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Australia’s regulation of commercial use of wildlife: an absence of eco-logic
Linda L. Tucker University of Wollongong
Tucker, Linda L, Australia’s regulation of commercial use of wildlife: an absence of eco-logic, PhD thesis, Faculty of Law, University of Wollongong, 2008. http://ro.uow.edu.au/theses/789
This paper is posted at Research Online. http://ro.uow.edu.au/theses/789
CONTENTS
Acknowledgements i
Abbreviations ii
Abstract iii
INTRODUCTION
Chapter 1 Introduction 1
Chapter outline 7 Research method 17
PART ONE 19 Chapter 2 The How and Why of Conservation Via Sustainable Use
S1. Conservation in a world of use 23
1.1 Combining conservation and sustainable use 23
1.2 The human cost of conservation 32
S2. CSU in practice 41
2.1 Reversing appropriation – ownership as an incentive for conservation 41
2.2 Legalised hunting as a conservation incentive 46
2.3 Ranching of crocodiles and alligators 49 2.3.1 United States 52
S.3 The ‘risk’ of conservation via sustainable use of wildlife 53
3.1 Uncertainty and the precautionary principle 53
3.2 The threat of illegal use: is it fostered or displaced by a legal trade 59
3.3 Does commercialising wildlife raise ethical concerns? 63
Conclusion 64
Chapter 3 Values and Attitudes About Wildlife: Animal Instincts 67
S1. The Valuation of Wildlife 68
1.1 Use values 70
1.2 Non-use values 71
1.3 Debating Values 72 1.3.1 Rights versus respect – survival of the specimen or the 81 species 1.3.2 Benign intervention or ineffective meddling? An illustration 84 of the problem
S2. Commodifying Nature 86
2.1 Do non-instrumental values survive commodification? 87
S3. Attitudes to Wildlife 96
S4. The Role of Scientists in the Wildlife Use Debate 108
Conclusion 110
Chapter 4 The Commercial Use of Wildlife Debate in Australia: Wild or Mild at Heart? 114
S1. The conservation via sustainable use arguments for Australia 116
1.1 ‘Ownership’ of wildlife in Australia 127
S2. Rhetoric and reality – political support for commercial use of wildlife 131
2.1 Parliamentary inquiries into the use of wildlife 134
2.2 The role of non-governmental organisations 139
Conclusion 143
PART TWO
Chapter 5 International Regulation of the Trade in Wildlife 144
S1. Historical Background 144
S2. The CITES Regime 151
2.1 The appendices 151
2.2 The listing process 153
2.3 The trade provisions 158
2.4 Enforcement 161
S3. The Evolving Perspective of Trade Under CITES 165
3.1 Evolving within the bounds of the Convention – quotas and split- 172 listings 3.1.1 Split listing and regulation of the trade in ivory 172
S4. CITES in the Current International Regime 177
Conclusion 181
Chapter 6 Australia’s Regulation of the Wildlife Trade 186
S1. Legislative History of Wildlife Management 186
1.1 Jurisdictional issues 192
S2. The Current Commonwealth Regime 196
2.1 Division 2 of the EPBC Act – CITES Specimens 198 2.1.1 Non-commercial purposes 200 2.1.2 Commercial purposes 201
2.2 Division 3 of the EPBC Act – regulated native specimens 203
2.3 Wildlife Trade Management Plans 205
2.4 Wildlife Trade Operations 207
Conclusion 208
Table 1 Overview of Commonwealth Regulation of Wildlife 209 i
Table 2 Part 13A Environment Protection and Biodiversity Conservation Act 209 ii 1999; Division 2 CITES specimens
Table 3 Part 13A Environment Protection and Biodiversity Conservation Act 209 vi 1999; Division 3 Australian regulated native specimens
Chapter 7 Australia’s Selective Protection Regime: Tough Love and an 210 Absence of Eco-Logic
S1. Non-live exports of Australian native fauna 213
1.1 The permitted trade 214 1.1.1 Crocodiles 214 1.1.2 Kangaroos 216
1.2 The prohibited trade – trophies 219 1.2.1 Hunting in Australia 226
S2. Live exports of Australian native fauna 230
2.1 The permitted export trade 230
2.2 The existing trade in Australian native birds 234 2.2.1 International trade 234 2.2.2 Regulation of the domestic trade 236 2.3 The prohibited trade 240
2.4 Juxtaposing the permitted and prohibited live export industries 246 2.4.1 Humane Concerns 247 Do fish and invertebrates feel pain? 251 2.4.2 Humane concerns – the proposed trade 254 2.4.3 Commercial concerns – exporting potential breeding stock 255 2.4.4 Commercial concerns – the proposed trade 251 2.4.5 Biological/ecological concerns 256 2.4.6 Biological concerns – the proposed trade 257 2.4.7 Biological concerns – the proposed trade 260
Conclusion 261
Chapter 8 Conclusion 265
Bibliography 275
ACKNOWLEDGEMENTS
This thesis has been a long and winding process that has followed me through seven house moves – from Australia to England and back to Australia – four jobs and many different hair cuts. Through all of this I simply would not have made the course without the unstinting support from my partner and brilliant thesis coach Brett Garner and our son Max. I cannot begin to thank them enough for their love and tolerance.
Alongside them I have had fabulous support from my family and friends in Australia and England, who have known when to provide tea and sympathy and when it’s best not to ask. I am particularly grateful for the laughs, love and wonderful meals from Becky and Nick Guggisberg and their clan. Mum and Dad have been extraordinary in their understanding and encouragement, providing great sustenance of the body and mind and an unwavering belief that I would see this thesis through.
I have also been very lucky in my current job – at Kingsford Legal Centre – to have the unquestioning support of my colleagues, friends and thesis cheer squad: Anna Cody, Anna Hartree, Denise Wasley, Shirley Southgate and Teena Balgi.
David Farrier has shown remarkable patience and fortitude as my primary thesis supervisor. He has been a rigorous but good-humoured overseer of the multiple manifestations of the thesis. I am also extremely grateful to Greg Rose for coming on board as my co-supervisor and providing great clarity of thought and also a calm but thorough approach to improving my argument and thesis structure.
I would also like to thank the following practitioners in this field who have provided generously of their time, answering my long and pesky emails or sitting through equally long and pesky interviews: they are Marty Deveney, Kate Dixon, Drue Edwards, Caleb Gardner, Paul Jewell, Clive Jones, Tom Kaveney, Mike Letnic, Chris Mobbs, Bruce Sambell, Grahame Webb, Peter Whitehead and George Wilson.
i ABBREVIATIONS
ABARE Australian Bureau of Agricultural and Resource Economics ANZECC Australian & New Zealand Environment & Conservation Council ARMCANZ Agriculture & Resource Management Council Of Australia & New Zealand AVA Avicultural Federation of Australia CAMPFIRE Communal areas management program for indigenous resources CBD Convention on Biological Diversity CITES Convention on International Trade in Endangered Species of Wild Fauna and Flora COAG Council of Australian Governments CSU Conservation via sustainable use DFAT Department of Foreign Affairs and Trade DEWR Department of Environment and Water Resources EPBC ACT Environmental Protection and Biodiversity Conservation Act 1999 (Cth) IFAW International Fund for Animal Welfare IUCN World Conservation Union (International Union for the Conservation of Nature) NRM Natural Resources Management NSESD National Strategy for Ecologically Sustainable Development OECD Organisation for Economic Cooperation and Development RIRDC Rural Industries Research and Development Corporation RRAT Senate Rural and Regional Affairs and Transport References Committee SUSG Sustainable Use Specialist Group TRAFFIC Wildlife trade monitoring program of IUCN and WWF UNEP United Nations Environment Program WPA Wildlife Protection (Regulation of Exports and Imports) Act 1982 (Cth) WRI World Resources Institute WTO World Trade Organisation WWF World Wide Fund for Nature
ii ABSTRACT
Environmental law responds to a vast array of stakeholders at both the domestic and international level. Where it relates to the often controversial area of the regulation of commercial trade in wildlife, the law is subject to the push and pull of different views about what is ‘acceptable’ use. Given that these views can be diametrically opposed, depending on the stakeholder or society, the regulation of wildlife trade provides a compelling example of the way philosophical, cultural, political and economic, as well as ecological, concerns find their way into the hearts and minds of legal decision makers.
This thesis draws on the international experience concerning commercial use of wildlife but its focus is the approach of Australia’s federal legislature to regulation of the trade. The purpose of my research is to show that significant developments in international environmental law, leading to more widespread acknowledgement of the potential conservation benefits of commercial use of wildlife, have not infiltrated the Australian wildlife regime. I demonstrate this by a focus on what I consider are illogical constraints on Australia’s commercial use of wildlife.
Initially environmental law met commercial use of wildlife head on with strict prohibitions on trade. This approach has evolved significantly to the extent that it is now widely accepted that commercial consumptive use of wildlife is a potential conservation tool. The bulk of the world’s remaining wildlife exists in developing countries and a prohibitionist approach, often imposed from afar, does not necessarily engage with the cultural, economic and ecological interests of those rural and remote communities in closest proximity to wildlife. Protection has therefore been re- characterised as simply another tool alongside conservation via sustainable use (‘CSU’). This acknowledges that environmental management occurs within a world of use and where the greatest threat to wildlife is the loss of habitat such that conservation must compete with financially lucrative but highly destructive uses of the environment. In this context, sustainable use may provide an incentive that competes with more destructive alternative uses.
iii To illustrate that environmental law may be a social, cultural and political construct as much as it is a response to conservation imperatives, my analysis required examination of a range of influences on the design and implementation of the Australian regime. The thesis begins by working through contributions from conservation biology, philosophy, cultural and political critiques, empirical studies and international and domestic policy documents. These chapters then provide the groundwork for the legal critique which comprises an examination of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (‘CITES’) and the Environmental Protection and Biodiversity Conservation Act 1999 (Cth)(‘EPBC Act’). The evolution in the international debate is reflected in the implementation of CITES which has moved from a protectionist regime, concerned with ‘threats’ from trade, towards greater accommodation of the CSU approach. The Australian regime has not responded to these developments, however, and the EPBC Act’s wildlife trade provisions – which came into force in 2001 – have hardly deviated from the legislation they replaced, the Wildlife Protection (Regulation of Exports and Imports) Act 1982 (Cth).
I then demonstrate both the protectionist focus and the selectivity of the Australian regime by way of an examination of the Commonwealth’s approach to live commercial exports of native animals and the international movement of hunting trophies. For decades there has been a prohibition on the commercial export of live terrestrial vertebrates, in the face of ongoing calls to allow, at least on a trial basis, the export of native birds and reptiles for the international pet trade. Successive federal governments have refused to budge on this issue, despite the fact that: i. native Australian animals, particularly birds, have already made their way into the international trade, as bred and exported by other countries; ii. Australia at the same time allows the live commercial export of other native fauna, particularly lobsters but also insect and aquatic pets; and iii. there is a thriving domestic trade in live birds and reptiles between Australia’s states and territories.
The second case study, on the federal prohibitionist approach to international movement of hunting trophies, is even more at odds with international conservation thinking. Sport
iv or safari hunting may present as an unacceptable use of wildlife to many in Australian society yet it is highly lucrative and has been embraced in many countries by those marginal rural communities which manage species attractive to sports hunters. It is also proposed as a viable industry for remote indigenous communities in Australia.
The case studies show that the prohibitionist approach is clearly favoured in Australia as the most politically acceptable as no effort has been made to explain or justify the legislative and policy inconsistencies. Proponents of greater use of wildlife, however, have significant hurdles to overcome, not least an application of the precautionary principle that does not sit easily with the concept of relative threats to biodiversity, which is the basis of CSU. The thesis concludes that the influence of non-ecological imperatives have held sway, given the arbitrary divide in protective measures for wildlife that conflicts with not only significant international policy and commentary but the findings of every Australian parliamentary inquiry into the issue. A potential conservation tool for Australia, particularly its more marginal landscapes, is being sidelined by the reluctance of decision makers to engage with commercial use of wildlife in a robust manner. I wish to emphasise, however, that whether CSU could be a positive player in Australian environmental management is not the primary concern of the thesis; my focus is on how environmental legislation can be subject to forces that have no apparent grounding in conservation concerns.
v Chapter 1 Introduction
Chapter 1
INTRODUCTION
This thesis critically examines Australia’s regulation of the commercial export trade in wildlife. The trade is regulated by an environmental instrument, the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’), but I argue that its objective to conserve biodiversity has been trumped by other, non-conservation, influences.1 The critique centres on the legislation’s divided application of certain protection measures which appears to have no necessary connection with either ecology or animal welfare concerns.
My argument is that a selective valuation of wildlife has infiltrated the mindset of Australian decision makers and this has manifested in illogical provisions in wildlife trade regulation. The primary objective is to demonstrate that such selectivity exists and how it affects the Australian regime. My secondary objective is to place this issue in the broader context of developments in environmental management and the increased embrace of conservation via sustainable use (CSU) of which trade in wildlife forms a part. Whether or not the internationally-recognised benefits of CSU can transfer to Australia, my aim is to illustrate that a ‘speciesist’ approach has influenced environmental regulation and this does not answer to any apparent conservation imperative. My concerns are relevant beyond a critique of the inputs to the legislation itself because the manifestation of the speciesist approach has been an uneven regime which is strictly protectionist towards particular wildlife and particular uses of wildlife. It thus undermines effective exploration of CSU, which could be a potentially useful conservation tool for Australia.
1 My critique of the Australian legislation, particularly its response to international environmental law, forms the basis of a journal article: Linda Tucker, ‘New dog, old tricks: Has Australia’s overhaul of the wildlife export regime met its international environmental obligations’ (2008) 11 Journal of International Wildlife Law and Policy, 334.
1 Chapter 1 Introduction
I began my inquiry by taking an expansive approach to investigating regulation of the commercial use of wildlife. It is a thorny and emotive subject area and has long been a controversial plank in conservation strategies. At an international and domestic level, there are fiercely defended positions either for or against commercial use. In the past, wildlife law has responded to the select interests of the world’s political and economic urban elite. In particular, the dominance of Western industrialised society in the design and implementation of conservation instruments resulted in a dichotomous approach to commercial use and conservation whereby the two activities were seen as mutually exclusive. This was understandable from the highly industrialised urban societies of the West where much of the biological diversity had been obliterated and sustenance from the environment was acquired from distant suppliers. Conservation could therefore be undertaken by the removal of consumptive human impacts, setting aside certain areas and species for protection.
I found this debate to be a fascinating reflection of the broader schism in international environmental law concerning the clashes between human and ecologically-centred imperatives and what is in fact meant by the term ‘conservation’, particularly the extent to which the term has moved on from the understanding of ‘conservation’ as meaning ‘preservation’. The World Conservation Strategy provided early appreciation of the move from protection to sustainable use: Conservation is the management of human use of the biosphere so that it may yield the greatest sustainable benefit to present generations while maintaining its potential to meet the needs and aspirations of the future generations.2
2 IUCN/UNEP/WWF, World Conservation Strategy (1980). This issue is explored in chapter two of the thesis. For a detailed discussion of the development of the term sustainable development and its growing influence and legitimacy in international environmental agreements, see Alexandre S. Timoshenko, 'From Stockholm to Rio: The Institutionalisation of Sustainable Development' in W Lang (ed) Sustainable Development and International Law (1995) 143. Hodges criticises the environmental movement, citing in particular Greenpeace, for having “muddied” the distinction between ‘conservation’ and ‘preservationist’ ideology by referring to itself as ‘conservationist’. He relies on a 1988 Webster’s Dictionary definition of conservation as the “controlled use and systematic protection of natural resources”. Brian Trevor Hodges, ‘The Cracking Façade of the International Whaling Commission as an Institution of International Law: Norwegian Small-Type Whaling and the Aboriginal Subsistence Exemption’ (2000) 15 Journal of Environmental Law and Litigation, 295 at 298. Dictionary definitions may not always clarify the point. The Shorter OED defines conservation as: “1. The action of conserving; preservation from destructive influences, decay or waste”. The Shorter Oxford English Dictionary (1973) 404. Of course definitions
2 Chapter 1 Introduction
My inquiry was initially concerned with this clash of perspectives at an international level in relation to commercial use of wildlife and the impact of a protectionist approach that deprives resource-rich but economically poor countries of a viable source of income via the commercial use of their native species. This approach has been countered by increased international support for conservation via sustainable use (CSU) which proposes that conservation may result from commercial use of wildlife. This is based on CSU providing an incentive to shield native habitats from conversion to intensive monocultural agricultural practices, in which diverse natural habitat may be destroyed for a single species, such as corn or wheat.3 I then applied this debate to the Australian regulation of wildlife trade and the apparent inertia that undermined opportunities for conservation via sustainable use of wildlife.
The international wildlife debate was a relatively well examined area alongside the growing recognition of CSU as a way to respond to the dilemma of achieving protection of wildlife in the face of compelling cultural and socio-economic needs of highly marginal communities. To enhance the originality of the thesis, I was encouraged to increase my emphasis on the Australian experience. I therefore used the initial concerns as a background to my eventual focus: what I term the environmentally illogical provisions in the Australian regime that prevent the exploration of potential CSU initiatives. I identify areas in which the wildlife legislation has failed to respond to an evolution in conservation thinking that increasingly accepts the important role CSU may play in environmental management.
Commercial use of wildlife in Australia is of particular interest given it is the world’s only developed megadiverse state with a high level of endemism of its natural resources:
are often products of their time, otherwise dictionary editors would be out of a job. But even this 1973 definition does accommodate the position of the World Conservation Strategy, with the act of preservation qualified by the focus on ‘destructive influences’. Arguably the sustainable use model of the Strategy has the same aim. To conserve is to protect from ‘destruction’, although not from a use that maintains the biosphere in a state in which it can continue to sustain humanity. 3 Tim Swanson, ‘Conserving Biological Diversity’ in D Pearce (ed), Blueprint 2: Greening the World Economy (1994) 181, 187.
3 Chapter 1 Introduction
Millions of years of isolation from the other continents have resulted in Australia's plants and animals evolving in ways different from elsewhere. As a result, a high percentage of Australian species occur nowhere else. At the species level, about 82 per cent of our mammals, about 45 per cent of our land birds, about 85 per cent of our flowering plants, about 89 per cent of our reptiles, and about 93 per cent of our frogs are found only in Australia.4
Whether commercial use of wildlife can provide conservation benefits for Australia is an important issue but, while I refer to a considerable body of literature on this topic, there are several reasons why it is not the appropriate investigative focus for my thesis: it is a question best answered by the science of conservation biology, and I am not a scientist so cannot provide an original contribution on this level; further, it is a difficult question for any inquiry to address as there has not been any significant attempt to use commercial use of wildlife as a conservation initiative in Australia, the ranching of crocodiles being the most notable exception to date.5 Finally, as this is a thesis about environmental law, I consider that I can best make an original contribution by a critique of the Australian wildlife regime’s environmentally illogical provisions that present barriers to potential conservation initiatives.
It is an inquiry that also has the broader concern of the legitimacy of environmental legislation that does not appear to respond to conservation imperatives. That is, even if there were some CSU benefit to a proposed wildlife trade that was currently prohibited, would the environmental payoff tip the scales in its favour? I believe the answer could be no if the proposed trade were to trigger particular prejudices about the species or type of use concerned.
To demonstrate the proposition I begin, in Part One, by reviewing the scientific and policy literature on this issue, including the growing recognition of adaptive management as a way to explore proposals for commercial use of wildlife that may be
4 Council of Australian Governments, National Strategy for the Conservation of Australia’s Biological Diversity (1996) Introduction. 5 Which is discussed in Chapters 2 and 7.
4 Chapter 1 Introduction
environmentally beneficial. I then move onto the philosophical debate concerning the use of wildlife to unpack as far as possible the underlying beliefs and attitudes that influence the public and hence political response.
This provides the groundwork for my critique of the Australian regime where I begin with the environmental concerns, political responses and attitudinal positions informing the long running but largely stagnant Australian debate.
From here Part Two provides the analysis of Australia’s regulation of wildlife trade including a description of the international obligations to which the regime purportedly responds. While there has been a considerable debate over the ongoing decline of Australia’s biodiversity,6 and commercial wildlife issues have been addressed by the conservation biology community, there has been no critical study of the operation of the federal wildlife regime nor has there been a critique of the specific provisions that, I argue, demonstrate its illogical application. These provisions concern certain prohibitions on the live commercial export of wildlife and the international movement of trophies from safari hunting. If at first blush it appears I have chosen two particularly contentious areas, then this in fact assists my argument that Australia has remained extremely conservative on these issues because they are perceived as controversial, despite growing evidence that international live trade and hunting are both established, broadly accepted uses of wildlife. Importantly, both are cited for their potential role in incentive-based conservation. I argue that Australia is neither responding to the evidence, nor its international environmental obligations, nor the international reality of existing trade, in maintaining its position.
I acknowledge that the federal regime does not block commercial use of wildlife per se as international trade does in fact occur, but the regulatory parameters to trade can be difficult to understand. The approach of Australia’s decision makers to commercial use of wildlife is at times robust and at times extremely conservative and the basis for determining which approach will be taken is not clear, at least from an environmental perspective. I am concerned with the apparently illogical provisions that present
5 Chapter 1 Introduction
particular barriers as they reveal how ostensibly environmental legislation may be subject to non-conservation imperatives. While in some circumstances this may be a legitimate regulatory response, I argue that the provisions with which I am concerned may be counter-productive to the environmental objectives of the regime.
There may be an assumption that those from both within and outside the legislature with an interest in law reform use “logical arguments … to demonstrate how and why particular social issues or problems need to be given priority”.7 Yet, as I argue in this thesis, the wildlife trade regime does not appear logical from a conservation standpoint; which raises the question as to why and how legislators have arrived at their regulatory priorities in this area. These are the people whom Freese terms the: “pivotal stakeholder … the individual or institution that ultimately decides and controls the fate of a wildland and its biodiversity (generally the landowner or the institution that controls access to and use of the resource)”:8 A major challenge in linking the consumptive use of wild species with biodiversity conservation is to understand how the decisions of this pivotal stakeholder are affected by the interests and influence of all the other stakeholders.9
In this thesis, I seek to tease out the concerns that have influenced the decision makers in Australia’s wildlife use regime as I question its ability to address wildlife conservation needs. While it is probably impossible to fully and accurately explicate the provenance of any regulatory instrument because of the vast range of socio-political influences at play, it may be possible to draw some conclusions about the role of particular ideologies in its design. This may then play a part in future policy and legislative reform, by making explicit the interests and needs to which we want such instruments to respond.
6 As discussed in Chapter 4. 7 Michael Head and Scott Mann, Law in perspective: ethics, society and critical thinking (2005), at 35. 8 Curtis Freese ‘The “Use It or Lose It” Debate’ in C Freese (ed) Harvesting Wild Species, Implications for Biodiversity Conservation (1997) at 12. 9 Ibid.
6 Chapter 1 Introduction
Chapter outline Part One: chapters 2-4. Chapters 2 and 3 deal with two significant areas of influence: conservation biology and cultural and philosophical values. In Chapter 2 I review the conservation arguments that underpin the debate concerning commercial use of wildlife to protect biodiversity. Chapter 3 deals with the more abstract considerations – the values and attitudes held by relevant players – which also underpin the debate.
The purpose of beginning with Chapter 2’s broad review of the practical aspects to the debate is to establish the base for this thesis as a critique of ostensibly conservation- minded policy and law. If a regime is legitimised by its aims to, say, protect or conserve biodiversity, then I believe a critique of that regime should commence with a review of what are the issues that such a regime seeks to address. It is therefore necessary to begin with what the relevant conservation-related concerns are – at both an environmental and socio-economic level. The aim of my approach is to first provide a concrete landscape in which to situate the debate, to enable the reader to then have a context for the discussion in Chapter 3 of more abstract considerations that also play an important role in the regime. While I commence with a focus on the natural scientific approach to this issue and then go on to the social science perspective, I do not seek to particularly privilege natural science considerations but rather set out the issues that have generated this debate in the first place. I take care in Chapter 3, in providing a comprehensive treatment of values and attitudes relevant to the debate, to make clear that the role of scientists in the debate is in no way value-neutral and should not be excluded from any examination of how individual, cultural and socially determined values and attitudes play such a significant part in the way we approach commercial use of wildlife.
Chapter 2 describes the concept of conservation via sustainable use (CSU) and how these terms apply to commercial trade in wildlife. The development of the concept in international agreements is set out and I discuss the importance of evaluating CSU proposals within the context of what are the alternative outcomes for the species and/or habitat.
7 Chapter 1 Introduction
The chapter addresses the intertwined ecological and socio-economic interests to which CSU responds in what may also be termed incentive-driven conservation. Commercial use of wildlife is proposed as a conservation incentive by facilitating, among other things:
In-situ conservation, by maintaining habitat in which a traded species exists, so there is maintenance of this species plus a flow on of benefits to other species; and/or Tying in profits from trade to go back into conservation management coffers; and/or Buttressing the community stakeholding in local wildlife leading to more effective conservation management.
It should be emphasised that CSU is not a response specifically to conservation of individual species, threatened or otherwise. It forms part of the ecosystem approach, as articulated in recent meetings of the Conference of the Parties to the Convention on Biological Diversity.10 This is conservation on a grand scale, expanding from the traditional focus on species to encompass habitats and ecosystems as well as integrating socio-economic considerations into environmental decision making.
The chapter then sets out issues arising from the protective and selective approach to conserving wildlife in general and via restrictions on trade in particular. This issue can be described as one of social and economic equity or cultural respect, as much as one of conservation. What to do? Who pays?11 These two questions sum up the decision makers’ dilemma: they must reconcile competing values, interests and needs in trying to provide adequate and measurable criteria for ‘sustainability’ in environmental management. Franck, who poses the two
10 31 ILM 818. Opened for signature June 5 1992, entered into force 29 December 1993. Hereafter ‘Biodiversity Convention’ or ‘CBD’. The relevant decisions are set out in Chapter 2.
8 Chapter 1 Introduction
questions, also recognises the complications that inhere in environmental management when decision makers acknowledge “the prevailing context of distributive inequality, both between states and between persons” and, with regard to such inequality, the “difficulty of defining the costs and benefits of various strategies”.12 As discussed in this thesis, the decision as to ‘what to do’ regarding the use of wildlife has predominantly been made by people who are not among those ‘who pay’. This has had significant negative consequences for both ecological and human welfare. In sum, top down, elitist, and sometimes ill-conceived policies have caused widespread human suffering, and made it impossible to build up a mass support for conservation.13
This sets the scene for my critique of the Australian regime in Chapter 4 as it demonstrates that a focus on protection that removes incentives to maintain wild animal populations has been recognised as a major handicap to sustainable use by those communities which operate in proximity to wildlife.14
I then deal with how CSU may be implemented, giving examples of successful CSU initiatives in crocodile ranching and safari hunting. Finally I respond to the objections to CSU grounded in the precautionary principle and the question of the risks involved in the introduction of commercial use as a conservation initiative. These include the effect CSU will have on existing or potential illegal use of the traded species, possible adverse impacts on the traded species or their habitats and how the benefits will be distributed to achieve the proposed conservation outcomes. The chapter suggests that existing projects are already providing indicators of the impact of CSU and also refers to the increasing use of adaptive management approaches to assess the environmental impact of CSU.
11 Questions posed by Franck in his discussion of the purpose of environmentalism. Thomas Franck, Fairness in International Law and Institutions (1995) 364. 12 Ibid. 13 Ashish Kothari, Neema Pathak and Farhad Vania, Where Communities Care, Community-based wildlife and ecosystem management in South Asia (2000), Introduction. The text is a report on the study of community wildlife management programs in Bangladesh, Bhutan, India, Nepal, Pakistan and Sri Lanka 14 David Pearce and Edward Barbier, Blueprint For A Sustainable Economy (2000) 166ff; Barnabas Dickson, ‘Global regulation and Communal management’ in J Hutton and B Dickson (eds) Endangered Species Threatened Convention, The Past, Present and Future of CITES (2000) 161 at 176.
9 Chapter 1 Introduction
The chapter demonstrates why CSU has become an increasingly important player, alongside protective measures, in environmental management.
After setting the scene from the conservation perspective, in Chapter 3 I move on to philosophical and ethical considerations which play a significant role in the wildlife use debate as they have shaped our regard of nature and the way in which humans value, use and manage their surrounding environment. What I also do, however, is show that such regard is a social and cultural construct, as demonstrated by the many different attitudes to wildlife use around the world.
Chapter 3 also explores a central concern regarding wildlife use: the consequences of juxtaposing economics and wildlife. Such concern focuses on two perceived failings of commercialisation: 1. the market cannot appropriately reflect the true worth of wildlife, that is, its values are beyond commercial consideration; and 2. the market cannot adequately reflect the true worth of wildlife, that is, its price is higher than commercial considerations will allow.
I examine this issue in detail as I believe that objections to commercialisation frequently conflate these two issues which can make it difficult to clarify the basis of the argument. It is important to maintain some distance between the two points to be clear on what may be the actual deterrent to commercial use: that any price has been placed on, say, a northern hairy-nosed wombat, or that the price is not high enough. This section draws heavily on earlier research I have undertaken on environmental ethics and commodification of natural resources.15
The public perception of what are the ‘acceptable’ parameters to use of wildlife demonstrates the importance of an inter-disciplinary approach in my critique. This is because it adds both depth and clarity to a critique of the wildlife use regime by highlighting the force of socially or culturally-held attitudes as a likely explanation for
15 Linda Tucker and David Farrier, ‘Conserving biodiversity via access to bioresources: a natural selection?’ in N Stoianoff (ed) Accessing Biological Resources (2004) at 167.
10 Chapter 1 Introduction
the uneven application of law and policy to different native animals.
The aim of Chapters 2 and 3 is to provide a comprehensive treatment of the many potential influences on wildlife regulation. Chapter 2 focuses on the concerns as articulated by those who live with, manage, use and research commercial wildlife use – that is have what may be termed a more immediate interaction with the environmental and socio-economic issues. Chapter 3 discusses the more abstract considerations that influence decision makers by looking at how societies value or regard wildlife and its commercialization. In the construction of this thesis I found it difficult to decide which should go first as there is so much interaction between the two. In the end I found that the reader should be given the actual landscape in which this debate resides to enable a more comfortable journey into the abstract considerations. I make clear in Chapter 3 that I do not privilege
The final part of the background is provided in Chapter 4 which looks at how the issues examined in Chapters 2 and 3, along with a range of other influences, have played out in Australia to provide the social and political context to the regime. It also demonstrates why commercial use of wildlife may be a relevant concern for Australia. The chapter describes the position of various stakeholders in the debate to provide some insight as to the influences on decision makers.
The chapter begins with the application of the conservation arguments, as set out in Chapter 2, to the Australian environment. It describes the problems in relation to loss of habitat and species to demonstrate the need to investigate management options beyond the traditional protectionist approach. My aim in this section is to demonstrate that CSU is not necessarily just a consideration for developing countries. The conservation concerns arising from Australia’s dramatic biodiversity losses make highly relevant a debate about improving environmental management. This work also draws on my
11 Chapter 1 Introduction
earlier research on the implementation of international nature conservation law in Australia in response to domestic environmental concerns.16
I then look at the policy and parliamentary responses to this issue which have been overwhelmingly in favour of expanding commercial use of wildlife as a potential conservation measure. The chapter also examines another potential input to the political decision making process, the non-government campaign groups concerned with conservation and animal welfare which vigorously oppose any commercial use of Australia’s wildlife. The chapter concludes that conflicting messages are being fed to legislators. The decisions made in regulating Australia’s trade in wildlife reflect a regulatory approach that favours populist support, which may or may not align with sound conservation policy and it is apparent the arguments of conservation biologists have taken a back seat to date. As Bridgewater notes, public interest in wildlife issues is often influenced by campaigns by conservation groups that tend to focus on particular charismatic species and welfare issues that may override conservation problems.17
Part Two: chapters 5-7 Chapters 5 and 6 tackle the international and domestic law regulating commercial trade in wildlife. As the EPBC Act professes to respond to Australia’s international obligations, I begin with an examination of the framework and implementation of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).18 In Chapter 5 I examine the CITES regime including how it has developed over more than three decades. The aim is to demonstrate that Australia’s international obligations allow for, and perhaps even require, a more robust approach to commercial use of wildlife.
16 David Farrier and Linda Tucker, 'Beyond a Walk In The Park: The Impact of International Nature Conservation Law on Private Land in Australia' (1998) 22 Melbourne University Law Review 564; David Farrier and Linda Tucker, ‘Wise use of wetlands under Ramsar: a challenge for the meaningful implementation of international environmental law’ (2000) vol 12(1) Journal of Environmental Law 21. 17 Peter Bridgewater, ‘What conservation? Which species’, in G Grigg, P Hale and D Lunney (eds) Conservation Through Sustainable Use Of Wildlife (1995) 9. At the time he gave this paper, Bridgewater was head of the Federal Government’s environmental department.
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I describe the international regulation of wildlife trade by CITES, looking at the historical, political and cultural context of the regime and its implementation. The international regime concerning protection of wildlife – either directly or indirectly – encompasses an extensive array of agreements19 but for the purposes of this thesis I focus on CITES and its relationship with the Biodiversity Convention.
The political and economic strength of the industrialised countries set the agenda for this and other multilateral environmental agreements concluded in the 1970s which allowed their cultural perspective to dominate international conservation thinking. The historical forces that led to the creation of a protectionist instrument have, however, been diluted in recent decades to adopt notions of conservation via sustainable use, moving away from CITES’ original objective of conservation in spite of commercial use. Sustainable use may now be recognised as the most equitable and effective approach for environmental regimes if they are to reflect wider interests and needs, particularly those of the communities whose lives are intertwined with much of the world’s remaining biodiversity.
Chapter 5 sets out the history of wildlife regulation, the structure of the Convention and
18 12 ILM 1085. Opened for signature 3 March 1973, entered into force 1 July 1975. Hereafter ‘CITES’ or ‘the Convention’. 19 While the regulation of whaling, pursuant to the International Convention for Regulation of Whaling (161 UNTS 72, opened for signature 2 December 1946, in force 10 November 1948), could also have been a relevant issue, I considered it beyond the scope of this thesis. CITES and the International Whaling Commission (IWC) have reciprocal observer status at each other’s meetings (as noted in Resolution Conf. 2.7 ‘Relationship with the International Whaling Commission’). At the 11th Conference of the Parties in 2000 the CITES Parties reaffirmed their obligation to respect the decisions of the IWC. Other agreements specifically concerned with wildlife include the Convention on the Conservation of Migratory Species of Wild Animals (19 ILM 80, opened for signature 23 June 1979, in force 1 November 1983), and the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (161 UNTS 193, opened for signature 12 October 1940, in force May 1942). The Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar Convention, 996 UNTS 245, 22 ILM 698, ATS 1975 No 0048. Opened for signature 2 February 1971, entered into force 21 December 1975), although a habitat-based agreement, had its genesis in concern for waterfowl and this remains a focus. The history of the Ramsar Convention is set out in Cyril de Klemm and Isabelle Creteaux, The Legal Development of the Ramsar Convention (1995) 81. There are also a number of bilateral agreements between States concerning migratory birds. See Cyril de Klemm, ‘Migratory Species in International Law’ (1989) 29 Natural Resources Journal 935 at 954ff for discussion of international protection of migratory species. Australia’s bilateral agreements include: Agreement Between the Government of Japan and the Government of Australia for the Protection of Migratory Birds and Birds in Danger of Extinction and their Environment (1981) and the Agreement Between the Government of Australia and the
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its implementation via resolutions adopted over 13 conferences of the parties, from 1976 to 2004.20 I then discuss the evolving interpretation of CITES in the light of contemporary international environmental thinking, as reflected in the Biodiversity Convention. CITES has shown its potential to accommodate a more pluralistic set of demands to meet the needs of ecology and human society. The chapter examines these developments and the extent to which they have provided a necessary shift in the application of the Convention. The chapter also aims to demonstrate the extent to which Australia’s international obligations concerning commercial trade in wildlife have moved from a predominantly proscriptive approach to one that accommodates and even encourages certain commercial use.
I then critique the Australian regime and identify its shortcomings which, I argue, result in a failure to respond to both conservation imperatives and the objectives of CITES. In Chapter 6 I provide a detailed examination of the Commonwealth’s regulation of wildlife under the EPBC Act. I describe the Australian legal regime relating to the commercial use of wildlife. The chapter focuses on the Commonwealth’s legislation which implements CITES. This legislation influences the size and content of the wildlife use trade as it controls the export system. Australia’s relatively small population and continued neglect of its wildlife as a possible commodity, demand that exports are needed in most cases for a wildlife use operation to be viable.
The chapter sets out the history of regulation of wildlife use in Australia as well as the jurisdictional issues that have played a part in the make up of the current regime. It then provides a detailed analysis of the EPBC Act’s provisions. The chapter demonstrates that, while the EPBC Act came into force well after the Biodiversity Convention21 – and expressly acknowledges its obligations thereto – the commercial use provisions in Part 13A of the Act do not display any marked difference from the previous legislation, the Wildlife Protection (Regulation of Exports and Imports) Act 1982 (Cth). This may
Government of the People's Republic of China for the Protection of Migratory Birds and their Environment (1988). 20 The 14th Conference of the Parties to CITES will be held in July 2007. 21 As noted above, the EPBC Act came into force in 2000, while Part 13A of the Act, which introduced the new regulation of international trade in wildlife, came into force in 2001.
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partly be a consequence of the gap between the Act coming into force and the addition of Part 13A.
Australia’s legislative approach to trade has not embraced the argument that wildlife trade can be used as a conservation instrument. It reflects an unreconstructed perspective of CITES: there is no positive connection drawn between conservation and trade, in the sense that trade may be considered an aid to conservation. As explored further in Chapter 7, commercial exports from Australia of all live native vertebrates, apart from fish, have been banned since 1960 – whether or not bred in captivity and whether or not threatened or endangered.22 This Chapter demonstrates that the Commonwealth has maintained a protectionist approach, with the EPBC Act continuing this tradition. While the regime is celebrated as the “toughest in the world”, its uneven reach and application fall short of the Convention’s demands as well as the demands of contemporary conservation thinking. To assist with the examination of the Commonwealth regime, this Chapter includes tables setting out the history of export regulation and the current export provisions.
Chapter 7 builds on the legislative background provided in Chapter 6 to demonstrate that selective attitudes to wildlife are a driving force in Australia’s decision making by a critique of what is and is not considered acceptable trade in native fauna. The Chapter is divided into two sections, the first addressing non-live trade and the second the live trade. Within each section I first examine what is allowed and then set these against what is not allowed by examining proposed wildlife exports which have been prohibited. In section one I begin with the established export trade in kangaroo and crocodile meat and skins and then address the refusal to allow exports of hunting trophies of crocodiles. In section two the thriving exports of live fish and invertebrates and the established domestic trade in live native birds are set against the ban on live commercial exports of native birds.
22 Some small scale exports of individual native fauna, which occurred before 1960, have provided breeding stock for Australian wildlife still traded commercially within the countries to which they were exported: interview with Chris Mobbs, Acting head, Wildlife Protection Unit, Environment Australia (now the Department of Environment and Water Resources), 30 September 1999.
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The trophy export proposal is grounded in recognition of the need to provide incentives to achieve effective conservation, which intersects with the aspirations of remote Aboriginal communities which could have a stake in the hunting operations. The chapter then describes the state of hunting of wildlife within Australia to demonstrate the disparity between the domestic and export/import regimes.
Australia’s approach to the export proposal is in direct conflict with the recognition by CITES of the potential benefits of hunting and presents a clear obstacle to incentive- based conservation. While hunting is clearly a controversial subject it has also become increasingly accepted as one of the most successful examples of conservation via a sustainable use of wildlife. As discussed in Chapter 2, trophy hunting is a success story because of both the potential high economic returns for a limited impact on the species concerned – providing an incentive to maintain native habitat – and that such returns can often be obtained by remote and financially marginal communities. It reflects the recognition that incentives are a crucial factor in off-reserve environmental management.
It is apparent that, in Australia, the issue of the social or cultural ‘acceptability’ of recreational hunting has a significant impact on decision makers. What I argue, however, is that ‘acceptability’ is a cultural construct. The prohibitionist approach in the export regime ignores the international success stories that provide a strong argument for trialling a similar approach here. The ban on trophy exports may in fact undermine conservation initiatives. It demonstrates an apparent absence of environmental logic in the Australian wildlife regime. There may be other factors influencing this position but with no apparent explanation it is left to observers to presume the basis for prohibition.
My aim with the critique of the live export ban is to challenge the apparent acceptance of a longstanding dichotomy in the regulation of wildlife exports in which decisions as to what is or is not allowed, have no apparent justification on ecological, humane or welfare grounds. This is not necessarily about a barrier to CSU. There are a range of potential conservation outcomes, which are discussed in the chapter, but whether or not an expanded live trade could be related to habitat protection would depend on the extent
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to which the specimens were captive-bred or sourced from the wild. It does, however, show that the reluctance to even explore the proposal is steeped in selective attitudes to wildlife that are not related to particular conservation outcomes, given there is no necessary ecological detriment from the proposed trade.
The objective of this chapter is to demonstrate that a particular emotional/ cultural mindset with regard to use of wildlife has trumped conservation imperatives. Its influence is so strong that decision makers clearly do not even see the need to justify their position as there is an assumption that it reflects mainstream ‘environmental values’.
The aim of my research is to provide a thorough critique of those aspects of the Australian regulation that present barriers to at least trialling CSU initiatives because, I argue, they do not respond to environmental concerns and, further, they suggest that Australia is somehow spared the environmental realities faced elsewhere in the world.
Chapter 8 concludes the thesis and provides a summary of the arguments as well as referring to an over-arching concern in this work, the importance of both intra and inter- generational equity in achieving effective conservation of biodiversity. I conclude that the crucial stakeholders – the decision makers who formulate the wildlife trade regime – appear to have sidestepped their responsibility in grappling with the issue of ongoing serious biodiversity loss in Australia and the consequences of this for current and future generations.
Research method In the early stages of my research I spent a year at Oxford University, and had the benefit of the considerable resources of the university’s libraries, particularly the Bodleian’s Law and Science libraries, and Rhodes House (Commonwealth and African Studies). I reviewed international and domestic literature from legal, scientific, political and philosophical commentators alongside the writing of individuals who live in communities in proximity to wildlife.
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The Australian history was particularly interesting in the context of the ongoing antagonism of the State and Territory Governments to the imposition of environmental directives from the Commonwealth. For this research, I spent time at the National Archive in Canberra where I unearthed some fascinating illustrations of the resilience of federal-state antipathy. I also interviewed staff members from the Commonwealth’s then relevant department, the Wildlife Protection Unit, in person and by email, about the implementation of CITES under the Commonwealth regime.
As I increased the emphasis on the Australian regime, my research comprised a study of the relevant federal, state and territory law and policy, including both conservation and welfare provisions, proposals for expansion of commercial use of wildlife, trade information on the existing industry and conservation biology literature. I also conducted interviews, in person, by telephone and email, of scientists and bureaucrats working in the field of commercial trade of wildlife in Australia.
The scope of the research conducted clearly goes well beyond primary and secondary legal materials. This was necessary if I were to contextualise the wildlife trade regime in both providing a critique and attempting to understand the likely influences on its design and implementation. This is a particular aim of the first part of the thesis where I explore what I consider are the relevant inputs to the wildlife regime. Before tackling the critique of the law itself, I had to begin with a broader inquiry which took a socio- legal approach in recognition of how this can illuminate legal problems and issues to help understand the relationship between law and the society it seeks to regulate.23 This was necessary to attempt to unpack the multidisciplinary factors that have informed law and policy concerning wildlife use. An understanding of the social, political and cultural context in which environmental law is created and implemented is a prerequisite to analysis of why we have the instruments we do and perhaps how we may improve on their effect.
23 See discussion in Head and Mann, above n 7, at 35ff; Austin Sarat et al, ‘The Concept of Boundaries in the Practices and Products of Sociolegal Scholarship: An Introduction’ in A Sarat et al (eds) Crossing Boundaries: Traditions and Transformations in Law and Society Research (1998).
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Chapter 2
THE HOW AND WHY OF CONSERVATION VIA SUSTAINABLE USE
This chapter examines the concept of ‘conservation’ and ‘conservation via sustainable use’ (CSU) with specific reference to how these terms apply to commercial trade in wildlife. The purpose of the chapter is to provide the ecological background to the regulation of the wildlife trade. Given that this thesis is a critique of Australia’s regulatory approach to conservation via sustainable use of wildlife, it is important to demonstrate why CSU has become an increasingly important player, alongside protective measures, in environmental management. The chapter examines the debate including the recognition that, while CSU may be now accepted as a crucial tool, environmental managers are only in the early stages of developing effective implementation and evaluation.
Understanding of the meaning and application of ‘conservation’ has significantly changed over the past few decades with a continued move away from the focus on protection of the environment from any human consumptive use towards protection from unsustainable human use. This recognises the pervasiveness of human-induced effects on the environment and that the needs of both ecosystems and humans are inextricably linked.1 Such movement does not, however, take us away from the origins of ‘conservation’ which is derived from the Latin: conservare ‘to preserve’, from con – ‘together’ + servare ‘to keep’.2 Even a ‘preservationist’ stance therefore may allow for conservation via sustainable use, if it means the ‘keeping together’ of a species or ecosystem. In the next chapter I examine different perspectives in the valuing of nature
1 Margaret Palmer et al, ‘Ecology for a Crowded Planet’ 304 Science (28 May 2004) 1251 at 1251. 2 Concise Oxford English Dictionary 11th ed (2004). The Dictionary’s definition begins with what would appear to be the protectionist approach while its second definition is more akin to understanding of sustainable use: conservation n. 1 preservation or restoration of the natural environment and wildlife. > preservation and repair of archaeological, historical and cultural sites and artefacts. 2 careful use of a resource…
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and whether this is directed at the level of the individual specimen or the species. If we assume that the concern of conservation will be from the species, community or even ecosystem level, rather than directed to the individual specimen, then we can direct the debate to the issue of how best to achieve this ‘keeping together’ of wildlife.
Clearly, without more, it is difficult to argue that trapping, selling or killing a wild animal – what will henceforth be referred to as ‘consumptive use’3 – is a form of conservation. The arguments should, however, be seen in the context of what are effective ways to achieve long term species and, possibly, ecosystem protection. While the initial premise may appear counterintuitive, it takes only a minor broadening of view to understand the rationale for addressing consumptive use within any conservation debate. This is because conservation does not occur in a vacuum, it forms part of the human response to our natural environment on which we rely for our survival. .. much of the world depends on wild species for an array of products, whether for food, fiber [sic] or medicine. Thus, in many cases, the question is not whether to use wild species, but rather how to move from a system of use that is clearly not sustainable toward one that is better.4
CSU, then, is a pragmatic response to our reliance on the consumptive use of wild natural resources. It recognises that conservation is a matter of managing the different possibilities on a spectrum of human interaction with the environment. This spectrum ranges from absolute protection to obliteration. Between those two extremes, it should be safe to assume that the most extensive form of interaction is ongoing human use of the environment. This ongoing use will then move either way along the spectrum, depending on the competing imperatives or influences that determine human decisions
3 It may also be helpful to understand this as ‘extractive use’, as described by JM Hutton and N Leader- Williams (2003) ‘Sustainable use and incentive-driven conservation: realigning human and conservation interests’, 37(2) Oryx 215. Hutton and Leader-Williams describe this as use which removes the individuals from the wild population. This may be entirely or in part, such as wool shorn from vicuna or venom from snakes (at 217). 4 Curtis H. Freese, ‘The “Use It or Lose It” Debate’ in C. Freese (ed.) Harvesting Wild Species, Implications for Biodiversity Conservation (1997) at 2. See also Hutton and Leader-Williams, above n 3, at 216.
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on the type and level of use. If this were applied to a certain area of habitat, say a forest, the interaction may move towards protection by way of reserving the land when threats are so great and/or there are significant economic, cultural, social demands for the protection and/or competing demands do not trump the protectionist approach. The move up to and including obliteration will occur when the dominant economic, cultural, social demands are for a non-ongoing use, that is one incompatible with the forest’s continued existence – such as conversion of the forest to grazing lands or for residential or industrial development.
While absolute protection – in which there is no human impact on selected components of the natural environment – may be regarded as an ideal approach to ‘keeping together’ of environmental components, it is probably close to impossible, given the wide and diffuse influence of humanity. At best, it may be the removal of all direct human impacts from a given area or a prohibition on any human interaction with a select species. More commonly, protective measures may encompass minimal and non- consumptive human interaction. Measures within the protectionist field will apply when either drastic action is needed to stop obliteration or where there is a preference for protection that is not outweighed by competing consumptive needs.
Conservation via sustainable use in this broader context encompasses sociological, political and economic issues as well as ecological concerns. It may therefore help to unpack some of its interrelated objectives: • It can provide damage limitation or positive conservation outcomes; • It may focus on individual species or the habitat in which they exist, and it will be important to distinguish these concerns in any justification of proposals for use; • It may be seeking to achieve positive conservation outcomes by addressing ecological concerns, social and cultural (ie, human) concerns or an intertwining of both.
This chapter is divided into three sections: section one deals with the ‘why’, that is, why is CSU important; section two deals with the ‘how’, the various ways in which CSU
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may be implemented as part of environmental regulation and management; section three addresses the ‘why not’, the arguments against CSU and the responses to these concerns.
Examination of the ecological background also requires appraisal of the interacting socio-economic factors affecting conservation outcomes. Section one discusses why conservation has moved its focus away from setting aside nature and protecting it from human use, given the cost to human communities excluded by such measures. The human dimension is then linked to the ecological arguments in favour of what has been termed ‘incentive-driven conservation’, that acknowledges the interaction between human and environmental needs.
In section two, the ‘how’ of CSU begins with a discussion of property rights issues in the creation of a conservation incentive. It then illustrates the concept in practice by what are considered CSU success stories: crocodile ranching and regulated trophy hunting.
Section three addresses the major objections to CSU in relation to the trade in wildlife. I bring these within the broad umbrella of uncertainty as to outcome. This includes uncertainty as to the environmental impact of introducing commercial trade, uncertainty as to the economic outcome, that is, whether trade can provide sufficient returns and be distributed in such way as to meet the needs canvassed in section one, and uncertainty in relation to the impact of a legal trade on smuggling. I discuss the role of the precautionary principle and its particular impact on wildlife use proposals and whether the adaptive management approach may provide an effective response.
I conclude that CSU, while still subject to great uncertainty, must be grappled with by environmental managers in the struggle to achieve effective conservation, as this requires a response to both human and ecological demands.
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S1. Conservation in a world of use
This section examines why conservation via sustainable use has become the focus of conservation debate in recent years. It begins with an exploration of the concept of CSU which is followed by an examination of the need for the shift of emphasis from protection to sustainable use given the costs to human communities when natural resources have been designated ‘off-limits’.
1.1 Combining conservation and sustainable use
Since the 1972 Stockholm Declaration on the Human Environment5 recognised the need to integrate environmental protection with development,6 there has been a continued exploration of the role of sustainable use and how wide the conservation net must be thrown to be effective. This includes the IUCN’s 1980 World Conservation Strategy,7 the 1982 World Charter for Nature,8 the Brundtland Report,9 which emphasised that environment and development are “inexorably linked”,10 and the IUCN, UNEP and WWF Report, Caring for the Earth: A Strategy for Sustainable Living.11
These formulated non-binding principles were buttressed by the 1992 United Nations Conference on Environment and Development (UNCED). The conference specifically sought to reconcile the imperatives of conservation and human use of the environment
5 UN Doc A/CONF.48/14. Adopted by the United Nations Conference on the Human Environment in 1972. The Declaration is the recognised harbinger of the modern international environmental law regime. See, for example, Patricia Birnie and Alan Boyle, International Law and the Environment (2002), at 24; and Patricia Birnie and Alan Boyle, Basic Documents on International Law and the Environment (1995) 1. 6 For example, Principles 13, 14. 7 IUCN, UNEP, WWF (1980). 8 Adopted by the UN General Assembly, 28 October 1982, UN Doc A/37/51 (1982). 9 World Commission on Environment and Development, Our Common Future (1987). 10 Id, 37. See discussion of the report in Philippe Sands, Principles of International Environmental Law (2nd ed) (2003) at 10-11 and 48-50. 11 IUCN, UNEP, WWF (1991).
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and produced the Rio Declaration12 and Convention on Biological Diversity (CBD)13 which crystallised the change of emphasis in international nature conservation thinking from protection to conservation via sustainable use. Article 1 of the CBD provides that the objectives of the Convention are: “the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources”.14 In his analysis of the 1992 Conference, Kiss comments that an important point reinforced by the meeting is the “merger between environmental protection and development which seems definitive. Nobody engaged in one of the two fields can ignore the other”.15 Article 2 of the CBD defines sustainable use: … the use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations’.
The Biodiversity Convention specifically addresses sustainable use of components of biodiversity as a positive strategy to be integrated with conservation in national decision making.16 Article 10 requires that the Parties encourage both customary use of
12 Adopted by the United Nations Conference on Environment and Development in June 1992, in Rio de Janeiro. UN Doc A/CONF.151/5/Rev.1, 31 ILM 874. 13 31 ILM 818, 824 (1992). 14 For a detailed discussion of the negotiation of the Convention and its eventual provisions, see Alan Boyle, ‘The Rio Convention on Biological Diversity’ in M Bowman and C Redgwell (eds) International Law and the Conservation of Biological Diversity (1996), 33. It should be noted that, while this thesis embraces a definition of conservation that interacts with sustainable use, the terms 'conservation' and 'sustainable use' are provided as distinct terms in the Biodiversity Convention. As Glowka et al explain, the CBD took a different approach from other environmental texts such as the World Conservation Strategy because of a perceived need to achieve a fair balance between the objectives encompassed in both terms: "The intention was not to imply that the two concepts are in reality separable. Rather, the separation has its origins in the wishes of the developing countries who wanted to emphasize the importance of using the components of biological diversity, albeit in a sustainable way. They were particularly concerned that the term 'conservation', if used in the Convention on its own, could shift emphasis to the term's preservation aspects." Lyle Glowka, Francoise Burhenne-Guilmin and Hugh Synge, A Guide to the Convention on Biological Diversity (IUCN Environmental Policy and Law Paper No. 30 ) (1994) at 25. 15 Alexandre Kiss, ‘The Rio Declaration on Environment and Development’ in L Campiglio et al (eds) The Environment After Rio, International Law and Economics (1994) 55 at 64. 16 Biodiversity Convention, Article 10(a).
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biological resources17 and cooperation between the public and private sectors in ‘developing methods for sustainable use of biological resources’.18
In 2004 the Secretariat to the Biodiversity Convention released the Addis Ababa Principles and Guidelines for the Sustainable Use of Biodiversity (‘Addis Ababa Guidelines’) which provide a framework to act on the CBD’s objectives. They operate on the premise that sustainable use is a valuable conservation tool as “in many instances it provides incentives for conservation and restoration because of the social, cultural and economic benefits that people derive from that use.”19
The underlying justification for sustainable use, as provided in the Addis Ababa Guidelines, includes, inter alia: (c) In circumstances where the risk of converting natural landscapes to other purposes is high, encouraging sustainable use can provide incentives to maintain habitats and ecosystems, the species within them, and the genetic variability of the species…20
It is important to place sustainable use within this broader context of the ‘Ecosystem Approach’, which is considered crucial to implementation of the CBD. Decision 5 from the 6th meeting of the Conference of the Parties to the CBD endorsed the Ecosystem approach, central to which is placing management of ecosystems within a broader economic and societal context. It is described as “a strategy for the integrated management of land, water and living resources that promotes conservation and sustainable use in an equitable way … based on the application of appropriate scientific methodologies … which encompass the essential structure, processes, functions and interactions among organisms and their environment. It recognizes that humans, with
17 Article 10(c). 18 Article 10(e). 19 Secretariat of the Convention on Biological Diversity, Addis Ababa Principles and Guidelines for the Sustainable Use of Biodiversity (2004), p 5. The introduction goes on to note that the principles largely apply to both consumptive and non-consumptive use. 20 Id, 7.
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their cultural diversity, are an integral component of many ecosystems”.21 ‘Ecosystem’ is defined in Article 2 of the CBD as “a dynamic complex of plant, animal and micro- organism communities and their non-living environment interacting as a functional unit”.
Decision 11 from the 7th meeting of the Conference of the Parties to the CBD, noted that: “the priority at this time should be on facilitating the implementation of the ecosystem approach as the primary framework for addressing the three objectives of the Convention in a balanced way”.22 Annex 1 to the Decision describes the approach as incorporating the following considerations: (a) Management of living components is considered alongside economic and social considerations at the ecosystem level of organization, not simply a focus on managing species and habitats; (b) If management of land, water, and living resources in equitable ways is to be sustainable, it must be integrated and work within the natural limits and utilize the natural functioning of ecosystems; (c) Ecosystem management is a social process. There are many interested communities, which must be involved through the development of efficient and effective structures and processes for decision-making and management.
The point is that CSU is not only about the management of a particular species via its economic exploitation; rather it forms part of the management of ecosystems, taking into account these broader considerations. The Addis Ababa Guidelines also emphasise that the ecosystem approach underpins their application.23
Both CSU and the ecosystem approach clearly respond to similar concerns with the CBD’s Decision V/6, noting that: “The greatest threat to biological diversity lies in its
21 Decision V/6, ‘Ecosystem Approach’, Sixth meeting of the Conference of the Parties to the Convention on Biological Diversity, The Hague, Netherlands, 7 - 19 April 2002. 22 Decision VII/11, ‘Ecosystem Approach’, Seventh meeting of the Conference of the Parties to the Convention on Biological Diversity, Kuala Lumpur, Malaysia, 9 - 20 February 2004. 23 Principle 5 provides that this is a “fundamental assumption” of the guidelines. Secretariat of the Convention on Biological Diversity, above n 19, at 6.
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replacement by alternative systems of land use. This often arises through market distortions, which undervalue natural systems and populations and provide perverse incentives and subsidies to favour the conversion of land to less diverse systems.”24 This echoes Practical principle 3 of the Addis Ababa Guidelines which calls for the removal or mitigation of those instruments that “distort markets which contribute to habitat degradation or otherwise generate perverse incentives that undermine conservation and sustainable use of biodiversity”.25
It is, however, important to note that the CBD’s emphasis on sustainable use does not exclude protection as a legitimate environmental management tool where there is a need for special treatment for species and ecosystems.26 The role of reserves has, however, moved from providing the centrepiece of conservation measures with rigid boundaries within which all consumptive use is prohibited. As Article 8 of the Biodiversity Convention makes clear, reserve systems are a necessary but not sufficient instrument for effective conservation. Article 8(c) looks beyond reserve boundaries, requiring regulation of biological resources ‘important for the conservation of biological diversity whether within or outside protected areas with a view to ensuring their conservation and sustainable use'.
The Convention provides for a broad sweep of protective measures concerning threatened species, habitats and ecosystems,27 but even protected areas may encompass some forms of use. McNeely et al note that implementation of Article 8(a)’s requirement to ‘Establish a system of protected areas or areas where special measures need to be taken to conserve biological diversity’ should have greater regard to the gradations of protected areas available, as set out in the IUCN Protected Areas
24 Above, n 21. 25 Above n 19, at 10. See also underlying condition (c) to the Guidelines, above, n 20. 26 Glowka et al, above n 14, at 4. 27 Article 8(k). Article 8(d); Articles 7(c), 8(l). See discussion in David Farrier and Linda Tucker 'Beyond a Walk In The Park: The Impact of International Nature Conservation Law on Private Land in Australia' (1998) 22 Melbourne University Law Review 564.
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Management Categories.28 The categories range from I: Strict Nature Reserve / Wilderness Area: protected area managed mainly for science or wilderness protection; to VI: Managed Resource Protected Area: protected area managed mainly for the sustainable use of natural ecosystems.29 Allowing for some continued use may minimise conflicts that arise with the imposition of reserve boundaries (see discussion at 1.2 below).30
The positive regard for sustainable use as a conservation tool, flowing from acknowledgement that all peoples rely to some extent on wild resources, has also been recognised specifically in relation to the trade in wildlife. The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)31 has continued to move away from its initial, prohibitionist stance. In 1992,32 the CITES Conference of Parties (CoP) agreed to Resolution Conf 8.3, ‘Recognition of the benefits of trade in wildlife’, which provided that the CoP: RECOGNIZES that commercial trade may be beneficial to the conservation of species and ecosystems and/or to the development of local people when carried out at levels that are not detrimental to the survival of the species in question; and
RECOGNIZES that implementation of CITES-listing decisions should take into account potential impacts on the livelihoods of the poor.
28 Jeffrey A. McNeely et al ‘Biodiversity’ in Kanchan Chopra et al (eds) Ecosystems and Human Well- being: Policy Responses: Findings of the Millenium Ecosystem Assessment (2005) 119 at 126. 29 IUCN Category descriptions are available at < http://www.unep- wcmc.org/protected_areas/categories/eng/index.html>, accessed January 2007. 30 The CBD Secretariat has also recognised the ‘very strong consensus’ that protected areas need to contribute to poverty alleviation by ensuring the continued provision of resources to local communities. Jeffrey A McNeely, ‘Protected Areas, Poverty, and Sustainable Development’ in Secretariat for the Convention on Biological Diversity, CBD Technical Series No. 15, Biodiversity Issues for Consideration in the Planning, Establishment and Management of Protected Area Sites and Networks (2004), available at
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In 2000, the IUCN issued its Policy Statement on Sustainable Use of Wild Living Resources.33 The statement builds on General Assembly Resolution 18.24,34 which recognized that the “ethical, wise and sustainable use of some wildlife can provide an alternative or supplementary means of productive land use, and can be consistent with and encourage conservation, where such use is in accordance with appropriate safeguards”. The 2000 Policy Statement notes that use of biological diversity, if sustainable, “can serve human needs on an ongoing basis while contributing to the conservation of biological diversity”. The policy reflects an increasing emphasis in environmental documents on the socio-economic context of conservation.
Trade in wildlife has been estimated as having an annual worth in the billions in dollars and while there are risks involved, these are viewed alongside the ‘enormous benefits’ from consumptive use that “play a major and very often critical role in the livelihoods of a high proportion of the world’s population and it is often the poorest people and households that are most dependent on these resources”.35
Conservation via sustainable use of wildlife proposes that commercialising wildlife is a response to either: threats arising from competing demands on native habitat, by introducing an economic incentive to protect wild species within the habitat; or to existing use of wild flora and fauna, by working to make such use sustainable. It is often proposed as a conservation initiative when protection of a species from any use is likely to result in greater eventual losses, particularly because of the antagonism it engenders in surrounding human populations.36 The use can take a number of forms, including trade in animal products: meat, eggs, feathers, skins (for leather and fur); sale of live animals for the pet and zoo trade; sport and trophy hunting of large animals by the
33 The IUCN Policy Statement on Sustainable Use of Wild Living Resources (Resolution 2.29) adopted at the IUCN World Conservation Congress, Amman, October 2000. Available at
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tourist/safari trade.37 The main aim is to provide an incentive for in-situ conservation and this can be achieved by modifying existing trade, introducing new trade and addressing illegal trade. All of these measures rely on the introduction, or return, of some form of community stakeholding in wildlife that encourages conservation.
A dispute between two biologists over the value of commercial use of wildlife, recorded in the pages of Conservation Biology, highlights what I consider the central issue in this debate: the proposal to achieve conservation via sustainable use of wildlife must be evaluated in a broader context, keeping in mind: with what is commercial use being compared?
The attack on the concept of ‘sustainable harvesting’ from Thomas Struhsaker of Duke University in the United States, describes commercial use as “an activity whose objective is the material welfare of a select group of humans”38 with no necessary connection with conservation “except in a coincidental and passive way”. The focus on select commercially viable organisms means it is rare that nonmarketable species in an exploited ecosystem are considered. He stresses that harvesting can only play a conservation role where it is based on a goal of conserving all members of the old growth community, not just the harvested commodity.39 Struhsaker states that “most, if not all, attempts at sustainable harvesting have failed” and concludes that to achieve “effective conservation of old growth species… there is no substitute for totally protected areas.40
In response, Medelli´n, a research scientist from the Universidad Nacional Autonoma de Mexico, and member of the CITES animals committee, argues in favour of
37 Kent H. Redford and John G. Robinson, ‘Subsistence and Commercial Uses of Wildlife in Latin America’ in John G Robinson and Kent H Redford (eds) Neotropical Wildlife Use and Conservation (1991) at 9-22. 38 Thomas T Struhsaker, ‘A Biologist’s Perspective on the Role of Sustainable harvesting in Conservation’ (1998) 12(4) Conservation Biology 930-932 at 930. 39 Id, 931. 40 Ibid.
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sustainable harvesting.41 His position is based on problems caused for local communities by the loss of access to resources and the benefits from conservation incentives based on economic returns from harvesting species. Commercialisation can lead to a “revaluation of forested lands” where such land can obtain greater value than open agricultural land, leading to “a 180-degree turn in local land-use philosophies” with several communities setting aside restoration areas for future forest recovery and use.42
Medelli´n expresses doubts regarding the ongoing viability of protected areas, particularly where there is “local irritation” at the loss of access to resources and, even if such areas are successfully protected (which can require rigorous law enforcement), this can create a sharp contrast with the surrounding, altered landscape that creates “important alterations in pattern and process for the natural system”.43 He argues that the pressure of human population growth on natural resources, especially in the tropics, demands “creative realistic solutions” for which neither total protection nor use-it-or- lose-it approaches are the only answer: We live in a semi-natural matrix that has been forever altered from its original state.44
There is some overlap in the two arguments as both are seeking as broad an application of conservation principles as possible but within different environmental frameworks; Struhsaker’s concern is with commercially attractive species seizing all the attention at the expense of the less desirable ones while Medelli´n seeks an approach to conservation that does not isolate particular physical areas as islands of protection in the landscape. Both are thus concerned about select application of protective measures, but these concerns are informed by a different appreciation of conservation imperatives. It is apparent that a perception of whether commercial use of wildlife can be a legitimate
41 Rodrigo Medellin, ‘Sustainable Harvesting and Conservation’ (1999) 13(2) Conservation Biology 225. 42 Ibid. 43 Ibid. 44 Ibid.
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conservation instrument depends on the alternatives available for a given ecosystem or species. That is, an evaluation of the benefits of commercial use must be undertaken in the broader context of what will happen to the wildlife and its habitat if there is no such commercialisation.
1.2 The human cost of conservation
Wildlife may be a “priceless asset” but if not properly valued, it stands little chance of surviving constrained management budgets and competing land-use pressures.45
Whether there can be protection by locking a species or habitat away from human consumption will depend on, firstly, if such decision is socially and economically affordable and, secondly, whether other threats exist such that it will in fact undermine the desired result. Affordability in this context relates to the issue of competing demands – is there an economic, social or cultural need for the consumptive use such that prohibition would alienate existing and potential users and create new and potentially destructive demands on other components of the environment.
Secondly, even where it is ‘affordable’, and is thus possible to lock a species away from human consumptive use, the outcome will depend on various factors, including whether human consumption is in fact the dominant threat to the species concerned. The protection may not be effective if, for example, the major threat is the loss of native habitat for the species concerned. Where overuse of a species has resulted in an imminent threat to its survival, the ability to remove such threat by stopping all use could be the best option. Where this is not possible, then ‘protecting’ the species may entail determining a level and type of use that reduces the current threat and is, hopefully, sustainable.
45 Kudzai Makombe (ed), Sharing the Land, Wildlife, People and Development in Africa, IUCN/Rosa Issues Series No 1, (1993), 31.
