KACHANA PASTORAL CO PTY LTD and DEPARTMENT OF PRIMARY INDUSTRIES AND REGIONAL DEVELOPMENT
[2025] WASAT 118
•27 OCTOBER 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BIOSECURITY AND AGRICULTURE MANAGEMENT ACT 2007 (WA)
CITATION: KACHANA PASTORAL CO PTY LTD and DEPARTMENT OF PRIMARY INDUSTRIES AND REGIONAL DEVELOPMENT [2025] WASAT 118
MEMBER: DR S WILLEY, SENIOR MEMBER
DR G MIDDLE, SESSIONAL MEMBER
HEARD: 5, 6, 7 NOVEMBER AND 11 DECEMBER 2024
DELIVERED : 27 OCTOBER 2025
FILE NO/S: DR 176 of 2021
BETWEEN: KACHANA PASTORAL CO PTY LTD
Applicant
AND
DEPARTMENT OF PRIMARY INDUSTRIES AND REGIONAL DEVELOPMENT
Respondent
Catchwords:
Biosecurity - Declared pest - Duty to control - Feral donkeys - Pest Control Notice - Environmental benefits of large feral herbivores in rangelands
Legislation:
Agricultural Protection Board Act 1950 (WA) (repealed), s 5
Agriculture and Related Resources Protection Act 1976 (WA), Pt IV
Biosecurity and Agriculture Management (Declared Pests) Declaration (No 2) 2017
Biosecurity and Agriculture Management (Declared Pests) Declaration 2013
Biosecurity and Agriculture Management (Identification and Movement of Stock and Apiaries) Regulations 2013 (WA)
Biosecurity and Agriculture Management Act 2007 (WA), s 3(1), s 6, s 22, s 22(2), s 22(3), s 23, s 26, s 30, s 30(1), s 30(3), s 30(4), s 31(1), s 31(1)(a)(i), s 31(2), s 126, s 138(a), s 162, s 169, s 169(1), s 170(1), Pt 2, Div 3, Pt 7, Div 5
Biosecurity and Agriculture Management Regulations 2013 (WA), reg 7, reg 7(1), reg 7(2), reg 7(3), reg 27, reg 27(1), reg 27(4), reg 27(4)(a), reg 27(4)(b), reg 27(4)(c)
Explanatory Memorandum, Biosecurity and Agricultural Management Bill 2006
Interpretation Act 1984 (WA), s 3(1)(c), s 17
State Administrative Tribunal Act 2004 (WA), s 17, s 27, s 29(3), s 31, s 31(3), s 77
Result:
Decision under review affirmed
Application for review dismissed
Category: B
Representation:
Counsel:
| Applicant | : | Mr K Henggeler |
| Respondent | : | Mr C Mayne and Ms J Kasbergen |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; (2007) 155 LGERA 52
LS v Mental Health Review Board [2013] WASCA 128
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331
Puma Energy Australia and City of Cockburn [2016] WASAT 36; (2016) 89 SR (WA) 1
REASONS FOR DECISION OF THE TRIBUNAL:
Feral donkeys are a declared pest in Western Australia.
While that may be so, the directors of Kachana Pastoral Co Pty Ltd (Applicant or Kachana), which manages and operates the Kachana Station in the Kimberley region (Station), considers that large herbivores, such as feral donkeys, deliver benefits such as bushfire control, better soils and improved overall environmental outcomes. For many years, the Applicant has allowed, and intends to continue to allow, feral donkeys to remain on the rangelands on the Station.
On 9 August 2021, the Department of Primary Industries and Regional Development (DPIRD or Respondent), pursuant to its powers under the Biosecurity and Agriculture Management Act 2007 (WA) (BAM Act), issued on the Applicant a 'pest control notice' (Control Notice) requiring it to cull (by shooting) feral donkeys on the Station. Initially, 72 donkeys were required to be culled. However, this number has been revised to 117.
The Applicant has applied to review the decision to issue the Control Notice (Review). It argues that the Control Notice is unnecessary because it is sufficiently 'controlling' the donkeys on the Station.
Summary outcome
For the following reasons, we find that the correct and preferable decision is to affirm the Control Notice and dismiss the Review.
As we will explain, we are not satisfied that the control measures being implemented by the Applicant are sufficient to contain the number, distribution and spread of feral donkeys on the Station in a manner that complies with the requirements, and the purpose and intent, of the BAM Act.
Issues
The ultimate issue before us is whether we should affirm, vary or set aside the Control Notice.[1]
[1] State Administrative Tribunal Act 2004 (WA) (SAT Act), s 29(3).
While the parties agree that the feral donkeys on the Station need to be controlled, the contest in this matter is essentially around the effectiveness of the Applicant's management approach.
Therefore, the dispute, as between the parties is, in effect, directed to which of the following constitutes the 'correct and preferable' decision:
(a)the control measures currently being employed by the Applicant;
(b)the control measures set out in the Control Notice; or
(c)an alternative control measure that meets the objectives set out in the BAM Act and the Biosecurity and Agriculture Management Regulations 2013 (WA) (BAM Regulations).
Nature of the Tribunal's jurisdiction
This proceeding arises in the Tribunal's review jurisdiction.[2] Accordingly, our task is to hear the matter de novo and to make the correct and preferable decision at the time of the decision upon the review.[3] Neither party bears any legal or practical onus.[4]
[2] SAT Act, s 17.
[3] SAT Act, s 27.
[4] Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331 [115] (the Court).
As the Court of Appeal explained in LSvMental Health Review Board,[5] the reference to 'correct and preferable' recognises that, particularly in the exercise of discretion, there may be more than one correct decision available and that, in such cases, the decision must be the preferable one.
[5] LS v Mental Health Review Board [2013] WASCA 128 [92] (Murphy JA, Newnes JA agreeing).
We are required to include in our reasons our findings on material questions of fact.[6] In these reasons, where we state that we are satisfied as to the existence of a fact, we mean that we are satisfied on the balance of probabilities that the fact has been proven.
[6] SAT Act, s 77.
Legislative framework
The objects of the BAM Act include, relevantly, to 'provide effective biosecurity and agriculture management in Western Australia'.[7] The BAM Act is to provide the means to, relevantly, 'control the entry, establishment, spread and impact of organisms that have or may have an adverse effect on:
…
(i)other organisms; or
(ii)human beings; or
(iii)the environment or part of the environment; or
(iv)agricultural activities, fishing or pearling activities, or related commercial activities, carried on, or intended to be carried on, in the State or part of the State[.]
[7] BAM Act, s 3(1); Explanatory Memorandum, Biosecurity and Agricultural Management Bill 2006 (WA), page 1.
For the purposes of the BAM Act, 'biosecurity' is defined to mean:[8]
… protection from the adverse effect an organism has or may have on —
(a)another organism; or
(b)a human being; or
(c)the environment, or part of the environment; or
(d)agricultural activities, fishing or pearling activities, or related commercial activities carried on, or intended to be carried on, in the State or part of the State[.]
[8] BAM Act, s 6.
Prior to the commencement of the BAM Act (on 12 October 2007), feral donkeys were regulated by way of declarations made by the Agricultural Protection Board[9] pursuant to powers under Pt IV of the Agriculture and Related Resources Protection Act 1976 (WA).
The power to declare an organism as a 'pest'
[9] The Agricultural Protection Board was established pursuant to s 5 of the Agricultural Protection Board Act 1950 (WA) (repealed).
For the purposes of the BAM Act, a 'declared pest' is, relevantly, an organism for which a declaration made under s 22(2) is in force.
Division 3 of Pt 2 of the BAM Act deals with 'Biosecurity within Western Australia'. Section 22(2) authorises the Minister to declare an organism as a declared pest in an area of the State if there are reasonable grounds for believing that the organism has, or may have, an adverse effect on either another organism, human beings, the environment or agricultural activities, in the area.
Pursuant to s 22(3), a declaration may assign the declared pest to a category designated by the BAM Regulations.
Regulation 7(1) of the BAM Regulations identifies various control categories to which a declared pest may be assigned, for the reasons stated therein. These control categories are:
Category 1 (C1) —Exclusion: if in the opinion of the Minister introduction of the declared pest into an area or part of an area for which it is declared should be prevented;
Category 2 (C2) —Eradication: if in the opinion of the Minister eradication of the declared pest from an area or part of an area for which it is declared is feasible;
Category 3 (C3) —Management: if in the opinion of the Minister eradication of the declared pest from an area or part of an area for which it is declared is not feasible but that it is necessary to -
(i)alleviate the harmful impact of the declared pest in the area; or
(ii)reduce the number or distribution of the declared pest in the area; or
(iii)prevent or contain the spread of the declared pest in the area.
Pursuant to reg 7(2), the keeping categories for declared pests (aside from a prohibited organism), for the purposes of s 22(3) of the BAM Act, are as follows:
(a)Prohibited keeping: if in the opinion of the Minister keeping the declared pest in an area or part of an area for which it is declared should be prohibited except under the authority of a permit to keep —
(i)at a zoological park; or
(ii)at a scientific organisation approved by the Minister; or
(iii)for scientific, education or government operational purposes;
(b)Restricted keeping: if in the opinion of the Minister keeping the declared pest in an area or part of an area for which it is declared should be restricted to keeping—
(i)under the authority of a permit; or
(ii)in an approved quarantine facility in accordance with the terms and conditions set out in the approval of the quarantine facility;
(c)Exempt keeping: if in the opinion of the Minister keeping the declared pest in an area or part of an area for which it is declared should be exempt from any requirement under the Act in relation to keeping.
Regulation 7(3) further provides that a declaration under s 22 of the BAM Act, assigning a declared pest to a control category, must specify the area, or any part of an area, for which the declared pest is assigned to that category.
Feral donkeys are declared a pest
On 17 November 2017, the Minister declared[10] the Biosecurity and Agriculture Management (Declared Pests) Declaration (No 2) 2017 (Declaration), pursuant to s 22(2) of the BAM Act and reg 7 of the BAM Regulations.[11]
[10] By publication in the Government Gazette.
[11] Prior to the Declaration, the Biosecurity and Agriculture Management (Declared Pests) Declaration 2013, published in the Government Gazette on 7 May 2013 (No 74, page 1925) had the effect of making feral donkeys a declared pest.
