PARK WATCH Article March 2024 |

Jessie Borrelle, Digital Engagement & Communications Manager, looks at the glaring shortcomings with our environmental laws

Once upon a time there was a frog. A frog so small (3cm in length) you could fit at least four of them in your breast pocket. Smaller and plumper than an unwrapped Freddo, but just as likely to leave a stain.

Alpine Tree Frogs (Litoria verreauxii alpina), despite their common name, are tethered by evolution’s dynamic threads to ponds, fens, low marshy lands and the like. This ecological niche is perfectly filled by the habitat of the Alpine National Park with its unique network of nationally endangered Alpine Sphagnum Bogs and allied Fens.

This was how a modest amphibian came to be the unwitting star of a showdown between federal and state decision-makers. The story of the Alpine Tree Frog is one that illuminates the contradictions in the way our nature laws are currently designed and executed.

When, in 2010, the State LNP Government decided to regurgitate the practice of bovine grazing in the Alpine National Park under the guise of flawed scientific trial, then federal environment minister, Tony Burke, could not simply reject the proposal in the national park, not matter how absurd. Instead, federal intervention had to focus on one of the values of the park, not the whole ecosystem the park was created to protect.

Cue the Alpine Tree Frog and its boggy habitat. Hooves being hooves, the impact of grazing on the frog – a nationally threatened species – and its endangered habitat, was deemed too damaging to indulge. The reclusive Alpine Tree Frog shone a light on a glaring discord in the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

Currently, national parks are not designated as ‘Matters of Environmental Significance’ and therefore not a ‘trigger’ for decisions made about their protection under the Act. This is despite the fact Australia signs up to international agreements which obligate us to do so.

Review of EPBC Act

This was one of many examples that informed the independent 2020 Samuel EPBC Act Review (10-yearly reviews are a requisite of the Act). It is over a year since the federal Environment Minister, Tanya Plibersek, released the Commonwealth’s response. The Minister’s report showed promise, backing the need for:

  • strong outcome-focused standards to protect our unique web of life
  • an independent national regulator to oversee decision-making
  • increased and adequate funding for restoration that nature needs right now.

However, draft legislation expected in 2023 has been delayed, and the bones and muscle needed for a new body of nature laws barely developed. A lack of ambition and obfuscation defines the process at present.

Protecting places we love

The collective concern among lawyers, community groups and conservationists is that we are yet to see any material on critical elements of the proposed reforms.

Decision-making in the government’s draft documents leans too far towards individual ministerial discretion and subjectivity, as do definitions of ‘unacceptable impacts’ on nature and community. Language about tangible and positive outcomes for nature is diluted in favour of making processes more efficient. In plain terms, putting faster decision-making ahead of guaranteed on-ground protection of nature is not going to address the climate and nature crisis we are in.

It should be explicit that standards require decisions to be consistent with the objects of the Act. To effectively protect nature, we need consistent standards based on the best available science. And those standards must be upheld, no matter who is behind the desk at the time.

In VNPA’s 2020 review submission, we drew attention to ten key issues. Of these, formally designating ‘Matters of National Environmental Significance’ is especially salient.

The words ‘national park’ betray the incongruent reality that while these areas are of national significance, they are managed largely by the states. The whims and priorities of state governments (luxury accommodation, mountain bike tracks, logging, hunting) override long-term protections for parks. With international commitments at stake, including under the Global Biodiversity Framework, we simply cannot assume that the states have the national interest at heart.

As routinely noted by VNPA and the Places You Love Alliance, the EPBC Act is not fit for purpose. If it were, extinction rates would be in decline, as would deforestation, unsustainable agriculture, and urban sprawl. Instead, since the EPBC Act came into effect in 2000, bulldozing and logging have destroyed over 7.6 million hectares of threatened wildlife habitat. Those behind the wheel of destruction faced little or no penalty.

Victoria has overseen 2000 of our native plants, animals and habitats become listed as threatened. A confounding 559 of those teeter on the brink of extinction.

Limits of our laws

Our existing laws are extremely limited. They don’t always put the integrity of the living web of nature first. Too often they prioritise industry and development and downplay the knock-on effects of climate damage, invasive species and pollution.

Nature laws should be able to adapt to reflect shifting conditions, similar to the changes in our natural world – increasing bushfires and extreme weather, expanding feral pests, inappropriate development.

If national park status can’t guarantee the safety of our most threatened wildlife, we are failing both our duty to honour nature, and fulfil our international conservation obligations. Adding a new ‘trigger’ for national parks and reserves would give the Australian Government power to intervene to protect national parks and protected areas when risks to their integrity arise.

The national parks trigger, a policy recommendation by all members of the National Parks Australia Council, was a Labor election commitment in the 2019 election. It’s logical. It’s practical. But since Labor lost that election, the commitment has fallen off the agenda and did not appear as a recommendation in the Albanese Government’s report on the Samuel Review.

If it were put back on the agenda, in the future we wouldn’t need to reassign our threatened amphibians as plaintiffs. If we had nature laws that considered whole-of-landscape protection, our tree frogs could busy themselves by their streamside bogs, perfecting their mating trills, warming their bumpy emerald-olive skin in the sun.

It shouldn’t be the job of a frog to hold back a herd of hooves, a rush of development, a warming atmosphere. That duty lies directly at the feet of our elected governments, and their responsibility to create and uphold nature protection laws that work.