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CSU, then, is an attempt to manage the realm of human interaction between two extremes by weighing up a raft of competing demands and interests within myriad human and ecological contexts. Conservation in this context should be seen as a relative concept, that is, in contrast to what exists or is proposed (or threatened) for any given species, habitat or ecosystem, sustainable use provides a preferable outcome.
Questions of affordability, in both social and economic terms, are of particular significance in developing countries. Aside from Australia, the world’s megadiverse states – which are home to the vast majority of wild species – are all developing economies.46 Conservation of biodiversity must operate within a context whereby the poorest nations are those containing the most biodiversity, and the populations of which are most dependent on their surrounding environment for sustenance, while the wealthiest nations wiped out much of their biodiversity centuries ago and draw their sustenance from environments across the globe. There is therefore a highly uneven distribution of the costs and benefits of protectionist approaches to conservation in developing countries. The rural poor bear the brunt of the costs through the removal of much-needed resources – with little input into decision making47 – while the benefits tend to be reaped at the national and international level.48
46 Australian Government Department of Environment and Heritage, About Biodiversity, available at
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Certain species have also been anthropomorphised or glamourised in some way, resulting in a recoil from the idea of their use for consumption or commercial reward. Such recoil is a luxury restricted to those who may turn to alternative means for survival. At the same time, there has been an over reliance on those species deemed as acceptable for consumptive use.49 Bowman notes that, while aesthetic value has played a prominent role in the conservation movement, it sits uneasily with modern notions of biodiversity protection at a global level “given its rather cosy, middle-class, Northern hemisphere orientation. For those whose daily struggle is for survival, the aesthetic appeal of the natural world is unlikely to loom large on the list of life’s priorities”.50
Regulatory measures with such inequitable impacts have understandably been criticised for being at the least ineffective and possibly counter-productive. As Young comments, unfairness will seriously undermine regime compliance.51
No programme for protecting the environment can succeed without alleviating day-to-day pressures of poverty. These pressures leave people little choice but to discount the future so deeply that they fail to protect the resource base to ensure their own and their children's well-being.52
49 Wilson criticises the perspectives that have led to human reliance on “a narrow range of ungulate mammals … ill suited for most habitats of the world and often spectacularly destructive of the natural environment. In many cases these species are locally inferior in yield to wild species that humanity has left unattended”. He goes on to list several wild animals that have “enormous” commercial potential, including Amazon river turtles, green iguana (the “chicken of the trees”) and babirusa (pig like animals from Indonesia and nearby islands). All have high protein yields and are much used by their local community but do not attract commercial interest and are thus becoming endangered as the preference for livestock results in the destruction of their habitat Edward O Wilson, The Diversity of Life (1992), 294- 297.
50 Michael Bowman, ‘The Nature, Development and Philosophical Foundations of the Biodiversity Concept in International Law’, in M Bowman and C Redgwell (eds) International Law and the Conservation of Biodiversity (1996) 17. 51 Oran R Young, ‘Fairness Matters: The Role of Equity in International Regimes’, paper given to the Conference on Environmental Justice: Global Ethics for the 21st Century, Melbourne (October 1997).
52 Klaus Töpfer, Executive Director of the UN Environment Programme. UNEP press release, 17 June 2000
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In their argument in support of the contention that an international law of the environment with a system of rules and principles does exist, Birnie and Boyle point to the gradual emergence of its component parts in the fields of pollution control and conservation of the natural environment. They note, however, that there are qualifications to this development, the most significant of which “concerns the different priorities of southern hemisphere less-developed countries and their demands for ‘special consideration’.”53
This was recognised in 1972 in Principle 23 of the Stockholm Declaration: Without prejudice to such criteria as may be agreed upon by the international community, or to standards which will have to be determined nationally, it will be essential in all cases to consider the systems of values prevailing in each country, and the extent of the applicability of standards which are valid for the most advanced countries but which may be inappropriate and of unwarranted social cost for the developing countries.
International environmental instruments have been infused with a degree of flexibility to take into account the differing capacities of contracting States; international regimes may tolerate different levels of compliance, provide funding and give assistance to design appropriate domestic regulatory systems. Principle 7 of the Rio Declaration also introduces the concept of “common but differentiated responsibilities of States in view of their different contributions to global environmental degradation”.54
The ‘toleration’ of a lower standard of compliance for developing countries, however, papers over the inherent discrimination of an approach to conservation which means protecting biodiversity from use,55 without acknowledging the relative luxury of the circumstances in which such protection can be afforded.
53 Birnie and Boyle (2002), above n 5, 87. 54 Rio Declaration on Environment and Development. 55 With the notable exception of the Convention on Biological Diversity.
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[Americans] possess a vast, beautiful, and sparsely populated continent and are also able to draw upon the natural resources of large portions of the globe by virtue of their economic and political dominance. In consequence, America can simultaneously enjoy the material benefits of an expanding economy and the aesthetic benefits of unspoilt nature. The two poles of “wilderness” and “civilization” mutually co-exist in an internally coherent whole…56
The imposition of a protectionist ideology – which informed pre-Biodiversity Convention international nature conservation policy57 – has had cultural and economic ramifications for those people living in dependent relationships with wildlife,58 leading to the disruption or breakdown of traditional forms of resource management which embraced consumptive use.59 Given the pressures on available resources, environmental management in developing countries involves fraught choices between the needs of impoverished rural populations and the protection of biodiversity. Further, the decisions to protect land and species may be regarded by local communities as an illegitimate appropriation of their traditional ownership, management and use of natural resources.60 Guha describes such decisions as resulting in “a direct transfer of resources from the poor to the rich”.61
56 Ramachandra Guha, ‘Radical American Environmentalism and Wilderness Preservation: A Third World Critique’ (1989) 11(1) Environmental Ethics 71, at 79. 57 Like CITES, the earlier Conventions, such as the Convention concerning the Protection of the World Cultural and Natural Heritage (1972) and the Ramsar Convention on Wetlands of International Importance Especially as Waterfowl Habitat (1971), seek to deliver nature conservation through the identification and protection of special areas (World Heritage Areas, Wetlands of International Importance) and specific species. They strive to conserve nature through isolating distinctive areas and species rather than managing across the whole landscape. The Ramsar Convention does, however, address sustainable use beyond protected areas via its provisions concerning ‘wise use’ of non-listed wetlands. See Farrier and Tucker (1998) above n 27; and David Farrier and Linda Tucker ‘Wise use of wetlands under Ramsar: a challenge for the meaningful implementation of international environmental law’ (2000) 12(1) Journal of Environmental Law 21. 58 For example, in India, national parks have been declared with significant human populations still within the boundaries: Kothari et al, above n 47, at 34. See also Guha, above n 56. 59 Madhav Gadgil, ‘Conserving Biodiversity as if People Matter: A Case Study from India’ (1992) 21(3) Ambio, 266 at 268. 60 Id, 266-67. Gadgil notes that this has been a legacy of European imperialism and the imposition on colonised peoples of a property rights system which recognised only state or private ownership. 61 Guha, above n 56, at 75.
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The current approach treats conservation as a matter of keeping local people out of a few large nature reserves and preventing them from killing most larger species of wild reptiles, birds and mammals anywhere within the district. All the decisions pertaining to such regulations are made centrally….62
People surviving on marginal returns are unlikely to embrace prohibition on the use of precious resources unless there are clear benefits to their standard of living. The denial of the value of local knowledge and destruction of a community’s autonomy and any consequent alienation from the conservation regime, can have disastrous effects for the local population – both economic and cultural. This can backfire on the conservation objectives as the combination of repressive regulations, exclusion of local people from the planning process and failure to take into account socio-economic conditions as well as the predations of wildlife on rural communities may “contribute to the downfall of much ‘well-intentioned’ legislation”.63 The affected community may be prepared to act illegally, to assert their access to local natural resources64 by illegal logging and burning, agricultural encroachment and poaching,65 whether out of antipathy towards the regime and/or from a lack of alternative resources. No programme for protecting the environment can succeed without alleviating day-to-day pressures of poverty. These pressures leave people little choice but to
62 Gadgil, above n 59, at 269. See also Jules Pretty, ‘People, livelihoods and collective action in biodiversity management’ in Tim O’Riordan and Susanne Stoll-Kleeman (eds), Biodiversity, Sustainability and Human Communities: Protecting beyond the Protected (2002) 61 at 64ff. 63 Makombe, above n 45, at 7-8. 64 Kothari et al, above n 47, at 191. See also Jonathan S Adams and Thomas O McShane, The Myth of Wild Africa: Conservation Without Illusion (1992) in which the authors comprehensively attack the imposition of ‘Western’ notions of conservation that have excluded local people from long standing relationships with wildlife with disastrous results for the people and the wildlife. 65 Gadgil notes that population increases due to medical and scientific successes, such as those concerning the Tsetse fly in Africa and malaria in India are a further factor to consider in relation to pressures on wildlife. Above n 59, at 267. In contrast, the continued presence of the Tsetse fly in Mozambique is considered to have been more of a boon for biodiversity “than any national or international policy initiatives” as it has forced down livestock numbers. Simon Metcalfe, ‘Decentralisation, Tenure and Sustainable Use’ in J Hutton and B Dickson (eds) Endangered Species Threatened Convention, The Past, Present and Future of CITES (2000), 158. See also Jeffrey D Hackel, ‘Community Conservation and the Future of Africa’s Wildlife’ (1999) 13(4) Conservation Biology 726, at 732.
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discount the future so deeply that they fail to protect the resource base to ensure their own and their children's well-being. 66
The government may then be forced to attempt “expensive and often futile protectionist approaches in order to enforce the exclusion of local people”.67 Adding insult to injury, the removal of traditional interactions between the local community and the environment may then result in further ecological degradation with the breakdown of the relationship between communities and wild animals which may have been based on a long standing and intricate ecological and cultural dynamic.68
The tensions arising from disruption to human communities in the name of conservation are exemplified by those schemes that have focused on iconic, charismatic animals such as elephants and tigers. While both elicit powerful and often emotive responses, making them the popular face of conservation initiatives, protective measures have at times backfired with poor outcomes for both local human populations and the protected species. In India, for example, ‘Project Tiger’ created a network of parks which has been criticised for its “physical displacement of existing villages and their inhabitants”, ignoring the needs of the local population in favour of ‘rich tourists’.69 'If you love tigers so much, why don't you shift all of them to Hyderabad and declare that city a tiger reserve?'70
66 Töpfer, above n 52. 67 Kothari et al, above n 47, at 191. 68 Pretty, above n 62, at 65-66. This was the case in India’s Keoladeo National Park, a World Heritage site and Ramsar-listed wetland, where the exclusion of buffalo from a wetland recognised as valuable for migratory birds led to serious conflict between graziers and park officials. The sudden removal of buffalo also resulted in grass in the wetland becoming so overgrown that many of the bird species stopped using the wetland. The villagers are now allowed to come in to the park to cut grass for their buffalo. Farrier and Tucker above n 57, at 32; Kothari et al, above n 47, at 35. 69 Guha, above n 56, at 75. The project began in 1973 with the designation of nine reserves, managed for the protection of tigers: HS Panwar, ‘What to do when you’ve succeeded: Project Tiger, ten years later’ in JA McNeely and KR Miller (eds) National Parks, Conservation and Development: The role of protected areas in sustaining society (1984) 183. 70 A Chenchus tribal man quoted in Gadgil, above n 59, at 266.
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The conflicts between the local communities and protective management have stemmed from, on the one side, loss of crop and grazing land as well as loss of cattle to tigers, and, on the other, poaching of tigers and threats to protected areas from competing land uses.71 The scheme has also been criticised for operating under the “mistaken assumption” that reducing the pressure of people equates with positive conservation. That is, the scheme maintains the protectionist approach, favouring exclusion over integration.72
This is not to suggest that protection of certain species should not occur, but that externally imposed processes may fail if they do not properly acknowledge the communities living in proximity to wildlife.
The increasing work on CSU at an international level is a response to these tensions as the aim is to develop a conservation approach that does not have such an uneven distribution of costs and benefits. The focus is the introduction of incentives to encourage and/or facilitate conservation. This is recognised as central to effective conservation across the landscape. The principle at its most basic is: put a commercial value on a wild species and this creates a commercial value for the species and, hopefully, the ecosystem in which it exists. This may lead to the habitat being conserved, conserving the exploited wildlife and, in passing, conserving all of the other components of the fauna and flora which comprise that habitat. This is a sharp contrast to what is usually the case, where natural habitat is cleared as a prelude to planting a traditional crop or introducing grazing stock.73
71 Kathy MacKinnon, Hemanta Mishra and Jessica Mott, ‘Reconciling the needs of conservation and local communities: Global Environment Facility support for tiger conservation in India’ in J Seidensticker, S Christie and P Jackson (eds) Riding the Tiger (1999) 307. The authors note that more than 89,000 people live within the tiger reserves. The surrounding areas are also densely populated: one reserve – Periyar – has an estimated 225,000 people living within two kilometres of its boundaries. Id, 308. 72 Kothari et al, above n 47, at 36. 73 Tony Pople and Gordon Grigg, Chapter 8, ‘Sustainable Use Of Wildlife For Conservation’, Commercial Harvesting of Kangaroos in Australia. See also Freese, above n 4, at 2, in which he
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The importance of incentive-driven conservation is clearly recognised in international agreements. Article 11 of the CBD provides: ‘Each contracting party shall as far as possible and as appropriate, adopt economically and socially sound measures that act as incentives for the conservation and sustainable use of components of biodiversity’.74
The preamble to CITES Resolution Conf 8.3 provides in part that the parties recognise that “sustainable use of wild fauna and flora … provides an economically competitive land-use option” and are aware that “unless conservation programmes take into account the needs of local people and provide incentives for sustainable use of wild fauna and flora, conversion to alternative forms of land use may occur”.
As Hutton and Leader-Williams emphasise, the use of what they term ‘incentive-driven conservation’ should form part of a strategy which combines protection and use across the landscape and can take many forms. Incentives “may be social or financial … positive or negative” recognising the differing interests of developed and developing countries and the particular needs of the rural poor who “live side-by-side with the exploited species”.75
The concept of using commercial use as an incentive provides a response to potential competing demands that pose a greater threat to native habitat. As discussed above, management options need to be cognisant of relative threats to biodiversity, arising across a range of demands. Management decisions may not have the luxury of opting for no use of the natural resources; rather they will be concerned with weighing up competing demands. The incentive argument responds to the issue of ‘affordability’ of conservation decisions.
articulates the ‘use it or lose it’ position. 74 Article 8(j) of the Biodiversity Convention requires that Parties “respect, preserve and maintain” indigenous knowledge and practices relevant to conservation and “promote their wider application with the approval and involvement of the holders of such knowledge” and “encourage the equitable sharing of the benefits arising from the utilisation of such knowledge”. However, the obligation to so act is buffered by acknowledgement of the predominance of national sovereignty. The Parties need only comply “as far as possible and appropriate” and subject to their national legislation. 75 Hutton and Leader-Williams, above n 3, at 220.
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S2. CSU in practice
If there is to be ‘incentive-driven conservation, then how can this be achieved and its effectiveness assessed? The ways in which consumptive commercial use of wildlife may aim to achieve its objectives include the following:
• Modifying existing use: A response to existing, unsustainable use of a species, by developing different levels and approaches to use, which may protect the species more than outright prohibition where human interests are affected;
• Introducing use: Commercial use where there was no use, or no commercialisation, may provide revenue and thus an incentive to protect a particular species and its habitat.
• Legalising existing use: Illegal use may be displaced by a legal use, which can address welfare concerns, allow for the development of a trade at a sustainable level and obtain revenue.76
This section begins with a discussion of the mechanics of CSU, developing ways to provide incentives for conservation, and then examines some of the initiatives developed pursuant to the objectives referred to above. The purpose of this section is to illustrate how CSU may move beyond words to actions.
2.1 Reversing appropriation – ownership as an incentive for conservation
Although wildlife may have economic and ecological advantages over livestock, rural Africans prefer livestock as, unlike their traditional use of wildlife, their property rights in livestock are considered by the state as ‘sacrosanct’.77
76 See discussion in McNeely (2005), above n 23, 119 at 139.
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A devolution of property rights to give communities a stake in their local biodiversity is proposed as one way to address environmental degradation resulting from alienation of local peoples who have traditional established practices that interact with, and are dependent on, surrounding wildlife.78 Panayotou argues that the recognition and strengthening of existing traditional, customary or communal rights should be preferred to replacing them with what may be the alien concept of private property rights.79 The establishment of an “efficient, equitable and sustainable system of community-based wildlife property rights” has even been suggested as the only realistic conservation possibility for wildlife in Africa.80
The Addis Ababa Guidelines81 refer to the need for local users of biodiversity to be “sufficiently empowered and supported by rights to be responsible and accountable for use of the resources concerned”.82 The rationale for this principle acknowledges the impact of uncontrolled access to biodiversity components, leading to unsustainable levels of use. In response, it notes: Resources for which individuals or communities have use, non-use, or transfer rights are usually used more responsibly because they no longer need to maximise benefits before someone else removes the resources. Therefore sustainability is generally enhanced if Governments recognize and respect the "rights" or "stewardship" authority, responsibility and accountability to the people who use and manage the resource.83
77 Metcalfe, above n 65, at 153. 78 Kothari et al, above n 47, at 191. See also, World Resources Institute, World Resources 2005, concerning poverty and the environment, which states: “…there is power in nature for poverty reduction, but only if we deal effectively with the nature of power—the governance over resources—so that the poor can reap the benefits of ecosystems”. Available at
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A study of community wildlife management in Zambia, evaluating sustainable use, found that the central factor was the promotion of the comparative advantage of wildlife use over other land uses by way of “converting wildlife from a nationalized resource into a resource that is privately owned either by communities or individual owners”.84
The issue of ownership in the wildlife arises in response to both state intervention in wildlife management that alienates local communities and state inaction that leaves wildlife open to unchecked exploitation. The Zambia study notes that a major cause of the over-exploitation of Africa’s wildlife has been state ownership of wildlife that has not been enforced resulting in “a de facto open access resource”. With noone holding or asserting an interest, the wildlife is “exploited opportunistically”.85 The wildlife may once have been within the control of communities but colonial governments began a process of nationalisation that has continued to date, acting, along with other factors, to prevent “the development of a powerful wildlife-based rural economy”.86
Proposals for community-based property rights should be distinguished from notions of ‘common property’ when this is subject to ‘open-access’ and for which there is a risk of individual over-exploitation in the absence of any immediate self-interest in sustaining a resource.87 Community ownership sits between state and private ownership and is
traditionally had access to for subsistence Article 15(1) recognises the rights of the peoples to the natural resources pertaining to their lands, and their rights to participate in the use, management and conservation of these resources. (ILO Convention 169, 28 ILM 1382 (1989), opened for signature 27 June 1989. In force 5 September 1991). To date, however, the Convention has only 17 ratifications, and these do not include any African or south Asian countries: ILO Convention information
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based on local landholders having varying degrees of interest in the resource, based on active participation in decision making as to use and allocation of revenue.88 Panayotou emphasises that management responsibility for the communal resource lies with the collective owner, the community, not the individual users.89
Property resources systems which are subject to regulation as to access and use by the community are celebrated for building “ecological and social resilience, enabling their natural resource to be sustained” having survived centuries of wars and changing political systems.90
Ownership may not be the central issue, however. As Pearce notes, resources may remain in private or state ownership while the local community has the right to share in the benefits arising from exploitation (either directly or from resource-based development efforts).91 For example, at a number of sites subject to community management in India, the communities have ‘virtual control’ of their surrounding natural resources: Though legally such resources still belong to the state, de facto ownership now lies with the community, and with it has come a strong sense of responsibility. Tenurial security has increased, and with that the stake in conserving or sustainably using the resources concerned.92
An understanding of property interests in wildlife as being more concerned with the ability to make decisions as to its use and either reap or allocate the benefits therefrom,
‘Environment as Discourse: Searching for Sustainable Development in Costa Rica’ (1998) 7 Environmental Values 201 at 207. 88 Naess focuses on the ecological common sense of increased ‘local autonomy’, which requires a simplification of decision-making hierarchies because, as he notes, a decision may be democratically achieved at each step but “many local interests may be dropped along the line, if it is too long”: Arne Naess, ‘The Shallow and the Deep, Long-Range Ecology Movement. A Summary’ (1972) Inquiry 16, 95 at 98 89 Panayotou, above n 79, at 11. 90 Sima Williamson, David Brunckhorst and Gerard Kelly, Reinventing the Common, Cross-boundary Farming for a Sustainable Future (2003) 14. 91 Pearce and Barbier, above n 87, at 169. 92 Kothari et al, above n 47, 135.
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may be sufficiently flexible as to meet a range of cultural and economic concerns. Ownership of wildlife then, may in reality be a right to determine its management and use.
The economic and equity issues surrounding privatisation of wild species include: • Should there be returns to individual landholders? This will of course vary depending on whether the species are captive bred or harvested opportunistically from wild species that have come on to private land. The issue in relation to the harvest of wild species is that an individual is reaping a ‘private’ profit from a ‘public’ good. • Should landholders be rewarded for forgoing other forms of revenue, say because they have maintained native habitat to sustain and encourage local wildlife populations? • Where farmers rely on harvesting in which the species still maintain natural movements – which may entail moving over different properties – then should income go to the landholder who happens to have the species on site when it is trapped or killed? • Should revenue go back to the State for allocation – even if for conservation purposes – and then is this sufficient incentive for the landholders?
These are important issues in assessing whether commercial use of wildlife can succeed as a viable conservation measure. The revenue distribution question, in particular, is crucial as there must be sufficient return for the owner/harvester of the wildlife to provide a viable alternative to other, less sustainable land uses, such as grazing of introduced stock.93 There are no clear answers that will apply across all situations, however, as distribution needs to respond to the particular needs of the stakeholders. The devolution of ownership/control over natural resources such as wildlife may be subject to a mix of regulatory instruments, combining incentives such as tax policy, levies, financial support, property rights and licensing with enforcement and education
93 Clement A. Tisdell, ‘Economic Incentives to Conserve Wildlife on Private Lands: Analysis and Policy’ (2004) The Environmentalist 24, 153.
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mechanisms.94 As discussed, however, devolution of property rights is not a new concept and is already happening in practice in Africa and elsewhere. These precedents should assist decision makers in devising programs that respond to specific local needs and interests.
2.2 Legalised hunting as a conservation incentive
Hunting of wildlife has long been recognised as a legitimate conservation tool,95 as it can provide significant revenue and thus a powerful incentive to protect native habitat. It was the hunting of wildlife, and the realisation by hunters that their stocks were diminishing, which provided the catalyst for regulatory action to conserve wildlife. Early domestic legislation centred on Game Acts that provided off seasons as protection for certain species to sustain them for future hunting. At an international level, conservation instruments have also been spurred by hunters, notably the Ramsar Convention on Wetlands,96 a product of the concerns of waterfowl hunters that the loss of wetland habitat meant the loss of their prey.
Hunting is also recognised by CITES as a legitimate way in which range states can obtain revenue from their wildlife.97 According to the Convention’s Secretary-General, hunting trophies exported as personal goods are an example of a trade that could meet the finding of ‘no detriment’ on the basis that the trade may provide a conservation benefit to the exporting state because of the incentives attached to the hunting industry. Huxley comments that, in the first ten years of the Convention, the positive benefits of sport hunting were recognised “as the revenues generated from trophy hunting could
94 Panayotou, above n 79, at 9; see also MD Young et al, Reimbursing the Future, An evaluation of motivational, voluntary, price-based property-right, and regulatory incentives for the conservation of biodiversity, Biodiversity Series, Paper No. 9 (1996), at 9 and 106ff; Clement A Tisdell ‘Does the economic use of wildlife favour conservation and sustainability’ in G Grigg, P Hale and D Lunney (eds) Conservation through Sustainable Use of Wildlife (1995), 86. 95 Webb (2002) above n 36, at 12. 96 ATS 1975 No 0048. Opened for signature 2 February 1971, entered into force 21 December 1975. The history of the Ramsar Convention is set out in Cyril de Klemm and Isabelle Creteaux, The Legal Development of the Ramsar Convention (1995) 81. 97 Resolution Conf. 2.11 ‘Trade in hunting trophies of species listed in Appendix I’.
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provide both the means and the incentive to invest in conservation. In this way, devoting land to wildlife could become an economically viable land-use option”.98
This has been particularly embraced in southern Africa.99 At the 13th Conference of the Parties to CITES, the Parties agreed to Namibia and South Africa increasing their export quotas of leopard hunting trophies and skins for personal use, as well as annual quotas of five hunting trophies of adult male black rhinoceros which are listed on Appendix I.100 The preamble to Resolution Conf. 13.5, ‘Establishment of export quotas for black rhinoceros hunting trophies’ recognizes that some range states (the states in which the wildlife exists) need to obtain financial incentives for conservation and management and “the financial benefits derived from trophy hunting of a limited number of specimens will benefit the conservation of the species directly and provide additional incentives for conservation and habitat protection”.
At a hunting and conservation meeting organised by the IUCN in October 2006,101 delegates presented case studies that demonstrated how controlled hunting involving decision making by local people had assisted the acceptance of restored populations of wood bison in the Yukon, had played a critical role in the recovery of markhor goat and urial sheep numbers in the Torghar area of Pakistan and provided vital incentives for the revival of the Lake Mburo Park in Uganda.102
An IUCN nature conservancy project that began in northern Pakistan in 1995 (with phase two finishing in 2006), centred on a community-based approach to environmental
98 Chris Huxley, ‘CITES: The Vision’ in Hutton and Dickson, above n 65, 3 at 9. 99 Jeffrey D Hackel, ‘Community Conservation and the Future of Africa’s Wildlife’ (1999) 13(4) Conservation Biology 726. 100 Amendments To Appendices I And II of The Convention adopted by the CoP at its 13th meeting, Bangkok (Thailand), 2-14 October 2004, available at
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management with “the express purpose of fostering stakeholder livelihood security”.103 A conservancy is described by the IUCN as “a framework for collaborative management of renewable natural resources”.104
One of the major objectives is: “Enhancing the value of components of biodiversity for the local people (as a conservation incentive) by promoting sustainable use”. This incorporates wildlife management within the conservancy area with an emphasis on trophy hunting. This has been extremely successful in raising revenue105 as well as encouraging the local communities to reduce the previously ‘rampant’ poaching. The community receives 80% of the money raised with 20% going to the government and, the IUCN reports, this has been substantially reinvested in local conservation management. It also reports that the project has boosted the big game population.106
The hunting of the markhor is subject to CITES regulation as it is listed as endangered under the Convention (that is, the species is listed on Appendix I, which means commercial trade is prohibited). This does not prevent hunting and the payment of substantial fees, however, so long as any trophy taken out of the country is for personal use and not commercial gain. A quota is allocated to the export by resolution of the CITES Conference of the Parties, the preamble to which explicitly acknowledges the connection between conservation and use:107 RECOGNIZING further that conservation of the species will depend on the capacity of the State to regulate use and on local people having
103 IUCN, The Mountain Areas Conservancy Project – A community-based approach to watershed management in the mountains of northern Pakistan, available at
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sufficient incentives to maintain the species in preference to their domestic livestock; RECOGNIZING that Pakistan is actively promoting community-based management of wild resources as a conservation tool and has approved management plans for ibex that ensure the financial benefits derived from trophy hunting of a limited number of specimens go direct to the managing communities…
The conservation benefits of providing an incentive to local people to properly manage habitat and species are not restricted to developing countries. As part of Louisiana’s Alligator Marsh to Market program, discussed below, the private owners of the wetlands receive further incentive to maintain the native habitat because they receive money from a yearly alligator hunt for which the quota is set by state conservation authorities.108
2.3 Ranching of crocodiles and alligators 'If you want to save an alligator, buy a handbag.'109
One of the clearest success stories for commercial use concerns the exploitation of crocodilians.110 After coming close to extinction, a sustainable trade in crocodile products has resulted in protection of a number of species. Hutton and Webb note that “the 11 most commercially valuable species are the species least threatened with extinction”.111 In 1971 … all 23 species of crocodilian were endangered or threatened. By 1996, after 25 years of effort, one-third of the species (8) were sufficiently
108 Hillary Mayell, ‘Controlled Alligator Harvest an Effective Conservation Tool, Louisiana Says’, National Geographic Online, 22 October 2001, available at
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abundant to support well-regulated annual harvests, one-third of the species (8) were no longer in danger of extinction but are not harvested, and one-third of the species (7) remain endangered. No other group of vertebrate animals has undergone such a dramatic improvement in its conservation status.112
Ranching has been addressed at a number of meetings of the CITES conference of the parties where specific reptile populations subject to Appendix I listing have been downlisted for the purpose of ranching operations. Resolution Conf. 10.18113 defined ranching as: "the rearing in a controlled environment of specimens taken from the wild with the intent of trade". This resolution was repealed at the 11th CoP by Resolution Conf 11.16,114 the preamble to which recognised that "ranching of crocodilians on the basis of controlled collection of eggs or hatchlings can be potentially a valuable and positive conservation tool, whereas taking of wild adult animals needs stricter control".
Resolution Conf 11.16 imposes conditions under which ranching will occur, and requires monitoring and reporting of the trade and its impact. Proposals to transfer populations for ranching purposes must satisfy general criteria, comprising:
i) the programme must be primarily beneficial to the conservation of the local population (i.e., where applicable, contribute to its increase in the wild or promote protection of the species' habitat while maintaining a stable population);
ii) all products (including live specimens) of each operation must be adequately identified and documented to ensure that they can be readily distinguished from products of Appendix-I populations;
111 Jon Hutton and Grahame Webb, ‘Crocodiles: Legal Trade Snaps Back’ in Oldfield, above n 35, 108 at 119 (emphasis in original). 112 IUCN Crocodile Sustainable Group website, information page, available at
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iii) the programme must have in place appropriate inventories, harvest-level controls and mechanisms to monitor the wild populations; and
iv) there must be sufficient safeguards established in the programme to ensure that adequate numbers of animals are returned to the wild if necessary and where appropriate;
The resolution further recommends that annual reports be required, that include details on the status of the wild population, numbers taken from the wild, exports and conservation programs and scientific experiments related to the ranching operation.
Ranching operations are considered most appropriate for "species that suffer early mortality in the wild and for those where the product to be traded may be of higher and/or more uniform quality if rearing is carried out in controlled conditions".115 The mortality rate in the wild of crocodiles at the egg and hatchling stages can be up to 95 per cent;116 if taken for ranching the survival rate after three years is reported to be around 50 per cent.117
Australia’s export trade in products from saltwater crocodile (Crocodylus porosus) has proven to be a sustainable use of wildlife that has found a middle ground between unregulated exploitation that devastated the local population and complete protection that led to a disconcerting boom in their number. The Australian trade is set out at Chapter 7 of the thesis where I critique Australia’s range of approaches to CSU.
downlisted from Appendix I to Appendix II when they are deemed by the Conference of the Parties to no longer be endangered and to benefit by ranching with the intention of trade. 115 Alison Rosser and Mandy Haywood (eds) IUCN Species Survival Commission, April 1999, CITES: A Conservation Tool (6th ed) s 2.6.
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2.3.1 Ranching in the United States The Marsh to Market program for the American alligator (Alligator mississippiensis) has been proposed as an example of sustainable use that has conserved the species and its supporting ecosystem. The Louisiana marshlands were threatened by competing land uses but have been maintained as a result of commercialisation of the marshlands wildlife. The economic value of wildlife – waterfowl, furbearers, crawfish, shrimp, and gamefish, as well as alligators – makes it in the landowners’ interests to manage wetlands in such a way as to maintain their integrity… 118
As loss of habitat was considered to be the major threat to alligators, with the majority of the marshlands in private ownership, Louisiana’s environmental managers decided to work with the landowners “to manage the alligators as a renewable natural resource”. Landowners could obtain permits for eggs to be collected on their land during a strictly regulated period. Alligator farmers then organise for the collection. The economic benefit to the landowners was considered an essential incentive as it prompted private investment in restoration of the marshlands which may otherwise have been considered too expensive to undertake.119
The program, which began in 1972, is described as an effective conservation tool as it has protected alligator populations and critical wetlands habitats and in 2001 was estimated to be providing about U.S. $54 million of economic benefits to the state each year.120 The private owners of the wetlands are receiving sufficient economic returns to stop them draining the land for agriculture or other uses.
117 Ibid. 118Ted Joanen et al, ‘The Commercial Consumptive Use of the American Alligator (Alligator mississippiensis) in Louisana’ in C. Freese (ed) above n 4 at 486. 119 Id, 488. 120 Mayell, above n 108.
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In 2004 it was reported that, in Louisiana, there had been 300,000 to 400,000 eggs collected from the wild per year since 1995.121 There is also a requirement that some proportion of the ranched specimens are returned to the wild.122 Crocodile ranching has also been successfully conducted in 11 African countries, as well as Argentina, Ecuador, Cuba, Brazil, Colombia, Venezuela and Papua New Guinea with no cases of detrimental effects on wild populations.123
S.3 The ‘risk’ of conservation via sustainable use of wildlife
This section addresses the ‘why not’ element to the CSU debate; the objections to adopting CSU as a tool for the conservation of wildlife. It first examines the general issue of uncertainty that will confront any proposal for new or modified use of wildlife. It then responds to specific concerns about commercial use, namely whether introduction of a legal use may foster illegal use in the form of poaching and smuggling. It then briefly responds to philosophical objections to CSU (this issue is dealt with in detail in the following chapter).
The major risk arising from CSU is that the use will not be sustainable, that is, the target species will be over-exploited and/or there will be broader negative impacts such as damage to habitat from the harvesting of the species and introduction of alien invasive species by the harvesters. The aim for conservation is of course to develop sustainable consumptive use.
3.1 Uncertainty and the precautionary principle
There is widespread acknowledgement that protection alone cannot serve conservation needs but there is of course an attraction to the relative simplicity of fencing off species
121 Review of Crocodile Ranching Programs, conducted for CITES by the Crocodile Specialist Group of IUCN/SSC, January – April 2004, at 32. Available at
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and habitats. The complexity of coupling this with an approach that requires understanding of how individuals and communities will act outside those fences in their day-to-day existence provides a formidable challenge to environmental decision makers and managers.
Significant over-use of certain species, up to and including the point of extinction, has engendered an understandable caution in response to proposals for commercial trade in wildlife.124 If the introduction or modification of trade is offered as an incentive to protect species and conserve habitat then the most potent challenge lies in the uncertainty surrounding the outcome, which can be a difficult burden for proponents to discharge.
What would be the outcome of introducing trade? Of restricting the trade? Of prohibiting the trade? Who decides which is the preferable approach? Will there be economic and social costs in prohibition that will have a counterproductive effect on the wildlife concerned? Will the cost of policing the trade to make it sustainable be beyond the resources of the regulators?
Once a CSU project is begun, there is the further complexity of assessing its efficacy. While the concept of CSU has become well established in international fora in recent years, ways to assess positive or negative impacts on the environment are still being developed. As reported to the Eighth meeting of the Conference of the Parties to the Convention on Biological Diversity,125 attempts to determine the indicators of sustainable use require discrimination between use and other influences that affect the status of biodiversity resources.126
123 Id, 3. 124 Broad et al, above n 35, at 4.
125 Curitiba, Brazil, 20-31 March 2006. 126 Information paper from the Ad Hoc Working Group on Sustainable Use Indicators (New Hall, Cambridge, UK; 16-17 January 2006), p 4, presented to the Curitiba meeting. Available at
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Such uncertainty has led to an ongoing debate as to the application of the precautionary principle to CSU. Principle 15 of the Rio Declaration provides: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.127
The application of the precautionary principle, in which proponents of use of wildlife would have to discharge the burden of proof concerning the outcome of any commercial exploitation, may have an intuitive appeal. Any such approach is flawed, however, if decision making occurs in a contextual vacuum. As the The IUCN Policy Statement on Sustainable Use of Wild Living Resources (Resolution 2.29) provides: 6. Analyses of uses of wild living resources in a number of different contexts demonstrate that there are many biological, social, cultural, and economic factors, which combine in a variety of configurations to affect the likelihood that a particular use may be sustainable.128
A significant question then, concerning the application of the precautionary principle is, if the onus is on proponents of trade to show that commercial use will benefit wildlife, then what is the standard of proof and, further, what are the legitimate considerations in discharging that burden? The onus of proof cannot be discharged by a proponent for commercial use without an agreement as to what factors are legitimate considerations in meeting that onus.
The Precautionary Principle will sit awkwardly with proposals for a consumptive use of wildlife unless such proposal is viewed alongside the likely prospect for such wildlife if no such use is permitted. As the examples of hunting and alligator and crocodile ranching have shown, discussed above at 2.2-2.3 and in Chapter 7 of the thesis, without
127 Also articulated in the preamble to the Biodiversity Convention as a threat of ‘significant reduction or loss of biological diversity’. 128 Adopted at the IUCN World Conservation Congress, Amman, October 2000.
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commercialisation, a likely outcome can be an alternative land use which will be so destructive of the habitat that the target species, along with the remaining biodiversity, can be seriously endangered or lost altogether.
While wildlife use does carry some dangers, use may also support or enhance conservation measures. Banning or restricting use does not necessarily eliminate the threat of population decline. Indeed, it can precipitate environmental harm by shifting a species on to an alternative extinction path.129
Moyle cites the example of Southeast Asian swiftlets, which were subject of a proposed uplisting to Appendix II of CITES to restrict the birds’ nest trade. This was in response to a decline in some local populations. It was not certain that the decline was related to harvesting of the nests but, Moyle comments, the precautionary principle implicitly justified the CITES listing as a precaution against the possible adverse effects of trade. The listing would have imposed an onerous certification requirement with the costs falling largely on the developing countries in Southeast Asia that export the nests. While the intention clearly was to protect the species, research found that there were only marginal declines in the species and the swiftlet distribution was in fact increasing as a result of investment in their habitat to support the commercial trade. The increased costs imposed by the listing requirements would have threatened the viability of the trade and the incentive for protecting the swiftlet habitat. There was therefore a potentially greater risk imposed on the swiftlet population by restricting the trade. 130
A major study of the role of the precautionary principle in natural resource management,131 questions the role of the principle in a range of fields, including commercial use of wildlife. In an issues paper for the project, Cooney identifies the
129 Brendan Moyle, ‘Making the Precautionary Principle Work for Biodiversity: Avoiding Perverse Outcomes in Decision-making Under Uncertainty’ in Rosie Cooney and Barney Dickson (eds) Biodiversity and the Precautionary Principle : Risk, Uncertainty and Practice in Conservation and Sustainable Use (2005), 159. 130 Id, 163. 131 The Precautionary Principle Project: Sustainable Development, Natural Resource Management and Biodiversity Conservation, a partnership of IUCN, TRAFFIC, Fauna & Flora international and Resource Africa. See at < http://www.pprinciple.net/>, accessed February 2006.
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particular challenge arising in the application of the principle to potential threats from natural resources management (NRM): The typical conceptual paradigm of precautionary decision-making involves an activity (such as releasing a pollutant) that poses clear potential environmental risks that would not exist if the action were not undertaken. Decisions are between “risk” and “caution”. However in practice, decision-makers in NRM and conservation are often confronted with a choice of strategies which each carry attendant environmental risks – the choice is between risk and risk. … If people are prevented from harvesting coral reef fish for trade, they may dynamite the reef for cement.132
The perspective of the role of the precautionary principle in this context echoes my discussion in section 1 of this chapter, that CSU should be considered as a relative concept, that is, what are the alternatives for the given species or habitat if commercial use does not occur. While this may help define the burden to be discharged by proponents of CSU, it does not, however, address the uncertainty of outcome which is inherent in any environmental management scheme. This is recognised as a central issue in how the precautionary principle can work with biodiversity conservation and natural resource management (NRM): Uncertainty is characteristic of complex systems, including ecosystems. In NRM/biodiversity conservation in general, and particularly in developing countries, decisions must typically be made on the basis of great uncertainties, and in the face of multiple risks. Requiring all information to be in place before making conservation/NRM decisions, and knowing exactly the outcomes of those decisions before undertaking them, is not practical or feasible, especially where resources/capacity are limited. In these circumstances it is helpful to adopt an adaptive management approach … The precautionary principle should be implemented and understood in a manner consistent with this approach.133
132 Rosie Cooney (2004) The Precautionary Principle in Biodiversity Conservation and Natural Resource Management: An issues paper for policy-makers, researchers and practitioners, IUCN, 27. Available at
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Adaptive management responds to the uncertainty issue by the design and use of management processes that can respond to both positive and negative outcomes accordingly. Monitoring and evaluation, testing what works and what doesn’t, and creating learning organizations are all components of an approach called adaptive management. Adaptive management is fundamentally a way of incorporating reflection into action to enhance the practice of conservation and learning.134
Making smaller incremental decisions with the flexibility to change in response to favourable or adverse results is increasingly seen as the approach most likely to succeed as it recognises the complications inherent in working with dynamic human and ecological systems. Hutton and Leader-Williams describe adaptive management decisions as “experiments to produce information about the resource being managed … in the face of continued uncertainty and ever-changing conditions”.135
The Precautionary Principle Project has developed guidelines, which include: ‘Be Adaptive’: An adaptive approach is particularly useful in the implementation of the Precautionary Principle as it does not necessarily require having a high level of certainty about the impact of management measures before taking action, but involves taking such measures in the face of uncertainty, as part of a rigorously planned and controlled trial, with careful monitoring and periodic review to provide feedback, and amendment of decisions in the light of new information.136
Natural Resource Management, Workshop final report, Manila, The Philippines, Asian Regional Session of the Global Biodiversity Forum: Southeast Asia. 20th-23rd June 2004. 134 Nick Salafsky, Richard Margoluis and Kent H Redford, Adaptive Management, A Tool for Conservation Practitioners, Biodiversity Support Program, WWF (2001) at 4. 135 Hutton and Leader-Williams, above n 3, at 221. 136 IUCN, Resource Africa and TRAFFIC, The Precautionary Principle Project (2005), Guidelines for Applying the Precautionary Principle to Biodiversity Conservation and Natural Resource Management, p 6. Available at < http://www.pprinciple.net/PP%20Guidelines_english.pdf> accessed March 2006.
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Increasing recognition of the need for adaptive management in all forms of environmental decision-making is a response to the vast levels of uncertainty for any attempts to regulate human interaction with biodiversity. Holling describes adaptability as inherent to the concept of ‘sustainable development’:
Sustainability is the capacity to create, test, and maintain adaptive capability. Development is the process of creating, testing, and maintaining opportunity. The phrase that combines the two, sustainable development, therefore refers to the goal of fostering adaptive capabilities and creating opportunities.137
The concept of adaptive management is considered a requirement arising from Article 6 of the Biodiversity Convention.138 The development of biodiversity strategies requires “a repeating process by which a biodiversity strategy is developed, plans and programmes derived, and then, after a period of programme implementation, the biodiversity strategy is reassessed. Improvements or adjustments are made and the cycle repeats itself”.139 The aim is to have a system that can respond to the experiences of the managers and new information arising from the management process.
Adaptive management may provide a response to the precautionary principle by suggesting that, not only will the initial risk be greatly reduced by having the option to change the proposal in response to particular results, but the proposal will be continually improved by such response. It is also a recognition of the reality of ongoing use of the environment and the need for action to be taken without certainty as to the outcome. As Robinson notes: Reaching conclusions in the absence of complete knowledge will be necessary in the complex real-world contexts in which problems are often not amenable to
137 CS Holling, ‘Theories for sustainable futures’, (2000) 4(2) Conservation Ecology, 7. Available online at
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classical reductionist approaches.140
3.2 The threat of illegal use: is it fostered or displaced by a legal trade
The illegal trade in wildlife is considered to be a major threat both on an environmental and humane basis. The targeted animals are more likely to be over-exploited, there may be wider damage – to habitat and other species – resulting from the hunt for the targeted wildlife; and transportation may occur with little regard to the animals’ welfare given the need to avoid detection.141 The response to this issue comes from both ends of the spectrum: end all trade to expose the illegal activity; or use a legal trade to displace it by taking the wind out of the smuggling and poaching operations.
Opposition to legalising trade in species subject to or threatened with illegal use is based on the possibility that the legal trade will provide a cover for illegally obtained specimens and that increasing the availability of certain species by way of a legal market will drive a demand for more exotic species. It is also in recognition of the difficulties in enforcing trade regulations. Lawrence notes that for many developing countries their lack of resources is a serious obstacle to implementation of environmental conventions: It is apparent that even where environmental concerns are given relatively high priority by such governments, the number of personnel available … in the increasingly specialised field of environmental protection is severely limited.142
Birnie and Boyle note that critics of CITES point to “the practical difficulties of enforcement, which enable large numbers of species listed on all Appendices to escape detection since enforcement is left to individual states parties, whose domestic wildlife
140 John G Robinson, ‘Conservation Biology and Real-World Conservation’ (2006) vol 20(3) Conservation Biology, 658 at 660 141 Syd Shea et al, ‘Sustainable conservation: a new integrated approach to nature conservation in Australia’ in Peter Hale and David Lamb (eds) Conservation Outside Nature Reserves 39 at 45-46 (1997). 142 Peter Lawrence, ‘Regional Strategies for the Implementation of Environmental Conventions: Lessons form the South Pacific? (1994) 15 Australian Yearbook of International Law 203 at 219.
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laws, scrutiny and controls vary greatly in their scope and stringency of enforcement”.143
The failure of States to adequately monitor wildlife trade naturally facilitates illegal traffic. The CITES Secretariat liaises with the World Customs Organisation (WCO) and the International Criminal Police Organisation (ICPO-Interpol) Wildlife Crime Working Group in the investigation of environmental crime.144 Illegal traffic in wildlife remains a major industry and is estimated to run into billions of dollars worldwide.145
The burden placed by the Convention’s operating system on border officials has been a matter of ongoing concern and is often cited by opponents to trade as a factor in support of restricting commercial exports. The identification of specimens and verification of documents can be a logistical nightmare for States with multiple border entries and insufficient funds to properly train Customs staff. The CITES Secretariat now provides training for Management Authorities and customs officers.
This may not be a universal problem, however, as it will be dependent on the infrastructure and other resources available for monitoring trade. In Australia, proposals for increasing the legal trade have referred to the increasing availability and sophistication of DNA profiles of blood or feathers and other modes of identification such as permanent banding and tagging.146 An aviculturalist described as ‘ludicrous’
143 Birnie and Boyle (2002), above n 5, at 629. 144 See report of the CITES Secretariat’s enforcement activities in ‘Implementation of the Convention in individual countries, Enforcement Matters’, Forty-second meeting of the Standing Committee, Lisbon (Portugal), 28 September-1 October 1999, CITES Doc. SC.42.12.4. 145 Dee Cook, Martin Roberts and Jason Lowther, The International Wildlife Trade and Organised Crime (2002). Available at
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the suggestion that Australia would not be able to effectively monitor international movement of wildlife,147 while Western Australia’s conservation department has stated that DNA technology “has largely removed the concern that legalising native bird commercial activities would provide a cover for illegal operations”.148
It is recognised that prohibition has not solved the problem. The RRAT inquiry found that: “prohibition of trade has not prevented smuggling of live birds (or eggs) overseas and private enterprise in other countries has benefited from commercial use of Australian species”.149 The then Northern Territory Parks Director told the inquiry the prohibition “fostered … illicit traffic, with no management, no control, no conservation benefits and significant animal welfare negatives”.150
Moyle comments on the international trade in Australian native birds and how the export prohibition has artificially inflated their prices.151 The sharp price difference between the price for birds in the domestic market and what they can be sold for internationally, has provided a “business opportunity for smugglers”.152 The Australian experience confirms that bans do not reduce demand for wildlife products. Perversely, it shows that the trade ban has had the unexpected consequence of perpetuating and sustaining a black market in native parrots.153
In a related argument, it is suggested that regulating trade can undermine wildlife trafficking as not only will prices drop, thereby reducing the incentive to take the risks
147 John Allen of ‘Avi-Ark’, cited in RRAT above n 116, at 148. 148 Shea et al, above n 141, at 46. 149 RRAT, above n 116, at 293. 150 William Freeland, Deputy Director, Parks and Wildlife Commission of the Northern Territory, Evidence to the RRAT Inquiry, 6 August 1997, 331 at 336. The transcripts of the RRAT hearings are available at
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involved,154 but the legal trade creates a new group of stakeholders who will act to protect their investment. For example, the development of a legal international crocodile market created a constituency of interested parties, including both government and the private sector, which had a stake in the trade and would work to prevent their interests being undermined by illegal activities.155 Hutton and Webb describe this as: “pivotal to the headway that the parties to CITES began to make against large-scale illegal trade”.156
The mechanism for eliminating the illegal trade was the threat or imposition of trade sanctions with offending countries via CITES. Pressure was brought to bear on Indonesia, Paraguay, Thailand and Italy by the Parties to CITES voting to suspend wildlife trade. Indonesia acted to address the illegal trade by working with the IUCN, other countries brought in reforms and closed loopholes.157
Legalising hunting can also prevent illegal use in the form of poaching when local landholders have a stake in the legalised operation and will therefore police activities in their area. In Louisiana, the commercialisation of alligators has been credited with almost eliminating poaching as landowners became more involved in policing what was happening on their land given the possible loss of an economic asset.158 The IUCN notes that the local interest in markhor hunting in Pakistan prompted the community to “convince even senior government officials to refrain from illegal hunting”.159 In these cases it is apparent that, while there were existing mechanisms for countering illegal operations, the introduction of an economic incentive was required before effective action was taken. The issues of cost and motivation are clearly central in developing sustainable use – both in relation to achieving conservation and addressing the illegal trade. The legal instruments alone will not always work alone, it may require
154 Shea et al, above n 141, at 162. 155 Hutton and Webb, above n 111, at 114. 156 Id, 115. 157 Id, 116. The CITES mechanisms for enforcing the Convention are set out in Chapter 5. 158 Mayell, above n 108. 159 IUCN, above n 102, at 3.
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the added driver of an economic incentive to achieve effective implementation.
3.3 Does commercialising wildlife raise ethical concerns?
The process of trade ‘commodifies’ the species concerned, that is, it puts a price on the species, which in itself is objectionable to some on philosophical as well as ecological terms.160 As an adjunct to these concerns, there may be criticism of the extent to which a species is ‘privatised’ in the process of commodification, so as to achieve an economic incentive. The opposition to ‘commodifying’ the environment, takes many overlapping forms. In philosophical or ideological terms, there may be an aversion to the idea of putting a price on the environment because 'it is not ours to sell'.161 This may stem from an ethical standpoint, concerning what should or should not be placed on the market, or from an apparently equitable one, that the seller will be privatising profits from what is considered a public good. There are equitable concerns regarding questions of restricting access to what may have previously been considered an open access good based on capital and distribution of income received in return for such access.162 Such concerns may best be addressed by trialling the use and identifying relevant stakeholders who should determine the allocation of revenue as discussed in 3.1, above.
The commercial utilisation of wildlife in which a ‘public good’ has been privatised for consumptive use is of course well established in relation to fishing rights. The acceptance of fish as food, in spite of it also being wildlife, and an industry in which private individuals obtain profits from a ‘public good’, provides further confirmation of the role of public attitudes in shaping opposition to commercialisation.163
160 These issues are dealt with in detail in the next chapter. Briefly, there may be philosophical opposition to a ‘wild’ species obtaining a market value and thus being regarded as a commodity. The ecological concerns are that, as a commodity, the species will be managed in accordance with market values which do not necessarily equate with long term sustainable use. 161 John O'Neill, Justice, Property and the Environment (1997) 120. 162 Diane Gershon, ‘If biological diversity has a price, who sets it and who should benefit?’ (1992) 359 Nature 565. 163 See, further, discussion in Chapter 3.
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Conclusion
Despite there now being a globally agreed target to significantly reduce the current rate of biodiversity loss by 2010,164 the 2006 IUCN Red List of Threatened Species shows that the rate of biodiversity loss has in fact increased.165 The number of known threatened species has reached 16,119 and the list includes one in three amphibians, one in eight birds and one in four mammals.166 Unsustainable trade in wildlife and unregulated hunting have clearly been detrimental but they are rated well behind the loss of habitat as the major threat to the population status of wildlife.167 By far the bulk of biodiversity loss has been as a result of indirect factors; clearing and conversion of native habitat for agricultural use being the chief culprits,168 possibly followed by the predations of introduced species.
In an increasingly marginal environment reserved areas are of particular importance for the protection of sacred sites or biodiversity 'hot spots' which may require stringent limits to human access. Protectionism is therefore necessary in some circumstances but is not a sufficient response to conservation needs. It needs to be considered as one part of a raft of measures. As the review of the debate in this chapter has demonstrated, when commercial use is proposed as a conservation measure it is possibly more helpful to consider it as an alternative to more environmentally degrading productive uses such as traditional agriculture. Arguments against use present it as comparing unfavourably with preservation of the particular species or ecosystem from any use save perhaps
164 Strategic Plan for the Convention on Biological Diversity, decision VI/26 of the Conference of the Parties. Available at
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recreational activities. If the alternative is reservation in a national park, consumptive use may not seem such an attractive option. As this chapter has also discussed, however, even reservation has its problems when there are broader social and economic impacts resulting from depriving local communities of a natural resource. Arguments in favour of use often present it as comparing favourably to other land uses. If commercial use of wildlife is considered as an alternative to a highly destructive monocultural use which results in removal of most of the native habitat, then it may appear to be a much more reasonable option.
There are economic constraints, related to whether the market for wildlife products is sufficiently robust to sustain producers to the extent that they embrace a wildlife industry, particularly as an alternative to entrenched agricultural products. Of course, these two issues are closely connected: the economic health of the market in wildlife relies on the acceptance of its products. The interrelationship of the conservation arguments, public attitudes and political responses will determine the profile of the wildlife use market. Its acceptance, by both potential producers and the consumers, may then create economic strength, which is likely to persuade governments to view wildlife use more favourably; bringing it out of the conservation policy wilderness, so to speak. While even the strongest advocates of CSU do not suggest it is the stand alone solution to threats to biodiversity,169 it is now widely accepted that it can be combined with protective measures in formulating a realistic response to continued dramatic losses.
The difficulties arising from attempts to assess outcomes of sustainable use – either for the target species or the relevant communities and ecosystems – should perhaps be understood as recognition of the inherent complexity of environmental management rather than an admission of defeat. The trialling of commercial use within an adaptive management regime is a way forward in an attempt to deal with serious and escalating losses of biodiversity.
169 Hutton and Leader-Williams, above n 3, Webb (2002) points out that CSU is “simply a conservation tool with a long history of success in game management”, above n 36, at 12.
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Chapter 3
VALUES AND ATTITUDES ABOUT WILDLIFE: ANIMAL INSTINCTS
This chapter examines the value systems and attitudes underlying perspectives and arguments for and against the commercial use of wildlife. It also aims to provide transparency to the positions taken with regard to commercialisation, particularly as much opposition to use will have its basis in the ‘value’ of wildlife.
A major influence on wildlife regimes is the public perception of what are the acceptable parameters to use. Philosophical and ethical considerations play a significant role and historically have shaped our regard of nature and the way in which humans value, use and manage their surrounding environment. It should be emphasised, however, that such regard is a social and cultural construct, as evidenced by the many different values and attitudes to wildlife across the world.
This chapter discusses the values that may underpin certain attitudes to wildlife – such as the different regard for different species, in an attempt to understand why there is an ongoing incapacity - at least in the industrialised North – to conceive that protection and use may be part of the same package. I critique the literature on valuation of wildlife, assessing the commentary insofar as it is relevant to the concerns of this thesis. I then set out a range of findings on attitudes to wildlife, gleaned from surveys of the public. These issues all feed into perceptions of what should be conserved and what should or can be used.
In the dominant Western approach to the natural world, certain species have been earmarked for use, others for protection – but the two groups rarely overlap. This is diametrically opposed to the conservation argument canvassed in the previous chapter, that, to protect biodiversity, it may be necessary to use any or all of it; there is no
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necessary demarcation of use between species. It also reflects a cultural position not shared by those communities in developing countries who operate on far more intimate terms with their surrounding environment.
Indigenous peoples often find the western idea of 'conservation' as something to be separated from the rest of their activities as strange. A Karen man recently asked me why we always 'put things in boxes'. It makes things difficult, he said. To him, and to many others I've met in other countries, conservation is just part of making a living.1
To many in the Western world, blocking acceptance of commercial use of wildlife is that there is simply no conception of ‘wild’ nature as a commodity. In this chapter, I aim to demonstrate that the division in perceptions of nature, between what is used and what is protected, may be a product of the way in which we have been conditioned to value nature.
S1. The Valuation of Wildlife
The reconciling of utilitarian needs and non-utilitarian values is central to achieving effective conservation. What those non-utilitarian values entail is a vastly complex question and has been explored in depth by many ecologists, ethicists and philosophers. I review this debate below. The content of our value systems is not only complex, it is dominated by myriad cultural, economic and social factors. I do not intend to reach any conclusion as to the range of values, nor where those values may be located in the biosphere. There are simply too many belief systems, relating to too many manifestations of the human-wildlife relationship, for any person to achieve a grand unifying theory as to what the human valuation of wildlife is, or should be.
My assertion of the centrality of the need to reconcile use and non-use values to achieve effective conservation is not contradicted by the impossibility of absolute resolution of
1 J Alcorn, ‘Indigenous Peoples and Conservation’ in Readings from Conservation Biology (1995) 20 at 21.
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what the non-use values may be. The regulation of wildlife protection and use is obviously informed by certain value systems that combine use and non-use considerations. As this thesis argues in its critique of the legal regulation of wildlife use, a centralised regime may operate on an assumption of a particular value base. My concern is that, for any conservation regime to have effect, it must have legitimacy. To have legitimacy it must, at least to some extent, encapsulate the norms and values of the community it seeks to regulate. So, while not exploring the different value systems in detail, it is important to both recognise that wildlife regimes are not value neutral and identify the types of values at play. Of particular interest are the dominant value systems that have directed international regime development.
It is widely accepted that the dominant regulatory approach to wildlife has been based on non-consumptive use values – as promoted particularly in Western industrialised society. This is increasingly questioned, and undermined, by competing approaches, particularly those of developing countries which have their own myriad value systems but, overall, take a far more utilitarian approach to wildlife, albeit one informed by spiritual relationships with nature. Neither approach can be portrayed as monolithic, or one-dimensional. 2
This section provides a critical overview of some of the values and of the philosophical debate, from the ‘Western’ viewpoint of philosophers and ecologists. I focus on this perspective because it has been the underlying force in approaches to wildlife regulation. The markedly different approach in developing countries was touched on in the previous chapter.
2 For example, Michael Mason makes the point that radical environmentalism centres on wilderness preservation as providing “the strongest ethical basis for an ecologically enlightened relationship with non-human nature”. But this is inspired by the contemporary experience of ‘wild’ nature in affluent post- frontier societies facing imminent destruction of remnant wilderness areas” - meaning, North America and Australasia. This differs from European green politics which is informed by a ‘left-radical’ tradition which focuses on losses in environmental quality – the matter of wilderness preservation being more of a moot point, presumably. ‘Democratising Nature? The Political Morality of Wilderness Preservationists’ (1997) Environmental Values 6, 281 at 282.
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The different values given to wild animals can be encompassed within two broad groups: use and non-use. Like everything else in this debate, however, nothing is so straightforward and there is significant crossover between the two groups.
1.1 Use values
An entity with use or instrumental value satisfies a human want or need; this could therefore encompass many definitions of value and includes the following four categories: Subsistence – directly providing goods for the use of the individual or local community Commodity use or exchange – it provides income or some other good in exchange Non-consumptive use (or function) – such as for provision of ecosystem services Aesthetic – it satisfies a human want or need for beauty. This may be a contentious inclusion as it often informs apparent ‘non-use’ valuations of wildlife. Aesthetic value is closely bound up with ethical positions opposed to use of wildlife so falls within a murky area in which assertions of biocentrism (that is a regard centred on biodiversity rather than humanity) tend to be informed by anthropocentric values, particularly the pleasure derived from perceived physical beauty.
Further to current values, there is option value: what biodiversity may provide in the future, in relation to any of the other values. A frequently cited example is the provision of wild relatives of commonly used cultivated plants. The human food supply is highly reliant on only three crops – corn, rice and wheat – and may need the introduction of genetic diversity to reduce its vulnerability to disease and pests which are constantly evolving.
Bowman makes an interesting clarification regarding where we accord instrumental value. As he points out, while CITES, the Convention on International Trade in Endangered Species, refers to trade in endangered species, its provisions refer to trade
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in specimens of such species.3 It is the specimens – individual animals and plants or their genetic material – that provide the actual use value. The main relevance of the species in this context is that it represents the total current population of individuals and … the prospect of a continuing supply of further individuals … [A]s far as the ecosystem is concerned, it constitutes both the physical location and the functional unit within which this process will occur. Thus, from a purely instrumental perspective, it is species and ecosystems which are to be conserved … in order that the value of individual wildlife specimens may be realised. 4
I consider that this point is not particularly controversial but Bowman’s clarification is helpful in attempting as clear a reading of the Convention as possible. It also serves as a straightforward reminder as to why conservation strategies must apply at the ecosystem level, even if they are informed by concerns over select species within those ecosystems. The location of non-use values has stirred up more of a debate, as outlined below.
1.2 Non-use values
This is when an entity is valued for its own sake, that is, it has intrinsic or inherent value.
There are references to intrinsic value in several international environmental instruments. For example, the World Charter for Nature, which provides one of the earliest references, asserts a universal intrinsic value in its preamble: Every form of life is unique, warranting respect regardless of its worth to man, and, to accord other organisms such recognition, man must be guided by a moral code of action
3 Defined in Article 1 of the Convention as “an individual animal or plant whether alive or dead, and also to include certain parts of derivatives thereof”. 4 Michael Bowman, ‘The Nature, Development and Philosophical Foundations of the Biodiversity Concept in International Law’, in M Bowman and C Redgwell (eds) International Law and the Conservation of Biodiversity (1996) 21.
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In more recent form, in the Biodiversity Convention, the Contracting Parties have given prominence to intrinsic value, not only listing it first in the Convention preamble but giving it a separate status from the other sweep of values: Conscious of the intrinsic value of biological diversity and of the ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values of biological diversity and its components,
Bowman describes such strong recognition of intrinsic value as “a particularly striking feature” of the CBD, although, as he also notes, the Convention is clearly focused on the instrumental value of biodiversity5 and, it must be said, makes no further reference to intrinsic value. As I discuss below, there is no necessary contradiction in maintaining a belief in non-instrumental valuation of wildlife while accepting that specimens may also provide instrumental benefits.
1.3 Debating Values
Questions of value, that is, what is perceived as good, are of course the subject of extensive philosophical debate. Axiology, which sits within the moral philosophy domain of ‘value theory’, concerns itself with theoretical questions about value and goodness. It provides a way into thinking beyond mere assertions of goodness and examines the ways in which values are characterised. In this section I examine the difficulties that arise in characterisation of values as subjective/objective and anthropocentric/intrinsic given the many potential permutations and overlaps in the way these terms are used.
Bahm describes what is meant by subjective and objective. To be objective is to be an object of attention. Analyses of experience normally distinguish a subject as that which attends and an object as that which is
5 Id, 20. See discussion in Linda Tucker and David Farrier, ‘Conserving Biodiversity Via Access to Bioresources: A Natural Selection?’ in N Stoianoff (ed) Accessing Biological Diversity: Complying with the Convention on Biological Diversity (2004).
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attended to... An object is always an object for a subject, and a subject is always aware of an object.6
O’Neill’s definitions of two of the different senses of intrinsic value provide a helpful entry to the debate.
1. Intrinsic value is used as a synonym for non-instrumental value. An object has instrumental value insofar as it is a means to some other end. An object has intrinsic value if it is an end in itself.
2. Intrinsic value is used as a synonym for ‘objective value’, i.e., value that an object possesses independently of the valuations of valuers.7
As O’Neill goes on to note, in environmental ethics literature, these senses are used interchangeably.8 The conflation of these terms is significant because it can mislead as to what is being claimed, or criticised, in assertions of either intrinsic or instrumental value. This occurs when it is suggested that a subjective, or anthropocentric, position9 which denies there can be valuing without a valuer, as the second sense of intrinsic
6 Archie Bahm, Axiology: The Science of Values (1993) 62. 7 John O’Neill, ’The Varieties of Intrinsic Value’ (1992) The Monist, 119 at 119-120. O’Neill in fact provides three basic senses of the term but only two are discussed here. 8 Id, 120. 9 Alongside the several definitions of intrinsic value are the parallel varieties of ‘anthropocentric’: 1. Regarding man as the central fact of the universe. 2. Assuming man to be the final aim and end of the universe. 3. Viewing and interpreting everything in terms of human experience and values. Macquarie Dictionary (2nd rev. 1987). The subjectivist view accords with the third definition of anthropocentric and should not necessarily imply the first or second definitions. For a comprehensive review of the ways in which anthropocentrism has been developed, see Alexander Gillespie, International Environmental Law, Policy and Ethics (2000). Gillespie notes that anthropocentrism began with Pythagoras and Plato who ‘laid part of the foundations for the separation of humanity from Nature’ via a reliance on the separation of the soul from the body and a reliance on abstract reason as opposed to sensation and empirical observation to gain knowledge. Aristotle and Kant, in contrast, ‘valued both the importance of the senses and the connection between the philosopher and the world’ (id, 5) but both also asserted the ‘supposed unique rationality’ of humanity as a basis for its separation from nature (id, 10). A significant factor in the development of anthropocentrism was the belief that ‘nature had no actual use or value unless improved by man’s [sic] labour (id, 11). While this chauvinistic aspect to anthropocentrism has clearly had ongoing influence on environmental law it is not my main concern here, which is with the locus of valuation, not the subject of it, as I now discuss.
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value provides, is also denying the first sense, that there can be values distinct from the needs of the valuer.
O’Neill condemns as false the assumption of a subjectivist approach being exclusively instrumental as it confuses “claims about the source of values with claims about their object”. In a useful clarification of the subjectivist position, O’Neill states: The subjectivist claims that the only sources of value are the evaluative attitudes of humans. But this does not entail that the only ultimate objects of value are the states of human beings.10
The subjectivist position is, however, denied by commentators who have sought to locate intrinsic value outside of human allocation of such regard, describing intrinsic value as “an objective feature of the world”.11 Thompson asserts that intrinsic value presupposes an objective viewpoint. (It should be pointed out that she does so to demonstrate the difficulty in maintaining the position, rather than in propounding it as an accepted state of affairs.) Thompson teases out what is being claimed if it is argued that “natural entities and/or states of affairs are intrinsically valuable, and thus deserve to be the object of our moral concern”: At a minimum... those who find intrinsic value in nature are claiming two things: first, that things and states which are of value are valuable for what they are in themselves and not because of their relations to us (and in particular, not because they provide us with pleasure and satisfaction). Second, the intrinsic value which these states of nature have is objective in the sense that its existence is not a matter of individual taste or personal preference. Any rational, morally sensitive person ought to be able to recognize that it is there.12
The difficulty in conceiving of a value in this objective sense is twofold: it suggests the value is there of its own accord and that such value holds weight anywhere in the world, no matter who is doing the valuation.
10 O’Neill, above n 7, 121. Emphasis supplied. 11 Holmes Rolston III, Environmental Ethics (1988) 216ff. 12 Janna Thompson ‘A Refutation of Environmental Ethics’ (1990) 12(2) Environmental Ethics 147.
