1 Protected Areas in the Courts: An OverviewBy the Hon. Justice Brian J Preston SC Chief Judge, Land and Environment Court of NSW

2 Introduction The conservation of biological diversity requires both in-situ and ex-situ conservation In-situ conservation involves conservation of ecosystems, natural habitats and species populations in their natural surroundings An important means of in-situ conservation is establishing and managing protected areas The IUCN has defined a protected area as: ‘A clearly defined geographical space, recognised, dedicated and managed, through legal or other effective means, to achieve the long term conservation of nature with associated ecosystem services and cultural values’ (IUCN, 2013)

3 Categories of protected areasIUCN has developed several categories of protected areas, which are classified according to their management objectives. These are: Ia) Strict Nature Reserve Ib) Wilderness Area II) National Park III) Natural Monument or Feature IV) Habitat/Species Management Area V) Protected Landscape/Seascape VI) Protected area with sustainable use of natural resources

4 Conserving biological diversityThe achievement of in-situ conservation of biological diversity depends on the commitment and involvement of all branches of government – the legislature, executive and judiciary – as well as all other relevant stakeholders Legislature: creates statutes and subordinate legislation to establish systems of protected areas Executive: identifies, nominates, dedicates and manages protected areas in accordance with protected area laws and enforces those laws Judiciary: interprets, applies, upholds and enforces the protected area laws

5 Outline of presentationExplores the critical role the judiciary plays in interpreting, applying, upholding and enforcing laws relating to protected areas Examines cases that the courts, particularly in Australia and New Zealand, have determined involving disputes over protected areas and protected area laws 5 categories of cases: Cases challenging decisions to identify, nominate or declare a protected area Cases challenging decisions to permit or prohibit an activity in a protected area Cases concerning the enforcement of laws protecting a protected area Cases involving activities that have upstream/downstream impacts on a protected area, or impacts on a ‘buffer zone’ to a protected area Cases against public agencies who are responsible for protected areas, based on the doctrine of the ‘public trust’

6 1) Identification, nomination and declaration of a protected areaCases challenging decisions to identify, nominate or declare a protected area Decisions resolve issues at successive points in the process of identification, nomination and declaration of properties on the World Heritage List

7 Investigation stage Richardson v Forestry Commission (1988) 164 CLR 261 The High Court of Australia considered the validity of the Lemonthyme and Southern Forests (Commission of Inquiry) Act (Cth) Established a Commission of Inquiry to ascertain whether the Lemonthyme area and the Southern Forests area in Tasmania were, or contributed to, a world heritage area Prohibited certain actions during the inquiry The plaintiff alleged that the Forestry Commission and a timber company had contravened the Commission of Inquiry Act and sought injunctions restraining the defendants The majority of the High Court held that the Commission of Inquiry Act was a valid exercise of the external affairs power in s 51(xxix) of the Australian Constitution

8 Lemonthyme area, TasmaniaHuon Valley, Lemonthyme area, Tasmania: image sourced from Google images

9 Nomination stage Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FLR 274 The Full Federal Court of Australia considered the justiciability of a decision of the federal Cabinet of Australia to nominate Stage II of the Kakadu National Park for inclusion on the World Heritage List The decision to nominate made the area ‘identified property’ This prohibited Peko-Wallsend from carrying out mining operations in the nominated area No opportunity was afforded to Peko-Wallsend to make submissions to Cabinet before the decision to nominate was made At first instance, the primary judge held that the nomination was void as Peko-Wallsend had been denied the opportunity to be heard The Minister appealed the decision, claiming that the decision to nominate was immune from judicial review as an exercise of the royal prerogative The Full Federal Court concluded that the decision to nominate was not justiciable, and did not attract the obligation to accord natural justice The Court allowed the appeal, and set aside the order of the primary judge

