PARK WATCH June 2020 |

A Federal Court judge has ruled that Parks Victoria is free to continue a cull of feral horses in the Alpine National Park. It’s a decision with lessons for us all, says Parks Protection campaigner Phil Ingamells.

Paintings borrowed from national or state collections normally adorn the walls of government offices.

But last July, when a bevy of lawyers, court officials and a dozen or more spectators gathered in Melbourne’s Federal Court for the case Australian Brumby Alliance v Parks Victoria, the walls were bare. Courts can’t display prejudice, so evocative landscapes that might influence the mood are ruled out.

In that disciplined, objective environment, the Australian Brumby Alliance (ABA) put their case that Parks Victoria’s plan, to remove or cull all feral horses from the Bogong High Plains and a large number from the eastern areas of the Alpine National Park, should have been referred to the Federal Environment Minister. The ABA claimed that the ‘brumbies’ were part of the cultural heritage values outlined in the national heritage listing for the Australian Alps National Parks, and were therefore protected. The National Heritage List sits within the Commonwealth’s Environment Protection and Biodiversity Conservation (EPBC) Act 1999.

It was to be a good ten months before Justice Michael O’Bryan handed down his meticulous 93-page decision: the ABA’s claim was dismissed, with costs against them.

A remarkable collection of arguments were put to the court by the ABA, and pretty much all of them were refuted or considered irrelevant by the judge. But the crystal clear basis for his ruling came from just a couple of clauses in the EPBC Act.

While the alpine parks national heritage listing under that Act does include cultural as well as extensive natural heritage values, the EPBC Act gets its authority (other than for protecting Indigenous heritage) solely from the international Convention on Biological Diversity, and that’s entirely about protecting the world’s natural heritage.

Even if the national heritage listing had actually mentioned horses (it didn’t), it has always been the high country’s remarkable biodiversity that Commonwealth law protects.

Lessons for us all

It seems that the ABA, in their unbridled enthusiasm to keep feral horses thumping across the high country, was blind to the legal obstacles in front of them. And that’s a trap people on any side of any debate can fall into; they think they must be right, that a minor legal clause, or an out-of-context sentence in a scientific paper, or anything else that appears to support their cause will win the day.

The ABA, over years of stakeholder meetings, has advanced an astonishing assortment of half-truths or total imaginings (for example claiming that more research could show that horses are good for the high country). But as the judge pointed out, speculation, misrepresented science, or personal opinion isn’t evidence.

It’s a lesson for all of us, but a very expensive one, this time, for the brumby groups.

Laws are important

Another lesson is that, even though some of our environmental legislation isn’t as strong as we might want, it’s a lot stronger than many of us, even many of our land managers, realise. Victoria’s National Parks Act 1975, for example, is unequivocal in its objective for protection of our native flora and fauna, and for action on pest plants and animals.

Our land managers could be more upfront about this, and educate the general public (including members of parliament and public servants) that the honourable task of reversing ecosystem decline in our parks is solidly backed by law.

Currently, anyone who finds themselves in stakeholder consultation groups might have to point out that the consultation should not be about whether we should focus on protection of a park’s native plants and animals, but how we should go about doing that.

Early intervention works

While Judge O’Bryan made it evident that the Convention on Biological Diversity cleared the way for Parks Victoria to deal with feral horses, he also pointed out that the Convention comes with guiding principles, and one that relates to the management of alien species is important.

It should not be necessary for land managers to wait for exhaustive evidence before they deal with alien species. The precautionary principle holds that they should act before alien species get out of control. That’s surely better for the environment, and better for Parks Victoria’s budget.

We need science

Scientific studies, nevertheless, are a critical support for park management. The judge was impressed with the depth and quality
of the science that had been
performed in the Australian alps over the last 150 years or so, as outlined by Parks Victoria’s expert witness ecologist, Dick Williams. His witness statement was not questioned in court, nor could it have been. On the other hand, the ABA’s ‘expert’ evidence was “not supported by scientific studies and was not persuasive”.

How refreshing to have scientific evidence presented in the cool, objective atmosphere of a court case. All too often these days, science is devalued, misinterpreted or simply ignored. We still have such a lot to learn about Victoria’s complex natural areas and the remarkable native plants and animals that share this planet with us, and we largely rely on our research bodies to advance that understanding.

We need courage

Finally, it’s important to hold to the objectives of national park management, and stand by the evidence we have, against whatever odds.

Congratulations are due to Parks Victoria, and our Environment Minister Lily D’Ambrosio, for holding strong on this issue, weathering the difficult process of a Federal Court challenge to their feral horse management plan. That plan grew out of a couple of years of consultation with scientists, welfare experts and the community, including seemingly endless sessions with brumby support groups.

Parks Victoria’s horse management will slightly change now: feral horses unable to be rehomed will not be trapped before they are euthanised, as originally in the strategy. Captivity unnecessarily stressed the horses, so they will now be dealt with in the wild by professional marksmen, a revision that has support from welfare experts.

No-one wants to shoot horses. When the numbers of this damaging pest species have been reduced to the extent that our beautiful and fragile alpine habitats are recovering, it may be that rehoming eventually becomes the main option.

Hopefully, this court case will give our land managers, and our political representatives, more courage to stand up for nature in the future.

Update: A second judgement, this time in Victoria’s Supreme Court, has also affirmed Parks Victoria’s obligation to manage horses.

With contributions from Deirdre Slattery.


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