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The wilderness, after all, does not locate itself, does not name itself.13
I agree with those commentators who dismiss the concept of any value system being other than subjective, or anthropocentric. I consider that this project is, in fact, not only impossible but demonstrative of a certain hubris in those who seek to advance it.14
It does, however, require further clarification to avoid the conflation anticipated by O’Neill, that is, acknowledging the inevitability of a subjective/anthropocentric approach to nature does not equate with a regard and appreciation of nature solely in relation to how nature serves human needs. Asserting that values are human-based, and thus subjective in their source, does not necessarily mean that our valuation of non- humans is informed solely by our material wants or needs.
This is better explained by Norton’s distinction between ‘strong’ and ‘weak’ anthropocentrism. The strong position is narrowly drawn, with only consumptive preferences generating the value of nonhuman natural entities. Weak anthropocentrism acknowledges that humans can assign non-consumptive values to nature but these may still be related to human interests in an instrumental fashion, such as aesthetic or moral ideals relating to the human experience of nature.15 I suggest that this may also be termed “inadvertent anthropocentrism” in that, by ascribing values to nature that do not appear to have any direct connection with our material well being, and acting in accordance with such values, for example, by striving to prevent destruction of habitats on an island on which no humans live or rely, we still may reap certain benefits. As Passmore comments:
13 Simon Schama, Landscape and Memory (1995) 7. 14 In a vigorous dismissal of those who deny the anthropocentric position, Watson condemns the efforts of those who seek to posit humans as ‘plain members’ of the biotic community. By identifying the need to instil a “caring ethic” or seek to “thwart human behaviour” destructive of the environment, the biocentrists’ immediately “set the human species apart”. Richard A Watson, ‘A Critique of Anti- Anthropocentric Biocentrism’ (1983) 5 Environmental Ethics 254. Watson is quick to agree that human behaviour should be thus constrained, but this is not inconsistent with an anthropocentric perspective (at 254). See also Thompson, above n 12, 158. 15 See discussion in Bryan Norton, Why Preserve Natural Variety (1987) 12ff.
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Even the preservation of wild species and of wildernesses can largely be defended in a familiar utilitarian fashion.16 That is, their protection provides some use to humans, even if not for our consumption.
In this regard, I am agreeing that intrinsic value exists, but that I cannot conceive of a value in a non-human entity that does not, in some way relate to human interests, whether consumptive or not and whether good, bad, or neutral, to be realised now or in the future. The “weak anthropocentrism” perspective demonstrates its usefulness by ensuring that we can maintain value-based relations with nature, by drawing on the concept of “intrinsic value”, albeit in a less pure sense than defined by O’Neill or Thompson.
In what could be considered a useful starting point for a value system, Naess coins the term “biospherical egalitarianism”, adding the caveat: ‘in principle’ to acknowledge the necessity of “some killing, exploitation, and suppression”.17 Of course, it is in the application of the ‘in principle’ element that we can quickly lose control of the position. How much killing, exploitation and suppression? Of what? And why? And who benefits? And so on. As Naess points out, his seven point plan (of which ‘biospherical egalitarianism’ is the second) comprises “rather vague generalisations”18 but I like the ‘biospherical egalitarianism – in principle’ approach because it acknowledges the need for pluralism with perhaps an underlying essence of decency, in relations with both our own and other species.
What does ‘decency’ entail? Perhaps it boils down to a belief that we strive to: a. prevent avoidable harm, and b. minimise unavoidable harm. This sidesteps the question of competing interests, that is, when one is forced to choose between alternative harms. However, this is only a point for consideration, insofar as we believe that the interests of humans and non-humans can compete. If we accept as given that humans are
16 John Passmore, ‘Attitudes to Nature’, in R Elliot (ed) Environmental Ethics (1995) 129 at 140. 17 Arne Naess, ‘The Shallow and the Deep, Long-Range Ecology Movement. A Summary’ (1972) 16 Inquiry 95 at 95. 18 Id, 98.
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accorded moral rights,19 the question then becomes, do these rights ‘trump’ the interests of non-humans no matter what the circumstances?
In acknowledging the intuitive appeal of Naess’s approach, I am not necessarily endorsing his outlook, or, rather, the interpretations of such which have informed a ‘deep ecology’ movement that considers egalitarianism as according ‘equal rights’ to all living entities.20 I merely wish to suggest that a straightforward respect for one’s own and other species should inform actions and inactions that may have an adverse impact on others. Regan, however, does consider that all (human and non-human) animals have equal inherent value and equal rights to be treated with respect21 thus “producing absurd results with his unitary approach to human and animal rights”.22
To extend rights to animals and, possibly, plants, means these entities have an extremely strong claim which they can assert against human claims. Rights represent such a special type of moral claim simply because they are so hard to abridge justifiably. If some being has a right to life, then the only time if can possibly be killed justifiably is if its life represents a genuine threat to the
19 Even the most strident of biocentrists do not question this. See for example, Paul Taylor, ‘The Ethics of Respect for Nature’ (1981) 3 Environmental Ethics 197. However, it should be mentioned that certain characteristics of an entity that will attract such rights – such as rationality – may exclude some humans but this is certainly outside of the scope of this thesis. 20 Naess asserts that the “equal right to live and blossom is an intuitively clear and obvious value axiom” and when restricted to humans, has “detrimental effects upon the life quality of humans themselves”. Naess, above n 17, 96. However, I consider that, read in conjunction with his “in principle” approach to egalitarianism, he is more interested in moving away from “strong anthropocentrism” but is not necessarily denying a “weak anthropocentric” approach. 21 Tom Regan, ‘The Case for Animal Rights’ in T Regan and P Singer (eds), Animal Rights and Human Obligations (1989) 105 at 113. 22 Catherine Redgwell, ‘Life, The Universe and Everything: A Critique Of Anthropocentric Rights’, in A Boyle and M Anderson (eds) Human Rights Approaches to Environmental Protection (1996) 71 at 85. Redgwell notes a strategy used to deflect criticism of the rights-based approach is to align the campaign for the ‘rights’ of wildlife with campaigns against slavery and discrimination against women. While there is no necessary connection between the two, such an approach has “the inestimable advantage of bracketing advocates of rights of animals/ environment with the prescient and noble early campaigners for recognition of the rights of blacks and women, rather than with crackpots who talk to plants”. Ibid at 75.
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life of another being with a right to life…. Beings with a right to life cannot be killed simply to benefit – even to benefit significantly – other beings.23
A utilitarian approach, that is weighing up the sum of harm to one party or another and choosing the path in which the least harm is inflicted, has obvious appeal. If a non- human entity has the same rights as humans, then this could paralyse the ability to make any choice between alternative harms.
Regan has proposed specific principles when faced with such a choice, in which the balancing exercise is not biased in any way in favour of humans. Where there is a choice between inflicting harm on one entity (or group of entities) or another, and there are equally serious consequences for either, a moral agent has a duty to choose the action that will inflict harm on the least number. Where the harm will have more serious consequences for one entity than another, then the agent has a duty to choose the action with the less serious consequences, even if more entities are adversely affected.24
Returning to our ‘in principle biospherical egalitarianism’, does this mean that all living creatures share the same value and it is a matter of weighing up the quality or quantity of any adverse affects (as per Regan) when choosing between alternative harm-causing actions? The difficulty inherent in according equal value to all living things, is that it relies on this fraught balancing exercise between competing interests, if it is to be a legitimate code of behaviour. (While it may be fraught, it should be kept in mind that such choice is a luxury denied the majority of the world’s population.)
Taylor also takes what he terms a “species-impartiality” approach but appears to resile from Regan’s position which accords no particular weight to humans in any inter- species conflict of interests. He suggests that his approach “demands only that we give
23 Louis Lombardi, ‘Inherent Worth, Respect, and Rights’ (1983) 5 Environmental Ethics 257 at 268. Lombardi gives the examples of a laboratory mouse killed in research on human paralysis and a tree felled for paper: if either had a right to life, such destruction would be impermissible. 24 Tom Regan, The Case for Animal Rights (1983). Cited in a useful summary by Jon Wetlesen, ‘The Moral Status of Beings who are not Persons: A Casuistic Argument’ (1999) 8 Environmental Values 287 at 313.
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the same moral consideration to their good as we do to the good of humans”.25 That said, he admits that he is still working on a solution to the “problem of how conflicts between humans and wildlife can fairly be resolved” and provides only a weak proposition: In cases of conflict between them and ourselves a fair resolution might require that some human conveniences, comforts, and other minor values be given up in order to preserve or protect something of great importance to their well-being.26
Singer suggests that “self-awareness, intelligence, ability to plan for the future and the capacity for meaningful relations with others” may all be criteria to consider in ascribing rights to entities and these do not “follow precisely the boundary of our own species”.27 Singer does, however, pinpoint one of the fundamental difficulties with the concept of animal rights, that is the ability of an animal to exercise them. As he notes, “since a pig cannot vote, it’s meaningless to talk of its right to vote”.28
An alternative approach echoes the simple decency argument: that we acknowledge non-human entities do have inherent worth and deserve respect but this does not require an extension of ‘rights’. We might be able to argue that something is valuable and therefore ought to be preserved because our lives and our conception of ourselves will be enhanced – in a spiritual sense – if we learn to live with it in harmony.29
As Lombardi notes, refusing to ascribe rights to non-humans does not undermine claims for their better treatment or protection. He considers that ‘respect’ will do all the work
25 Paul Taylor, ‘In Defense of Biocentrism’ (1983) 5 Environmental Ethics 237 at 243. 26 Ibid. 27 Peter Singer, Animal Liberation (1976) 22. Singer suggests that as a chimpanzee, dog or pig may all have a higher degree of self-awareness than a severely retarded human infant, then a right to life cannot necessarily be ascribed along species lines. 28 Id, 75. 29 Thompson, above n 12,160.
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of rights in this context and this avoids the danger of diluting the “strong concept of rights”.30
Passmore’s position is that our relations with nature do not yield the necessary requirements to generate rights. No doubt, men [sic], plants, animals, the biosphere form parts of a single community in the ecological sense of the word; each is dependent upon others for its continued existence. But this is not the sense of community which generates rights, duties, obligations; men and animals are not involved in a network of responsibilities or a network of mutual concessions.31
Norton suggests that the intrinsic value accorded wild species can be understood in a broader sense and does not require attribution of rights. What is important, on this view, is that wild species are valued for themselves, and not as mere instruments for the fulfilment of human needs and desires.32
In attempting to address by what, or whom, intrinsic value is possessed, this becomes entangled with the consequences of such value if it is to inform deliberations concerning the competing interests of humans and non humans. As Holland points out, if we are to respect an entity because it has intrinsic value, then we must take care in the progression from such respect to a claim that such entity thus deserves to be protected. The point is that any act of protection or preservation is likely to involve sacrificing or forgoing something else, perhaps something of value. Hence, the
30 Lombardi, above n 23, 269. 31 Passmore, above n 16, 129 at 140. See also the arguments of Habermass (as summarised by Vogel) in relation to the fundamental hurdles facing attempts to open up a moral access to nature: “such an ethics would require a conception of the moral realm in which crucial notions such as equality and reciprocity could not easily find a place; animals are different from humans, and cognitively weaker, and so such an ethic would inevitably depend upon a form of paternalism inconsistent with modern conceptions of the moral point of view”. Steven Vogel, Against Nature, The Concept of Nature in Critical Theory (1996) 154. 32 Bryan Norton, ‘The Cultural Approach to Conservation Biology’, in D Western and M Pearl (eds) Conservation for the Twenty-first Century (1989) 241 at 242.
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justification of such an act involves not simply a judgement of value but a judgement of comparative value.33
Wetlesen suggests a ‘gradated’ approach depending on whether, for example, an animal is not only conscious, but self-conscious. He starts with humans as the paradigmatic examples of beings who are ascribed moral status, and thus have the greatest inherent/intrinsic value. This status may then be extended to nonhuman beings “on the basis of normatively relevant similarities”.34 Such similarity relates to the organisms’ “capability of self-organisation and self-reproduction” which is described as “biological self-determination” which can be used as “a basis for the gradation of inherent value”. Then we can assume that the degree of inherent value of an organism is proportional with the degree of similarity of its capability of self-determination as compared to the rational self-determination of moral agents. Moreover, we can assume that the strength of direct moral duties which are binding on moral agents in relation to an organism, is proportional with its degree of inherent value.35
Of particular interest in Wetlesen’s approach is its application to specific organisms. He suggests that his approach will have “strong implications for the way we treat other primates, mammals and birds” with weaker consequences for those animals “ascribed a somewhat lower degree of inherent value” which may include “reptiles, amphibians, fish and many species of invertebrates”.36 This of course assumes a differentiation in the determining factors between say, birds and reptiles, that may not always be the case.
While Wetlesen is quick to step back from the suggestion that such an approach should be attempted, because of the great uncertainties involved, his demarcation between those animals to whom we owe either strong or weak duties mirrors both the division
33 Alan Holland, ‘The use and abuse of ecological concepts in environmental ethics’ (1995) 4 Biodiversity and Conservation, 812 at 814 (Holland’s italics). 34 Wetlesen, above n 24, 313. So, contra Singer (above n 27), values here are drawn along a species boundary, between humans and non-humans. 35 Id, 314. 36 Ibid.
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apparent in public attitudes to wildlife (as discussed below in this chapter) and the stratified regulatory force of Australia’s wildlife export law (as discussed in Chapter 5).
What this approach does not explicitly acknowledge, is the power of aesthetic and/or emotional appeal in attracting moral status. To put it bluntly, dumb cute animals are likely to be ascribed greater ‘value’ than smart, aesthetically-challenged ones. (As this is little different from what can occur within human society, it is not so remarkable.) I address this issue in the section on attitudes to wildlife, below.
1.3.1 Rights versus respect – survival of the specimen or the species The rephrasing of our regard for non-humans as entailing ‘respect’37 or ‘moral consideration’38 provides an alternative to the egalitarian ‘rights’ position; it allows consideration of a myriad of factors concerning an individual entity and the context in which our interaction with it may occur. The concept of respect, much more than the concept of rights, seems amenable to gradation; it can be adjusted to the type of being in question. Plants are due respect as life, but not as conscious active beings. Conscious active beings deserve respect as such, but not as moral agents.39
The move from rights to respect, then, allows the interests of the individual specimen to be subsumed to that of the community. This removes the clash of interests between individuals but introduces conflict between the rights of the individual versus the rights of the collective and/or the habitat. In one of the most influential philosophical tracts for ecological activists and ethicists, Aldo Leopold upheld the value of the ‘community’ as dominant: A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise.40
37 Lombardi, above n 23, 257. 38 If nature is morally considerable, then it is “worthy of being considered by a moral agent in moral decision making”. Eugene Hargrove, ‘An overview of Conservation and Human Values: Are Conservation Goals Merely Cultural Attitudes’, in Western and Pearl, above n 31, 230. 39 Lombardi, above n 23, 269. 40 Aldo Leopold, A Sand County Almanac (1966) 224.
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This opens up another whole area of debate, that is, the question of how we apply the values of ‘stability’ or ‘diversity’: Even if we focus on ecological systems, it is difficult to determine what ought to be preserved and protected and why. If we degrade an environmental system, make it less diverse, natural, stable, etc., then we have rendered it less valuable according to our criterion. But in the future this system may recover, becoming as diverse and integrated as before (though perhaps with different species), or another system just as diverse may replace it...41
Redgwell comments that Leopold’s focus on the community is preferable to animal rights in providing “moral underpinning to the conservation of biological diversity”, commenting that rights-based approaches would have difficulty dealing with the “biological necessity” of culling individuals for the sake of the species. 42
Hargrove provides succinct reasoning as to why such an approach cannot survive in current approaches to nature: … environmental ethics has thoroughly examined and dismissed the claim … that nature has some kind of right to exist. Such a position would be feasible if an environmental ethic could be constructed on animal liberation principles so that we always acted to preserve the rights and interests of every living organism in every species and in every ecosystem…. Put simply, the good of the species or the system is not often, and indeed is usually not at all, compatible with the interests of individual plants and animals.43
In an oft-cited dismissal of animal rights, Callicott posits the attitudes of environmental ethics against that of animal liberationists, concluding that the policies of the latter
41 Thompson, above n 12, 157. 42 Redgwell, above n 22, 81. 43 Hargrove, above n 38, 230.
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would have “ruinous consequences on plants, soils and waters” and the rights movement is “in the final analysis utterly unpracticable” [sic].44 An imagined society in which all animals capable of sensibility received equal consideration would be so ludicrous that it might be more appropriately and effectively treated in satire than in philosophical discussion.45
Taylor develops the argument by suggesting it is not an either/or proposition. The good of the individual is not necessarily usurped by the good of the group in situations where the individual’s life is subordinate to the survival of its community as this depends on what is meant by the good. The fact that some animals and plants do not use much energy to defend their individual lives is not an indication that they do not have a good of their own which they are pursuing in their own way. It merely means that their particular good consists in their functioning well in the social whole, contributing their part to the food of the community. This is the way they realise their own biological potentialities at their highest level.46
While philosophers can assist with identifying relevant considerations when facing hard moral choices, what I am concerned about in this thesis is the application of values via environmental regulation.47 What I wish to turn to here is how a regard for nature that focuses on ‘intrinsic value’ is applied in day to day human interactions with, and dependence on, the environment. In identifying and ascribing ‘intrinsic’ values, as part of our dealings with the surrounding environment, I return to my belief in decency, to each other and other species. This should be based on an empathetic consideration of the needs and interests of others, with a particular focus on those in our species who may be most likely to suffer adverse consequences of our actions.
44 J. Baird Callicott, ‘Animal Liberation: A Triangular Affair’ in R Elliot (ed) Environmental Ethics (1995) 29 at 58. (Reprinted from the original journal article in 1980 2 Environmental Ethics 311. 45 Ibid. 46 Taylor, above n 25, 238. 47 As Light comments, while theoretical questions can be valuable they “often get in the way” of attempts to solve environmental problems”. Andrew Light, ‘Materialists, Ontologists, and Environmental Pragmatists’ (1995) 21(2) Social Theory and Practice, 315 at 320.
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In short, what I take from the above discussion, is that ‘weak anthropocentrism’, in which humans ascribe values to non-human entities, whether at the individual, species or community level, best reflects the reality of human interactions with the surrounding environment. It provides a vast spectrum of possibilities of human and non-human interaction. In itself, recognition that both use and non-use values can be ascribed by humans is not contentious, it is the balancing of those values and the imposition on others of either the values and/or a hierarchy in their application, that gives rise to conflict. A clear example, is the Western influenced wildlife protection schemes that have resulted in either the eviction of tribal peoples from their lands and/or the disruption of their existing patterns of consumption and survival.
1.3.2 Benign intervention or ineffective meddling? An illustration of the problem It is in what appears to be the most benign of approaches to non-instrumental valuation that we can see the seeds of ‘ecological imperialism’, where a set of beliefs is put forth, without acknowledgement of the possible needs or interests in conflict with such beliefs. I take as an example, a thoughtful discussion by Norton of the “deeply moral intuition” he felt in an exchange with an eight-year-old girl on a Florida beach.48 The little girl is collecting ‘sand dollars’ (echinoderms) with her mother and sister, to be bleached and then made into craft objects. They have collected several hundred by their boat by the time Norton walks along. He asks the girl if they need so many and she replies that her mother makes them into things and they get “a nickel apiece for the extras at the craft store”.
Norton goes on to discuss the question of non-instrumental versus instrumental valuation, at both the theoretical and practical level. He asserts that the emphasis on commercial and commodity-oriented concerns in preservation arguments “ignores a vast range of important cultural, aesthetic, and social reasons for a preservationist policy”. This reasoned and expansive discussion is then applied to the strategy he would use in his campaign to get the little girl to put some of the sand dollars back. He would introduce her to the wonders of the sand dollar: “I’d pick one up and show her its
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tiny sucker feet and let her feel them knead her hand … I’d explain how, with those tiny feet, the sand dollar pulls itself through the sand…” He then moves on to the bigger picture, that “the little girl was being taught that the value of beaches is a commodity value”, thereby reducing her to a “mere consumer”. Whatever we believe about the intrinsic value of sand dollars, we can say that, when the little girl lost her chance to wonder at the living world of sand dollars at the bottom of lagoons, she was impoverished.49
So what is wrong with this discussion? I appreciate Norton’s position, and would be extremely saddened if my own son were reduced to a “mere consumer”. However, in all his ruminations on what the girl may have lost and the broader implications for society, he never considers for a moment whether the little girl and her mother and sister had little or no choice in the matter. That is, he never raises the issue of their economic situation. Perhaps they are comfortably off and the mother’s craft work is a relaxing hobby. The point is, however, that he does not seem to consider it a matter on which the reader should be informed before moving on to questions of the little girl’s perspectives on nature. My immediate response to his initial scenario – a “lazy Saturday afternoon” on an “unspoiled beach” in which this little family is toiling away in the lagoon – is to wonder what may be motivating them to be doing so. Norton only appears interested in what could motivate them not to do so. Well, it may be that a more equitable distribution of wealth could work wonders. As a prominent academic, potentially in demand at conferences around the world, Norton’s ‘ecological footprint’50 from just one flight to one meeting could be measured as having far greater adverse effect than the busy family on the beach.
I am not seeking to curtail the international travel of academics, but if those seeking to address environmental degradation do not acknowledge the needs and interests that drive potentially destructive behaviour, then they have little chance of devising effective means to prevent that behaviour.
48 Norton, above n 32, 241ff. 49 Id, 244.
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S2. Commodifying Nature
Norton’s concerns with the sand dollar being reduced to a ‘product’, a beach being given ‘commodity value’ and the little girl being turned into a ‘mere consumer’, are reflected in the debate that arises when intrinsic valuation meets instrumental valuation head on.
Commodification is the transformation of an entity that exists and is valued for its own sake or for the use it may provide as a human good into an entity that is also valued – or only valued – for what it may earn in the marketplace as a commodity. It introduces a value that is not necessarily connected with the entity but with how it compares with other goods in the marketplace. It becomes interchangeable with other goods in this regard. For example, if a hairy-nosed wombat could be sold, say, as a pet and a price of $4000 was allocated to a healthy adult specimen, the wombat would now have a quantifiable value by which it could be compared with other marketable goods. Its price tag would put it in the category of a plasma television, or a second hand Volvo. It could then be exchanged for the money or for such similarly-priced goods.
The concern with such a process is that it would render the wombat devoid of other values; it would lose its ‘wombat-values’, whatever these may be and now would be subject to the vagaries of the market. Its price could move up or down depending on factors completely external to its value as a wombat qua wombat. The introduced system of valuation could then undermine the way in which the wombat is treated, or its habitat managed, because it would no longer be regarded as a creature with its own bundle of values but as an object by which $4000 can be obtained. The difficulty in addressing arguments against commodification, is that they are often bound up in equity arguments, so that there is confusion over the object of repugnance: is it that wildlife has a price tag, or that the price is not high enough, or that the wrong people are setting the price and/or reaping the reward?
50 That is, his impact on the environment. The concept was introduced by M Wackernagel and W Rees, in their book: Our Ecological Footprint: Reducing Human Impact on the Earth (1996).
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2.1 Do non-instrumental values survive commodification?51
Much of the ethically-based opposition to any commercial use of wildlife centres on its claimed role in diminishing or excluding a species’ intrinsic value, when it ‘commodifies’ the species or other entity. The commodification of biological diversity raises a number of concerns about its impact on the way we regard and interact with the environment, that it may be "paving the way for the destruction of the world for the sake of utility and industrialization at the hands of arrogant humanism".52
The difficulty facing such a position is that such valuation is not objective. A valuation of wildlife that precludes consumptive and/or commercial use is a social and cultural construct. This is demonstrated by the different attitudes and values that inform responses to wildlife around the globe. The allocation of values within societies is obviously closely connected to human relations with wildlife, be it aesthetic, emotional or economic.
According to O’Neill there are two ways that markets cross ethical boundaries: 1. items that are inappropriate for sale become articles for sale; 2. relations, attitudes, evaluation of the market are transferred to other spheres.53
Of significance is that commodification "opens up" to world markets the less developed countries of the South which contain most of the earth's remaining biodiversity. (Australia is considered to be the only developed mega diverse nation.) A prominent example is the much cited deal between pharmaceutical giant Merck and Costa Rica's National Biodiversity Institute (INBio) – which has been described as the "starkest
51 The following section is drawn from previous work by the author in Linda Tucker and David Farrier, above n 5. 52 David Ehrenfeld, cited by John Dryzek in ‘Green Reason: Communicative Ethics for the Biosphere’ 12(3) Environmental Ethics 195 at 196. 53 John O'Neill, Justice, Property and the Environment (1997) 115.
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commodification of biodiversity yet seen".54 This gave Merck the right to bioprospect in Costa Rica's rainforests and develop and patent new products from their research.55
Takacs refers to "philosophical and real world dangers" which occur when biodiversity becomes a market commodity and that, for those who perceive such dangers, "at INbio their worst fears come true".56 He acknowledges the significant economic and social value derived from the Costa Rican project but doubts that a love of biodiversity in itself and its exploitation can "continue to run in parallel": At INBio they are pinning their hopes on pinning bugs to boards and pinning down those willing to pay for the privilege of using biodiversity. They are trapping, snaring, netting, etherizing, drowning, pressing, baking, pulverising, grinding, centrifuging, and otherwise molesting nature in order that some of it may remain unmolested.... Is our world really such that the only way to conserve wild riches is to rend and auction them to the highest international bidder?57
The ethical concerns appear to be fuelled by an assumption of "one in all in", that is, once we begin to commodify an entity, any previously held values will be overwhelmed by considerations of impersonal, all-consuming market forces. If we regard other species as mere commodities, can we see each other - or parts of each other - as commodities as well?.... If species, including our own, are
54 David Takacs, The Idea of Biodiversity (1996) 304 55 Costa Rica was paid US$2million in return and will receive five per cent of any royalties. R McNally and P Wheale, ‘Biopatenting and Biodiversity, Comparative Advantages in the New Global Order’, (1996).26(5) The Ecologist 222 at 226; John Adair, ‘The Bioprospecting Question: Should the United States Charge Biotechnology Companies for the Commercial Use of Public Wild Genetic Resources?’ (1997) 24 Ecology Law Quarterly 131 at 142. 56 Takacs, above n 54, 304 57 Id, 305. Criticism of the INBio Project exemplifies the mix of equity and ethics issues in opposition to commodification of wildlife. This makes it difficult to determine the basis of the suspicion: is it that there is any price tag, or that the price is not high enough. There is also concern about the role of commodification in the appropriation of indigenous property rights in wildlife. See Anja Nygren, ‘Environment as Discourse: Searching for Sustainable Development in Costa Rica’ (1998) 7 Environmental Values 201 at 207-208. Again it should be emphasised that this is not a necessary consequence of commodification as it concerns the content of such an agreement. There is nothing to prevent commodification of natural resources operating on the basis of indigenous rights to assert traditional ownership over such resources.
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treated as commodities, our treatment of each other will increasingly come to reflect differential values in the market.58
As a consequence, it may be considered that the only way to address the irresistible force of commodification is to construct a wall between that which should and should not be commodified, with the latter entirely protected and the former entirely surrendered. Elizabeth Anderson claims "the market idea of freedom" is "a complete freedom to use commodities without constraints implied by other modes of valuing".59 This acquiescence to an unconstrained market for commodified goods is based on the presumption of incommensurability between market values and other modes of valuing.
While the dangers of rampant market determinism informing environmental policy and management must be acknowledged, the opposition to commodification should not overstate the claim nor deny the possibility that other modes of valuing can exist in the marketplace. For example, consumers accept that a manufacturer should meet occupational health and safety standards and environmental controls at the place of production. These are costs factored into the price of the goods we purchase. Public acceptance of ethics playing some part in production and consumption is reflected in the legitimacy accorded State regulations which constrain market activities.
Radin also criticises the characterisation of free-market exchanges by the ‘compartmentalisers’, for whom the social world is theorised in terms of a pure market domain and a pure nonmarket domain.60 The compartmentalisers' approach relies on ‘blocked exchanges’ in which some goods stand outside the market. Radin argues that this gives too much away to the free-marketeer, for those goods which are characterised as pure market goods are subject to laissez-faire economic conditions.
58 J Kloppenburg and B Burrows, ‘Biotechnology to the Rescue? Twelve Reasons Why Biotechnology is incompatible with Sustainable Agriculture’ (1996) 26(2) The Ecologist 61 at 66. 59 Elizabeth Anderson, Value in Ethics and Economics (1993) 144. 60 Margaret J Radin, Contested Commodities (1996) 46.
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Radin argues that we can, and should, subject at least some commodities to state regulatory control. Goods treated in the latter manner can be said to be ‘incompletely commodified’. (Whether Radin is actually setting up the ‘compartmentalisers’ as straw men to make this argument is open to debate as there is obviously regulation of the activities of the marketplace. It is perhaps the extent, equity and effectiveness of that regulation that should be open to question.)
In a second related argument, Radin asserts that in many instances it is quite possible for noncommodified and commodified understandings to coexist. She refers to personal goods in which there can be a plurality of understandings of value. Personal items are not understood instrumentally, as means to satisfy the owner's needs and desires, or at least their significance is not wholly captured by this kind of understanding. They are not valued - or not valued only - in market terms, in terms of exchange. Because they are not, they are noncommodified, or incompletely commodified.61
If we take Radin's approach of incomplete or partial commodification, state regulatory control can play a part in dealing with goods in the commodity realm rather than just blocking some goods from the market and surrendering others completely. If social justice would be improved by a less commodified society, then, rather than walling off a few transactions from the pure free market, we should seek to deepen and consolidate the nonmarket countercurrents that cut across the market. One way we already do this to some extent is, of course, with regulation.62
It is uncontroversial to suggest that constraints must be imposed on the trading of commodities and, with regard to Radin's second point, that these are informed by a range of values with regard to the commodity itself and the rate and manner of its development and use.
61 Id, 60.
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Arguments against the possibility of commensurability between market value and other modes of valuing raise ethical issues which may have consequences for management priorities. If we deny commensurability of value then we deny that species or land subject to commodification, such as domesticated species or agricultural land under production, can have intrinsic value. Rather than concentrate on whether a wild wombat has intrinsic value perhaps it is better to ask whether a domesticated horse is denied it. The difficulty involved in determining what should be the objects of our moral concern translates into a difficulty about what states of affairs we should be promoting. Is the diversity, integrity, naturalness, etc. contained in a compost heap or a tree less worthy of our concern than the diversity, integrity, naturalness, etc. of a forest? Is a monoculture pine plantation full of creatures, which in themselves have diversity, integrity, etc., necessarily of less worth than the wilderness it replaced?63
These questions are significant with regard to the values informing environmental management, particularly the justifications for implementing conservation and sustainable use practices to all biodiversity. Such questions are also of relevance to the apparent value dichotomies in the objects or states of affairs that attract moral – and regulatory – concern.
This can manifest in the division between what is perceived as ‘wild’ and what is considered ‘livestock’, with only the latter a legitimate subject of trade. For example, the High Court has been asked to determine matters concerning free trade between the States, at least partly on the basis that the objects of the trade, cockatoos64 in one case and kangaroo skins in the other,65 were extra-commercium, that is, things that should remain outside of trade. In both cases, the High Court demonstrated the luxury of decision making outside of the explicitly political sphere. Having little apparent regard for emotional or philosophical sentiments, the Court stated the species could be traded
62 Margaret J Radin, ‘Justice and the Market Domain’, in Markets and Justice, Nomos XXXI (1989) 178. 63 Thompson above n 12, 157. 64 Ackroyd v McKechnie (1986) 161 CLR 60. 65 Fergusson v Stevenson, (1951) 84 CLR 421.
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and dismissed the arguments against trade based on the status of the species as native wildlife In Fergusson v Stevenson, kangaroo skins legally bought in Queensland were forwarded to NSW for sorting and export. Stevenson, the manager of the export company in Sydney who received the skins, was charged with possession of fauna protected under the Fauna Protection Act 1948 (NSW), comprising the skins of grey and red kangaroos and wallaroos. The court held that the transaction, including the possession, was protected by s.92 of the Constitution which states that trade among the States “shall be absolutely free”.66
The New South Wales Government argued, inter alia, that the Fauna Protection Act was “directed towards things which the Parliament of New South Wales regards as being not suitable to be articles of commerce in the ordinary sense”.67 On this matter the High Court stated: The first thing to negative is the existence in Australia of any universally or generally accepted understanding of what are or should be legitimate articles of commerce which excludes kangaroo skins. The attitude towards the killing of kangaroos necessarily varies in different parts of Australia between at the one extreme protecting kangaroos almost altogether and at the other treating them as pests.68
In 1986, the NSW Government was again before the High Court, still arguing on the basis of a dichotomous approach to animals. In Ackroyd v McKechnie,69 a shipment of cockatoos had been seized on their arrival by train in Brisbane by a Queensland Fauna Officer. The dealer, Ackroyd, brought an action against Queensland’s Minister for Tourism, National Parks, Sports and the Arts, for a declaration that the relevant sections
66 Australian Constitution, s. 92: “On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.” 67 Above n 65, 423. 68 Joint judgment of Dixon, Williams, Webb, Fullagar and Kitto JJ, Id, 434. 69 Above, n 64.
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of the Fauna Conservation Act 1974 (Qld) were invalid as contrary to s.92 of the Constitution.
New South Wales, which intervened in support of Queensland, argued that “live native fauna is different from commodities which come into existence as the result of primary production”.
In the leading judgment, Gibbs CJ dismissed this argument, finding that the acts of the plaintiff were acts of interstate trade: It is immaterial that wild birds were the subject of the transaction – there is no legal reason whatsoever why there should not be trade or commerce in wild birds or animals.70 As to the argument that the Act’s provisions fell within recognised valid restrictions on interstate trade because they were the “only practicable and reasonable way of protecting native fauna”, Gibbs CJ noted that a statute that imposes reasonable restrictions in the interest of public health may be justified “as a permissible regulation of interstate trade which does not infringe s.92”. This may be extended to prohibition of trade of “dangerous goods or diseased persons, plants or animals”. However, he found that the question was unnecessary in this case: It is impossible to agree that the prohibition of the movement of cockatoos from New South Wales to Queensland is reasonably necessary either in the interests of the health of the community or of the preservation of cockatoos. As the stated case reveals, wild cockatoos … are continually flying across the border between New South Wales and Queensland. The number of cockatoos in commercial trade is miniscule … in comparison with the number of wild cockatoos. No material was placed before the Court to suggest that the species is, or is likely to be, endangered by that trade.71
70 Id, 67 (Gibbs CJ). 71 Id, 69 (Gibbs CJ). The Court held that the fauna dealer, licensed in NSW, could not be prevented from selling the consignment of cockatoos to a buyer in Queensland despite there being no permit issued in accordance with the Fauna Conservation Act 1974 (Qld).
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The statements of the High Court in these two cases reflect some of the arguments raised in the broader debate, as discussed throughout the thesis. The court’s approach suggests that, unless an argument can be made out on conservation grounds, for example if the species is endangered, opposition to use should not be based on an apparent divide between certain species.
The suggestion of a divide between ‘wildlife’ and ‘livestock’ has even been applied within species. The Avicultural Federation of Australia (AVA) recommended to the 1998 Senate Inquiry into commercial use of wildlife,72 that the export controls under the Wildlife Protection Act 1982 (Cth) should be relaxed to allow live exports of native birds but this be restricted to captive-bred specimens. In its case for export it argued that certain birds have been bred in captivity for so long that they should no longer be considered as ‘wildlife’ but as ‘livestock’.
The RRAT Inquiry reported that, based on the submissions it received, the ethical response to commercial use of wildlife operated over a number of stages. It started with the individual’s stance on whether it was morally or ethically right to use animals and, if this was accepted: “whether ‘wildlife’, as opposed to European agricultural species, should be subject to commercial use”. A decision at this point is also frequently based on a value judgement as to whether ‘wildlife’ is inherently different from domesticated species and is thus sacrosanct. Curiously, at this point there is often acceptance of the use of native plant species but not native animals, or of some animals but not others.73 This ‘curious’ response reflected the application of the then relevant legislation – the Wildlife Protection Act 1982 (Cth) – with greater protection provided to native vertebrates than invertebrates and then a further divide within the vertebrates which excluded native freshwater fish. See discussion of the Australian legislation in chapters six and seven.
72 RRAT, Commercial Utilisation of Australian Native Wildlife (1998) 292. 73 Id, Executive Summary, xv.
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It is difficult to see how the concept of intrinsic value can survive the application of an arbitrary divide such as that proposed by NSW in the High Court cases and RRAT submission. As discussed above, if a thing or state of affairs is thought to be intrinsically valuable, then all things that are like it in relevant respects must also be judged to have intrinsic value. The requirement of consistency presupposes that the ethic in question has provided us with an account of what differences and similarities are relevant and why. If that ethic is to have any claim to being objective, then that account must not seem arbitrary.74
What the commodification debate supports is the “weak anthropocentrism” position in which a combination of values can co-exist in entities and instrumental valuation is not fatal to other, non-consumptive bases for respect and appreciation of nature.
S3. Attitudes to Wildlife
All animals are equal. Although some are more equal than others.75
The arguments concerning valuation of nature and the extent to which intrinsic value can be ascribed to non humans touch on the issue of different responses being justified for different entities, depending on issues such as sentience or self-awareness. What the debates do not expressly address, however, is the role of cultural, aesthetic and emotional bases to the regard of nature. This section examines some of the attitudes to wildlife that result from such ‘sociological’ factors. The attempt to find a logical grounding to our valuation ignores these potent forces, yet, as this thesis demonstrates, they have obviously had a significant impact on regulatory design and implementation pertaining to commercial use of wildlife. Concern was often expressed that in the popular mind, conservation tends to relate to particular species, commonly the larger and more conspicuous ones.76
74 Thompson, above n 12, 148. 75 George Orwell, Animal Farm (1945), at 90. 76 House of Representatives Select Committee, Wildlife Conservation (1972).
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The authors of this statement – a parliamentary committee examining wildlife issues – acknowledged that conservation had been diverted by popular conceptions of nature, to the detriment of the environment. In the next paragraph, however, they appeared to succumb to the same approach. Despite persuasive argument for fish and invertebrates to be considered in the 1972 inquiry, the Committee decided that it “was not open to it to canvas more widely than the terms of reference allowed”.77 Although the terms were not exhaustive – they described ‘wildlife’ as “including birds, mammals of the land and water, and reptiles”78 – the Committee bound itself to a narrower brief.
This explicit demarcation between fish and invertebrates on the one hand, and ‘wildlife’ on the other, reflects the ongoing species discrimination in many legal regimes. The Committee knew better, but still felt obliged to contain its inquiry to the usual suspects: the “larger and more conspicuous” species. The new Federal wildlife legislation – which came into force 30 years after that Committee filed its report – has done little to address such discrimination.79 This may be due to the reality of such divide in public attitudes to wildlife, at least in Western society. Unlike terrestrial wildlife, most commonly known marine species in New England are usually considered food. Most people … tend to see marine species only in the seafood case in the supermarket.80
The impact of aesthetic or emotional responses to ‘iconic’ wildlife on Australian conservation imperatives was exemplified by the Kangaroo island koala culling case. The numbers of koalas on the island had been a matter of concern for some years, with biologists clearly aware of the constraints imposed by the subject matter on any management decision.
77 Commonwealth, House of Representatives Select Committee, Wildlife Conservation, Parl Paper No 284 (1972) Introduction, 10. 78 Id, 7. Emphasis supplied. 79 As discussed in chapters six and seven. 80 Tatiana Brailovskaya, ‘Obstacles to Protecting Marine Biodiversity Through Marine Wilderness Preservation: Examples from the New England Region’ (1998) 12(6) Conservation Biology 1236 at 1238.
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With current perceptions of the koala as cute, rare and endangered, the option of harvesting surplus animals, which appears to have been the course followed by both the indigenous hunters and the early European settlers, is not likely to be adopted. That is a great pity because it is probably the most humane, sensible and cost effective option of all.81
The South Australian Government refused permission to cull koalas on Kangaroo Island, as proposed by ecologists in 2001, because of the feared “significant international outrage”.82 The refusal was couched in terms of protecting employment as it was considered that the negative images of culling up to 20,000 koalas would have had a significant effect on tourism, leading to the loss of jobs. Our job is to balance the needs of all interest groups…. We are trying to balance the needs of biodiversity with the needs of employment.83
Yet, as one ecologist was at pains to point out, the decision not to cull could lead to far worse images and, presumably, an eventual downturn in tourism. David Paton of Adelaide University was quoted as stating that, without the cull, the alternative image for Kangaroo Island would be that “virtually every tree was dead, and lying underneath those trees were the carcasses of koalas that had starved to death”.84 As he also pointed out, the koala is an introduced species on Kangaroo Island, buttressing the conservation argument for their numbers to be severely limited. Conservation, however, took a back seat in this case. Because the koala is an ‘icon’ it was spared the apparent brutality of a cull, even where this may lead to its gradual demise, and the collapse of the habitat.
The fact that a major cull of koalas was ‘unthinkable’, points to one of the significant factors in the wildlife use debate – that certain treatment of certain species is simply
81 Roger Martin, ‘Managing over-abundance in koala populations in south-eastern Australia – future options’, in M Davies (ed) Exploiting Our Native Fauna – Culling, Harvesting, Farming? (1997) 57 at 61. See also Barbara St John, ‘Risk assessment and koala management in South Australia’ in the same volume at 47. 82 ‘Icon status saves koalas from cull threat’, CNN (Hong Kong) 31 October 2001. 83 South Australian Environment Minister Iain Evans talking to CNN about the proposed cull. Ibid. 84 ‘Ecologists call for cull to save koalas’, Daily Telegraph (London), 1 November 2001.
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beyond the pale for politicians responding to public perceptions of nature. Such decisions have little to do with conservation yet they underpin much ‘conservation’ policy.
The extent to which culture, aesthetics and emotion play a part is illustrated by the responses of the public to wildlife, as revealed in a number of surveys and in support for particular species in wildlife protection campaigns (and the selection of certain wildlife as the subjects of such campaigns). Questions of intelligence, or sentience, may sometimes play a part but this may be overridden by empathy, that is species to which humans can most closely relate, and/or aesthetics (the two can obviously overlap).
The unevenness of the ethical and regulatory response to wildlife use reflects this apparent public divide regarding different species – at least in developed countries. In a study of the public valuation of a range of endangered species, it was found that: Plants, birds, and mammals, among which there were no significant differences in public valuation, were valued significantly higher than fish, reptiles, amphibians, invertebrates, and microorganisms. Fish, however, were valued significantly higher than reptiles, amphibians, invertebrates, and microorganisms. Microorganisms were valued significantly lower than all other species types.85
As the authors of this study note, such public perceptions of species “have a major influence on policy formulation and implementation”.86 For example, public funding of conservation programs for endangered species tends to parallel the above valuation. The selection of certain wildlife groups and, within those groups, certain species, for the attention of the public and consequently the policy makers, is also reinforced by the activities of NGOs. In a breakdown of conservation NGOs in the United States, the same authors found that birds were represented by the most organisations (57), followed
85 Brian Czech, Paul R Krausman and Rena Borkhataria, ‘Social Construction, Political Power, and the Allocation of Benefits to Endangered Species’ (1998) 12(5) Conservation Biology, 1103 at 1105. 86 Id, 1104.
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by mammals (40), fish (32), plants (19), reptiles (5), invertebrates (4), amphibians (1) and microorganisms (0).87
The use of popular species as a fundraising strategy has been subject to a number of surveys. For example, White et al, studied responses to otters and voles in a case study on comparative values in Britain.88 The research focused on the willingness of the public to pay for their conservation. The otter has a higher profile than the vole and could be regarded as a ‘charismatic species’. While the two species live in similar habitats and so face similar threats, the study found that the public was willing to pay far more for the otter than the vole and even more for the otter alone than the otter and vole combined.
These findings are buttressed by the results of another United States study which examined the response of zoo visitors to the various animals exhibited. Combining surveillance of visitors – monitoring the time spent observing animals – with a questionnaire which required participants to give a preference score to each of five animals, the study found that the exhibits of larger animals were more popular.89 This presents a dilemma for zoos, particularly public institutions, if they are to discharge their conservation duties. As the authors of this study note, larger animals are more expensive to maintain and are slower breeders which means it would be more efficient for zoos to focus on smaller species as there could be a more effective contribution to conservation efforts for the same financial outlay. However, the greater popularity of the larger animals could mean a loss of patronage if zoos reduced their numbers in favour of small species.
While species empathy and aesthetic appeal combined to favour certain animals in the zoo and fundraising studies, another survey revealed an apparent cultural and/or
87 Id, 1106. 88 PCL White, KW Lindley and G Richards, ‘Economic values of threatened mammals in Britain: a case study of the otter Lutra lutra and the water vole Arvicola terrestris’ (1997) 82 Biological Conservation 345-354. 89 Paul Ward et al, ‘The Relationship between Popularity and Body Size in Zoo Animals’ (1998)12(6) Conservation Biology 1408.
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sociological determination for responses to particular species. The survey, across six countries, administered a questionnaire to a “representative random sample” which comprised about 500 adults in each of Australia, England, Germany, Japan and Norway and 1000 in the United States.90 The survey specifically addressed hunting and commercial use of wildlife. Though knowledge of public perceptions is not necessarily the most important influence in formulating policy (especially in politically-sensitive areas of concern), nevertheless it is hoped that the results of this study may have some relevance to current discussions taking place in several fora concerning the appropriate management of whales.91
In this case, while financial sponsors included government agencies in pro-whaling countries (Norway, Japan, Iceland), the study’s authors stress that the survey was designed and questions written before potential funding sources were approached and no changes were requested by the agencies concerned. Whether there may have been any influence on the design or reporting, in any case the findings are of interest in the variation they display in the attitudes of different countries. The survey is also of interest because, apart from its insights on public knowledge of whales and attitudes to whale hunting, it canvassed its audience on issues concerning a range of other animals, including kangaroos.
The six countries were surveyed on whether they approved or disapproved of the consumption of chicken, deer, horse, kangaroo, lamb, lobster, seal, whale and wildfowl. The positions of England and Australia remained fairly close, although Australia was the more permissive country in relation to most of the animals. However, the two countries diverged dramatically concerning the kangaroo. Australia’s disapproval rating of 47.7 per cent was well below every other country while England rated the highest disapproval of 80.9 per cent. Next was the United States on 79.6 per cent, then Japan 67.7 per cent, Germany 64.1 per cent and Norway 55.2 per cent.92
90 Milton Freeman and Stephen Kellert, Public Attitudes to Whales (1992). 91 Id, 1. 92 Id, 26.
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Local knowledge or perhaps loyalty to one’s own community does seem to play a part in influencing approval of commercial use of wildlife. In this survey, the example of the response to kangaroo meat illustrates greater acceptance of the trade on the part of Australians. There was still a high level of disapproval of the kangaroo meat trade in Australia (47 per cent disapproval as opposed to 28.2 per cent approval) but the next highest approval rating was Germany’s, at 15.9 per cent.
Yet Australians cannot be regarded as a particularly callous nation; the group surveyed in this case scored the highest disapproval of the whale meat trade and second highest for seal meat.93 (The Australian Government has also been a long term and prominent supporter of the moratorium on commercial whaling.94) There is also significant affection for the kangaroo as a national emblem, popular icon and, more practically, a major earner of international tourism revenue.
In the case of Japan which, with Norway, had the lowest disapproval ratings for the whale meat trade, there was the highest disapproval rating for lamb meat (33 per cent) and the second highest disapproval of the deer meat trade (61.3 per cent). The Japanese and Norwegian disapproval ratings for consumption of kangaroo meat were higher in both countries than disapproval of seal and whale meat trades.
The survey revealed considerable cultural differences in responses to questions concerning the hunting of whales. For example, Australia was the strongest opponent to whale hunting under any circumstances and also had high disapproval ratings (more than 60 per cent) to the statements concerning circumstances in which hunting could be acceptable, including: if properly regulated, if non-endangered, if plentiful. The disapproval dropped to 49.1 per cent in response to the suggestion that “harvesting non-
93 The Australian campaign for a worldwide ban on whale hunting is discussed in Anthony D’Amato and Sudhir K Chopra, ‘Whales: Their Emerging Right to Life’ (1991) 85 American Journal of International Law 21. 94 For a history of Australia’s position on whaling, see A Universal Metaphor, Report of the National Taskforce on Whaling (May 1997)
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endangered whales is justified for economic and cultural needs of traditional whalers”.95
The Australian responses were very close to those from the English audience with usually only a couple of percentage points difference between the two sets of answers, England tending to be slightly more permissive. There was a marked difference concerning opposition to whale hunting “under any circumstances” with England scoring 43.1 per cent as opposed to Australia’s 60 per cent. In the two whaling countries surveyed – Norway and Japan – opposition to whale hunting under any circumstances dropped to 21.1 per cent and 23.5 per cent respectively.
The hunting of whales must rank as one of the most controversial issues in the international wildlife debate. The strong emotional response of those opposed to the killing has been a powerful force in the campaign against commercial whaling. The striking changes to the international regulation of whaling have also provided a clear demonstration of the impact of changing attitudes towards wildlife.96
The triggers for the visceral opposition to whaling appear to include both conservation and value-based arguments. The conservation arguments focus on the history of whaling, in which many whale species were driven to the point of extinction. The fear is that, if the whaling nations are given more scope, it will again threaten the targeted species. As some numbers have obviously increased and little is known about current populations, it is difficult to oppose calls for a sustainable whale harvest on this basis. It appears that the more powerful arguments relate to attitudes to whales.
The values relate to the presumed intelligence of whales, their perceived similarities to humans, such as ability to vocally communicate with each other, the close ties between whale cows and calves and their ‘playfulness’; and of course we respond to the sheer
95 Freeman and Kellert, above n 90, 23. 96 The 1946 International Convention for the Regulation of Whaling (161 UNTS 72, opened for signature 2 December 1946, in force 10 November 1948), started life as an exploitation treaty but, as a result of the changing make-up of its Contracting Parties, now largely acts to protect whales and is the seat of ongoing high profile disputes between pro and anti whaling nations.
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majesty of their size, particularly when we are lucky enough to see them during coastal migrations.
With such a strongly held opposition, it is difficult to conceive of cultures in which whales are not majestic, civilised beings, capable of providing considerable spiritual benefit but rather are a source of food. But as the Public Attitudes to Whales survey shows us, there are considerable discrepancies in what is considered acceptable use.
Japan has taken the highest profile position in favour of commercial whaling. It continues to oppose the international moratorium and maintains a controversial program of scientific research which involves the killing of hundreds of whales per year.97 The ‘research’ is criticised as a front for commercial whaling, given the lack of reported peer-reviewed scientific findings from Japan’s research, doubts that the research requires the whales to be killed and that meat from the killed whales is then sold.98
The Japanese argument in support of commercial whaling is that it is part of their heritage and a matter of principle while the West’s insistence on a ban on hunting of all main species is considered to be cultural imperialism and ignores the science that indicates that certain species can be sustainably harvested.99 There is also comparison of their consumption of whales with Australian consumption of kangaroos.100 This is reflected in the debates at the IWC concerning Japanese whaling proposals.101
97 For example, currently, the ‘Japanese Whale Research Program under Special Permit in the Antarctic’ involves the killing of around 850 Antarctic minke whales and ten fin whales in each season. In 2006, it was reported that, in the previous season, a total of 853 Antarctic minke whales and 10 fin whales were caught. At the 2006 meeting of the International Whaling Commission (IWC), Japan proposed increasing the research to add 50 humpback whales and increasing the fin whale catch from 10 to 50. IWC, Chair's Report of the 58th Annual Meeting, 16-20 June 2006, St. Kitts and Nevis, January 2007, at 40. Available at
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In Japan, the meat is used for sashimi, burgers, stews and ‘bacon’ while the blubber may be sold separately as well as used in ice cream or whale ‘crackling’ (deep fried strips of skin).102 The conservation question aside, what is so abhorrent about this scenario to urban Australians, particularly those too young to have known commercial whaling in this country?103 I consider that the issue of intelligence must have the most force. We are, at the very least, uncomfortable with the idea of consuming a creature that appears to be so close to our own intelligence levels: The whale has a brain that in some instances is six times bigger than the human brain and its neocortex is more convoluted … Whales speak to other whales in a language that appears to include abstruse mathematical poetry. They have also developed interspecies communication with dolphins.104 The authors of this quote also refer to research on whales’ and dolphins’ conspicuous playful and humorous behaviour – a “hallmark of intelligence”.105
Yet Flannery argues that the wide discrepancy in whale brain sizes means we should be more selective on this issue. Writing in The Future Eaters in 1994, Flannery suggested that it would be preferable for us to harvest “10 southern right whales per year” as part of a policy in which we scale back our consumption of certain select species and spread the human impact across as wide a range of the biota as possible.106 In 2003 he maintained this position, supporting it by highlighting the “extraordinary diversity” in brain size within the whale and dolphin group Cetacea. Flannery argues that the commercial harvest has only targeted the tiny-brained filter feeders and not the hunters such as dolphins and killer whales, the intelligence of which he equates with land-based hunters such as dogs. 107
102 Browne, above n 99. 103 The last Australian whaling station closed in 1978. 104 D’Amato and Chopra, above n 93, at 21. 105 Ibid. 106 Tim Flannery, The Future Eaters (1994) 403. 107 Tim Flannery, ‘Beautiful Lies, Population and Environment in Australia’, in P Craven (ed) Quarterly Essay (2003) 44
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The intelligence criterion may or may not be appropriate in all circumstances in relation to whales, but as this issue has not had broad consideration, it is difficult to determine to what extent the public would be more favourable towards hunting which targeted only the filter feeders. As power and grace also rate highly, intelligence levels may be moot.
The whaling issue is demonstrative of the tangle of culturally determined emotions and attitudes pertaining to the wildlife debate. The enormous effort expended on whaling shows the power of their appeal, whether or not the conservation argument can be made out. The significance of the whaling debate is its impact on regulatory and activist efforts. With finite resources and attention available, it is questionable whether whales should attract such a “lion’s share”, so to speak. In practice, anti-whaling campaigners claim that the entire whaling industry should be shut down because, as a form of multi-nationalism on the high seas, it cannot be regulated. The same logic would close down every blue-water fishery, yet little green energy is expended on this. In fact, because the whaling industry is so comparatively well managed, good environmental managers should be calling for the closure of a lot of other fisheries before they even begin to think about whales.108
At the opposite end of the spectrum are those creatures for which biologists have to fight for regulatory acknowledgement and/or public respect. The position for invertebrates, tellingly described as “the other 99%”,109 confirms the attitudinal divides discussed above.110 They are not sufficiently acknowledged in biodiversity conservation measures and remain neglected by the public and policy makers.111 For
108 Id,43. 109 The title of a Royal Zoological Society of New South Wales meeting on invertebrates. Papers from the proceedings were published in: Winston Ponder and Daniel Lunney (eds), The Other 99%. The Conservation and Biodiversity of Invertebrates (1999). 110 Such divide is, however, maintained in the scientific world, as bemoaned by one zoologist who writes that the line traditionally drawn in zoological teaching between vertebrates and invertebrates is unfortunate as “it obscures the fundamental unity that underlies the origin of living material”. EJW Barrington, Invertebrate Structure and Function (2nd ed) (1979), Preface, v. 111 See, for example, the papers in Ponder and Lunney, above n 109, including Pierre Horwitz, Harry Recher and Jonathan Majer, ‘Putting invertebrates on the agenda: political and bureaucratic challenges’, at 398; Richard Smith, ‘”Bugging the Media”: TV broadcasting and the invertebrate agenda’, at 413; and
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example, in Australia, invertebrates, along with fish, are excluded from the ban on live commercial exports of native fauna. This issue is discussed in chapters six and seven on the Australian wildlife use regime.
New Scientist has reported on the efforts of biologists in relation to the protection of pathogens and hybrids. The value of pathogens, specifically the viruses, bacteria and fungi that kill or blight plants, has been raised by biologists because the diseases they cause are apparently often beneficial to plant ecosystems and are a “vital part of the evolutionary process”.112
With microorganisms rating zero on the NGO survey reported above, the biologists appear to have their work cut out for them. While it is difficult to state categorically, there does not appear to be any organisation addressing conservation of hybrids. Apparently some hybrids can mate and produce fertile offspring and may in fact obtain some evolutionary benefit over the ‘purebreds’,113 but they have been specifically excluded from listing under the US Endangered Species Act 1973.114
This situation provides an interesting juxtaposition to the wealth of effort and resources expended on achieving blanket protection of whales, despite doubts as to the conservation imperative in relation to at least some of the species.
Finally, a clear example of cultural influences on attitudes to wildlife is the extent to which popular perceptions of what we value and why have changed over the past
Daniel Lunney and Winston Ponder, ‘Emergent themes from the Other 99%’, at 446. See also the Australian Museum Report for Environment Australia: Overview of the Conservation of Australian Marine Invertebrates (2002) at URL
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century or so. The whaling debate, as discussed above, exemplifies such development. This can also be seen in the case of species once viewed as ‘pests’ or ‘worthless’ that were subject to elimination policies which were later replaced with protection and reintroduction policies.115 The changes have been reflected in both international and domestic law, as discussed in the following chapters.
S4. The Role of Scientists in the Wildlife Use Debate
The assumption that public policy decisions in nature conservation are made on logical scientific grounds by expert agencies is of course illusory....116
This section examines a different input to decision-making, it questions the extent to which scientists contribute to the debate. The task for scientists is not only to carve out what type of input they can make, it is to make themselves heard among the competing claims for regulatory attention. As our knowledge of the environment is generated by the work of scientists, it is remarkable how little conservation law reflects scientific inputs. Australia’s 1998 Senate Inquiry noted that opponents to commercial use of wildlife were a strong and vocal minority but the views were “not necessarily based on rigorous scientific information”.117 Webb argues that scientists have become increasingly marginalised in the conservation debate with decision-making “based on warm-fuzzy feelings, misinformation and political lobbying … usually involving people with limited formal qualifications or professional experience”.118 Science is not going to be the deciding factor, or even a major player in the debate but rather the values, opinions, and politics of the players. Scientists will
115 See, for example, the discussion of the progression in attitudes in the United States towards wolves and coyotes, in Thomas R Dunlap, Saving America’s Wildlife (1988). 116 JF Whitehouse, ‘Conserving What? - The basis for nature conservation reserves in New South Wales 1967-1989’ (1990) 26(1) Australian Zoologist 15. 117 RRAT, above n 72, Executive Summary, at xv. 118 Grahame Webb, Submission to RRAT, Commercial Utilisation of Australian Native Wildlife (1998), Submission No 157, 22. See also Guy R McPherson and Stephen DeStefano (2003) Applied Ecology and Natural Resource Management, who assert that ecological principles are often ignored in ecosystem management, despite their centrality to the “effective management of natural resources”. At 1.
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increasingly find that the issues will not be argued on their merits, and that the introduction of scientific evidence will be ignored.119
This is not to suggest that we should blindly privilege scientists with the authority to speak out on how a society ought to prioritise human access to and management of natural resources. While I consider that conservation biology has not played nearly a strong enough role in the debate, there should be caution against a scientific backlash that may perpetuate the failures of the existing regime by ignoring the breadth of interests and needs. As EO Wilson notes, ‘absolutism’ is “the dangerous Medusa of science and the humanities alike”.120 Wilson also cautions against surrendering too easily to the allure of the scientific quest of “an objective basis for moral reasoning”.
Lele and Norgaard argue that ‘value-neutral’ criteria are not available as science cannot objectively construct a “model of how the world works”. Just as legal realists have damned the positivist view of judges as mere objective mouthpieces or conduits of the law,121 there is similar criticism of the conventional positivist model of science that assumes it is the creation of unbiased practitioners. When examined, “this watertight separation of science, self and society springs a number of leaks”. Our models of the world always consist of some consensual “knowledge” about specific aspects with more subjective guesses about others, and world views about the larger system. Furthermore, these broad world views, or even specific choices made in face of scientific uncertainty, are not randomly distributed but
119 L Salzman, ‘Scientists and Advocacy’ (1995) 9(4) Conservation Biology 709 at 710. See also Brailovskaya, above n 80, who cites 1996 public opinion polling in the United States which found that 61 per cent of respondents considered scientific knowledge was irrelevant to their concerns about the ocean and to government decision making about the marine environment. 120 Edward Wilson, Consilience (1998) 70. See also a study of the opinions of wildlife managers as compared with the public that cautioned against giving too much weight to the managers’ position without taking into account the possible bias inherent in their commitment to their work: “Managers should not assume that their superior knowledge of wildlife management should automatically take precedence over public opinion”. Marcia Phillips, Kevin Boyle and Alan Clark, ‘A comparison of opinions of wildlife managers and the public on endangered species management’ (`1998) 26(3) Wildlife Society Bulletin 605, 610. That said, such a need for balance between expert and lay approaches may only be needed where management decisions will have some significant impact on the general public. 121 See, for example, Roger Cotterrell, The politics of jurisprudence: a critical introduction to legal philosophy (1989) 150.
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are correlated with individual values, disciplinary biases, and positions in the social order.122
Concerns regarding extremism and the acceptance of absolute ‘solutions’ recognise the necessity of a pluralist response. This is not only for reasons of democracy but, considering our lack of ecological knowledge, a softly-softly approach drawing on as many different inputs as possible may be the best protection from ecological disaster. The dynamism of ecosystems and species interaction – in the context of massive impacts of human intervention – makes for treacherous waters.
It may sometimes make more conservation sense to try to eliminate as many social or cultural influences on conservation decisions and privilege the “scientific perspective”,123 but common sense dictates that such an approach would quickly suffocate for lack of the oxygen of public support. Their work should, however, play a far greater role than at present in ultimate policy and legal documents. While scientists’ contributions appear to loom large, for example in international committees, as well as domestic inquiries and debates, it is apparent that, as the final determinations of policy and law are made at a political level, science will frequently be trumped by populist positions.
Conclusion
The discussion in this chapter has focused on the values and attitudes that underlie our interactions with the environment as they form powerful influences that feed into the decision making process concerning commercial use of wildlife. The legal regimes will be discussed in chapters five to seven of the thesis. This chapter’s survey of values and attitudes is significant because it illustrates some of the multiple factors at play, thus demonstrating the difficulty for centralised decision making processes to reflect the needs and interests of the communities to which they apply.
122 Sharachandra Lele and Richard B Norgaard, ‘Sustainability and the Scientist’s Burden’ (1996) 10(2) Conservation Biology 354 at 356. 123 Still acknowledging the inherent subjectivity in such an approach.
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To examine the way in which we value wildlife, this chapter set out the debate as approached by academic environmental philosophers in an attempt to understand what is meant by the term ‘intrinsic value’ and what is meant by an objective or subjective regard.
I consider that the claim of an intrinsic value in wildlife as something set apart from human needs and interests cannot be maintained. The founding fathers of modern environmentalism, Henry David Thoreau and John Muir, promised that "in wildness is the preservation of the world." The presumption was that the wilderness was out there, somewhere, in the western heart of America, awaiting discovery, and that it would be the antidote for the poisons of industrial society. But of course the healing wilderness was as much the product of culture's craving and culture's framing as any other imagined garden.124
It is extremely ambitious to attempt to formulate values that can rise above social, cultural and economic determinants in governing the way in which humans can and should interact with wildlife. The imposition of certain, culturally determined, values is thus difficult to maintain. I believe that a preferred alternative is to maintain the basic concepts of fairness and decency – which incorporate both humane attitudes to wildlife use and equitable approaches to the distribution of both the burdens and benefits of wildlife use.
The valuation of wildlife does not appear to adhere to any consistent set of principles. The variation in attitudes and valuation in different countries and cultures has been identified and widely accepted yet the legal paradigm remains a reflection of particular Western concepts of wildlife and the dominance of preservation over conservation. Certain species are assigned special values which make any consumptive use inappropriate or even abhorrent. An increasingly urban-based population requires, in its
124 Simon Schama, Landscape and Memory (1995) 7. See also, R Guha and J Martinez-Alier, Varieties of Environmentalism (1997).
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intensely-developed surroundings, the palliative of wilderness and ‘wild things’, either as something to experience or simply be aware of. A necessary element for wildness is its absence of humanity; that it provides a pristine background to 'opportunities for solitude and appropriate self-reliant recreation'.125 In these circumstances, presumably the 'self-reliant' recreation prescribed by legislation does not mean hunting and gathering within the said wilderness. In other words it is for visits by stressed urban and suburban-dwelling individuals who can afford to acquire their sustenance at the supermarket, from distant people working distant lands.
Although environmental policy increasingly focuses on sustainable use in a continued move away from conservation via preservation,126 the question of what we value and why is still not adequately addressed. Particular natural entities continue to inspire a preservationist zeal, driven by belief that their intrinsic value can not endure human consumptive use.127 The proposition is that far more species should be available for consumption than are relied on at present, so as to “spread the load” of sustaining the human population, as well as provide an incentive to maintain the natural habitats of those species so utilised. The acceptance that whales, kangaroos and certain environments such as rainforests are inviolable 'holy cows' prevents us from utilising our few renewable resources in the least destructive way. This means that we must often rely upon other resources far more heavily than good management would allow...128
The attitudinal studies suggest that acceptance of consumptive use of wildlife can be shaped by one or more of the following: knowledge of the species, especially at least some idea of their population status; an understanding of the local environmental
125 As provided in the Wilderness Act 1987 (NSW) s.6(1)(c). 126 As exemplified by the Convention on Biological Diversity, Its objectives, as discussed in the previous chapter, reflect its interactive approach of conservation via sustainable use of biological resources (Art 1). 127 As the discussion of values in the previous chapter points out, intrinsic value may survive certain ‘utilitarian’ perspectives of wildlife that include aesthetic and inheritance values. The harder task is to establish that a form of intrinsic value can also survive consumptive use of wildlife. 128 Tim Flannery, The Future Eaters (1994) 402.
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context, that is the way particular species interact with other wildlife; familiarity with trade in the species, perhaps a tradition in relation to a particular animal so that consumptive use has been accepted over time; cultural reliance on the consumptive use of the species; economic reliance on the consumptive use of the species. So the issues that may be at play in the public’s attitudes to use of wildlife are at least in part attributed to cultural determinism. While the above factors point to localised responses to wildlife, this may be more a result of familiarity breeding, not contempt, but a more pragmatic relationship with the wildlife concerned. The pragmatic approach is not necessarily inconsistent with the existence of respect and a non-utilitarian regard for the species concerned. If the possibility of commensurability of value in the use of wildlife is acknowledged, this will improve the chances of decision makers taking a range of values into account in the development and implementation of conservation regimes.
Values, culture, knowledge (or lack thereof) and socio-economic interests can all influence the public’s attitudes to the commercial use of wildlife. The extent to which culture may play a part will be particularly hard to determine in an increasingly globalised community but an intuitive affiliation with charismatic creatures on the part of a public increasingly removed from any substantial interaction with wildlife has presented as the dominant culture informing environmental law. I do not aim to deconstruct cultural responses to wildlife in detail in this thesis but I am attempting to make sense of international responses to the commercial use of animals in which there is a significant degree of arbitrariness.129
129 See, for example, Grahame Webb, ‘Are All Species Equal? A Comparative Assessment’ in J Hutton and B Dickson (eds) Endangered Species Threatened Convention, The Past, Present and Future of CITES (2000) 98. Webb contrasts the different treatment of crocodiles and turtles by CITES with the latter subject to a far more cautious approach by the Parties in proposals for their commercial use. Webb argues that the similar biology of crocodiles and turtles and their similar conservation needs suggest that the greater charismatic appeal of sea turtles has influenced the disparate regulatory approach of the Convention.
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Chapter 4
THE COMMERCIAL USE OF WILDLIFE DEBATE IN AUSTRALIA: WILD OR MILD AT HEART?