10 Kakadu National Park Kakadu National Park: image sourced from Google images

11 Inclusion stage Three cases concern properties that had been accepted for inclusion in the World Heritage List Commonwealth v Tasmania (1983) 158 CLR 1 Queensland v The Commonwealth (1989) 167 CLR 232 Friends of Hinchinbrook Society Inc v Minister for Environment (No 2) (1997) 69 FCR 28

12 Inclusion stage Commonwealth v Tasmania (1983) 158 CLR 1The Tasmanian Hydro-Electric Commission (‘HEC’) proposed the construction of the Gordon-below-Franklin Dam, which would have involved flooding of a large section of the Franklin River An area of 14,125 hectares was excised from an area of national parks in south- western Tasmania, and vested in the HEC A larger area was subsequently accepted for inclusion on the World Heritage List The Commonwealth made the World Heritage (Western Tasmanian Wilderness) Regulations 1983 (Cth), pursuant to s 69 of the National Parks and Wildlife Conservation Act 1975, and World Heritage Properties Conservation Act 1983 (Cth), which prohibited the construction of a dam without Commonwealth ministerial consent The Commonwealth sought to restrain Tasmania from proceeding with works, claiming that the works were prohibited by the World Heritage Regulations and the Heritage Properties Act Tasmania counter-claimed for declarations that the World Heritage Regulations, National Parks Act, and the Heritage Properties Act were constitutionally invalid The majority of the High Court of Australia considered that the National Parks Act, World Heritage Regulations, and Heritage Properties Act were within scope of the external affairs power in s 51(xxix) of the Australian Constitution

13 Franklin River, TasmaniaImage sourced from the National Archives of Australia

14 Inclusion stage Queensland v The Commonwealth (1989) 167 CLR 232Queensland challenged the validity of a proclamation made in respect of property described as ‘Wet Tropical Rainforests of North-East Australia’ At the date of proclamation the property was included on the World Heritage List The effect of the proclamation was to engage the protective provisions in the World Heritage Properties Conservation Act 1983 (Cth) Queensland disputed the world heritage value of the property The High Court of Australia considered whether the inclusion of the property on the World Heritage List was conclusive of the validity of the proclamation, or if not, what was the relevant inquiry to determine the validity of the proclamation The majority of the Court held that ‘the existence of Australia’s international duty is determined by the inclusion of the property in the World Heritage List…for the listing of the property determines its status for the international community’ (at 242)

15 Wet Tropical Rainforests of North-East AustraliaMap showing the location of the Wet Topics World Heritage Area: image sourced from Google images The Cassowary is native to the tropical rainforests of north east Queensland, Papua New Guinea and Seram and Aru islands: image sourced from Google images

16 Inclusion stage Friends of Hinchinbrook Society Inc v Minister for Environment (No 2) (1997) 69 FCR 28 Great Barrier Reef had been accepted for inclusion on the World Heritage List The World Heritage Properties Conservation Act 1983 (Cth) prohibited certain acts in this area The Commonwealth Minister granted consent to Cardwell Properties for dredging, removal of mangroves and coppicing of mangroves within the Great Barrier Reef World Heritage Area The applicant challenged the validity of the Minister’s consents The Federal Court of Australia held that none of the grounds advanced for challenging the Minister’s decision to give consents were made out The applicants appealed the decision including on the ground that the Minister applied the wrong test by considering whether the works were consistent with, rather than ‘having regard only’ to, the protection, conservation and presentation of the property The Full Federal Court of Australia dismissed the appeal, determining that the Minister applied the correct test and had regard only to the protection, conservation and presentation of the areas and no other matters

17 The Great Barrier Reef The Great Barrier Reef: images sourced from Google images

18 Concern about the Great Barrier ReefRecently in Australia, there has been significant public comment about a decision by the Minister for the Environment to approve dredging and dumping on a site near Abbot Point, within the Great Barrier Reef World Heritage Area The Minister attached several conditions and preconditions to the approval Issue has been raised as to whether the conditions are sufficient to ensure compliance with Australia’s international obligations The Mackay Conservation Group has commenced proceedings challenging the Minister’s decision by way of judicial review The World Heritage Committee has expressed concern over the proposed dumping and dredging Potential for the Great Barrier Reef to be inscribed on the List of World Heritage in Danger Coal terminal at Abbot Point: images sourced from Google images

