Tasmanian Conservation Trust Inc v State of Tasmania

[2000] TASSC 60

[2000] TASSC 60

CITATION:       Tasmanian Conservation Trust Inc v State of Tasmania [2000] TASSC 60

PARTIES:  TASMANIAN CONSERVATION TRUST INC
  v
  STATE OF TASMANIA

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Original
FILE NO/S:  M76/2000
DELIVERED ON:  6 June 2000
DELIVERED AT:  Hobart
HEARING DATES:  10 April 2000
JUDGMENT OF:  Underwood J

CATCHWORDS:

Environment Law - Legislation generally - Other States and Territories - Nature reserves - Management plans - What management objectives authorised by statute.

National Parks & Wildlife Act 1970 (Tas), ss3, 21 and Sch4.
Aust Dig Environment Law [5]

REPRESENTATION:

Counsel:
             Applicant:  L K Wall
             Respondent:  T J Ellis
Solicitors:
             Applicant:  Wallace Wilkinson & Webster
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2000] TASSC 60
Number of Paragraphs:  26

Serial No 60/2000
File No M76/2000

TASMANIAN CONSERVATION TRUST INC v STATE OF TASMANIA

REASONS FOR JUDGMENT  UNDERWOOD J

6 June 2000

1. The Forest Agreement (Land Classification) Act 1998 was proclaimed on 30 April 1999 (Statutory Rule 36/1999).  By virtue of that Act, s21(3), Sch12, PtII, approximately 130 hectares of land near Mt Read in the north-west of Tasmania was declared to be reserved land in the class of a nature reserve and was thereby taken to have been so declared under the National Parks & Wildlife Act 1970 ("the Act").  By the same Part of the same Schedule, the statute conferred the name "Lake Johnston Nature Reserve" upon this area of land.

1. The Act, PtIV, makes provision for the creation of management plans for the management of reserved lands.  Section 19(1) provides that "in accordance with this Part plans for the use, development and management of any reserved lands may be approved by the Governor".

1. A management plan for the Lake Johnston Nature Reserve was approved by the Governor-in-Council on 1 November 1999 and took effect on 24 November 1999, being seven days after publication of that approval in the Gazette.

1. The applicant contends that in part, the plan is not in accordance with the Act, PtIV, and seeks a declaration that, with respect to such part, the plan is invalid.

1. The Director of Public Prosecutions, who appeared as counsel for the respondent, did not contest the standing of the applicant to bring this application upon the basis that it made representations to the Minister with respect to the contents of the management plan for the Lake Johnston Nature Reserve within the nominated period following advertisement in accordance with the provisions of the Act, s20(3).

1. The contents of a management plan are regulated by the Act, s21.  So far as is material for present purposes, subs(1) provides:

"21 ¾ (1) A management plan for any reserved land ¾

(a)may indicate the manner in which the powers of the managing authority under this Act are to be exercised in relation to that land, or any part thereof; and

(b)may prohibit or restrict, in relation to that land, or any part thereof, the exercise of those powers; and

(ba)…

(bb)is to specify the purposes for which that land was reserved; and

(bc) if the management plan relates to a specified class of reserved land, is to specify any or all of the management objectives for that class of reserved land as the objectives for which the land is to be managed; and

(bca)if the management plan relates to a specified class of reserved land, is to specify the reasons for which any management objectives for that class of reserved land ¾

(i)   have been specified in the management plan as the objectives for which that land is to be managed; and

(ii)  have not been specified in the management plan as the objectives for which that land is to be managed; and

(bd)…

(bda)…

(be)may specify any condition that applies to the application of any management objective specified in the management plan; and

(bf)is to specify the manner in which the management objectives specified in the management plan are to be achieved; and

(c)may contain any other provisions that are authorized by this Act to be contained in that plan."

1. It is a rather curiously expressed legislative provision.  The core of it is that a management plan for reserved land must specify:

·   the purposes for which the land is reserved;

·   "any or all of the management objectives for that class of reserved land as the objectives for which the land is to be managed"; and

·   the manner in which the management objectives are to be achieved.

1. The Act, s3(1) and Sch4, define the meaning of the expression "management objectives" for each class of reserved land, some or all of which will be in a management plan.  In the case of a nature reserve, those objectives are:

"Nature reserve

The following objectives:

to conserve natural biological diversity;

to conserve geological diversity;

to preserve the quality of water and protect catchments;

to conserve sites or areas of cultural significance;

to encourage education based on the purposes of reservation and the natural or cultural values of the nature reserve, or both;

to encourage research, particularly that which furthers the purposes of reservation;

to protect the nature reserve against, and rehabilitate the nature reserve following, adverse impacts such as those of fire, introduced species, diseases and soil erosion on the nature reserve's natural and cultural values and on assets within and adjacent to the nature reserve;

to encourage cooperative management programs with Aboriginal people in areas of significance to them in a manner consistent with the purposes of reservation and the other management objectives."