The Declaration, relevantly, is as follows:
Full Organism Name Control Category and Area Declared Keeping category Equus asinus (feral)
(Linnaues 1758)
C3 Whole of State Exempt
The duty to control declared pests
Once an organism is declared a pest, the effect of s 30(3) of the BAM Act is to require an owner or occupier of land in an area for which that organism is declared a pest, or a person who is conducting an activity on the land, to undertake the 'prescribed control measures' to control the declared pest if it is present on the land. The penalty for failing to comply is a $20,000 fine.
For the purposes of s 30(3), 'control' is defined to mean:[12]
… in relation to a declared pest or other organism, includes eradicate, destroy, prevent the presence or spread of, manage, examine or test for, survey for or monitor the presence or spread of, and treat[.]
[12] BAM Act, s 6.
Pursuant to s 30(1), reg 27(1) sets out an extensive list of 'control measures [which] are prescribed to control declared pests', including, relevantly:
…
(c)capture and relocation;
…
(n)mustering;
(o)poisoning;
(p)removal;
…
(s)shooting;
…
(v)trapping;
…
The duty imposed by s 30(3) is separate from, and applies separately to, a 'pest control notice' that has been issued on a person.[13]
[13] BAM Act, s 30(4).
Regulation 27(4) of the BAM Regulations provides that, for a Category C3 declared pest (such as feral donkeys), a person must take such of the control measures specified in reg 27(1) as are reasonable and necessary to:
(a)alleviate the harmful impact of the declared pest in the area for which it is declared; or
(b)reduce the number or distribution of the declared pest in the area for which it is declared;
(c)prevent or contain the spread of the declared pest in the area for which it is declared.
Section 23 of the BAM Act provides that, except as otherwise provided for in the regulations or in a management plan, a person must not, in an area for which an organism is a declared pest, 'keep breed or cultivate', or 'release into the environment', the declared pest. The penalty is a fine of $50,000 or, in the case of 'high impact organism',[14] $100,000.
[14] A 'high impact organism' is a prohibited organism that has been prescribed as a high impact organism.
Section 26 of the BAM Act sets out that a 'person who finds or suspects that, in an area for which an organism is a declared pest, there is the declared pest on or in a place' must report the presence, or suspected presence, of the declared pest to the Director General or an inspector. The penalty is a $20,000 fine.
The power to issue a pest control notice
Section 31(1) of the BAM Act allows an 'inspector'[15] to give a pest control notice to, relevantly, the owner or occupier where a declared pest is found on the land.[16]
[15] An 'inspector' is defined in the BAM Act, s 6 to be, relevantly, a person so appointed pursuant to s 162 of the BAM Act.
[16] BAM Act, s 31(1)(a)(i).
Such notice:[17]
(a)must:
(i)be in writing;
(ii)identify where on the land the relevant declared pest has been identified;
(b)may direct the person to whom it is given to, relevantly, take the measures set out in the notice for the purpose of controlling the declared pest.
[17] BAM Act, s 31(2).
The BAM Act does not otherwise direct an inspector as to matters that must be considered in determining whether to issue a pest control notice. Accordingly, the discretion must be exercised having regard to the subject matter, scope and purpose of the BAM Act.[18]
[18] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 - 40 (Mason J).
As we have explained, a pest control notice is not subject to, or otherwise restrained by, the extant duty to control declared pests arising under s 30(3) of the BAM Act.
The Large Feral Herbivore Strategy
Feral donkeys are a Large Feral Herbivore (LFH).[19] The Western Australian Large Feral Herbivore Strategy 2020 - 2025 (LFH Strategy), which was prepared by the DPIRD, provides that invasive LFHs, including feral donkeys, need to be managed as an aspect of the 'sustainable management of natural resources for the benefit of the pastoral industry, the environment, human health and amenity'.[20]
[19] In the context of the LFH Strategy, LFH includes: unowned donkeys, horses (Equus caballus) and the hybrids as well as Arabian (dromedary) camels (Camelus dromedarius).
[20] Respondent's Amended Bundle of Documents (Exhibit 1), page 79.
The LFH Strategy was prepared in the context of the Australian National Pest Animal Strategy 2016 and supports both the Western Australian Biosecurity Strategy 2016 - 2025 and the Invasive Species Plan for Western Australia 2015 - 2019.[21]
[21] Exhibit 1, page 81.
The purpose of the LFH Strategy is to provide guidance to stakeholders on a strategic approach to the management of LFH in Western Australia's rangelands.[22]
[22] Exhibit 1, page 78.
The LFH Strategy notes that, in isolated cases and based on anecdotal evidence, feral donkeys are seen by pastoralists as a valuable tool for managing vegetation to reduce the risk of fire in areas less accessible to domestic livestock.[23]
[23] Exhibit 1, page 91.
The LFH Strategy identifies a number of techniques that may be employed to manage LFH including aerial culling which is regarded as the most practical and effective method control in Western Australia, given that most LFH populations are located in remote areas with inaccessible terrain. Other management options include 'Judas programs' which are more apt when LFH are at lower densities and more difficult to locate. Judas programs involve the fitting of VHF collars to donkeys, so they can be tracked to remove the other donkeys in their social group.
Feral donkeys at the Station
The Station:
(a)covers an area of 78,000 hectares and is in the East Kimberley Region; and
(b)is managed by the Applicant pursuant to Pastoral Lease N49726L, which comprises Lots 15, 66 and 706 on Deposited Plan 238230.
It is not in contest that:
(a)feral donkeys have been on the Station for many years;
(b)the feral donkeys are not branded in accordance with the Biodiversity and Agriculture Management (Identification and Movement of Stock and Aparies) Regulations 2013 (WA) (BAM (IMSA) Regulations);
(c)the Applicant does not intend feral donkeys to be present throughout the Station. Rather, it allows the feral donkeys to graze within a 26 km2 area which is within the Stock Route Valley (which the Applicant terms the 'Project Area');
(d)the Project Area is not fenced; and
(e)when feral donkeys stray south of the Project Area and will not be herded back, the Applicant may take steps to cull them. The area immediately south of the Project Area is termed (by the Applicant as) the 'controlled management zone'.
The Kimberley Rangelands Biosecurity Association and its feral donkey program
Part 7 of the BAM Act deals with Administration. Division 5 of Pt 7 deals with advisory groups and recognised biosecurity groups.
A body established for a purpose which includes 'controlling declared pests in a specified area' may be recognised.[24] The Minister may, by signed instrument, recognise a biosecurity group.[25] Funds are available for a recognised biosecurity group to carry out measures to control declared pests.[26]
[24] BAM Act, s 169(2).
[25] BAM Act, s 169(1).
[26] BAM Act s 170(1) and s 138(a).
The Kimberley Rangelands Biosecurity Association (KRBA)[27] has run an intensive control program for feral donkeys in the Kimberley region since 1978. The KRBA was recognised as a biosecurity group by the Minister under the BAM Act in April 2011.[28]
[27] BAM Act, s 169 provides that the Minister may recognise a biosecurity group. The purposes of such biosecurity groups include controlling declared pests.
[28] Exhibit 5, para 6.
As was explained in the evidence of Mr Lindsay Strange, a Regional Biosecurity Coordinator with the Respondent, funding is provided to the KRBA for its LFH program that targets wild donkeys and camels via its Judas program, which the Respondent considers to be an effective control measure.
The evidence of Mr Richard Pasfield, the executive officer of the KRBA, also discussed the administration of the LFH program. Mr Pasfield explains that the role of the KRBA is the control of declared plants and animals in the Kimberley region on behalf of the pastoral industry. While KRBA partners with other groups in relation to weed control programs, it works exclusively with the DPIRD in relation to the LFH culling program.
The history of donkey culling programs in the Kimberley stretches back almost 45 years. In Mr Pasfield's view, the goal of eradicating viable populations of donkeys in the Kimberley ranges has been 75% achieved. He has been involved in aerial surveys of Kachana in the administration of the LFH program and has also met with Mr Chris Henggeler, a director at the Station, on a few occasions.
We note here that the Henggeler family reside at, and manage, the Station. They are also directors, and are the controlling mind, of the Applicant. To avoid confusion, these reasons will refer to members of the Henggeler family (Karl, Chris and Robert) by their first names. No disrespect is intended.
As at the end of 2017, the KRBA's LFH program:
(a)had removed 580,000 feral donkeys; and
(b)cost more than $8,000,000, with funding provided by owners and the State Government.
Background
A: Discussions between the DPIRD, the KRBA and Kachana
In October 2018, the Applicant, the Respondent and the KRBA developed a Memorandum of Understanding (MoU) concerning the feral donkeys at the Station. Mr Pasfield, representing the KRBA, took part in those discussions.
The MoU specified the need for a donkey containment strategy to be developed. However, its terms could not be agreed.
Further discussions regarding containment, replacement, removal or domestication of feral donkeys at the Station did not result in an agreement.
B: The Respondent visits Kachana
On 22 June 2021, the DPIRD carried out an aerial survey of the Station. Following the survey, Chris was interviewed in relation to the feral donkeys that had been observed. The survey is explained further below.
Shortly after, on 13 July 2021, the Applicant was issued an infringement notice for failing to control a declared pest.[29] That infringement notice is separate from the Control Notice the subject of the Review.
[29] BAM Act, s 126 and s 30(3).
In July 2021, the Respondent contacted the Applicant seeking their preferred option for controlling the feral donkeys on the Station. Options including fencing or culling were canvassed. The Applicant did not respond to these communications.
C: Aerial surveys of the Station
The initial survey
The Respondent's case in this matter arises, primarily at least, from the results of the three aerial surveys of the Station which recorded the presence of feral donkeys, as well as walking paths and dung. The donkeys were observed in the Project Area, the controlled management zone and in other locations on the Station.
In October 2018, Dr Magdalena Zabek, whose evidence we will come to, was advised that there were about 100 donkeys within the Project Area, although the precise number was unknown. Dr Zabek was shown the controlled management zone during a flight over the Station with Chris. She observed several groups of donkeys.
Dr Zabek designed, but did not attend, the first aerial survey of the Station in June 2021.