19 Decision not to declare a protected areaAkaroa Marine Protection Society Inc v Minister of Conservation [2012] NZHC 933; [2012] NZRMA 343 Akaroa Marine Protection Society made an application seeking a marine reserve in Akaroa Harbour, in the South Island of New Zealand The Minister of Conservation declined the application – would interfere with/adversely affect recreational fishing The Environment Court of New Zealand quashed the decision The Court held that the Minister had failed to: Consider wider merits of reserve Have regard to the benefit of reserve to wider public interest Weigh benefits of reserve against existing uses

20 Akaroa Harbour, New ZealandAkaroa Harbour, New Zealand: image sourced from Google images

21 2) Permission or prohibition of activities or development in a protected area4 sub-categories of cases: Cases challenging Ministerial notifications prohibiting an activity in a protected area Cases challenging decisions to approve certain activities or development on the basis of inconsistency with the management objectives of a protected area Cases challenging decisions to approve certain activities or development on the basis of inadequate environmental impact assessment Cases challenging the validity of a pre-existing right of use

22 a) Cases challenging Ministerial notifications prohibiting an activity in a protected areaExample: Professional Fishers Association Inc v Minister for Fisheries [2002] NSWLEC 15; (2002) 120 LGERA 61 (Ministerial notification prohibiting commercial fishing in Botany Bay and Lake Macquarie)

23 b) Cases challenging decisions to approve certain activities or development on the basis of inconsistency with the management objectives of a protected area Examples: Woollahra Municipal Council v Minister for Environment (1991) 73 LGRA 379 (Director of National Parks and Wildlife Service approved refurbishment and use of historic buildings in Sydney Harbour National Park by a private university, and the Minister granted licences to use the buildings and lands) Packham v Minister for Environment (1993) 80 LGERA 205 (Minister granted licence for vehicular access through Sydney Harbour National Park to private land) South Head in Sydney Harbour National Park: image sourced from Google images

24 Other activities that have been disallowed on the basis of inconsistency with management objectives include: Commercial filming and associated activities in Blue Mountains National Park/Grose Wilderness (Blue Mountains Conservation Society Inc v Director-General of National Parks and Wildlife [2004] NSWLEC 196; (2004) 133 LGERA 406) Use of land for private functions in Garigal National Park (Willoughby City Council v Minister Administering the National Parks and Wildlife Act (1992) 78 LGERA 19) Splendour in the Grass music festival in a habitat zone (Conservation of North Ocean Shores Inc v Byron Shire Council [2009] NSWLEC 69; (2009) 167 LGERA 52) Café, restaurant and accommodation in a recreation reserve in Urupukapuka Island, New Zealand (Otehei Bay Holdings Ltd v Fullers Bay of Islands Ltd [2011] NZCA 3000; [2011] NZRMA 473) Salmon farming in identified outstanding natural landscapes of Malborough Sounds, New Zealand (Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38; (2014) 17 ELRNZ 442)

25 Grose Wilderness, Blue MountainsHanging Rock, Grose Wilderness, Blue Mountains: image sourced from Google images

26 c) Cases challenging decisions to approve certain activities or development on the basis of inadequate environmental impact assessment Examples: Sustainable Fishing and Tourism Inc v Minister for Fisheries [2000] NSWLEC 2; (2000) 106 LGERA 322 (whether Minister failed to consider to the fullest extent possible all matters likely to affect the environment by reason of commercial fishing activity in issuing a commercial fishing licence and a fishing boat licence) Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (1986) 7 NSWLR 353 (whether environmental impact statement accompanying an application for a lease for the purposes of new ski resort at Blue Cow, Kosciuszko National Park complied with statutory obligations) National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 (whether the Land and Environment Court of NSW had jurisdiction to award damages in compensation for costs and expenses incurred in relying on an approval that was unlawful due to the failure to obtain an environmental impact statement for new ski lodge in Kosciuszko National Park)