The aim of this chapter is to demonstrate the relevance of my inquiry on a practical level, by reviewing the environmental and socio-economic arguments concerning commercial use of wildlife in Australia, and the extent to which decision makers are subject to the push and pull of different stakeholders in the local debate. Along with Chapters 2 and 3, this chapter provides the background to the international and domestic regulation of wildlife trade. It specifically addresses the Australian situation to set the scene for a critique of the Australian regime in Chapters 6 and 7.
The concept of conservation through the sustainable use of wildlife is about creating economic incentives for landowners to keep, maintain and nurture native habitats and species. The concept is simple, logical and pragmatic in its principles. But it ruffles the feathers of animal rights proponents, and creates dilemmas for some animal welfare proponents. It confuses some of our urban dwellers, and frightens our federal politicians. But so do many other things.1
The richness of Australia’s biodiversity, which places it among the world’s 12 megadiverse countries2 – and its status as the only OECD nation in that group – inspires opposing responses to wildlife use. Those against use argue that it is so special it should be protected and that, as a developed nation, Australia has no need to exploit its native wildlife. Proponents of use, however, argue that these factors, alongside the high degree
1 Grahame Webb, ‘Sustainable use of wildlife’ (1997) 10(1) Australian Biologist, 3. 2 About 84 per cent of plants, 83 per cent of mammals, and 45 per cent of birds are endemic and Australia is placed at either 10th or 11th in the world for its diversity: A.D.Chapman, A Report for the Department of the Environment and Heritage, September 2005. Available at
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of endemism,3 are incentives for commercialisation. Those in favour of increased use have included the Federal Government’s environment department: Australia’s ecological uniqueness is a source of comparative and competitive advantage in global markets. Managing the plants and animals which are naturally adapted to this country, rather than those which can be grown more efficiently elsewhere, and which struggle in our variable climates and tough landscapes, provides an opportunity to exploit this competitive advantage.4
Australia’s Commonwealth, State and Territory Governments have all signed up to policy documents that support the development of commercial use of wildlife. There have also been the findings of several parliamentary inquiries into the issue, all of which have found that Australia has been too restrictive in its approach. The contrary view has been put by non-governmental environmental and animal welfare groups, which are unanimously opposed to commercial use of wildlife in Australia. This chapter examines all of these inputs to help shed light on how Australia’s decision makers may have been influenced in maintaining a selectively protectionist regime.
This thesis is primarily concerned with the illogicality of wildlife legislation in Australia and the extent to which environmental imperatives appear to be trumped by other factors but to what extent is this debate relevant to Australia? In section one, I begin my exploration of this secondary question to my thesis, by introducing the conservation debate in Australia and how this feeds into commercial use of wildlife. It reviews how commercial use of wildlife may apply to Australian conservation management by an examination of the relevant environmental, economic and social concerns. Section two sets out the inter-governmental policies and the conclusions of the parliamentary inquiries on commercial use of wildlife to illustrate the extent to
voluntary, price-based property-right, and regulatory incentives for the conservation of biodiversity, Biodiversity Series, Paper No. 9 (1996), at 2. 3 That is, the species occur nowhere else; attributed to Australia’s lengthy geographical isolation from other continents. 4 Roger Beale, Department of Environment Sport and Territories (now the Department of Environment and Water Resources), Submission to the Senate References Committee Rural and Regional Affairs and Transport On The Inquiry Into Commercialisation of Australian Native Wildlife (1997) 42. The parliamentary inquiries are discussed in section 2.1, below.
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which this issue has been pored over, with considerable rhetorical support given to expanding wildlife trade. Finally I touch on the response of non-governmental organisations as providing a possible clue as to why the rhetorical support has been to little substantive effect.
S1. The conservation arguments for Australia
In this section I first set out why it may appear that CSU is not as applicable in Australia as it has become in other countries. I then counter this position with reference to Australia’s conservation and socio-economic concerns.
Australian conservation measures to date have reflected a largely protectionist approach. Its large landmass with concentrations of population in relatively small areas allows for the setting aside of large tracts of land for reservation with the designations of protected land tending to avoid clashes with commercial interests.5 A relatively small population that tends to be established in tightly contained coastal areas means fewer human-wildlife clashes. Australia also has extremely low reliance on its native biodiversity for sustenance and the ecological and cultural demands and interests for commercial use of wildlife do not register with any impact on the political radar. It may be a significant issue for indigenous and rural communities which have been actively seeking to develop wildlife based enterprises but face significant legislative barriers,6 but this is not translating into the same degree of hostility and mobilisation as occurs in other biodiversity-rich states where the stakes are considered much higher.
This perspective is echoed in the position taken by the World Wide Fund for Nature (WWF), which has argued that use of wildlife may be more acceptable in developing countries than in Australia.
5 See discussion in David Farrier and Linda Tucker, 'Beyond a Walk In The Park: The Impact of International Nature Conservation Law on Private Land in Australia' (1998) 22 Melbourne University Law Review 564. 6 Peter Whitehead, Tropical Savannas Management Cooperative Research Centre, Charles Darwin University, pers. comm. 21 April 2006; Mike Letnic, formerly Parks and Wildlife Commission Northern Territory, pers. comm. 22 March 2006.
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Governments should also recognise the different circumstances regarding the use of wildlife existing between developed and developing countries, and the different ethical and socio-economic considerations involved with traditional substance (sic) communities versus industrial and profit oriented users of wildlife.7
According to the WWF, the salient differences between developed and developing nations mean there is a “greater justification for wildlife use in countries where peoples depend on such resources for subsistence purposes or as source of capital for basic development needs”.8 WWF has promoted and supported the concept of ranching native species as an alternative to the grazing of domestic stock in southern Africa. On private and communal lands in Zimbabwe, the use of various species for commercial purposes creates the economic incentive to conserve natural habitat and a variety of resident species, and by taking advantage of various commercial opportunities (including meat production, recreational hunting, wildlife tourism and capture for commercial re-sale) it is hoped that an ecologically and economically resilient system will develop.9
However, are the stark socio-economic differences between countries such as Australia and Zimbabwe fatal to attempts to apply even a modified commercial use model that draws on the African example for support? The suggestion is that wildlife use is more
7 Raymond Nias, World Wide Fund for Nature Australia, Submission to the Senate References Committee Rural and Regional Affairs and Transport On The Inquiry Into Commercialisation of Australian Native Wildlife (1997), 11. 8 Ibid. This argument conflates two separate points so it is difficult to determine from these statements whether WWF would support industrial and profit oriented users of wildlife in developing nations. However, at page 7 of the submission, WWF does signal its support for profit oriented wildlife use in a developing country 9 Ibid. The Zimbabwean program referred to here is CAMPFIRE (Communal areas management program for indigenous resources) and has been cited by both sides of the debate as either a success or a failure. For example, Humane Society International Director Michael Kennedy told the 1998 Senate Inquiry that his organisation is “trying very hard to get the program stopped” based on its emphasis on trophy hunting of elephants. “It is an endangered species and is not to be traded at all.” Evidence to the RRAT Inquiry, 9 September 1997, 754. This is countered by commentators such as Swanson who note Zimbabwe’s “long and unquestioned history of sustainable elephant ivory utilisation”. Timothy Swanson, ‘The Evolving Trade Mechanisms in CITES’ (1992) 1(1) RECIEL 57 at 62.
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tenable where there are “seemingly irreconcilable demands” between people and wildlife and/or any such use will be responding to ethical and socio-economic considerations of developing countries.
While I agree that there is no widespread social or cultural tension related to removing species or habitats from commercial use in Australia, it is not clear why the different ethical and socio-economic considerations – which are not articulated – are a potential obstacle to commercial use in developed nations. More importantly, Australia’s massive extinction rates challenge the traditional approach to environmental management, which has had little emphasis on protection of biodiversity on private land. To date, the demands of the human population, resulting in broadscale clearing of native habitat, have hardly been satisfactorily reconciled with the demands of Australia’s wildlife.
Christie describes Australia as possibly having the world’s worst extinction rate for mammals.10 The 2006 World Conservation Union Red List of Endangered Species includes 639 Australian plants and animals, and identifies 65 species as critically endangered.11 There is general consensus as to the reason for Australia’s poor record. As a recent comprehensive assessment of national biodiversity confirms, clearing of vegetation is “the most significant threat to species and ecosystems in eastern Australia”.12 For example, the clearing of “around 10 million ha of native vegetation (an area half the size of Victoria)” over the past 20 years is identified as the most significant factor in the loss of bird species in Australia.13
10 EK Christie, ‘Ecosystem Change and Land Degradation’ in GH McTainsh and WC Bougton (eds) Land Degradation Processes in Australia (1993) 307 at 335; see also Young et al, above n 2, at 3. 11 IUCN Red List for 2006, available at < http://www.redlist.org/>, accessed May 2006. 12 Natural Heritage Trust, Australian Terrestrial Biodiversity Assessment 2002 (released April 2003), vii. See also Peter Prineas, ‘Effectiveness of Current Wildlife Legislation in Australia and the Appropriateness and Implementation of Endangered Species Habitat Protection Legislation’, in M Hicks and P Eiser (eds) The Conservation of Threatened Species and their Habitats (1989) 133 at 134. 13 Penny Olsen, Michael Weston, Ross Cunningham and Andrew Silcocks (Birds Australia), The State of Australia's Birds 2003, available at
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The continuing loss of habitat and biodiversity as a result of current land management, which relies on the setting aside of land for protection in reserves, without sufficient regulatory muscle wielded on privately held land, prompts two broad responses: • improve selection and delimitation of the protected land so that the reserves provide more effective conservation; and/or • develop sustainable use models for biodiversity outside of those protected areas which provide an alternative to existing land use and may result in conservation across the landscape.
The ‘and/or’ is important; probably the majority of conservation biologists are supporters of a combined model which acknowledges the need for national parks but recognises that they are not sufficient for effective conservation. The commercial use of wildlife may play a part in this combined conservation model as a sustainable approach to land use outside of reserves. This is particularly significant given the recognised failings of Australia’s protected area designations to provide a comprehensive, adequate or representative reserve system.14
The problems include the way in which national parks have been selected, either as a matter of choice or at times as a matter of necessity. For example a preference for selecting from a relatively narrow range of aesthetically pleasing and/or spectacular landforms15 has resulted in parks that “are atypical of the continent's biotic resources”;16 but often the available choices have been restricted to that land
14 Peter Bridgewater, ‘A New Paradigm for Protected Areas in a New Century or Do we really need protected areas?’ Proceedings of the IUCN World Commission on Protected Areas Symposium, Albany, Western Australia (1997). See also Walter Reid, ‘Beyond Protected Areas: Changing Perceptions of Ecological Management Objectives’ in Szaro (ed) Biodiversity and Managed Landscapes (1996), 446; Henry Nix, ‘Management of Parks and Reserves for the Conservation of Biological Diversity’ in J Pigram and R Sundell (eds) National Parks and Protected Areas: Selection, Delimitation and Management (1997) 16; and Harry Recher ‘Conservation priorities: myths and realities’ (1997) 3(2) Pacific Conservation Biology 82 15 Nix, id, 12. 16 Harry Recher, ‘Why Conservation Biology? An Australian Perspective’ in C Moritz and J Kikkawa (eds) Conservation Biology in Australia and Oceania (1994), 5.
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considered unfit for residential, commercial or productive use and therefore left undeveloped.17
The issue is whether the existing use of the Australian landscape, with a rural sector predominantly based on introduced species, and conservation focused on reservation of select species and areas, is sustainable. With a less than ideal approach to delimitation of reserved areas, there is greater reliance on the environmental management of privately-held land.
Criticism of land use practices in marginal country highlights the ecological devastation that has resulted. Soil erosion, salinisation and species extinctions are among the well- documented consequences of unsustainable agriculture in Australia. One response, particularly for more marginal agricultural areas, has been to consider diversifying land use practices.
Commercialisation of wildlife use has been proposed as a preferable land use for rural Australia, both for its conservation benefit and potential economic rewards for marginal communities. Conservation biologists who have taken an active part in promoting commercial use of wildlife have emphasised the need to provide viable alternatives to traditional, European style agricultural practices to give rural landholders an incentive to maintain native habitat and wildlife.18
17 RL Pressey, ‘Conservation Reserves in NSW, Crown Jewels or Leftovers?’ (1995) 26(2) Search 47 at 49. While Crown land is the residue after the best is snapped up for freehold, making it a cheap source of land for reserves, it is only such land for which there is no commercial logging interest. Reserves are thus “a residual land use within a residual tenure”: RL Pressey et al, ‘How well protected are the forests of north-eastern New South Wales? - Analyses of forest environments in relation to formal protection measures, land tenure, and vulnerability to clearing’ (1996) 85 Forest Ecology and Management 311 at 326. The authors add that this is not a phenomenon restricted to NSW, or Australia. 18 See for example, Grahame Webb, ‘Conservation and sustainable use of wildlife — an evolving concept’ in (2002) 8 Pacific Conservation Biology 12; the contributions in Gordon Grigg, Peter Hale and Daniel Lunney (eds) Conservation through Sustainable Use of Wildlife (1995); the Proceedings of a symposium: ‘Exploiting Our Native Fauna – Culling, Harvesting, Farming?’ in (1997) 10(1) Australian Biologist; and the submissions by conservation biologists to the Senate Rural and Regional Affairs and Transport References Committee (RRAT) inquiry, Commercial Utilisation of Australian Native Wildlife (1998). See also Mike Archer and Bob Beale, Going Native (2004).
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Back in 1973, former CSIRO wildlife chief Harry Frith was already writing about the need for Australian antipathy towards commercialisation of wildlife to be countered with incentives for private landholders to get a return for fostering wildlife populations. Frith described Australia’s history of “disaster both for the animal population involved and for the industry” caused by the movement away from historical reliance on wildlife for ‘essential food’.19 The development of a regulated trade in wildlife with “sensible management policies” was proposed by Frith as a counter to this position, given his conclusion that, to maintain a “reasonably representative native fauna”, Australia needed to make significant changes in policies and perceptions of wildlife. It demands recognition that wildlife is a legitimate product of the land and that landholders are entitled to be compensated for its production. … Government acceptance that wildlife production is at least as important as some other forms of land use, coupled with taxation benefits for habitat improvement or retention, would be a major step towards widespread conservation.20
The 1998 RRAT inquiry into commercial use of wildlife acknowledged the weaknesses of the traditional conservation approach that left a “vast proportion” of Australia unprotected. The Committee concludes that the future of biodiversity conservation in Australia now depends very much on finding mechanisms, and particularly financial incentives, for natural habitat to be restored and conserved on private lands. The Committee concludes that, if appropriately managed, commercial utilisation of wildlife is one such mechanism.21
The Industry Commission’s inquiry into ecologically sustainable land management, also reporting in 1998,22 recommended as one its three central pillars, the expansion of nature conservation on private land:
19 HJ Frith, Wildlife Conservation (1973, rev. 1979) at 247. 20 Id, 373. 21 RRAT, above n 18, at 83. 22 Industry Commission, A Full Repairing Lease, Inquiry into Ecologically Sustainable Land Management, report No. 60 (27 January 1998).
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The benefits of this approach would be enhanced by removing impediments to the commercial utilisation of wildlife – for example, by lifting export controls where an appropriate management system of code of practice was put in place.23
The Ecological Society has also published a position statement in support for CSU: Harvest of native wildlife provides an alternative to traditional agricultural practices that could allow natural habitats to provide an income to landowners, and hence an economic incentive to conserve native wildlife and their habitats.24
Further support comes from the Australian Wildlife Management Society, the membership of which comprises ecological scientists. Its position on Sustainable Commercial Use of Wildlife addresses ecological and socio-economic concerns and states that the society: “Accepts that landowners are more likely to expend resources conserving wildlife that is economically valuable to them, than wildlife with a neutral or negative economic value.”25
Commercial use of wildlife is considered a particularly attractive option for Australia’s rangeland, which makes up nearly three quarters of the continent.26 The pastoral use of rangelands is under pressure from climatic and commodity price uncertainty which has made it either not viable or only marginally profitable.27 This is exerting considerable
23 Id, 128. 24 Ecological Society of Australia, Sustainable Commercial Use of Wildlife, February 2002. Available at
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pressure on the rangelands environment which is suffering Australia’s highest levels of extinction. Christie notes that “on an Australia-wide basis, the impacts of European land management practices have had their most pronounced effects on arid zone fauna”, which has been a major factor in Australia possibly having the world’s worst mammal extinction rate. 28 …. [W]ildlife problems cannot be looked at in isolation and that most wildlife conservation problems are, in essence, land use problems related to the allocation of land for competing purposes.29
The Rangelands Guidelines suggest that the environmental pressures have led to a need for diversification of use via the emerging industries of tourism and bush foods “including commercial use of native animals”.30 The federal environment department has argued that increasing the diversity of farming practices would create greater economic stability in the face of dropping commodity prices for existing agricultural goods; address land degradation from clearing of habitat and break up of soil structure from hard hoofed animals. The agency recommended that Australia should take advantage of its native species to improve the commercial viability of the rangelands and at the same time make productive use of these regions ecologically sustainable. Its arguments centred on the following:
• Effects on the landscape of existing agricultural practices • Provide an alternative agricultural land use – addressing issues of ‘Total Grazing Pressure’ such as erosion from hard hoofed animals and use of introduced pastures – by harvesting or farming native species. • Deal with pest levels of opportunistic native species currently culled by providing an export market in these animals. • Provide a possible conservation fundraiser by tying some income from export dollars earned to conservation revenue
28 Christie, above n 10, 307 at 335. 29 Commonwealth, House of Representatives Select Committee, Wildlife Conservation, Parl Paper No 284 (1972) 10. 30 ANZECC, above n 26, at 3.
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• Decrease private landholders’ incentive for land clearing because of need for native habitat to encourage presence of native species.
In its submission to the RRAT Inquiry, the federal environment department referred to the benefits of diversification of sources of income by farming native species either exclusively or alongside introduced stock, particularly in the more arid agricultural regions in Australia’s rangelands.31 Native wildlife is proposed as a preferable alternative as it has evolved to survive erratic climatic conditions and would allow rangeland managers and policy makers to “understand and work with the natural ecological processes and systems of Australia, rather than fight against them or try to displace them with systems borrowed from elsewhere”.32
The Zimbabwean model, as described above by WWF, in which native species may be ranched as “an alternative to grazing of domestic stock” and provide an “economic incentive to conserve natural habitat” could have equally been at home in a proposal for increased use of Australian wildlife. This is particularly the case for proposals for increased wildlife use in the Northern Territory, for both pastoralists and remote indigenous communities, as well as the long term campaign to develop the kangaroo industry as an alternative to the grazing of introduced livestock in Australia’s rangeland areas, as discussed in Chapter 7.
A recent initiative by the Rural Industries Research and Development Corporation (RIRDC) focuses on the need to address different approaches to private land management. It proposes the establishment of ‘Sustainable Wildlife Enterprises’ by groups of rural landholders forming cooperatives termed ‘Wildlife Management Conservancies’.33 The purpose is to “integrate Australia’s native wildlife into existing agricultural enterprises”.
31 Ibid. 32 Beale, above n 4, at 42. 33 George R Wilson and Beth Mitchell, A Strategic Plan for Trialling Sustainable Wildlife Enterprises (July 2005), RIRDC Publication No 05/106.
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The projects will seek to determine whether alternative production systems enable the value of wildlife resources to operate as an incentive to protect and maintain habitat and to enhance biodiversity on private lands, to increase the resilience and longterm sustainability of the agricultural sector in rangelands, to reduce the costs of land rehabilitation and to strengthen the viability of rural communities.34
The wildlife use debate in Australia encompasses issues such as economic and cultural benefits for rural landholders, particularly remote Aboriginal communities and landholders, that may come from diversification of land use, new employment opportunities and active involvement in environmental management. Conservation in Australia may also require the development of incentives for land management by individual and community landholders as has been recognised in developing countries, as discussed in Chapter 2.
The crocodile ranching program in the Northern Territory, which is discussed in Chapter 7, involves the local indigenous landholders as much of the egg collecting is conducted on their property:35 There is also indigenous involvement in commercial exports of short-tailed shearwaters (mutton birds) in Tasmania.36 From the Indigenous perspective, commercialising aspects of the customary sector makes good sense. It is a means of maintaining highly valued ecological knowledge, enhancing engagement with the market, and reducing overall welfare dependence.37
34 Id, Executive Summary, v. 35 Grahame Webb, Submission to the Senate References Committee Rural and Regional Affairs and Transport On The Inquiry Into Commercialisation of Australian Native Wildlife (1997). 36 See discussion of the mutton bird harvest by Irynej Skira, ‘Commercial Harvesting of Short-tailed Shearwaters (Tasmanian Mutton-Birds)’ in P O’Brien (ed) Wildlife Use and Management (1992) 7. 37 Jon Altman and Michelle Cochrane, Innovative institutional design for sustainable wildlife management in the Indigenous-owned savanna (2003), Centre for Aboriginal Economic Policy Research Discussion Paper No. 247/2003, at 3.
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The RRAT Report noted: “Aboriginal people in general supported the concept of commercial utilisation of native wildlife and their involvement in it”.38 The recognition of traditional links between indigenous people and the natural components of their land and that they have a special interest in the utilisation of wildlife is vital to the consideration of any commercial use of native species. … They felt that they were in a good position to be involved in commercialising wildlife because they have been closely affiliated with wildlife for thousands of years.39
It also referred to the particular benefits derived from commercial use given that the wildlife exists in rural and regional areas that may have few alternative industries and so can boost economies in these areas “through diversification of industry, expanded employment opportunities and infrastructure development”.40
There has long been recognition of the potential for commercial use of wildlife to provide economic and cultural benefits for indigenous communities.41 Customary economic activities in the Northern Territory “even before land rights” increased with the reoccupation of traditional lands in the early 1970s, which has been identified as “a return of natural resource managers to the land”.42
As there are significant concerns about the decline in the rural economy, and recognition of the importance of particularly indigenous communities to attain greater levels of financial independence, the socio-economic arguments in favour of commercial use appear to be as applicable in Australia as they are in other mega-diverse countries. For the benefits to accrue, however, there needs to be a rethinking of how
38 RRAT, above n 18, at 379. 39 Ibid. 40 Id, 98. 41 Altman et al note that while there are clear benefits from indigenous subsistence use of wildlife there should also be an examination of the viability of supporting commercial use by indigenous landholders of wildlife on their property: Jon Altman, Hilary Bek and Linda Roach, ‘Use of Wildlife by Indigenous Australians: Economic and Policy Perspectives’ in Mary Bomford and Judy Caughley (eds) Sustainable Use of Wildlife by Aboriginal Peoples and Torres Strait Islanders (1996), at 77. 42 Altman and Cochrane, above n 37, at 1.
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property rights in wildlife may be structured to create the requisite engagement in the decision making process alongside the financial returns.
1.1 ‘Ownership’ of wildlife in Australia
Under the common law there is no absolute property in wild animals – ferae naturae – while they are still alive. According to Blackstone, “a qualified property may subsist … by a man’s reclaiming and making them tame … or by so confining them … that they cannot escape”. If they “regain their natural liberty, his property instantly ceases”.43 If the animal dies or is killed, the common law vests absolute power in the owner or occupier of land on which it died, or in the holder of the shooting or sporting rights.44
Australian legislation in all jurisdictions provides that live wild animals are the property of the Crown.45 For example, the National Parks and Wildlife Act 1974 (NSW) provides: “protected fauna are deemed the property of the Crown until killed or taken in accordance with the legislation”.46
The High Court has critically examined the interests arising from such vesting of property in wildlife, specifically in relation to the assertions by the Queensland legislature that “all fauna … is the property of the Crown”.47
In Yanner v Eaton,48 a majority of the court,49 in allowing the appeal, explained their understanding of property in relation to fauna as not equating with “full beneficial, or
43 William Blackstone, Commentaries on the Laws of England (first published 1765, 16th ed, 1825) 391. 44 Halsbury’s Laws of Australia, vol 1(2) (at 23 November 2000) 20 ‘Animals’. 45 See, for example, National Parks and Wildlife Act 1974 (NSW) s 97; Nature Conservation Act 1992 (Qld) s 83; Wildlife Conservation Act 1950 (WA) s 22; Territory Parks and Wildlife Conservation Act 1976 (NT) s 26B. 46 Sect 97. 47 Sect 7(1), Fauna Conservation Act 1974 (Qld). 48 (1999) 201 CLR 351 (‘Yanner’). The appellant, Murrandoo Bulanyi Mungabayi Yanner, was charged with taking fauna contrary to the Fauna Conservation Act 1974 (Qld). (Since repealed by the Nature Conservation Act 1992 (Qld).) He used a traditional harpoon to catch two crocodiles in the Gulf of Carpentaria. He and his clan ate some of the meat then the rest of the meat and skins were kept frozen at his home. A magistrate dismissed the charge, finding that Yanner had exercised his native title rights and
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absolute ownership” because of the difficulty in determining the subject matter of the ownership and the meaning of such ownership if the subject could be identified. Does ownership cover only the fauna currently within the jurisdiction, but not if it leaves, or does it relate to all fauna that has ever been within the boundaries? If the ownership issue is satisfactorily resolved, what does the Crown have ownership of?50 It concluded that the “statutory vesting of ‘property’ in the Crown by the successive Queensland Fauna Acts can be seen to be nothing more than a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource’.”51 The ‘state ownership’ of wild animals “is only a sort of guardianship for social purposes”.52
In this case the issue concerned the impact of the Crown’s assertion of property in wildlife on the existence of a Native Title interest.53 Native title may refer to a range of rights beyond the land. As the High Court made clear in Wik Peoples v Queensland,54 the nature and incidents of native title may vary from one case to another: It may comprise what are classified as personal or communal usufructuary rights involving access to the area of land in question to hunt for or gather food, or to perform traditional ceremonies. This may leave room for others to use the land either concurrently or from time to time.55
interests and these had not been extinguished by the Fauna Conservation Act. The Queensland Court of Appeal set aside the magistrate’s order and remitted the proceedings. Yanner then appealed to the High Court. 49 Gleeson CJ, Gaudron, Kirby, Hayne JJ. 50 At [22] –[24]. 51 At [28]. The majority was citing Vinson CJ in Toomer v Witsell (1948) 334 US 385 at 402. The rights pursuant to the Native Title Act thus survive State assertions in relation to fauna as being the ‘property’ of the Crown. 52 At [29], referring to Roscoe Pound, An Introduction to the Philosophy of Law (rev ed) (1954) at 111. 53 In Mabo v Queensland [No 2] (1992) 175 CLR 1 (‘Mabo’). the High Court held that native title continued to exist where Aboriginal and Torres Strait Islanders had maintained connections with the land and where title had not been extinguished by valid acts of government throughout the entire period of European settlement. The term native title describes "the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants (at 57). 54 (1996) 187 CLR 1.
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Native title is defined in s223 of the Native Title Act 1993 (Cth) as meaning communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters and includes hunting, gathering, or fishing, rights and interests. Aboriginal subsistence rights to use of wildlife are protected under s 211 of the Native Title Act 1993 (Cth).56 It recognises indigenous subsistence rights in species even where there is not a property right in the land on which species are located (such as national parks or pastoral leases).57 It does not however provide any rights or interests for native title owners or anyone else to trap or kill wildlife for commercial purposes. The Environmental Protection and Biodiversity Conservation Act 1999 (Cth) states expressly that native title rights in relation to s 211 of the Native Title Act are not affected by its provisions but this excludes commercial use (Sect 8(1).) In relation to the Act’s export regime under Part 13A, s 303BAA provides that the traditional indigenous use of wildlife for hunting, food gathering and ceremonial or religious purposes is not affected by its operation, but again this is only insofar as it has no commercial purpose (Sect 303BAA).
‘Property’ in the sense considered by the High Court in Yanner appears to have more to do with decision making power and, in accordance with this, the capacity of the Crown to divest itself of such power. The extent to which property rights in this context will require government intervention to ensure that the program has a positive conservation outcome and is carried out in a manner which is acceptable to the public will be a matter for ongoing negotiation.
55 At 169. See also Sean Brennan, ‘Native Title and the “Acquisition of Property” under the Australian Constitution’ (2004) Melbourne University Law Review 2. 56 Sect 211 refers to hunting, fishing, gathering or cultural or spiritual activities. It provides that, where a Commonwealth, State or Territory law prohibits or restricts persons from carrying on such activity other than in accordance with a licence, permit or other instrument, that such law “does not prohibit or restrict the native title holders from carrying on the class of activity, or from gaining access to the land or waters for the purpose of carrying on the class of activity … for… personal, domestic or non-commercial communal needs” (s211(2)). 57 The High Court has explained that s211 operates so as to make clear that the usufructuary rights recognised by the common law (as per s223(1) of the Native Title Act) can still be enjoyed in spite of regulations that otherwise impose licensing or other such requirements: Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 474.
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The question of who ‘owns’ the wildlife and therefore has the power to determine its use and obtain a financial benefit, was discussed in Chapter 2 of the thesis. For commercial use to provide an incentive for landholders to conserve habitat, or provide some form of economic return that can be channelled towards conservation, there must be some level of privatisation of the animals involved. The RRAT Report recommended that the Federal Government look at ways to encourage private sector investment, with reference to the southern African model in which ownership of wildlife has been transferred to local landowners58 and that “the Government examine the appropriateness of such a model to biodiversity conservation in Australia”.59 The inquiry also heard from Aboriginal representatives who asserted their prior ownership to wildlife and sought recognition of such.60
The Productivity Commission research on conservation and management of biodiversity in the private sector has recommended that clarifying property rights in natural resources is part of the government’s role in encouraging private sector conservation and addressing concerns relating to responsibility for adverse impact and rights to benefits.61
The South Australian Management Plan for Macropods62 – in which property rights in wildlife in relation to its commercial use are allocated along the lines of individual quota systems – appears to be one way forward in relation to these issues. The South Australian program has introduced the ‘partial privatisation’ of kangaroos on private
58 Most notably, Zimbabwe’s CAMPFIRE project. 59 RRAT, above n 18, at 116. 60 Id, 375. Davies comments that: “In Australia there has been no attempt to fundamentally reconcile indigenous and non-indigenous laws for use and management of wildlife, let alone for ownership.” Jocelyn Davies, ‘Who Owns the Animals? Sustainable Commercial use of Wildlife and Indigenous Rights in Australia’ (1998), 2-3, Presented at Crossing Boundaries, 7th annual conference of the International Association for the Study of Common Property, June 10-14, 1998, Vancouver, Canada. Available at
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land. It regulates a commercial harvest of kangaroos that is managed “through the release of property-based quota allocations to landholders”.63 The landholders can then decide the level of harvest as long as it does not go above the quota. In this case the State sets parameters within which the landholders have decision making autonomy as to whether to utilise kangaroos on their property as a commercial resource and reap the benefits of such use.
The Wildlife Management Conservancies, established in the RIRDC Sustainable Wildlife Enterprises program,64 comprise groups of neighbouring private landholders and requires that the groups obtain greater responsibility for management of wildlife on their properties. The Strategic Plan notes that, while the transfer of ‘ownership’ to private landholders is “ unlikely to attract public support”, there can still be an arrangement in which they obtain benefits from wildlife in an extension of the current approaches that apply to free range zoos. The relevant governmental wildlife authority retains legal ownership but practical responsibility lies with the landholders.65
If the state’s role may be to oversee the licensing of private benefits from wildlife (thereby creating an opportunity for incentive-driven conservation, as previously discussed) then such action is not a privatisation of a ‘publicly-owned’ resource. An understanding of property interests in wildlife as being more concerned with the ability to make decisions as to its use and either reap or allocate the benefits therefrom, may be sufficiently flexible as to meet a range of cultural and economic concerns.
S2. Rhetoric and reality – political support for commercial use of wildlife
This section sets out the apparent support for expanding commercial use of wildlife in Australia, in both intergovernmental environmental documents and parliamentary reports. Its aim is to demonstrate that, when the issues have been closely examined, and
63 Id, 10. 64 Above n 33. 65 Id, 2.
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when the environmental concerns have been pre-eminent, there has been strong support from politicians for changing the protectionist approach.
Australia’s Commonwealth, State and Territory Governments have addressed conservation via sustainable use of wildlife in various national documents concerned with wildlife use and management. These include the National Strategy for the Conservation of Australia’s Biological Diversity, (the ‘Biodiversity Strategy’)66 the National Strategy for Ecologically Sustainable Development, (‘NSESD’)67 and Managing Australia’s Rangelands, National Principles and Guidelines for Rangeland Management (the ‘Rangelands Guidelines’).68
The Rangelands Guidelines define the status of all three of these documents: the NSESD is a “broad strategic and policy framework under which all Commonwealth, State and Territory governments have agreed to cooperatively make decisions and take actions to pursue ecologically sustainable development in Australia”. The Biodiversity Strategy is a “broad strategic and policy framework, by which the Commonwealth and all State and Territory governments have agreed to measures to protect Australia's biological diversity and maintain ecological processes and systems”. The Rangelands document “builds on and allows for integration of these strategies in the rangeland context”.69 The State of the Environment Advisory Council has given a more temperate judgment of the impact of such documents, suggesting that “there is little evidence that these strategies affect decision making in any but the most perfunctory way”.70 Whatever their influence, it can be assumed the strategies are indicators of the respective governments’ environmental aspirations.
66 Commonwealth of Australia (1996). 67 Commonwealth of Australia (1992). 68 Above n 26. 69 Id, 7. This is a framework document which was designed to act as a precursor to a possible Rangelands Strategy. Its Executive Summary States: ‘The Commonwealth pledged to work cooperatively with State and Territory Governments, traditional owners, industries the pastoral community, and special interest and conservation groups to develop a National Strategy for Rangeland Management. Subsequent meetings of AMCANZ and ANZECC directed that a document be drafted that outlined a set of principles… that would assist stakeholders developing strategies…’ (p 12) 70 State of the Environment Advisory Council, State of the Environment (1996) 10-28.
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The documents all appear to encourage a far more active approach to developing environmental policy that embraces sustainable use of wildlife as a conservation tool. The earliest of these policy documents is the most explicit. Objective 1.4 of the National Strategy for Ecologically Sustainable Development is: to improve kangaroo management at the national level, including the removal of impediments to a sustainable commercial kangaroo industry. The strategy adds that, to achieve this, Governments will: work towards an integrated, and coordinated kangaroo management strategy which is based on development of national guidelines for kangaroo management, the use of market mechanisms such as individual tradeable quotas and the early finalisation of National Game Meat Standards.71
Objective 2.7 of the National Strategy for the Conservation of Australia’s Biological Diversity provides that all Australian jurisdictions will aim to: Achieve the conservation of biological diversity through the adoption of … ecologically sustainable wildlife management practices.72
It calls for the development of “wildlife utilisation programs that create economic and other incentives for the retention, rehabilitation, maintenance and management of natural habitats”.73
The most recent document, the National Principles and Guidelines for Rangeland Management, asserts that the “Australian community is committed to achieving ecologically sustainable rangeland management, supporting diverse social, cultural and economic activities”.74 It suggests that new industries “such as tourism, or bush foods, including commercial use of native animals, provide some scope for diversification”.75
71 Above n 67, 24. 72 Above n 66, 23. 73 Action 2.7.1, Ibid. 74 Above n 26, vii. 75 Id, 4.
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2.1 Parliamentary inquiries into the use of wildlife
Given its high public profile and the often emotionally-charged response to wildlife, it is not surprising that the Commonwealth has conducted a number of inquiries into use of wildlife. The arguments have continued back and forth for decades (and do not look like being resolved in the foreseeable future) and the political response has remained extremely cautious. Parliamentary inquiries, reporting in 1972, 1976 and 1998, amassed huge amounts of information, in the form of submissions and evidence from parties on both sides of the commercial use fence.
In October 1972 the House of Representatives Select Committee tabled a report entitled Wildlife Conservation.76 The committee was appointed in May 1970, in response to Members on both sides of the House who, between March 1968 and May 1970, had presented 84 petitions "expressing concern at commercial exploitation of kangaroos" and "praying that the export of all kangaroo products be banned immediately".77 The Committee’s terms of reference were to report on: • the need for a survey of wildlife populations; • the adequacy of the several systems of national parks, reserves, etc, of the States and Territories; • the effects of pollution and the widespread use of pesticides on wildlife populations; • the effect on the population of kangaroos of the trade in meat and hides and the effect of other industrial exploitation on wildlife; • the need for international and interstate agreements for the effective conservation of migratory animals; • the threat to wildlife of large numbers of domestic animals gone wild, particularly in Northern Australia; and
• the need for a Commonwealth wildlife conservation authority.78
76 Above n 29. 77 Id, Introduction, 7. 78 Ibid.
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In September 1976 the newly-formed House of Representatives Standing Committee on Environment and Conservation tabled its second report: Trafficking In Fauna In Australia.79 The Committee was required to report on: … environmental aspects of legislative and administrative measures which would “ensure the wise and effective management of the Australian environment and of Australia’s natural resources”.80
In June 1998 the Senate Rural and Regional Affairs and Transport References Committee (RRAT) tabled its report: Commercial Utilisation of Australian Native Wildlife. Its terms of reference were: • the potential impact which commercial utilisation of native wildlife might have on the Australian environment; • the current and future economic viability of these commercial activities; and • the adequacy of existing Federal Government regulations and controls to ensure biodiversity of any native species commercially utilised.81
The 1972 House of Representatives Committee received 600 replies to its request for submissions which ranged from “extensive, well-documented submissions covering all terms of reference to letters from private citizens supporting the aims and objectives of the Inquiry”.82 The 1998 Senate Report noted that it received 341 submissions and of these 192 were “brief personal letters expressing strong opposition to any commercial use of wildlife in Australia… although usually with the exception of nature-based or ecotourism. However, almost half of these submissions (92) were form letters or variations of form letters”. 83
The similarities between the three reports demonstrate the resilience of the conflict. Their parallels include: the heartfelt submissions and evidence supplied by both
79 Commonwealth, House of Representatives Standing Committee on Environment and Conservation, Trafficking in Fauna In Australia, Parl Paper No 301 (1976). 80 Id, iii. 81 RRAT, above n 18, at iv. 82 House of Representatives Select Committee (1972), above n 29, 8.
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opponents and adherents of commercial use; the recommendations of the committees (to relax controls, at least in some circumstances); and the response of the Commonwealth (to maintain the status quo).
In the 1972 House of Representatives Report, it was recommended “that the Customs regulations be amended to allow for the export of the more common aviary birds”.84 In its discussion on illegal trafficking in birds, the Committee reported calls by some of the State authorities to relax the “more rigid export regulations” to divert pressure from rare and threatened species to those species, such as the galah, that are in pest proportions but still cannot be exported for the aviary trade.85 The then NSW Minister for Lands suggested, perhaps over-optimistically, that “if trading were allowed to approved overseas organisations, the need for smuggling may be eliminated”.86
The 1976 fauna inquiry,87 which heard submissions for and against changing the export controls found that, while the arguments against relaxing controls “have some validity”, there were “fundamental anomalies in the existing policies which must be dealt with if public support of conservation measures is sought”.88 The Committee, and the public, are unable to respect a policy which allows controlled destruction of a species and the deliberate development of mutations by aviculturalists on the one hand, but which on the other denies the right of interested organisations and individuals overseas to keep the same animal under perhaps better conditions.89
83 RRAT, above n 18, xii. 84 House of Representatives Select Committee (1972), above n 29, para 257. Export at the time was subject to the Customs and Excise (Prohibited Exports) Regulations 1935. 85 Id, para 253. 86 Id, para 254. 87 House of Representatives Standing Committee (1976), above n 79. 88 Id, para 96. 89 Id, para 96.
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The most recent inquiry was critical of the prohibitionist export policy, concluding that it did not protect wildlife from illegal activities.90 While there were inevitable extremes of opinion on both sides of the use debate, the RRAT committee considered that between these poles “there is in all likelihood a large majority of people who hold the view that there could be some sustainable use of wildlife, with differing views on which species can be used and under what circumstances”. 91 The broad span of opinion may at least serve to keep the debate rolling as opposed to surrendering to what the Senate Committee recognised were a vocal minority representing the extreme positions. On the anti-use side were ranged various conservation and animal welfare groups who argued that the Wildlife Protection Act was “fundamentally flawed because it allowed for the exportation of wildlife products and thus failed to adequately protect native animals”.92 Those in favour of use for conservation purposes, represented in the inquiry by both professional and amateur biological scientists, declared the Act’s “prohibitionist approach” counter-productive to maintaining biodiversity “because it has failed to provide widespread incentives to protect habitat”.93
The 1998 Senate Committee listed the benefits of wildlife utilisation as including: • the provision of incentives for private landholders to retain and rehabilitate natural habitats; • the undermining of illegal trade in wildlife; • an increase in the amount of information gathered about the commercialised species; • financial returns from wildlife industries which may be used to assist other conservation objectives; and • ownership of wildlife is returned to the people who own the land (or a quota is given) which may result in social and cultural benefits.94
90 RRAT, above n 18, xxiv. 91 Id, xv. 92 Id, 117-118. 93 Id, 125. 94 Id, xiii.
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The recommendations to relax controls have included: 1972 Report “That Customs regulations relating to the export of live fauna should be liberalised to allow kangaroos to be collected and reared by Australian zoos for export to approved overseas zoos.” (para 20(d)) 1976 Report “…the export policy be relaxed to allow controlled export of mammals and reptiles to acceptable overseas recipients; and the category of acceptable overseas recipients be considerably widened to include approved private zoos and parks, whether run for profit or not.” (para 99(a) and (b), emphasis supplied) 1998 Inquiry “… State and Federal Governments together review all administrative procedures relating to commercial utilisation of wildlife in Australia with a view to increasing their efficiency so as to ensure there are no unnecessary hindrances to the industry.” (Recommendation 5)
These recommendations should be placed in context to appreciate how far-reaching they were. Collecting live kangaroos for export to zoos, allowing commercial exports of live mammals and reptiles – which is what the 1976 Report is envisaging – and taking a pro- industry approach to reviewing procedures, are all a radical departure from the highly restrictive regimes they were reviewing.
These findings and recommendations, while useful as information gathering exercises, have done little to further the debate. The same issues and dilemmas are recycled, the Commonwealth Government maintains much the same legislative position it reached in the 1920s and the opposing parties (pro- and anti-use) remain dissatisfied with the existing regime as either too conservative or too permissive.
While there has been more official activity in the past 30 years with the parliamentary inquiries and the legislative debates which surrounded the introduction of the new wildlife protection legislation in 2002, this seems to have done little more than maintain the tradition of the preceding 50 years or so, as I argue in Chapter 6.
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2.2 The role of non-government organisations
I believe that decision makers have remained cautious in response to public antipathy towards commercial use of wildlife which has been encouraged by the campaign work of non-government organisations (NGOs) against commercial wildlife use in Australia.
The Australian Conservation Foundation opposes commercial use of wildlife.95 Its policy on kangaroo harvesting states: Wildlife populations have rights of their own to exist and flourish independently of human needs. Kangaroos and other wildlife species should not be regarded merely as a human resource and commercial exploitation should never be contemplated.96
WWF is a ‘technical partner’ of the CITES Secretariat and works closely with the Convention in promoting ecologically sustainable use of wildlife. The WWF Australia submission to the RRAT Inquiry acknowledged the ‘inevitability’ of consumptive use of wildlife and stated its objective to “ensure that such use approaches ecological sustainability”.97 WWF did not support commercial use of wildlife in Australia, however, as discussed above in section 1.
Many of the NGOs opposed to commercial use of wildlife have also questioned whether commercial use should be state-subsidised. WWF recognised that subsidies may be necessary but added that the community should be informed of this and the “potential redirection of scarce financial and technical resource from conservation to the management and regulation of commercial ventures”.98 The TRAFFIC submission to the RRAT Inquiry went further, arguing that wildlife use systems should be completely
95 Australian Conservation Foundation, Policy Statement No. 61, Commercial Wildlife Utilisation, 1 November 1996,
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user pays, and that “it is necessary to incorporate the hidden costs of enforcement, quarantine and administration”.99 Many industries receive support from the State in the hope that such investment will be returned in the form of taxes and employment supplied by the enterprise. TRAFFIC argues that the use of wildlife should be excluded: … it would seem unreasonable to expect the general public to subsidise, through taxes or other means, an industry from which it is unlikely to receive any benefit, and may even jeopardise the survival of some species in the wild.100
This position assumes that commercial use of wildlife will be imposing a conservation cost. Yet these same NGOs also stress that there should be net conservation benefit from any such use101 and the proponents of use argue from the position that commercialisation is a potential conservation tool. If a commercial wildlife industry does achieve such a benefit, this is a public good which supports the case for subsidy or at least some recognition of the contribution to conservation.
Strongly held views concerning commercial use of wildlife may not necessarily be grounded in environmental concern. A compelling example is the continuing attack by animal welfare groups against Australia’s kangaroo export program,102 possibly because it presents a high profile target for those opposed to the use of wildlife. Any commercial harvest or pest destruction of wildlife is likely to be controversial, especially if the subjects are as appealing and as well known as Australia’s kangaroos. That kangaroos are the most readily identified symbol of Australia, and that they are harvested by shooting, only exacerbates the concern…103
99 TRAFFIC Oceania, Submission to the Senate References Committee Rural and Regional Affairs and Transport On The Inquiry Into Commercialisation of Australian Native Wildlife (1997), para 4.1. 100 Ibid. 101 Nias, above n 7, 12. 102 See discussion in Chapter 7. 103 Tony Pople and Gordon Grigg, Commercial Harvesting of Kangaroos In Australia, Overview of Background Information for Kangaroo Management, prepared for Environment Australia (1999), 2.
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The 1998 Senate Inquiry reported on the actions of the International Fund for Animal Welfare (IFAW) which in 1997 succeeded in persuading the UK supermarket chain Tesco to withdraw kangaroo meat from its shelves. IFAW threatened TESCO that, if it did not cease sales of kangaroo meat, it would begin a newspaper advertising campaign which would include headlines such as: “Australia: responsible for ‘Neighbours’, ‘Home and away’ and, with a little help from Tesco, the biggest wildlife slaughter the world has ever seen.” “Skippy. Now brought to you in a handy pack courtesy of Tesco.”104
Australia’s Department of Foreign Affairs and Trade (DFAT) told the Senate Inquiry that the Australian High Commission initiated talks with Tesco about the campaign and provided both it and Sainsbury’s – another UK supermarket chain – with factual information about Australia’s kangaroo industry and “position statements from several prominent conservation organisations in Australia which support the kangaroo harvest”. Tesco was aware that “a lot of the points IFAW sought to make were grossly inaccurate” and did not want to be “seen as giving in to pressure groups”. In spite of all this, Tesco withdrew kangaroo, ostrich and crocodile meat from its supermarkets, citing a drop in demand for exotic meats as the reason for the decision.105
The Senate Committee concluded its chapter on macropods with the comment that it “believes that it is a legitimate activity of the Federal Government to support an export industry based on the commercial harvesting of kangaroos, which is being prejudiced overseas by public campaigns based on false information”.106 The trade continues to be vigorously defended by the Commonwealth.
104 RRAT, above n 18, at 207. The use of Australian television programs in both of the proposed advertisements indicate the popularised approach adopted by IFAW. 105 Id, 206-207. 106 Id, 211.
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Kangaroo harvesting, carried out under the strict environmental controls provided by the EPBC Act and other legislation, is an environmentally friendly and uniquely Australian industry.107
The kangaroo meat industry receives strong support from Flannery who describes it as “by far the best managed meat-producing industry in Australia”.108 He refers to the evidence of the abundance of the target species and suggests that environmentalists “should actively support the industry”.109 On the matter of welfare, Flannery suggests that this only provides further support for the kangaroo industry. The first a kangaroo knows of its interaction with the industry is a spotlight and a bullet to the brain… What is suffered by domestic stock – castration, de- horning, road transportation and death at an abattoir – seems barbaric in comparison. Yet it’s the kangaroo industry that finds itself the target of the animal welfare lobby…110
While the welfare of individual animals will always be hard to evaluate, the wild harvest appears to be a more humane option than the practices of the livestock industry. It must also be kept in mind that the industry operates in the context of a substantial annual cull of those kangaroos subject to use. As Flannery concludes on this point, the campaign against the kangaroo industry could be extremely counter productive. To shut down the kangaroo industry would be to cut off one of the most sustainable and humane animal-based industries in rural Australia.111
107 Environment Australia, ‘Humane Harvesting of kangaroos’ (2002). Available at:
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It is apparent from the activities of both environmental and animal welfare organisations discussed in this section, that commercial use of wildlife continues to face strident opposition despite the evidence of its environmental credentials. This suggests a possible basis for Australia’s continuing conservatism in dealing with attempts to expand commercial use, if such an apparently sustainable industry as the kangaroo harvest still attracts hostility at a level that can undermine international trade.
Conclusion
This chapter has canvassed a range of opinions and contributions to the commercial use of wildlife debate in Australia. It demonstrated that this debate is not only academic, given the serious and ongoing environmental concerns facing this country as well as the interacting social and economic concerns in remote areas which suggest that commercial use of wildlife could be an effective conservation tool if a more robust approach were taken to the issue.
The environmental policy documents and the three parliamentary inquiries directly on this subject provided further confirmation that commercial use of wildlife is consistently regarded as having conservation potential for Australia, although these positive inputs were challenged by the major conservation organisations and more marginal animal welfare groups which trenchantly oppose commercial use of wildlife.
This thesis is concerned with the apparent absence of environmental logic that to some extent undermines the legitimacy of the Australian wildlife regime. The aim of Part One of the thesis was to tease out the various factors in the broader wildlife use debate as well as what may play a part in the make up of the Australian legislation. It is not possible to definitely state what drives any regime but this chapter identified what I believe are important domestic concerns and the extent of rhetorical support as well as the vehemence of the opposition to commercial use. Part Two will now look at how these background factors have manifested in regulation of the wildlife trade and the actual and proposed commercial uses of wildlife in Australia.
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Chapter 5
INTERNATIONAL REGULATION OF THE TRADE IN WILDLIFE
This chapter examines CITES to provide the international background to the Australian wildlife regime. It begins with a discussion of the history of international wildlife regulation then sets out the CITES structure and mechanisms for implementation and enforcement. I discuss the issues arising from the Convention's design: its apparent basis in a particular set of beliefs that have led to an instrument that is not necessarily an effective response to conservation needs. The chapter responds to the issues raised in chapter two concerning uneven distribution of costs and benefits in international environmental regulation so far as they apply to the CITES regime. It then looks at how implementation of the Convention demonstrates recognition of these concerns, particularly in response to changes in international environmental law as exemplified by the Biodiversity Convention.
S1. Historical Background
Humans have always harvested wildlife1 yet, until the past century or so, the consequences for the survival of both the targeted species as well as closely associated organisms, were not considered to be a legitimate subject for consideration. It was the hunting of wildlife, and the realisation by hunters that their stocks were diminishing, which provided the catalyst for regulatory action.2
1 Stuart Cairns and Richard Kingsford, 'Harvesting Wildlife: kangaroos and waterfowl' in RA Bradstock et al (eds) Conserving Biodiversity: Threats and Solutions (1995) 260. 2 From domestic legislation that addressed protection of certain species to maintain numbers for hunting to international conservation instruments, notably the Ramsar Convention on Wetlands (ATS 1975 No 0048. Opened for signature 2 February 1971, entered into force 21 December 1975). Ramsar is a product of the concerns of waterfowl hunters that the loss of wetland habitat meant the loss of their prey. See Cyril de Klemm and Isabelle Creteaux, The Legal Development of the Ramsar Convention (1995) 81.
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The international regulation of wildlife conservation began with an explicit anthropocentric position that now appears brutal in its demarcation between species which “deserved” protection and those that did not. The 1900 London Convention Designed to Ensure the Conservation of Various Species of Wild Fauna in Africa, which are Useful to Man or Inoffensive (‘the 1900 Convention’)3 is cited as the first instrument the purpose of which was the conservation of species.4 The Convention’s coverage, as its title indicates, was restricted to “wild animal species which are useful to man or inoffensive”.
Firmly in keeping with this essentially anthropocentric perspective, early conventions excluded from protection, and even provided for the destruction of, species which were judged harmful (nuisibles) to human interests. Wildlife was a nuisance to be shot or useful to man (sic) – both objectives of the 1900 Convention.5 Species which could be destroyed included lions, leopards, crocodiles and various species of snakes and birds of prey.6
Wildlife could also be useful to agriculture (not forming part of that agriculture, but contributing to pest control): the 1902 Convention for the Protection of Birds Useful to Agriculture7 provided absolute protection for ‘useful birds’ (Article 1) while Article 9 allowed Parties to kill predatory birds considered “noxious to hunting, fishing and local agriculture”.8
3 IPE IV, p1605, opened for signature 19 May 1900 but never ratified. 4 Cyril de Klemm and Clare Shine, Biodiversity Conservation and the Law (1993) 29. See also P van Heijnsbergen, International Protection of Wild Fauna and Flora (1997) 13. 5 Above n 3. Bowman notes that, while the Convention was never ratified, “effect was given to many of its provisions in various British overseas territories”. Michael Bowman, ‘The Nature, Development and Philosophical Foundations of the Biodiversity Concept in International Law’, in M Bowman and C Redgwell (eds) International Law and the Conservation of Biodiversity (1996) 16. See also van Heijnsbergen, above n 4, at 14. 6 Ibid. 7 IPE IV, p 1615, opened for signature 19 March 1902, in force 1905. 8 Maria Clara Maffei, ‘Evolving Trends in the International Protection of Species’ (1993) 36 German Yearbook of International Environmental Law, 131 at 135; see also van Heijnsbergen, above n 4, at 10ff.
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The 1940 Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere9 provided early recognition of aesthetic value but again maintained a narrow focus to its regulatory attention. Article 7 required Parties to “take appropriate measures for the protection of migratory birds of economic or aesthetical value or threatened with extinction”. Apparently unattractive birds that were not on the brink had to fend for themselves.
The move towards an increasingly protectionist approach to wildlife is exemplified by the 1946 International Convention for the Regulation of Whaling (ICRW), which metamorphosed from an exploitation to a conservation treaty as a result of the changing make-up of its Contracting Parties. The original 15 members of the International Whaling Commission (IWC) were all active commercial whaling nations. The IWC now comprises around 71 nations, many of which have no whaling history.10 In 1982, the IWC voted for a moratorium by setting zero catch limits for commercial whaling (which came into force in 1986).11
The early forms of international regulation were the result of the imperial powers agreeing to impose restrictive measures in their wildlife-rich colonies. Nearly all signatories to the 1900 Convention on the Protection of Wild Fauna in Africa were European imperial powers with colonies in Africa: Great Britain, Germany, Spain,
9 161 UNTS 229. 10 de Klemm, above n 4, at 47. See also Greg Rose and S Crane, ‘The Evolution of International Whaling Law’, in P Sands (ed) Greening International Law (1993). The approach of CITES has been to list certain species of whale on its appendices, by which trading regulations apply (as set out in section II of this chapter) and also work in cooperation with the IWC. Article XV of CITES specifically addresses cooperation between it and marine agreements and this has been reaffirmed by the Parties to CITES in Resolution Conf. 11.4: ‘Conservation of cetaceans, trade in cetacean specimens and the relationship with the International Whaling Commission’. 11International Whaling Commission, IWC Information, available at:
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Belgium, France, Italy and Portugal.12 This approach was repeated in the 1933 Convention on the Preservation of Fauna and Flora in their Natural State.13 Maffei notes that again the majority of the Parties were European States with the Convention intended to be applied mainly in their African territories.14
Formal international recognition of problems related to the international wildlife trade began at the 1960 Seventh IUCN (World Conservation Union) General Assembly.15 This led to an IUCN General Assembly resolution in 1963 that called for an “international convention on regulation of export, transit and import of rare or threatened wildlife species or their skins and trophies”.16 A first draft was released in 1964 and, in 1972, the United Nations Conference on the Human Environment in Stockholm adopted Resolution 99.3 which led to discussion of a draft convention the following year in Washington DC.17
The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES or ‘the Convention’) was opened for signature at the Washington conference on 3 March 1973 and entered into force on 1 July 1975. By January 2007 there were 169 Parties to the Convention.18
be taken by coastal community-based whaling. The IWC has continued to reject the applications. (International Whaling Commission,
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CITES is described as both a protectionist and a trade treaty19 and relies on international cooperation to ensure wildlife species do not become endangered or extinct as a consequence of exploitation for international trade. The Convention began its life at a time when commercial use of wildlife was viewed as, at best, a necessary evil to be controlled as far as possible.20 It is one of a group of multilateral environmental treaties that came into force in 197521 which, in their original emphasis, tended to reflect the preservationist perspective of their North American and European drafters, for whom conservation and commercial use were two very different animals, so to speak.22 In its design and implementation, it is evident that the protectionist stamp of industrialised society is on the Convention, reflecting the broader international political dynamic. CITES reflects the political landscape of the early 1970s, with the Western powers still holding sway in international affairs and post-colonial societies yet to wield the muscle afforded by their sheer number. It is thus a political as well as an environmental product of its time. Treaty making is not purely consensual, of course. Negotiations are heavily affected by the structure of the international system, in which some states are much more powerful than others.23
The international wildlife trade and its regulation exemplify how the different agenda of States Parties to multilateral treaties can be roughly divided between the wealthy
included conservation groups such as TRAFFIC (Trade Records Analysis of Flora and Fauna in Commerce), WWF (World Wide Fund for Nature), and the IUCN (World Conservation Union); as well as the World Customs Organisation and the International Criminal Police Organisation (ICPO-Interpol). David Ong, 'The Convention On International Trade In Endangered Species: Implications of Recent Developments in International and EC Environmental Law' (1998) 10 Journal of Environmental Law 291. 19 Simon Lyster, International Wildlife Law (1985) 240. 20 See Timothy Swanson, ‘The Evolving Trade Mechanisms in CITES’ (1992) 1(1) RECIEL 57, 57. 21 The other two are the Convention Concerning the Protection of the World Cultural and Natural Heritage (Opened for signature 23 November 1972, ATS 1975 No 0047, entered into force 17 December 1975), and the Ramsar Convention on Wetlands, above n 2. 22 David Favre, 'Debate within the CITES Community: What Direction for the Future?' (1993) 33 Natural Resources Journal 875, 876. 23 Abram Chayes and Antonia Handler Chayes, ‘On Compliance’ (1993) 47(2) International Organization 175, 183. On regime formation, see Oran Young 'Rights, Rules, and Resources in World Affairs' in O Young (ed) Global Governance (1997) 1 at 9-12.
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‘North’ and the developing ‘South’. As Sand notes, the trade is mostly from the relatively biodiversity-rich South and is “mainly driven by consumer demand from the “affluent developed countries” of the industrialised North.24 The extent to which CITES reflects the contention that environmental protection is an indulgence of the wealthy at the expense of those who can least afford it25 has fed a vigorous dispute both between State Parties to the Convention and other non-government stakeholders. The tensions in the CITES conservation debate largely reflect this division in trade.26
An enthusiasm for prohibiting commercial trade in species, even those which may not be threatened, via a listing process which often did not involve the input of the country in which the species was listed, was a feature of the early years of the Convention’s implementation.27 The prohibition on trade in certain species continues to ignite great controversy, particularly considering that wildlife-rich developing countries have borne the greatest burden of such restrictions. The Range States bear much of the procedural cost of implementation as well as an, at times, considerable loss of income from forgone trade. The voting system within CITES is unique in that it allows Parties who bear no financial costs for the protection of species which occur in other Parties’ countries to, nevertheless, take decisions with financial implications for those range states.28
The infrastructure requirements of international agreements such as CITES may also introduce or perpetuate inappropriate forms of domestic regulation. Under CITES, trade
24 Sand, above n 16, at 30. For example, Hutton comments that, in spite of the downlisting of Zimbabwe’s Nile crocodile population from Appendix I to II in 1983, in recognition of a management program that was “leading to real conservation gains for the species”, it took an additional 13 years for the US Government to allow commercial shipments of Nile crocodile leather. JM Hutton, ‘Who Knows Best? Controversy over Unilateral Stricter Domestic Measures’ in J Hutton and B Dickson (eds) Endangered Species Threatened Convention, The Past, Present and Future of CITES (2000), 57 at 59. 25 See, for example, discussion in Markus A Nuding, ‘Wildlife management in Namibia: the conservancy approach’ in Tim O’Riordan and Susanne Stoll-Kleeman (eds), Biodiversity, Sustainability and Human Communities: Protecting beyond the Protected (2002) 189 at 198. 26 Jon Hutton and Barnabas Dickson, ‘Introduction’ in Hutton and Dickson, above n 24, xv. 27 As discussed below in 'The listing process'. 28 RB Martin, ‘When CITES Works and When it Does Not’ in Hutton and Dickson above n 24, 29 at 32.
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in listed wildlife is monitored and regulated via a system of export and import permits. The permits are issued by each Party's formally recognised 'Management and Scientific Authority'. Each Party must establish (or designate already existing) Management and Scientific Authorities. These ensure adherence to the export/import permit requirements, transport conditions for live specimens and so on.29
The structure of the Convention, with its reliance on export permits for trade, exacerbates the disadvantage for the financially poor but biodiversity rich Parties that are 'range' or 'producer' States. The export permit control system "places an inordinate burden on usually under-funded, ill-equipped and poorly trained implementation systems in exporting developing countries".30 Further, the insistence on a centralised Management Authority and Scientific Authority31 may make sense in some societies but in decentralised rural societies in which there may be a centuries-old tradition of management decisions made at a community level, in accordance with local needs and interests, the imposition of an external decision-making structure may be both alienating and ineffective.
Developments in international environmental thinking have promoted a shift back towards more utilitarian values in recent decades. As discussed in Chapter two, this has reflected growing recognition of the need to acknowledge a more holistic approach to conservation which takes account of all forms of interaction between humans and their environment. The aim is to take a conservative approach to use, thus trying to extract the most helpful elements from earlier regulatory eras that have spanned the extremes of exploitation and protection with a continuing move away from an emphasis on prohibition. Over the long run, trade bans and restrictions are difficult to enforce, they encourage huge profits from illegal trading and offer little incentive for host countries to invest in sustainable resource management.32
29 Article 9.1. 30 Ong, above n 18, 297. 31 Which is responsible, inter alia, for the issuing of import and export permits. 32 David Pearce and Edward Barbier, Blueprint for a Sustainable Economy (2000) 187.
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This has created pressure on older instruments, such as CITES, to move towards a sustainable use paradigm, embracing a broader range of perspectives and imperatives, well beyond those which informed its conception.33 The Convention has demonstrated some flexibility in accommodating the changed paradigm and, in so doing, shown greater sensitivity to the needs and interests of biodiversity-rich developing countries.
S2. The CITES Regime
This section examines the text and administration of the Convention to explain how the regime is designed, implemented and enforced. It also canvasses concerns about the regime where it has been inequitable and/or inefficient in its application. Section three will then look at how CITES has begun to respond to these concerns.
2.1 The appendices
Plant and animal species subject to regulation by the Parties are listed in the Convention’s appendices. These are examined and amended at Conferences of the Parties.34 Amendments to Appendices I and II require approval of two-thirds of the Parties present and voting at the CoP35 while a third appendix comprises listings by individual Parties.36 Article 1(a) defines species as meaning “any species, subspecies, or geographically separate population thereof”. Population was defined in Resolution Conf. 9.24 (Annex 5) as “the total number of individuals of the species”.
The Convention is applied via this listing process which determines different approaches to international trade; this may be in response to a species being endangered, threatened or similar in appearance to an endangered or threatened species.
33 Favre, above n 22, at 876. 34 Article 11.3(b). 35 Article 15.1(b). 36 Appendix III species can be identified by any individual Party "as being subject to regulation within its jurisdiction for the purpose of preventing or restricting exploitation, and as needing the co-operation of other Parties in the control of trade" (Article 2.3).
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Appendix I species attract the strictest controls, the main distinctions from Appendix II being the prohibition on commercial trade of wild specimens or parts thereof37 and the requirement of an import as well as export permit. Article 2 requires that the Appendix shall “include all species currently threatened with extinction which are or may be affected by trade”.38
Species must therefore qualify on two fronts: both their conservation status and their trade status. As Resolution Conf.1.1 recognised, the two issues are ‘obviously related’. The Contracting Parties have agreed that, when biological data show a species to be declining seriously, there need be only a probability of trade. When trade is known to occur, information on the biological status need not be as complete. This principle especially applies to groups of related species, where trade can readily shift from one species to another. While only the first species may have biological data to support its listing, the other species should also be listed even where there is little biological information because it may be subject to similar trading pressures because of shared characteristics.39
Species listed on Appendix II are those for which trade could result in them becoming threatened with extinction “unless trade in such specimens is subject to strict regulation in order to avoid utilisation incompatible with their survival”.40 They should be currently traded or likely to be traded. A threat of trade may arise when one species,
37 Captive bred animals and artificially propagated plants of species listed on Appendix I are deemed to be listed in Appendix II. (Article 7.4) 38 Article 2.1. The Article does not address the reason for which a species may be threatened with extinction so there does not appear to be any necessary connection with trade and population status prior to listing. The Article’s wording suggests that it is concerned only with listing a species when trade may exacerbate its already threatened status. 39 Resolution of the First Meeting of the Conference of the Parties (Berne, Switzerland, 1976), Resolution Conf 1.1, ‘Criteria for the Additions of Species and Other Taxa to Appendices I and II and for the Transfer of Species and Other Taxa from Appendix II to Appendix I’ (repealed by Resolution Conf. 9.24, ‘Criteria for Amendment of Appendices I and II’). The first Conference of the Parties (CoP) was held in Berne, Switzerland in 1976 and the most recent was the 13th CoP in Bangkok, Thailand in October 2004. See the Conference homepage at
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already heavily traded, generates a demand for similar species; that is, the demand expands to encompass a wider range of species.
Article 2.2(b) provides that Appendix II shall also include species which must be regulated to allow for effective control in trade of threatened species. For example, species similar in appearance to those potentially threatened species listed under Article 2.2(a) as they may create identification difficulties for regulators – such as Customs officers – by providing smugglers with a legitimate cover.
The Convention is relatively dynamic in its capacity to respond to changing circumstances in member States. Article 11.3(b) provides that the Conference of the Parties may amend Appendices I and II in accordance with Article XV which provides a detailed procedure for the proposal and adoption of amendments. The appendices have been regularly amended in response to such factors as changed population status of listed species.
2.2 The listing process
The listing criteria have been refined over successive Conferences of the Parties, beginning with the formulation of the “Berne criteria” adopted at the First Conference of the Parties in 1976.41 These had a relatively broad application; once species had met the biological criteria (threatened with extinction), the trade status for Appendix I listing included: “… if they are or may be affected by international trade. This should include any species that might be expected to be traded for any purpose, scientific or otherwise.”42 At the second CoP in 1979, this was narrowed with regard to the impact any trade may have on the population from “may be affected by trade” to “may be exterminated” (emphasis supplied). Resolution Conf 2.19 stated: a) that the criteria be interpreted as applying where the population of a species in the wild is known to be so low that, if it were to be exploited in any way, it may be exterminated before effective steps could be taken to save it;
41 Resolution Conf. 1.1, above n 36.
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There have been continued problems with listing stemming from, among other things, a lack of definition for the treaty terms 'threatened with extinction' and 'affected by trade'.43 Further, Article 15 of the Convention, which sets out the provisions for the amendment of the appendices, makes no reference to the role of range states (the states in which the species are located). Any Party may propose an amendment and these "shall be adopted by a two-thirds majority of Parties present and voting".44 The Parties listed 1,100 species in the Appendices, without reference to population data, prior to the first CoP45 and they were listed “according to the advice of Western experts” without consultation with the range States.46
The Convention’s global approach to listing was initially blind to any variations in conservation status of species in different countries.47 This has resulted in range States which may have sustainable management regimes and healthy populations of a certain species being punished by a global Appendix I listing because such listing is responding to an endangered population in another country. The listing may also simply be responding to perceived threats, as was the case in many of the initial listings under CITES.
