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8 – LEGISLATION, POLICY AND ADMINISTRATION
Different
jurisdictions, in various countries and at all scales from locally
to internationally, have taken a variety of different approaches
to the conservation of natural resources and the protection of
threatened fauna and flora. However, one of the most common approaches
has involved the listing of threatened species (see Chapter 4).
Depending on the definition used for “animals” and “wildlife”
under these instruments, there may or may not be the possibility
of listing marine invertebrates as “threatened species” or “protected
wildlife”.
The
role of species protection legislation, as it relates to invertebrates,
was discussed by Yen and Butcher (1997) and Hutchings and Ponder
(1999). Yen and Butcher outlined various
arguments for and against protective legislation.
Shortcomings
of legislation
8.1
International agreements – Conventions, Treaties and Protocols
Australia
is a party to a wide variety of international agreements[177],
some of which (such as CITES and the World Heritage Convention)
have direct relevance for the conservation of marine invertebrates
and their habitats. Others, while not directly relevant, nevertheless
have some bearing, for instance through habitat protection or
the control of threatening processes. Examples of the latter include:
-
The
Climate Change Convention 1992,
-
The
Convention on Wetlands of International Importance especially
as Waterfowl Habitat (the RAMSAR Convention) 1971,
-
The
International Convention on Prevention of Marine Pollution
by Dumping of Wastes and Other Matter (the London Dumping
Convention) 1972,
-
The
International Convention for Prevention of Marine Pollution
from Ships (MARPOL) 1973, and
-
The
United Nations Convention on the Law of the Sea 1982 (although
Article 61 is of direct relevance).
The
relevance of a range of international agreements to Australia’s
management of the marine environment was reviewed in a Background
Paper to the Oceans Policy (Herriman et al. 1997), and (in more
abbreviated form) in Parker (1995).
A
summary of those International Agreements relevant to marine invertebrate
conservation is provided in
Table 8.1. Several of the more important international
instruments, from the point of view of marine invertebrate conservation,
are listed and discussed in more detail below.
Convention
on International Trade in Endangered Species of Wild Fauna and
Flora 1973 (CITES)
Invertebrates
listed under CITES
World
Heritage
Biological
diversity
RAMSAR
Convention
Other
agreements (relating to habitat protection)
8.2
Australian legislation and its
administration
Under
the Australian Constitution, environmental matters – which include
biodiversity conservation and natural resource management – have
been interpreted as being primarily a State and Territory issue,
Federal jurisdiction being limited to areas such as trade, Commonwealth
waters, and international treaties (although Commonwealth governments
have nevertheless enacted their own environmental legislation).
Local government areas of environmental responsibility include
catchment issues, development approvals and planning.
Australian
legislation and how it relates to invertebrate conservation in
Australia has been reviewed by Yen and Butcher (1997) and Hutchings
and Ponder (1999). The following discussion is primarily concerned
with those pieces of legislation directly relevant to marine invertebrate
conservation (summarised in
Table 8.2). This review is based upon, but expanded
and updated from Appendix 1 of Hutchings and Ponder (1999). It
is clear that there is:
In
addition, with the separation of agencies or legislation based
on habitat (aquatic vs terrestrial, marine vs non-marine), the
management of transitional habitats can be problematic - in particular
estuarine or supralittoral habitats.
Overall,
there is a need to develop greater integration and more consistent
standards Australia-wide, particularly in relation to those taxa,
including marine invertebrates, that at present receive inadequate
legislative protection.
Most
of the other environmental legislation, which can comprise a vast
array of Acts and Regulations[185]
dealing with environmental planning and assessment, environmental
protection and pollution control, resource allocation and special
development approvals, are mostly not of direct relevance to invertebrates.
However, some have the potential to be very important, particularly
in relation to mitigation of threatening processes and instigation
of planning controls. Even legislation that deals, primarily or
wholly, with activities on land can affect organisms in the marine
environment, for instance through its influence on land use, land
clearing, run-off, pollution etc. (see Chapter 6). Yet, there
is little integration or cooperation among the various agencies
with responsibility for administration of the various Acts[186].