27 Mt Blue Cow, Kosciuszko National ParkImage sourced from Google images

28 d) Cases challenging the validity of a pre-existing right of useExample: Scharer v State of NSW [2003] NSWLEC 23; (2005) 125 LGERA 104 (whether pre-existing easement was valid after the area concerned became reserved as part of Nattai National Park) Nattai National Park: image sourced from Google images

29 3) Enforcement of a protected areaIt is crucial that laws protecting protected areas are adequately enforced 2 sub-categories of cases: Criminal prosecutions for offences committed within a protected area Civil proceedings seeking to remedy or restrain a breach within a protected area

30 a) Criminal prosecutions for offences committed within a protected areaIndividuals and organisations have been prosecuted for a wide range of offences committed within a protected area Many of these cases have involved offences committed within national parks Examples: Plath v Knox [2007] NSWLEC 670 (defendant convicted and fined $13,200 for damaging vegetation in Goulburn River National Park by the aerial spraying of herbicide) Department of Conservation v Moir [2010] DCR 574 (defendants convicted and fines of $2,500 and $23,000 imposed on Mr Moir and Moir Farms respectively, for various offences against s 60 of the National Parks Act 1980 (NZ)) Mahwinney (Department of Conservation) v Gunn (Unreported, District Court of Dunedin, Kean J, 5 December 1990) (defendant charged with committing an offence against s 5(2) of the National Parks Act (NZ) in that he took eels from the Fiordland National Park without Ministerial consent)

31 Offences committed in marine areasExamples: White v Patterson [2009] QCA 320; (2009) 171 LGERA 28 (respondent negligently used a Marine Park Zone of the Great Barrier Reef Marine Park for the purpose of fishing, contrary to s 38CA(1) of the Great Barrier Reef Marine Park Act (Cth)) Walsh v Stay and Play Australia; Ex parte Walsh [1992] 1 Qd R 321 (respondent contravened reg 13 of the Great Barrier Reef Marine Park Regulations 1983 (Cth) by operating a vessel for the carriage of tourists through a Marine Park Zone of the Great Barrier Reef Marine Park without permission)

32 Offences committed in marine areasExamples continued: Sidhom v Robinson [2007] NSWLEC 408; (2007) 154 LGERA 169 (applicant appealed against his conviction for an offence against cl 7(1) of the Marine Parks Regulation 1999 (NSW) of attempting to harm animals in a sanctuary zone in Jervis Bay Marine Park) Jervis Bay Marine Park: image sourced from Google images

33 Offences committed in World Heritage AreasExamples: R v Dempsey [2002] QCA 45; (2002) A Crim R 113 (applicant cut down and removed 25 trees in the Wet Tropics World Heritage Area in North Queensland, and sold them) R v Boyle (Indictment No 1909 of 2004, Unreported, District Court of Queensland, Hoath J, 17 December 2004) (grazier cleared 13 hectares of mountain forest in the Main Range National Park in South East Queensland, which was part of the Gondwana Rainforests of Australian World Heritage Area) Bulldozer with felled tree in rainforest: image sourced from Environmental Law Publishing

34 b) Civil proceedings seeking to remedy or restrain a breach within a protected areaCases have been brought involving alleged contraventions of the EPBC Act Examples: Minister for the Environment & Heritage v Greentree (No 2) [2004] FCA 1317; (2004) 138 FCR 198 (Injunction granted and penalties of $150,000 and $300,000 imposed on Mr Greentree and Auen Grain Pty Ltd respectively for contravening s 16(1) of the EPBC Act by clearing a large tract of land for farming activities on Gwydir wetlands Ramsar site) Clearing on Gwydir wetlands Ramsar site: image sourced from Google images

