (Vickers-Rich and Rich 1993; Cook ed. 2007). Karst The Yarrangobilly karst area contains an outstanding collection of surface karst features including gorges, arches, blind valleys, springs and pinnacle fields. It also contains several hundred caves including six show caves with many intricate cave decorations, open for public viewing (ISC 2004). Yarrangobilly has yielded valuable information on the long-term dynamics of landscape formation. The thick flowstone sequences in Jersey Cave span half a million years and provide the longest continuous fire history record from a single site in Australia (DEH 2006b). Yarrangobilly has outstanding value to the nation for its features and karst processes evident in the limestone karst landscape. Biological Heritage The Alps are one of eleven sites recognised in Australia by the IUCN as a major world centre of plant diversity. During the late Quaternary and into the present, the high-altitude, cold-climate environment has provided refuge for species in an increasingly arid climate. Containing most of the contiguous montane to alpine environments in Australia, the AANP supports a rich and unique assemblage of cold-climate specialist species that have evolved unique physiological characteristics, enabling them to survive in an environment subject to extreme climate variation. Outstandingly rich flora taxa in the AANP include the daisies (Asteraceae), willow-herbs (Onagraceae), starworts and cushion-plants (Caryophyllaceae), southern heaths (Epacris), bottlebrushes (Callistemon), orchids (Pterostylis, Prasophyllum and Dipodium) and pimeleas (Thymaelaeaceae). Cold-climate adapted and endemic fauna species include the mountain pygmy-possum (Burramys parvus), the alpine she-oak skink (Cyclodomorphus praealtus), Snowy Mountains rock skink (Egernia guthega), Baw Baw frog (Philoria frosti), southern corroboree frog (Pseudophryne corroboree), and the northern corroboree frog (P. pengilleyi). Species of a great many invertebrate taxa are endemic to the Alps. These include stoneflies, caddisflies, mayflies, grasshoppers, and earthworms. Many display cold-climate adaptations, such as the mountain grasshopper (Acripeza reticulata), mountain spotted grasshopper (Monistria concinna) and alpine thermocolour grasshopper (Kosciuscola tristis). The Bogong moth undertakes regular migration in Australia and an essential part of its lifecycle occurs within the AANP. The AANP is a vital refuge for alpine and sub-alpine flora and fauna species, with a high level of richness and endemism across a wide range of taxa, and therefore has outstanding value to the nation for encompassing a significant and unique component of Australia's biological heritage (Nankin 1983; Costin 1989; Strahan 1995; Good 1995; Boden and Given 1995; WWF and IUCN 1995; Cogger 1996; Crabb 2003 Good 2003; ISC 2004; DSE 2005; AALC 2005; DEC 2006; McDougall & Walsh 2007, ANHAT 2007). Moth Feasting The use of an adult insect – the Bogong moth – as the basis for past large-scale annual gatherings of different Aboriginal groups for ceremonies sets the gatherings in the AANP apart from other Aboriginal ceremonial gatherings and has captured the Australian imagination, making it exceptional in Australia (White 2006). Therefore the AANP has outstanding heritage value to the nation because of the importance of Aboriginal social gatherings based on moth feasting in the course, or pattern, of Australia's cultural history. *Transhumant Grazing* The AANP has outstanding heritage value for its association with historic transhumant grazing that commenced in the 1830s. The practice of using alpine high plains to graze stock during the summer months was a significant pastoral activity of the nineteenth and twentieth centuries and was continuously practised for a period of over 150 years; making a considerable contribution to the early pastoral industry of south-east Australia. Transhumant grazing created and sustained a distinctive way of life that is valued as an important part of Australia's pioneering history and culture. Evidence of transhumant grazing includes huts, the former grazing landscapes, stock yards, and stock routes. Scientific Research The AANP has outstanding heritage value for the scientific research that has taken place since the 1830s, demonstrated by the density and continuity of scientific endeavour. Research sites within the AANP include those relating to botanical surveys, soil conservation exclosures, karst research, fauna research, meteorology, fire ecology plots, arboreta and glacial research sites. Space tracking undertaken in the ACT with Honeysuckle Creek Tracking Station having played a significant role in the Apollo 11 moon landing mission. Water Harvesting Water harvesting in the AANP has outstanding heritage value to the nation for its contribution to the social and economic development of Australia. Water harvested from headwaters in the AANP contributes to the water needs of Canberra and Melbourne. The Snowy Mountains Hydro-electric Scheme and the Kiewa Valley Hydro-electric Scheme also contributes to the electricity needs of south-eastern Australia. Both schemes were major post-war reconstruction projects, encouraging migration to Australia and employing over 60,000 displaced persons from post war Europe. Evidence of water harvesting in the AANP for power and irrigation includes the major pondages along with the numerous tunnels, aqueducts, power stations, huts, roads and former settlements, town and work camp sites. Recreation The AANP has outstanding heritage value for the longevity and diversity of its recreational use. Snow sports commenced in Kiandra in 1861 with the establishment of the Kiandra Snowshoe Club and expanded from an ad hoc activity by enthusiasts to a multi-million dollar snow sport and tourism industry characterised by the groomed ski slopes, ski lift infrastructure and substantial village resorts. The chalets supported by government were major features of the expanding activity and were established in scenic locations in the early twentieth century when mountain retreats were highly regarded for good health. These include the Mount Buffalo Chalet, the Yarrangobilly Caves House Precinct, the Chalet at Charlottes Pass, and the former Hotel Kosciusko and Mount Franklin Chalets.
