Wildlife Protection Association of Australia Inc. and Minister for the Environment, Heritage and the Arts and Director-General of the Department of Environment and Climate Change (NSW) (Party Joined)

[2008] AATA 846

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 846

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0535  

GENERAL ADMINISTRATIVE DIVISION		)
Re		WILDLIFE PROTECTION ASSOCIATION OF AUSTRALIA INC.

Applicant

And MINISTER FOR THE ENVIRONMENT, HERITAGE AND THE ARTS

Respondent

And DIRECTOR-GENERAL OF THE DEPARTMENT OF ENVIRONMENT AND CLIMATE CHANGE (NSW)

Joined Party

DECISION

Tribunal Deputy President P E Hack SC and Dr T J Hawcroft, Member

Date23 September 2008  

PlaceBrisbane (heard in Sydney)

The Tribunal directs:

1.      That the joined party, in consultation with Dr Anthony Pople, Dr David Croft and Dr Stuart Cairns and such other experts and interested parties as the joined party considers appropriate, formulate a variation to the New South Wales Commercial Kangaroo Harvest Management Plan to incorporate:

(a) trigger points;

(b) the actions that ought be taken when trigger points are reached.

2.      That the joined party provide the proposed variations to the Tribunal and the other parties on or before 14 November 2008.

3.      That if any other party wishes to contend for a different variation of the Plan submissions in support of that variation be lodged and served within 7 days of receipt of the joined party’s proposed variation.

4.      That all parties have liberty to apply.

....................[Sgd].......................

Deputy President

CATCHWORDS

ENVIRONMENT – wildlife protection – New South Wales Commercial Kangaroo Harvest Management Plan 2007-2011 – management plan to be varied to provide a response to an apparent or demonstrated decline in numbers – joined party to consult with interested parties and formulate a variation incorporating trigger points and the actions to be taken when trigger points are reached

REASONS FOR DECISION

23 September 2008   Deputy President P E Hack SC and Dr T J Hawcroft, Member                  

1.On 15 August 2008 we published our reasons[1] for concluding that the New South Wales Commercial Kangaroo Harvest Management Plan 2007-2011 satisfied the statutory criteria in the Environment Protection and Biodiversity Conservation Act 1999 subject to one concern that we had. That concern was that the Plan did not, in our view, “encompass any particular response to an unusual decline in number [of kangaroos]”.

[1] See [2008] AATA 717.

2.We invited the parties to consider the published reasons and either agree upon, or forward submissions concerning, a mechanism for the amendment of the Plan to address our concern. We proposed a mechanism whereby harvesting would be suspended at a trigger point and we proposed a trigger point of a decline of 30% (34% in the case of red kangaroos) in numbers since the last survey. We proposed those figures on the basis that it would represent a decline of twice the quota with no natural increase.

3.The parties have obviously given thoughtful consideration to the published reasons and whilst they do not agree about the way forward they each agree that the mechanism we proposed as a trigger point was not adequate for the task. With the benefit of the helpful submissions from the parties we agree.

4.The primary submission advanced on behalf of the Director-General and supported by the Minister provides for a period of eight weeks within which the Director-General will consult with experts and other interested parties on the formulation of appropriate trigger points for the suspension of the harvest.

5.The Association supports that approach as a last alternative and appears to support the notion of imposing trigger points on the Plan; however, its primary submission is that the trigger point should be based upon density. It submits, as well, that all population surveys ought be undertaken annually.

6.In our earlier reasons we expressed the view that density trigger points were practical in certain situations but were not practical across diverse environments. We adhere to that view and thus do not accept the Association’s preferred position.

7.Nor do we accept that surveys ought be conducted annually in the areas where they are presently conducted three-yearly. We are not aware of any evidence that suggests that three-yearly surveys are inadequate but we are conscious that these surveys are considerably more expensive to conduct than the annual surveys by fixed wing aircraft. The material before us does not warrant a diversion of the no doubt limited funds available to the Director-General into expensive annual surveys.

8.Given the views expressed by the parties we propose to adopt the submission of the Director-General to vary the decision to impose a condition requiring the incorporation of a trigger point, understanding that consultation is required in order to formulate the trigger points. When we propounded our earlier views regarding the percentage trigger points we were unaware that work had already been undertaken by the Director-General to identify trigger points nor were we aware that the further consultation and a response could be undertaken within 8 weeks.

9.Given this information we are content to withdraw our “intuitive” proposal and allow for a process of identifying the trigger points in a more disciplined way. We will, at this stage, merely make directions for consultation with a view to requiring a proposed response to be submitted within 8 weeks.

10.There is some minor disputation between the parties about the width of consultation. The Director-General proposes to consult with, inter alia, the Kangaroo Management Advisory Committee but the Association opposes that course on the basis that that group has motives “that are not primarily focussed on the population management of kangaroo species”. That may be correct however we are confident that the Director-General and the appropriate officials can appropriately balance the perspectives of all interested parties.

11.We would hope that it would not be necessary to undertake a further hearing however that issue can be determined once the Director-General has put forward a proposal for the variation of the Plan.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC, Dr T J Hawcroft, Member

Signed:         ...............................[Sgd]................................................
  Jacqueline Woods, Associate

Date of Last Submissions        5 September 2008
Date of Decision  23 September 2008
Counsel for the Applicant         Mr M Baird and Mr P Singleton
Solicitor for the Applicant          DLA Phillips Fox
Counsel for the Respondent     Dr M A Perry QC and Mr M Izzo
Solicitor for the Respondent     Australian Government Solicitor
Counsel for the Joined Party     Ms R Pepper
Solicitor for the Joined Party     Departmental solicitor