35 Examples continued: Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2008] FCA 3; (2008) 165 FCR 510 (Injunction granted to restrain the respondent from contravening the EPBC Act by killing, injuring, intentionally taking, treating and possessing cetaceans in the Australian Whale Sanctuary) The Nisshin Maru factory whaling vessel owned by Kyodo Senpaku Kaisha Ltd: image sourced from Google images

36 Breaches of the National Parks and Wildlife Act 1974 (NSW)Examples: Director-General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118 (Injunction granted restraining the defendant from carrying out further breaches of ss 118A and 156A of the NPW Act by clearing an area within the Colongra Swamp Nature Reserve, and depositing and spreading the fill over the cleared area) Whitehouse v Remme (1988) 64 LGRA 375 (Injunction granted and damages awarded for breaches of by-laws and regulations under the NPW Act through destroying large quantities of trees and other growth in the Blue Mountains National Park while making trails with a bulldozer)

37 4) Upstream, downstream or buffer zone impactsCases involving activities not directly within a protected area, but which may nevertheless have an impact on a protected area either through upstream or downstream impacts, or by impacting on a buffer zone to a protected area 2 sub-categories: Cases involving upstream or downstream impacts Cases involving impacts on a buffer zone

38 Upstream or downstream impacts – judicial reviewMinister for Environment & Heritage v Queensland Conservation Council Inc [2004] FCAFC 190; (2004) 139 FCR 24 Judicial review challenge to Commonwealth Minister’s approval of the construction of the Nathan Dam to provide irrigation water Downstream irrigation of land adjacent to river-beds had the potential to increase nutrient concentrations and other agricultural pollutants downstream of the dam, for example, in the Great Barrier Reef World Heritage Area The Minister determined that potential impacts of the irrigation of land by persons other than the proponents were not impacts of the proposed action Primary judge and Full Court of the Federal Court of Australia determined that the Minister should have taken into account the downstream impacts

39 Nathan Dam, Fitzroy BasinImage sourced from Google images Project investigations into the Nathan Dam were again suspended in 2009 to address environmental considerations relating to the Boggomoss snail: image of the Boggomoss snail sourced from Google images

40 Examples continued… South East Forest Rescue Incorporated [2011] NSWLEC 250 (Bega Valley Shire Council had not failed to take into account downstream and upstream impacts in the form of greenhouse gases and logging of native forests, but upheld the appellant’s challenge on other grounds) Alliance to Save Hinchinbrook v Environmental Protection Agency [2006] QSC 084; (2006) 145 LGERA 32 (Environmental Protection Agency had not failed to consider the downstream impacts of the proposed construction of two breakwaters on increased use of boats and increased boat strikes on dugongs and snub fish dolphins) Image of a dugong sourced from Google images

41 Upstream or downstream impacts – civil proceedingsBooth v Bosworth [2001] FCA 1453; (2001) 114 FCR 39 Applicant applied for a prohibitory injunction under s 475(2) of the EPBC Act restraining the respondents from killing Spectacled Flying Foxes on or near their lychee orchard (near the Wet Tropics World Heritage Area) The Federal Court of Australia held that the foxes contributed to the world heritage values of the Wet Tropics World Heritage Area An action leading to a significant impact on the population of the foxes was likely to have a significant impact on the world heritage values of the Wet Tropics World Heritage Area, contravening s 12 of the EPBC Act The Court granted an injunction restraining the respondents from killing the flying foxes

42 Spectacled Flying Fox Image sourced from Google images

43 Upstream or downstream impacts – other scenariosSimilar enforcement orders have been made in Queensland, requiring lychee farmers to dismantle electric grids on their lychee farms that were killing flying foxes Courts have considered the impact of works, such as dams, diversion structures and culverts, on the passage of fish, to and from protected areas Other scenarios in which litigation could be brought include: Activities impacting on the migratory patterns of birds Insufficient water being provided to Ramsar wetlands