To implement protective measures for Appendix I species may result in the Convention overwhelming local interaction with and use of wildlife. Listing can be a blunt instrument that does not discriminate between sustainable and non-sustainable practices. Swanson gives the example of the relisting of the African elephant on Appendix I, penalising Zimbabwe “with a long and unquestioned history of sustainable elephant
42 Ibid. 43 Article 2 of the Convention provides: "Any species threatened with extinction that is, or may be affected by trade can be considered for inclusion in Appendix I". 44 Article 15.1(b). 45 Wijnstekers, above n 15, at 61. 46 Henriette Kievit, ‘Conservation of the Nile Crocodile; Has CITES Helped or Hindered’ in Hutton and Dickson above n 24, 88 at 89; Robert WG Jenkins, ‘The Significant Trade Process: Making Appendix II Work’ in the same volume, 47 at 49. 47 But has been addressed on occasion by ‘split-listings’, as discussed below.
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ivory utilisation” instead of targeting elephant traders in States where the African elephant population had substantially declined.48 The indiscriminate application of Appendix I resulted in the same treatment of Zimbabwe (whose elephant population increased by 10,000 in the 1980s) as Tanzania, Central African Republic, Zambia and Sudan (whose joint elephant losses equalled about 500,000 during the same period).49
This approach to protecting the African elephant demonstrates the difficulties facing CITES if it is to encourage compliance. Where enforcement of the Convention fails to acknowledge vast differences in behaviour then it is highly unlikely that such enforcement can be effective in the long term.50 As discussed in section 3 below, however, the parties to CITES have since begun to deal with this issue in a far more sensitive manner.
The range States' role in appendix listings was directly addressed at the Eighth Conference of the Parties in 1992, via resolution Conf. 8.21: 'Consultation with Range States on Proposals to Amend Appendices I and II'. The resolution noted that, while Resolution Conf 2.17, adopted at the Second Conference of the Parties, provides for comments to be sought from the range States; ".... many proposals have been submitted without such comments being sought". The resolution goes on to recommend procedures for consultation with range States before future amendments are proposed.
There has been a huge barrier to downlisting species from Appendix I to II because, as noted above, the original Appendix I listings had proceeded without any population data
48 The listing of the African elephant is discussed below. 49 Swanson, above n 20, at 62. Zimbabwe considers itself to have been a victim of CITES on two counts: the global listing that does not differentiate, in relation to the Appendix I listing of African elephants in 1989, and listing with no biological basis, in relation to the Appendix I-listing of the Nile Crocodile in the first CITES actions. Phyllis Mofson, ‘Zimbabwe and CITES: Influencing the International Regime’ in Hutton and Dickson, above n 24, at 107; Kievit, above n 46, at 88. See also Edward Barbier et al, Elephants, Economics and Ivory (1990) 132ff. 50 See discussion of the motivations for compliance in: MJ Peterson 'International Organizations and the Implementation of Environmental Regimes in O Young (ed) Global Governance (1997) at 115 at 118; Steve Charnowitz, ‘Encouraging Environmental Cooperation Through the Pelly Amendment’ (1994) 3(1) Journal of Environment & Development 3 at 5.
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to support the designation.51 A transfer to Appendix II requires evidence of improvement in population status but this was impossible to demonstrate without knowledge of the original situation. As Jenkins notes, acquiring sufficient scientific data for a downlisting is “an extremely difficult and costly exercise”.52 The Parties had also adopted a precautionary approach to amendments to the Appendices. Resolution Conf. 1.2 stated: If an error is made by unnecessarily placing a taxon on an Appendix, the result is the imposition of a documentation requirement. If, however, the Conference errs in prematurely removing a plant or animal from protection, or lowering the level of protection afforded, the result can be the permanent loss of the resource. If it errs it should be therefore toward protection of the resource.53
Apart from the subsequent realisation that “imposition of a documentation requirement” is not to be taken lightly, as evidenced by the Parties’ struggles with the effective implementation of the Appendix II trade requirements, documentation obligations fall heaviest on the range States which tend to be developing countries. There was also a possible tension between taking a precautionary approach and ensuring that this did not undermine the impact of the listing: This inability to transfer species could have devalued the Appendices if they contained a vast array of species which are neither at risk from trade nor appear similar to traded species (and therefore need to be listed for "look-alike" reasons).54
51 Wijnstekers, above n 15, 61. 52 Robert WG Jenkins, ‘The Significant Trade Process: Making Appendix II Work’ in Hutton and Dickson, above n 24, 47 at 49. Jenkins cites the Australian efforts to obtain a transfer of the saltwater crocodile from Appendix I to II which took more than five years and cost over a million dollars to achieve. The Australian campaign is discussed in Part III of the thesis. 53 Resolution of the First Meeting of the Conference of the Parties (Berne, Switzerland, 1976), Resolution Conf 1.2, ‘Criteria for the Deletion of Species and Other Taxa from Appendices I and II’, repealed by Resolution Conf. 9.24. 54 Alison Rosser and Mandy Haywood (eds) IUCN Species Survival Commission, April 1999, CITES: A Conservation Tool (6th ed) s 1.3.
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The difficulties prompted a revision of the Berne criteria with the Eighth Conference of the Parties noting that the CITES Appendices “now include a very large number of species, many of which may not be threatened by commercial trade”.55 At the Ninth Conference of the Parties, the Parties adopted Resolution Conf. 9.24 that updated the criteria for listing of species (and repealed the Berne criteria).56
The new criteria established by Resolution Conf 9.24 maintain the precautionary approach to proposals to amend the Appendices, requiring that, in the case of uncertainty regarding the biological or trade status of a species, any amendment action be “in the best interest of the conservation of the species”.57 Dickson notes that the phrasing of the resolution implies that the precautionary principle “is to be applied in the context of the overarching assumptions of CITES. These assumptions are that international trade is a threat to species conservation, and that restrictions on trade are the appropriate response to that threat”.58
Species that no longer meet the criteria for Appendix I listing may still not be downlisted unless one of the following also apply: there is no demand for international trade; if there is trade, that the CoP is satisfied with its regulation; an export quota has been approved by the CoP; or the amendment is subject to an approved ranching proposal.59 Annex 3 of the Resolution also states that Appendix I species can not be removed from the Appendices entirely unless they have been first transferred to
55 Resolution of the Eighth Meeting of the Conference of the Parties (Kyoto, Japan, 1992), Resolution Conf. 8.20, ‘Development of New Criteria for Amendment of the Appendices’. 56 Resolution of the Ninth Meeting of the Conference of the Parties (Fort Lauderdale, United States 1994), ‘Criteria for Amendment of Appendices I and II’. The resolution also recommended that its text and annexes be fully reviewed before the 12th Conference of the Parties. Decision 12.97 then approved the procedures for this review. In 2004, the 13th Conference of the Parties received the proposed revision of Resolution Conf. 9.24. See Twentieth meeting of the Animals Committee, 29 March-2 April 2004, Review of the criteria for amendment of Appendices I and II, Report of the Drafting Group, AC20 DG 1 Doc. 1 (Rev. 1), available at www.cites.org, accessed November 2004. 57 Annex 3. See discussion in s3.1 of Chapter two concerning the precautionary principle and its application to conservation via sustainable use of wildlife. 58 Barnabas Dickson, ‘The Precautionary Principle in CITES: A Critical Assessment’ (1999) (39) Natural Resources Journal 211 at 220. 59 For a discussion of ranching under the Convention, see chapter 2 of the thesis.
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Appendix II “with monitoring of any impact of trade on the species for at least two intervals between meetings of the Conference of the Parties”.60
Resolution Conf 9.24 includes guidance on threshold population states for listing in either Appendix. For example, it sets out four different possible biological criteria, only one of which need be met, for listing in Appendix I. The first three relate to size, declines, fluctuations and fragmentation of the wild population or sub-populations while the fourth provides for listing where, "if the species is not included in Appendix I, it is likely to satisfy one or more of the above criteria within a period of five years".61
Rosser and Haywood note that the need for quantitative guidelines could discriminate against those species about which very little is known: There is no doubt that without explicit criteria the large-bodied, well known and charismatic species are more likely to be considered for listing, regardless of any biological justification.62
That is, regulation will be hierarchical, with the extent of knowledge regarding particular species determining the level of protection provided.
2.3 The trade provisions
Articles 3 and 4 provide for the regulation of trade in Appendix I and II species respectively. Articles 3.2 and 4.2 are identical from paragraphs a) to c). These require that States shall only grant export permits for Appendix I and II species when: (a) The Scientific Authority of the State of export has advised that such export will not be detrimental to the survival of that species; (b) The Management Authority of the State of export is satisfied that the specimen was not obtained in contravention of the laws of that State for the protection of flora and fauna;
60 Resolution Conf. 9.24, Annex 3, ‘Precautionary Measures’, para B.1. 61 Resolution Conf. 9.24 (Annex 1). 62 Rosser and Haywood above n 54.
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(c) The Management Authority of the State of export is satisfied that any living specimen will be so prepared and shipped as to minimise the risk of injury, damage to health or cruel treatment.
There is, however, no Article 4 parallel for the import permit requirement for Appendix I species in Article 3.2(d): (d) The Management Authority of the State of export is satisfied that an import permit has been granted for the specimen.
The import provisions provide the major distinction between the two Appendices as they introduce the prohibition of commercial trade in Appendix I species. The granting of an import permit is subject to Article 3.3 which states that a permit shall only be granted when the following conditions have been met: (a) a Scientific Authority of the State of import has advised that such import will be for purposes which are not detrimental to the survival of the species involved; (b) a Scientific Authority of the State of import is satisfied that the proposed recipient of a living specimen is suitably equipped to house and care for it; and (c) a Management Authority of the State of import is satisfied that the specimen is not to be used for primarily commercial purposes. (Emphasis supplied.)
The prohibition on commercial trade of Appendix I species refers to wild specimens or products; Parties may trade specimens bred in captivity or artificially propagated. Article 7.4 provides: Specimens of an animal species included in Appendix I bred in captivity for commercial purposes, or of a plant species included in Appendix I artificially propagated for commercial purposes, shall be deemed to be specimens of a species included in Appendix II.
Trade in such specimens will still require an export permit, as per Appendix II species. If the trade is for non-commercial purposes, however, then a certificate from the Management Authority stating that it is satisfied the specimens were bred in captivity/ artificially propagated will be accepted in lieu of any of the normal permit requirements
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(Article 7.5). Any trade of Appendix I species must only be authorised in exceptional circumstances.63
Wijnstekers lists some purposes which might meet the Appendix I trade conditions in both Article 3.3(a) and (c), that is, requiring no detriment and no commercial use:64 • Scientific research in the interest of the survival of the species, e.g. with a view to enhance the reproduction and survival rates of the animals in the wild or in captivity. • Captive breeding and artificial propagation, either with a view to the reintroduction of the species in the wild, to increase small existing wild populations, or to reduce the number of specimens that would otherwise be taken from the wild. • Research for the development of substitutes for products hitherto derived from specimens taken from the wild. • Education and training. • The transport of ‘surplus’ specimens from one wild population to a less thriving one in another country.
• Hunting trophies.65
This list of possible transactions which may be ‘clearly beneficial’ to Appendix I species may in fact hold some commercial gain for the exporting State, which would invite a consideration of the broader benefits to be reaped when determining whether trade should be allowed.
Trade in Appendix II species may not require import permits but Article 4.3 provides that the scientific authorities in both the exporting and importing Parties must monitor both the export permits and actual exports of Appendix II specimens. The grant of
63 Article 2.1. 64 Ibid. 65 The non-commercial hunting of Appendix I species has been accepted as within the provisions of Article 3 where there are approved quotas. See Resolution Conf. 2.11 ‘Trade in Hunting Trophies of Species Listed in Appendix I’. There are several resolutions addressing hunting of particular listed
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export permits may be limited where the Scientific Authority determines it necessary to maintain the species “throughout its range at a level consistent with its role in the ecosystems in which it occurs and well above the level at which that species might become eligible for inclusion in Appendix I”.66 This of course presupposes a high level of knowledge about the relevant species, and their role within their ecosystems, on the part of the producer State.
Some States, including Australia, have used Article 14 of the Convention to introduce stricter requirements on trade, namely import permits for Appendix II specimens. This has understandably caused resentment among exporting countries, as it imposes requirements on their domestic management, over and above that already provided by CITES. It exemplifies the equity issues enlivened by international environmental law when wealthier states are able to use international influence and the size of their market to impose unilateral trade measures to force the acquiescence of poorer nations to costly trade constraints. Such actions are particularly unpopular in southern Africa, much of which is only just reestablishing its jurisdiction over resources after a colonial past. … It is contended that those countries which are creating impositions and seeking to judge the competency of others have a range of experiences that may not be relevant to countries of the developing world, and in any case they are themselves often severely lacking in resource management credentials.67
2.4 Enforcement
CITES has a striking advantage to enhance its enforcement muscle, denied other major multilateral conservation agreements: CITES addresses actions occurring between nations. Nature conservation treaties tend to rely on their implementation in good faith
species, for example, Resolution Conf. 10.14: ‘Quotas for Leopard Hunting Trophies and Skins for Personal Use’. The leopard is listed on Appendix I. 66 Emphasis supplied. 67 Hutton, above n 24, 57 at 58. See also Jenkins, above n 51, 47 at 51, where he notes that a further cause for tension is the lack of consultation with the exporting States before such measures are imposed, causing “a great deal of resentment and tension within the convention, which is a multilateral agreement depending on the goodwill and mutual respect of the participating countries”.
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by their Parties and some only threaten a name and shame response to transgressions.68 CITES also takes a name and shame approach regarding some enforcement issues but has also threatened, and imposed, trade sanctions.69 Instead of simply calling on the Parties to address domestic conservation issues to implement treaty measures in good faith, states can act in response to transgressors via sanctions to undermine or prevent trade that breaches CITES obligations.70
Article 8(1) of the Convention states that the Parties “shall take appropriate measures to enforce the provisions of the present Convention and to prohibit trade in specimens in violation thereof”. The Article goes on to provide a non-exhaustive list of measures required of the Parties. The Third Conference of the Parties emphasised the need for strict compliance and control in the regulation of trade and protection against illegal traffic.71
On several occasions, the Secretariat has recommended that Parties suspend trade with ‘serious offenders’, using Article 14.1.72 (The compatibility of trade restrictions under CITES with the provisions of the WTO does not appear to have been expressly addressed, with sanctions imposed and their legality not challenged.73)
68 For example, the Conference of the Parties to the Ramsar Convention will draw attention to both positive and negative activities in the Contracting Parties. See, for example, Recommendation 6.17: ‘Ramsar sites in the territories of specific Contracting Parties’ from the Sixth Conference of the Parties for a long list of naming, acclaiming and shaming. Available at
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In 1991 it was recommended that the Parties ban wildlife trade with Thailand because of CITES violations and lack of adequate domestic legislation.74 In response, the CITES Parties restricted trade but the ban was lifted the following year after the Standing Committee reviewed Thailand’s implementation efforts, including the adoption of new legislation.75
In 1992 the Standing Committee requested that the CITES Parties limit trade with Italy.76 The Secretariat had reported Italy’s failure to legislate to penalise CITES infractions, its lack of adequate inspection of imports and exports and the issuance of permits in violation of CITES.77 The ban was lifted in March 1993 after Italy adopted appropriate legislation.78
In 2002 the Secretariat recommended that all Parties should refuse to engage in any import or export of CITES-listed species with Vietnam “until further notice” as it had failed to adopt the necessary legislation to implement CITES.79
The Conference of the Parties has acknowledged that State violation of the Convention may often be a result of inadequate or insufficient implementation rather than deliberate
reservations made to [this] compatibility … On the contrary, it appears that trade restrictions contained in some nature conservation treaties, such as CITES … were expressly considered to be GATT compatible”. Francesco Francioni, ‘Environment, Human Rights and The Limits of Free Trade’, paper delivered to a symposium Environment, Human Rights and the Liberalization of International Trade, University of Sienna 10-11 April 2000. Copy of the paper is with the author. See also the discussion in Cyril de Klemm and Clare Shine, Biodiversity Conservation and the Law, 1993, p 45. Also James Cameron, T Mjolo- Thamage and JC Robinson, The Effectiveness of International Environmental Agreements, 475ff 74 Notification no. 673, 22 April 1991. 75 See discussion in David Favre, ‘Trade in Endangered Species’ (1992) Yearbook of International Environmental Law 317 at 321. 76 CITES Notification No. 675, 30 June 1992. 77 David Favre, ‘Trade In Endangered Species’ (1993) Yearbook Of International Environmental Law 260. 78 CITES Notification 722, 19 February 1993. 79 Notification No. 2002/004: Vietnam, Recommendation to suspend trade’, 14 January 2002
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transgression. This will often stem from the incapacity of the State to effectively monitor and control its wildlife trade.
As early as 1981, the Parties agreed to Resolution Conf 3.9, which stated in its preamble that the Parties recognise “that the developing countries, because of their special socio- economic, political, cultural and geographic circumstances have major difficulties in meeting appropriate control requirements, even though this does not exempt them from observing the highest possible degree of effectiveness”.80
For example, the Parties to CITES are required to ensure they have domestic legislation in place to implement the Convention, under their obligations pursuant to Article 8.1, but the majority of Parties do not have sufficient regulatory structures in place.81 In recognition of the economic and logistical difficulties for developing countries, the CITES Parties have taken into account implementation efforts that may not be fully effective but are in good faith.82
80 Resolution Conf. 3.9 (Rev.) (New Delhi, 1981, as amended at Fort Lauderdale, 1994), "International compliance control". This was repealed by Resolution Conf 11.3, "Compliance and Enforcement" which maintains the same wording in its preamble. 81 The failure of many of the Parties to do so led to the establishment of the National legislation project in 1992: Resolution Conf. 8.4 ( Eighth Meeting of the Conference of the Parties, Kyoto, Japan, 1992), ‘National laws for implementation of the Convention’. The Secretariat reported on its progress in 1999, stating it had carried out the analysis and review, or update, of the national legislation of 136 Parties. It recommended suspension of trade with some Parties for non-compliance as the project found “that approximately 75 per cent of the Parties reviewed did not have the full range of national legislative and administrative measures needed to give effect to all aspects of the Convention and related resolutions and decisions of the Conference of the Parties”: Implementation of the Convention in individual countries, National legislation project Progress and Future Development, Forty-second meeting of the Standing Committee, Lisbon (Portugal), 28 September-1 October 1999, CITES Doc. SC.42.12.1, at 1. 82 For example, in 1985 Resolution Conf. 5.2 gave the Government of Bolivia 90 days to demonstrate to the CITES Standing Committee that it had adopted all necessary measures to adequately implement the Convention. If this were not done, the resolution recommended that all Parties refuse to accept shipments of CITES specimens from Bolivia until the Government could demonstrate that it had adopted all possible measures to adequately implement the Convention. Bolivia’s response that it lacked the technical expertise to ensure proper licensing elicited the support of the CITES Secretariat, the European Community and a group of CITES importing countries to develop training and research programs. The CITES Standing Committee recommended suspending the embargo and at the next Conference of the Parties in 1987 Resolution Conf. 6.4 repealed Resolution 5.2. Although Bolivia still could not demonstrate that it had been able to effectively implement the Convention, the Parties acknowledged that its government was taking sufficient measures to prove its willingness to fully comply with the CITES provisions. See Wijnstekers, above n 15, at 192; Sand, above n 16, at 51.
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S3. The Evolving Perspective of Trade Under CITES – From Necessary Evil to Conservation Tool
The number of publications which refer in their titles to the ‘evolution’ of the CITES regime is noteworthy.83 The suggestion that the regime has expanded to meet the challenge of developments in international environmental law is reinforced by the resolutions adopted by the Parties and reports of the Convention’s Standing Committees such as those which address ‘synergy’ with the Convention on Biological Diversity.84
While the apparent limits to the CITES brief stem from its origins, the text has been embellished over the years by way of the decisions of the Contracting Parties at the biennial Conference of the Parties85 to reflect changes in environmental thinking which has increasingly acknowledged that commercial use must be brought within the conservation fold. The decisions reached by the Conferences of the Parties suggest that sustainable use now challenges protectionism as the Convention paradigm.
As discussed in Chapter 2, the need for trade to be linked with conservation is based on the argument that effective conservation incorporates the needs and interests of those human communities whose lives interact with the wildlife subject to regulation. A wildlife regime that alienates the surrounding human community may impose considerable hardship on those people and is less likely to succeed as a protective measure. This is because local communities may be antagonised by the imposed regime and therefore be less likely to cooperate with its provisions. The greater perceived threat, however, is that, if the community can no longer make use of the wildlife, its habitat loses value and it is likely that such habitat will be lost in the conversion of the land to agricultural use.86
83 These include Wijnstekers, above n 15; Sand, above n 16; Maffei, above n 8; Swanson, above n 20. 84 Discussed in the following section of this chapter. 85 As provided by Article 11.2. 86 See, for example, Kudzai Makombe (ed) Sharing the Land, Wildlife, People and Development in Africa, IUCN/Rosa Issues Series No 1, (1993) 31; Madhav Gadgil, ‘Conserving Biodiversity as if People Matter: A Case Study from India’ (1992) 21(3) Ambio 266.
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The Convention text itself does not couple ‘trade’ and ‘conservation’; rather it appears to regard the commercial use of wildlife as an unfortunate fact of life which it must strictly regulate or prohibit. This suggests that there would have been little support for the concept of conservation via commercial use of wildlife at the time the Convention was drafted. Implicit in its existing structure is an assumption that all trade is somehow bad for conservation unless proven otherwise.87
The only mention of conservation in the text is in Article 11.3(c) which requires the CITES Parties to “review the progress made towards the restoration and conservation of the species included in Appendices I, II and III” when they meet at Conferences of the Parties. Wijnstekers notes that this task has “so far received little attention”.88
An interpretation of the text as being negative in its perception of commercial use is not only based on the absence of any positive reference to trade, but the phrasing of the central articles. For example, Article 2, which sets out the ‘Fundamental principles’ of the Convention, states that trade in Appendix I specimens “must be subject to particularly strict regulation in order not to endanger further their survival…” (Article 2.1); while Appendix II shall include those species that “although not necessarily threatened with extinction may become so unless trade in specimens of such species is subject to strict regulation in order to avoid utilisation incompatible with their survival” (Article 2.3(a)).
The main indication of the Convention’s dim view of trade in wildlife is the negatively- phrased conservation criteria in the trade provisions in Articles 3.2 and 4.2. As noted above, export of an Appendix I or II species will only be permitted where such export “will not be detrimental to the survival of that species” (Article 3.2(a) and 4.2(a)
87 Michael ‘tSas-Rolfes, ‘Assessing CITES: Four Case Studies’ in Hutton and Dickson, above n 24, at 69. 88 Wijnstekers, above n 15, 316.
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respectively). This is a clear indication of the limits to the Convention’s perception of the consequences of trade.89
The Conference of the Parties has acknowledged that conservation benefits may flow from trade90 but this may depend on how ‘detriment’ is interpreted. When the provision is viewed in a positive light, it can be more a question of: “Is there a potential conservation benefit to be achieved from this trade?” This may be as a result of habitat conditions attached to the issuing of permits and/or because of increased community engagement with the conservation regime because of the economic benefits that may result. Such a focus would intertwine the interests of the surrounding human and ecological community.
This has been an explicit consideration in the review of trade in Appendix II specimens. For example, resolution 8.9 directed the Animals Committee to make specific recommendations for all species listed in its report regarding management of the species in the range States. These may include “administrative procedures, specific quotas ….temporary restrictions and field studies or evaluation of threats to populations or other relevant factors, including illegal trade, habitat destruction, internal and other uses, designed to provide the information necessary for a Scientific Authority non- detriment finding” (emphasis supplied). This resolution illustrates the Convention’s move beyond the trade and population status of specific species towards more contextual indicators.
Particularly significant is the reference to ‘habitat destruction’ in the resolution. It is explicitly expanding the concept of ‘non-detriment’ beyond the species themselves to the ecological context in which they exist.
89 See also the discussion of the role of the precautionary principle implied from the Convention text, particularly Articles 2.1 and 3 (referring to trade in Appendix I) in Dickson, above n 57, at 224. Dickson comments that the principle, in this context: “… does not allow room for the consideration of reasons against halting trade, or of alternative means of achieving the goal of species conservation”. (Ibid) 90 See, for example, Resolution Conf 8.3 'Recognition of the Benefits of Trade in Wildlife' in which the Parties recognised that "commercial trade may be beneficial to the conservation of species and ecosystems and/or to the development of local people when such trade is carried out at levels that are not detrimental to the survival of the species in question".
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What is important is how that connection is made. The traditional interpretation would assume that the concern is with minimising the negative impact on habitat of any trade in wildlife. However, as the literature on conservation via sustainable use emphasises, sustainable trade in wildlife may have a positive impact on maintaining habitat. The connection made in Resolution 8.9, then, citing habitat destruction as a relevant factor in an analysis of detriment, could be open to a determination that trade may be needed to prevent loss of habitat.
This has in fact occurred in the process of reviewing amendment criteria for Appendices I and II. This was introduced by Resolution Conf. 9.24.91 More recently, a draft resolution, forming the proposed revision of Resolution Conf. 9.24,92 indicates the extent to which the Parties to the Convention have acknowledged considerations well beyond the provisions of the text. For example, its preamble provides, inter alia: NOTING the objective to ensure that decisions to amend the Convention's Appendices are founded on sound and relevant scientific information, take into account socio-economic factors, and meet agreed biological and trade criteria for such amendments; (Emphasis supplied.)
This process, is one of several that demonstrate that the implementation of the Convention – by way of decisions of the Conferences of the Parties – has sought to be more sensitive to the broader context in which commercial trade of wildlife operates. For example, the revision of Res Conf 9.24 refers to quality of habitat in its biological criteria for Appendix I, as provided in Annex 1 of the draft Resolution.93
It is unlikely that CITES will be able to offer a truly effective response to endangered species without acknowledging the processes, along with trade, that affect their population status. If pressures on habitat have constituted the major threat to a species,
91 See above n 55. 92 Ibid. 93 Biological criteria for Appendix I refer to the status of the wild population of a species, in relation to population size, distribution and observable or projected decline. The distribution criteria and assessment of decline both refer to habitat criteria, including habitat, decrease in area and decrease in quality.
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then removing that species’ economic value by prohibiting international trade, is likely to increase the possibility that its habitat will be converted by those dependent on such habitat for their livelihood.
While it is for the individual Parties to determine the factors that inform their wildlife trade policies, the Conference of the Parties has agreed that a coordinated approach to implementation is required and this has included recognition of the importance of benefits to local communities. The Strategic Vision through 2005, agreed to by the Conference of the Parties at its 11th meeting,94 states as Goal 1: "… for trade to be carried out in a responsible manner and based on sustainable use, social and economic incentives are needed…". In undertaking a coordinated approach to developing such incentives, the Parties directed the CITES Secretariat to review national policies. Decision 12.22, adopted at the 12th CoP,95 stated that the Secretariat should, inter alia, "conduct, in cooperation with the Parties, a review of their national policy regarding the use of and trade in CITES-listed species, taking into account economic incentives, production systems… CITES-relevant taxation and subsidy schemes, property rights, mechanisms for benefit sharing and reinvestment in conservation…".
The overall objective of the reviews was to "improve the internal coherence of national policies for trade in CITES-listed species and to maximise benefits for local communities" (emphasis supplied).96 The review was characterised as a "capacity- building tool" that was "not linked to compliance mechanisms or procedures".97 Nevertheless, it indicates the broader suite of considerations that can play a part in the implementation of CITES and supports the proposal for localised issues to be taken into account in determinations of permitted trade. As the Secretariat recommended in its progress report on the implementation of Decision 12.22: "Parties are encouraged to
94 Gigiri, Kenya (2000). 95 Santiago, Chile (2002). 96 Id, [10]. The Secretariat reported to the 13th CoP in October 2004 on its progress in the implementation of Decision 12.22: "Strategic and administrative matters; Economic Incentives and Trade Policy", CoP13 Doc. 13 (Rev. 1), Available at
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take into account the needs of indigenous people and other local communities when adopting trade policies concerning wild fauna and flora".98
A radical re-interpretation of Article 3.2 - making benefits to local communities the central consideration of whether to allow trade in Appendix I species, to the extent that this could override the commercial use prohibition - was proposed in a campaign at the 1992 Kyoto CoP by the Southern African “Consumptive Use Bloc”.99 The Bloc argued that such benefits are an essential factor in ensuring conditions beneficial to the survival of species.
It was an ambitious attempt to redirect the Convention with a push for a greater emphasis on intra-generational equity in the implementation of CITES and indicated the frustration of such Parties with the impact of restrictive trade measures. Their proposal to the Eighth CoP was that, in relation to Appendix I species, the commercial trade prohibition should be replaced with sustainable use where commercial trade is judged beneficial, as defined in Doc 8.48: It is unreasonable to expect human populations, particularly in the most impoverished countries, to neglect an available source of food or money or tolerate dangerous or destructive wild animals in the name of conservation. Conservation programs need to be developed which take into account the needs of local people, which provide incentives for sustainable management of wildlife and which, where appropriate, ensure economic benefits to them.
This would then take into account the benefits to local people as well as to wildlife, acknowledging the interconnection of cultural and ecological imperatives.100 In Doc 8.49 they proposed that the current position was flawed on three counts: a) putting species into only two categories, endangered and threatened, is overly simplistic when in the real world there is a continuum of degrees of threat;
98 Id, [24]. 99 Zimbabwe, Botswana, Malawi, Zambia, Namibia. See Favre, above n 74, notes 11-12. 100 R Jayakumar Nayar and David Ong, ‘Developing Countries, ‘Development’ and the Conservation of Biological Diversity’, in Bowman and Redgwell above n 5, 235 at 241ff.
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b) because of the uncertainty of the standards for listing a species on Appendix I (threatened with extinction) and the unevenness with which the parties have applied the standards in the past, many species are removed from commercial trade that should not be; c) commercial trade need not be large scale to benefit the species and the humans who live in rural communities.
The concept of ‘beneficial’ sustainable use as opposed to no commercial use is a dramatic departure from the existing prohibition of commercial use in wild specimens and would have provided a much broader criterion that encompassed socio-economic issues as well as conservation concerns in its application. Whether the push for broader analysis of non-detriment is within the reaches of the Convention, the no commercial use criterion for Appendix I is an explicit provision in the text. The proposed resolution was considered to be more than a minor definitional point and, Favre comments, it was “clearly seeking to amend the Convention” and was eventually withdrawn by its sponsors”.101
It should be pointed out that, as far as trade in Appendix II species is concerned, the argument has already been made, and, ostensibly, accepted by the Parties, that trade can be a conservation tool. As Favre comments, Resolution 8.3102 - which 'defanged' the Consumptive Use Bloc's proposal - adds nothing new to the Convention.103 The resolution states that the Conference: Recognises that commercial trade may be beneficial to the conservation of species and ecosystems and/or to the development of local people when such trade is carried out at levels that are not detrimental to the survival of the species in question.
101 David Favre, ‘Trade in Endangered Species’ (1992) Yearbook of International Environmental Law 317 at 320. 102 Resolution Conf 8.3 'Recognition of the Benefits of Trade in Wildlife'. Adopted by 8th Conference of the Parties in 1992 at Kyoto. 103 Favre (1993), above n 74, at 904.
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While the resolution certainly was a step back from what was originally proposed by the Consumptive Use Bloc, it does provide a concrete acknowledgement that trade itself can play a part in conservation strategies.
3.1 Evolving within the bounds of the Convention – quotas and split-listings
The disaffection with the impact of CITES via global listings insensitive to regional differences has prompted the adoption of partial downlistings of Appendix I species to Appendix II to allow commercial trade in limited circumstances. The Convention has thus been able to take a more localised approach to implementation that responds to the needs of particular communities and the reality of differences in wildlife populations.
Split-listing has been described as a “piecemeal approach to the resolution of the problems within CITES”104 but may be a positive development considering the problems that may arise with a monolithic application of the Appendix I regime that is blind to variations in population and management. It also indicates the need for a continued examination of the impact of Appendix I listings and ways in which the text can accommodate the reality of diffuse threats and benefits to wildlife.
This was the case in the notable example of one-off trades in the ivory from African elephants, achieved via ‘partial downlistings’ from Appendix I to II.105 It has also been applied with regard to ranching of reptiles whereby downlistings of specific reptile populations from Appendix I to II have been approved by the Conference of the Parties to permit commercial use of those populations, as discussed in Chapter 2.
3.1.1 Split listing and regulation of the trade in ivory The African elephant (Loxodonta africana) has dominated listing debates at many of the CITES Conferences of the Parties. Originally listed on Appendix II (unlike the Asian
104 Timothy Swanson, ‘Developing CITES: Making The Convention Work for All of the Parties’ in Hutton and Dickson, above n 24, 134 at 148. 105 Annex 3 to Resolution Conf. 9.24 (as revised at the 12th CoP) provides criteria for split listing, including that the split listing of species in the Appendices should generally be on the basis of national or continental populations, rather than subspecies.
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elephant which has always been an Appendix I-listed species), it was subject to increasingly strict regulation before its listing was changed to Appendix I.
At the Third Conference of the Parties in 1981, Resolution Conf. 3.12 noted that, due to the increasing monetary value of ivory, illegal trade activities had reached a significant level. The Fifth Conference of the Parties approved an ivory quota system under Resolution Conf. 5.12. According to Sand, the international allocation of a quota was, at the time, an “exceptional measure” as there is no reference to a quota system in the Convention.106 At the Seventh Conference of the Parties in 1989, "in the face of mounting evidence of elephant carnage"107 commercial trade in ivory was effectively banned when the African elephant was placed on Appendix I.108
A bloc of southern African range States as well as the People's Republic of China (a major consumer state) took specific reservations to this decision.109 As Ong notes, however, while trade could have continued between these states other major consumer states, including Australia, the European Community and the United States, had introduced a moratorium on commercial ivory importation in May 1989 even before the African elephant was moved to Appendix I. The ivory market collapsed as commercial use was no longer viable.110 China withdrew its reservation to the listing in 1991.111
This may have proved a pyrrhic victory for the more protectionist nations as the ivory win is recognised as mobilising the range states to become more assertive on the
106 Sand, above n 16, 42. Sand adds that the use of a quota system is now “standard practice and is actually beginning to replace the original treaty requirement of a case-by-case no-detriment finding in the granting of permits”. Ibid. See, for example, Resolution Conf. 9.21 ‘The Interpretation and Application of Quotas for Species Included in Appendix I’. 107 Ong, above n 18, at 298. 108 Resolution Conf. 7.9. 109 CITES parties can not take general reservations. They can respond to specific listing decisions: i) when they join the Convention or ii) when the appendices are amended. Those States are then treated as not a Party with respect to international trade in the particular species or derivative (Article XXIII). 110 Ong, above n 18, at 299. See also David Favre, ‘Trade in Endangered Species’ (1990) Yearbook of International Environmental Law 193 at 193-4 111 Favre, id,193.
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international stage to protect their interests in sustainable development of their natural resources.112
The resulting rapid recovery in the elephant population in southern Africa had devastating consequences for both the environment and the rural human population, both of which found it hard to compete.113 Lobbying by some of the range states – including Zimbabwe, Botswana and Namibia – continued over the next meetings of the Parties.
At the Tenth Conference of the Parties in Harare, Zimbabwe, in 1997, the Parties agreed that the elephant populations in those three States could be moved from Appendix I onto Appendix II and a "limited, one-time trade in ivory could take place from these three countries to Japan if specific and strict conditions were first met".114
The downlisting was regulated by Resolution Conf 10.9: 'Consideration of Proposals for Transfer of African Elephant Populations from Appendix I to Appendix II'.115 This provided that all such proposals must be referred to a Panel of Experts.116 The panel is to then report to the Conference of the Parties which then determines whether downlisting can occur. The resolution provides that, in considering the proposal to transfer a population from Appendix I to Appendix II and the necessary conditions to be attached to such a transfer, the Parties shall take into account the report of the Panel of Experts and in particular:
112 Ong, above n 18, 300. 113 See, generally, Makombe above n 85. 114 The Tenth Meeting of the Conference of the Parties (Harare, Zimbabwe 1997), Resolution Conf. 10.8, Decision 10.1. TRAFFIC Network Briefing, 'Ivory trade decisions at the 41st meeting of the CITES Standing Committee', 11 February 1999. Available at
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i) the status of the elephant population in the affected range State; ii) the affected range State's ability to manage and conserve its population effectively; and iii) the affected range State's ability to control trade in elephant ivory. (Conf 10.9 (m))
The conditions agreed to in Resolution Conf. 10.9117 included: improvements to enforcement and control; agreement that proceeds from the one-time sale would benefit elephant conservation; development of international systems to monitor trade in all elephant products; and establishment of a mechanism to halt trade in ivory in the event of non-compliance with the conditions or a proven escalation in illegal hunting of elephants and/or illicit trade due to resumption of legal trade.
In February 1999, the CITES Standing Committee agreed to a one-off export from Namibia and Zimbabwe to Japan as the conditions had been met.118 Export from Botswana was also subsequently approved.119 The three countries auctioned their ivory to Japanese buyers in April 1999 and the entire stock of 49,574 kg of ivory was purchased for approximately $US 5 million.120
Staff from the CITES Secretariat monitored the sale, from pre-auction to the auction itself, the shipment and its arrival in Japan. It reported that all the inspections carried out in Botswana, Namibia, Zimbabwe and Japan satisfied the precautionary undertakings referred to in Decision 10.1, Part A (h).121 A Memorandum of Understanding has now
117 ‘Consideration of Proposals for the Transfer of African elephant populations’. The resolution could go beyond the provisions of the Convention pursuant to Article 14.1 which allows Parties to take “stricter domestic measures regarding the conditions for trade, taking possession or transport of specimens of species included in Appendices I, II and III, or the complete prohibition thereof” (Article 14.1(a)). 118 TRAFFIC, above n 114. 119 The trade was made subject to restrictions and safeguards, including: only specific ivory stocks could be sold and only to Japan which could not re-export them; international and domestic monitoring was to be established in both the African countries and Japan; and further shipments could be halted if there were any problems with this experimental commercial trade. 120 Tom Milliken, TRAFFIC Network Briefing, ‘African Elephants and the Eleventh Meeting of the Parties to CITES’ 2
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been concluded between the CITES Secretariat and the IUCN which details the implementation of MIKE (the Monitoring of Illegal Killing of Elephants project).122
While considered a success in satisfying the stringent regulatory requirements and providing a substantial financial contribution to conservation management in the producer countries concerned, the transaction has still attracted criticism for encouraging trade and renewing the incentive for poaching. Milliken comments that there has been an increase in elephant poaching in some parts of Africa since the 1997 downlisting but this has been in areas experiencing civil unrest. …. [I]t is difficult to establish a causal link between such killing and elephant developments under CITES. In certain areas, a meat trade to provision soldiers or feed tens of thousands of civilian refugees stands behind large-scale elephant killing.123
Concerns regarding poaching led to proposals by Kenya at the 11th Conference of the Parties in 2000 to reinstate a trade ban on all elephant products. At the same meeting Botswana, Namibia and Zimbabwe all tabled proposals for new annual quotas for trade in ivory. South Africa also proposed downlisting its elephant population to Appendix II to allow trade in ivory with Japan, Zimbabwe, Namibia and Botswana. The Parties reached a compromise in which Botswana, Namibia and Zimbabwe withdrew their quota proposals and in response Kenya withdrew its proposal for a complete ban. South
Committee, Lisbon (Portugal), 28 September-1 October 1999, CITES Doc. SC.42.10.2.1. The same report notes that a rigorous inspection and verification process was carried out with the staff travelling to the three exporting countries in Africa and then to Japan to inspect the crates of ivory on arrival and ensure Japan had complied with the registration requirements. The report also noted that, while successful, it had “required a significant amount of human and financial resources from the Secretariat”. Id,para 6. The technical, organisational and financial challenges inherent in setting up a continent-wide monitoring program is discussed in Peter D Walsh and Lee JT White, ‘What It Will Take to Monitor Forest Elephant Populations’ (1999) 13(5) Conservation Biology 1194. 122 ‘Issues relating to species: Elephants’, MIKE Sub-Group Report, Forty-second meeting of the Standing Committee, Lisbon (Portugal), 28 September-1 October 1999, CITES Doc. SC.42.10.2.2. A new budget line – ‘Implementing Elephant Decisions’ – has been created in the CITES Trust Fund to facilitate the project. 123 Milliken, above n 120, 9.
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Africa’s downlisting proposal was then approved but only in relation to a limited trade in non-ivory elephant products, such as hides and live animals.124
At the 12th COP, CITES agreed to proposals by Botswana, Namibia and South Africa to make one-off sales of 20, 10 and 30 tonnes, respectively, from legal stocks of ivory. The ivory was collected from elephants that died of natural causes or as a result of government-regulated problem-animal control.125
Along with the quotas set for hunting of Appendix I species to encourage conservation in range states, as discussed in Chapter two, the concerted attempts to address the complex demands of regulating the trade in ivory show the Parties acknowledging that bans alone will not protect wildlife. The evolution for CITES has been recognition that, to provide a framework for the successful regulation of trade, it had to move beyond a reliance on command and control and encourage the conditions under which use of wildlife is conducted in a sustainable manner.
S4. CITES in the Current International Regime
The main challenge to CITES, and a significant requirement if it is to remain relevant, is the extent to which it can embrace sustainable use as a conservation measure. As widely acknowledged, contemporary environmental law is now considered to be concerned with "the field of sustainable development".126 Have the resolutions and decisions of the Parties to CITES allowed it to meet this challenge?
124 TRAFFIC report, April 2000, ‘Boost for elephant trade monitoring systems’. Available at
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Interpretation of a treaty, according to Article 3.3 of the Vienna Convention on the Law of Treaties,127 shall take into account, inter alia: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation
While firmly within the protectionist clique of the older Conventions, CITES offers a relatively early recognition of the concept of sustainable use via its restrictions on trade in a way to reduce damage to the environment. While the CITES Preamble begins with the recognition that wildlife “must be protected for this and the generations to come”, its objectives need an expansive interpretation to be equated with more recent and positive notions of sustainable use in which it may provide a conservation dividend.
Sustainable use is implied in Article 2.2(a)’s listing requirement for Appendix II species which shall include species which may become threatened “unless trade in specimens of such species is subject to strict regulation in order to avoid utilization incompatible with their survival”. As discussed above, the Convention also provides for the regulation of trade that “will not be detrimental to the survival of that species”128 which is perhaps at best a minimalist sustainable use provision. As what constitutes ‘detriment’ is open to interpretation, it may be sculpted into a position that sits more easily within the aegis of sustainable use.
The resolutions and decisions of the Conferences of the Parties to CITES have also increasingly acknowledged the importance of sustainable use as a possible conservation tool. These can assist interpretation of CITES in a way that reflects the developments in international environmental law, particularly its response to sustainable development as a principle increasingly espoused in international instruments.
Development: Emerging Legal Principles' in W Lang (ed) Sustainable Development and International Law (1995) 53 at 53). 127 8 ILM 679 (1969), in force 1980.
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The Biodiversity Convention came into force in 1993, 18 years after CITES, and reflects the move in environmental philosophy beyond reliance on protected areas and select species to apply conservation principles across the landscape.
The need for interaction between CITES and the Biodiversity Convention was acknowledged in 1997 by CITES Resolution Conf. 10.4: ‘Co-operation and Synergy With the Convention on Biological Diversity’. The Resolution recommends “that the Secretariat investigate opportunities whereby CITES can become a partner in the implementation of appropriate provisions of the Convention on Biological Diversity”.129
The CITES Secretariat has since reported that it is promoting synergy with the Biodiversity Convention and other multilateral environmental agreements.130 The Secretariat notes the “need for a more holistic approach” and provides suggestions for action in what it terms the more ‘practical’ areas of “scientific co-ordination, capacity building and training, compliance, enforcement, fundraising and awareness”.131
Whether ‘synergy’ between the Conventions can progress beyond assertions of a mutual interest depends as much on the response of the State Parties to their obligations as on the text of the two Conventions. The Strategic Plan for the Biodiversity Convention, released to mark its 10 years of operation in 2002, indicates that CITES will have to move some way towards expanding its focus if it is to attain any real synergy with the newer instrument. In its discussion note on the plan, the Executive Secretary of the CBD made the point that as biodiversity loss “is continuing at an unprecedented rate” urgent action is required as such loss “is threatening the very existence of life as it is
128 Articles 3.2(a) and 4.2(a), regulating trade in Appendix I and II species, respectively. 129 The Tenth Conference of the Parties also accepted Decision 10.110 which states: “Continued co- operation between CITES and the Convention on Biological Diversity shall be fostered and this should be extended to include other relevant Conventions.” 130 Synergy Between the Biodiversity-Related Conventions and Relations With Other Organizations, Forty-second meeting of the Standing Committee, Lisbon (Portugal), 28 September-1 October 1999, CITES Doc SC.42.17. 131 Ibid.
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currently understood”.132 The primary action is to recognise the interconnected nature of biodiversity and that “all biodiversity is important”.133 As a consequence, it is asserted that “when it comes to managing biodiversity, focussing on one biome, ecosystem or thematic area alone will not achieve the aims of the Convention”.134
Such an assertion by the CBD presents a direct challenge to the narrow focus of the CITES text. By increasingly placing considerations of the impact of trade in the broader cultural and habitat contexts, as has occurred via the CITES resolutions, there is now more of a chance that CITES can maintain its relevance and a connection with the CBD.
An expert workshop that was convened to promote CITES-CBD cooperation and synergy reported to CITES’ 13th CoP in October 2004.135 It noted that the goals of the two Conventions are "mutually supportive".136 The report considers that, given the "powerful and specific trade measures" of CITES and the "comprehensive policy remit of the CBD", that implementation of both Conventions should be "mutually beneficial". The workshop did, however, recognise divergences between the Conventions and obstacles to achieving synergy, including: different perceptions and approaches under the two Conventions, lack of resources and lack of continuity or stability in national and international institutions. It also noted areas of potential synergy, which included: sustainable use processes, the 'Ecosystem Approach' and 'Coordination of area-based systems of management with species-based systems of management'.137
The Parties to CITES adopted their own Strategic Plan in 2000.138 The purpose of the plan reflects a shift in the Convention's outlook:
132 Executive Secretary, Convention on Biological Diversity, ‘The Convention on Biological Diversity: Ten Years On and the Strategic Plan’ (2001) 4 Journal of International Wildlife Law and Policy 147 at 150. 133 Ibid. 134 Ibid. 135 ‘Achieving Greater Synergy in CITES and CBD Implementation’, CoP13 Doc. 12.1.1. 136 Id, [3]. 137 Id, 6. 138 Strategic Vision through 2005, Annex 1 to Decision 11.1: 'Regarding the Strategic Plan for the Convention', Doc. 11.12.2. Agreed to at the 11th CoP, Gigiri, Kenya 2000.
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The Strategic Plan confirms the recognition by the Parties that sustainable trade in wild fauna and flora can make a major contribution to securing the broader and not incompatible objectives of sustainable development and biodiversity conservation.
Objective 1.1 of the Plan reinforces the development of a more expansive brief for the Convention: To assist in the development of appropriate domestic legislation and policies that encourage the adoption and implementation of social and economic incentives allied to legal instruments that: promote and regulate sustainable management of wild fauna and flora promote and regulate responsible trade in wild fauna and flora promote the effective enforcement of the Convention.
As the resolutions, decisions and meeting reports discussed in this chapter illustrate, the Parties to CITES recognise that they may best meet the challenges posed by the third of the above three aims by an increased focus on the first two aims. This is some distance from the original focus of the Convention and indicates the possibility for CITES to keep pace with an evolving system of international environmental law.
Conclusion
The text of CITES reflects its age and the dominance of a particular environmental ideology and international political and cultural power structure in existence at the time of its drafting. The approach to protection of species by removing them from trade by a blanket listing is now recognised by some as unwieldy and unhelpful in achieving effective conservation.139 In spite of this, CITES is considered a relatively successful treaty. Ong notes that the Secretariat is proactive, monitoring “violations of CITES
139 See discussion in Hutton and Dickson, above n 24. Birnie and Boyle (2002) above n 126, at 630. One of the drafters of the Convention, Harry Messel, interviewed some years later and asked if he would now do things differently affirmed that, with increased knowledge on international trade and means of control he considered the appendix system as “unnecessary”. As cited by RB Martin, ‘CITES and the CBD’ in Hutton and Dickson, above n 24, at 125 at 132.
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provisions effectively".140 Birnie and Boyle acknowledge some of the criticisms of the Convention, particularly regarding its enforcement,141 but also describe CITES as "one of the most effective and important wildlife conventions".142
The Convention’s effectiveness can be at least partially attributed to its relatively narrow focus. As opposed to the relatively nebulous concepts and aspirations of the contemporary conservation ideology that takes account of management and use across the landscape – exemplified by the Biodiversity Convention – CITES provides a relatively more straightforward goal: prohibiting and/or regulating international trade in endangered and threatened species. Its aims are thus quantifiable in a way in which "sustainable use of biodiversity" can probably never be. CITES offers a practical mechanism by which a complex and difficult international problem can be alleviated.143
Should CITES be restricted to just one ‘component’ of the global wildlife regime,144 or should its obligations be 'read up' in the light of the resolutions and its Parties’ stated desire to promote synergy with the Biodiversity Convention. There are a number of international instruments that go beyond the species to encompass broader protective measures. These include Conventions which are also much narrower in scope than the Biodiversity Convention but may combine as part of a more expansive regime with their reference to wildlife and habitat protection. For example, the 1968 African Convention on the Conservation of Nature and Natural Resources145 requires the establishment of ‘special reserves’ for conservation of wildlife and protection of habitat.146 The Convention on the Conservation of European Wildlife and Natural
140 Ong, above n 18. 141 Birnie and Boyle, above n 126, at 625-631. 142 Id,610. See also Lyster, above n 19, at 240. 143 Alan H Schonfeld, ‘International Trade In Wildlife: How Effective Is The Endangered Species Treaty?’ (1985) 15 California Western International Law Journal 111 at 159. 144 As held by Sand, above n 16, at 53. 145 1001 UNTS 4, opened for signature 15 September 1968, in force 16 June 1968. 146 Article III.
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Habitats147 aims to “conserve wild flora and fauna and their natural habitats”148 and Article 4 requires Parties, inter alia, to legislate to “ensure the conservation” of wildlife habitats. The Ramsar Convention requires each State Party to focus on wetlands of international importance to waterfowl in the first instance,149 and to consider their international responsibilities for the conservation, management and wise use of migratory stocks of waterfowl in all listing decisions.150 The Convention on the Conservation of Migratory Species of Wild Animals requires Range States of these species to ‘endeavour' to conserve and/or restore habitats important to their survival; “prevent, remove, compensate for or minimise” serious impediments to their migration; and “prevent, reduce or control factors that are endangering or likely to further endanger the species”.151
Although I am not in support of the argument for it to be contained to a narrower role as trade regulator, maintaining an unambitious brief is an understandable position, considering the greater likelihood of such an objective being fulfilled. If CITES is thus left to maintain a narrow focus on trade without placing such trade in context, however, this may become a distraction from the more crucial issue of habitat protection and in fact be counter-productive. With the constant of limited resources and commitment from governments subject to multiple demands from their constituents, it is a reasonable assumption that State Parties will claim a discharge of their international environmental duties by clamping down on trade in threatened species without taking sufficient account of why those species may be threatened. Narrowly drawn agreements provide an expedient target for regulatory and funding attention while addressing habitat protection requires States to confront entrenched proprietorial and land use interests. … the record of states parties in implementing habitat protection measures is generally considered to be less good than that in implementation of permit
147 UKTS No 56. Opened for signature 19 September 1979, in force 1982. 148 Article 1. 149Article 2(2). 150Article 2(6). 151 Article 3(4)(a), (b) and (c).
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systems. States often limit habitat protection to national parks or nature reserves … or do not extend it to certain species.152
The political reality of pragmatic resource expenditure aside, if decisions regarding individual species are not made with an eye to broader environmental issues then those decisions are very likely to be undermined. The CITES regime, if narrowly applied, fails to acknowledge a legitimate plea: that conservation “must move away from single- species decisions that have multiple-resource consequences”.153
The continued development of the Convention via decisions and resolutions agreed at the meetings of the Conferences of the Parties reflects the member States’ recognition of the need to try to reflect changes in the international environmental policy landscape. Sand refers to the institutional changes at CITES such as the establishment of functional committees overseeing specific implementation issues, as illustrating the way in which Conference recommendations, while not legally binding, “have shaped the CITES regime in a manner barely foreseeable at the time of its creation”.154 The Convention text itself can be seen as a framework upon which the resolutions adopted and decisions taken by the Conferences of the Parties have built up a regime to interpret the treaty and facilitate its implementation. The changes discussed in this chapter recognise the minimalist nature of the Convention and the demand for greater detail in its application.155
152 Patricia Birnie and Alan Boyle, International Law and the Environment (1992), 460. See also Farrier and Tucker, above n 132; and David Farrier and Linda Tucker ‘Wise use of wetlands under Ramsar: a challenge for the meaningful implementation of international environmental law’ (2000) vol 12(1) Journal of Environmental Law 21. 153 Makombe, above n 85, at 31. A compelling example is the regulation of the ivory trade, discussed above at 3.1. That the elephant is an icon species (and is, in fact, the CITES icon), raises the suspicion as to whether such considerable effort and expense would have been expended on a fungus suffering at the hands of international trade. This may appear a reductio ad absurdum argument, at least as far as evocation of public support for a species is concerned, but it is not necessarily the case in conservation biology terms. A fungus, like the elephant, can be a ‘keystone species’ within its ecosystem, that is a species, the removal of which “causes a substantial part of the community to change drastically”, as defined by Edward O Wilson, The Diversity of Life (1992) 164. 154 Sand, above n 16, at 35. 155 See Rosser and Haywood, above n 54. Prior to the 11th Conference of the Parties there had been 212 resolutions adopted by the Parties to date with 82 still in force (Ibid).
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The evidence here suggests that a number of the Conference decisions have begun to reshape the substantive implementation of the Convention. These events indicate a potential for a real evolution in the Convention, reflecting that undertaken by much international environmental law: the attempt to grapple with the concept of conservation via sustainable use156 moving beyond traditional modes of protection via preservationist systems as promulgated by the wealthier industrialised nations.
At the 1994 Conference of the Parties, Resolution 9.24 urged the Parties to be “open to using other international mechanisms and instruments” to address proposals for the amendment of the Appendices and the development of management programs “in the broader context of biodiversity”. While this appears an extremely vague suggestion, it is at least part of the ongoing acknowledgement that the CITES provisions must be implemented with a view to more expansive considerations than those extant at the time the Convention came into force.
This process, marking an increasing embrace of conservation via sustainable use, demonstrates that CITES has evolved to the extent that compliance with the Convention may now be presented as vastly different from when it came into force. The thesis will now examine Australia’s response to its international obligations concerning the trade in wildlife to assess whether it has kept pace with this evolution.
156 Apart from CITES, the World Heritage Convention and the Ramsar Convention also demonstrate the evolution of older nature conservation conventions over successive meetings of the Parties in the light of broader, ecosystem-based approached to environmental management. See Farrier and Tucker (1998), above n 152; Farrier and Tucker (2000) above n 152.
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Chapter 6
AUSTRALIA’S REGULATION OF THE WILDLIFE TRADE
This chapter will describe the regulation of commercial use of wildlife in Australia, focusing mainly on the Commonwealth regime. The Commonwealth’s role as regulator of exports makes it the integral player in Australia’s commercial wildlife use; Australia’s small domestic market means that exports are required to drive a viable wildlife operation. The chapter will survey the historical background to regulation then examine the current Commonwealth provisions. A chronological summary of the historic and current Commonwealth controls is provided in Table 1 with a breakdown of the current export legislation set out in Tables 2a and 2b.
S1. Legislative History of Wildlife Management
By the mid 19th Century, every terrestrial mammal with marketable fur was hunted. Marine mammals were harvested indiscriminately.1
There has been regulation of the use of wildlife in Australia since the mid 19th century. It began as a restriction on hunting of game animals with most jurisdictions having a Game Act or Animal Protection Act which listed various native and introduced animals, protected via the application of an 'off-season'. These were prompted by concern for the sustainability of hunting rather than any particular concern for the species themselves.2 The statutes were gradually expanded, listing a wider range of species in their schedules.
1 Stuart Cairns and Richard Kingsford, 'Harvesting Wildlife: kangaroos and waterfowl' in RA Bradstock et al (eds) Conserving Biodiversity: Threats and Solutions (1995) 260, 260, citing AJ Marshall, 'On the disadvantages of wearing fur'', in AJ Marshall (ed) The Great Extermination (1966) 9. 2 The preamble to the Animals Protection Act 1879 (NSW) begins: “Whereas it is expedient to encourage the importation and breeding of Game not indigenous to the Colony of New South Wales and also to prevent the destruction of Native Game during the breeding season…”
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For example, in 1867 Victoria's Game Act provided for a single off-season, from August 1 until November 30. The Second Schedule, which set out the species to which off-seasons could apply, listed 'native game' which comprised birds only.3 In 1890 the new Game Act remained focused on birds with one notable exception: the 'native game' listed in Schedule Three to the Act included platypus.4 This was listed with 16 native birds for which hunting was effectively prohibited, as their off season was 'the whole year'. Another 32 bird listings on the 'native game' schedule were protected for up to seven months each year. Tasmania,5 NSW6, South Australia7 and Queensland8 all followed Victoria's lead and introduced or amended legislation to protect a range of native fauna by the early 1900s. The Commonwealth introduced regulations in 1911.9
An increasing appreciation of native wildlife by the Australian population – and its politicians – led to a gradual expansion in the application of protective legislation. By 1915 Victoria's new Game Act had included black-faced, large grey and large red kangaroos, native bears (koalas), opossums, platypus, echidnas and seals in its 'whole year' off-season, along with 44 bird listings. Partial protection was provided for another 12 birds or bird families as well as black-tailed and red-bellied wallabies.
The raft of protective legislation was, however, of little effect, with continued massive levels of exploitation.
3 The schedule listed wild ducks, teal, bittern, emu, wild turkey or bustard, black swans, wild geese, wild pigeons, mallee hen and 'native companions' (cranes). 4 Note the date for the first protection of native mammals in Australia has been given as later than this – 1899 – in recent summaries of the history of wildlife legislation in Australia. See John Ley, Australia's Protection and Conservation of Wildlife (1992) 9. 5 The Game Protection Act 1895 [Tas] prescribed a closed season and licensed takings of opossum, flying squirrels, Brush and Forresters kangaroos and deer. It also required a licence to "keep a pack of hounds for hunting kangaroo or deer". Earlier Game Acts had applied only to game birds. 6 Native Animals Protection Act 1903 (NSW) . This provided either a closed season or prescribed periods of absolute protection for fauna listed in its schedule which, in 1903, comprised red kangaroos, wollaroos, koalas, wombats, platypus, echidna, sugar squirrels and flying opossum. 7 Animals Protection Act 1912 (SA) 8 Animals Protection Act 1901 (Qld). 9 The Customs Act 1901 (Cth) was amended in 1910 to allow the Governor General "by proclamation [to] prohibit the exportation of any goods the prohibition of which is, in his opinion, necessary for the preservation of the flora and fauna of Australia" (s112(1)(c)).
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As far back as 1906 appalling faunal destruction is indicated by the fact that over four million possum and 60,000 wallaby skins were marketed that year in London and New York alone. In 1924, the colossal total of over two million koala skins was exported; .... More recently, during the Queensland open season of 1927 approximately 600,000 koalas were massacred by 10,000 licensed trappers... 10
These figures from Ellis Troughton, the then curator of mammals at the Australian Museum, are provided as part of what is a fascinating insight into the ways in which our attitudes to wildlife must be recognised as products of their time. The scale of change in Australian society’s attitude to its fauna is starkly illustrated when one considers what the response would be, 80 years later, to a suggestion that native fauna, particularly the koala, could by hunted on such a scale. The figures also provide a sobering reminder of the devastation that may flow from a purely instrumental regard of wildlife. The protectionist reaction to such exploitation is understandable in the circumstances. The situation in the 1920s is, however, a long way from the proposals for conservation via sustainable use, as discussed throughout this thesis, in which environmental concerns are prominent and are also often informed by a strong respect for a range of values in wildlife.11
The koala had attracted protective concern from politicians from the turn of the century, as demonstrated in the NSW Parliamentary debates in 1904 on the need for legislation to protect native animals. Yet such concern was not applied on a broad scale. For example, Troughton himself bemoans the depletion of the 'utterly harmless' koala, which "seeks only the freedom of the trees" but is subject to continued slaughter for economic gain.12 This is promptly followed by his observation that:
10 Ellis Troughton, Furred Animals Of Australia (first published 1941, 7th ed, 1962) xxvi. 11 The change in the way we value and regard nature, described by some as ‘extensionism’, has expanded our perspective as to which entities can attract moral consideration. This has been documented by many environmental ethicists. See, for example, Robert Elliot (ed) Environmental Ethics (1995). Elliot summarises the commentary in his Introduction to the text. The debate as to the proper form of that regard and the objects of such consideration, is set out in Chapter Two of the thesis. 12 Troughton, above n 10, xxvi.
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By way of omission, on the contrary, there has been a prolonged national neglect of far more legitimate fields for controlled economic exploitation of the fur-seal and whaling resources of our southern shores and adjacent Antarctic seas.13
That a museum curator writing on fauna protection, could propose that Australia was remiss in neglecting potential whale and seal markets is a further stark reminder of the sea change in public attitudes and what may have been considered appropriate behaviour in regard to wildlife. An earlier example comes from a 1926 letter with regard to the 1927 visit of the Duke of York to Western Australia. A ‘Lieutenant- Colonel Le Souef’ of the Zoological Gardens in Perth proposed to Senator Pearce, State Director of the Royal Visit, that: … a day’s kangaroo shooting in the hills here might appeal to His Royal Highness…14
Control on the hunting of koalas was stepped up in the 1920s. The then United States President Herbert Hoover appears to have played some role when he prohibited imports of koala skins after being approached by the Wildlife Preservation Society of Australia.15
Ley notes that it was in response to the failure of the State legislation to provide effective protection that the Commonwealth instituted export controls on trade in native fauna in 1921.16 The 1921 controls prohibited the export of certain live native animals and skins without the permission of the Trade and Customs Minister. There were
13 Ibid. 14 From Lieutenant-Colonel E.A. Le Souef, Zoological Gardens, South Perth, to Senator Pearce, 30/9/1926. Author’s archival research. National Archives of Australia: Series no. A6680/1; Item no. DY 23/3. Copy of letter with the author. 15 Telegram from David Stead, founder of the Australian Wildlife Society, to University of London Animal Welfare Society, requesting their assistance for a similar prohibition by the British Government, 28 June 1936. Author’s archival research. National Archives of Australia: Series no. A461/7; Item no. E305/1/1. Copy of telegram with author. This is confirmed by the comments of the then president of the Wildlife Preservation Society, Vincent Serventy, in ‘The Conservation history of the koala with special reference to the work of the Wild Life Preservation Society of Australia and the state of Gould Leagues’ in D Lunney, CA Urquhart and P Reed (eds), Koala Summit, Managing Koalas in New South Wales (1990) 170. 16 Ley, above n 4.
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exceptions for the skins of ‘native cat’, kangaroo, Ring-tailed possum and Brush-tailed possum. The increasing Commonwealth role in exports was an early source of jurisdictional tension over environmental concerns.
In 1924, the Commonwealth directed Customs officials in each State to “refuse any applications for purely commercial purposes” for the export of Australian birds and animals, although dingoes were exempted from the prohibition.17
This was followed up in 1925 with a memo directing Customs officials to permit commercial exports of birds “regarded as pests and which are totally unprotected under State Law”.18 A further relaxation for exports in 1928 provided for small scale exports: single specimens of common birds could be taken by passengers or members of crews while protected or partly protected fauna could be exported between ‘recognised Zoological Societies’. There were no export restrictions on unprotected birds and animals, which were regarded as pests although transportation was to be ‘under humane conditions’.19 In the following year, the regulations were amended to allow for limited exports of kangaroos and wallabies bred in captivity.
The gradual expansion in permitted exports was checked over the next few years. Permits were not to be granted under any circumstances for the export of Tasmanian Tigers, or their skins or skeletons, koalas, platypus, lyre birds and other rare birds as specified by the Commonwealth.20
17 Roger Beale, Department of Environment Sport and Territories, Submission to the Senate References Committee Rural and Regional Affairs and Transport On The Inquiry Into Commercialisation of Australian Native Wildlife (1997) 51. The South Australian Government stated its displeasure at the prohibition on the export of marsupial skins from Kangaroo Island “where some of those animals are such a nuisance to the settlers that the Government proclaims an open season to permit their destruction”: Author’s archival research. Letter from the Premier of South Australia to the Prime Minister of Australia, May 9, 1924. National Archives of Australia: Prime Minister’s Department, Series no. A364/2. Copy with author. 18 Id, 51. 19 Id, 52. 20 Ibid.
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In 1935 the Customs (Prohibited Exports) Regulations were expanded to cover all wild fauna. Under cl 7, they prohibited from export without the consent of the Minister: Animals and the skins thereof, other than domestic animals and the skins thereof. Birds and the plumage, skins, eggs and egg shells thereof.21 This was amended in 1953 to apply only to fauna native to Australia.
There were isolated exports of live kangaroos to private individuals up until the complete prohibition in 1960. Although a protected animal, exports were approved on rare occasions if “the bona fides of the consignee had been established”.22 According to the New South Wales Premier’s Department, in response to a private request from the United States in 1939, Red or Grey kangaroos cost approximately £25 per pair.23 The Department had no objection to the export, provided a reference was obtained from a local game authority stating that the individual “desires the kangaroos for his own private use and that the animals will be kept in suitable surroundings”.24
In a 1947 memo from the Commonwealth Department of Trade and Customs, regarding a request by a South Australian resident to export a kangaroo, the Comptroller-General noted that the Premier of South Australia should be informed that “in administering the export restriction on Australian fauna, the Department of Trade and Customs has been guided generally by the advice of the State Government concerned”.25 He added that there would be no objection by the Commonwealth to the export if the South Australian Government also had no objection and “the Collector of Customs was satisfied that the animal was housed adequately and assured of humane treatment on the voyage”.26
21 As specified in the Fifth Schedule to the regulations. 22 Author’s archival research. Letter from NSW Premier’s Department to the Prime Minister’s Department, 4 October 1939. National Archives of Australia, Series no. A461/7, Item no. E305/1/1. Copy with author 23 Ibid. 24 Ibid. 25 Author’s archival research. Memorandum to the Prime Minister’s Department from the Department of Trade and Customs, 4 August 1947. National Archives of Australia: Series no A461/7, Item no. E305/1/1. Copy with author. 26 Ibid.
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After 1960 live exports to individuals were stopped, although there appears to have been a diplomatic exception. In 1963 a pair of breeding kangaroos was sent to President Nkruma of Ghana at his request “for his private menagerie in Accra”.27
1.1 Jurisdictional issues
The cooperative approach noted in the 1947 South Australian example above, appears as an exception to the ongoing tense relations between the Commonwealth and State Governments concerning environmental regulation, from the early days of wildlife exports onwards.