8.2.1
National coordination
Yen
and Butcher (1997) suggested that the problem of species being
listed as protected in one jurisdiction but not in another could
be partially addressed if the Australian and New Zealand Environment
Council (ANZECC[187])
provided a framework for invertebrates as they had with vertebrates
because ANZECC maintained national lists of threatened Australian
fauna, flora and ecological communities. However, the Commonwealth
Govt. is currently creating a new council, the Environment Protection
and Heritage Council, that will be an amalgamation of the National
Environment Protection Council (NEPC), the non-Natural Resources
Management (NRM) component of ANZECC and Heritage Ministers' Meeting.
A second council, the Natural Resource Management Council will
combine the NRM issues from the Agriculture and Resource Management
Council of Australia and New Zealand (ARMCANZ), the Australian
and New Zealand Environment and Conservation Council (ANZECC)
and the Ministerial Council on Forestry, Fisheries and Aquaculture
(MCFFA).
8.2.2
Commonwealth
The
Commonwealth holds a range of powers, including the implementation
of international treaties, which could theoretically be used to
achieve considerable control over environmental matters (Dixon
1994). During the 1970s and 1980s, these were used to override
State decisions on issues such as the damming of the Franklin
River in Tasmania, mining of limestone in Moreton Bay and sand
mining on Fraser Island. However, successive Commonwealth governments
have been reluctant to use these powers, focusing instead on the
prime responsibility of the States for environmental protection
and the need for a cooperative approach among all jurisdictions
(Woinarski and Fisher 1999). This position was formalised in the
Intergovernmental
Agreement on the Environment (1992), which recognised
that the Commonwealth’s role was largely one of coordination.
The
Environment Protection
and Biodiversity Conservation Act 1999 (EPBC Act)[189]
gives the Commonwealth primary responsibility on matters of national
environmental significance and is now the key piece of Commonwealth
legislation with relevance for the conservation of mar ine invertebrates.
Listing
of threatened taxa and communities
The
ability to list threatened ecological communities and threatening
processes are potentially one of great value for the conservation
of marine invertebrates and other taxa not well covered by the
threatened species approach. However, these provisions have yet
to live up to their promise. To
date 27 ecological communities have been listed, none of which
is marine. There are currently 11 listed Key
Threatening Processes (Schedule 3), but again, none is
of relevance to marine invertebrates. All but three (incidental
catch of seabirds and turtles and land clearing) concern terrestrial
feral pests and pathogens. However, land clearing has significant
indirect impacts on coastal ecosystems. The EPBC Act differs
from the ESP Act in enabling the listing of Threatening Processes
even when preparation of a Threat Abatement Plan is not feasible
– it is a separate decision whether a Plan should be prepared.
Aside
from the threatened species provisions discussed above, the EPBC
Act has a number of other features of relevance to marine invertebrate
conservation. These include the ability to declare marine protected
areas in Commonwealth areas, the provisions relating to protection
and management of World Heritage areas and RAMSAR wetlands of
international significance, and the requirement to prepare impact
assessments for Commonwealth-managed fisheries. There are also
new, specialised criteria to “assess the conservation status of
marine biota” (Hill 1998), and special provisions (Part 13 Division
4) which make it an offence to take, kill or injure any “listed
marine species” in a Commonwealth area except under limited conditions[193].
As currently constituted this list does not include any marine
invertebrates, but it is clearly a potential vehicle that could
be used to benefit marine invertebrate conservation.
Commonwealth
Acts, which give effect to Australia's obligations under relevant
international treaties, are listed in Table 8.1 (a table of relevant
international treaties and their implementation in Australia).
Additional Acts with some relevance to marine invertebrate conservation
are listed in below.
Other
Commonwealth Acts with some relevance for marine invertebrate
conservation
8.2.3
New South Wales
In
NSW, marine invertebrates are classed as ‘fish’ under the
Fisheries Management Act 1994, Marine Parks Act
1997 and Fisheries Management Amendment Act 1997, which define
‘fish’ as:
“marine,
estuarine or freshwater fish or other aquatic animal life at any
stage of their life history (whether alive or dead) ... (including)
oysters and other aquatic molluscs; and crustaceans; and echinoderms;
and beachworms and other aquatic polychaetes, ...(but not) any
species of whales, marine mammals, reptiles, birds, (or) amphibians”.