The survey was conducted from a helicopter flying along evenly distributed transects across the Station. Three observers were in the helicopter (including the pilot). One observer sat next to the pilot, with one in the right hind seat. The three observers were in continuous communications to coordinate the recording of the location and number of donkeys.
The survey's aim was to count all visibly detectable feral donkeys on the Station. The average flight speed was 50 km/h (range 40 to 60 km/h) at an average height of (approximately) 200 feet (≈ 60 metres) above the ground. The speed and height of the survey took account of the terrain, vegetation and climatic factors (including the position of the sun). The distance between transects varied between 1 and 3 kms and the total survey length was 638 kms. Transects were closer in the Project Area due to the denser vegetation cover. Outside of the Project Area, vegetation was sparser leading to better visibility such that the transects could be more spread. The data included the flight path together with the spatial location of each donkey detected.
The initial survey recorded 72 donkeys. Given the complexity of the terrain (ridges, plateau and gorges), Dr Zabek regarded the 72 donkeys as being the minimum population 'known-to-be-alive' at the Station. However, in her view, more donkeys were likely to be present. This was due to donkey dung and walking paths observed in the north-west portion of the Station, near the Salmond River (and well outside the Project Area).
Shortly after this survey, on 9 August 2021, the Respondent issued the Control Notice initially requiring the culling of 72 donkeys 'for the purpose of controlling the declared pest'. The Control Notice outlined the requirements for both aerial and ground shooting, as well as instructions on where carcasses may be left to biodegrade.[30]
[30] Exhibit 1, page 3.
The Applicant subsequently lodged the Review on 21 August 2021. The parties then engaged in mediation and further discussions.
The second survey
The Respondent surveyed the Station again in December 2022. Dr Zabek participated in this survey as the fourth observer. The survey methodology was as per the first survey but included more intense surveying (closer transects) south of the Project Area (the controlled management zone) along the Stock Route Valley as well as an area along the Chamberlain River Valley, immediately west of the Station. The total transect length of the survey was 658 kms.
34 donkeys were observed in the Project Area, with one donkey observed 7 kms south in the controlled management zone. Again, Dr Zabek regarded this to be the minimum population 'known-to-be-alive' at the Station. The second survey observed numerous old and fresh paths in the north-west and central-north moieties of the Station, but there was a question as to whether the tracks were from donkeys or cattle.
Kachana's aerial survey
On the same day that the DPIRD conducted its second survey, Robert (Bobby), the Station manager, conducted his own aerial survey, limited to the southern part of the Stock Route Valley, and the northern end of the Tablelands Station (the station immediately south of the Station).
During his survey, Robert observed more than double the 35 donkeys that were recorded by the Respondent. He explains this on the basis that he has a better understanding of the landform and terrain, as well as the movement of donkeys.
The third survey
The DPIRD conducted a further aerial survey in October 2023. This survey was more focused on the Project Area and the areas immediately south and west (the Stock Route and Chamberlain Valleys). The survey transects were closer (750 metres).
Dr Zabek explains that the third survey was prompted by the culling data that had recently been provided to the DPIRD by the Applicant. That data was to the effect that 98 donkeys had been culled between 2021 and 2023.
The survey detected 117 donkeys within the Project Area and the Stock Route Valley. As with the earlier surveys, Dr Zabek regards the 117 observed donkeys to be the minimum population 'known-to-be-alive' at the Station.
As a result of this survey, on 15 April 2024, pursuant to an order allowing it to reconsider its decision under s 31 of the SAT Act, the Respondent issued a revised Control Notice requiring the culling of 117 (as opposed to 72) donkeys.
The Control Notice, as amended, provided that the 117 donkeys were required to be culled as from 15 April 2024. The Applicants were also required to provide a monthly report to DPIRD setting out details of the culling undertaken in the previous month including: (a) the date of any cull; (b) GPS coordinates of the culling; (c) the name of the person carrying out the culling; and (d) whether the cull occurred by aerial or ground shooting (together, the reporting measures).
By reason of s 31(3) of the SAT Act, the Control Notice issued on 24 April 2024 took effect as the decision the subject of the Review.[31]
[31] SAT Act, s 31(3).
The Respondent's case
The Respondent's case is that the requirements set out in the Control Notice are reasonable and necessary for the purposes of reg 27(4) of the BAM Regulations. The removal of 117 donkeys will achieve a sustainable reduction in their number and distribution and, as a result, will reduce the risk of spreading.
The Respondent submits that, in the circumstances of this case, the requirement to cull 117 donkeys is, in practical terms, no more than the duty to control that the Applicant is already subject to, in any event, by reason of s 30(3) of the BAM Act.
Moreover, the additional reporting measures are also reasonable in the circumstances.
Furthermore, the Respondent submits that compliance with the Control Notice would not place a significant burden on the Applicant.
The Applicant's case
The Applicant's case is that the feral donkeys at the Station are confined to the Project Area or, if they are found in the controlled management zone, they are either herded back to the Project Area or culled. Donkeys are not permitted elsewhere on the Station.
The Applicant says that the movement of donkeys is effectively controlled by the natural topography of the Stock Route Valley, including the Durack Ranges, which makes it difficult for donkeys to stray east or west out of the Project Area. The homestead is located at the northern end of the Project Area and the controlled management zone (south of the Project Area) is patrolled via periodic (quarterly) aerial surveys.
The Applicant further submits that it is not necessary, nor cost effective, for the donkeys to, in effect, be contained by fencing. Firstly, the donkeys in the home range are safe and content and therefore are disinclined to move. Secondly, as a matter of practicality, any fences would need to be removed and replaced following each wet season.[32]
[32] ts 267, 7 November 2024.
Accordingly, the Applicant's case, in broad terms, is that it is complying with the BAM Act in that it is adequately controlling the feral donkeys on the Station.
Robert's evidence
While our jurisdiction centres on making the correct and preferable decision on the Control Notice, the Applicant's approach to the management of donkeys does inform what is, ultimately, a discretionary decision. Accordingly, it is necessary to set out the Applicant's approach to the management and control of donkeys in some detail.
In this regard, the Applicant's primary evidence was from Robert, a stockman and licensed aircraft engineer. In addition, he is also a qualified pilot for both fixed wing aircraft as well as helicopters. He describes himself as Kimberley 'born and bred', having lived there for 31 years, including 19 years at the Station.
Robert manages the Station, including the controlled management zone. He explains that donkeys found in undesirable locations on the Station, get removed (shot). When required, Robert is responsible for culling donkeys.
One of the central themes of Robert's evidence, and the Applicant's case, is that the DPIRD, and the KRBA, are misguided in seeking to eradicate feral donkeys from the Kimberley, including the Station. Robert says eradicating any species is impossible, citing the cane toad as an example. He also observes that while feral donkeys are a declared pest in Western Australia, they can, and do, enter Western Australia via the unfenced border with the Northern Territory, which is only 120 kms east of the Station. For this reason, he says any quest to eradicate donkeys in the Kimberley is inutile.
The KRBA has historically allowed donkeys at the Station
For more than 30 years, there have been donkeys at the Station.
Robert explains that, for many years, the KRBA and the Applicant worked together to manage the donkeys. That is because when donkeys strayed south out of Ndaba Gorge (at the southern boundary of the home range) they would be shot by government shooters. The KRBA would then advise the Applicant of the number of donkeys it had culled.[33] Robert describes these arrangements, which ceased in 2017, as being informal.[34]
[33] ts 259, 7 November 2024.
[34] ts 258, 7 November 2024.
Until 2017 neither the KRBA nor the DPIRD took issue with Kachana allowing donkeys to remain in the Station's home range. While Robert says DPIRD's change in approach from 2017 was due to the Declaration, that is factually incorrect. Donkeys have long been declared as a pest in this State.[35]
[35] Refer [22] above.
Taking account of this background, Robert considers that the Respondent is now being heavy handed in its dealings with the Applicant, including in issuing the Control Notice.
Donkeys bring environmental and other benefits
Another key aspect of the Applicant's case, and Robert's evidence, is that the DPIRD should take its focus off the donkeys and instead consider the success that the Applicant has had in its land management practices at the Station. Robert was asked why donkeys are permitted to graze in the Project Area:[36]
KARL:Why are donkeys so important?
ROBERT:I like the donkeys because they will go into areas in our control management zone where the cattle readily won't go. And I've got, sort of - we're in the rangelands. We're not on great pastoral country. We're not on nice flat ground where it's even going, and you can drive around. We've got hills. We've got - we've got gullies, and we've got ranges. And whether we like it or not, about – on average, we get about a metre of rainfall. And with that much rain, we will grow grass. We will grow vegetation. Sorry, not necessarily grass, but we will grow vegetation. And in that landscape, I have really only two broad options to manage vegetation, and my options are herbivores or fire. And I do a combination of, but in - and - and - and - that - we also use the cattle for that. And - and - and I think, later, that, you know, from the environmental side, that will get spoken a bit too. But the - the donkeys in conjunction with the cattle - they're - they're different grazers. They - they graze on different plants differently. They impact on the environment differently. And if they're managed, their numbers and their behaviours managed, they - they - and we - I believe we have proven, and - and we - you know, there's science out there, not just in Australia but all over, that - that is verifying that. And - and we've got a bit happening locally now, which is great - to - to verify that. So yes, the donkeys are an integral part in our management strategy of the environment, and I don't - like I said, I don't have a – you know, it's - it's - it's - we're managing the impact that they're having on - on the environment to the extent that they are doing a - that they're doing good[.]
[36] ts 277, 7 November 2024.
The Applicant's position on the environmental benefits of allowing LFH to graze in the rangelands is supported by both Mr Russell Shaw and Mr Peter Curry, both of whom gave evidence on a gratis basis.
Mr Shaw, an experienced pastoral manager, explains that the 'excessive' number of donkeys he observed in the 1970s have now largely been removed, and while there are some donkeys remaining, in his view, they are effectively managed. Mr Shaw became aware of the Applicant's philosophy regarding LFH in 2021 and has carried out remote sensing to determine the condition of the rangelands at the Station.