Under Australia’s federal system of government, environmental regulation derives from both the Commonwealth and the State Parliaments. The Commonwealth’s powers are restricted to those set out in the Australian Constitution, which makes no specific reference to the environment (except for s 100 which restricts the power of the Commonwealth to make a law limiting ‘the reasonable use of waters of rivers for conservation or irrigation’). Despite the absence of a plenary environmental power under the Australian Constitution, the Commonwealth has been able to rely on various other heads of power to regulate the environment, even those with no apparent environmental underpinning.
This has been the subject of considerable controversy as far as Commonwealth-State relations are concerned,28 given that the Commonwealth has been able to use what may have been regarded as ostensibly non-environmental powers to make decisions with regard to protection and conservation. Further, pursuant to s109 of the Constitution,
27 Author’s archival research. Letter from the Prime Minister’s Department to the CSIRO Division of Wildlife Research, 3 June 1963. National Archives of Australia: Series no. A9696/1, Item no. M3/6. Copy with author. Apparently the female of the pair died shortly after arrival and President Nkruma asked for a replacement. His request was forwarded to the CSIRO. Letter from the Prime Minister’s Department to the CSIRO Division of Wildlife Research, 24 March 1964. 28 See discussion in Michael Coper, The Franklin Dam Case (1983); PH Lane, ‘The Federal Parliament’s External Affairs Power; The Tasmanian Dam Case’ (1983) 57 Australian Law Journal 554; Philip Toyne, The Reluctant Nation (1994); Donald Rothwell and Ben Boer, ‘From the Franklin to Berlin’ (1995) 17 Sydney Law Review 242.
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where such powers are validly enacted by the Commonwealth, such laws shall prevail over any inconsistent State legislation and the State law is rendered invalid to the extent of the inconsistency. The States have regularly challenged these incursions into what was considered to be their sole jurisdiction but a number of High Court decisions have firmly entrenched the Commonwealth’s approach.29
As far as the international trade in wildlife is concerned, the Commonwealth can draw on various heads of power. The Commonwealth is responsible for the implementation of international environmental law via its power to make laws with respect to external affairs30 and therefore has the potential for significant legislative activity at a national level in its response to CITES. Its jurisdiction also covers all applications to import and export wildlife specimens pursuant to s51(i) of the Constitution under which it has the authority to regulate trade and commerce with other countries, and among the States. As the small size of the Australian market often demands that exports are required to make local industry viable, then the Commonwealth can wield significant influence in wildlife management policy within the States.
The Commonwealth has not been keen to flex its constitutional muscle in regard to the heads of power that provide it with a de facto environmental jurisdiction.31 Instead it has generally maintained a policy of “cooperative federalism” which may be politically realistic, in the face of entrenched opposition from the States to an increased role for the Commonwealth in environmental affairs.32
29 Most notably the Tasmanian Dams case, Commonwealth v Tasmania (1983) 158 CLR 1, which confirmed the Commonwealth’s legislative capacity in the implementation of matters of international environmental concern; and Murphyores Incorporated Pty Ltd v The Commonwealth (1976) 136 CLR 1 in relation to the Commonwealth using environmental concerns to inform export decisions pursuant to its trade and commerce power. 30 Australian Constitution, s 51(xxix). 31 See Philip Toyne, The Reluctant Nation (1994); David Farrier and Linda Tucker 'Beyond a Walk In The Park: The Impact of International Nature Conservation Law on Private Land in Australia' (1998) 22 Melbourne University Law Review 564 at 571 ff. 32 The 1992 Intergovernmental Agreement on the Environment (IGAE) enshrined the cooperative federalism approach, articulating the traditional Commonwealth-State demarcation in relation to environmental jurisdiction:
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In an early example of the States’ hostility, a Commonwealth request in April 1924, that the States refer applications for the export of marsupial skins to a State Advisory Committee, was universally rejected.33 The Premiers’ responses, in April and May 1924, were as follows:
• Queensland: “… this Government…. cannot agree to the request.”34 • Victoria: “… this Government is of the opinion that no good purpose would be served by referring such applications to the Advisory Committees [sic], but that the best way of dealing with this matter is by the vigorous administration of good game laws in the various States.” 35
• Tasmania: “… my Government is of the opinion that it is not desirable…”36 • South Australia: “… this Government strongly object (sic) to the Advisory Council dealing with applications for permits to export marsupial skins, or indeed the skins of any native birds or animals taken in accordance with State laws.”37 • Western Australia: “… action in such direction is not desired by my Government, which is unable to see that any good purpose would be served by adopting the proposal referred to”.38 • New South Wales acknowledged that matters of export are “wholly for the Commonwealth Government to determine” but added: “legitimate trade should not be restricted in this State if an identical policy be not followed in the other States”.39
A State-centred export process was introduced in 1933 in which export applications could be approved by State authorities, subject to final acceptance by the Federal
Each State has responsibility for the policy, legislative and administrative framework within which living and non living resources are managed within the State. (IGAE cl 2.3.2.) 33 Author’s archival research. The original letter from the Commonwealth was not found but its content is judged here from the responses of all the State Governments to this same ‘circular’ letter sent on April 12, 1924. National Archives of Australia: Prime Minister’s Department, Series no. A364/2. Copies of the State responses are with the author. 34 WN Gillies, Acting Premier of Queensland, 17th April, 1924. 35 Harry Lawson, Premier of Victoria, 7th May 1924. 36 Joseph Lyons, Premier of Tasmania, 5th May 1924. 37 John Gunn, Premier of South Australia, 9th May 1924. 38 Phillip Collier, Premier of Western Australia, 19th May 1924.
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Minister.40 However, by 1959 the Commonwealth Government called for common policies to be developed as the differences between the States were causing difficulties. For example, whilst kangaroos were considered a menace in some States they were protected in Victoria; the Regent parrot was declared vermin in South Australia, but was protected in Victoria; the Bald-headed Coot was considered a pest in the Murrumbidgee area of NSW, but was protected in other parts of the State.41
In 1962 CSIRO Wildlife Chief Harry Frith sent a memorandum to the Prime Minister, calling for a Commonwealth conservation agency. His concern was that, without a Federal Government organisation taking an overall interest, events in one State could “seriously jeopardize the survival of some species of birds and animals throughout the entire continent, and under the present arrangements these actions are taken by the States without reference to their neighbours or the Commonwealth”. 42
This was finally answered with the creation of the Australian National Parks and Wildlife Service in 1975. The enabling legislation for the Commonwealth’s new national parks service recognised the need for Commonwealth-State cooperation in wildlife protection. Section 19(1)(b) of the National Parks and Wildlife Service Act 1975 (Cth) provides:
(1) The Director may: … (b) co-operate with a State or the Northern Territory or with an authority of a State or of the Northern Territory in formulating and implementing programs for the purposes of the protection, conservation, management and control of wildlife.
39 (Unnamed official), Acting for George Warburton Fuller, Premier of NSW, 5th May 1924. 40 Beale, above n 17, at 52. 41 Id, 53. 42 Author’s archival research. HJ Frith, Chief of the Wildlife Division, CSIRO, Memorandum to the Prime Minister’s Department, 29 August 1962. National Archives of Australia, Item no. M3/6. Copy with the author.
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S2. The Current Commonwealth Regime
The Customs (Prohibited Export) Regulations 1935 (Cth) governed export of wildlife until 1976 when the Endangered Species Regulations were promulgated under the Customs Act 1901 (Cth) as the domestic response to CITES.43 They were in force until 1984 when all previous controls were consolidated in the Wildlife Protection (Regulation of Exports and Imports) Act 1982 (Cth) (WPA) that implemented CITES and was regarded as among the toughest legislation of its kind in the world.
The WPA was then repealed by the Environment Protection and Biodiversity Conservation Amendment (Wildlife Protection) Act 2001 which came into force in January 2002. The Environment Protection and Biodiversity Conservation Act 1999 (hereafter ‘EPBC Act’) had come into force as omnibus legislation in July 2000. As a result of the 2001 amendment Act, it incorporated the amended provisions of the WPA by the addition of Part 13A – International Movement of Wildlife Specimens.
Part 13A is administered by the Wildlife Protection Section within the Federal Government's environmental agency the Department of Environment and Heritage.44 The objects of the Part are set out in section 303BA (1): (a) to ensure that Australia complies with its obligations under CITES and the Biodiversity Convention; (b) to protect wildlife that may be adversely affected by trade; (c) to promote the conservation of biodiversity in Australia and other countries; (d) to ensure that any commercial utilisation of Australian native wildlife for the purposes of export is managed in an ecologically sustainable way;
43 The Prohibited Export Regulations maintained their reference to the export of native animals until a 1984 amendment (Prohibited Export Regulations, Statutory Rule no.63, 1984) when the WPA came into force. 44 The Australian National Parks and Wildlife Service implemented the Wildlife Protection Act from when it came into force in 1984 until 1996 when Environment Australia (now the Department of Environment and Heritage) was established by the Federal Government. Prior to 1984, the Bureau of Customs was responsible for export and import of wildlife under the Customs (Prohibited Export) Regulations.
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(e) to promote the humane treatment of wildlife; (f) to ensure ethical conduct during any research associated with the utilisation of wildlife; (h) to ensure that the precautionary principle is taken into account in making decisions relating to the utilisation of wildlife.
This is a more expansive set of objects than those found in the WPA, which were: “to comply with the obligation of Australia under [CITES] and otherwise to further the protection and conservation of the wild fauna and flora of Australia and of other countries”.45 The WPA predated the Biodiversity Convention and also showed its age by the absence of any references to sustainable use.
The EPBC Act, like the WPA before it, regulates export of all native Australian wildlife specimens and the export and import of all endangered and threatened wildlife.46 Animal specimens are defined under s527A(1) of the EPBC as: a) an animal; or animal reproductive material; or b) the skin, feathers, horns, shell or any other part of an animal; or c) any article wholly produced by or from, or otherwise wholly derived from, a single animal.
Part 13A of the EPBC Act separates the regulation of CITES specimens (Division 2) and ‘regulated native specimens’ (Division 3). The export regime is set out in Tables 2a and 2b, at the end of this chapter.
There is a broad distinction in the export provisions that apply to exports of native species that has carried over from the WPA, whereby invertebrates and fish do not enjoy the same degree of protection as accorded all other native wildlife, that is,
45 Sect 3. 46 This includes those specimens that might become threatened with extinction if subject to unregulated international trade or those difficult to distinguish from any such species.
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mammals, birds, amphibians and reptiles. The main distinction is that there can be live commercial exports of invertebrates and fish but not of any other specimens.47
One of the changes cited as a significant improvement on the WPA, is that permits are no longer needed for trivial cases, for example, the “export of a moulted feather”.48
2.1 Division 2 of the EPBC Act – Cites Specimens
The EPBC Act provides for a list of all the species listed on Appendices I, II and III of CITES (cl 303CA), including CITES-listed native Australian species. Division 2 then regulates the export and import of those CITES specimens, and is a “mirror” of the Convention’s structure and language.49 Where a CITES species is an Australian native species, a permit issued under Division 2 will be sufficient for the purposes of any additional permits required under Division 3 or 4.50
There is an absolute prohibition on live commercial exports of all native mammals, amphibians, reptiles and birds, whether or not they are CITES listed and whether or not bred in captivity.51 This goes beyond the requirements of CITES. Under the Convention, Appendix I species cannot be exported for ‘primarily commercial purposes’ but, if bred in captivity, they may be treated as Appendix II species, which allows regulated commercial trade. The Convention makes no reference as to whether traded specimens are live.
47 The concerns regarding live exports centre on the welfare of the animals , environmental impact (in the importing country) and the effect on smuggling of wildlife. The debate is discussed in the following chapter. 48 Example provided in the Second Reading speech to the EPBC Amendment Bill by Senator Ian Campbell, Hansard Parliamentary Debates, Senate, Thursday 24 May 2001, 24270. 49 Environment Protection and Biodiversity Conservation Amendment (Wildlife Protection) Bill 2001, Explanatory Memorandum, 3. Available at:
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Section 303CC prohibits the export of CITES-listed specimens unless export is subject to a permit52 or is exempt because it is either: A registered non-commercial exchange of scientific specimens between scientific organisations;53 or Of a specimen acquired before the provisions of CITES applied (ie, before it was listed on the appendices – such export is at the discretion of the Minister)54; or a specimen that is a ‘personal or household effect’.55
Permits are issued pursuant to conditions as set out in ss303CG(3). As Table 2a shows, Appendix I species may be exported commercially if they are from non-native species.
The Minister “must be satisfied” that the action specified in the permit application meets detailed conditions. The conditions are more comprehensive than those provided under the WPA, reflecting developments in conservation thinking which place individual species in the broader context of their ecosystems and habitats. Under the previous legislation, all permits to export specimens were simply subject to a requirement that the export “not be detrimental to, or contribute to trade which is detrimental to, the survival of any species or sub-species; or any population specified in Schedule 1, 2 or 3”.56 The equivalent section in the EPBC now states:
The Minister must not issue a permit unless the Minister is satisfied that: the action or actions specified in the permit will not be detrimental to, or contribute to trade which is detrimental to: i) the survival of any taxon to which the specimen belongs; or ii) the recovery in nature of any taxon to which the specimen belongs; or
52 Sect 303CC(2) 53 Sect 303 CC(3) 54 Sect 303 CC(5). 55 Sect 303 CC(6). This introduces into Australian legislation one of the exemptions that was already present in CITES. It does not include pets.
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iii) any relevant ecosystem (for example, detriment to habitat or biodiversity)57
For a permit to be granted, the export must be either an “eligible non-commercial purpose export”58 or be subject to specific commercial purpose criteria.59
2.1.1 Non-commercial purposes Sect 303CG(3)e)(i) provides that, where a permit is issued for a non-commercial purpose export it must be an eligible non-commercial purpose as listed under s303FA. These comprise: 1. Research (as defined in s303FC) 2. Education (as defined in s303FD) 3. Exhibition (as defined in s303FE) 4. Conservation breeding or propagation (as defined in s303FF). 5. A household pet (as defined in s303FG) 6. A personal item (as defined in s303FH) or 7. Specimens for a travelling exhibition (as defined in s303FI).
The definitions provide detailed criteria for exports according to the different categories. For example, s303FC (1) defines export for research purposes: (a) the specimen will be used for the purpose of scientific research; and (b) the objects of the research are covered by any or all of the following subparagraphs: (i) the acquisition of a better understanding, and/or increased knowledge, of a taxon to which the specimen belongs; (ii) the conservation of biodiversity; (iii) the maintenance and/or improvement of human health; and (c) the export is not primarily for commercial purposes; and
56 WPA, s25. 57 Sect 303CG(3)(a) 58 Sect 303CG(3)(e)(i) 59 Sect 303CG(3)(e)(ii)
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(d) such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.
While the above sections are stated as regulating ‘non-commercial purposes’, all contain the requirement that the export is “not primarily for commercial purposes”. (Emphasis supplied.) The Act does not clarify this but the explanatory memorandum addresses it as follows: Non-commercial refers to the export or import of a specimen that is not primarily for the purposes of sale or trade. Commercial organisations such as zoos which (for example) charge entrance fees for exhibitions, will be able to import or export specimens under one of the primarily non-commercial categories as long as the primary purpose of the import or export is non- commercial… However, a permit will not be granted where commercial interests motivate the transaction… 60
The issue, then, is one of motivation and this can be a question of degree, leaving the decision maker – and the courts – with a delicate balancing exercise.
2.1.2 Commercial purposes As noted, there is an absolute prohibition on live commercial exports of all native mammals, amphibians, reptiles and birds, regardless of the CITES appendix on which they are listed and whether or not bred in captivity. Sect 303CG(3)e)(ii) provides that commercial exports meet the relevant conditions set out in a table under s303CH, items 2(a) and 4(a)61 of which require that “the specimen is not a live native mammal, a live native amphibian, a live native reptile or a live native bird”. See Table 2a below.
Under CITES, Appendix II species – either captive bred or from the wild – may be commercially exported. The Convention makes no reference as to whether traded specimens are live. Appendix I species cannot be exported for ‘primarily commercial purposes’ but, if bred in captivity, they may be treated as Appendix II species, and so
60 Explanatory Memorandum, above n 49, at 3. (Emphasis supplied.)
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may be subject to regulated commercial trade. Again there is no stipulation that the specimens are not live. See discussion in the following chapter.
The EPBCA does, however, reflect the Convention on these grounds in relation to non- native CITES species: all non-native CITES listed specimens may be exported live for commercial purposes if they are captive bred. (Presumably there would be limited application of provisions for the commercial export of non-native CITES-listed animals from Australia.) To summarise: Commercial exports of native, CITES-listed specimens will only be permitted where they are not live animals AND: Appendix I: if they are captive bred; Appendix II: if they are either from an approved captive breeding program, or exported in accordance with an approved wildlife trade operation or an approved wildlife trade management plan.
The commercial export prohibition imposed on all live native vertebrates applies in spite of the fact that some Appendix II species are abundant and may be subject to culling because of their declared pest status. For example the psittaciformes order of birds – which includes common Australian species such as cockatoos, galahs and corellas – is listed on Appendix II to CITES (with a number of exceptions, including the budgerigar).
This means that a live galah can only be exported on a non-commercial basis. For example, it can be exported as a pet62 or for other eligible non-commercial purposes as provided under s303FA, including conservation breeding or research. A galah specimen, other than a live galah, can be exported commercially if the specimen was derived from a live animal bred in captivity. A specimen may be derived from a galah taken from the wild but only pursuant to an approved CITES-registered captive breeding program and there is none at present for the galah.63
61 Applicable to Appendix I and II respectively. 62 Sect 303FG (4) provides for a list of native household pets that may be exported. 63 Sect 303FJ(a) and s 303FK.
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Proposals to amend the export regulations to allow for live exports of native birds and reptiles are examined in the following chapter.
2.2 Division 3 of the EPBC Act – regulated native specimens
This division prohibits without a permit the export of all regulated native specimens, which are defined as those that are not listed as ‘exempt native specimens’.64 It largely applies the same provisions as those applicable to Appendix II species under Division 2. See Table 2b. The absolute prohibition on the commercial export of live mammals, birds, reptiles and amphibians applies.65
This Division works in tandem with Division 2 for native specimens that are also CITES-listed. For example, its permit conditions under s303DG(4) relating to ecological and welfare issues relate to all native specimens, including those listed under CITES (as provided in Division 2, under s303CG(h)).
Exports of native specimens that are not CITES-listed must meet the same permit requirements as applicable to Appendix II. That is, commercial exports must come within one of the categories provided under S303FJ: being a specimen from a captive breeding or aquaculture program or in accordance with a wildlife trade operation or management plan; and non-commercial exports are subject to the provisions of s303FA.
64 Sect 303DA. The Minister must establish a list of exempt native specimens. The species comprise those that were previously listed under Part I Schedule 4 of the WPA and can be exported without the permit restrictions that otherwise apply under the Act (s303DB). (There is no definition as to why a species may be considered ‘exempt’.) There is no permit requirement for exports of such specimens but certain conditions still apply and there are different categories of exemption. For example, live commercial exports of barramundi, certain marine fish and invertebrates are allowed. There is also a limited permit exemption for the non-commercial export of non-live specimens of certain species where it is the personal property of the person leaving Australia. This applies to western grey, eastern grey and red kangaroos; whiptail, euro, bennet's and rufous wallabies as well as captive-bred emus. Manufactured articles from saltwater and freshwater crocodiles, despite being listed on Appendix II, are also listed here but are exempt only where they are from populations bred in captivity or taken under an approved management program and are a personal effect. They cannot be exported for any commercial purpose and must have a ‘Personal Effects Permit Exemption label’. 65 Sect 303DG(3).
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The permit requirement does not apply where the export is for the non-commercial exchange of scientific specimens between scientific organisations66 or where an ‘accredited wildlife trade management plan’ is in force.67 This new provision allows for Commonwealth accreditation of State wildlife management plans where they are demonstrated to be “truly world’s best practice”.68 The plans will be in force for five years unless otherwise specified.69 The plans cannot apply to native specimens that are also CITES-listed, eligible listed threatened species or live native mammals, reptiles, amphibians or birds. Live terrestrial invertebrates and freshwater fish may be exported under such plans if the export is from an approved aquaculture program. Conditions for approval are provided under s.303FP. The plans must include monitoring of the harvesting and exports as well as the status of the species concerned and the impacts of these activities on the relevant habitat.70 Statistical reports must also be made to the Minister on a regular basis.71
If a native specimen belongs to an ‘eligible listed threatened species’,72 ss303DG(7) and (8) apply. Section 303DG(7) provides that any commercial export can only be from an approved captive breeding or aquaculture program.
Section 303DG(8) sets out specific non-commercial purposes, which are more narrowly drawn than those applying to CITES listed specimens in Division Two. They comprise only: research, education, exhibition and conservation breeding. This excludes export of pets or personal items or exports for a travelling exhibition, all of which are permitted for CITES specimens.
66 Sect 303DD(4). 67 Sect 303DD(3). 68 Second Reading speech, EPBC Amendment Bill, Parliamentary Debates, Senate, Hansard, Thursday 24 May 2001, 24271. There was no accredited plan in force as at May 2006. 69 Sect 303FP(4). 70 Sect 303FP(3)(e). 71 Sect 303FP(3)(f). 72 As listed pursuant to s179 of the EPBC Act. Information on listed threatened species is available at:
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2.3 Wildlife Trade Management Plans
Non-live native specimens can be commercially exported in accordance with a “wildlife trade management plan” or a “wildlife trade operation”.73 Where such plan is in place, specimens may be taken from the wild or from an approved captive breeding program.74
Wildlife trade management plans are regulated by s303FO.75 The EPBCA has more extensive criteria than the WPA regime, the most notable additions being the requirement for environmental impact assessment and the expansion of the area of relevant concern beyond “species, sub-species and habitat”76 to cover “any relevant ecosystem (for example, impacts on habitat or biodiversity)”.77 Section 303FO(3)(b) provides: The Minister must not declare a plan under subsection (2) unless the Minister is satisfied that: (b) there has been an assessment of the environmental impact of the activities covered by the plan, including (but not limited to) an assessment of: (i) the status of the species to which the plan relates in the wild; and (ii) the extent of the habitat of the species to which the plan relates; and (iii) the threats to the species to which the plan relates; and (iv) the impacts of the activities covered by the plan on the habitat or relevant ecosystems
73 As noted above, non-live exports of Appendix I specimens can only be from approved CITES- registered captive breeding programs. 74 Sect 303CH (Item 4 of table). 75 See also s 303FT with regard to the Minister’s declarations. 76 As was required under subreg 5(1) of the Wildlife Protection (Regulation of Exports and Imports) Regulations, 1984. 77 Under WPA’s regulations, management programs could be approved if the Minister was satisfied that there is "sufficient information concerning the biology and ecology of each species" and that the harvesting program will "be carried out so as to maintain the species or sub-species in a manner that is not likely to cause irreversible change to, or long-term deleterious effects on, the species or sub-species, or its habitat".
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Existing management programs78 cover the harvesting of:
Freshwater and saltwater crocodiles in Western Australia; Saltwater crocodiles in the Northern Territory;79 Bennetts Wallabies and Tasmanian Pademelons in Tasmania; Red and Western Grey kangaroos in Western Australia; commercially taken macropods in Queensland; and kangaroos in New South Wales and South Australia.80
Recent notable additions include:
Tree ferns in Victoria and Tasmania;81 Protected and threatened plants in the cut flower industry in NSW;82 Protected Flora in Western Australia;83 Flora in Queensland.84
The significance of these plans is that they are the first to apply to plants.
78 The relevant management plans and ministerial declarations are available at
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2.4 Wildlife Trade Operations
A wildlife trade operation may be declared as an interim measure for small scale harvesting or trading that is being developed or tested, or for a commercial fishery. This replaces the controlled specimens provisions added in the 1991 amendments to the WPA to address situations where it is inappropriate to require a management plan unless and until the operation proceeds on a more significant scale.85
Eligible operations are those defined exhaustively by s303FN(10). They can be for market testing or development; small scale or provisional operations; other operations specified in the regulations, or a commercial fishery. It is not made clear why commercial fisheries do not require management plans.
The replacement of the WPA’s Controlled Specimens provisions by Wildlife Trade Operations under s303FN of the EPBC86 has removed a significant distinction that existed between the Controlled Specimens and Management Programs. Under the old regime, the Minister was only required to “take into account” certain matters in relation to the proposed export of a ‘controlled specimen’.87 This was a much greater degree of discretion compared to that relating to Management Programs under the WPA which required that the Minister 'must be satisfied' about particular criteria before making a decision.
Under the EPBC, the decision making requirements are identical to those stipulated for management plans, that is, the Minister “must not declare an operation… unless satisfied…” The new provisions remain less stringent than management plans, however, as no environmental impact assessment is required for the trade operations.
84 From 1 January 2006 to 31 December 2010. 85 See description in Beale, above n 17, at 56. 86 See also s 303FT with regard to the Minister’s declarations. 87 These included, inter alia, the distribution, national status and abundance of the subject species and the likely effect of the taking. Sect 5A,Wildlife Protection Regulations.
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The application of the regulations under the WPA illustrated the divide between vertebrates and invertebrates. While both sections 10 (management programs) and 10A (controlled specimens) applied to both vertebrates, invertebrates and plants, in practice, management programs were only approved for vertebrates. Until December 2001, there had been no traded plants subject to management plans. There is still no invertebrate on the list. Animals in the controlled specimen declarations, on the other hand, have comprised mostly invertebrates, particularly marine wildlife (such as marine shells, jellyfish, beche de mer, crabs). The only vertebrates in this category were freshwater fish and snakes (that is, for harvesting of snake venom, which is approved in all States and Territories). Conclusion
The WPA was ‘showing its age’ in maintaining the more protectionist stance prevalent in the Convention two decades ago. As one government witness commented to the RRAT Inquiry, the WPA was enacted when wildlife use was not yet respectable. Since then, CITES has moved on and … [wildlife use] has become an accepted conservation strategy. And this particular piece of legislation has simply not kept up with it, so it does need serious amendment.88
While the design of the EPBCA may be markedly different from the preceding legislation, it does not disclose any significant change of direction for Australia’s regulatory approach to trade in wildlife and appears to have side stepped the issue. Its objects are more comprehensive, acknowledging the Biodiversity Convention and sustainable use, yet it has gone no further than the WPA. There is still the sense of a reluctant acknowledgement of wildlife trade: it should be sustainable but does not contribute to biodiversity conservation.
In the Second Reading speech of the Bill to amend the EPBC, the new wildlife trade provisions were described as ensuring “Australia continues to have the toughest wildlife trade laws in the world” while CITES was described as “addressing the threats to
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wildlife from international trade”.89 These two statements in themselves may not be contentious. However, the focus on a ‘tough’ approach to ‘threats’ from trade, coupled with the absence of any such statements concerning the benefits to be obtained from wildlife trade, indicate that the new legislation has not moved on from the traditional protectionist stance.
Given the positive, pro-use recommendations of both the parliamentary inquiries and the national environmental policy documents discussed in chapter four of the thesis, it is disheartening to consider that, when new wildlife legislation was introduced in 2001, it maintained the protectionist position of the Wildlife Protection Act. It may be argued that the legislation does not prevent export for commercial use, it simply regulates it (and prohibits live commercial exports). The EPBC Act’s second reading speech and the continuing species demarcation concerning live exports do, however, suggest that the commercial use regime will remain conservative, driven by perceived public resistance to particular wildlife exports, rather than by the conservation arguments. This is in spite of continuing acknowledgement, outside of the legislative sphere, that caution in this situation may in fact be more damaging to wildlife in the long run.
This may change with the implementation of the EPBC Act, particularly considering the Act’s object to ensure compliance with Australia’s obligations under the Biodiversity Convention. The EPBC’s approach does move forward in its broader application, taking into account impacts on habitats as well as the species themselves.90 It is hoped the interpretation of the provisions remain open to consideration of both positive and detrimental consequences for habitats in deciding whether to allow trade to occur. To date, however, it has not given rise to any fundamental change of direction for Australia’s regulatory approach to trade in wildlife. This is demonstrated via the case studies on the application of the export regime in the following chapter.
88 David Lawson, Wildlife Management Unit, Parks and Wildlife Commission of the Northern Territory, Evidence to the RRAT Inquiry, 6 August 1997, 334. The transcripts of the RRAT hearings are available at
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TABLE 1 Commonwealth Regulation of Wildlife1 YEAR EXPORTS PROHIBITED EXPORTS ALLOWED Customs Act 1901: Customs (Prohibited Exports) Regulations 1921 All live specimens and skins of Exemption for skins of native cat, kangaroo, specified native mammals ring-tailed possum and brush-tailed possum 1924 Purely commercial exports of Dingoes exempted from this direction Australian birds and animals. 1925 Commercial exports of birds regarded as pests and which are totally unprotected under State law. 1928 Protected or partly protected fauna as: single specimens of common birds taken by passengers or crew; as exchanges by zoos; if requested by a zoological or scientific body. 1928 No restrictions (except welfare in transit) on export of birds and animals totally unprotected and regarded as pests. 1929 Limited export of kangaroos and wallabies bred in captivity. 1933 Total prohibition on koalas, platypus and lyre birds. 1935 Animals, and the skins thereof, other than domestic animals and the skins thereof. Birds and plumage, skins, eggs, shells. 1953 1935 prohibition narrowed to native fauna. 1960 Live commercial exports of all fauna. Scientific exports for skins, plumage etc of All live export of koalas, platypus and koalas, platypus and lyre birds; live exports of lyre birds. other fauna restricted to zoological trade and household pets taken by passengers. Wildlife Protection (Regulation of Exports and Imports) Act 1982 (Cth) 1984 Live commercial exports of native Limited live exports for zoological or vertebrates (apart from fish) scientific purposes or as pets. Other exports of native fauna products pursuant to management programs 1991 'Controlled specimens' Environment Protection and Biodiversity Conservation Amendment (Wildlife Protection) Act 2001 (Cth) 2002 Live commercial exports of native Limited live exports for zoological or vertebrates (apart from fish) scientific purposes or as pets. Other exports of native fauna products pursuant to management plans or wildlife trade operations.
1 This summary, which is cumulative, is based on the author’s archival research as well as summaries in Ley, above n 4, 9 ff; and the Department of Environment Sport and Territories, Submission to the Senate References Committee Rural and Regional Affairs and Transport On The Inquiry Into Commercialisation of Australian Native Wildlife (1997) 51ff.
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TABLE 2 Part 13A Environment Protection and Biodiversity Conservation Act 1999
DIVISION 2 CITES specimens Sect 303CC: No export unless – Permit - Exempt as scientific exchange - Specimen obtained pre-CITES listing – Specimen a ‘personal or household effect’
Type of export Live commercial export Non-live commercial Live export for non- Non-live export for non- export commercial purposes commercial purposes Type of animal YES YES YES YES CITES specimens Appendix I Sect 303CG(3)(e)(ii) and Sect 303CG(3)(e)(ii) and Sect 303CG(3)(e)(i) Sect 303CG(3)(e)(i) s303CH s303CH All non native animals Where the proposed export Where the proposed export If from CITES-registered If from CITES-registered would be an eligible would be an eligible captive breeding program captive breeding program non-commercial purpose non-commercial purpose (sect 303FK). (sect 303FK). export (within the meaning export (within the meaning of section 303FA) of section 303FA) (Including Sect 303FG(2) if a pet: Sect 303CC(3) ANY non-native CITES A registered, listed animal may be non-commercial exchange exported as a pet.) of scientific specimens between scientific organisations OR Sect 303CC(6) If taken to be an export of a personal or household effect under the regulations.*
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Type of export Live commercial export Non-live commercial Live export for non- Non-live export for non- export commercial purposes commercial purposes Type of animal NO YES YES YES CITES specimens Appendix I Sect 303CH Sect 303CH As above As above. If from CITES-registered EXCEPT Native terrestrial captive breeding program if a pet it must vertebrates: (sect 303FK). be listed as a ‘native mammals, household pet’ as provided amphibians, reptiles by s303FG(4).** and birds YES YES YES YES CITES specimens Appendix I If from CITES-registered If from CITES-registered As above. As above. captive breeding program captive breeding program Native fish and (sect 303FK). (sect 303FK). invertebrates YES YES YES YES CITES specimens Sect 303CG(3)(e)(ii) and Sect 303CG(3)(e)(ii) and Appendix II s303CH s303CH As above for Appendix I As above. If from CITES-registered If from CITES-registered non native animals. All non native animals captive breeding program captive breeding program (sect 303FK); (sect 303FK); OR OR approved wildlife trade approved wildlife trade operation (sect 303FN); operation (sect 303FN); OR OR approved wildlife trade approved wildlife trade management plan management plan (sect 303FO). (section 303FO).
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Type of export Live commercial export Non-live commercial Live export for non- Non-live export for non- export commercial purposes commercial purposes Type of animal CITES specimens NO YES YES YES Appendix II Sect 303CH Sect 303CG(3)(e)(ii) and As above for Appendix I As above. Native terrestrial s303CH native animals. vertebrate: mammals, If from CITES-registered amphibians, reptiles captive breeding program and birds (sect 303FK); OR approved wildlife trade operation (sect 303FN); OR approved wildlife trade management plan (section 303FO). CITES specimens YES YES YES YES Appendix II Sect 303CH Sect 303CH As above for Appendix I As above. Native fish and If from CITES-registered If from CITES-registered native animals. invertebrates captive breeding program captive breeding program (sect 303FK); (sect 303FK); OR OR approved wildlife trade approved wildlife trade operation (sect 303FN); operation (sect 303FN); OR OR approved wildlife trade approved wildlife trade management plan management plan (section 303FO). (sect 303FO).
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NOTES * REG 9A.02 provides that an export of a specimen mentioned in Schedule 4A is taken to be an export of a personal or household effect that would be exempt under Article VII of CITES from the Convention’s trade provisions (the exemption applies subject to conditions related to whether the specimen was acquired outside the state of usual residence). The regulation also requires that the trade not have an adverse effect on the conservation status of a species or ecosystem; the specimen is for the personal use of the exporter; and the export is reasonably appropriate for the purpose of the exporter’s journey. The Schedule 4A list comprises manufactured products of saltwater and freshwater crocodiles (Crocodylus porosus and johnstonii respectively), carried as personal baggage, and ‘moulted feathers’.
** Native household pets listed under the Act comprise: Sulphur-crested Cockatoo (Cacatua galerita), Galah (Cacatua roseicapilla), Little Corella (Cacatua sanguinea), Long-billed Corella (Cacatua tenuirostris), Budgerigar (Melopsittacus undulatus), Cockatiel (Nymphicus hollandicus).
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TABLE 3 Part 13A Environment Protection and Biodiversity Conservation Act 1999
DIVISION 3 Australian regulated native specimens* Sect 303DD No export unless – Permit – Exempt under an accredited wildlife trade management plan** – Exempt as scientific exchange
Type of export Live commercial export Non-live commercial Live export for non- Non-live export for non- export commercial purposes commercial purposes Type of animal NO YES YES YES Native terrestrial vertebrate: Sect 303DG(3) Sect 303DG Sect 303DG(4)(e)(i) Sect 303DG(4)(e)(i) mammals, Sect 303DG(4)(e)(ii) If eligible non-commercial If eligible non-commercial amphibians, If an ‘eligible commercial purpose (sect 303FA) purpose (sect 303FA) reptiles and birds purpose export (within the meaning of section 303FJ’: OR OR From approved captive If a pet AND A registered, breeding program; is listed as a ‘native non-commercial exchange OR household pet’ as provided of scientific specimens Approved wildlife trade by s303FG(4). between scientific operation; organisations or Approved wildlife trade management plan. OR Sect DD(3) YES if from Accredited* wildlife trade management plan (sect 303FP) AND NOT CITES-listed or an ‘eligible threatened species’.
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Type of export Live commercial export Non-live commercial Live export for non- Non-live export for non- export commercial purposes commercial purposes Type of animal YES YES YES YES Native fish and invertebrates Sect 303DG(1) Sect 303DG(1) As above. As above. Sect DG(4)(e)(ii) Sect DG(4)(e)(ii) If an eligible commercial If an eligible commercial purpose export (sect303FJ): purpose export (sect303FJ): Export from an Export from an approved aquaculture approved aquaculture program (sect303FM); program (sect303FM); OR OR approved wildlife trade approved wildlife trade operation (sect 303FN); operation (sect 303FN); OR OR approved wildlife trade approved wildlife trade management plan management plan (section 303FO). (section 303FO). OR Sect DD(3) OR Accredited* wildlife trade Sect DD(3) management plan. Accredited* wildlife trade AND s303DD(3)(ba)(i): management plan. If native terrestrial invertebrate, or freshwater fish prescribed by the regulations it must also be from an approved aquaculture program for any commercial export, including an accredited plan.
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NOTES: *Sect 303DA Provisions apply to all native specimens that are not listed pursuant to s 303DB as exempt native specimens. The Minister may declare a species to be exempt under s303DB of the Act. The list of exempt specimens is available through the Department of Environment and Heritage website at:
* *To be accredited, a wildlife trade management plan must meet the requirements of ss 303FO(3) and 303FP(3). The plans cannot apply to CITES- listed or eligible threatened species. Commercial exports of specimens derived from a State or Territory wildlife trade management plan that has been accredited by the Commonwealth do not need a Commonwealth export permit. There was no accredited plan in force as at May 2006. From DEH information website:
Further to the controls set out in the table, there are restrictions for ‘eligible threatened species’. Export is permitted if it is not inconsistent with any recovery plan for that species – s303DG(4)(d). Commercial exports are only allowed pursuant to sect 303DG(7), that is, from a captive breeding program or approved aquaculture program; non-commercial exports are only allowed pursuant to sect 303DG(8), for the purposes of research, education, exhibition or conservation breeding.
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Chapter 7
AUSTRALIA’S SELECTIVE EXPORT REGIME: TOUGH LOVE AND AN ABSENCE OF ECO-LOGIC
Australia’s wildlife trade regime has been lauded as “the toughest in the world”1 with provisions that go well beyond the requirements of CITES. This chapter uses case studies to argue that these strict provisions in fact reveal an apparent absence of environmental logic and a chink in Australia’s response to its international obligations.
To demonstrate this position, this chapter examines the prohibited exports of Australia’s native wildlife. I divide the chapter into two parts: non-live (meat and skins) and live exports. Within each part I first discuss existing trades, permitted by the export regime, and then set them against proposed trades that are prohibited by the export regime.
The prohibited exports are the complete ban on live commercial exports of native terrestrial vertebrates, regardless of their population status, whether or not they are CITES listed and whether or not bred in captivity; and the restrictions on the export of hunting trophies. In both cases, the federal approach is ostensibly more restrictive than CITES yet, on closer examination, is revealed as falling short of the Convention’s obligations. This is because the way that CITES has evolved, as set out in Chapter 5, to reflect developments in conservation thinking, as set out in Chapter 2, means trade bans are not necessarily privileged as a conservation measure with increasing weight given to sustainable use of wildlife. The two prohibition case studies in this chapter concern blanket ban approaches in the face of proposals for trialling a potential sustainable use of wildlife.
1 The words of the Environment Minister, Senator Ian Campbell, when the EPBC Act was introduced into parliament: Second Reading, Hansard, Senate, Thursday May 2001, 24270.
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Section one of the chapter deals with the permitted and prohibited exports of non-live wildlife specimens. While there can be no live commercial exports of terrestrial vertebrates, there are particularly well-established trades in meat and skins from crocodiles and kangaroos. These exports have been promoted and, where necessary, defended, by successive Australian Governments to establish and maintain international markets. Apart from illustrating that commercial use of wildlife has been warmly embraced by decision makers in certain circumstances, both of these export trades demonstrate that sustainable commercial use of wildlife may have a broader positive conservation outcome particularly with regard to private land management.
The prohibited non-live trade concerns the Commonwealth’s rejection of a proposal to export crocodile trophies. Hunting is a controversial subject and as I make clear in this thesis, there may be many legitimate factors influencing an environmental regime. What is of concern, however, is that particular factors may dominate without any perceived attempt by decision makers to justify the regulatory position. In the case of trophy hunting, Australia takes an extremely restrictive view, at least so far as imports and exports of trophies are concerned. This position does not necessarily correspond with contemporary conservation thinking. As discussed in Chapter 2, trophy hunting of wildlife has presented as a major conservation success story in a number of countries because the high returns per individual species taken provides a significant financial incentive to maintain both the species and its habitat. It is increasingly recognised as one of the most successful examples of a sustainable use of wildlife that pays broader conservation dividends.
Section two of the chapter critiques the EPBC Act’s selective prohibition in its export provisions under which there can be live commercial exports of invertebrates and fish but not of native mammals, amphibians, reptiles and birds.2 The divided regime has carried over to the EPBC Act from the previous legislation, the Wildlife Protection (Regulation of Exports and Imports) Act 1982 (Cth) (‘WPA’). This is not a response to CITES as the Convention does not discriminate according to subphylum, that is, there is
2 Sect 303CG(3) (CITES listed specimens) and s303DD(3) (regulated native specimens) of the EPBC Act, as set out in the previous chapter.
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no demarcation according to whether or not the species is a vertebrate. Further, CITES has no prohibition of live commercial exports;3 it does not distinguish between live and dead specimens. In fact, the Convention specifically acknowledges live trade, given its trade provisions require that living specimens be “prepared and shipped so as to minimise the risk of injury, damage to health or cruel treatment”.4
In summary, the Convention’s application is dependent on: • population status and threats (applied via the appendix listings); and • whether a specimen is captive bred or taken from the wild.
The EPBC Act’s export provisions include the above but these are secondary considerations to: • whether or not a specimen is a native terrestrial vertebrate; and • whether it is alive or dead.
The prohibition of commercial exports of live native terrestrial vertebrates has been entrenched in the Australian regime for decades. While there may be a range of arguments available on both sides of this debate, it is unclear what prevents this issue from being seriously entertained, given Australia’s established and thriving live commercial trade in rock lobsters, insects and aquarium animals such as seahorses. The regime’s selectivity suggests ecological imperatives do not necessarily wield the greatest influence, given that, whatever concerns may drive the opposition to a commercial live trade, they apparently only apply to the export of terrestrial vertebrates. The existing live export trade is well established yet has not engendered any identifiable
3 Appendix I species cannot be exported for ‘primarily commercial purposes’ but even these, if bred in captivity, may be treated as Appendix II species for which regulated commercial trade is allowed. The Convention’s provisions are set out Chapter five. 4 CITES, Articles 3.2(c) and 4.2(c). See Resolution Conf. 10.21 ‘Transport of live animals’, agreed to at the Tenth meeting of the Conference of the Parties, Harare (Zimbabwe), 9-20 June 1997. Available at
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opposition or, indeed, attention, from those environmental or animal welfare organisations that have been so firmly opposed to other commercial uses of wildlife.
This discussion draws on the existing live trade to provide a particularly useful juxtaposition to the ban on live commercial exports of other native fauna so I may posit the question: is there some relevant difference between terrestrial vertebrates and all other native wildlife such as to justify the demarcation in the legislation?
This chapter illustrates that the regime can be more robust in relation to commercial use in certain circumstances, raising the inquiry as to the reason for the different approaches. It supports two issues central to this thesis: the apparent role of emotive responses to wildlife in the provisions regulating trade and the inertia in the Australian wildlife debate.
S1. Non-live exports of Australian native fauna
This section begins with two well-established wildlife industries in Australia – crocodiles and kangaroos – to demonstrate both that commercial use of wildlife has, in certain circumstances, been embraced by the federal government and that it may have a positive conservation outcome in Australia for private land management. This has been an underlying factor in the more recently established crocodile export trade. It is yet to have force in the kangaroo trade but there are currently attempts to integrate the commercial use of kangaroos into off-reserve conservation practices in Australia.
The section then addresses the proposed export of crocodile trophies, which is currently prohibited despite clear evidence of the conservation benefits of hunting of wildlife. The ability to attract overseas hunters is considered necessary for the industry to be viable and this can only be achieved if hunting trophies can be exported,5 which necessitates the Commonwealth’s permission. The Commonwealth’s position is critically examined particularly with regard to Australia’s obligations under CITES.
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1.1 The permitted trade
1.1.1 Crocodiles Hunting of crocodiles for their skins threatened the existence of both saltwater and freshwater crocodiles (Crocodylus porosus and Crocodylus johnstoni respectively) until protective legislation was introduced by Western Australia, Queensland and the Northern Territory from the early 1960s onwards. The Commonwealth introduced a total export ban in 1972. It is estimated that, over 26 years of hunting, from 1945-6 until their protection in 1971, 140,000 saltwater crocodiles were killed.6
By the late 1970s the post-protection recovery of the saltwater crocodile was "marred by a series of interactions between crocodiles and people".7 As these 'interactions' included a number of deaths and maulings and attacks by large crocodiles on boats, concern for the crocodiles' survival diminished somewhat. Apart from the loss of life, the attacks limited recreational and commercial use of the waterways, causing economic hardship from the impact on tourism and fishing. As Webb notes, the "public attitude to Crocodylus porosus polarised rather quickly", with nearby residents complaining of the dangers from a rapidly increasing population and protectionists claiming there had been no significant recovery of the species.8
Commercial use had begun in 1980 with crocodile products from captive bred specimens using 'problem animals' (that is, ones that were a threat to the human population and were brought in from the wild instead of being shot).
Both saltwater and freshwater crocodiles had been listed on Appendix II of CITES but the saltwater was moved to Appendix I at the Second CoP in Costa Rica in 1979. Six years later, at the Fifth CoP in Argentina, the Northern Territory Government
5 Grahame Webb, email correspondence, 16 May 2006. 6 Grahame Webb, Peter Whitehead and S Charlie Manolis, 'Crocodile Management in the Northern Territory of Australia' in G Webb, P Whitehead and SC Manolis (eds) Wildlife Management: Crocodiles and Alligators (1987) 107. 7 Id, 109. 8 Id, 110.
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successfully moved for its return to Appendix II for the purposes of export of crocodile products obtained via ranching operations.9 At the Ninth CoP in 1994 the Australian wild population was given an unqualified Appendix II listing. In 1987, after the CITES downlisting, Australia began a trial program exporting crocodile products, pursuant to a Management Program, approved under s10 of the then relevant legislation, the Wildlife Protection (Regulation of Exports and Imports) Act 1982 (Cth).10
The current management plan11 states that the Northern Territory exports approximately 5000 skins per year both interstate and internationally while Australia’s total crocodile exports are 12000 skins per year, or approximately 2% of the world market.12 Royalties are paid to landholders by harvesters for each egg or animal collected from their property and it is argued that this provides an incentive for land managers to conserve crocodile breeding habitats.13 The plan states as an objective, the long-term sustainable utilisation and conservation of crocodiles and their habitats throughout the Northern Territory.14 The previous management plan also referred to the need to maintain suitable wetland habitats on private land, in the face of competing forms of land use, and “make crocodiles and their habitats assets to landowners rather than liabilities” by establishing their commercial value.15
The extent of the current environmental benefits is difficult to determine as it requires assessment of whether competing uses of crocodile habitat have been prevented by
9 Grahame Webb et al, A Proposal for the Transfer of the Australian Population of Crocodylus porosus Schneider (1801), From Appendix I to Appendix II of CITES (1984). 10 The Wildlife Protection Act was repealed by the Environment Protection and Biodiversity Conservation Act 1999 under which management programs have been replaced by management plans. The Australian wildlife legislation is set out in Chapter 6. 11 Management Plan for Crocodylus porosus in the Northern Territory, valid from July 2005 to June 2010. Available at < http://www.deh.gov.au/biodiversity/trade-use/sources/management-plans/pubs/nt- crocodile-plan-2005.pdf>, accessed May 2006. 12 Id, 4. See also Review of Crocodile Ranching Programs, conducted for CITES by the Crocodile Specialist Group of IUCN/SSC, January – April 2004, at 31. Available at
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ranching operations.16 It is clear, however, that ranching provides a valuable use of wetlands which may protect them from being lost to alternative more destructive uses. The benefits to the population are demonstrated by comparison with what may have occurred in the absence of the ranching proposal as it came at a time when there were increasing calls for all protection to be removed because of the booming population. Ranching thus responded to the threat of a return to earlier devastating hunting levels and the current trade has been demonstrably successful as a sustainable use of the target species.
1.1.2 Kangaroos There are at least 69 species in the super-family Macropodoidea.17 While many of the species have suffered from European settlement of Australia some are “among the most abundant large mammals anywhere”.18 While loss of native habitat is cited as a major threat to Australia’s biodiversity, certain native species, such as the Red and Grey kangaroo and a number of native parrots and cockatoos, have adapted well to Australia’s modified landscape, altered for agricultural use by the conversion of native vegetation and the introduction of permanent water sources. In response, their numbers have led to management regimes which treat them as agricultural pests.19 Competition between certain wildlife and agriculture generally results in the persecution of the native species concerned and destruction of its habitat to reduce the conflict.20
Rural landholders in all Australian jurisdictions are able to obtain licences to cull native species that are perceived as a threat to agriculture.21 For example, the New South
16 Mike Letnic, formerly Northern Territory Parks and Wildlife Service, pers. comm. 22 March 2006. 17 This is made up of two families: the Macropodidae, which includes kangaroos, wallabies, wallaroos, pademelons and tree-kangaroos; and the Potoroidae, which comprises potoroos, rat-kangaroos and bettongs. Tony Pople and Gordon Grigg, Commercial Harvesting of Kangaroos In Australia, Overview of Background Information for Kangaroo Management, prepared for Environment Australia (1999), 2. 18 Ibid. 19 See discussion by Peter Bridgewater, ‘What conservation? Which species?’ in G Grigg, P Hale and D Lunney (eds) Conservation through Sustainable Use of Wildlife (1995) 9 at 11. 20 Ibid.
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Wales Kangaroo Management Program states in its introduction that changes to the landscape and the consequent increase in the kangaroo species listed mean their numbers “need to be controlled to limit their adverse effects on the rangeland, pastoral and crop production”.22 These effects are listed as including: “competition with other native species, competition with domestic livestock for water and pasture, eating and trampling of crops, and damage to fences”.23
While treated as a pest and subject to culling, there is also a long-established export trade in kangaroo products. None of the seven macropod species currently exported pursuant to management plans is listed on the CITES appendices so export is regulated by Division 3, Part 13A of the EPBC Act.24 Each State is responsible for management of macropods within its jurisdiction but requires Commonwealth approval if it wishes to export any products from the harvest.”25
As noted in the previous chapter, criteria for approval of management plans are set out in s303FO of the EPBC Act. The species subject to export are:
Red kangaroo (Macropus rufus), Qld, NSW, SA, WA
Eastern grey kangaroo (M. giganteus), Qld, NSW
Western grey kangaroo (M. fuliginosus), NSW, SA, WA
21 Each State provides population estimates to the Commonwealth by which quotas are set for harvesting under the management programs. These are usually around 15 per cent of the estimated population but are almost never met, with harvests often coming in well below the approved quota: Stuart Cairns and Richard Kingsford, 'Harvesting Wildlife: kangaroos and waterfowl' in RA Bradstock et al (eds) Conserving Biodiversity: Threats and Solutions (1995) 260, 264. 22 NSW National Parks and Wildlife Service, The New South Wales Kangaroo Management Programme. Effective from January 1 1998 to December 31 2002, Introduction. 23 Ibid. 24 See previous chapter at fn 75ff. 25 Approval of management plans is subject to the requirement that shooting of animals is undertaken “in accordance with the 2nd edition of the Code of Practice for the Humane Shooting of Kangaroos” and that all shooters be supplied with the code and “made aware that they are obliged to abide by the Code”. Environment Australia, ‘Humane Harvesting of kangaroos’, 2002. Available at:
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Common wallaroo or euro (M. robustus), Qld, NSW, SA, WA
Whiptail wallaby (M. parryi), Qld
Bennetts wallaby (Macropus rufogriseus), Tas Tasmanian pademelon (Thylogale billardierii), Tas.26
To date, the kangaroo export has clearly been a sustainable use, given the ongoing abundance of the targeted species, but this has been more in the nature of a pest control program with some commercial pay off for those involved in harvesting and production of kangaroo products but little or no economic returns for landholders.
Conservation biologists, along with some State and Federal government agencies, argue for an alternative approach: improving market demand for kangaroo products and introducing financial returns for landholders from the kangaroo harvest to change the perception of abundant species in agricultural areas from ‘pest’ to ‘resource’.27 These steps are necessary to translate a sustainable use of kangaroos into a broader conservation initiative. As discussed in Chapter 2, the central plank to CSU is that the commercial use of wildlife provides a financial incentive to landholders to maintain native habitat. The work being done in this area has targeted these central issues as well as barriers in current management plans that prevent productive involvement of landholders in the harvest.28
26 The provisions of the Act are dealt with in detail in Chapter 6. The management plans approved by the Environment Minister are listed at:
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The encouragement of kangaroos has also been proposed as a conservation initiative if this serves to reduce the stocking rate of sheep and cattle. Grigg has continued to put the argument that kangaroos should be playing a far greater part in agriculture by replacing livestock as part of a reduction in ‘total grazing pressure’ on agricultural land.29
The crocodile and kangaroo trades demonstrate that particular commercial uses have been strongly supported by successive federal governments.30 In both cases, an important factor is their potential to contribute to conservation, particularly on privately-held land. As the following section argues, however, this enthusiasm is selective, depending on the type of use, even where there is an even clearer connection with conservation of native habitat.
1.2 The prohibited trade – trophies
There is no export from Australia of trophies from native animals. There is no legislative barrier to the export of trophies as they could be exported pursuant to a management plan but to date none has been allowed.31
This sub-section demonstrates that the hard line taken by the Commonwealth is out of step with the international position on hunting as one of the clearest success stories for conservation via sustainable use of wildlife. It addresses the export prohibition and then places it in the broader context of the current regulation of hunting within Australia by the States and Territories.
rangelands and competition with pastoral activities and regulatory barriers to landholder involvement as the key steps to address. Available at
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The Northern Territory Government has sought to expand its crocodile management programs to incorporate trophy hunting of crocodiles for the export market. Its Draft Management Plan for crocodylus porosus in the Northern Territory32 included a proposal for safari hunting to comprise part of the existing quota for the taking of adults from the wild.33
Approval of the management plan is needed to allow international hunters to take the trophies with them when they leave Australia. While the EPBC Act does allow non- commercial export of certain personal items, the trophies are not included in the exemption.34
The justification for safari hunting included, inter alia, the possibility of “considerable financial benefits to landowners that engage in well-managed hunts, and increase the incentive for landowners to protect crocodiles and crocodile habitats”.35 The proposal goes on to note that “the financial returns from safari hunting will be at least several thousands of dollars more per individual than wild harvested crocodiles”.36 Thus the proposal reflects the approach taken in the southern African countries and in Pakistan, as discussed in Chapter 2.
When the plan was approved, however, the Minister’s declaration stated that approval was subject to the condition that safari hunting not be permitted. The position of the Commonwealth Minister is at odds with Australia’s approach in the campaign to have the Australian saltwater crocodile population downlisted from Appendix I to II under
32 Parks and Wildlife Service of the Northern Territory. The current plan, for the period from July 2005- June 2010, is available at
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CITES.37 Australia’s proposal to the CITES Conference of the Parties concerning the trade in crocodiles included safari hunting.38 As Chapter 2 of the thesis makes clear, this position is also significantly at odds with the approach of the Parties to CITES and the international recognition of the conservation benefits of hunting.39 With no explanation as to why the Minister took this approach, there is a clear inference that this was a politically-driven decision, anticipating public hostility to the concept of trophy hunting of native animals. It reflects the ongoing conservatism of Australian decision makers, as discussed in Chapter 4 of the thesis.
The Northern Territory’s proposal emphasised that the ‘considerable’ benefits to landholders would be particularly significant for “Aboriginal landholders, who currently host or run their own pig and buffalo safari hunting operations”.40
Appendix I to the NT’s plan set out the scheme for safari hunting. There would be a sub-quota of 25 animals forming part of the overall quota of 600 adults that are taken from the wild each year. That is, there would be no extra crocodiles taken. The proposal stated that the hunt “is expected to return at least several thousands of dollars more per individual than crocodiles harvested for the skin/meat market. Given the financial gains that are likely to accrue, it is expected that safari hunting will increase the incentive for landholders to protect crocodiles and crocodile habitats”.41
The Northern Land Council (NLC) also made a submission in support of the safari hunting proposal.42 In response to notification that the hunting proposal was likely to
37 As discussed above in s 1.1. 38 Grahame Webb (member of the Australian delegation that undertook the successful downlisting campaign), email correspondence, 29 January 2007. 39 See at s.2.2 of Chapter 2: ‘Legalised hunting as a conservation incentive’. 40 Northern Territory Draft Plan, above n 33, at [1.9]. See also the Strategy for Sustainable Use of Wildlife in the Northern Territory (1997) which formally approves sustainable use as a valid conservation strategy. The Strategy aims to encourage off-reserve conservation “by providing financial incentives to landowners to maintain wildlife habitat because they benefit from sustainable commercial harvests of wildlife”. (At 66.) 41 Ibid. 42 Northern Land Council Submission to the Hon. David Kemp, Federal Minister for the Environment, Re: Draft Management Plan for Crocodylus porosus in the Northern Territory, 5 February 2004.
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be rejected (as it eventually was), the NLC described the government’s position as contradictory to its “stated interest in boosting economic development on Aboriginal land to reduce welfare dependence”.43 Such a move inhibits remote Aboriginal economic development opportunities, and severely limits the multiple-use philosophy of Aboriginal land and wildlife development. It also sends a message to traditional Aboriginal landowners in the Northern Territory that their land and wildlife management aspirations are wrong. It also signals to them that appropriate land use should be based on exotic animals, large scale clearing, and agricultural land use. In short, practices which can damage the cultural, economic, and ecological integrity of their traditional homelands.44
A group of Aboriginal people from Murwangi station in the Northern Territory, who provide guided safari tours for water buffalo, banteng,45 wild boar, waterfowl and fish, submitted to the 1998 Senate wildlife inquiry that they hoped to one day expand their operation to offer safari hunting for large crocodiles. 46
At the time of the 1998 inquiry, the Northern Territory had approached the then federal environmental authority about the possibility of trophy exports but had been told it ‘would not be acceptable’.47 In the NT’s own submission to the inquiry, it noted the potential benefits of safari hunting of crocodiles to Aboriginal landholders. It is … probably the best way in which Aboriginal people who own billabongs and swamps, or pastoralists even, can gain an economic return from having large
Available at
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populations of large crocodiles in amongst their cattle or on their lands, causing threats to humans.48
The proposal and the submissions in support of the export have clear parallels with the arguments that have been accepted by the CITES community with regard to trophy hunting in Africa and Pakistan, as discussed in Chapter 2. The conservation incentives created as a result of economic returns to remote indigenous communities, alongside valuable socio-economic development for otherwise marginal groups, are all powerful considerations yet it appears they made no impact on the eventual decision to prohibit the export industry.
While the Australian crocodiles are listed on Appendix II to CITES, this is clearly no barrier to export as it is firmly established that even Appendix I species may be subject to hunting so that the trophies may be exported. The Conference of the Parties has explicitly acknowledged that the prohibition on commercial trade in Appendix I specimens derived from the wild does not apply to exports of hunting trophies, so long as suitable permits are issued. Resolution Conf. 2.1149 addressed the non-commercial trade in hunting trophies listed in Appendix I, requiring that any trade be accompanied by import and export permits, issued according to the provisions of Article 3. As noted in Chapter 2, the Conference of the Parties has also adopted resolutions providing quotas for the export by range states of trophies of Appendix I species.50 These exports have been approved specifically in recognition of the positive conservation outcomes of obtaining financial returns for limited trade in threatened or endangered wildlife.51
48 William Freeland, Deputy Director, Parks and Wildlife Commission of the Northern Territory, Evidence to the RRAT Inquiry, 6 August 1997, 331, at 332. 49 ‘Trade in hunting trophies of species listed in Appendix I’. 50 These are black rhinoceros (Resolution Conf. 13.5 (13th Conference of the Parties 2004), ‘Establishment of export quotas for black rhinoceros hunting trophies’); leopard (Resolution Conf. 10.14 (Tenth Conference of the Parties to CITES, 1997) ‘Quotas for Leopard Hunting Trophies and Skins for Personal Use’); and the markhor goat (Resolution Conf. 10.15 (Tenth Conference of the Parties to CITES, 1997) ‘Establishment of quotas for markhor hunting trophies’, approves an export quota of 12 hunting trophies of markhor from Pakistan per calendar year). 51 Resolution 13.5 states that the rhinoceros quota is in recognition of the need to obtain financial incentives for conservation and management and “the financial benefits derived from trophy hunting of a limited number of specimens will benefit the conservation of the species directly and provide additional incentives for conservation and habitat protection”; Resolution 10.15 recognises that conservation of
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The commercial ban on Appendix I species does not apply as the export is not considered to be commercial. The import of hunting trophies has been recognised as meeting the relevant Appendix I trade conditions in Article 3.3 of the Convention.52 Article 3.3 states that an import permit shall only be granted when the following conditions have been met: (a) a Scientific Authority of the State of import has advised that such import will be for purposes which are not detrimental to the survival of the species involved; … (c) a Management Authority of the State of import is satisfied that the specimen is not to be used for primarily commercial purposes.
The prohibition on commercial purposes is attached to what will occur subsequent to importation; it is understood that the exporting state can obtain a commercial benefit for the trade. The Parties to CITES have addressed this issue by Resolution in which they have agreed that the no-commercial use provision for Appendix I species in Article 3.3(c) is only applicable to the intended use of the specimen and “not the nature of the transaction between the owner of the specimen in the country of export and the recipient in the country of import”.53 As the interpretation of ‘non-commercial’ does not preclude commercial benefits for exporters, presumably there may be commercial benefits in the original transaction. It recognises that transfers of Appendix I species for
markhor “will depend on the capacity of the State to regulate use and on local people having sufficient incentives to maintain the species in preference to their domestic livestock”; Resolution 10.14 recognises that “the killing of leopards may be sanctioned by countries of export in defence of life and property and to enhance the survival of the species”. 52 Willem Wijnstekers (CITES Secretary-General), The Evolution of CITES, 7th edition 2003 at 70. Available at
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non-commercial purposes will often involve a commercial transaction54 but subsequently the species is not to be used for primarily commercial purposes.55
Australia thus appears out of step in relation to the export prohibition on crocodile trophies. Further to this, the EPBC Act fails to respond to this long-standing recognition of the legitimacy of trade in trophies from Appendix I species by prohibiting the import of hunting trophies from species listed on Appendix I to CITES. Certain hunting trophies may be imported as personal items and the EPBC Act’s permit provisions allow for the import of CITES specimens pursuant to s303CG(3)(f)(i) as an eligible non-commercial purpose import.56 Under s303FH(2), however, import of personal items must satisfy the regulations and reg 9A.14 prohibits the import of Appendix I specimens as a personal item. 57
The import prohibition not only applies to Appendix I species. While Appendix II trophies may still be imported, Australia imposed a total ban on the importation of all ivory products in 1989 and thus has not acknowledged the subsequent downlisting from Appendix I to Appendix II of some African elephant populations for the purpose of specified uses, including safari hunting.58 Australia takes the approach that those
54 Ibid. For example, qualified non-profit organisations – such as zoos – may use professional dealers to conduct the importation of a listed species. 55 The difficulty in determining at what point an import is not for primarily commercial purposes was addressed at the Fifth Conference of the Parties which adopted Resolution Conf 5.10: Definition of ‘Primarily Commercial Purposes’ which states, at paragraph 2: An activity can generally be described as commercial, if its purpose is to obtain economic benefit, including profit (whether in cash or in kind) and is directed toward resale, exchange, provision of a service or other form of economic use of benefit. 56 Which includes personal items, as listed in Sect 303FB. 57 See also Department of the Environment and Heritage, November 2004, How to import and export Trophies, available at < http://www.deh.gov.au/biodiversity/publications/trade- use/factsheets/trophies.html>, accessed January 2007. Only trophies from animals killed prior to them being listed on CITES may be imported into Australia for which a ‘pre-CITES Certificate’ must be presented to the Australian Customs Service on arrival. Ibid. 58 The downlisting of the African elephant at the 10th Conference of the Parties in Harare, Zimbabwe, in 1997 was regulated by Resolution Conf 10.9: 'Consideration of Proposals for Transfer of African Elephant Populations from Appendix I to Appendix II'. This provided that all such proposals must be referred to a Panel of Experts. The panel "shall consider", inter alia, "the conservation and management of these populations, and threats to their status" (Conf 10.9(a)(ii)). Australia was also an active opponent to the downlisting as the controls were “not as stringent as this government would have wished to see”: David Kay, Environment Australia, Evidence to RRAT Inquiry, 7 November 1997, 1188.
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elephant populations now on Appendix II be regulated as if they were still on Appendix I, which has the effect of prohibiting imports of elephant trophies in the Australian regime.59 A ‘stricter domestic measure’ is allowed under Art 14 to CITES even if it appears contrary to the spirit of recent developments in the Convention.60 At the time Australia took this stance, the then Prime Minister stated that “Australia means business” concerning trade in elephant products.61 Yet the import ban undermines a business recognised by CITES as a positive conservation measure for certain populations of African elephant.62
The Commonwealth’s regulatory response thus does not respond to the domestic environmental and socio-economic arguments in favour of safari hunting nor does it respond to international developments in this area. A position that is based on safari hunting as ‘not acceptable’ despite these arguments is further undermined when placed in the broader context of how hunting is regulated and perceived within Australia.
1.2.1 Hunting in Australia
59 Pursuant to a declaration of a stricter domestic measure under section 303CB of the EPBC Act which was gazetted on 21 December 2001. See also Department of the Environment and Heritage Factsheet: How to Import & Export Elephant Products, Including Ivory available at
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All jurisdictions in Australia allow hunting, to varying degrees, and the impact has reflected the international experience to some extent with hunting operations providing an incentive to maintain native habitat.
There is no safari hunting of native animals within Australia although there is an established industry in relation to introduced species such as water buffalo and wild boar in the Northern Territory.63 There is recreational hunting in Australia, of both native and exotic/feral species. This comprises game bird, kangaroo and wallaby; feral animal, game ranch and safari hunting.64 The main recreational hunting of native wildlife is of waterfowl. Each jurisdiction takes a different approach to the regulation of taking or hunting wildlife yet there is some degree of hunting allowed everywhere in Australia.
Recreational hunting of waterfowl, along with other hunting is permitted in the Northern Territory,65 South Australia,66 Tasmania67 and Victoria.68 In recent years,
63 See discussion on hunting in Australia in RRAT, above n 46, at 363ff. 64 Max King, ‘Sustainable use – a hunter’s concept’ in Grigg, et al, above n 19, 282 at 284; RRAT, above n 5, at 363. Game and safari hunting is commonly of feral/ introduced species. 65 The Territory Parks and Wildlife Conservation Act 1976 requires that a permit be granted to kill animals (s45(2)(f)); the Minister may declare it lawful to kill specified species of protected wildlife but not within a protected area (s45); protected wildlife may be taken for commercial purposes with authorisation (s67); and royalties are assessed pursuant to s116 for wildlife taken under a permit. 66 Sect 68A(1) of the National Parks and Wildlife Act 1972 (SA) requires that a permit be granted to hunt. There may be open seasons declared for certain protected animals in response to population levels (s52); royalties may be payable (s61) and provisions restricting the way in which hunting can be conducted, to minimise broader impact on the environment, are set out in the National Parks and Wildlife (Hunting) Regulations 1996. For example, it is prohibited to damage a tree, burrow or nest while hunting a native vertebrate (reg 7). 67 Sect 16(4) of the Nature Conservation Act 2002 (Tas) provides for declaration of game reserves, the purpose of which includes the ‘ecologically sustainable hunting of game species’ as described in sched 1, Item 4, Column 3 of the Act. Game species are defined in s 3(1) as ‘partly protected wildlife’ which are specified in the regulations. They are listed in sched 4 to the Wildlife Regulations 1999 and include eight species of birds as well as wombat, brushtail possum and wallabies. An open season may be declared for ‘partly protected wildlife’ (s30); Specially protected wildlife (listed in sched 1 to the regulations) and protected wildlife (listed in sched 2 to the regulations) can be taken with a permit (regs 15 and 16 respectively). 68 Under s22A of the Wildlife Act 1975 (Vic), a game licence allows the hunting of game (s3(1) defines game animals as those species declared as such). Sect 28A(1)(a) allows for hunting if it is necessary because wildlife damaging property; s28A(1)(d) for the purpose of management, conservation, protection or control of wildlife. Schedule 3 to the Wildlife (Game) Regulations 2001 lists the open seasons specific to game species which include native duck and quail. Sect 44(3),(4) provides that a licence is required to hunt game during an open season and royalties may be payable under s87(1)(ag).
