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A. Introduction
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The topic, biodiversity," is huge. It ranges
from the conservation of species and ecosystems
to the developmental right of nations to exploit
their naturally occurring genetic material. It
nvolves complex moral, philosophical, spiritual,
environmental, scientific, political, legal, and
economic issues. Driven by a range of concerns,
perhaps most notably by evidence of an unprecedented and accelerating species collapse, it is
rapidly becoming the most significant conservation issue of our time Indeed ofthe four fundamental environmental issues into which most
particular issues fall, namely, conservation of air,
of water, of land and of the diversity of life,
or biodiversity, it is the last which is increasingly
being seen as most fundamental.
The most remarkable, indeed the apparently
unique feature of the earth, is life. Increasingly
we learn that earth's extraordinary diversity of
life is a series of interrelated processes and that
damage to part of this system may have farreaching consequences. Even in relation to the
conservation of land, for instance, which we tend
to assess by reference to crude physical and
chemical measures, we will no doubt increasingly
see that the true measure lies in the life, the
biodiversity, ofthe soil. And so conservation of
biodiversity, including, of course, human life,
may become both the measure and the purpose
of even the other fundamental conservation
issues,
The particular aspect of biodiversity explored
here is the nature and effectiveness of two legislative models for the conservation of biodiversity,
referred to as the species approach and the
vegetation approach. Much legislation is not
Endangered
o f l i f c fa l a
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Unted
States
t h a t is habitat> in o r d e r
a c h i e v e t h i s conse rvation
to
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t
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w
a
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s . As to the former, and
b o t h
expressly drawing on cases dealing with the
U n i t e d S t a t e s A c t > i t h e l d t h a t t h e c l e a r object
av p u r p o s e of ss 98 and 99 were the preservation
o f s p e c i e s md t h a t t h i s r e q u i r e d protection of
the
i e s a s a w h o l e j n o t j u s t o f individual
cimens.
The concept of disturbance adopted
spe
which
b
e
C o u r t i n c i u d e s a n y activities
with the essential
behavioural
interfere
characteristics of a species including its breeding,
f e e d ing or nesting,
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, I n considering whether any species were m
fact s
^, the Court gave numerous
examples of * e sort of disturbance which can
o c c u r
They include allowing the ingress of
predator species, both feral and native, reduction
of understorey, loss of breeding and protective
hollows, the impact of fire and changes in
vegetation structure, with resulting changes to
the food supply. The Forestry Commission's 50
per cent canopy retention policy was seen rather
as a 50 per cent canopy removal policy. Wildlife corridors were seen as at best temporary
inadequate refuges. The test of disturbance was
not the likelihood of the elimination of a species
but the threat, perhaps best expressed as the
reasonable
likelihood,
of
population
fragmentation and decline.
1992
Biodiversity Legislation
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indirect taking of species ultimately must
operate, as the reasoning ofthe Court recognises,
as a law prohibiting the disturbance of habitat!
Expressed in these terms, it immediately
becomes apparent that a critical question is not
justoneofdisturbancebutofidentifyingrelevant
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habitat. The Court did not advert expressly to
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; purporting only to app y
its conclusions about what amounted to
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disturbance to the various species, it inescapably
raised this as a distinct question of law. The issue
is this. With a direct taking the species is by
definition known to be taken. If, however, one
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has an indirect taking through habitat
disturbance, there must be a test to know whether
the habitat can be identified as relevant. If a
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species
is rare, for example, it may not be known
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with certainty whether the habitat contains the
soecies or not
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In its formal operation the South Australian
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f e t a t i o n clearance egislation appears to
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differently. Brief background is
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erat on
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w m c h
a r e
art o f
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over-clearance of native vegetation, initially
largely for land degradation reasons. The first
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attempt was through a 1945 amendment to the
Conservation Act 1939 which required three
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months notification
of
intended clearance tou be
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c u
u
& ; r e c e n ^ ' ^ 1 8 w a s f o l !. w a J b y , a
luntary s c h e m e ^
^ u n c l e a i * d land could
b e re
f t e r e d a s a h e 5 l t a S e ea, the incentive
being fencing costs and rate remission. Land only
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t n c k l e d
n t ot h e s c h e
a n d c l e a r a n c e COn
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a a e A! s a r e s u l t a r a n c e w a
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without prior approval by an amendment to the
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Planning
Act 1982 which included clearance in
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definition of development. This was defeated
by the High Court,4 which held that uncleared
agricultural land was notionally being used for
agriculture and that the right to clear was therefore ensured under the existing use provisions
* t h e c t *
T h i s
implausible reasoning and mischievous
r e s u l t
l e d t o t h e
enactment of the Native
Vegetation Management Act 1985 which provided
tha
* clearance without permission was an offence,
A
landholder who was refused permission and
w h o
P la ced the land under a heritage agreement
a
( statutory agreement which precludes cornmereiai use and which is binding in perpetuity
u n l e s s
changed by agreement between the
Minister and the landholder) was automatically
entitled to financial assistance which reflected
any resulting diminution in value. This Act was
subsequently replaced by the Native Vegetation
Act 1991 which removed the automatic entitlement to compensation and which placed greater
emphasis on re-establishment and management
of native vegetation.
The process of legislative development has,
as stated above, been influenced by a concern
for land degradation and by a general attitude
of seeking to control over-clearance. It was as
if native vegetation had some vague intrinsic
value and controls on its clearance could be
justified without more. In more recent times,
June
De A n
1992
Biodiversity Legislation
June
References
1. This article explores briefly one aspect ofthe conservation
of biodiversity. Being written while on the move on study
leave, and hence without research materials, it is a
thoughts article rather than a research one. The sparse
documentation will be rectified in a more extensive work.