Thus
all marine (and other aquatic) invertebrates come under the fisheries
legislation and their conservation is the responsibility of NSW
Fisheries. Part of the purpose of the
Fisheries Management Amendment Act 1997 was to
extend legislative protection (given to terrestrial animals and
plants under the Threatened Species Conservation Act 1995) to
threatened aquatic animals and vegetation.
Other
relevant Acts in NSW
Bans
on commercial fishing in estuarine waters in NSW
8.2.4
Victoria
In
Victoria, the key piece of legislation for the listing of threatened
species is the Flora
and Fauna Guarantee Act 1988[196].
Threatened
taxa and communities of flora and fauna are listed
in Schedule 2.
In
addition to the Flora and Fauna Guarantee Act, the Department
of Natural Resources and Environment (NRE) maintains
lists of threatened fauna and flora, including threatened
invertebrate fauna, whether terrestrial, freshwater or marine
(Doeg 1999).
Another
avenue for marine invertebrate conservation is under the Fisheries
Act 1995, which allows the declaration of any aquatic taxon or
community of flora or fauna (not only rare or endangered species)
as ‘protected aquatic biota’. Consequently permits are required
to take, destroy or disturb that species or community. So far,
no taxa have been declared (apart from those aquatic taxa automatically
listed under the Flora and Fauna Guarantee Act 1988) (Doeg 1999).
Other
relevant Acts in Victoria
8.2.5
Tasmania
Until
1995, the National Parks and Wildlife Act 1970 provided
for the establishment and maintenance of National Parks and reserves,
and the listing of endangered wildlife. Under the Wildlife
Regulations of this Act, the only invertebrates that were
declared as wholly protected wildlife were cave invertebrates.
Since the proclamation in November 1995 of the
Threatened Species Protection Act 1995, invertebrates
can be listed in the Schedules of this Act as Endangered, Vulnerable
or Rare (Taylor and Bryant 1997).
The
application of Tasmanian legislation to the coastal marine environment
is determined by the Tasmanian State Coastal Policy 1996. This
Policy applies to the Crown in all its capacities, in particular
through the State Policies and Projects Act 1993 and the
Land Use Planning and Approvals Act 1993. Subject to contrary
statutory provision, it also applies to statutory authorities.
Other
relevant Acts
Macquarie
Island
8.2.6
South Australia
There
is no specific threatened species legislation in South Australia,
although it was recommended in a draft Endangered Species strategy
released under a previous government (Greenslade 1999). Although
South Australia does not have specific threatened species legislation,
provisions for listing threatened species can be found in the
National Parks and Wildlife Act 1972, with endangered,
vulnerable and rare species being listed in Schedules 7, 8 and
9 respectively. Invertebrates cannot be listed as “protected animals”
under this Act, as "animals" are defined as comprising
only mammals, birds and reptiles. Under the Act, invertebrates
and their habitats are legally protected in all reserves, including
marine invertebrates in the several marine reserves along the
coastline.
As
in other States, the fisheries legislation (section 42 of the
Fisheries Act 1982[25]) enables various categories of “fish” (including
invertebrates) to be declared as “protected”, with their collection
prohibited; other commercially important species are subject to
special management arrangements. Examples of the latter include
abalones (Haliotis spp.), the Blue Swimmer Crab (Portunus
pelagicus), the Southern Rock Lobster (Jasus edwardsii)
and Southern Calamari (Sepioteuthis australis). The Fisheries
Act 1982 also has provisions for the declaration of aquatic reserves
and marine parks.
The
Environment Protection (Marine) Policy was introduced in 1994,
in recognition of the need to control marine pollution originating
from land based activities, to ensure environmental monitoring
and improvement programs were included as a condition of all discharge
licenses. This Policy requires dischargers to demonstrate by March
2001 that they are complying with minimum standards. Our
Seas and Coasts - a marine and estuarine strategy for South Australia
was released in August 1998.
Other
relevant Acts
Marine
Protected Areas
8.2.7
Western Australia
In
Western Australia the legislation most relevant to threatened
invertebrates is the Wildlife Conservation Act 1950, which
is currently administered by the Department of Conservation and
Land Management (CALM).
A
Wetlands Conservation
Policy for Western Australia was launched in August
1997.