Like the Applicant, Mr Shaw considers that donkeys have benefitted land and stock management practices in Northern Australia. He considers that donkeys can also be effective in managing wild dogs, which remain an issue in the Kimberley rangelands.
To the extent that donkeys may, on occasion, stray beyond the limits of the Station, Mr Shaw considers they will remain within their extended grazing range. He considers the occasional straying of donkeys to be no different from managed or feral cattle straying across what are, in effect, non-existent pastoral boundaries. Fencing of pastoral leases in the Kimberley is unrealistic due to the extent and nature of the geography.
Likewise, the evidence of Mr Curry, an experienced environment consultant, speaks to the potential environmental and bushfire benefits that may have resulted from the presence of feral donkeys in the Project Area.
How the Applicant manages the donkeys at the Station
As explained, until 2017, the KRBA was well-aware that there were donkeys present on the Station.
Since 2017, the Applicant has alone managed the donkeys at the Station, including, where required, culling. The Applicant's management program divides the Station into three distinct areas:
(a)the Project Area (home range);
(b)the controlled management zone (the buffer area); and
(c)the remainder of the Station.
In his evidence, Robert estimates that there are around 150 donkeys at the Station.[37] He considers that a donkey population of between 100 and 150 in the home range is appropriate.[38]
[37] ts 272, 7 November 2024.
[38] ts 276 - 277, 7 November 2024.
However, in saying that, he does not regard the exact number of donkeys as being important. He explained as follows:[39]
I have in my management never focused on an exact number of animals. I have a rough idea of what's in the area, and, like I said, I will adjust my - the numbers based on the impact that I see the animal doing to the environment. I don't really waste resources. It - it benefits me very little to have an exact number because in actual reality, it's impossible to get an exact number, so I've never really focused on it. I would know fairly - relatively accurate what numbers I would expect there, but I focus more so on the risks that they pose to the environment and to - to - and a negative impact - of the risk of negative impacts more so than the exact number. So I will look at amount of food that's available, you know. Like I said, rainfall, lack of rainfall, fires. All of those things will sort of dictate - like I said, I will generally do my reduction of numbers later in the season when food pressure starts to come on - starts to come on board or becomes - could become an issue. Obviously, I've got animal welfare obligations there as well, so I don't want a number that isn't - that I - that, you know, that the country can't support.
[39] ts 271, 7 November 2024.
The control measures employed by the Applicant are explained as follows. Firstly, donkeys are allowed to graze in the Project Area. Robert explains that donkeys in the home range do not associate predation with humans because they are left alone. If there is a need to shoot them, unless the entire group is to be culled, the shooting takes place away from other donkeys.[40] In their home range, donkeys will not generally be shot from a vehicle.[41] The donkeys in the home range are happy, safe and are left alone. As a result, Robert says they will stay in the home range unless impacted by other influences.[42]
[40] ts 270, 7 November 2024.
[41] ts 259, 7 November 2024.
[42] ts 270, 7 November 2024.
Secondly, Robert also says that, in practical terms, donkeys can only exit the Project Area by traveling south. The northern boundary is fenced close to the homestead. Robert explains that donkeys that jump the northern fence, so as to encroach on the homestead, are culled on the basis that 'they shouldn't be there'.[43]
[43] ts 259, 7 November 2024.
The natural ridges and terrain along the eastern and western boundaries of the Project Area prevent the donkeys escaping east and west through the rangelands. Robert says he has never seen a donkey east of the Project Area and to the west is the Durack Ranges. He has never seen a donkey go over the Durack Ranges, nor has he seen them travel through the gorges to the Chamberlain River Valley. Robert has not seen donkeys use either Ndaba Gorge or Impi Gorge to access the Chamberlain River Valley.[44]
[44] ts 266, 7 November 2024.
Thirdly, to the south are two buffer areas (termed buffer zone one and two) which, together, comprise the controlled management zone.[45] Donkeys found within this zone may either be herded back north to the Project Area or culled. During his patrols Robert might prompt them to move north. The further south he finds them, the more aggressive he is in his mustering.[46] However, if they keep moving south, they, put simply, 'don't come home'.[47]
[45] ts 260, 7 November 2024.
[46] ts 281, 7 November 2024.
[47] ts 267, 7 November 2024.
Robert's evidence on the management of the buffer areas was as follows:[48]
ROBERT:I don't fence the southern area again because the cost and maintenance of that fence would far outweigh and the effectivity of the fence wouldn't come close, so what I - what I do is we have a buffer zone in there an area where they can readily move into and graze that I monitor and actively discourage animals from being in there. As I said in the past, the donkey shooters were doing that. Now, I will do that. With more - further south the animals are, the more aggressive I will be. I will generally shoot the entire - well, shoot the entire population, regardless of what they are - mums, foals, you name it. Like, they're not - it's - it's - it - it - it doesn't matter. If they're there and I don't want them there, they're gone. Further to the northern edge of my buffer zone, I might be a little bit more selective. I might also go down there with a chopper and give them a bit of a hard time and a good scare and say, "Hey, fellows. This is not where you want to be", and - and, you, I have in the past sometimes shot a few individuals out of a family group and made sure the others were heading north at a great rate of knots and then left them, so, by and large, in their home range, the donkeys know, "Hey, if I'm up here we would be left alone. If we go down here we can get into trouble", and if they keep going south, they get in serious trouble. They don't come home. Like, it's - they're not telling their mates what's down there.
KARL:In the project area, is that shared between donkeys and cattle?---
ROBERT:Yes. Yes. There is cattle. I will sometimes put the cattle in an out of that area - - -
KARL:Yes?---But there is - there is cattle throughout Kachana.
ROBERT:Yes. So I've - you know, sometimes when I muster the cattle out of that area, the donkeys in there are that and - well, they're that quiet, I literally muster the cattle between donkeys, so if I'm even in my helicopter, on foot, we just ignore the donkeys, move the cattle out, move the cattle in. The more quieter animals at home Dad calls them in and out of the area. Like. it's - it's - it's - they're not really an issue to me when I'm when - when I'm mustering, just say.
[48] ts 267 - 268, 7 November 2024.
Robert surveys the controlled management zone by way of aerial patrols, which he undertakes approximately each quarter (being once every three months). However, he is on the Station all the time and is, therefore, regularly observing the Project Area and controlled management zone. For example, he might fly over the controlled management zone while undertaking other duties, such as mustering either on the Station or another pastoral lease (as he is a helicopter mustering pilot),[49] so can observe what is happening.
[49] ts 264, 7 November 2024.
When conducting the quarterly patrols, he focuses on areas where he is expecting donkeys to be, namely the Project Area and the controlled management zone.[50] In doing so, he is looking for evidence of risks that the donkeys are posing in that area, and to get a general understanding of what is happening. He does not focus on areas where he has not seen donkeys. Rather, he goes to the areas where the donkeys are likely to be.[51]
[50] ts 282, 7 November 2024.
[51] ts 262, 7 November 2024.
In terms of his observations, in his view, as explained above, the donkeys in the home range are settled, calm and do not fear humans. As an example, he can muster cattle through the donkeys in the home range.[52]
[52] ts 268, 7 November 2024.
Robert explains that, in general terms, donkeys found outside of the Project Area and the controlled management zone will, in effect, be 'dealt with'.[53]
[53] ts 272, 7 November 2024.
In terms of its land management practices, Robert does consider that Kachana needed to 'lift its game', in terms of formalising its management of donkeys at the Station.[54] That is why the Applicant now employs terms such as the 'Project Area' and the 'controlled management zone' and his quarterly observation surveys are now tracked and recorded, to allow these management practices to be independently verified.[55]
[54] ts 260, 7 November 2024.
[55] ts 260, 7 November 2024.
In cross-examination, while he agreed he is not an expert in donkey behaviour or genetics,[56] Robert says his evidence is based on his personal observations. For that reason, he considers that he can comment specifically on the behaviours of the donkeys on Kachana.[57]
[56] ts 283, 7 November 2024.
[57] ts 283, 7 November 2024.
The Applicant's case in the context of the reviewable decision
As we have explained, the reviewable decision in this matter is the Respondent's decision to issue the Control Notice.
Having heard this matter over four days, and listened to the evidence that Kachana has assembled, which we have briefly canvassed above, while the Applicant certainly does challenge the decision to issue the Control Notice, that is but an aspect of its much broader campaign to persuade the DPIRD, and the KRBA, and now the Tribunal, of what it regards as its success in utilising feral donkeys as an aspect of its land management practices at the Station. That is to say, the case put forward by Kachana is much wider than the reviewable decision giving rise to the Review.
However, this broader debate is not a matter for the Tribunal. The question of whether the presence of LFH may deliver environmental and other benefits to the Kimberley rangelands sits well outside the scope of the reviewable decision. Likewise, the negotiations between the parties, and the MoU. The fact that the parties have in the past discussed whether acceptable arrangements could be agreed to allow donkeys to remain on the Station, is no longer relevant in the context of the Control Notice and the associated Review.
For this reason and leaving to one side Robert's evidence on how he patrols for donkeys in the Project Area and the controlled management zone, much of the evidence relied upon by the Applicant is, we find, not directly relevant to the Review.
That is so because the DPIRD does not frame its case on the basis that donkeys are causing environmental degradation at the Station. Quite understandably, it has simply not engaged with that aspect of the Applicant's case. Rather, its case is simply that Kachana has not sufficiently complied with its obligations under the BAM Act (namely reg 27(4)(b)) to control the number or distribution of feral donkeys on the Station.
Accordingly, however much we might consider that the land management practices being employed by Kachana may warrant further consideration and investigation, we have no mandate to engage in, or meaningfully contribute, to that broader debate. It is simply not our role.
The reviewable decision before us begins, and ends, with the question of whether the Control Notice should be affirmed, varied or set aside. That question is to be resolved by focusing on whether it can be said that the Applicant is effectively controlling feral donkeys for the purposes of the BAM Act. If we so find, the Control Notice might well be regarded as superfluous.
It is necessary that we expressly mark out the precise metes and bounds of the Review because the Applicant's broader campaign is premised, at least implicitly, on an argument that we should not regard feral donkeys as being a pest at the Station. That is also an argument which we cannot engage with.