1. The Lake Johnston Nature Reserve management plan specifies all the foregoing as management objectives and gives reasons for their inclusion as is required by the Act, s21(1).

1. Although the Act does not expressly forbid the inclusion in a management plan of an objective that is not listed in Sch4 as a management objective, it is clear from a reading of the whole of PtIV that that was the intention of Parliament.  Not to restrict the objectives of a management plan to one or more of the objectives specified by the legislation for each type of reserve would defeat the whole purpose of the Act, PtIV.  This construction is reinforced when it is noted that the "core parts" of s21(1) are expressed in mandatory terms, and that subs(2) only authorises the use and development of reserved land otherwise than in accordance with "the powers conferred by this Act", if expressly authorised to do so by each House of Parliament. 

1. On behalf of the respondent it was submitted that the list of management objectives set out in the Schedule is not exhaustive and attention was drawn to the Act, s20(8) which provides:

"(8)  Nothing in this section requires a management plan to specify all the management objectives for a class of reserved land as the objectives for which any specified reserved land is to be managed."

1. I do not see that subsection as doing more than stating that s20 does not require a management plan for reserved land to set out all the management objectives listed in the Schedule for that class of reserved land, ie, one or more will suffice.  The Act, s3(1) does not provide that "management objectives" include those objectives specified in Sch4.  It defines "management objectives" as meaning "the objectives specified in Sch4 …".

1. By the Act, s22 provision is made for the appointment of a managing authority for reserved land.  In the case of Crown land it is, in ordinary circumstances, the Director of National Parks and Wildlife.  Where there is a management plan, s23 imposes an obligation on the managing authority to manage the land in accordance with that plan.  The Act, s25B makes it an offence for a person to carry out what might loosely be described as a commercial venture on reserved land without a licence, and the following eight sections make provision for the granting, transfer and cancellation of "business licences" authorising the carrying on of a commercial venture on reserved land.  The Act, s26 authorises the Minister to grant a lease of reserved land in such terms and subject to such conditions as the Minister determines appropriate.  Finally, s29 confers a power to make regulations with respect to the care, control and management of reserved lands, including a power to make regulations imposing fines not exceeding 20 penalty units, for contraventions of those regulations.

1. The Act makes the management plan the key document for the management of reserved lands.  The plan is required to state the objectives sought to be achieved by the management of the land and the manner in which those objectives are to be achieved.  Thus, the plan governs the number, type and scope of business licences that may be granted.  It governs the number of leases that may be granted and the conditions that may be imposed with respect to such leases, and it governs the content of regulations enacted to control the use of reserved lands.

1. Clause 2.3 of the Lake Johnston Nature Reserve management plan lists "Specific Reserve Management Objectives".  They are described in the plan as being consistent with the general management objectives.  They might be described as particulars of the management objectives as defined by the Act, s3(1) and Sch4.  They are:

"Objectives

·   Conserve the stands of Huon pine.

·   Conserve flora species and communities of conservation significance, National Estate flora values, and natural flora diversity of the Reserve.

·   Conserve subfossil deposits.

·   Develop public understanding of the values and goals for management of Lake Johnston Nature Reserve.

·   Conserve natural landscapes and sites of geoconservation and National Estate significance in the Reserve.

·   Control and limit visitor access and facilities, on the basis of the precautionary principle, to that which is ecologically sustainable and does not threaten the values of the Reserve.

·   Enrich visitor experiences of Reserve values through education and interpretation."

1. The applicant joins issue with the last two objectives or particulars and contends that they are neither management objectives applicable to nature reserves as defined by the Act, nor a particular of any one such management objective.

1. Upon the same basis, the applicant contends that the following clauses in the Lake Johnston Nature Reserve management plan are ultra vires the Act:

"2.3  Specific Reserve Management Objectives

To maintain the Reserve values, and to achieve the Reserve vision, management objectives are set out below.  These objectives are fundamental to the long term protection of the Reserve.  The following management objectives are consistent with the general management objectives for nature reserves.  They elaborate upon and giving [sic] emphasis to them in the light of the particular features, circumstances, issues and values of the Lake Johnston Nature Reserve described or identified in this management plan.

Objectives

·   …

·   …

·   …

·   …

·   …

·   Control and limit visitor access and facilities, on the basis of the precautionary principle, to that which is ecologically sustainable and does not threaten the values of the Reserve.