Other
relevant Acts
8.2.8
Northern Territory
The
Territory
Parks and Wildlife Conservation Act 2000 is administered
by the Parks and Wildlife Commission of the Northern Territory.
It provides for the conservation and management of wildlife, establishment
of reserves, and the listing of protected and specially protected
animals and plants (Schedule
7 of the Territory Wildlife Regulations lists specially protected
animals. The definition of "wildlife" in the Act has
been amended in the latest revision so that it can now include
all animals, including invertebrates. Invertebrates are thus not
specifically excluded from protection under this Act as they were
previously (Yen and Butcher 1997; Hutchings and Ponder 1999).
To date, no marine invertebrates are listed under this modif ied
legislation but six terrestrial arthropods are.
Other
relevant Acts
8.2.9
Queensland
The
Nature Conservation Act 1992 enables any (including marine) native
organisms to be listed and protected under the first five Schedules
of this Act (presumed extinct, endangered, vulnerable, rare, common).
These are listed in the Nature Conservation (Wildlife) Regulation
1994[208],
and a summary is available on the Environmental
Protection Agency’s website. Several invertebrates are
listed, all butterflies. There are no provisions to list communities
or threatening processes. There are currently no protocols for
accepting public nominations; relevant experts review internal
nominations assessed using IUCN criteria. After review, nominations
are considered by the Scientific Advisory Committee that makes
recommendations to the Minister (Driscoll 1999).
Other
relevant Acts
The
Great Barrier Reef
8.2.10
Territories
Norfolk
Island
Christmas
Island
Australian
Antarctic Territory and Heard and McDonald Islands
8.2.11
Legislation at the local level
Australia
has a great diversity of local council regulations but local council
by-laws and conservation regulations can play an important role
in the conservation of invertebrates by maintaining and protecting
habitat (Yen and Butcher 1997).
8.3 National
policies and strategies
8.3.1 Ecologically
Sustainable Development
The
origins of the concept of
sustainable development stem back to the release of
the World Conservation Strategy in 1980, and perhaps more importantly,
the 1987 report of the World Commission on Environment and Development,
Our Common Future (the Brundtland Report). The Brundtland Report
recognised that sustainable development means adopting lifestyles
within the planet’s ecological means, made it clear that the world’s
current pattern of economic growth is not sustainable, and argued
that a new type of development is required to meet foreseeable
human needs (Commonwealth of Australia 1992).
8.3.2 Biological
diversity
The
internationally accepted importance of conserving biodiversity
was recognised by the Convention
on Biological Diversity (Section 8.1.3), and this is reflected
in the National
Strategy for the Conservation of Australia's Biological Diversity
(Commonwealth of Australia 1996). This Strategy, which has been
endorsed by all State, Territory and Commonwealth governments,
has as its goal the protection of biological diversity and the
maintenance of ecological processes and systems. It recognises
that biodiversity conservation results in many benefits, that
there is a need for more knowledge and better conservation practices,
and that we share the earth with many other life forms that have
intrinsic values.
8.3.3
Threatened species
Under
the 1992 Intergovernmental Agreement on the Environment, the Australian
and New Zealand Environment and Conservation Council (ANZECC)
was charged with developing and reporting on a strategy for a
national approach
to the protection of rare, vulnerable and endangered species,
taking into account the Australian
National Strategy for the Conservation of Species and Communities
Threatened with Extinction prepared by the
Endangered Species Advisory Committee (ESAC). This
strategy was to be implemented during the next 10 years.
8.3.4
Oceans policy
Australia’s
Oceans Policy was launched on 23 December 1998, after
a period of consultation following the release of
Australia's Oceans Policy - An Issues Paper, for public
comment in May 1998.
8.3.5
Marine Science and Technology Plan
Released
in June 1999 as a companion document to the Oceans Policy, the
Marine Science
and Technology Plan provides a scientific underpinning
for the implementation of the goals and initiatives of the Oceans
Policy. It deals with issues such as marine industries, mineral
exploration, defence and surveillance etc. as well as marine science,
biodiversity and conservation.
Objectives
relevant to marine invertebrate conservation.