The Declaration, the effect of which was to make feral donkeys a declared pest across the State, was an executive decision made by the Minister under the BAM Act which cannot be reviewed in the Tribunal.
Moreover, the relevant statutory regime for agricultural biosecurity in this State, including the control of pests, does not recognise the Station's boundaries. While the Declaration does not operate to fetter our discretion, the simple fact, and one which we cannot ignore, is that feral donkeys are, and have long been, a declared pest across the State. Furthermore, the State Government has long-established programs, the effect of which require donkeys to be controlled, including by way of aerial culling.
Nevertheless, while we have no mandate to engage in issues such as the environmental and other benefits of allowing donkeys to graze in the rangelands, we are not blind to the fact that Kachana, supported by experts such as Dr Arian Wallach,[58] Mr Curry and Mr Shaw, firmly believe that it is an emerging land stewardship concept that ought not be dismissed and, indeed, has potential for broader application.
[58] Dr Wallach has published academic papers on the potential benefits of donkeys and other LFH. However, she was ultimately not called by the Applicant.
And, it must be said, as we will come to, we can sympathise with the position the Applicant finds itself in. It has long allowed donkeys to graze in its home range, which, while perhaps not ratified or approved in any formal sense, was at least tacitly tolerated by the relevant agencies. However, for reasons which it seems the Applicant is still trying to understand, there has been a change in philosophy or approach taken by the KRBA and the DPIRD following its initial aerial survey in 2021, that resulted in the issuing of the Control Notice.
Hence, while we are required to proceed on the basis that feral donkeys are a declared pest, we do understand why the Applicant places the emphasis it does on seeking to provide a rationale for allowing, and continuing to allow, donkeys to remain in the Station's home range.
The evidence of Dr Zabek
Dr Zabek is a Senior Development Officer at the DPIRD dealing with Invasive Species and Environmental Biosecurity. In her role, she advises the State Government on effective evidence-based management options for LFH in Western Australia.
Dr Zabek's qualifications include a bachelor's degree in equine science as well as a PhD in wild equid ecology from the University of Queensland.
The Respondent's case is largely framed around the opinions of Dr Zabek set out in her witness statement[59] and her two reports dated 31 March 2023[60] and 16 January 2024[61] prepared as part of the Review.[62] Dr Zabek gave oral evidence extending over three hearing days which, in effect:
(a)provides a detailed explanation of the rationale for, and the undertaking of, the aerial surveys (which are explained above at [56] to [71]) conducted by the DPIRD;
(b)explains the data that she has relied on to form an opinion on feral donkeys, including their tracked locations; potential grazing range, movement habits and other natural tendencies; and, in doing so; and
(c)critiques the effectiveness of the Applicant's management of donkeys at the Station.
[59] Exhibit 8.
[60] Exhibit 9.
[61] Exhibit 10.
[62] Dr Zabek's reports are found in Volume 4 of Exhibit 1.
Dr Zabek visited Kachana in 2018 and interviewed Chris. At that time, Chris advised that there were at least 100 donkeys on the Station, but the exact number was unknown.[63]
[63] Exhibit 9, page 4.
As we have explained, Dr Zabek co-designed, but did not participate in, the first aerial survey in December 2022 where 72 donkeys were observed either within the Project Area, or just beyond its eastern fringe. Dr Zabek notes that, during that survey, donkey dung was detected in the Salmond River area, approximately 10 kms north-west of the Project Area.[64]
[64] Exhibit 9, figure 1.
Dr Zabek participated in the second aerial survey in December 2022, where 34 donkeys were observed. One donkey was also observed approximately 7 kms south of the Project Area, within the controlled management zone.[65]
[65] Exhibit 9, figure 3.
The third aerial survey in October 2023 observed 117 donkeys, with many again located at or beyond the eastern fringe of the Project Area. Two donkeys were south of the Project Area, one at its southern fringe and one approximately 4 kms away.[66]
[66] Exhibit 10, figure 5.
Dr Zabek has watched the DPIRD's 2021 interview with Chris. Having observed that interview, it was apparent to Dr Zabek that Kachana did not have in place any kind of formal arrangements as to how it managed donkeys on the Station.[67] During the interview, Chris said that Kachana had culled:
(a)25 male donkeys (Jacks) in late 2018 (including 23 in December 2018) in the south of the Project Area. However, Chris was unable to confirm whether the culled donkeys were from the home range such that the herd was spreading south, or whether the donkeys had strayed on to the Station; and
(b)four young Jacks in 2020 which were traversing the northern boundary of the Project Area.
[67] Exhibit 9, para 4.3.
On 12 November 2021, Kachana informed the Respondent that it observed 25 donkeys towards the southern boundary of the Station. Shortly after, on 25 November 2021, Kachana then advised that it had culled 23 donkeys (again mostly Jacks).
Dr Zabek assumes that the 23 culled donkeys were from the herd of 25 reported on 12 November 2021. The exact location of the cull was not provided but was said to have occurred in the northern part of the Tablelands Station, immediately south of the Station. Kachana did not advise whether the culled donkeys were from its home range or whether the donkeys were from elsewhere.
As we will explain further, Dr Zabek's overarching view is that the Applicant is not effectively controlling the donkeys at the Station to reduce their number or distribution or to prevent or contain their spread.
Her view of the evidence is that the unfenced Project Area (which has an area of 26 km2) is not sufficient to passively contain the donkeys on the basis of Kachana's land management practices, including its natural topography, the northern fence near the homestead, salt licks[68] and the management of the southern buffer zones.
Kachana's removal of donkeys between 2018 and 2023
[68] A 'salt lick' is either a natural or artificial deposit of salt and other minerals that animals lick for essential nutrients. Salt licks provide essential minerals for herbivores as a source of sodium, calcium, phosphorus and trace elements.
As part of the Review, Kachana provided detailed information on the control measures, namely culling, it had undertaken at the Station between 2018 and June 2023. That information is set out in the table below.
Date/year Donkeys shot per year (n) Comments 2018 23 Male donkeys shot to the south of the Project Area. It was not established whether the donkeys were from the home range or from elsewhere. 2019 0 No donkeys removed. 2020 4 Male donkeys removed while crossing the northern boundary of the Project Area. Original Control Notice issued on 9 August 2021 2021 23 Male donkeys removed somewhere from the Stock Valley Route within the northern part of the Tablelands Station. Whether the donkeys were from the home range or from elsewhere was not clear. 15/02/2022
18/02/2022
23/02/2022
21/08/2022
09/12/2022
19
2
10
2
6
Location and sex of culled donkeys not provided. 02/03/2023
25/05/2023
27/05/2023
16/06/2023
3
6
25
2
Location and sex of culled donkeys not provided. TOTAL 125
Therefore, based on the Applicant's evidence, it has culled 125 donkeys (with 27 being culled before the Control Notice and 98 after it was issued in August 2021). For this reason, the Applicant submits that, in effect, it has already complied with the Control Notice. However, from the evidence before us, at no time has the Applicant sought to withdraw the Review on the basis that it had, in practical terms, complied with the Control Notice.
The culling data provided by Kachana prompted the DPIRD to undertake the third, and last, aerial survey which post-dated the latest cull undertaken by the Applicant (two donkeys in June 2023). As explained, the third survey was conducted over a smaller area, with more intense surveying, of the Stock Route and Chamberlain River Valleys.
As has been set out, during that third survey, a total of 117 donkeys were observed both within the Project Area, but also in the controlled management zone.
Dr Zabek's analysis of the donkey population at the Station
Dr Zabek's opinion is that, by reason of the number of donkeys observed during the third survey in October 2023, and despite its removal of some 125 donkeys, Kachana did not taken steps effectively to reduce the number or distribution of feral donkeys between 2018 and 2023.
The Respondent is in no position to challenge Kachana's evidence as to its culling activities between 2018 and 2023. Accordingly, Dr Zabek has accepted Kachana's data as a basis for her most recent report in January 2024.[69] Kachana's evidence is that it has culled an average of 21 donkeys being culled per year between 2018 and 2023.
[69] Exhibit 10.
Robert's estimate of there being 150 donkeys has also informed Dr Zabek's population analysis.
Dr Zabek has assumed that there were 150 donkeys in 2018. It is to be recalled that in 2018, when Dr Zabek met Chris, he was uncertain about the number of donkeys that were on the Station but stated there was at least 100. In giving evidence, Robert estimated there were 150 donkeys.
As is set out in Figure 2 below, an average removal rate of 21 donkeys per year for 6 years would result in a 2023 donkey population of between 102 and 324, depending on the growth rate. If a very conservative growth rate of 10% was assumed, the population would be 102 as at 2023. However, a 25% growth rate would result in a 2023 population as high as 324.[70]
[70] Exhibit 10, page 6.
Dr Zabek stresses that it is unknown whether the donkeys that were claimed to have been culled by the Applicant were from its home range or elsewhere. If the donkeys were not from the Station, the donkey population would be 'considerably higher'.[71]
[71] Exhibit 10, section 4.1, page 6.
Dr Zabek also opines that the population growth rate of feral donkeys depends on a range of variables, including survival rates, the age of the first parturition, and length of the breeding cycle. In the absence of population management (or in the wake of a significant reduction in population), lack of predation, unlimited nutrition and low population densities, annual maximum feral donkey population growth rates have been reported to reach between 20 to 29%.[72]
[72] Exhibit 10, section 4.1, page 7.
Dr Zabek references a study of the Victoria River District in Northern Australia with low-density populations and in circumstances where food availability was not a limiting factor. In that study, the maximum finite rate of feral donkey population increases was between 23 to 28%.[73] Accordingly, in the context of the Review, Dr Zabek considers an estimated population growth rate of between 10 to 25% as appropriate.
[73] Exhibit 10, section 4.1, page 7.
Given the evidence that the Project Area is lush, Dr Zabek reasons that food availability is unlikely to be a limiting factor. Furthermore, the apparent preferential removal of Jacks by Kachana (based on its reported cull events), has likely led to a population imbalance, biased towards Jennys. As more females in a population give birth to more foals each year, Dr Zabek considers that this has likely increased the reproductive rate of the population, which, in turn, has accelerated the annual population growth rate.[74]
[74] Exhibit 10, section 4.1, page 7.