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while other hunting is allowed, recreational or sport hunting of waterfowl has been prohibited in New South Wales,69 Queensland,70 and Western Australia.71
As already discussed in this thesis,72 hunting has been shown to provide a clear conservation incentive. This may be because landholders will be more prepared to maintain native habitat if they can obtain revenue from hunting on their land as a result; secondly, hunters themselves are often proactive in protecting habitat on either private or public land. Both such forms of incentive driven conservation have been shown to be relevant to Australia.
The prohibition of recreational hunting of game birds73 in NSW – which has been in place since 1994 – was the subject of a scientific panel review in 2000.74 The panel found that the end of legal hunting of waterfowl did not result in any increase in the
69 Sect 120(2A) of the National Parks and Wildlife Act 1974 (NSW) provides that a general licence does not authorise the harming of game birds for sporting or recreational purposes but can authorise a sporting or recreational shooter to harm game birds for any other specified lawful purpose. Hunting may occur pursuant to a general (s120), occupier’s (s121), or trapper’s (s123) licence. A general licence can be authorised to harm for any purpose and the fauna harmed can be sold. Hunting cannot take place in a reserved area unless expressly provided for. An occupier’s licence can be issued to an owner or occupier of specified lands to harm, or permit holder of general or trappers licence to harm fauna on the specified lands. Again this cannot be a licence to harm game birds for sporting or recreational purposes but can authorise a sporting or recreational shooter to harm game birds for any other specified lawful purpose (s121(3)). Game hunting of introduced species is regulated by the Game and Feral Animal Control Act 2002 (NSW). A trapper’s licence allows the holder to harm species for purposes of sale. Royalties are payable for the taking of kangaroos and birds under reg 52 of the National Parks and Wildlife Regulation 2002. 70 Sect 97A of the Nature Conservation Act 1992 (Qld) states that there is no authorisation allowed for the recreational hunting of native ducks or native quails Sect 88(2) provides that a person must be authorised to take a protected animal. A protected animal is either threatened, rare or common wildlife. A ‘conservation value’ – presumably equivalent to a royalty – may be payable under s95(1) for protected wildlife taken under a licence, permit or other authority. The payment does not transfer property in the wildlife from the state (s 95(3)). 71 Sect 15A of the Wildlife Conservation Act 1950 (WA) prohibits the sport or recreational hunting of duck, geese or quail. The Act also provides that the Minister may declare fauna not protected or protected to a particular extent (s14(1)). Protected fauna may be taken pursuant to a licence (s15). 72 Chapter 2, s. 2.2. 73 Such as quail, geese and ducks. 74 The panel reported its findings in November 2000: Richard Kingsford, Peter Fullagar and Grahame Webb, Scientific panel review of open seasons for waterfowl in NSW (2000), NSW National Parks.
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numbers of the game species while it appears there has been a decline in population, with habitat loss identified as the most likely cause.75
The NSW report supports the contention that hunting can provide a valuable incentive for the conservation of habitat on private land. The panel’s discussion of the conservation issue noted that there is unassailable evidence that hunting organisations are contributors to wetland conservation:76 Hunting groups make a contribution to wetland conservation in Australia through rehabilitation of wetlands, purchase of wetlands and other conservation efforts which more than offset relatively minor effects hunters are claimed to make through rubbish and from four-wheel-drive vehicle damage.77
A Federal Government report on the state of Australia’s birds also concludes that, if properly regulated, “Recreational hunters could become a force for conservation as they have in countries such as the United States.”78 In Victoria, the Field and Game Association has reported on its efforts to conserve wetlands, which have been particularly significant given that, at the time of its formation in the 1950s, ‘swampland’ was considered a habitat of no value.79 The association notes that the shooters and game licences raise more than $5 million per year alongside other benefits arising from the hunters’ interest in maintaining bird habitats. In addition to licence revenue the Association undertakes voluntary conservation projects using its own financial and human resources. These projects may involve building and maintenance of water control structures, revegetation
75 Id, 23-24. 76 Id, 79. 77 Id, 80. 78 Penny Olsen and Michael Weston, Birds Australia, ‘Water, wetlands and birds’, The State of Australia's Birds 2004 (December 2004), available at
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works, pest animal control, waterfowl monitoring, construction and installation of duck nesting boxes and research.80
As discussed in Chapter 4 of the thesis, degradation of the Australian environment indicates that conservation via sustainable use, with its recognition of the need for incentives for private land management, is not just for developing countries. The Northern Territory’s proposal for the export of safari trophies should thus be evaluated in the context of the strong CSU arguments in favour of regulated hunting as the domestic experience confirms that this is clearly applicable to conservation management in Australia. The prohibition demonstrates an apparent absence of environmental logic in the Australian wildlife regime as well as a potential failure to respond to our international obligations as it is clearly out of step with both the provisions and resolutions of CITES.
S2 Live exports of Australian native fauna
The aim of this section is to critique the division in the Australian export regime with regard to live commercial exports whereby there can only be live commercial exports of invertebrates or marine vertebrates. In other words, there can be no live commercial export of native Australian terrestrial vertebrates.
The section deals with live exports of native wildlife and begins with a review of the permitted exports of live fauna as well as existing international trade in Australian birds that are bred and traded by other countries and the domestic movement of live specimens. It then examines the proposed live export of native birds for the international pet trade, currently prohibited by the Act. Finally it juxtaposes the permitted and prohibited exports to tease out concerns specific to a live commercial trade.
2.1 The permitted export trade
80 Ibid.
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There is a thriving commercial export trade in live native Australian fauna, namely crustacea, fish and insects.
Exports of live native crustacea and fish make up a considerable part of Australia’s rural exports. The Australian Bureau of Agricultural and Resource Economics (ABARE) reported in 2005 that the principal edible fisheries export in 2003-04 continued to be rock lobster ($427 million)81 which is shipped live, fresh or chilled.82 The exports are either regulated as Wildlife Trade Operations, pursuant to the EPBC Act,83 or have been declared as exempt from the Act’s export controls. The list of exempt native specimens includes: Southern rock lobsters exported from Tasmania and South Australia and the Western rock lobster from Western Australia. All are subject to fisheries regulations.84
While these exports concern animals that will be eaten in the importing country there are also a number of export operations of native animals for the international pet trade. These comprise seahorses and fish for the international aquarium industry while the insects include butterflies, stick insects and the giant cockroach which may all be exported for use as pets, scientific displays or for education.85
There are a number of export operations for live native fish, either taken from the wild or bred in captivity, for the international aquarium trade. Marine Aquarium Fisheries in Queensland, Western Australia, Tasmania and the Northern Territory are regulated by the respective state and territory governments and each jurisdiction must submit ecological assessments for Federal approval as a wildlife trade operation pursuant to
81 ABARE 2005, Australian Fisheries Statistics 2004, Canberra, at 5. 82 Id, 40. 83 Declared under s303FN of the EPBC Act. See discussion of the regime in the previous chapter. 84 The list is available at
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s303FN of the EPBC Act to enable them to export the specimens. Once the application has been approved there may be no need for further permits for individual exporters except where the export refers to a CITES-listed specimen.86 There are several operations, the applications for which were made by the State and Territory fisheries authorities. These applications refer to the state and territory-based regulation of the aquarium industry.
For example, Queensland’s current aquarium exports are regulated by a wildlife trade operation,87 which was declared based on the Queensland Department of Primary Industries and Fisheries application for assessment.88 The assessment document reports that the Queensland Marine Aquarium Fish Fishery (MAFF) has operated since the 1970s and specimens are exported live to Asia, Europe and the USA. Target species of the fishery comprise over 100 species of marine invertebrates and fish and there are 49 commercial permits issued.89 In contrast, Western Australia’s wildlife trade operation for the Cocos (Keeling) Islands Marine Aquarium Fish Fishery has only one target species, the Yellowheaded Angelfish (Centropyge joculator) and only once licence issued.90 The target species is endemic to the Cocos and Christmas Islands and
86 For example, the Western Australia Department of Fisheries Final Application to the Australian Government Department of Environment and Heritage on the Marine Aquarium Fish Managed Fishery was approved by the Federal department in October 2005. The approval stated that the product from the WA fishery will be listed as exempt native specimens, except CITES-listed species including Hippocampus seahorses and hard coral. The Ministerial decision confirming the approval and the exemption is available at
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commands a high price on the international market.
There are also Wildlife Trade Operations that apply directly to private operators. For example, there is a wildlife trade operation declared for the export of Australian Lungfish (Neoceratodus forsteri) from Queensland, by Wildgrove Pty Ltd as a small scale operation.91 The lungfish is listed as a threatened species under s179 of the EPBC Act and is also listed on Appendix II of CITES but exports are allowed for live specimens to be exported for the international pet trade.92 The declaration of this export operation sets out a number of conditions, including the way in which brood stock are kept, that exported specimens are produced from those brood-stock and that some of the first generation specimens are kept each year for ‘conservation breeding’.93 There are also wildlife trade operations for seahorses which are harvested from the wild and either the wild or captive bred specimens are exported for the international aquarium trade,94 as well as a pet hermit crab operation for which specimens are harvested from the
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wild.95
Apart from marine species, there is a wildlife trade operation for the export of insects by the Australian Insect Farm which has had a permit to export specimens since 1995.96 The exports include a range of beetles, butterflies and moths, dragonflies and scorpions.97 The privately-owned farm, which describes itself as ‘primarily a research centre’, generates its income from commercial harvesting and breeding with the aim of improving insect knowledge and awareness; for example, conditions for the operation include that, for each calendar year of the operation, one specimen from each species harvested must be lodged as a voucher specimen with the Queensland Museum.98
The insect operation has been conducted on a range of freehold properties in Queensland for more than 20 years and its “primary management strategy” has included the reafforestation of their properties to improve the wild harvest, leading to “remarkable” improvements in species diversity and abundance.99
2.2 The existing trade in Australian native birds
This section describes the long established trade in live birds for the pet trade, both at an international level and between jurisdictions within Australia. It demonstrates that the
95 Merv Cooper’s Crazy Crabs. The declaration of the approved wildlife trade operation provides that all specimens of the crabs (Coenibita variabilis) to be exported will be collected under a valid Western Australian Department of Fisheries Commercial Fishing Licence. The declaration is valid until 30 June 2009 and is available at
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proposals to export live native birds from Australia – discussed in section 2.3 – reflect established regimes which could provide guidance and an existing infrastructure for any expansion in the trade.
2.2.1 International trade There is an extensive international trade in parrots. From 1998 to 2000, the world trade in parrots totaled over one million birds.100 The estimated value of the international caged bird trade in the early 1990s was $US 60 million per year.101
Australian species are captive bred in other countries for this market. For example, galahs are bred in Tanzania and New Zealand, and the United Kingdom and Indonesia are major parrot exporters of other Australian species.102 The same breeds of birds that are on the international market are also bred in Australia but these are only for the domestic market because of the export prohibition. Wilson notes the substantial price gap between the domestic and international market with a 1600% mark up for gang- gang cockatoos and 6000% mark up for galahs.103
Nearly all parrot species are listed on CITES Appendices I and II104 with the majority on Appendix II, which requires a regulated trade. The listing does not necessarily reflect
100 World Wide Fund for Nature, Wildlife Trade, Frequently Asked Questions: Parrots, available at
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the CITES criteria in the case of many of the Australian species which are abundant and not threatened by trade.
There are 100 parrot species on the 2006 IUCN Red List of Threatened Species which are considered threatened because of habitat loss and excessive capture for trade. WWF reports that the response has not been to stop trade, rather to improve sustainability of existing trade and encourage captive breeding, which will still allow for ranching of eggs and nestlings from the wild.105 With habitat destruction remaining by far the greatest threat to bird numbers, banning of trade and loss of economic value in birds is seen as more likely to aggravate this threat.106
The United States, the world’s largest importer of exotic birds for the pet trade, responded to concerns about the effects of the trade by introducing tougher requirements for imports rather than stopping them altogether. While the majority of imported parrots are now captive-bred,107 the US also allows the import of wild-caught birds from countries with approved management plans.108 The US Fish and Wildlife service comments that the Act previously prohibited import of CITES-listed species but it now “provides opportunities for importation of wild-caught birds meeting sustainable use criteria”. The birds can also be imported without a permit if they come from a country that has developed a scientifically based management plan for sustainable use
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of the species.109
The strict approach of a major importer such as the United States buttresses the proposals for ranching of Australian birds – set out below – given they argue that Australia could compete with the existing market by positioning itself as a quality exporter with trade subject to approved management plans.
2.2.2 Regulation of the domestic trade While no live commercial export of native terrestrial vertebrates may occur on an export basis, there is a considerable commercial trade within Australia. The RRAT Inquiry referred to the “hundreds of bird breeding clubs” and “thousands of people” who keep and breed birds.110 The Parrot Society of Australia provides a website for members to buy and sell native birds.111 The advertised birds include species listed on Appendix I to CITES which, the Society’s website comments, are “commonly held in Australian aviaries”.112
The taking, keeping, breeding and selling of native animals are subject to a range of regulations across Australia’s jurisdictions but all allow some degree of trade in native animals113 and most allow at least certain native birds to be taken from the wild, including Victoria,114 Western Australia115 and South Australia.116
109 Wild Bird Conservation Act 1992, Final Rule Summary, available at
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Each State and Territory has licensing requirements for the interstate movement of certain species and, apart from Tasmania, all the jurisdictions exempt some species from any export regulation. In NSW an import/export licence is required for interstate movement of Australian native birds117 but there are currently 41 native bird species for which no licence is required.118 In Victoria an export licence is required to trade native birds interstate119 unless the species is exempted.120 In Western Australia the licence requirements to breed, deal, keep, farm, export and import native birds do not apply to 10 species of native birds.121 In Queensland, commercial wildlife licences can
person has sufficient experience and appropriate facilities to keep the animal. There is no prohibited list of animals in South Australia. (Available at
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be granted for a live controlled or commercial animal122 but 22 native birds are exempt from licensing requirements.123 No authority is needed to buy or accept, keep and use these birds as long as they were obtained lawfully beforehand.124 The listed birds can also be moved interstate without a permit.125 In South Australia, permits are required to export all protected native fauna.126 A permit is required to keep a protected animal,127 possess eggs of a protected animal128 or to sell or give away the animal, carcass or eggs of a protected animal,129 but there are considerable exclusions to the provisions. Schedule 7 of the National Parks and Wildlife (Wildlife) Regulations 2001 prescribes those animals not subject to any of the permit requirements.130 In the ACT, an animal can be taken,131 kept,132 sold133 and exported134 in accordance with a licence. There are 10 birds for which a licence is required135 while Schedule 2 to the Act lists 147 birds which are exempt from the licence requirements under ss 46-48. The Northern Territory requires permits to “take or interfere with wildlife for commercial
122Reg 78, Part 3 of the Nature Conservation Regulation (Wildlife Management) Regulation 2006. Schedule 3, Part 2 of the regulation lists 28 controlled birds and Part 3 of the regulation lists 33 commercial birds. The licences allow the use of the birds for a “commercial purpose” which is defined by the Regulation as being “for gain or reward”. 123 Schedule 3, Part 1. 124 Reg 44 125 Reg 45(1), Nature Conservation (Wildlife Management) Regulation 2006 (Qld). 126 Sect 59(2) of the National Parks and Wildlife Act 1972 provides that permits may be granted for the export of protected animals. The South Australian permit system is summarised in SA Department for Environment and Heritage, Fauna Permits. Available at
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purposes”.136 Exemptions may apply to specified species as declared under s 27 of the Act. The Minister may also declare it lawful to “keep or bring into, release in or take out of the Territory, including for a commercial purpose, animals of a specified animal species of protected wildlife without being granted a permit to do so”.137
In Tasmania, while exemptions apply to the sale and possession of certain birds,138 permits are required for all exports from the state.139 Reg 11 provides that a permit can be purchased for export of specially protected,140 protected141 or partly protected wildlife.142
The existence and clear acceptance of a regulated trade of native fauna between jurisdictions in Australia leads to the question as to what is the relevant difference between sending a bird from, say, Sydney to Perth, and the shorter distance of Sydney to Auckland. This chapter goes on to address the specific issues that arise in live commercial exports of species but, at least to some extent, the domestic trade reveals that the commercial use of native birds per se has not been objectionable to Australian decision makers.
This section showed the extent to which Australian decision makers accept a commercial trade in native wildlife and use regulatory powers to provide a sustainable basis to the operations. It has also demonstrated that commercial use of Australian native wildlife is established both at a domestic and international level, involving both wild and captive-bred animals. There are potential and actual conservation benefits, with the wildlife trade operations referring to improved biodiversity on privately-held
136 Sect 55(1)(b), Territory Parks And Wildlife Conservation Act 1976. Sect 43 of the Act provides that all native vertebrates, along with all wildlife in protected areas, are protected animals. 137 Sect 44. 138Reg 16(2)(a), Wildlife Regulations 1999 (Tas). The exempt birds listed in Schedule 3 are stubble quail, galah, sulphur-crested cockatoo and rainbow lorikeet. Reg 17(8) provides that no permit is required to possess a live pheasant, brown quail or wild duck. 139 Reg 20, pursuant to s 28 of the Nature Conservation Act 2002 (Tas). 140 Schedule 1 of the regulations lists 114 birds along with other wildlife. 141 Schedule 2 of the regulations lists 213 birds along with other wildlife. 142 Schedule 4 of the regulations lists 7 birds along with other wildlife.
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land, increased knowledge of species harvested, which may otherwise be neglected, and ‘conservation breeding’ of threatened species.
2.3 The prohibited trade
This sub-section critiques the ban on live commercial exports of terrestrial vertebrates by examining proposals to export live birds for the international pet trade and then assessing whether there are any significant differences between these animals and those species already subject to export that are particular to a live commercial trade.
There have long been calls to expand Australia’s live commercial exports,143 particularly those species currently classified as being at pest levels and subject to culling under State and Territory legislation.144 The most recent federal parliamentary inquiry into commercial use of wildlife in Australia concluded that the live trade ban did little to protect those species that may be subject to illegal trade and therefore a legal trade should be considered.145
While it is unlikely that there is currently any Australian interest in commercially exporting, say, live kangaroos, there is agitation for live commercial exports of birds and reptiles for the overseas pet market.146 The Aviculture Federation of Australia has referred to the “significant markets” for Australian birds overseas.147 The RRAT Committee examined proposals for the live commercial export of reptiles as pets and
143 As set out in sect 3.2 of Chapter two and sect 1 of Chapter 4 of the thesis. See also RS Kingwell, ‘Should Australia export its native birds?’ (1994) 62(2) Review of Marketing and Agricultural Economics, 261. Kingwell, a Western Australian government advisor noted that the debate over international trade in native birds has been “a policy issue for decades” (at 270). 144 For example, galahs, along with sulphur-crested cockatoos and corellas, are considered ‘superabundant’ in certain areas. Most jurisdictions in Australia classify the birds as protected but then allow for regulated culling by way of permits. In NSW, the galah is classified as "locally unprotected fauna" under s 96(1) of the National Parks and Wildlife Act 1974 (NSW). This classification applies to the Central and Western Divisions of NSW, excluding designated conservation areas, such as nature reserves and national parks. Section 98 of the NPWA prohibits harm to protected fauna without an authority to do so but no licence is required where the galah is locally unprotected 145 RRAT, above n 46 at 293. 146 See, for example, Sustainable Economic Use of Native Birds & Reptiles, available at
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clearly indicated its support, stating that such trade “would result in the undermining of illegal activities and would allow private enterprise to engage in overseas commercial activities”.148
Advances in DNA fingerprinting have also encouraged support for an international trade by assuaging concerns about it providing cover for the illegal export of wild- caught birds. Kingwell notes that it “facilitates the legitimate sale of native birds on domestic and international markets while lessening the risks of exploitation of wild populations that might otherwise accompany a relaxation of the export ban”.149
The proposals for an export trade in pet birds do not suggest sending the actual pest birds overseas but either ranching or breeding from those species so that only captive bred/hand reared birds are exported. The trade in captive bred species may or may not rely on eggs taken from the wild, much in the manner of crocodile ranching programs.
The Rural Industries Research and Development Corporation (RIRDC) has examined the proposed commercial export of native birds and reptiles and concluded that a trial export of captive bred specimens has commercial and ecological merit.150 The study concluded that the export regime should be altered to allow the export of a limited range of species on a trial basis.151 This could begin with captive breeding of smaller species152 then followed by a ranching program in which surplus wild-hatched young of common species such as galahs and sulphur-crested cockatoos could be harvested to be hand reared in captivity.153
The Northern Territory has also proposed a trial program for the ranching of eggs and hatchlings of red-tailed black cockatoo, Calyptorhychus banksii, from the wild, to be
147 Aviculture Federation of Australia, cited in the RRAT report, above n 46, at 282. 148 RRAT, above n 46, at 304. 149 Kingwell, above n 143, at 270. 150 ACIL Economics, above n 102. 151 Id, 111. 152 Such as budgerigars, cockatiels and Adelaide, Cloncurry and hooded parrots. Ibid.
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sold after they are hand-reared. This would initially be for the domestic pet market only but the aim of the program is to promote the commercial export of the live birds.154 The birds are common in the Northern Territory and are regarded as pests by farmers.155 The concern is that they will lose their habitat to agriculture unless there are economic incentives to prevent the destruction.156
The Industry Commission has recommended that all Australian governments “facilitate the commercial utilisation and exporting of live native fauna in a manner which builds public confidence that further utilisation will occur only if adequate and appropriate safeguards exist”.157 The Commission’s approach is that ‘blanket bans’ on trade do not provide a safeguard for native wildlife. Instead, there should be an assessment of applications for the removal of export controls on a case by case basis and, where necessary, the export could be on a trial basis “to determine whether appropriate codes of practice and/or management programs can be developed and applied, and whether they can be enforced adequately”.158 The trials would also serve the purpose of assessing the economics of a wildlife trade.159
The Commission suggested that, in selecting species for live export, the starting point could be those birds already subject to an illegal trade “or for certain pest species
153 Ibid. 154 Parks and Wildlife Commission of the Northern Territory, A Trial Management Program for the Red-tailed Black Cockatoo (Calyptorhychus banksii) in the Northern Territory of Australia (February 1997). 155 Michael Vardon, Richard Noske and Brendan Moyle, ‘Harvesting black cockatoos in the Northern Territory: catastrophe or conservation?’ (1997) 10(1) Australian Biologist 84 at 86. 156 Id, 89. There has been no progress with implementing the proposal: Grahame Webb, email correspondence, 16 May 2006; Mike Letnic, formerly Parks and Wildlife Commission Northern Territory, pers. comm. 22 March 2006. See also discussion in Clement A. Tisdell, ‘Economic Incentives to Conserve Wildlife on Public Lands: Analysis and Policy’ (2004) 24 The Environmentalist, 153 at 160- 161. 157 Industry Commission, A Full Repairing Lease, Inquiry into Ecologically Sustainable Land Management, report No. 60 (27 January 1998), Recommendation 15.1, at 317. 158 Id, 316. 159 Id, 317.
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(particularly birds) where trade does not conflict with Australia’s obligations under CITES”.160
In its discussion of the commercial trade in native birds, the RRAT Inquiry surveyed proposals for commercial use of wild caught birds, ranching of eggs and juveniles from the wild, obtaining breeding stock from the wild, captive breeding of rare or endangered species and export of captive bred native birds. The Committee’s conclusions supported the live trade proposals of aviculturalists; it singled out the issue of the possible stimulus to illegal removal of birds from the wild as the most significant conservation argument then found that the prohibition had not prevented smuggling of live birds or eggs overseas.161
The parliamentary debates at the introduction of the EPBC Act’s predecessor, the Wildlife Protection Act, illustrate some of the tensions in relation to export of abundant native species. Although welcomed by both sides of Parliament when introduced in 1982, the Bill also attracted criticism from the government's own members, particularly in relation to the Bill's broad prohibition on most live exports, with no discrimination between endangered and pest native species.162 The then National Party Member for Mallee, Peter Fisher, who had sat on the 1976 House of Representatives Committee on Trafficking In Fauna In Australia, commented that many witnesses - and the committee itself - recommended a relaxation of export controls. While those in favour of the tight controls cited the high price attracted by native birds smuggled overseas as an argument for maintaining the prohibition on live exports, Fisher countered that it created the "absurd situation of smugglers earning large sums of money abroad for fauna which is being destroyed daily in Australia because it is a pest".163 The honourable member for Cunningham cited the case of the sulphur crested cockatoo which is bringing $1000 per bird in New York. Many primary
160 Id, 316. 161 RRAT, above n 46, at 293. 162 The Wildlife Protection Bill was introduced by the then Conservative Coalition Government but by the time the Act came into force, in 1984, a Labor Government was in power. 163 Commonwealth, Parliamentary Debates, House of Representatives, 18 August 1982, 511.
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producers in the west Wimmera area of my electorate would be prepared to send millions of sulphur crested cockatoos to New York for nothing.164
The extent to which the proposed trade will contribute to conservation is difficult to determine. The ranching of eggs or hatchlings from the wild can provide incentives for conservation of native habitat. If, however, the proposals for live export are based exclusively on captive bred animals in closed cycle farming then any conservation argument is not going to be habitat-based, but there may be other conservation benefits such as those referred to in the previous section of this chapter. Submissions to the RRAT inquiry also identified other possible conservation benefits from the proposed trade as including: • Information gathered by breeders is relevant to management of birds in the wild • Increased incentives to maintain and breed rare birds would help expand their gene pool; • A levy on exports could return money to conservation; • Aviary bred birds could be returned to the wild under certain circumstances. (It was noted by the inquiry that some species were in greater numbers in aviaries than in the wild.)165
The issue of obtaining levies that can be channelled back into conservation and thus provide a positive outcome is of course a regulatory construct rather than a factor that is necessarily linked to the trade. The point is that there is the potential to use regulatory mechanisms to achieve conservation outcomes by way of levies which could, for example, result in industry funding related research and regulatory costs of government: Avicultural exporters could tender for the right to receive some portion of the bird harvest with the tender revenue and subsequent export fees going to pay in part for the research, harvest, habitat protection, administration and policing costs of the government.166
164 Ibid. 165 RRAT, above n 46, at 286. 166 Kingwell, above n 143, at 268.
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The conservation questions can be posed in positive, negative or neutral fashion: is the trade detrimental to the species and/or its habitat; is the trade beneficial to the species and/or its habitat; is there no perceptible impact on the species or its habitat. As discussed in Chapter 2, any appraisals of CSU also need to be placed in context to assess their relative merits, compared to what may happen to the habitat in question if there is no such use. Along with the other identified conservation benefits, given that some of the proposals are intended to provide an incentive to prevent or reduce the clearing of native habitat on private land, it appears that they would present as a far preferable conservation scenario.
2.4 Juxtaposing the permitted and prohibited live export industries
If there is a thriving live export industry in certain Australian native fauna, why is it that there is such a sharp divide in the legislation such that some other native fauna is excluded from this trade? This section will now examine possible concerns that could be raised in relation to the live export trade to determine whether there is a relevant distinction between native terrestrial vertebrates and all other fauna in Australia. This thesis has, thus far, aimed to demonstrate that, on balance, it does not appear that ecological arguments can form the basis for opposition to commercial use, given the demonstrated benefits that can arise from trading in wildlife as opposed to using native habitat for other more destructive commercial purposes. As I am now critiqueing what I believe are illogical provisions with regard to live commercial exports, it is important to assess what may be other legitimate concerns, particular to the international movement of live specimens. I therefore now assess the existing and proposed live exports of native fauna with regard to three such concerns: welfare, disease and economic viability.167
167 These are the concerns specific to a live trade. Chapter two of the thesis dealt with the major concerns about any proposal to trade in wildlife, including: the uncertainty of outcome, will the legal trade foster the illegal trade and how to determine distribution of the costs and benefits, that is, will the proposed trade simply be a private benefit to the individuals involved or is there some public good to be obtained, namely conservation of the species traded and/or their habitat.
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One of the most cogent and frequently-used arguments against live commercial exports concerns the welfare of individual specimens subject to shipment. This is not a conservation argument but still has force because of ethical considerations. The second important consideration, which is a conservation concern, is the potential biological impact of a live specimen on the environment in the importing state. Thirdly, there is the economic concern that the live specimens could form the breeding stock for overseas competitors. I examine the three concerns in turn to provide a way to question the regime’s divided approach to Australian native animals.
2.4.1 Humane Concerns I believe that a major barrier to Australia allowing the commercial export of live birds and reptiles is the perception that such trade is not humane. International movement of wildlife frequently attracts publicity in the context of the illegal trade, featuring photographs of dead or dying animals, particularly birds, confined so as to avoid detection, with the cruel conditions resulting in high mortality rates. The images from the illegal trade elicit justifiable objections from the general public and I consider this underlies the reluctance of Australian political decision makers to engage with the international trade issue.
This position ignores the reality of a considerable legal export trade in live wildlife which is subject to regulations concerning the welfare of the animals concerned. This has been addressed on a number of occasions by the Parties to CITES.168 If the legal live bird trade is accepted by other countries then I question why Australia opposes the export. If it is on welfare grounds given the existing trade from Australia in other native fauna, which appears to be completely acceptable on welfare grounds. To do so, I sort through the position in relation to fish and invertebrates versus other animals. The point is to show that the public and, hence, political concern is grounded in certain attitudes to wildlife. If the live commercial export of fish and invertebrates is accepted, either to be eaten or kept as a pet overseas, then it is important to determine whether there are relevant differences between these and other native animals on welfare grounds such as to justify the divide.
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The domestic legislative consideration of welfare concerns for fish and invertebrates is mixed, with most jurisdictions differing from each other in the way in which they define “animal” for the purposes of their animal welfare legislation. All include vertebrates, but they differ in the extent to which they include invertebrates in their interpretation provisions. South Australia169 and Tasmania170 are the only jurisdictions to make no reference to invertebrates (South Australia also excludes fish from its definition of vertebrates); New South Wales171 restricts its concern for invertebrates to crustaceans that will be sold for consumption; Western Australia’s172 definition of animal includes live invertebrates but excludes fish; the Northern Territory173 makes no distinction as to class of animal, its triggers for concern being whether animals are domestic or wild- captive; Victoria174 and the ACT175 specifically include fish and ‘live crustaceans’; and Queensland176 makes specific reference to live invertebrates “from the class Cephalopoda177 or Malacostraca”178 as prescribed in the regulations.
Up until 2004, invertebrates were excluded from scientific ethics policy in Australia. The National Health and Medical Research Council’s Australian Code of Practice for the Care and Use of Animals for Scientific Purposes previously described its scope as covering “all live non-human vertebrates” with eggs, foetuses and embryos to be “treated in a humane manner where development of an integrated nervous system is evident”.
168 See above at n 4. 169 Sect. 3, Prevention of Cruelty to Animals Act 1985 (SA). 170 Sect. 3, Animal Welfare Act 1993 (Tas). 171 Sect. 4, Prevention of Cruelty to Animals Act 1979 (NSW). 172 Sect. 5, Animal Welfare Act 2002 (WA). 173 Sect. 3, Prevention of Cruelty to Animals Act (NT). 174 Sect. 3, Prevention Of Cruelty To Animals Act 1986 (VIC). 175 Sect. 2, Animal Welfare Act 1992 (ACT). 176 Sect. 11, Animal Care And Protection Act 2001 (QLD). 177 ‘Cephalopods’ include octopuses, squid, cuttlefish and nautiluses. 178 ‘Malacostraca’ include crabs and prawns.
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The Code suggested “Investigators should consider forwarding proposals to use higher order invertebrates to [Animal ethics committees]”. (Emphasis supplied.) This was expanded in the 2004 amendment as follows: The Code covers all live non-human vertebrates and higher-order invertebrates. Investigators and teachers should take into account emerging knowledge and ethical values when proposing to use other animal species not covered by the Code.179 (Emphasis supplied.)
The National Aquaculture Council has begun to address animal welfare and husbandry issues in the industry180 and a draft National Animal Welfare Strategy has been produced by the Federal Department of Agriculture, Fisheries and Forestry. The concerns include farm management, stocking density rates, transportation and slaughter methods.
Such recognition of the welfare of invertebrates is not reflected in the Commonwealth’s export regime. Section 303DG(3A)(b) of the EPBC Act provides that the Minister may issue a permit for the commercial export of a live terrestrial invertebrate or a live freshwater fish where such export is from an approved aquaculture program. Section 303DG(4) sets out the conditions applicable to permit approvals with reference to ecological concerns for the specimens and their ecosystem. The welfare requirements provided in s303DG(4)(b) relate only to live specimens from a taxon "specified in the regulations" yet regulation 9A.05, which sets out the conditions for the welfare of live specimens, does not refer to fish and invertebrates – the only animals subject to live commercial export.181
Regulation 9A.19 refers to approved aquaculture programs which may include live exports. The requirements as specified in the regulations refer only to the 'conservation
179 Australian Code of Practice for the Care and Use of Animals for Scientific Purposes (7th ed) (2004), 1. Available at
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status' of the target species or ecosystem and the environmental impacts of any release of the specimens. There is no reference to welfare of the exported specimens.
It appears that the legislation reflects a clear an attitudinal divide in the way people respond to different animals. In a study of the public valuation of a range of endangered species, it was found that: Plants, birds, and mammals, among which there were no significant differences in public valuation, were valued significantly higher than fish, reptiles, amphibians, invertebrates, and microorganisms. Fish, however, were valued significantly higher than reptiles, amphibians, invertebrates and microorganisms..182
As the authors of this study noted, such public perceptions of species “have a major influence on policy formulation and implementation”.183 For example, public funding of conservation programs for endangered species tends to parallel the above valuation. The selection of certain wildlife groups and, within those groups, certain species, for the attention of the public and, consequently, policy makers, is also reinforced by the activities of NGOs. In a breakdown of conservation NGOs in the United states, the same authors found that birds were represented by the most organisations (57), followed by mammals (40), fish (32), plants (19), reptiles (5), invertebrates (4), amphibians (1) and microorganisms (0).184
While it is clear that fish and invertebrates attract a relatively low level of public attention or concern,185 it is not clear why those opposed to live commercial trade do not at least acknowledge the existing live native export industry. For example, a private member’s bill introduced in the Commonwealth Parliament in June 2005 by Australian
182 Brian Czech, Paul R Krausman and Rena Borkhataria, ‘Social Construction, Political Power, and the Allocation of Benefits to Endangered Species’ (1998) 12(5) Conservation Biology, 1103 at 1105. 183 Id, 1104. 184 Id, 1106. 185 Research indicates that, at least in the United states, marine wildlife is far more likely to be considered as food than its terrestrial counterpart. Tatiana Brailovskaya, ‘Obstacles to Protecting Marine Biodiversity Through Marine Wilderness Preservation: Examples from the New England region’ (1998) 12(6) Conservation Biology, 1236 at 1238.
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Democrats senator Andrew Bartlett sought to provide a national approach to animal welfare.186 The Senate’s RRAT Committee conducted a report into the bill and more than 200 submissions were received including a number from animal protection groups including People Against Live Exports, Voiceless Fund for Animals and Humane Society International. There was no mention of the existing live commercial export of crustaceans and aquarium animals in any of the submissions that supported the bill.187
As part of this research I contacted both the World Wide Fund for Nature and Australian Conservation Foundation’s Sydney offices to check whether there was any policy response to the legislative divide based on sub-phylum. I also checked both organisations’ wildlife policies as provided on their websites.188 It appears that there is no response by either organisation to the live commercial export of native fish and invertebrates. It should be noted that both organisations oppose any commercial export of wildlife – that is of live or dead specimens – but such opposition does not refer to the existing live trade.
It is apparent then, that fish and invertebrates do not attract significant public or policy concern for their welfare. This does not necessarily justify the divide between these and other fauna but may help explain it, particularly given the well recognised emphasis on the ‘charismatic mega vertebrates’, as discussed in Chapter 3. Setting attitudes to aesthetic appeal to one side, are there other relevant considerations that differentiate between fish and invertebrates and all other animals as far as their welfare is concerned? I believe this raises a further relevant issue: whether or not fish and invertebrates feel pain as otherwise the welfare issue may be a moot point as far as a critique of the divided legislation is concerned.
186 The National Animal Welfare Bill 2005. 187 The RRAT Report on the bill, released in June 2006, recommended that the bill should not proceed (majority report). Available at
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Do fish and invertebrates feel pain? Pain is always subjective… pain is that experience we associate with actual or potential tissue damage. It is unquestionably a sensation in a part or parts of the body, but it is also always unpleasant and therefore also an emotional experience.189
As ‘beauty is in the mind of the beholder’ so pain is often in the mind of the observer.190
There is ongoing debate as to whether or not fish and invertebrates can feel pain, with no definitive findings to date. Those working in the area appear to concur that the sheer physiological distance between humans and fish and invertebrates thwarts the attempts of experimenters to distinguish between ‘robotic’ reflexes to noxious stimuli and the presence of actual pain.
The approach varies from that of Wigglesworth, who suggests that fellow zoologists should “approach the problem of pain by thinking of the insect as a little human being”191 (along the lines of B-grade classic The Fly, perhaps?), to the Cartesian approach192 of Gould and Gould, who deny conscious awareness in insects, and are also doubtful as to higher animals, including vertebrates, being anything more than ‘interesting computers’.193
What those writing in the area do agree on, however, are the limits to current understanding of the working of the central nervous systems of invertebrates.194 Eisemann et al comment that, while there is little evidence of a generalised pain
189 International Association for the Study of Pain (IASP), available at
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experience in insects and it is likely that the same applies to other invertebrates with less complex systems, there should be caution in extrapolating this to the more complex invertebrates “notably the cephalopod molluscs”.195
Australian scientists working in rural industry research have written on the current understanding of both pain and welfare for fish and crustaceans as relevant to both humane and commercial considerations for the industry.196 It is argued that, the better the condition of a live specimen on arrival in an importing state, the higher the price received. Market pressures thus can provide a positive – if self interested – outcome for the wildlife involved.197
In relation to the welfare of crustaceans, there is similar difficulty in determining whether specimens feel pain and thus may suffer in a way in which humans would understand the phenomenon. Although the crustacean nervous system appears simple, surprisingly complex behaviours have been recorded and emphasise the need for caution in interpretation of complexity from anatomy.198
There is as yet no widely accepted method for humane treatment of crustaceans, and practices continue that are not considered humane.199 Yet the live export continues apace. At the same time, those working in the rural export industry acknowledge the
194 See Richard C Brusca and Gary J Brusca, Invertebrates (2002); CH Eisemann et al, ‘Do insects feel pain? – A biological view’ (1984) 40(2) Experentia 164 at 166; Wigglesworth, above n 190, at 8. 195 Eisemann recommends that scientists should still guard against the possibility of inflicting pain, which also “helps preserve in the experimenter an appropriately respectful attitude towards living organisms whose physiology, though different, and perhaps simpler than our own, is as yet far from completely understood”. Eisemann, id, 167. 196 See for example, Colin Johnston, ‘Nociception and nociperception in fish: where does the debate fit in primary industries?’ in Jones above n 180, at 14. 197 Clive Jones, Queensland Department of Primary Industries Freshwater Fisheries and Aquaculture Centre, telephone interview, 10 June 2004. See also Colin Johnston, ‘Welfare Considerations in Aquatic Animals’ (2003) 16(2) ANZCCART NEWS 1-4. 198 Caleb Gardner, ‘Treating the prawn well on its way to the barbie: welfare of aquatic crustaceans’, in Jones above n 180, at 22. 199 Gardner refers to the use of freshwater baths to kill crustaceans as it avoids limb loss as an example of a clash between product quality and welfare objectives as it is not considered to be a ‘humane option’. Id, 22.
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possibility of suffering being incurred by the live exports – and local live trade – and are working to address the welfare of traded specimens.200 The approach taken is that, while it is difficult to measure pain in non-human animals, it is still preferable to manage specimens in a way that will minimise the potential for distress.201 This is not to suggest that such trade should not continue, particularly as those working in the industry are alive to welfare concerns.
Given there is reasonable doubt as to the extent of any difference between animals that may or may not be commercially exported, this demonstrates the degree to which the live commercial debate is subject to socially conditioned attitudinal influences rather than broad based humane considerations of potential animal suffering.
2.4.2 Humane concerns – the proposed trade
As the research cited above demonstrates, there may be more concern expressed about the welfare of bird and reptile specimens than for crabs and aquatic animals. So can birds and reptiles be transported overseas in a humane way? The EPBC Regulations 2000 already regulate the live export of birds and reptiles, given non-commercial export is currently allowed. Reg 9A.05 covers the welfare of live specimens. It provides, inter alia, that where there is an export of a live specimen,
(a) the animal is prepared and transported in a way that is known to result in minimal stress, risk of injury and adverse effect on the health of the animal;
(b) the person receiving the animal is suitably equipped to manage, confine and care for the animal, including meeting the behavioural and biological needs of the animal.202
200 As demonstrated by the work of Johnston, above n 196, and Gardner, above n 198, along with the other papers in Jones above n 180. See also discussion of factors contributing to deaths of rock lobsters during live export in Patrick T. Spanoghe and P. K. Bourne, ‘Relative influence of environmental factors and processing techniques on Panulirus cygnus morbidity and mortality during simulated live shipments’ in (1997) vol 48 Marine Freshwater Research, 841 at 843. 201 Id, 21. See also Eisemann, above n 194, at 167.
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While opposition to export has referred to the stress to birds in transit, proponents argue that improvements to transport mean survival rates are almost 100% as, whether for welfare or commercial reasons, presumably traders are going to be motivated to ensure the birds are in good condition on arrival at their destination.203
As there is a large long-established avicultural industry, where trade has been conducted domestically for many years, there are clearly practices in place for the transport of live birds. At an international level, there has been extensive consideration by the CITES Parties of the conditions for live transportation of birds. The ‘Guidelines for transport and preparation for shipment of live wild animals and plants’ were adopted by the Conference of the Parties at its second meeting.204 The guidelines provide detailed instruction on transportation, including, inter alia, the types of containers and their labelling, the provision of food, water and appropriate ventilation, hygiene and collection details.205
2.4.3 Commercial concerns – exporting potential breeding stock A second concern mitigating against the live export trade is the commercial viability of an industry when live animals are exported as they could provide breeding stock for overseas competitors. This has not been a concern for the live crustacean industry. Because crabs and lobsters are widespread, potential culture operations would have access to local broodstock in most cases anyway.206
For this industry, then, it is more of a question of exports demonstrating some competitive edge, such as the health of the stock. Given the ongoing success of the industry it is clear that this has not been a problem to date.
202 Reg 9A.05(3). As noted above, the provisions only apply to mammals, amphibians, reptiles and birds. 203 As raised in relation to the crustacean trade by Clive Jones, above, n 197. The issue of mortality of birds in transit was discussed in chapter 13 of the RRAT inquiry, above n 46. 204 San Jose, 1979. See also Resolution 10.21, where the parties agreed to raising the profile of the guidelines with all carriers and other entities in involved with the transport of live animals. 205 Available at
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In relation to other live exports of animals for the pet trade, these also appear to be established and ongoing industries, this has not presented as a concern. For example, an exporter of aquarium fish who has conducted trade for decades explains that he accepts there is now breeding by overseas operations but this has not been a commercial issue as he has always been able to sell as many as he breeds.207
2.4.5 Commercial concerns – the proposed trade There is a large existing market in Australian animals, including birds, in the international pet trade with stock either coming from smuggled birds or from birds trapped overseas. The RIRDC report notes that Indonesia and the Solomon Islands have both had CITES quotas to export Australian parrots bred from specimens captured after they have flown into their territory.208
So has Australia missed the opportunity to enter this market? In its report on the trade, the RIRDC suggested that Australia would “have an edge” over competitors given the cheaper and easier access to breeding stock and its fitness as well as genetic variety. An Australian export trade could play to a local competitive advantage – capitalising on provenance by promoting disease free, healthy birds. The aim would be for the top end of the market – such as in the United States – that will pay more for good quality specimens and in fact will only accept those that meet certain import standards. Third party competitors such as Birds International in the Philippines may provide considerable competition when they target potential markets with low animal health standards. However, the relatively high avian health standards and certification procedures in Australia may facilitate the export of birds to countries with correspondingly high standards of avian health, such as Scandinavia. 209
207 Bruce Sambell, Managing Director Ausyfish Pty Ltd, pers. comm. 3 September 2007. 208 RIRDC, above n 102, at 60. 209 Ibid.
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It was also suggested that Australia had the advantage of appropriate conditions for breeding while the UK producers had to deal with the extra costs of dealing with the colder weather.210
The Industry Commission, which supports the export of live native fauna, takes the approach that “the question of commercial viability is one for potential investors”.211 That is, the role of the regulator (in this case, the Commonwealth) would be to facilitate a sustainable trade in which commercial operations are subject to environmental and welfare safeguards. It is certainly the case with existing live commercial exports of native species that the Federal Government does not appear concerned with ongoing markets. It is notable that the Federal environmental assessments that have enabled the exports of live native specimens for aquariums make no reference to this issue.
There is uncertainty as to the commercial viability of any new trade but there is evidence of successful ongoing trade in the export of live native wildlife, which supports the proposals to extend the export trade to other wildlife. While the regulators may be more concerned as to the commercial viability of the trade than the Industry Commission suggests, there does not appear to be any fundamental commercial reason for decision makers to not allow the export of live native birds and reptiles.
A further, perverse, economic issue that a legalised trade may address is that the export prohibition on live native birds has artificially inflated their value overseas. As noted in Chapter 2 of the thesis,212 smugglers have obtained a windfall from the prohibition given the difference between the price of the birds on the domestic market and what they can obtain in an illegal international trade.213
210 Ibid. See also Kingwell, above n 143, at 268. 211 Industry Commission, above n 157, at 316. This is supported by the comments of long term aquarium fish exporter Bruce Sambell who believes this is the concern of the exporter who will determine how they can compete with other operators as is the case in any other enterprise. Bruce Sambell, above n 207. 212 In the discussion of the illegal trade in wildlife in section 3.2 of Chapter 2. 213 Brendan Moyle, ‘Regulation, Conservation and Incentives’ in Hutton and Dickson, above n 62, 41 at 50.
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2.4.6 Biological/ecological concerns In this part I look at how the international trade in live specimens is regulated to address concerns about invasive species or other ecological damage occurring in the importing country. There is a potential for live exports to have a significant impact on the environment of the importing state if any specimens are able to enter the ecosystem but it is difficult to identify any distinguishing ecological attributes for an exporting state that allow Australia’s existing trade but militate against expansion beyond fish and invertebrates. This is supported by the regulatory system which does not indicate any differentiation according to the type of specimen.
The concern about the impact of international movement of species is reflected in Article 8(h) of the CBD which provides that Contracting parties “shall, as far as possible and appropriate: prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species”.214 The threat of disease from international trade in wildlife is also recognised by the members of the World Trade Organisation who, as part of the Uruguay Round of negotiations, formulated the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement).215 Australia is a party to the agreement, which acknowledges the right of trading parties to introduce and enforce measures to protect human, animal or plant life or health.216 In Annex A to the SPS Agreement, ‘animal’ is defined as including fish and wild fauna.
The possibility of contamination or invasion from a live specimen can be addressed by an importing state, pursuant to the SPS Agreement.217 A member can not, however,
214 Article 19.3 of the CBD called for a protocol to address specific concerns about the risk to biodiversity from the transboundary movement of ‘living modified organisms. This led to the creation of the Cartagena Protocol on Biosafety to address potential adverse effects on the conservation and sustainable use of biodiversity. The protocol was adopted by the Parties to the CBD in January 2000. 215 World Trade Organisation, The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal Texts (1995). 216 Article 2(1). 217 Annex A defines the measures as including “all relevant laws … regulations … and procedures including inter alia, end product criteria; processes and production methods; testing, inspection, certification and approval procedures; quarantine treatments including relevant requirements associated with the transport of animals … methods of risk assessment”.
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apply restrictive measures that “arbitrarily or unjustifiably discriminate between Members where identical or similar conditions prevail” and members shall not use such restrictions as a “disguised restriction on international trade”.218
Appropriate risk assessment or ‘Impact Risk Analyses’ should be done if restrictions are to be accepted by those Members affected. The restrictions are to be formulated with reference to internationally accepted standards. The SPS Agreement identifies the guidelines of the International Health Organisation (or Office International des Epizooties) as relevant219 and quarantine measures based on such standards are presumed to have complied with the SPS Agreement.220
Disputes over the imposition of restrictive measures – if not resolved between the members involved – may be dealt with by way of a forum between members as provided by the SPS Agreement’s Committee.221 Failing this, dispute resolution is conducted under the auspices of the WTO’s formal dispute settlement provisions.222
In Australia, biological impact is a matter that is “strictly controlled” in the invertebrate export regime.223 The regulation of live crustaceans for export depends on whether they will be entering the importing country as “plate ready” (that is, a food commodity) or an animal for either scientific or aquaculture purposes. If considered as food by the importing country they are exported from Australia in accordance with the Export Control Act 1982 (Cth) and associated Export Control (Prescribed Goods) Orders and
218 Article 2(3). 219 See references to the relevant international organisations in the preamble to the SPS Agreement and at Article 3(4), in relation to member involvement in the organisations; Article 12(3) in relation to the work of the SPS Committee; and in Annex A in relation to relevant international standards, guidelines and recommendations. The objectives of the Office International des Epizooties are at
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Export Control (Processed Food) Orders.224 The Export Control Act defines ‘animal’ as meaning any member, alive or dead, of the animal kingdom, other than a human being.225
The regulations apply to trade in live specimens and do not indicate any discernible difference between types of animal, only the purpose for which they are traded. Again it demonstrates that, if there is a basis for Australia’s prohibition on live exports, it does not appear to be based on any perceived distinction in biological or ecological threats.
2.4.7 Biological concerns – the proposed trade In relation to the proposed trade in birds, it would be conducted within the framework of the existing international trade which operates within a system of quarantine restrictions in importing countries. Given that the proposed export trade relates to species already in international trade conducted by other countries (from species smuggled out and/or bred in other countries from specimens removed – legally or illegally – from Australia), then concerns about pest and disease threats would most likely have been realised before now.
As to the concerns for importing countries, again the Industry Commission takes the approach that this is not an issue for Australian regulators. The question of potential problems caused in other countries by exported Australian wildlife is, in the Commission’s view, rightly one for the sovereign nation concerned.226 This is buttressed by the Federal Government’s environmental assessments of Australia’s live aquarium exports, which contain detailed coverage of ecological issues for the Australian environment but make no reference to any ecological concerns for the states to which the specimens will be exported.
224 These Orders are primarily concerned about food safety and trade description issues and require that the prescribed good is prepared and inspected at a registered establishment. Drue Edwards, Live Animal Exports Program, Australian Quarantine and Inspection Services, email correspondence, 10 June 2004. 225 Sect 3. 226 Industry Commission, above n 157, at 316.
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Australia’s strict quarantine measures227 and fiercely guarded status as a relatively disease free agricultural exporter would presumably act in its favour in relation to the proposed pet exports, particularly for those caged birds for which Australia may be competing with overseas breeders.
This sub-section has scrutinised the wildlife export prohibition that prevents the commercial export of live native terrestrial vertebrates, specifically birds and reptiles, for the international pet trade. The suspicion that such prohibition is a product of attitudes to wildlife that favour some animals over others was buttressed by placing the prohibition in the broader context of an existing cross-border domestic trade in the same animals proposed for export and an existing international trade in other native wildlife, including specimens for the pet trade. The examination of concerns specific to live trade in wildlife both for the existing and the proposed live exports of native wildlife demonstrated that there is no significant, relevant difference between existing and proposed exports to justify the selective approach. A high quality export industry, based on approved management plans overseen by a centralised management authority, would meet the strict requirements of the United States wild bird import regulations and clearly be in compliance with our obligations under CITES.
Conclusion
This chapter has critically examined the divided approach of Australia’s wildlife trade regulation and demonstrated that it is subject to clear contradictions. As to why this may be the case, I can only posit that, absent any other explanation from successive governments, a selective valuation of wildlife has informed law and policy on commercial use.
227 Australia’s import restrictions have been controversial, however. South Australia has prohibited importation of live exotic prawn species to prevent potential damage to the fisheries for western king prawns, Melicertus latisulcatis, and southern rock lobster, Jasus edwardsii: Marty Deveney, Project Officer, Aquatic Animal Health, Primary Industry Research South Australia, email correspondence, 19.5.04. A 25 year dispute between Australia and Canada over Australia’s prohibition of Canadian salmon products was eventually resolved pursuant to the SPS Agreement’s dispute resolution mechanism
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As Chapter 3 of the thesis described, there are marked differences in perceptions and valuation of different species and this has been entrenched by the same selectivity on the part of wildlife campaigners as discussed in both Chapters 3 and 4. This chapter notes there has been no NGO interest whatsoever in the welfare of native wildlife subject to existing live commercial export. As I discuss further in Chapter 8, I believe that decision makers have, unsurprisingly, opted for a politically expedient approach with a selective regard for particular species that reflects prevailing public attitudes to wildlife.
The chapter was divided into two sections: the non-live and live export of native wildlife. Each section first examined permitted trade and then set this against proposed trade that is currently prevented by the Commonwealth regime.
Section one examined Australia’s position concerning exports of non-live specimens. The permitted exports of crocodile and kangaroo meat and skins have been established for many years and enthusiastically defended by successive governments. They are demonstrably sustainable for the species concerned and, for both industries, there are ongoing efforts to establish broader conservation outcomes particularly for private land management.
The permitted trade provided the background for an examination of the Commonwealth’s prohibition of crocodile trophy exports. The prohibitions in relation to international trade were also contrasted with domestic provisions regulating the taking or hunting of native animals within Australia, demonstrating that hunting is still considered acceptable, to varying degrees, in the states and territories.
Hunting clearly remains controversial for some and any consumptive use is highly contentious when it concerns Appendix I species, even though an Appendix I listing means a ban on commercial trade, not exports per se. It may be relatively low scale, provide a window of opportunity for some commercial trade and be recognised as
in Canada’s favour. Tasmania has maintained the prohibition, however, and imports from Canada are reported as being ‘negligible’: Gascoine, above n 220, at 106.
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providing a conservation benefit, but it may be that these arguments do not resonate in Australia because of the continuing neglect of conservation on privately-held land. As this chapter and chapters 2 and 4 make clear, incentive-based conservation is increasingly recognised as an important management tool on social, economic and ecological grounds. To simply dismiss trophy hunting as ‘unacceptable’ indicates that Australia is not prepared to engage in this issue at the possible expense of conservation in other states. It also denies that hunting may be a relevant tool for Australia, particularly in addressing fraught conservation and socio-economic concerns in remote and indigenous communities.
Section one showed that Australia can look to international success stories in hunting of wildlife as a strong argument for trialling a similar approach here. The restrictions on trophy exports have no apparent basis in conservation imperatives and may in fact undermine conservation initiatives. If there are other factors influencing this position then they have not been made transparent and therefore are not available for scrutiny.
Section two addressed the live export of native wildlife and found that, given the thriving domestic industry, the reality of thousands of Australian birds already in the overseas market, and the existing export of other live native fauna from Australia, the reasoning behind the continuing prohibition on the live export of native terrestrial vertebrates remains opaque. If the live export of terrestrial vertebrates presents some particular challenge not applicable to the existing industry, then this should be made clear. In the absence of such explanation I consider that the divide must be grounded in a particular value that has been accorded some fauna but not others.
This approach presents a serious challenge to the credentials of the Australian regime. Even when propounding their respective governments’ firm stance on wildlife trade, the Commonwealth’s Environment Ministers have been quick to demarcate those native species already widely used in established commercial trade from the rest of Australia’s wildlife that is apparently more deserving of ‘strict controls’. In his Second Reading speech on the Wildlife Protection Bill in 1982, the then Environment Minister stressed that “normal commercial trade in agricultural, forestry and fisheries products will not be
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affected by the Bill”.228 This was echoed in the parliamentary debates on the EPBC Amendment Bill in 2001 in which the then Environment Minister assured the Senate that there were no new restraints on commercial fishing.229
I believe that the regime’s contradictions are not ecologically logical when placed in the context of Australia’s serious and ongoing loss of biodiversity. As discussed in Chapter 2 of the thesis, there can be many different kinds of commercial use of wildlife and many different potential conservation benefits, including, primarily, providing an incentive to maintain native habitat, as well as improving knowledge and appreciation of the species and replenishment of wild populations from commercial captive breeding. There is also the collateral environmental, economic and social benefits of creating opportunities for business operations that may be undertaken by remote communities.
The RRAT Committee made a number of observations and recommendations that indicated its support for some live trade in native species230 and of exploring hunting as a conservation tool.231 It appears, however, that since the flurry of activity that surrounded the RRAT inquiry in 1997 and 1998, there has been no legislative or policy movement in response to these findings. As the arguments on either side of these debates grind on over the decades, the commercial use issue stagnates.
228 The Hon Ian Wilson, Minister for Home Affairs and Environment, Hansard, House of Representatives, 6 May 1982, 2393. 229 Parliamentary Debates, Hansard, Senate, Tuesday 19 June 2001, 24649. 230 RRAT, above n 46, at 304. 231 Id, 371.
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Chapter 8
CONCLUSION
This thesis has undertaken a two-pronged inquiry into Australia’s regulation of international trade in wildlife by questioning both the legitimacy and the effect of the Commonwealth’s regime. The Environmental Protection and Biodiversity Conservation Act 1999 (Cth) was critically examined with regard to its response to international environmental obligations and its impact on domestic wildlife initiatives. While the main concern was with the legitimacy of the regime given its illogical demarcations, the inquiry has also thrown up questions about the extent to which it thwarts potential conservation initiatives.
Its restrictive approach puts Australia at odds with current objectives in international environmental law and indicates that decision makers remain in thrall to those who argue against expanding the commercial trade in wildlife. This denies an opportunity to explore the potential conservation tool of sustainable use of wildlife and conflicts with the regime’s own objectives to respond to Australia’s international environmental obligations.
I argued that the Australian wildlife trade regime exposes the extent to which environmental legislation can fall prey to a range of imperatives that do not reflect conservation interests. I used the provisions of the EPBC Act as an example of the influence of cultural and socially-constructed ‘environmental values’ in shaping legislation. Those values may have no necessary connection with factors which can contribute to conservation but their impact has remained largely unquestioned. With growing recognition of the role of sustainable use as a positive conservation measure, criticisms of the regime’s counter-productive effect have largely been left to scientists and those working in rural and indigenous policy.
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There were several preliminary steps required in making this argument. I approached it by first establishing that conservation via sustainable use is widely recognised as a significant player in international efforts to combat ongoing dramatic losses of biodiversity. The commercial use of wildlife forms part of this approach and I drew on examples from the ranching of reptilians and in recreational hunting to demonstrate its success.
CSU has emerged as a necessary development if conservation initiatives are to gain support and achieve their aims. In making this argument I acknowledged that CSU is only in its early stages of being formulated and assessed and the importance of taking an incremental and adaptive approach.
The next step was to survey and critique the values and attitudes that respond to the issue of commercial use of wildlife. This was an important step given the nature of the topic gives rise to considerable philosophical, ideological, cultural and social reactions that either expressly or implicitly influence regulatory decision makers. It is clear that the very idea of commercial consumptive use of native wildlife can prompt a visceral response that has no necessary correlation with conservation concerns. My intention at this stage was to critique this response as well as show how this response differs between types of animals.
Public perceptions of ‘nature’ are based on such non-ecological factors as religious, literary, aesthetic and emotional responses to certain species. In wealthy industrialised nations such as Australia, the dominant perception of wildlife is that it is not a source of sustenance. This is a consequence of having relied on introduced livestock and broadacre farming – with the wealth to supplement domestic production with imported goods.
I examined a range of perspectives feeding into the way in which we regard, value and use wildlife. The assessment of values and attitudes demonstrated that the way in which people regard wildlife is a cultural construct based on variables such as economic needs, experience with or knowledge of wildlife, spiritual understandings and species empathy,
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particularly in relation to ‘charismatic’ animals. I concluded that a body of values stemming from a position that is alienated from nature has had undue influence on the global approach. This has encouraged the reliance on protectionism as the dominant tool in environmental management. Environmental regimes must naturally embrace a wide range of imperatives. When they do acknowledge factors aside from ecological concerns, however, they have tended to reflect the interests and needs of the political and economic elite.
I critically examined the environmental ethics literature concerning the location and form of ‘intrinsic value’. I concluded that it was difficult to sustain a perspective of intrinsic value that did not allow for human interests.
I also discussed the claims that certain species should remain extra-commercium, (outside of the reach of the market). These claims often relate to the ‘wildness’ of the selected species, but it has remained unclear as to why they should attract such protection while others do not, particularly in the face of conservation biology literature which has long dismissed the ‘wild’ nature ideal. On what basis should there be any such demarcation? This is one role for environmental ethics: to grapple with the extremely complex and sensitive issue of determining – in an explicit way – where lines between use and non-use should be drawn, if at all. A focus on ‘wildness’ as the point of departure, has not provided a helpful marker.
I consider the most significant contribution of environmental ethics relates to issues of equitable access to natural resources, on an inter and intra-generational basis. There is a continued focus on the easy targets, so to speak, of ethical concern – the charismatic mega vertebrates, particularly cetaceans, tigers and elephants – and of course they can carry significant force for arguments against commercial use. There is a widespread respect and reverence for such creatures, to a degree that makes the concept of any consumptive use by humans, let alone one that reaps commercial rewards, abhorrent to many. However, this is not a universally-held position with those local communities either displaced or otherwise deprived of precious resources by wildlife management regimes becoming increasingly hostile to the species concerned. There is a clash of
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rights, between the local humans and the local fauna which imposes an obligation on ethicists and other researchers who work in this area to develop constructive responses to this clash.
Political and non-governmental organisation (NGO) mobilisation in support of select wildlife is understandable and perhaps, to some extent, justified, on the grounds of responding to majority wishes. It may be that the policy makers are acting in response to the same social and cultural influences that affect public perspectives, that is, they themselves have a selective regard of wildlife. Or are they simply taking the easy way out? I suspect the latter. The public’s acceptance and support (both political and financial) will be far easier to achieve if attention and resources are expended on popular species. This makes it unlikely that policies concerning wildlife will reflect a form of conservation thinking that embraces a more diffuse regard of wildlife that refrains from seizing on the charismatic money-spinners.
Yet the crucial issue that such justification sidesteps is that the actions of government decision makers (and non-government campaigners) are legitimised by their presumed motivation to act in the best interests of the environment. The specialised knowledge of these practitioners should contribute to an aspirational approach to policy that may bring the public along with them, providing an education in the greater complexities of biodiversity conservation.
This was relevant to my examination in Chapter 4 of how the debate has played out in Australia. The need to strengthen conservation on privately-held land was demonstrated both by the review of conservation biology literature and government policy on this issue. The rhetorical support from policy documents was augmented by further review of three parliamentary inquiries which illustrated that, when closely examined, Australia’s regulation of commercial use of wildlife has consistently been found to be overly restrictive. Yet NGOs in Australia have continually objected to commercial use of wildlife. I found that, overall, the role of NGOs in the domestic debate has been to perpetuate the protectionist approach, in spite of its debunking by conservation biologists.
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While there is now an increasing emphasis on issues such as land clearing with the recognition of loss of habitat as the major threat to biodiversity, this sits uncomfortably with the continuing suspicion of commercialisation of wildlife. I consider that NGOs are squandering an opportunity to assist in the development of a sustainable wildlife industry and thus encourage a viable alternative agricultural land use. It will take the efforts of high profile organisations such as the ACF and WWF to bring about a change in public perceptions of the issue which, in turn, may persuade politicians to embrace wildlife use as a mainstream conservation initiative.
Australia’s political and bureaucratic decision makers are more likely to acquiesce to populist pressure when there is no apparent incentive to finesse the ethical arguments beyond a black and white view of protection versus use. The dominant protectionist paradigm will not be vulnerable to challenge in the face of the much-cited ‘Skippy- syndrome’, that is, the unwillingness of aficionados of Skip, Sonny et al to eat kangaroo; or the emotive responses to any management initiatives regarding koalas that may include culling in those areas where the species has reached unsustainably high levels).1
The ecological argument has therefore been lost in the regulatory response to conserving wildlife. It fares poorly against a politics driven by popular sentiment rather than a politics that seeks to lead the way or a politics that has faith in the capacity of society to cope with a paradigm shift in its concept of nature and conservation and acceptable consumption. Rather than the populist tail wagging the environmental policy dog, conservation practitioners should be using their positions to broaden the wildlife debate and hence legitimise a far more complex and wide ranging management regime.
I drew on the provisions and the implementation of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) to indicate that such an evolution is possible. CITES originally centred on the assumption that conservation of
1 Elaine Stratford et al, ‘Managing the Koala Problem: Interdisciplinary Perspectives’ (2000) 14(3) Conservation Biology 610 at 612.
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wildlife was based on its protection, not its use. This created significant conflict with wildlife management practices in the developing world, where the great majority of the wildlife subject to the Convention is located (in contrast to the abject failure of Northern countries to maintain any substantial wildlife populations). CITES had to overcome the inherent inequity of an approach whereby wealthy countries that have destroyed their own wildlife can decide to prohibit trade by the impoverished countries that still have animals to sell. This is a reasonable position if you are a European, or of European derivation, given the history of Western involvement with nature … However, other cultures have not been so determined to make use of their environment by initially “clearing the slate”, and many … have managed to live within their environment with a much lower level of intervention. To presume that they would be unable to balance use and preservation is largely arguing against their historical record.2
The unfairness of this position has been tempered by increasing recognition that a sustainable trade may answer both human and environmental needs. The Convention’s initial restrictive approach to the trade in wildlife has become more nuanced with explicit acknowledgement of the benefits of commercial trade in some circumstances. International law has a protean capacity which has allowed CITES to respond to evolving conservation principles. This was necessary for the Convention if it were to remain relevant in light of developments in international environmental law as exemplified by the approach of the Biodiversity Convention.
My examination of Australia’s wildlife export provisions revealed they have failed to keep pace with the international regime’s acceptance of the CSU approach. While the general reluctance to embrace commercial use of wildlife is a diffuse issue, I identified selective export prohibitions as a clear indication of non-environmental influences at work in the regime. I teased out this critique by way of Chapter 7’s juxtaposition of permitted and prohibited trade in wildlife with a focus on proposals for exports of
2 Tim Swanson, ‘Conserving Biological Diversity’ in D Pearce (ed), Blueprint 2: Greening the World Economy (1994) 181 at 200.
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crocodile trophies and live native birds. The purpose was to demonstrate that arguments against these currently prohibited trades could be addressed by reference to how these same concerns may relate to the existing trades. While it is difficult to show a precise correlation between Australia’s existing and proposed trades because of the different species and purposes, I argued that there are sufficient parallels to question the basis for a blanket ban approach and I believe the juxtaposition throws up a meaningful challenge to the current prohibitionist approach.