44 b) Cases involving impacts on a buffer zoneAn activity or development can also impact on a protected area by impacting on a buffer zone to a protected area In some cases, protected areas legislation makes provision for buffer zones Some environmental planning instruments also apply to buffer zones There have been relatively few cases concerning a buffer zone to a protected area Examples: Plath v Knox [2007] NSWLEC 670 (defendant applied pesticide at some points within the 150m boundary of the Goulburn River National Park contrary to an order under the Pesticides and Allied Chemicals Act 1978) Ford v Ensor; Stratford District Court v Ensor [2010] NZRMA 208 (owner of land contiguous with protected areas cleared an access track through mature indigenous forest and erected a fence on his land for the purpose of establishing a game hunting park) Cases reviewing on the merits decisions to refuse consent for development buffering Sydney Harbour, a significant seascape

45 5) Public trust litigationCases against public agencies who are responsible for protecting protected areas, based on the doctrine of the ‘public trust’ Public trust doctrine has its origins in Roman law – concept of res communes Things that are part of the commons that all humankind has a right in common to access and use (eg air, running water, the sea and the shores of the sea) that cannot be appropriated to private ownership Ownership of the commons is vested in the state The state has a fiduciary duty to deal with the commons in the interests of the general public Rests on 3 principles: Certain interests are so important to the citizenry as a whole – unwise to make them the subject of private ownership They should be made freely available to the entire citizenry The government should promote the interests of the general public rather than redistribute public goods/uses to restricted public benefit

46 Public trust litigation in the USParticularly developed in the US Example: National Audubon Society v Department of Water and Power of the City of Los Angeles (1983) 658 P 2d 709 (Sup Ct Cal, 17 February 1983) Supreme Court of California held that the doctrine of public trust was an independent basis for contesting the allocation of water resources Case concerned a challenge to diversion tunnels around California’s second largest lake, Mono Lake Water diversions resulted in a reduction in surface area, depletion of bird communities and a decrease in scenic beauty and ecological values

47 Mono Lake, United StatesMono Lake, United States: image sourced from Google images

48 Public trust litigation in the UK and AustraliaPublic trust obligations have been upheld in England and Scotland Few cases considering the public trust doctrine in Australia The proposal of the Victorian government in 1875 to sell part of Albert Park in Melbourne (Palmer v The Board of Land and Works (1875) 1 VLR 80) The proposal of the NSW government in 1895 to grant a lease of part of the foreshore of Port Jackson to the Sydney Harbour Colliery Company so that it could establish a mine on Sydney Harbour (Re Sydney Harbour Collieries Co (1895) 5 Land Appeal Court Reports 243) Kent v Johnson (1973) 21 FLR 177 (Smithers J denied the existence of any such trust or obligation arising out of the declaration of a reserve on Black Mountain, Canberra as a public park) Willoughby City Council v Minister Administering the National Parks and Wildlife Act (1992) 78 LGERA 19 (Stein J held that national parks are held by the State in trust for the enjoyment and benefit of citizens, including future generations)

49 Public trust litigation - harboursThe concept of the public trust has also been invoked in cases concerning proposed development in or development of harbour areas Examples: Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 (Biscoe J held that the Sydney Regional Environmental Plan (Sydney Harbour Catchment) attributed a ‘unique legal status’ to Sydney Harbour) Society for Protection of the Harbour Ltd v Town Planning Board [2003] HKCFI 220; Town Planning Board v Society for Protection of the Harbour Ltd [2004] HKCFA 27 (acknowledged the unique legal status afforded to Hong Kong’s Victoria Harbour by the Protection of the Harbour Ordinance) Sydney Harbour (above) and Victoria Harbour (below): images sourced from Google images

50 Conclusion The judiciary plays an important and fruitful role in promoting in-situ conservation of biological diversity and natural and cultural heritage by means of protected areas The judiciary upholds and enforces the protected area laws Explored the ways in which protected area laws have been interpreted, upheld and enforced by the courts, particularly in Australia and New Zealand, through their judicial decisions