(b) the place has outstanding heritage value to the nation because of the place’s possession of uncommon, rare or endangered aspects of Australia’s natural or cultural history	Landscape and Topography The high altitudes of the plateaus and peaks in the AANP are prominent in a continent with an average elevation of only 330 metres above sea level. The AANP includes most of continental Australia's peaks over 1,700 metres and all of those over 1,900 metres. These high peaks and plateaus contain the vast majority of alpine and sub-alpine environments in Australia. The AANP experiences extensive snow coverage on a seasonal basis, and its glacial lakes are the only wetlands on the Australian mainland covered by ice sheets in winter. The high-altitude landscape of the AANP has outstanding heritage value to the nation for its topographic heights, uncommon alpine and sub-alpine ecosystems and glacial lakes. (AALC 2005; DEC 2006; Geoscience Australia 2007). Glacial and Periglacial Features Continental Australia and its southern territorial islands have experienced periods of historic glaciation, with current snow and ice coverage limited to the highest peaks and altitudes. On mainland Australia, the AANP preserves a concentration of glacial and periglacial features without comparison from the ice ages of the late Quaternary Period. The Kosciuszko Plateau is unique in mainland Australia as the only place irrefutably exhibiting landforms shaped by Late Pleistocene glaciers during a series of glacier advances known as the Late Kosciuszko Glaciation. The active and fossil periglacial landforms of the AANP include blockstreams and solifluction features (solifluction is the gradual movement of waterlogged soil down a slope, especially where percolation is prevented by a frozen substrate). They are the most striking and extensive in mainland Australia and demonstrate the widespread effects of cold climate in the Quaternary, mild climate in the Holocene and the absence of intensive Pleistocene ice modification of the elevated landscape of the Victorian and ACT Alps. Therefore the AANP has outstanding heritage value to the nation for containing uncommon glacial and periglacial features (Percival 1985; Yeates 2001; Barrows et al. 2001). Fossils The Mt Howitt fish fossil site is globally rare because it preserves a diverse array of fossil fish in uncommon detail at all stages of their lives. It is unique nationally in providing a snapshot of a complete freshwater vertebrate community from the past, and for yielding fossils from all stages of growth of a species, from tiny fish larvae to adult fish, and therefore has outstanding heritage value to the nation because of its preservation of an uncommon aspect of Australia's natural history (Long 2002; Cook ed. 2007). Alpine and Sub-alpine Ecosystems The AANP has outstanding heritage significance to the nation for possessing extremely uncommon aspects of Australia's natural history. Alpine and sub-alpine ecosystems are uncommon in the generally arid and warm climate of Australia. The distribution of cold-climate species on the mainland retreated to the higher altitudes of the Alps in the Late Pleistocene as conditions began to warm up. The AANP contains most of the alpine and sub-alpine ecosystems on mainland Australia, supporting flora and fauna species that have evolved to the harsh conditions of the high altitudes. Many of these species are endemic to the Alps and are found nowhere else in Australia. The bog and fen groundwater communities are supported by organic soils and contain exceptional water retention properties. These communities play an integral role in ecosystem function by regulating the slow release of water from saturated peatbeds to the surrounding alpine humus soils, streams and other alpine communities (Good 1995; AALC 2006b). Eucalypt Flora Community The AANP provides an outstanding example of the adaptability of a plant genus, the genus Eucalyptus, along a steep topographical transect. The eucalypts dominate the AANP vegetation from the lowlands to as high as the alpine region, where the snow gum (E. pauciflora) defines the treeline. Much of the highest land in Australia occurs within the AANP, which also demonstrates very large topographical variations, which in turn is reflected in the high diversity of eucalypt species replacing each other along the altitudinal and climatic gradient (Costin 1988; Kirkpatrick 1994; ISC 2004; ANHAT 2007).