While the annual rate of population growth of feral donkeys at the Station is unknown, what is known is that in October 2023, the DPIRD observed 117 donkeys.
117 donkeys represent a considerably higher population than the more conservative estimates in her analysis of growth scenarios (such as 10%). In Dr Zabek's opinion, based on the known factors (a tendency to cull Jacks and a lush physical environment in the home range), the population growth rate at the Station 'could be as high as 20%'.[75] That being the case, the donkey population at the Station would exceed 230.
[75] Exhibit 10, section 4.1, page 7.
Accordingly, based on an average of 21 culls per year, in the context of what was observed during the third aerial survey, Dr Zabek is not at all satisfied that the Applicant's control measures have effectively reduced the number or distribution of donkeys at the Station. To the contrary, she considers that the donkey population is likely to be increasing or, at best, being maintained.[76]
[76] Exhibit 10, section 4.1, page 7.
Dr Zabek has also considered the efforts that will be required to reduce the number or distribution and to prevent or contain the spread of donkeys from Kachana over the next 10 years. Starting from a premise that there were 159 donkeys on the Station in 2023,[77] with an annual growth rate ranging between 15 to 20%,[78] Dr Zabek has then calculated the donkey population based on three different cull rates:
Scenario 1: removal of 21 donkeys per year, as per the Applicant's evidence;
Scenario 2: removal of 30 donkeys per year; and
Scenario 3: removal of 40 donkeys per year.
[77] The estimated population of 159 is based on what Dr Zabek regards as a conservative growth rate of 15%; premised on there being 150 donkeys on the Station in 2018. See also: ts 176, 6 November 2024.
[78] Dr Zabek explains that the annual growth rate of a population is not static, but will fluctuate based on inter alia environmental conditions, available resources, the reproductive status of a population, sex ratio, survival rates and control and management actions: Exhibit 10, para 4.2, page 7.
In each scenario, four different population growth rate scenarios were considered (10%, 15%, 20% and 25%).
In Scenario 1, at a very conservative growth rate of 15% per annum, the removal of 21 donkeys each year would result in a 2033 population of 153; meaning the existing population would be maintained. However, if a growth rate of 20% is assumed, the donkey population would almost double by 2033 (to 330).[79]
[79] Exhibit 10, section 4.2, page 8.
In Scenario 2, assuming a conservative growth rate of 15% per annum, the removal of 30 donkeys each year would slowly reduce the population such that all donkeys would be removed by 2032. However, if a growth rate of 20% is assumed, there would still be 50 donkeys at the Station in 2033.[80]
[80] Exhibit 10, section 4.2, page 9.
In Scenario 3, removal of 40 donkeys per year would considerably reduce the population, regardless of the assumed growth rate.[81]
[81] Exhibit 10, section 4.2, pages 9 - 10.
Dr Zabek also observes that there are other means by which the distribution of donkeys could be managed at the Station. Such measures may include any, or a combination, of the following strategies:
(a)containing the donkeys by fencing the Project Area so as to prevent the spread of donkeys away from the Station;
(b)domesticating the donkeys in accordance with the BAM (IMSA) Regulations. In doing so, all donkeys would need to be identified allowing their visible distinction, namely by branding. The Applicant would also need to demonstrate efforts to contain the donkeys (i.e. fencing);
(c)complying with the Control Notice by removing a minimum of 117 donkeys, which was the number 'known to be alive' as at the date of the third aerial survey (in October 2023). The removal of 117 donkeys would not eliminate the donkey herd, but would considerably reduce:
(i)the current population;
(ii)population growth looking forward; and
(iii)the biosecurity risk of donkeys, and/or their offspring dispersing away from the Station.
(d)removing 40 donkeys per annum for the next 5 years so as to gradually reduce:
(i)the number of donkeys on the Station;
(ii)the likely increase in the growth of the population; and
(iii)the biosecurity risk of donkeys, and/or their offspring dispersing away from the Station.
The Project Area
Dr Zabek is of the view that the Project Area (which has an area of 26 km2) is not of a sufficient such as to voluntarily 'confine' donkeys. To explore this issue, Dr Zabek tracked the movements of seven feral donkey herds in the Kimberley. This GPS data was made available via the KRBA feral donkey Judas program. The herds were tracked for an average period of 21 months (with a range of 2.6 to 40 months).[82]
[82] Exhibit 9, section 5.2, page 18.
The average home range (that is, how far they moved) for these herds was 173.6 km2 (with a range of 34.2 to 386.3 km2). Within four of the herds, some donkeys were culled, and Dr Zabek considers that this may influence the behaviour of the herd, such as to increase the geographic size of their home range.
However, three of the herds she studied were unaffected by culling. Within these three herds, the smallest recorded home range was 34.2 km2, nearly 10 km2 (being in excess of 30%) larger than the Project Area.[83] Dr Zabek is therefore of the view that donkeys need more space to roam and cannot be effectively contained within the Project Area.[84]
[83] Exhibit 9, section 5.2, page 18.
[84] ts 160, 6 November 2024.
Karl put to Dr Zabek that the controlled management zone, which is 25 km2 in area,[85] should be included in any assessment of the area of the Station's 'home range'. That is because, as per the Applicant's management practices, donkeys can be present in these buffer zones, so long as they return north to the Project Area; if they head further south, they are likely to be removed.[86]
[85] ts 238, 7 November 2024.
[86] ts 238, 7 November 2024.
Dr Zabek's response to this line of questioning was that, for two reasons, it does not change her view that the Project Area is too small to naturally contain the donkeys.[87] The first is that the Applicant's longheld view is that the donkeys are intended to remain in the home range. The second is that the fact that the donkeys are grazing further away from the Project Area means that they need more roam, and moreover, provides some evidence that the population may be growing.
[87] ts 238 - 239, 7 November 2024.
The average size of donkey herds removed from the Kimberley by the KRBA between 1994 and 2017, was 7.18 donkeys. If a donkey population within the Project Area of 150 is again assumed, Dr Zabek explains that the donkeys would form, in a social context, up to 22 different herds. Although feral donkeys are known to share overlapping home ranges, Dr Zabek considers it highly unlikely that all these herds would voluntarily, and equally, share the Project Area. At 26 km2, Dr Zabek explains that, in her opinion, the Project Area is not of sufficient size to accommodate even one of these donkey herd's home range.
Accordingly, Dr Zabek is of the view that in order to effectively control the donkeys within the home range, they would need to be restrained by a physical fence.
Dr Zabek also examined data from a group of donkeys which were tracked along the Chamberlain River (along the Stock Route Valley, approximately 60 kms south-west of the Station) (refer Figure 9 below). Again, this data was made available via the KRBA's Judas program. Analysis of the spatial data indicated that the group had a home range that was ≈ 300 km2.
Dr Zabek observed that the spatial data demonstrated that the group moved a considerable distance along the Chamberlain River and the Stock Route Valley, which is the same valley in which the movement of donkeys was reported by the Applicant in 2018 and 2021, and in which the Project Area is located.[88]
[88] Exhibit 9, section 5.2, page 19.
Dr Zabek also tracked the movements, again via GPS data from the Judas program, of eight groups of feral donkeys near the Station between 1999 and 2016. That data, shown in Figure 10 below, clearly shows that the donkeys move considerable distances, far beyond the geographic area of the Project Area. Dr Zabek notes that groups did move out of the Project Area, notwithstanding the Applicant's land management practices which have been in place since 2002.[89]
Habitat considerations
[89] Exhibit 9, section 5.2, page 20.
As is set out in Table 1 and Figure 12 below, Dr Zabek also assessed the historical habitat of feral donkeys on the Station. This data was available, again, via the KRBA's Judas program. She assessed the spatial locations of 232 donkeys that were culled on the Station, and a further 235 that were culled near the Station, between 1999 and 2016. She has interpolated the locations of the culled donkeys against known rangeland habitats found on the Station, based on the Rangeland Land System Mapping (GIS 2018).[90]
[90] Exhibit 9, section 5.2, page 22.
Figure 12: Spatial representation of three main habitat types (H1, H2, and H3) within and beyond Kachana Station; blue line - Kachana station boundary, and red line - approximate location of the Project Area within habitat H2. Figure was created by the author from land and habitat data sourced from GIS 2018.
In short, there are three habitats (H1, H2 and H3) within the Station, with the Project Area (shown in red) being within Habitat H2. Dr Zabek calculated habitat use based on the location of the culled donkeys. In doing so, she referred to literature relating to resource selection by animals and the design, and analysis of, field studies thereof.[91] Dr Zabek's analysis of that data indicates that feral donkeys showed 'a strong preference towards high carrying capacity habitat', namely Habitat H1, located west of the Chamberlain River, about 3 kms west of the Project Area. Habitat H1 was utilised 3.5 times more than Habitat H2, and over five times more than Habitat H3.
[91] Exhibit 9, section 5.2, page 23.
Dr Zabek opines that the proximity of the donkeys preferred habitat (Habitat H1) may influence donkey movements, with the result that donkeys exit the Project Area through the hills, or through either Ndaba or Impi Gorges, towards their preferred habitat. Because their preferred habitat extends beyond the boundaries of the Station, the effect may be that donkeys are exiting the Station, spreading south and west.[92]
[92] Exhibit 9, section 5.2, page 23.
Habitat H2, in which the Project Area is located, is neither preferred nor avoided by donkeys. Accordingly, the data suggests that donkeys may occupy Habitat H2 if sufficient nutrition is available. However, because this habitat extends beyond the Station's boundaries, Dr Zabek considers it unlikely that donkeys will voluntarily remain within the Project Area.
This is evinced, she considers, by the locational data of the 235 donkeys that were culled beyond the Station's boundaries which suggests that donkeys were utilising the H2 habitat along the Stock Route Valley, notwithstanding the Applicant's land management practices. Habitat H3 was generally avoided by donkeys.[93]
The natural behaviours of donkeys
[93] Exhibit 9, section 5.2, page 23.