·   Enrich visitor experiences of Reserve values through education and interpretation.

Policies

·   The Lake Johnston Nature Reserve is divided into two distinct management zones (refer to Map 2):

1     Controlled Visitor Access Zone

2     Controlled Scientific Zone

·   Visitor facilities and services in each Zone will be limited to those provided for in Section 5 of this management plan.

·   The boundaries of the Controlled Visitor Access Zone will be set at least ten metres from any existing live Huon pine or other significant features and may be varied at any time research indicates the need to provide further protection of Reserve values.

Table 1           Management Zones
zone & location	values & uses		objectives
Controlled Visitor Access Zone Stage 1 of this Zone covers a portion of the Lake Johnston Road and 20 metres either side as shown on Map 2. It	The Zone provides for a limited number of strictly controlled tour visitors accompanied by licensed guides, or visits for scientific, management, or infrequent special interest purposes approved by the Director. The only visitor facilities		-  protect, maintain and monitor environmental features and values; and -  provide low impact, low density, non-

provides for vehicle access and a visitor viewing area. Stage 2 provides for a potential pedestrian access route from the viewing area.	are located here and these are minimal, low impact and precisely sited to avoid any disturbance of the significant environmental features to which the Zone provides viewing access.	intrusive controlled visitor opportunities consistent with the above objective.
Controlled Scientific Zone The Zone covers all of the Reserve not included in the Controlled Visitor Access Zone	The Zone protects the significant values of the Reserve and excludes all access except for strictly controlled scientific or management purposes approved by the Director.	-  conserve the natural integrity of the Zone; -  protect, maintain and monitor the diversity of plant and animal species and communities; and -  provide for approved scientific research and monitoring.

4.4  Managing Visitor Impacts

…

Policies

·   All visitors, irrespective of the purpose of their visit, will comply with the relevant requirements of this management plan.

·   Visitor numbers, services and activities will be limited to those which are ecologically sustainable.

·   The best available and practicable technology will be used to protect environmental quality from human impacts.

·   Visitors will not be permitted unless they are part of a licensed tour group operation or are on an approved special interest, scientific or management visit (see 5.3).

·   All waste material and rubbish must be removed from the Reserve by those responsible for creating it.

·   Only if required for approved scientific or management purposes, transportable, self contained chemical toilets may be permitted within the Reserve.

·   Except for approved scientific or management purposes, no overnight stays will be permitted in the Reserve.

…

5.2 Interpretation and Education

…

Policies

·   Licensed tour operators will be required to provide high quality visitor information and interpretation to their clients.

·   Interpretation programs and facilities will limited [sic] to the Controlled Visitor Access Zone.

·   Teaching visitors and the general community about the Reserve's environmental and heritage values will be the focus of interpretation.

…

5.3 Access

Objectives

·   The objectives for access to and within the Reserve are to:

-restrict general right of access;

-allow controlled access for scientific, infrequent special interest, management and licensed tour group visitors to the reserve;

Policies

…

·   Licensed tour groups will be limited to a maximum of 8 persons per visit, including at least one guide in that number. Only one such group will be allowed in the Reserve at any one time.

·   In the first two years of operation of licensed tour group visits, a maximum of four licensed tour group visits will be permitted into the Reserve on any one day, provided total tour group visitor numbers, excluding guides, do not exceed 700 in each year.

·   If monitoring in the first two years of operation does not indicate any adverse effects, a maximum of four licensed tour group visits will be permitted into the Reserve on any one day, provided total tour group visitor numbers, excluding guides, do not exceed 1400 in each year in years three to five inclusive.

·   The size of group, frequency of trips and total annual number of licensed tour group visitors may be decreased or cancelled completely at any time if there is clear evidence, attributable to tour groups, of impacts on the Reserve contrary to the objectives and other provisions of this management plan.

·   The size of group, frequency of trips and total annual number of licensed tour group visitors will be reviewed five years after commencement of licensed tour group visits, and at that time the carrying capacity may be increased if the available evidence shows that the objectives of the management plan are being and can continue to be achieved and all other provisions of the management plan are able to be observed.

…"

1. There were a number of other clauses scattered throughout the plan to the like effect of the foregoing.  Central to the plan is the division of the Reserve into two zones.  The Controlled Visitor Access Zone is limited to a narrow strip either side of an existing tract leading towards, but stopping short of, the centre of the Reserve.  The balance of the Reserve is zoned "Controlled Scientific."  By cls 5.4.1 and 5.4.2 the plan limits visitors in the Controlled Scientific Zone to "scientific researchers or management staff".  Such visits are only to be "day visits".  In the Controlled Visitor Access Zone "licensed tour groups and infrequent special interest visitors will be permitted … only, and limited to visits during daylight hours."  The nature, size and frequency of such licensed tour groups are defined by cl 5.3 set out above.