(d) the place has outstanding heritage value to the nation because of the place’s importance in demonstrating the principal characteristics of (i) a class of Australia’s natural or cultural places; or (ii) a class of Australia’s natural or cultural environments	North-East Kosciuszko Pastoral Landscape The landscape is outstanding for demonstrating the use of mountain resources, namely the summer grasses and herbfields. As a relict landscape of past grazing leases it conveys the principal characteristics of transhumance and permanent pastoralism in a remote environment, these being large areas of open grassy landscapes between timbered ridges and hills, stockman's huts, homestead complexes, stockyards and stock routes. The grasslands with swathes of pioneer shrubs include the Kiandra landscape, Boggy Plain, Nungar Plain, Gulf Plain, Wild Horse Plain, Tantangara Plain, Dairymans Plain, Currango Plain, Long Plain, Cooleman Plain, Kellys Plain, Blanket Plain, Peppercorn and Pockets Saddle (KHA 2008). Homestead buildings include Cooinbil and Old Currango and the modest homestead complexes of Currango and Coolamine with additional features including exotic plantings, sheds, barns, and workers' accommodation. Former stock routes, now fire trails, include the Port Philip Fire and Murrays Gap Fire Trails. Located in the former grazing leases are stockman's huts, Bill Jones Hut, Circuits Hut, Gavels Hut, Hains Hut, Hainsworth Hut, Millers Hut, Oldfields Hut, Pedens Hut, Pockets Hut, Townsends Lodge, Gavels Hut, Long Plain Hut, Gooandra Hut, Schofields Hut, and Witzes Hut (KHA 2008), which in their use and re-use of available materials typify a lifestyle and vernacular bush building technology using hand tools. The array of characteristics relate to over a century of alpine grazing.
(e) the place has outstanding heritage value to the nation because of the place's importance in exhibiting particular aesthetic characteristics valued by a community or cultural group	The AANP is a powerful, spectacular and distinctive landscape highly valued by the Australian community. The mountain vistas, including distinctive range-upon-range panoramas, snow covered crests, slopes and valleys, alpine streams and rivers, natural and artificial lakes, the snow-clad eucalypts and the high plain grasslands, summer alpine wildflowers, forests and natural sounds evoke strong aesthetic responses. Much of the terrain of the AANP is highly valued for its remoteness, and naturalness, including views to and from the region that capture snow clad ranges and mountain silhouettes against clear skies as well as expansive views of natural landscapes from the high points of the Alps. The upper Snowy River and Snowy Gorge, Mount Buffalo, the Kosciuszko Main Range, Lake Tali Karng, Dandongadale Falls the peaks and ridges between and including Mt Cobbler, Mt Howitt and the Bluff, and other high peaks, ridgelines, granite outcrops and escarpments are examples of dramatic awe-inspiring landscapes. Recreational pursuits in these landscapes are enhanced by aesthetic appreciation of their wild and natural quality. Snow-covered eucalypts, huts in mountain settings and mountain landscapes are distinctive Australian images captured by numerous artists and photographers. The mountain landscapes have inspired poets, painters, writers, musicians and film makers.
(g) the place has outstanding heritage value to the nation because of the place's strong or special association with a particular community or cultural group for social, cultural or spiritual reasons	The Australian Alps have a special association with the Australian community because of their unique landscapes, the possibility of experiencing remoteness and as the only opportunity for broad-scale snow recreation in Australia. The AANP is widely recognised by Australians as the 'high country' and many community groups have a special association with the AANP for social and cultural reasons. Mount Kosciuszko is an iconic feature for all Australians and visited by over 100,000 people each year. It was named by the explorer Paul Edmund Strzelecki after the Polish freedom fighter, General Tadeusz Kosciuszko, in appreciation of freedom and a free people, an association that is highly valued by Australia's Polish community. The pioneering history of the high country is valued as an important part of the construction of the Australian identity featuring in myths, legends and literature. The ballad of The Man from Snowy River epitomises horsemanship undertaken historically in the rugged landscape. The stories, legends and myths of the mountains and mountain lifestyles have been romanticised in books, films, songs, and television series and many such as the Elyne Mitchell’s Silver Brumby novels are part of Australia's national identity. The mountain huts of the AANP constructed for grazing, mining and recreation are valued by communities as a physical expression of the cultural history of the region. They have special associations with many groups, such as mountain cattlemen, skiers and bushwalkers but particularly with huts associations that have been maintaining mountain huts and associated vernacular building skills for over 30 years.
(h) the place has outstanding heritage value to the nation because of the place's special association with the life or works of a person, or group of persons, of importance in Australia's natural or cultural history	Baron Ferdinand von Mueller is highly recognised nationally and internationally for his contribution to Australian botany, particularly his extensive and thorough botanical collections of the Australian Alps undertaken in several botanical collecting trips on horseback, each of several weeks' or months' duration (Costin et al. 1979). Eugen von Guerard was a significant nineteenth century artist producing a prolific record of Australian landscapes. His 1863 painting the North-east view from the northern top of Mount Kosciusko is regarded as one of his finest artistically and is in Australia's national collection. Through his ballad The Man from Snowy River, Andrew Barton 'Banjo' Paterson captured the imagination of the Australian people, stimulating a passion for the High Country and the way of life associated with the mountains. His iconic ballad has had a lasting influence on Australians. The writer Elyne Mitchell and poet David Campbell lived near the mountains and their strong association with the place is expressed in much of their nationally important literary works.