Dr Zabek further observes that the movement, and therefore the home range size, of donkeys is influenced by 'numerous and complex natural behaviours'.[94] The availability of nutrition is not the sole factor. Examples of natural behaviours include the dispersal of sub-adults from natal groups; exploratory or territorial behaviours of adult Jacks during breeding seasons; temporary dispersal of adult Jennys to give birth; the utilisation of hilltops to avoid insects or to detect danger, or to seek shade or shelter during harsh environmental conditions.[95]
[94] Exhibit 9, section 5.2, page 26.
[95] Exhibit 9, section 5.2, page 26.
Dr Zabek explains that:
Seasonal resource distribution, habitat size, topography, different seasonal use of habitats within the home range, or spacing of individuals both within and between groups all affect the distribution of female and male donkeys across the landscape. … In addition, donkey groups generally remain cohesive over a period of time, but they rarely form permanent associations[.][96]
[96] Exhibit 9, section 5.2, page 26.
The available evidence indicates to Dr Zabek that the availability of nutritious habitat within the Project Area has not been sufficient to contain the donkeys and will not prevent their spread to other parts of the Station, and beyond its boundaries.
In her view, the Project Area is simply not large enough to contain donkeys and that the Applicant's current approach is inadequate given that, in her view, a donkey could move out of the Project Area and through and beyond the controlled management zone (which is 12 kilometres in length) in a single day.[97] That being the case, the quarterly aerial patrols will not identify donkeys that have moved away from the Station in the intervening period.
Genetic study of feral donkeys
[97] ts 240, 7 November 2024.
Dr Zabek has also led a study into the genetic connectivity of feral donkeys across Western Australia, including the Kimberley. Her study was referenced in her initial report, but she was able to speak to the results at the final hearing. Dr Zabek explains that genetics 'don't lie' and they tell you how much 'genetic material is shared amongst the animals'.[98] The project allowed Dr Zabek to understand the 'kin lines' of donkeys between mothers and daughters; mother to grandmother, siblings and sub-siblings'.[99]
[98] ts 167, 6 November 2024.
[99] ts 167, 6 November 2024.
Dr Zabek explained that 50% of all the analysed samples confirm that immediate family members can be dispersed by as much as 50 kms. Dr Zabek postulates that data as against the size of the Project Area. She therefore queries the Applicant's contention that the donkeys within the Project Area do not disperse.[100] The study indicated that the dispersal of donkeys can extend for over 300 kms. She explains that:
What I'm learning from this study is that donkeys move much further than we give them credit for. They are quite connected across the entire Kimberley. They share the same genes. They - they form one genetic population and you can only form one big genetic population if you move freely across the landscape. And that is what those animals have been doing for generations.[101]
And:
[the genetics study] is another piece of evidence for me to strongly believe that animals in Kachana Station are not staying for the entire life all the time within a project area. If some animals will decide to stay, and I would agree that some probably would, because if you have females that are very strong with nutritional needs, because they are either all the time pregnant or having followed food that they have to feed, so they have a high nutritional needs, so I wouldn't - probably it's likely that they will probably stay within this good habitat that is claimed by the applicant to be so good and nutritious, but there's so many animals that constitute the population and when I said about my interest in population demography and age structure, that means that the female - pregnant females only constitute part of the population. There will be jacks, which the male donkeys that will venture further because they will be looking for resources, for mates, for females. There will be all the offspring that needs to go somewhere. So there's so much more happening in a population of those donkeys that we know or what we are told happens and this genetic study was just additional piece of evidence to make me believe that they disperse.[102]
Dr Zabek's assessment: Kachana's control measures are inadequate
[100] ts 167, 6 November 2024.
[101] ts 167, 7 November 2024.
[102] ts 168, 7 November 2024.
Dr Zabek explains that, even accepting the Applicant's evidence as to its culling activities between 2018 and 2023, the control measures being employed at the Station, namely natural geography and topography, nutrition within the home range, the provision of salt licks, self-herding and low-stress mustering, are not sufficient to contain feral donkeys within the Project Area and, moreover, within the boundaries of the Station. In her view, in order to adequately contain the donkeys, a fence is needed.[103]
[103] Exhibit 10, section 6, page 11.
If the Applicant is unwilling to adequately contain the donkeys, or domesticate them, the only other effective measure to control the population is to either remove the 'known-to-be-alive' number of donkeys (which as at October 2023, was 117) or to remove a sufficient number on an annual basis to progressively reduce the size of the population.[104]
[104] Exhibit 10, section 6, page 11.
Dr Zabek does not agree that the Applicant's primary management activity, being the dedicated quarterly aerial patrols, is sufficient to control either the number or distribution of donkeys. In her view, the aerial patrols that are conducted are not frequent enough nor do they cover sufficient terrain.[105] Dr Zabek is unsure whether it would be costeffective to undertake more frequent and broader patrols but is firmly of the view that the Applicant's current approach does not provide a satisfactory control response having regard to how far donkeys move over 365 days in all directions.[106]
[105] ts 240, 7 November 2024.
[106] ts 240, 7 November 2024.
Consideration
Application of the statutory framework
As we have set out, the applicable statutory scheme is directed to the management of biosecurity issues within Western Australia.
The application of that statutory scheme to feral donkeys arises by way of the Declaration and has the result that, leaving to one side the Control Notice, the Applicant is not permitted to keep or cultivate feral donkeys and is required to report their presence, or suspected presence.
Furthermore, by reason of s 30(3) of the BAM Act, the Applicant is under a duty to take 'prescribed control measures' to control feral donkeys.
The Declaration specifies that feral donkeys have been designated as Category C3 under reg 7(1) of the BAM Regulations across the entire State. The Category C3 applies where the Minister is of the opinion that eradication of the declared pest is not feasible, but is necessary, to either alleviate the harmful impact of, reduce the number or distribution of, or prevent or contain the spread of, the declared pest.
As we have set out at [28] above, reg 27(1) sets out a number of control measures which are prescribed for the purposes of s 30(3) of the BAM Act. In our view, the prescribed control measures set out in reg 27(1) are to be read as being exhaustive.
In the language of Tobias JA in Castle Constructions Pty Ltd v North Sydney Council,[107] reg 27(1) has an appearance of exhaustiveness as to the control measures that may be employed in the context of a declared pest for the purposes of s 30 of the BAM Act. This is reinforced by reg 27(4), set out below, which provides that only the control measures specified in reg 27(1) are to be deployed to control a declared pest.
[107] Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; (2007) 155 LGERA 52 [55(h)]; see also Puma Energy Australia and City of Cockburn [2016] WASAT 36; (2016) 89 SR (WA) 1 [46].
Accordingly, in our view, the statutory scheme does not recognise the Applicant's arrangements, such as the maintenance of the Project Area, and the operation of the controlled management zone, as acceptable control measures for feral donkeys.
Regulation 27(4) of the BAM Regulations
By reason of reg 27(4), in the context of the Category C pests, the Applicant 'must take such of the control measures specified in [reg 27(1)] as are reasonable and necessary to':
(a)alleviate the harmful impact of the declared pest in the area for which it is declared; or
(b)reduce the number or distribution of the declared pest in the area for which it is declared; or
(c)prevent or contain the spread of the declared pest in the area for which it is declared.
Contrary to the Applicant's submissions,[108] in our view, reg 27(4) is not to be construed as applying disjunctively, notwithstanding the use of the word 'or'.[109]
[108] ts 309, 11 December 2024.
[109] Interpretation Act 1984 (WA), s 17.
In the context of the applicable statutory scheme, we read the requirements in sub regulation (4) as each requiring the taking of reasonable and necessary steps. There may be instances where all three sub regulations are engaged. That is, in order to meet the requirements of s 30(3) of the BAM Act, it may be 'reasonable and necessary' to carry out control activities for the purposes of any or all of the circumstances identified in (a), (b) and/or (c).
To read reg 27(4) otherwise would be to ignore the intent and purpose of the BAM Act which is, relevantly, to take reasonable and necessary steps to control declared pests.[110]
[110] Interpretation Act 1984 (WA), s 3(1)(c).
In this instance, the Respondent submits that sub-regulations (b) and (c) are engaged in that reasonable and necessary control measures are needed to both 'reduce the number or distribution or feral donkeys' and also to 'contain [their] spread'. We accept the Respondent's submissions on the construction of reg 27(4) of the BAM Regulations.
The DPIRD is not pressing for donkeys to be eradicated
The Applicant submits, in effect, that the DPIRD is interpreting reg 27(4) to require it to pursue eradication of what is (in effect, 'only') a Category C pest.[111] For the following three reasons, we do not accept that submission
[111] ts 38 and ts 50, 5 November 2024.
Firstly, we note the decision before us arises from the Control Notice, and not the overarching duty created by s 30(3) read together with reg 7(1) and reg 27 of the BAM Regulations. Accordingly, the Control Notice requires specified actions to be undertaken. It does not, by its terms, require the Applicant to seek to, as it were, eradicate donkeys on the Station.
Secondly, the duty to take the control actions identified in reg 27(1) so as to give effect to reg 27(4), must be 'necessary and reasonable'. The ordinary meaning of the words 'necessary' and 'reasonable' in reg 27(1) are directed to matters of context. That is, what control actions are necessary and reasonable will depend on the circumstances in question.
Thirdly, the evidence of Dr Zabek, which we accept, is that the cull required by the Control Notice will not result in donkeys being eradicated on the Station, especially taking account of the effluxion of time since the last aerial survey in October 2023.
Our key findings
We find that Dr Zabek was an impressive witness. She is highly credentialed, experienced and has the requisite expertise to offer opinions and insights into the behaviour of LFH in the Kimberley rangelands, including feral donkeys. Dr Zabek amassed a wide range of evidence from the KRBA, and elsewhere, that has led to, and supports, her view that the Applicant is not adequately controlling the donkeys at the Station in a manner which aligns with the intent of the BAM Act.
We also find Dr Zabek gave her evidence openly, candidly and most importantly, impartially. We had every sense that her evidence was directed to assisting the Tribunal make the correct and preferable decision.
That is not to say that we reject Robert's evidence as to the land management practices that are being employed at the Station. Robert struck us as a forthright and honest witness who, we accept, has long had experience in dealing with donkeys both at the Station and in the Kimberley rangelands generally.