Program
1: Understanding the marine environment
Program
2: Using and Caring for the Marine Environment
Program
3: Infrastructure for Understanding and Utilising the Marine
Environment
8.3.6
Ocean Rescue 2000
The
Ocean Rescue 2000
Program was announced in 1991 as a 10-year program
to achieve conservation of Australia’s marine environments. However,
this program has been superseded by the Coasts
and Clean Seas Program under the National Heritage Trust (NHT),
which has provided funding for similar and other marine conservation
projects.
Marine
and Coastal Community Network
State
of the Marine Environment Reporting
National
Marine Education Program
The
National Marine Education Program was coordinated by GBRMPA, with
input from EA. The series of three TV community service announcements
(“Our Oceans - Our Heritage”), produced by ANCA in collaboration
with GBRMPA, were screened nationally during 1993 (Fien et al.
1999).
National
Marine Information System
8.3.7
Water Quality
National
Principles for the Provision of Water for Ecosystems 1996 and
National Water Quality Management Strategy 1992.
Background.
8.4
Main issues and recommended actions
Issues
Despite
the existence of international programs and several substantial
national policies concerned with marine conservation, there is
a considerable disparity in the approaches to marine conservation,
and the recognition of invertebrates, in different Australian
jurisdictions. This applies to:
-
The
legislative recognition of marine invertebrates;
-
The
legislative framework in which conservation measures applicable
to marine invertebrates can be implemented.
-
The
agencies responsible for the conservation of marine environments
and the organisms that live in them.
The
existence of multiple agencies responsible for the administration
of various aspects of the marine environment results in complexity,
inefficiency and lack of coordination and some rationalisation
would be desirable in most jurisdictions.
-
There
is no separation of the agencies responsible for conservation
and exploitation in the marine environment in some jurisdictions,
with the likelihood of conflicts of interest arising.
-
The
separation of responsibilities into marine and non-marine,
or aquatic and terrestrial, habitats by way of legislation
and/or agencies, can result in the vulnerable transitional
habitats (that contain unique biota) being ignored.
There
is often an inconsistent approach to marine conservation. For
example fishing is often allowed in marine reserves but there
are blanket bans on harvesting or collecting even superabundant,
or the dead remains of, marine invertebrates.
Collecting
(of shells etc.) by responsible collectors, interested children
etc. should not be generally discouraged (demonstrated local or
specific threats to the habitat or fauna should be managed individually)
as such activities are a means of gaining interest in invertebrates
and a potential source of valuable information.
-
For
example, dead (empty) strandline shells/tests etc., should
not be treated identically to living specimens (as they are
in some jurisdictions) - this resulting in a potential loss
of information and an educational tool.
Recommended
actions
We
recommend the adoption of a uniform national approach that will
result in: A consistent or coordinated approach to marine biodiversity
conservation and relevant legislation in Australia.
The
recognition of marine invertebrate taxa as fauna of equal status
to marine vertebrates.
The
emphasis in legislation should be on habitat conservation and
reduction in threatening processes, with the focus on individual
taxa, while being important in some circumstances, not the main
thrust for marine invertebrate conservation.
The
definitions employed in legislation need to be carefully framed
to best achieve the desired conservation.
-
More
flexible approaches to collecting and harvesting are required;
such as
-
Imposing
bag limits for specific taxa as an alternative strategy to
blanket bans.
-
and
some rationalisation would be desirable in most jurisdictions.
-
There
is no separation of the agencies responsible for conservation
and exploitation in the marine environment in some jurisdictions,
with the likelihood of conflicts of interest arising.
-
The
separation of responsibilities into marine and non-marine,
or aquatic and terrestrial, habitats by way of legislation
and/or agencies, can result in the vulnerable transitional
habitats (that contain unique biota) being ignored.
The
emphasis in legislation should be on habitat conservation and
reduction in threatening processes rather than a focus on individual
taxa.
There
is often an inconsistent approach to marine conservation. For
example fishing is often allowed in marine reserves but there
are blanket bans on harvesting or collecting even superabundant,
or the dead remains of, marine invertebrates.
-
The
definitions employed in legislation need to be carefully framed
to best achieve the desired conservation outcome (for example,
dead (empty) shells/tests should not be treated identically
to living specimens as they are in some jurisdictions resulting
in a potential loss of information and an educational tool).
-
More
flexible approaches to collecting and harvesting are required:
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