Chapter 7’s critique of the Commonwealth’s restrictions on the export of trophies from recreational hunting demonstrated the dominance of the ‘tough’ approach at the expense of a potential conservation initiative. Given the widespread international recognition of the conservation benefits of hunting schemes, particularly for remote areas, and the clear acceptance of this position by the Parties to CITES, this issue provides a compelling example of how conservation may lose out to other imperatives. While hunting is clearly a contentious issue, it is not apparent why it is now abhorrent to the Commonwealth.
I believe that this issue is particularly demonstrative of Australia’s hubris in relation to conservation issues. By this I mean that, while hunting of wildlife may be an accepted conservation measure in Pakistan or Namibia, for example, because it provides much needed incentives for remote communities to sustain their local wildlife populations, it is considered unnecessary and ‘unacceptable’ for a developed country such as Australia. I base this conclusion both on WWF’s demarcation between Zimbabwe and Australia concerning the acceptability of commercial use,3 and the response of the Commonwealth to the proposed export of crocodile trophies, that it was ‘not acceptable’ with no further explanation as to why this was the case. As Chapter 4 argued, incentives for private land management are clearly required for conservation in Australia. In Chapter 7 I related this argument to the hunting issue by reference to support for hunting particularly as an incentive for maintaining wetlands on private land.
3 In its responses to the 1998 Senate Inquiry on commercial use of wildlife, as discussed in Chapter 4 of the thesis.
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Apart from conservation biologists, those in favour of commercial use tend to be from communities in close and dependent relationships with wildlife. The Australian position concerning both the divided live trade prohibition and the restriction on trade in hunting trophies indicates a dichotomous regard for wildlife born of a certain distance from the impact of these decisions. Many Australians rarely come face to face with 'nature' in a way that may compromise their day-to-day existence; nature is often either benign wallpaper – as in gardens and urban parks – or a recreational and spiritual palliative for the stresses of urban life. We therefore do not need to take our natural surroundings into account in the way that, say, farmers in southern Africa may have to deal with elephants destroying their precious crops and livestock and/or threatening human lives.
I believe the one exception has been the management of saltwater crocodiles in northern Australia, as also discussed in Chapter 7. Insofar as the people of a wealthy, highly urbanised country such as Australia can be confronted by nature, an increasing and potentially dangerous crocodile population threw up the need to act. It necessitated the beginning of a process of learning to live with wildlife. This has been a limited exercise, however; Australia’s reluctance to fully engage with this issue was illustrated by the Commonwealth’s reversal of its position in relation to safari hunting of crocodiles.
The debate concerning whether or not the trade in birds should be fostered or banned has thrown up an illuminating response from the opponents to trade. In Chapters 2 and 7 I referred to arguments against conservation via sustainable use, with economic, welfare and disease issues singled out as the most compelling. When probed a little deeper, however, opponents to trade revert to an acknowledgement that a protectionist approach is simply going to be more acceptable to conservation campaigners and, more importantly, the public who funds their work.4
Absent any attempt from decision makers to justify the divided approach, I concluded that an uneven valuation of wildlife has influenced a selective protection of particular fauna.
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While the many and complex problems with select conservation approaches are well recognised, it still may be considered too much of a gamble to promote wider commercial use of wildlife, considering the lack of knowledge about existing population dynamics, let alone what the consequences of exploitation may be. As in all management concerns, however, commercial use of wildlife can only form one plank in conservation strategies. There is no suggestion that protection should not play a major part in environmental management. Rather, it is considered a necessary, but not a sufficient, factor in conservation. Just as national parks can no longer carry the weight of conservation but are needed as part of a landscape wide regime, commercial use of wildlife may inform a significant element of off-reserve management while integrated with other approaches to conservation.
The work and recommendations of conservation biologists, the findings of the parliamentary inquiries and the objectives adopted or proposed in governmental policy documents agree that Australia should develop sustainable use of wildlife as a conservation initiative, particularly to deal with a declining rural sector operating on increasingly degraded land.
Yet degraded land and loss of habitat is not regarded as an urgent issue to the extent that it would compel a re-evaluation of the way the majority of Australians view wildlife. A deep-seated opposition to commercial use of particular wildlife will remain undisturbed in the Australian public while there is no perceived need to re-examine this view. The opponents to CSU in Australia have held sway in this climate as it is clearly an easier sell to political decision makers to sidestep a potentially controversial approach to conservation management if there is not sufficient voter demand for them to do otherwise.
For Australia to take up this challenge therefore requires a significant shift in political conservation thinking as policy makers will need to overcome the ongoing political constraints of a widespread public antipathy or, at the least, suspicion towards
4 See exchange of letters on this issue in (2006) 40(3) Oryx, 261-265.
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commercial wildlife use. Courage is needed to overcome the persisting public perceptions that conservation means protection, and then only for the conspicuous species, while wildlife use is something that happens in societies very different from our own.
There are strong intuitions at play on both sides and proposals for use must acknowledge the constraints, be they economic, logistical, humane or environmental, but these do not detract from the possibility that commercial use of wildlife could provide conservation benefits. The problem has been that, rather than governments tackling this issue head on, it is left to stagnate. The unquestioned assumption in the legislative approach, for many decades, has been that ‘tough’ equals ‘effective’ and it will take a significant turnaround to overcome the inertia that besets this debate.
With Australia’s poor environmental record, the stakes are high, even if they do not have the same political resonance as in other megadiverse countries. Without attempting different approaches – while closely monitoring the outcomes5 – it is difficult to imagine how we can gain the knowledge needed to try to turn around continuing biodiversity loss in Australia.
5 That is, incorporating the principles of adaptive management, as discussed in Chapter 2, and aptly described by Hugh Possingham as “a well designed experiment to increase knowledge”: The Business of Biodiversity (2001) 31.
274
BIBLIOGRAPHY
ARCHIVAL DOCUMENTS (in chronological order)
Letters from: WN Gillies, Acting Premier of Queensland, 17th April, 1924;
Harry Lawson, Premier of Victoria, 7th May 1924;
Joseph Lyons, Premier of Tasmania, 5th May 1924;
John Gunn, Premier of South Australia, 9th May 1924;
Phillip Collier, Premier of Western Australia, 19th May 1924;
(Unnamed official), Acting for George Warburton Fuller, Premier of NSW, 5th May 1924. National Archives of Australia: Prime Minister’s Department, Series no. A364/2.
Lieutenant-Colonel E.A. Le Souef, Zoological Gardens, South Perth, to Senator Pearce, 30/9/1926. National Archives of Australia: Series no. A6680/1; Item no. DY 23/3.
Telegram from David Stead, founder of the Australian Wildlife Society, to University of London Animal Welfare Society, requesting their assistance for a similar prohibition by the British Government, 28 June 1936. National Archives of Australia: Series no. A461/7; Item no. E305/1/1.
Letter from NSW Premier’s Department to the Prime Minister’s Department, 4 October 1939. National Archives of Australia, Series no. A461/7, Item no. E305/1/1.
Memorandum to the Prime Minister’s Department from the Department of Trade and Customs, 4 August 1947. National Archives of Australia: Series no A461/7, Item no. E305/1/1.
HJ Frith, Chief of the Wildlife Division, CSIRO, Memorandum to the Prime Minister’s Department, 29 August 1962. National Archives of Australia, Item no. M3/6.
Letter from the Prime Minister’s Department to the CSIRO Division of Wildlife Research, 3 June 1963. National Archives of Australia: Series no. A9696/1, Item no. M3/6.
Letter from the Prime Minister’s Department to the CSIRO Division of Wildlife Research, 24 March 1964.
275
INTERVIEWS
Marty Deveney, Project Officer, Aquatic Animal Health, Primary Industry Research South Australia, email correspondence, 19 May 2004.
Kate Dixon, Wildlife Protection Unit, Environment Australia, interview, 30 September 1999.
Drue Edwards, Live Animal Exports Program, Australian Quarantine and Inspection Services, email correspondence, 10 June 2004.
Caleb Gardner, Section Leader, Crustacean research, Tasmanian Aquaculture and Fisheries Institute, email correspondence 18 May 2004.
Paul Jewell, Environment Australia, head of the Wildlife Protection Unit, Environment Australia, interview, 30 September 1999.
Clive Jones, Queensland Department of Primary Industries, telephone interview, 10 June 2004. Freshwater Fisheries and Aquaculture Centre.
Tom Kaveney, Wildlife Protection Unit, Environment Australia, email correspondence, 13 October 1999.
Mike Letnic, formerly Parks and Wildlife Commission Northern Territory, interview, 22 March 2006
Chris Mobbs, Acting head, Wildlife Protection Unit, Environment Australia, interview, 30 September 1999.
Bruce Sambell, Managing Director Ausyfish Pty Ltd, telephone interview, 3 September 2007.
Grahame Webb, email correspondence, 16 May 2006, 29 January 2007.
Peter Whitehead, Tropical Savannas Management Cooperative Research Centre, Charles Darwin University, email correspondence, 21 April 2006
George Wilson, Rural Industries Research and Development Corporation, interview, 2 May 2005.
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LEGISLATION
International
African Convention on the Conservation of Nature and Natural Resources 1001 UNTS 4. Opened for signature 15 September 1968, in force 16 June 1968.
Convention on Biological Diversity 31 ILM 818. Opened for signature June 5 1992, entered into force 29 December 1993.
Convention on the Conservation of European Wildlife and Natural Habitats UKTS No 56. Opened for signature 19 September 1979, in force 1982.
Convention on the Conservation of Migratory Species of Wild Animals 19 ILM 80. Opened for signature 23 June 1979, in force 1 November 1983.
Convention on International Trade in Endangered Species of Wild Fauna and Flora 12 ILM 1085. Opened for signature 3 March 1973, entered into force 1 July 1975.
Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere 161 UNTS 193. Opened for signature 12 October 1940, in force May 1942.
Convention for the Protection of Birds Useful to Agriculture IPE IV, p 1615, opened for signature 19 March 1902, in force 1905.
Convention on Wetlands of International Importance especially as Waterfowl Habitat, 996 UNTS 245, 22 ILM 698, ATS 1975 No 0048. Opened for signature 2 February 1971, entered into force 21 December 1975.
Declaration of the United Nations Conference on the Human Environment (Stockholm, 1972). UN Doc A/CONF.48/14
Declaration of the United Nations Conference on Environment and Development (Rio de Janeiro1992). UN Doc A/CONF.151/5/Rev.1, 31 ILM 874.
International Convention for Regulation of Whaling 161 UNTS 72. Opened for signature 2 December 1946, in force 10 November 1948.
International Labor Organisation Convention 169, 28 ILM 1382 (1989). Opened for signature 27 June 1989, in force 5 September 1991.
United Kingdom (Imperial) Commonwealth of Australia Constitution Act 1900
United States of America Wild Bird Conservation Act 1992 Wild Bird Conservation Act 1992, Final Rule Summary
277
Australia
Commonwealth
Customs Act 1901 Customs and Excise (Prohibited Exports) Regulations 1935. Endangered Species Protection Act 1992 Endangered Species Regulations 1976 Environmental Protection and Biodiversity Conservation Act 1999 Environmental Protection and Biodiversity Conservation Regulations Native Title Act 1993 Wildlife Protection (Regulation of Exports and Imports) Act 1982 Wildlife Protection (Regulation of Exports and Imports) Regulations 1984
Australian Capital Territory
Animal Welfare Act 1992 Nature Conservation Act 1980
New South Wales
Animals Protection Act 1879 Game and Feral Animal Control Act 2002 Native Animals Protection Act 1903 National Parks and Wildlife Act 1974 National Parks and Wildlife Regulation 2002 Prevention of Cruelty to Animals Act 1979
Northern Territory
Prevention of Cruelty to Animals Act (NT). Territory Parks And Wildlife Conservation Act 1976 (NT)
Queensland
Animal Care And Protection Act 2001 Animals Protection Act 1901 Fauna Conservation Act 1974 Nature Conservation Act 1992 Nature Conservation Regulation (Wildlife Management) Regulation 2006
South Australia
Animals Protection Act 1912 (SA) National Parks and Wildlife Act 1972 (SA) National Parks and Wildlife (Wildlife) Regulations 2001 (SA) National Parks and Wildlife (Hunting) Regulations 1996 (SA) Prevention of Cruelty to Animals Act 1985 (SA).
278
Tasmania
Animal Welfare Act 1993 Game Protection Act 1895 Nature Conservation Act 2002 Wildlife Regulations 1999
Victoria
Birds Protection Act 1881 Game Act 1867 Prevention Of Cruelty To Animals Act 1986 Wildlife Act 1975 Wildlife (Game) Regulations 2001 Wildlife Regulations 2002
Western Australia
Animal Welfare Act 2002 (WA). Wildlife Conservation Act 1950 (WA) Wildlife Conservation Regulations 1970 (WA)
OFFICIAL POLICY AND PLANNING DOCUMENTS
International
Asian Regional Session of the Global Biodiversity Forum: Southeast Asia, The Precautionary Principle in Biodiversity Conservation and Natural Resource Management, Workshop final report, Manila, The Philippines, 20th-23rd June 2004.
CITES Secretariat, ‘Issues relating to species: Elephants, Verification of Compliance with the Precautionary Undertakings for the Sale and Shipment of Raw Ivory’, Forty- second meeting of the Standing Committee, Lisbon (Portugal), 28 September-1 October 1999, CITES Doc. SC.42.10.2.1.
CITES Secretariat, ‘Implementation of the Convention in individual countries, Enforcement Matters’, Forty-second meeting of the Standing Committee, Lisbon (Portugal), 28 September-1 October 1999, CITES Doc. SC.42.12.4.
CITES Secretariat, ‘Implementation of the Convention in individual countries, National legislation project Progress and Future Development’, Forty-second meeting of Standing Committee, Lisbon (Portugal), 28 September-1 October 1999, CITES Doc. SC.42.12.1.
279
CITES Secretariat, Synergy Between the Biodiversity-Related Conventions and Relations With Other Organizations, Forty-second meeting of the Standing Committee, Lisbon (Portugal), 28 September-1 October 1999, CITES Doc SC.42.17.
CITES Secretariat, ‘Interpretation and implementation of the Convention. Implementation of the Convention in individual countries’, Forty-fifth meeting of the Standing Committee, Paris (France), 19-22 June 2001, CITES Doc SC.45.11.2.
CITES Secretariat, ‘CITES sets strict conditions for any possible future ivory sales,’ press release, 12 November 2002
Convention on Biological Diversity Secretariat, Note to the Subsidiary Body on Scientific, Technical and Technological Advice (Document UNEP/CBD/SBSTTA/2/3).
Convention on Biological Diversity Secretariat, 2010 – The Global Biodiversity Challenge, 21-23 May 2003, London, United Kingdom, Meeting Report.
Convention on Biological Diversity Secretariat, Addis Ababa Principles and Guidelines for the Sustainable Use of Biodiversity (2004)
MIKE Sub-Group, ‘Issues relating to species: Elephants’ Forty-second meeting of the Standing Committee, Lisbon (Portugal), 28 September-1 October 1999, CITES Doc. SC.42.10.2.2.
World Charter for Nature UN Doc A/37/51 (1982)
Australia
Commonwealth
Australian Bureau of Agricultural and Resource Economics (ABARE), Australian Fisheries Statistics 2004, (2005).
Australian & New Zealand Environment & Conservation Council (ANZECC) and Agriculture & Resource Management Council Of Australia & New Zealand, Managing Australia’s Rangelands, National Principles and Guidelines for Rangeland Management (1999).
Australian Code of Practice for the Care and Use of Animals for Scientific Purposes (7th ed) (2004), 1. Available at
Commonwealth of Australia, National Strategy for Ecologically Sustainable Development (1992).
Commonwealth of Australia, National Strategy for the Conservation of Australia’s Biological Diversity (1996).
280
Commonwealth Minister for the Environment and Heritage, Declaration of an Approved Management Program (for Crocodylus porosus and Crocodylus johnstoni) 20 January 1999.
Council of Australian Governments, Intergovernmental Agreement on the Environment (1992).
Department of the Environment and Heritage, ‘Australian Lungfish (Neoceratodus forsteri)’, Nationally Threatened Species and Ecological Communities Information Sheet, August 2003. Department of the Environment and Heritage, November 2004, How to import and export Trophies, available at < http://www.deh.gov.au/biodiversity/publications/trade- use/factsheets/trophies.html>, accessed January 2007.
Department of the Environment and Heritage Factsheet: How to Import & Export Elephant Products, Including Ivory available at
Department of the Environment and Heritage, Assessment of the Queensland Marine Aquarium Fish Fishery, October 2005.
Department of the Environment and Heritage, Assessment of the Cocos (Keeling) Islands Marine Aquarium Fish Fishery, October 2005.
Department of Environment and Heritage, About Biodiversity, available at
Department of Environment and Heritage, State of the Environment Report 2006.
Environment Australia, ‘Humane Harvesting of kangaroos’, 2002. Available at:
Environment Australia, Code of Practice for the Humane Shooting of Kangaroos (2nd ed).
Environment Protection and Biodiversity Conservation Amendment (Wildlife Protection) Bill 2001, Explanatory Memorandum
National Taskforce on Whaling, A Universal Metaphor (May 1997)
Natural Heritage Trust, Australian Terrestrial Biodiversity Assessment 2002 (April 2003).
281
New South Wales
NSW National Parks and Wildlife Service, The New South Wales Kangaroo Management Programme. Effective from January 1 1998 to December 31 2002.
NSW National Parks and Wildlife Service, Birds you don't need a licence to keep, at
NSW National Parks and Wildlife Service, Trade of Fauna Policy, October 2001, at
National Parks and Wildlife Service (NSW), Why can’t you keep other native mammals – like quolls or sugar gliders – as pets?. Available at
Northern Territory
A management program for Crocodylus porosus and Crocodylus johnstoni in the Northern Territory of Australia (December 1998).
A Trial Management Program for the Red-tailed Black Cockatoo (Calyptorhychus banksii) in the Northern Territory of Australia (February 1997).
Management Plan for Crocodylus porosus in the Northern Territory, valid from July 2005 to June 2010. Available at < http://www.deh.gov.au/biodiversity/trade- use/sources/management-plans/pubs/nt-crocodile-plan-2005.pdf>, accessed May 2006.
Parks and Wildlife Commission of the Northern Territory, Annual report 1998-1999.
Strategy for Sustainable Use of Wildlife in the Northern Territory (1997).
Queensland
Department of Primary Industries and Fisheries, Annual status report, Marine Aquarium Fish Fishery, March 2007.
South Australia
Fauna Permits – South Australia, available at
282
Macropod Conservation and Management Plan for South Australia (common kangaroos). Effective from 1 January 2003 to 31 December 2007. Available at
Victoria
Department of Sustainability and Environment, A Guide to Laws Relating to Keeping Wildlife for Commercial Purposes in Victoria, July 2006. Available at
Western Australia
Western Australia Department of Fisheries Final Application to the Australian Government Department of Environment and Heritage on the Marine Aquarium Fish Managed Fishery.
CASES
Ackroyd v McKechnie (1986) 161 CLR 60
Commonwealth v Tasmania (1983) 158 CLR 1
Fergusson v Stevenson, (1951) 84 CLR 421
Mabo v Queensland [No 2] (1992) 175 CLR 1
Murphyores Incorporated Pty Ltd v The Commonwealth (1976) 136 CLR 1
Re: Richard Leo Tween v Australian National Parks and Wildlife Service (1990) 22 ALD 101
Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373
Wik Peoples v Queensland (1996) 187 CLR 1
Yanner v Eaton (1999) 201 CLR 351
HANSARD
Parliamentary debates
Peter Fisher, Commonwealth, Parliamentary Debates, House of Representatives, 18 August 1982, 511.
283
The Hon Ian Wilson, Minister for Home Affairs and Environment, Hansard, House of Representatives, 6 May 1982, 2393.
Senator Robert Hill, Second Reading speech, EPBC Amendment Bill, Parliamentary Debates, Senate, Hansard, Thursday 24 May 2001, 24271.
Senator Ian Campbell, Second Reading speech to the EPBC Amendment Bill, Hansard Parliamentary Debates, Senate, Thursday 24 May 2001, 24270.
Senator Robert Hill, Parliamentary Debates, Hansard, Senate, Tuesday 19 June 2001, 24649.
Senator Ian Campbell, Second Reading, Hansard, Senate, Thursday May 2001, 24270.
Senate transcripts
William Freeland, Deputy Director, Parks and Wildlife Commission of the Northern Territory, Evidence to the RRAT Inquiry, 6 August 1997, 331, at 332.
David Kay, Environment Australia, Evidence to RRAT Inquiry, 7 November 1997, 1188.
Michael Kennedy, Director, Humane Society International, Evidence to the RRAT Inquiry, 9 September 1997, 754.
David Lawson, Wildlife Management Unit, Parks and Wildlife Commission of the Northern Territory, Evidence to the RRAT Inquiry, 6 August 1997.
SECONDARY MATERIALS
ACIL Economics Pty Ltd, Sustainable Economic Use of Native Birds & Reptiles, summary of a report of the same name, RIRDC Research paper series no 97/26, February 1997.
Adair, John, ‘The Bioprospecting Question: Should the United States Charge Biotechnology Companies for the Commercial Use of Public Wild Genetic Resources?’ (1997) 24 Ecology Law Quarterly 131.
Adams, Jonathan and Thomas McShane, The Myth of Wild Africa, Conservation Without Illusion (1992).
284
Alcorn, J, ‘Indigenous Peoples and Conservation’ in Readings from Conservation Biology (1995) 20.
Altman, Jon, and Michelle Cochrane, Innovative institutional design for sustainable wildlife management in the Indigenous-owned savanna (2003), Centre for Aboriginal Economic Policy Research Discussion Paper No. 247/2003.
Altman, JC, LM Roach and LE Liddle, Utilisation of native wildlife by indigenous Australians: commercial considerations , Centre for Aboriginal Economic Policy Research (CAEPR) Discussion paper 135 (1997).
Altman, JC, HJ Bek and LM Roach, Native title and Indigenous Australian utilisation of wildlife: policy perspectives (1995).
Altman, Jon, Hilary Bek and Linda Roach, ‘Use of Wildlife by Indigenous Australians: Economic and Policy Perspectives’ in Mary Bomford and Judy Caughley (eds) Sustainable Use of Wildlife by Aboriginal Peoples and Torres Strait Islanders (1996).
Anderson, Elizabeth, Value in Ethics and Economics (1993).
Aretino, Barbara et al, Cost Sharing for Biodiversity Conservation: A Conceptual Framework (2001).
Australian Conservation Foundation, Policy Statement No. 61, Commercial Wildlife Utilisation, 1 November 1996.
Australian Conservation Foundation, Policy No.39, Kangaroo Harvesting, 1984.
Australian Insect Farm, Proposal for Wild harvest and Export of Invertebrates submitted for approval under the Environment Protection Biodiversity Conservation Act 1999 (September 2006).
Australian Museum Report for Environment Australia: Overview of the Conservation of Australian Marine Invertebrates (2002) at
Australian Nature Conservation Agency, Kangaroo Biology (1995).
Australian Wildlife Management Society, Position on Sustainable Commercial Use of Wildlife (May 2004), available at
Bahm, Archie, Axiology: The Science of Values (1993).
285
Baker, Richard, Jocelyn Davies and Elspeth Young (eds), Working on country: contemporary indigenous management of Australia’s lands and coastal regions (2001).
Baird Callicott, J. ‘Animal Liberation: A Triangular Affair’ in Elliot (1995) 29.
Barbier, Edward et al, Elephants, Economics and Ivory (1990).
Barrington, EJW Invertebrate Structure and Function (2nd ed) (1979).
Beale, Roger Department of Environment Sport and Territories, Submission to the Senate References Committee Rural and Regional Affairs and Transport On The Inquiry Into Commercialisation of Australian Native Wildlife (1997). Aviculture Federation of Australia, submission to the Senate Inquiry in RRAT (1998).
Bennett, Jeff, ‘Private sector initiatives in nature conservation’ (1995) 63 Review of Marketing and Agricultural Economics, 426.
Bennison, Simon ‘Animal welfare in the Australian aquaculture industry’ in Jones (2004).
Berlin, Isaiah The hedgehog and the fox: an essay on Tolstoy’s view of history (1967).
Beynon, Nicola ‘CITES 2000: The Outcomes’ (2000) 6(2) Lifelines, 35.
Birnie, Patricia and Alan Boyle, International Law and the Environment (1992).
Birnie, Patricia and Alan Boyle, Basic Documents on International Law and the Environment (1995).
Birnie, Patricia and Alan Boyle, International Law and the Environment (2nd ed) (2002).
Blackstone, William Commentaries on the Laws of England (first published 1765, 16th ed, 1825).
Bomford, Mary and Judy Caughley (eds) Sustainable Use of Wildlife by Aboriginal Peoples and Torres Strait Islanders (1996).
Bowman, Michael ‘The Nature, Development and Philosophical Foundations of the Biodiversity Concept in International Law’, in Bowman and Redgwell (1996) 17.
Bowman, M and C Redgwell (eds) International Law and the Conservation of Biodiversity (1996).
Boyle, Alan ‘The Rio Convention on Biological Diversity’ in Bowman and Redgwell (1996) 33.
286
Boyle, A and M Anderson (eds) Human Rights Approaches to Environmental Protection (1996).
Bradbrook, Adrian 'Energy Use and Atmospheric Protection' (1996) 3 Australasian Journal of Natural Resources Law and Policy 25.
Bradstock, RA et al (eds) Conserving Biodiversity: Threats and Solutions (1995).
Brailovskaya, Tatiana ‘Obstacles to Protecting Marine Biodiversity Through Marine Wilderness Preservation: Examples from the New England Region’ (1998) 12(6) Conservation Biology 1236-1240.
Brennan, Sean, ‘Native Title and the “Acquisition of Property” under the Australian Constitution’ (2004) Melbourne University Law Review 2.
Bridgewater, Peter ‘What conservation? Which species’, in Grigg, Hale and Lunney (1995) 9.
Bridgewater, Peter ‘A New Paradigm for Protected Areas in a New Century or Do we really need protected areas?’ Proceedings of the IUCN World Commission on Protected Areas Symposium, Albany, Western Australia (1997).
Broad, Steven, Teresa Mulliken and Dilys Roe, ‘The Nature and Extent of Legal and Illegal Trade in Wildlife’ in Oldfield (2003) 3.
Brookes, Martin ‘Live and let live’, New Scientist, 3 July 1999, 32-36.
Browne, Anthony ‘You eat cows and pigs, so why can’t we eat whales?’, The Observer (London), 24 June 2001, 10-11.
Brusca, Richard C and Gary J Brusca, Invertebrates (2002).
Brush, Stephen ‘Whose Knowledge, Whose Genes, Whose Rights?’ in S Brush and D Stabinsky (eds) Valuing Local Knowledge, Indigenous People and Intellectual Property Rights (1996).
Cairns, Stuart and Richard Kingsford, 'Harvesting Wildlife: kangaroos and waterfowl' in RA Bradstock et al (1995) 260.
Cameron, James T Mjolo-Thamage and JC Robinson, The Effectiveness of International Environmental Agreements.
Campiglio, L et al (eds) The Environment After Rio, International Law and Economics (1994).
Carpenter, Steven R, et al (eds) Ecosystems and Human Well-being: Scenarios; Findings of the Millenium Ecosystem Assessment Volume 2 (2005).
287
Charnowitz, Steve ‘Encouraging Environmental Cooperation Through the Pelly Amendment’ (1994) 3(1) Journal of Environment & Development 3.
Chayes, Abram and Antonia Handler Chayes, ‘On Compliance’ (1993) 47(2) International Organization 175.
Chayes, Antonia Handler, Abram Chayes and Ronald B Mitchell, 'Active Compliance Management in Environmental Treaties' in Lang (1995) 75.
Child, Brian and Cassandra Bergstrom, ‘Community Wildlife Management in Zambia: Testing Indicators of Sustainable Use in a Case Study of South Luangwa [Zambia],’ in IUCN Sustainable Use Specialist Group (SUSG), Lessons Learned in Sustainable Use, at 13. Available at
Chopra, Kanchan, et al (eds) Ecosystems and Human Well-being: Policy Responses; Findings of the Millenium Ecosystem Assessment Volume 3 (2005).
Christie, EK ‘Ecosystem Change and Land Degradation’ in McTainsh and Boughton, 307.
Commonwealth of Australia, House of Representatives Select Committee, Wildlife Conservation, Parl Paper No 284 (1972).
Commonwealth of Australia, House of Representatives Standing Committee on Environment and Conservation, Trafficking in Fauna In Australia, Parl Paper No 301 (1976).
Commonwealth of Australia, Senate References Committee Rural and Regional Affairs and Transport, Commercial Utilisation of Australian Native Wildlife (1998).
Concise Oxford English Dictionary 11th ed (2004).
Convention on Biological Diversity Executive Secretary, ‘The Convention on Biological Diversity: Ten Years On and the Strategic Plan’ (2001) 4 Journal of International Wildlife Law and Policy 147.
Cook, Dee, Martin Roberts and Jason Lowther, The International Wildlife Trade and Organised Crime (2002)
Cooney, Rosie (2004) The Precautionary Principle in Biodiversity Conservation and Natural Resource Management: An issues paper for policy-makers, researchers and practitioners, IUCN, 27. Available at
288
Cooney, Rosie and Barney Dickson (eds) Biodiversity and the Precautionary Principle : Risk, Uncertainty and Practice in Conservation and Sustainable Use (2005).
Cooney, Rosie and Paul Jepson, ‘The international wild bird trade: what’s wrong with blanket bans?’ (2006) Oryx 40(1) 18.
Coper, Michael The Franklin Dam Case (1983).
Cotterrell, Roger The politics of jurisprudence: a critical introduction to legal philosophy (1989).
Czech, Brian, Paul R Krausman and Rena Borkhataria, ‘Social Construction, Political Power, and the Allocation of Benefits to Endangered Species’ (1998) 12(5) Conservation Biology, 1103.
D’Amato, Anthony and Sudhir K Chopra, ‘Whales: Their Emerging Right to Life’ (1991) 85 American Journal of International Law 21.
Davies, Jocelyn ‘Who Owns the Animals? Sustainable Commercial use of Wildlife and Indigenous Rights in Australia’ (1998), 2-3, Presented at Crossing Boundaries, 7th annual conference of the International Association for the Study of Common Property, June 10-14, 1998, Vancouver, Canada. Available at
Davies, M (ed) Exploiting Our Native Fauna – Culling, Harvesting, Farming? (1997) 10(1) Australian Biologist (special edition). de Klemm, Cyril and Clare Shine, Biodiversity Conservation and the Law (1993). de Klemm, Cyril and Isabelle Creteaux, The Legal Development of the Ramsar Convention (1995).
Descartes, René Discourse on Method and the Meditations, translated by FE Sutcliffe (1968).
Dickson, Barnabas ‘The Precautionary Principle in CITES: A Critical Assessment’ (1999) (39) Natural Resources Journal 211.
Dickson, Barnabas ‘Global regulation and Communal management’ in Hutton and Dickson (2000) 161.
Dryzek, John ‘Green Reason: Communicative Ethics for the Biosphere’ 12(3) Environmental Ethics 195.
Dunlap, Thomas R Saving America’s Wildlife (1988).
A du Plessis, Morne ‘CITES and the Causes of Extinction’ in Hutton and Dickson (2000).
289
Dutter, Barbie ‘Ecologists call for cull to save koalas’, Daily Telegraph (London), 1 November 2001. Available at
Ecological Society of Australia, Sustainable Commercial Use of Wildlife, February 2002. Available at
Editors of the Harvard Law Review, Trends in International Environmental Law (1992).
Edwards, Rob ‘Save our pathogens’, New Scientist, 22 August 1998, 5.
Eisemann, CH et al, ‘Do insects feel pain? – A biological view’ (1984) 40(2) Experientia 164.
Elliot, R (ed) Environmental Ethics (1995).
Environment Australia, ‘Humane Harvesting of kangaroos’, 2002. Available at:
Environment Australia, Environment Protection and Biodiversity Conservation Amendment (Wildlife Protection) Bill 2001, Explanatory Memorandum, 3
European Union Commission, New rules for captive bird imports to protect animal health in the EU and improve the welfare of imported birds, EU press releases, 11/01/07, available at
Farrier, David and Linda Tucker 'Beyond a Walk In The Park: The Impact of International Nature Conservation Law on Private Land in Australia' (1998) 22 Melbourne University Law Review 564.
Farrier, David and Linda Tucker ‘Wise use of wetlands under Ramsar: a challenge for the meaningful implementation of international environmental law’ (2000) vol 12(1) Journal of Environmental Law 21.
Farrier, D and RJ Whelan, ‘(Why) Do we need threatened species legislation?’ in Hutchings, Lunney and Dickman (2004) 30.
Favre, David ‘Trade in Endangered Species’ (1990) Yearbook of International Environmental Law 193.
290
Favre, David ‘Trade in Endangered Species’ (1992) Yearbook of International Environmental Law 317.
Favre, David ‘Trade In Endangered Species’ (1993) Yearbook Of International Environmental Law 260.
Favre, David 'Debate within the CITES Community: What Direction for the Future?' (1993) 33 Natural Resources Journal 875.
Field and Game Australia, ‘History’, available at
Flannery, Tim The Future Eaters (1994).
Flannery, Tim ‘Beautiful Lies, Population and Environment in Australia’, in P Craven (ed) Quarterly Essay (2003).
Francioni, Francesco ‘Environment, Human Rights and The Limits of Free Trade’, paper delivered to a symposium Environment, Human Rights and the Liberalization of International Trade, University of Sienna 10-11 April 2000.
Franck, Thomas Fairness in International Law and Institutions (1995).
Freeman, Milton and Stephen Kellert, Public Attitudes to Whales (1992).
Freese, Curtis ‘The “Use It or Lose It” Debate’ in C Freese (ed) Harvesting Wild Species, Implications for Biodiversity Conservation (1997).
Freestone, David and Ellen Hey (eds), The Precautionary Principle and International Law: The Challenge of Implementation (1996).
French, Duncan ‘Developing States and International Environmental Law: The Importance of Differentiated Responsibilities’ (2000) (49) International and Comparative Law Quarterly 35.
Freyfogle, Eric ‘Conservation Biology and Law: Only a Start’ (2006) 20(3) Conservation Biology 679.
Frith, HJ Wildlife Conservation (1973, rev. 1979).
Gadgil, Madhav ‘Conserving Biodiversity as if People Matter: A Case Study from India’ (1992) 21(3) Ambio 266.
Gardner, Caleb ‘Treating the prawn well on its way to the barbie: welfare of aquatic crustaceans’, in Jones (2004).
291
Gascoine, Digby ‘Lessons learned from the salmon case’ in Quarantine and Market Access. Playing By The WTO Rules, Forum Proceedings, 6-7 September 2000, 106.
Gershon, Diane ‘If biological diversity has a price, who sets it and who should benefit?’ (1992) 359 Nature 565.
Gillespie, Alexander, International Environmental Law, Policy and Ethics (2000).
Glowka, Lyle, Francoise Burhenne-Guilmin and Hugh Synge, A Guide to the Convention on Biological Diversity (IUCN Environmental Policy and Law Paper No. 30) (1994).
Gordon, Robert ‘New Developments in Legal Theory’ in D Kairys (ed) The Politics of Law: A Progressive Critique (1982).
Gould, JL and CG Gould, ‘The Insect Mind: Physics or Metaphysics?’ in DR Griffin (ed) Animal Mind – Human Mind (1982) 269-298.
Gould, Stephen Jay Life’s Grandeur (1996).
Greenpeace, Whaling renegades resume hunt: Japan sets sights on 400 whales, even as UN meeting underscores protection
Grigg, G, P Hale and D Lunney (eds) Conservation Through Sustainable Use Of Wildlife (1995).
Grigg, Gordon, ‘Kangaroo harvesting for conservation of rangelands, kangaroos, … and graziers’ in Grigg, Hale and Lunney, (1995) 161.
Grigg, Gordon, ‘Conservation benefit from harvesting kangaroos: status report at the start of a new millennium’ in Lunney and Dickman (2002) 53.
Guha, R and J Martinez-Alier, Varieties of Environmentalism (1997).
Guha, Ramachandra ‘Radical American Environmentalism and Wilderness Preservation: A Third World Critique’ (1989) 11(1) Environmental Ethics 71.
Haas, Peter M, Robert O Keohane and Marc A Levy (eds), Institutions for the Earth: Sources of Effective International Environmental Protection (1995).
Hackel, Jeffrey D ‘Community Conservation and the Future of Africa’s Wildlife’ (1999) 13(4) Conservation Biology 726.
Hale, P and D Lamb (eds) Conservation outside nature reserves (1997).
Halsbury’s Laws of Australia, vol 1(2) (at 23 November 2000) 20 ‘Animals’.
292
Hardin, Garret ‘The Tragedy of the Commons’ (1968) 162 Science 1243-8.
Hargrove, Eugene ‘An overview of Conservation and Human Values: Are Conservation Goals Merely Cultural Attitudes’, in Western and Pearl (1989).
Hassan, Rashid, Robert Scholes and Neville Ash (eds), Ecosytems and Human Well- being: Current State and Trends; Findings of the Millenium Ecosystem Assessment Volume1 (2005).
Havely, Joe ‘Icon status saves koalas from cull threat’, CNN (Hong Kong) 31 October 2001. Available at
Hodges, Brian Trevor ‘The Cracking Façade of the International Whaling Commission as an Institution of International Law: Norwegian Small-Type Whaling and the Aboriginal Subsistence Exemption’ (2000) 15 Journal of Environmental Law and Litigation, 295.
Hohmann, Harald Precautionary Legal Duties and Principles of Modern International Environmental Law (1994).
Holland, Alan ‘The use and abuse of ecological concepts in environmental ethics’ (1995) 4 Biodiversity and Conservation, 812.
Holling, CS ‘Theories for sustainable futures’, (2000) 4(2) Conservation Ecology, 7. Available online at
Homberger, Dominique and Steven Beissinger ‘Bird trade: conservation strategy or extinction catalyst?’ (2006) 52 (Supplement) Acta Zoologica Sinica, 46.
Horwitz, Pierre, Harry Recher and Jonathan Majer, ‘Putting invertebrates on the agenda: political and bureaucratic challenges’, in Ponder and Lunney (1999) 398.
Hutchings, Pat, Daniel Lunney and Chris Dickman (eds) Threatened Species Legislation: Is it just an Act? (2004).
Hutton, J and B Dickson (eds) Endangered Species Threatened Convention, The Past, Present and Future of CITES (2000).
Hutton, JM ‘Who Knows Best? Controversy over Unilateral Stricter Domestic Measures’ in Hutton and Dickson (2000) 57.
Hutton, Jon and Grahame Webb, ‘Crocodiles: Legal Trade Snaps Back’ in Oldfield (2003).
Hutton, JM and N Leader-Williams (2003) ‘Sustainable use and incentive-driven conservation: realigning human and conservation interests’, 37(2) Oryx 215.
293
Huxley, Chris ‘CITES: The Vision’ in Hutton and Dickson (2000) 9.
Industry Commission, A Full Repairing Lease, Inquiry into Ecologically Sustainable Land Management, report No. 60 (27 January 1998).
International Whaling Commission,
IUCN/UNEP/WWF, World Conservation Strategy (1980)
IUCN, UNEP and WWF, Caring for the Earth: A Strategy for Sustainable Living (1991)
IUCN Species Survival Commission Shark Specialist Group and TRAFFIC, ‘The Role of CITES in the Conservation and Management of Sharks’, June 2002
IUCN/SSC Crocodile Specialist Group, Review of Crocodile Ranching Programs, conducted for CITES, January – April 2004, at 31. Available at
IUCN Crocodile Sustainable Group, information page. Available at
IUCN Sustainable Use Specialist Group (SUSG), Lessons Learned in Sustainable Use. Available at
IUCN, TRAFFIC, Fauna & Flora international and Resource Africa, The Precautionary Principle Project: Sustainable Development, Natural Resource Management and Biodiversity Conservation. Available at
IUCN Red List for 2006, available at < http://www.redlist.org/>, accessed May 2006.
Janzen, DH ‘Wildland biodiversity management in the tropics: Where are we now and where are we going?’ Vida Silvestre Neotropical 3:3-15.
Jenkins, Robert WG ‘The Significant Trade Process: Making Appendix II Work’ in Hutton and Dickson (2000) 47.
Joanen, Ted, et al, ‘The Commercial Consumptive Use of the American Alligator (Alligator mississippiensis) in Louisana’ in Freese (1997) 486.
Johnson, Stanley The Earth Summit: The United Nations Conference on Environment and Development (1993).
294
Johnston, Colin ‘Welfare Considerations in Aquatic Animals’ (2003) 16(2) ANZCCART NEWS, 1-4.
Johnston, Colin ‘Nociception and nociperception in fish: where does the debate fit in primary industries?’, in Jones (2004).
Jones, Bidda (ed) Welfare Underwater, Proceedings of the 2004 RSPCA Australia Scientific Seminar, Canberra, February 2004, available at URL < www.rspca.com.au >, accessed May 2004.
Kelly, John, Selling the kangaroo industry to the world, Assisting ongoing kangaroo market growth by facilitating public industry acceptance, Rural Industries Research and Development Corporation (July 2004).
Kievit, Henriette, ‘Conservation of the Nile Crocodile; Has CITES Helped or Hindered’ in Hutton and Dickson (2000) 88.
King, Max, ‘Sustainable use – a hunter’s concept’ in Grigg, Hale and Lunney (1995) 282.
Kingsford, Richard, Peter Fullagar and Grahame Webb, Scientific panel review of open seasons for waterfowl in NSW (2000), NSW National Parks.
Kingwell, RS, ‘Should Australia export its native birds?’ (1994) 62(2) Review of Marketing and Agricultural Economics, 261.
Kiss, Alexandre, ‘The Rio Declaration on Environment and Development’ in Campiglio (1994) 55.
Kloppenburg, J and B Burrows, ‘Biotechnology to the Rescue? Twelve Reasons Why Biotechnology is incompatible with Sustainable Agriculture’ (1996) 26(2) The Ecologist 61.
Kothari, Ashish, Neema Pathak and Farhad Vania, Where Communities Care, Community-based wildlife and ecosystem management in South Asia (2000).
Lane, PH, ‘The Federal Parliament’s External Affairs Power; The Tasmanian Dam Case’ (1983) 57 Australian Law Journal 554.
Lang, W (ed), Sustainable Development and International Law (1995).
Lawrence, Peter, ‘Regional Strategies for the Implementation of Environmental Conventions: Lessons form the South Pacific? (1994) 15 Australian Yearbook of International Law 203.
295
Leader-Williams, Nigel and Holly T Dublin, ‘Charismatic megafauna as ‘flagship species’ in A Entwistle and N Dunstone (eds), Priorities for the Conservation of Mammalian Diversity (2000) 69-70.
Lele, Sharachandra and Richard B Norgaard, ‘Sustainability and the Scientist’s Burden’ (1996) 10(2) Conservation Biology 354.
Leopold, Aldo, A Sand County Almanac (1966).
Ley, John Australia's Protection and Conservation of Wildlife (1992).
Light, Andrew, ‘Materialists, Ontologists, and Environmental Pragmatists’ (1995) 21(2) Social Theory and Practice, 315.
Lightfoot, Simon, ‘A good international citizen? Australia at the World Summit on Sustainable Development’ (2006) 60(3) Australian Journal of International Affairs, 457.
Lombardi, Louis, ‘Inherent Worth, Respect, and Rights’ (1983) 5 Environmental Ethics 257.
Lovejoy, Thomas, ‘Glimpses of Conservation Biology Act II’ (2006) 20(3) Conservation Biology 711.
Lunney, D, CA Urquhart and P Reed (eds), Koala Summit, Managing Koalas in New South Wales (1990).
Lunney, Daniel and Winston Ponder, ‘Emergent themes from the Other 99%’, in Ponder and Lunney (1999), 446.
Lunney, D and C Dickman (eds), A Zoological Revolution, Using native fauna to assist in its own survival (2002).
Lyster, Simon, International Wildlife Law (1985).
MacKinnon, Kathy, Hemanta Mishra and Jessica Mott, ‘Reconciling the needs of conservation and local communities: Global Environment Facility support for tiger conservation in India’ in Seidensticker, Christie and Jackson (1999) 307.
Macquarie Dictionary (2nd rev. 1987).
Maffei, Maria Clara, ‘Evolving Trends in the International Protection of Species’ (1993) 36 German Yearbook of International Environmental Law, 131.
Makombe, Kudzai (ed), Sharing the Land, Wildlife, People and Development in Africa, IUCN/Rosa Issues Series No 1, (1993) 31.
296
Marshall, AJ, 'On the disadvantages of wearing fur'', in AJ Marshall (ed) The Great Extermination (1966) 9.
Martin, Roger ,‘Managing over-abundance in koala populations in south-eastern Australia – future options’ in M Davies (1997) 57.
Martin, RB, ‘CITES and the CBD’ in Hutton and Dickson (2000) 125.
Martin, RB, ‘When CITES Works and When it Does Not’ in Hutton and Dickson (2000) 29.
Mason, Michael, ‘Democratising Nature? The Political Morality of Wilderness Preservationists’ (1997) Environmental Values 6, 281.
Mayell, Hillary, ‘Controlled Alligator Harvest an Effective Conservation Tool, Louisiana Says’, National Geographic Online, 22 October 2001. Available at
McNally, R and P Wheale, ‘Biopatenting and Biodiversity, Comparative Advantages in the New Global Order’, (1996).26(5) The Ecologist 222.
McNeely, JA and KR Miller (eds), National Parks, Conservation and Development: The role of protected areas in sustaining society (1984).
McNeely, JA, ‘Economic Incentives for Conserving Biodiversity: Lessons for Africa’ (1993) 22(2-3) Ambio 144.
McNeely, Jeffrey A, ‘Protected Areas, Poverty, and Sustainable Development’ in Secretariat for the Convention on Biological Diversity, CBD Technical Series No. 15, Biodiversity Issues for Consideration in the Planning, Establishment and Management of Protected Area Sites and Networks (2004). Available at
McNeely, Jeffrey A, et al ‘Biodiversity’ in Chopra (2005).
McPherson, Guy R and Stephen DeStefano, Applied Ecology and Natural Resource Management (2003).
McTainsh, GH and WC Bougton (eds), Land Degradation Processes in Australia (1993).
Medellin, Rodrigo, ‘Sustainable Harvesting and Conservation’ (1999) 13(2) Conservation Biology 225.
Metcalfe, Simon, ‘Decentralisation, Tenure and Sustainable Use’ in Hutton and Dickson (2000) 158.
297
Milliken, Tom, TRAFFIC Network Briefing, ‘African Elephants and the Eleventh Meeting of the Parties to CITES’ 2
Mir, Ahsanullah, Impact Assessment of Community Based Trophy Hunting in MACP areas of NWFP [North-West Frontier Province] and Northern Areas, May 2006. Available at
Mofson, Phyllis, ‘Zimbabwe and CITES: Influencing the International Regime’ in Hutton and Dickson (2000) 107
Moritz, C and J Kikkawa (eds), Conservation Biology in Australia and Oceania (1994).
Moyle, Brendan, ‘Regulation, Conservation and Incentives’ in Hutton and Dickson (2000).
Moyle, Brendan, ‘Making the Precautionary Principle Work for Biodiversity: Avoiding Perverse Outcomes in Decision-making Under Uncertainty’ in Cooney and Dickson (2005).
Murphree, Marshall W, ‘The Lesson from Mahenye’ in Hutton and Dickson (2000) 181.
Naess, Arne, ‘The Shallow and the Deep, Long-Range Ecology Movement. A Summary’ (1972) Inquiry 16, 95.
Nayar, R Jayakumar and David Ong, ‘Developing Countries, ‘Development’ and the Conservation of Biological Diversity’, in Bowman and Redgwell (1996) 235.
Nias, Raymond, World Wide Fund for Nature Australia, Submission to the Senate References Committee Rural and Regional Affairs and Transport On The Inquiry Into Commercialisation of Australian Native Wildlife (1997).
Nix, Henry, ‘Management of Parks and Reserves for the Conservation of Biological Diversity’ in Pigram and Sundell (1997) 16.
Nordic Council of Ministers, The Effectiveness of Multilateral Environmental Agreements (1996).
Northern Land Council Submission to the Hon. David Kemp, Federal Minister for the Environment, Re: Draft Management Plan for Crocodylus porosus in the Northern Territory, 5 February 2004. Available at
Norton, Bryan, Why Preserve Natural Variety (1987)
298
Norton, Bryan, ‘The Cultural Approach to Conservation Biology’, in D Western and M Pearl (eds) Conservation for the Twenty-first Century (1989) 241.
NSW National Parks and Wildlife Service, The New South Wales Kangaroo Management Programme. Effective from January 1 1998 to December 31 2002.
NSW National Parks and Wildlife Service, Submission to the Senate References Committee Rural and Regional Affairs and Transport On The Inquiry Into Commercialisation of Australian Native Wildlife (1997).
Nuding, Markus A, ‘Wildlife management in Namibia: the conservancy approach’ in O’Riordan and Stoll-Kleeman (2002),189.
Nygren, Anja ,‘Environment as Discourse: Searching for Sustainable Development in Costa Rica’ (1998) 7 Environmental Values 201.
O’Brien, P (ed), Wildlife Use and Management: Report of a workshop for Aboriginal and Torres Strait Island people (1992).
OECD, Handbook of Biodiversity Valuation: A Guide to Policy Makers (2002).
OECD, Handbook of Incentive Measures for Biodiversity Design and Implementation (1999).
Oldfield, Sara (ed), The Trade in Wildlife (2003).
Olsen, Penny, Michael Weston, Ross Cunningham and Andrew Silcocks (Birds Australia), The State of Australia's Birds 2003, available at
Olsen, Penny and Michael Weston (Birds Australia), ‘Water, wetlands and birds’, The State of Australia's Birds 2004 (December 2004), available at
O’Neill, John, 'The Varieties of Intrinsic Value’ (1992) The Monist, 119.
O'Neill, John, Justice, Property and the Environment (1997).
Ong, David, 'The Convention On International Trade In Endangered Species: Implications of Recent Developments in International and EC Environmental Law' (1998) 10 Journal of Environmental Law 291.
O’Riordan, Tim and Susanne Stoll-Kleeman (eds), Biodiversity, Sustainability and Human Communities: Protecting beyond the Protected (2002).
299
Palmer, Margaret, et al, ‘Ecology for a Crowded Planet’ 304 Science (28 May 2004) 1251.
Panayotou, Theodore, Economic Instruments for Environmental Management and Sustainable Development (1994). United Nations Environment Program Environmental Economics Unit, Environmental Economics Series Paper No. 16.
Panwar, HS, ‘What to do when you’ve succeeded: Project Tiger, ten years later’ in McNeely and Miller (1984) 183.
Passmore, John, ‘Attitudes to Nature’ in Elliot (1995) 129.
Pauwelyn, Joost, Conflict of Norms in Public International Law (2003).
Pearce, David (ed), Blueprint 2: Greening the World Economy (1994).
Pearce, David and Edward Barbier, Blueprint For A Sustainable Economy (2000).
Pearce, F, ‘Changing the game: Does banning trade in horns, tusks and skins protect endangered animals or just make local people poorer?’ (1997) New Scientist 154.
Peterson, MJ, 'International Organizations and the Implementation of Environmental Regimes' in Young (1997) at 115.
Phillips, Marcia, Kevin Boyle and Alan Clark, ‘A comparison of opinions of wildlife managers and the public on endangered species management’ (1998) 26(3) Wildlife Society Bulletin 605.
Pigram, J and R Sundell (eds), National Parks and Protected Areas: Selection, Delimitation and Management (1997).
Ponder, Winston and Daniel Lunney (eds), The Other 99%. The Conservation and Biodiversity of Invertebrates (1999).
Ponder, Winston, Pat Hutchings and Rebecca Chapman, Overview of the Conservation of Australian Marine Invertebrates, A Report for Environment Australia, July 2002. Pople, Tony and Gordon Grigg, Commercial Harvesting of Kangaroos In Australia, Overview of Background Information for Kangaroo Management, prepared for Environment Australia (1999).
Possingham, Hugh, The Business of Biodiversity (2001).
Pressey, RL, ‘Conservation Reserves in NSW, Crown Jewels or Leftovers?’ (1995) 26(2) Search 47.
Pressey, RL, S Ferrier, TC Hager, CA Woods,SL Tully, KM Weinman, ‘How well protected are the forests of north-eastern New South Wales? - Analyses of forest
300
environments in relation to formal protection measures, land tenure, and vulnerability to clearing’ (1996) 85 Forest Ecology and Management 311.
Pretty, Jules, ‘People, livelihoods and collective action in biodiversity management’ in O’Riordan and Stoll-Kleeman (2002), 61.
Primack, Richard B, Essentials of Conservation Biology (1993).
Prineas, Peter, ‘Effectiveness of Current Wildlife Legislation in Australia and the Appropriateness and Implementation of Endangered Species Habitat Protection Legislation’, in M Hicks and P Eiser (eds) The Conservation of Threatened Species and their Habitats (1989) 133.
Productivity Commission, Harnessing Private Sector Conservation of Biodiversity (2001).
Productivity Commission, Constraints on Private Conservation of Biodiversity (2001).
Purtell, Des, Improving Consumer Perceptions of Kangaroo Products (1997) RIRDC Research Paper Series No 97/36.
Radin, Margaret J, Contested Commodities (1996).
Radin, Margaret J, ‘Justice and the Market Domain’, in Markets and Justice, Nomos XXXI (1989).
Recher, Harry, ‘Conservation priorities: myths and realities’ (1997) 3(2) Pacific Conservation Biology 82.
Recher, Harry, ‘Why Conservation Biology? An Australian Perspective’ in Moritz and Kikkawa (1994) 5.
Redford, Kent H, and John G. Robinson, ‘Subsistence and Commercial Uses of Wildlife in Latin America’ in Robinson and Redford (1991).
Redgwell, Catherine, ‘Life, The Universe and Everything: A Critique Of Anthropocentric Rights’, in Boyle and Anderson (1996) 71.
Regan, Tom, The Case for Animal Rights (1983).
Regan, Tom, ‘The Case for Animal Rights’ in T Regan and P Singer (eds), Animal Rights and Human Obligations (1989) 105.
Reid, Walter, ‘Beyond Protected Areas: Changing Perceptions of Ecological Management Objectives’ in Szaro (ed) Biodiversity and Managed Landscapes (1996) 446.
301
Robinson, John G, and Kent H Redford (eds), Neotropical Wildlife Use and Conservation (1991).
Robinson, John G, ‘Conservation Biology and Real-World Conservation’ (2006) 20(3) Conservation Biology, 658.
Robinson, Nicholas A, ‘Universal and National Trends in International Environmental Law’ (1993) 23/3/4 Environmental Policy and Law 148.
Rolston III, Holmes, Environmental Ethics (1988)
Rose, Greg and S Crane, ‘The Evolution of International Whaling Law’, in P Sands (1993).
Rosewarne, Stuart, ‘Banking on ecology: nature, money and markets in community’ (Paper presented at Environmental Justice: Global Ethics for the 21st Century, Melbourne, October 1997).
Rosser, Alison and Mandy Haywood (eds), IUCN Species Survival Commission, April 1999, CITES: A Conservation Tool (6th ed) s 1.3.
Rothwell, Donald and Ben Boer, ‘From the Franklin to Berlin’ (1995) 17 Sydney Law Review 242.
Salafsky, Nick, Richard Margoluis and Kent H Redford, Adaptive Management, A Tool for Conservation Practitioners, Biodiversity Support Program, WWF (2001).
Salzman, L, ‘Scientists and Advocacy’ (1995) 9(4) Conservation Biology 709.
Sand, Peter H, 'Whither CITES? The Evolution of a Treaty Regime in the Borderland of Trade and Environment' (1997) 8(1) European Journal of International Law 29.
Sands, Philippe (ed), Greening International Law (1993).
Sands, Philippe, 'International Law in the Field of Sustainable Development: Emerging Legal Principles' in W Lang (ed) (1995) 53.
Sands, Philippe, ‘“Unilateralism”, Values, and International Law’ (2000) 11(2) European Journal of International Law, 291.
Sands, Philippe, Principles of International Environmental Law (2nd ed) (2003).
Sarat, A et al (eds), Crossing Boundaries: Traditions and Transformations in Law and Society Research (1998).
Schama, Simon, Landscape and Memory (1995).
302
Schonfeld, Alan H, ‘International Trade In Wildlife: How Effective Is The Endangered Species Treaty?’ (1985) 15 California Western International Law Journal 111.
Seidensticker, J, S Christie and P Jackson (eds), Riding the Tiger (1999).
Serventy, Vincent, ‘The Conservation history of the koala with special reference to the work of the Wild Life Preservation Society of Australia and the state of Gould Leagues’ in Lunney, Urquhart and Reed (1990) 170.
Sharp, Robin, ‘London Symposium & Workshop Finds Strong Links Between Recreational Hunting, Conservation & Rural Livelihoods’, SUSG News, October 2006. Available at
Shea, Syd et al, ‘Sustainable conservation: a new integrated approach to nature conservation in Australia’ in Hale and Lamb (eds) (1997) 39.
Shorter Oxford English Dictionary (1973).
Simmons, IG, Environmental History, New Perspectives on the Past (1993).
Singer, Peter, Animal Liberation (1976).
Skira, Irynej, ‘Commercial Harvesting of Short-tailed Shearwaters (Tasmanian Mutton- Birds)’ in O’Brien (1992).
Smith, Richard, ‘”Bugging the Media”: TV broadcasting and the invertebrate agenda’, in Ponder and Lunney (1999), 413.
Spanoghe, Patrick T. and P. K. Bourne, ‘Relative influence of environmental factors and processing techniques on Panulirus cygnus morbidity and mortality during simulated live shipments’ in (1997) vol 48 Marine Freshwater Research 841.
Stanton, Gretchen Heimpel, ‘The WTO dispute resolution system’ in Quarantine and Market Access. Playing By The WTO Rules, Forum Proceedings, 6-7 September 2000.
Steiner, Achim, ‘Release of the 2006 IUCN Red List of threatened Species reveals ongoing decline of the status of plants and animals,’ IUCN news, 2 May 2006, available at
St John, Barbara, ‘Risk assessment and koala management in South Australia’ in M Davies (1997) 47.
Stouffer, Philip, et al, ‘Long-Term Landscape Change and Bird Abundance in Amazonian Rainforest Fragments’ (2006) 20(4) Conservation Biology 1212.
303
Stratford, Elaine et al, ‘Managing the Koala Problem: Interdisciplinary Perspectives’ (2000) 14(3) Conservation Biology 610.
Struhsaker, Thomas T, ‘A Biologist’s Perspective on the Role of Sustainable harvesting in Conservation’ (1998) 12(4) Conservation Biology 930-932.
Suchet, Sandra, ‘Challenging “Wildlife Management”, Lessons for Australia from Zimbabwe, Namibia and South Africa’ in Baker et al (2001).
Sutherland, Johanna and Kado Muir, ‘Managing Country, A Legal Overview’ in Baker et al (2001).
Swanson, Timothy, ‘The Evolving Trade Mechanisms in CITES’ (1992) 1(1) RECIEL 57.
Swanson, Tim, ‘Conserving Biological Diversity’ in Pearce (1994).
Swanson, Timothy, ‘Developing CITES: Making The Convention Work for All of the Parties’ in Hutton and Dickson (2000) 134.
Takacs, David, The Idea of Biodiversity (1996).
Tasmanian Government, Submission to the Senate References Committee Rural and Regional Affairs and Transport On The Inquiry Into Commercialisation of Australian Native Wildlife (1997).
Taylor, Paul, ‘The Ethics of Respect for Nature’ (1981) 3 Environmental Ethics 197.
Taylor, Paul, ‘In Defense of Biocentrism’ (1983) 5 Environmental Ethics 237.
Thirier, Dominique, ‘Traditional hunting: Cultural rights v animal welfare’ (2006) 31(2) Alternative Law Journal 63.
Thomas, Peter and Mark Albert, ‘Data on Wildlife Trade’ (2006) 20(3) Conservation Biology 597.
Thompson, Janna, ‘A Refutation of Environmental Ethics’ (1990) 12(2) Environmental Ethics 147.
Tilman, David, ‘Causes, consequences and ethics of biodiversity’ (2000) 405 Nature 208.
Timoshenko, Alexandre S, 'From Stockholm to Rio: The Institutionalisation of Sustainable Development' in Lang (1995).
Tisdell, Clement A., ‘Does the economic use of wildlife favour conservation and sustainability’, in G Grigg, P Hale and D Lunney (1995).
304
Tisdell, Clement A., ‘Economic Incentives to Conserve Wildlife on Public Lands: Analysis and Policy’ (2004) 24 The Environmentalist, 153.
Tisdell, Clem, Clevo Wilson and Hemanath Swarna Nantha, ‘Crocodile Farms and the Management of Saltwater Crocodilesin the Northern Territory: Results of a Survey of NT Crocodile Farmers plus Analysis of Secondary Information’ (2005) Economics, Ecology and the Environment, Working Paper No. 131.
Töpfer, Klaus, Executive Director of the UN Environment Programme. UNEP press release, 17 June 2000
Toyne, Philip, The Reluctant Nation (1994).
TRAFFIC Oceania, Submission to the Senate References Committee Rural and Regional Affairs and Transport On The Inquiry Into Commercialisation of Australian Native Wildlife (1997).
TRAFFIC Network Briefing, 'Ivory trade decisions at the 41st meeting of the CITES Standing Committee', 11 February 1999
TRAFFIC report, April 2000, ‘Boost for elephant trade monitoring systems’
TRAFFIC, ‘CITES meeting endorses sea change: Sharks bask in victory glow’, TRAFFIC News, November 2002
TRAFFIC News, ‘CITES meeting endorses sea change: Sharks bask in victory glow’ November 2002
TRAFFIC publication Making a Killing or Making a Living? Wildlife trade, trade controls and rural livelihoods (2002), Biodiversity and Livelihoods Issues No.6, available at
Troughton, Ellis, Furred Animals Of Australia (first published 1941, 7th ed, 1962).
‘t Sas-Rolfes, Michael, ‘Assessing CITES: Four Case Studies’ in Hutton and Dickson, (2000) 69.
Tucker, Linda and David Farrier, ‘Conserving Biodiversity Via Access to Bioresources: A Natural Selection?’ in N Stoianoff (ed) Accessing Biological Diversity: Complying with the Convention on Biological Diversity (2004).
305
Vakeva, Outi, 'The United Nations Convention on Biological Diversity, Rio De Janeiro 1992 and Convention on the International Trade of Endangered Species of Wild Fauna and Flora (CITES), Washington 1973' in Nord (1996). van Heijnsbergen, P, International Protection of Wild Fauna and Flora (1997).
Van Dieren, Wouter and Marius GW Hummelinck, Nature’s Price. The economics of Mother Earth (1979).
Vardon, Michael, Richard Noske and Brendan Moyle, ‘Harvesting black cockatoos in the Northern Territory: catastrophe or conservation?’ in M Davies (1997) 84.
Vogel, Steven, Against Nature, The Concept of Nature in Critical Theory (1996).
Wackernagel, M and W Rees, Our Ecological Footprint: Reducing Human Impact on the Earth (1996).
Walsh, Peter D and Lee JT White, ‘What It Will Take to Monitor Forest Elephant Populations’ (1999) 13(5) Conservation Biology 1194.
Ward, Paul et al, ‘The Relationship between Popularity and Body Size in Zoo Animals’ (1998)12(6) Conservation Biology 1408.
Ward, Trevor J and Alan Butler, ‘Coasts and Oceans’, State of the Environment Report 2006. Available at:
Watson, Richard A., ‘A Critique of Anti-Anthropocentric Biocentrism’ (1983) 5 Environmental Ethics 254.
Webb, Grahame et al, A Proposal For The Transfer Of The Australian Population Of Crocodylus porosus Schneider (1801), From Appendix I To Appendix II Of CITES (1984).
Webb, Grahame Peter Whitehead and S Charlie Manolis, 'Crocodile Management in the Northern Territory of Australia' in Webb, Whitehead and Manolis (1987) 107.
Webb, G, P Whitehead and SC Manolis (eds), Wildlife Management: Crocodiles and Alligators (1987).
Webb, Grahame, ‘Sustainable use of wildlife’ (1997) 10(1) Australian Biologist, 3.
Webb, Grahame, Submission to the Senate References Committee Rural and Regional Affairs and Transport On The Inquiry Into Commercialisation of Australian Native Wildlife (1997).
306
Webb, Grahame, ‘Are All Species Equal? A Comparative Assessment’ in Hutton and Dickson (2000).
Webb, Grahame, ‘Conservation and sustainable use of wildlife —an evolving concept’ (2002) vol 3 Pacific Conservation Biology, 12-26.
Wells, Michael, ‘Biodiversity Conservation, Affluence and Poverty: Mismatched Costs and Benefits and Efforts to Remedy Them’ (1992) 21(3) Ambio, 237.
Wetlesen, Jon, ‘The Moral Status of Beings who are not Persons: A Casuistic Argument’ (1999) 8 Environmental Values 287.
White, PCL, KW Lindley and G Richards, ‘Economic values of threatened mammals in Britain: a case study of the otter Lutra lutra and the water vole Arvicola terrestris’ (1997) 82 Biological Conservation 345.
Whitehouse, JF, ‘Conserving What? - The basis for nature conservation reserves in New South Wales 1967-1989’ (1990) 26(1) Australian Zoologist 15.
Wigglesworth, VB, ‘Do Insects Feel Pain’ (1980) vol.4 Antenna , 8
Wijnstekers Willem, The Evolution of CITES March 2000. Available at
Wijnstekers, Willem, The Evolution of CITES, 7th edition 2003. Available at
Williamson, Sima, David Brunckhorst and Gerard Kelly, Reinventing the Common, Cross-boundary Farming for a Sustainable Future (2003).
Wilson, Edward, The Diversity of Life (1992).
Wilson, Edward, Consilience (1998).
Wilson, George, Andrew McNee and Peter Platts, Wild Animal Resources: their Use by Aboriginal Communities (1992).
Wilson, George, ‘Native birds and reptiles’ in RIRDC, The New Rural Industries – A Handbook for Farmers and Investors, 55. Available at
Wilson, George R, and Beth Mitchell, A Strategic Plan for Trialling Sustainable Wildlife Enterprises (July 2005), RIRDC Publication No 05/106.
Winham, Gilbert, ‘Enforcement of Environmental Measures: Negotiating the NAFTA Environmental Side Agreement’ (1994) 3(1) Journal of Environment & Development 29.
307
World Commission on Environment and Development, Our Common Future (‘The Brundtland Report’) (1987).
World Trade Organisation, The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal Texts (1995).
World Wide Fund for Nature, Wildlife Trade, Frequently Asked Questions: Parrots, available at
Yen, Alan and Rhonda Butcher, An overview of the conservation of non-marine invertebrates in Australia (1997).
Young MD, et al, Reimbursing the Future, An evaluation of motivational, voluntary, price-based property-right, and regulatory incentives for the conservation of biodiversity, Biodiversity Series, Paper No. 9 (1996).
Young, Oran R, ‘Fairness Matters: The Role of Equity in International Regimes’, paper given to the Conference on Environmental Justice: Global Ethics for the 21st Century, Melbourne (October 1997).
Young, Oran R (ed), Global Governance: drawing insights from the environmental experience (1997).
308