Nevertheless, as we come to set out our findings, we proceed, as we must, on the basis that feral donkeys are a declared pest under the BAM Act. As we have also explained, the Review is not an inquiry into whether allowing donkeys to graze in the rangelands is a land stewardship concept that may bring about a range of environmental and other benefits. By reason of the Declaration, the Applicant is under a duty to control donkeys. That duty applies regardless of the Control Notice and the Review.
In broad terms, we accept the evidence of Dr Zabek, which was not seriously or meaningfully contradicted by the Applicant. Accordingly, our detailed findings are as follows:
(1)The Applicant is not reducing the number and distribution of feral donkeys. It has not complied with its obligation to control donkeys at the Station in a manner which accords with the BAM Act and BAM Regulations. Maintaining a population of up to, on Robert's evidence, 150 feral donkeys, is, of itself, hardly consistent with the underlying fact that they are a declared pest that must be controlled and are not permitted to be kept.[112]
[112] BAM Act, s 23.
Leaving to one side the Control Notice, the Applicant is, we find, plainly not taking reasonable and necessary control measures to control the number and distribution of feral donkeys as required by reg 27(4)(a) of the BAM Regulations.
(2)Feral donkeys are at risk of spreading from the Station. The Applicant is not effectively taking action to prevent or contain the spread of donkeys for the purposes of reg 27(4)(c) of the BAM Regulations. While we accept that the Review has prompted it to take steps to improve and formalise its management approach to donkeys, for the reasons set out below, we do not consider these arrangements to be adequate:
(a)we are satisfied, and we find, that the natural home range of donkeys extends well beyond the geographical area available in the Project Area. The data from tracked donkeys referred to, and opined upon, by Dr Zabek demonstrates that donkeys can travel long distances and that a home range can be up to ≈ 400km2. The genetic study into feral donkeys headed by Dr Zabek only reinforces this view. We agree with Dr Zabek that the genetic study supports a conclusion that only some of the donkeys will stay at the Station for their lifetime. For a range of reasons, there will be donkeys that leave the Station.
(b)in the tracked donkey herds studied by Dr Zabek, in herds where there was no culling, the smallest recorded grazing range was 30% larger than the Project Area. While the Station's home range may indeed be lush, such that many of the donkeys are settled and satisfied, it is not in contest that donkeys can and do move beyond the Project Area. That is, of itself, evinced by the need for the controlled management zone;
(c)assuming, consistent with Robert's evidence, that there are 150 donkeys at the Station, there would be up to 22 different social groups present. Based on Dr Zabek's analysis, we consider it unlikely that 22 different herds would voluntarily share the Project Area on a permanent basis.
To the contrary, the Project Area would, we find, become a contested space leading to the spread and distribution of some donkeys away from the Project Area. That is especially so given that the Applicant's culling is targeted towards male Jacks meaning the donkey population at the station is not gender balanced, also likely leading to an increased rate of population growth given the population bias towards Jennys;
(d)the Project Area comprises habitat that is not preferred by donkeys. The habitat analysis undertaken by Dr Zabek indicates the Project Area comprises H2 habitat which is not favoured by donkeys. It is habitat that is found across approximately one third of the Station. The location of donkeys culled between 1999 and 2016 confirms the presence of donkeys beyond the Project Area, notwithstanding the Applicant's land management practices;
(e)the targeted patrolling of the controlled management zone approximately every 90 days is not sufficient given Dr Zabek's opinion, which we accept, that donkeys could travel through and beyond the zone in a single day. Nor are we satisfied that Robert's incidental observations of the Station and, in particular, the controlled management zone, at other times is sufficient for us to be satisfied that the Applicant is effectively controlling the risk of donkeys exiting the home range.
To the contrary, we are very concerned that while Robert is doing his absolute best to manage the distribution and spread of donkeys, the quarterly surveys are not frequent enough. In our view, donkeys are well capable of leaving the Station between these patrols;
(f)the culling of 125 donkeys between 2018 and 2023 has not sufficiently controlled the donkey population at the Station. That is evident by reason that, despite these controls, the third aerial survey undertaken by the Respondent in October 2023 observed 117 donkeys. As explained by Dr Zabek, this represents the minimum 'known to be alive population'. There would be other donkeys that were not able to be observed. Robert agreed that donkeys can be difficult to spot from the air;[113] and
(g)the Applicant's culling of an average of 21 donkeys a year is not aggressive enough to manage the donkey population in a manner that complies with the purpose and intent of the BAM Act. With an average of 21 donkeys being removed per year, unless the growth rate proves to be very conservative (15% or less), the donkey population is likely to grow.
However, if there were 150 donkeys at the Station in 2018, the fact that 117 donkeys were observed in October 2023, almost 6 years later, inclines us to find that the population growth rate has not been at the more conservative end. If a growth rate of 20% is assumed, the donkey population will be growing in what is, as we have explained, a home range that is smaller than the natural home range of donkeys. In so finding, we accept Dr Zabek's view that the growth rate for the donkey population at the Station is, indeed, likely to be as high as 20%.[114]
(3)In circumstances where we have found that the feral donkeys on the Station are not reducing in number or distribution, and their spread is not being adequately controlled, the Control Notice is both a necessary and reasonable response in the context of the applicable statutory scheme established by the BAM Act and the BAM Regulations.
[113] ts 282, 7 November 2024.
[114] Refer [150] above.
Disposition
In our view, taking account of our key findings above, the correct and preferable decision as at the time of the decision on the Review is to affirm the Control Notice.
As we have explained, we accept the evidence of Dr Zabek and find that the measures that are being undertaken at the Station are not sufficient to effectively control the number, distribution and spread of the feral donkey population that has long existed at the Station.
Accordingly, the Control Notice is required to specifically dictate the number of donkeys that must now be removed. It is necessary and reasonable because the Applicant has not, and is not, complying with its duty to control the number, distribution and spread of what is a declared pest under s 30(3) of the BAM Act.
Although we could, we are not minded to vary the decision under review so as to mandate an annual cull over a number of years. We are of the view that action needs to be taken now to address this issue. Moreover, as Dr Zabek explained, requiring, for example, 40 donkeys to be culled over 5 years results in more animals needing to be shot.[115] Like Dr Zabek, in order to be as humane as possible, we prefer to minimise the culling by instead requiring compliance with the Control Notice.
[115] ts 180, 6 November 2024.
While we can appreciate that the Applicant has long allowed donkeys to graze in the rangelands in the Station's home range, and that for an extended period, this practice appears to have been tolerated by the KRBA and the DPIRD, the simple fact is that feral donkeys are a declared pest. While our decision as to whether to affirm or otherwise the Control Notice is discretionary, we are unable to put to one side the fact of the Declaration and the responsibilities on landowners that flow from that.
While it is not for us to justify or defend the Declaration, as is set out in the LFH Strategy, it is plain that LFH are regarded as a threat to inter alia the economic output of the pastoral industry, given that LFH and cattle compete, as it were, for the same grazing areas. In saying that, we do acknowledge the Applicant's evidence that feral donkeys graze in areas of the rangelands that cattle cannot access. We will say a little more about this shortly.
We should also note that that time has moved on. The last aerial survey of the Station by the DPIRD occurred in October 2023 where 117 donkeys were observed. Based on the evidence of Dr Zabek, unless control measures have been employed by the Applicant in the meantime, the donkey population is likely to have grown further. The point being that compliance with the Control Notice was never intended to, and will not, eradicate donkeys from the Station.
It is also apparent to us that, going forward, should the Applicant wish to keep and retain feral donkeys, it must, as it were, persuade the KRBA and the Respondent that it can effectively manage and control the number or distribution of the donkey population. As we have found, the current informal arrangements employed by the Applicant to date have not been sufficient in that regard, a point which Robert fairly noted to be the case.
For whatever reason, the informal arrangements that led to the DPIRD and the KRBA, in effect, tolerating the presence of donkeys at the Station ceased long ago. The Applicant has been aware of this for a number of years now. If the Applicant is serious about retaining donkeys, it must commit to a more rigorous and transparent set of arrangements that provide a level of comfort to the KRBA and the Respondent, who manage and safeguard the broader interests of the pastoral industry, that the donkey population will not:
(a)grow unchecked and uncontrolled; and
(b)disperse from their home range.
In the background of this Review, it is clear that the Applicant has, at times, buried its head in the sand in terms of appreciating the fact that the arrangements that had been tolerated for a period of time, could no longer be allowed to continue unchecked and that more aggressive control of the donkeys was required.
In July 2021, the KRBA/DPIRD tried to discuss possible arrangements with the Applicant on this very question, but the Applicant simply chose not to engage. It is therefore unsurprising that a Control Notice was ultimately issued.
Final comments
Before we conclude, we wish to observe that it may well be worthwhile for the DPIRD and the KRBA to consider closely, and perhaps even partner with, the Applicant in exploring what has been the effect of allowing donkeys to graze in the rangelands.
While the possible environmental benefits of LFH is not an aspect of the Review, as we have stated, we are not blind to the opinions that were offered which support the Applicant's philosophy on LFH. And, it must be said, while the KRBA speaks of its success in its long-running program to cull LFH in the rangelands, it is almost certainly the case that land management practices have moved on since 1978, when the donkey culling program in the Kimberley region commenced.
However, in saying that, we do observe that the evidence, including environmental evidence, that was put forward by the Applicant in this case contained much anecdotal opinion, but little specific data. For example, given that cattle and donkeys intermingle in the rangelands, how can one be sure that the lush environment within the home range is due to the presence of donkeys. While we have seen that studies might be progressing in that regard, there appears to be little available data at this time.
Nevertheless, and notwithstanding the case put forward by the Applicant, the simple fact is, plainly, not all pastoralists value donkeys in the same way the Applicant does. The Applicant has long chartered its own course in this regard but, as we have found, is not doing enough to control the number, distribution and spread of what is a declared pest from the Station.
We find that the correct and preferable decision is to affirm the Control Notice (including the reporting measures) and to dismiss the Review. The parties should confer and prepare orders in these terms.
Orders should also be prepared which address the manner in which the Control Notice will be carried out, by reference to the 'Revised Measures Proposed by the Respondent' which were filed on 15 November 2024 but adjusted to take account of the date of the publication of these reasons.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
27 OCTOBER 2025
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