1. In broad terms, the applicant's complaint is that these provisions in the plan authorise access by people in such numbers that the visitors will damage the fragile Nature Reserve.  This, the applicant contends, is not authorised by the management objectives specified in the Act, Sch4 for a nature reserve.  Ms Wall, who appeared for the applicant, submitted that the impugned provisions in the plan could only be authorised in the event of "tourism" being specified by Sch4 as a management objective for a nature reserve as it is for National Parks, State Reserves, nature recreation areas, regional reserves and historic sites.  The application complains that the plan is invalid insofar as it purports by cls 2.3, 2.4, 4.4 and 5.4 to permit access to licensed tour group visitors.

1. I do not accept that the impugned objectives and manner in which such objectives are to be achieved, as set out in the management plan, are properly described as tourism.  That word, used in relation to other reserves, connotes unlimited numbers of visitors to a reserve, visiting at will and requiring the installation and maintenance of extensive visitor facilities.  Tourism is an industry with commercial connotations.  It is defined in the Shorter OED as meaning:

"… the business of attracting tourists and providing for their accommodation and entertainment; the organisation and operation of (foreign) holidays, esp commercially."

1. In the preface to his book, Travel and Tourism Law, Mr Heilbronn says at iv:

"The law construes the word 'tourist' quite broadly and virtually all 'travellers' are encompassed by the commonly accepted meaning of 'tourists' proposed by the 1963 United Nations Conference on International Travel and Tourism …".

1. There is no doubt that the word "tourism", as used in the Act, Sch4, is intended to have a broad meaning encompassing unlimited numbers of visitors who together, are to be regarded as an industry which earns income for those involved in the organisation, management and provision of facilities for those visitors.  All of that is a far cry from the provisions in the Lake Johnston Nature Reserve management plan that are under attack in this litigation.

1. Close scrutiny discloses the existence of no objective in the management plan that is not authorised by the Act.  However, the plan is a mixture of objectives and actions to achieve those objectives, the latter being referred to as "Policies" on occasions.  Accordingly, it is necessary to examine the impugned parts of the plan to see if any of the proposed actions are not authorised by the Act, in the sense that they do not specify how one or more of the objectives is to be achieved as is required by the Act, s21(1)(bf).  To put the matter in a different way, the question is whether any of the actions that the plan proposes be undertaken is an action that will not achieve one or more of the management objectives.  In answering this question, it is necessary to bear in mind the whole of the management plan and the following objectives:

"to encourage education based on the purpose of reservation and the natural or cultural values of the nature reserve, or both; and

to encourage research, particularly that which furthers the purposes of reservation;"

1. These objectives contemplate that visitors to the area will be not only appropriate but necessary.  As already noted, the management plan limits visitors to the Controlled Scientific Zone to scientific researchers and management staff.  Clearly, in respect of this part of the Reserve the proposed actions are authorised by the Act.  With respect to the Controlled Visitor Access Zone, cl 5.2 requires licensed tour operators "to provide high quality visitor information and interpretation" to their clients.  This is authorised by the educational objective.  This requirement means that no visitor, other than a member of management or a "special interest" visitor, will be admitted to the Controlled Visitor Access Zone unless he or she is there provided with "high quality visitor information" and is a member of a group the size of which is prescribed by cl 5.3 set out above.  Clause 5.4 limits these visits to the daytime.  It cannot be said that such a provision is not authorised by education and research objectives.  Clause 5.4 refers to the provision of visitor facilities in the Controlled Visitor Access Zone.  The nature of these facilities is spelled out in Appendix 5.  In substance, they consist of retention of the existing 4 wheel drive track, provision of a walking track and perhaps a viewing platform.  The provision of some signs is also contemplated.  The provision of toilet facilities is expressly excluded.  It is impossible to achieve the educational objective without giving some access to the Reserve and it does not seem to me possible to say that the proposal for the provision of facilities is not authorised by the Act.

1. It is unfortunate that the heading to one part of Appendix 5 is "Tourism Effects", for it is likely to attract the complaint that tourism is not an authorised objective.  However, the text under the heading is clearly referring to no more than that referred to earlier under cl 5.3 as the licensed tour groups and special interest visitors.

1. The applicant has failed to make out that any part of the Lake Johnston Nature Reserve is ultra vires the provisions of the Act.  The application is dismissed.