We need to tighten the law to protect widlife homes

Three recent reports make clear that we should be saving habitat in order to save species. It is pretty simple. Destroy a species' habitat and you destroy its home.

The first report was issued last week by the Australian Conservation Foundation (ACF). Its take away message is that in Australia we will do little to halt the continuing threat to and extinction of species here until we get serious about providing effective legal protection to habitat.

The second report accompanied an update of the International Union for Conservation of Nature (IUCN) Red List of Threatened Species at the end of June. It highlighted that the main threat to 85% of the 22,784 known and assessed species threatened with extinction (1,839 in Australia) is the loss and degradation of habitat.

The third study, also published at the end of June, was even more disturbing. It found that over the last century the extinction rate for many species was 100 times faster than usual and that we are heading into a human-created sixth mass extinction on Earth. It blamed this on habitat destruction, as well as climate change, trade, and pollution.

Without an adequate home, a species cannot survive. Of course, stressing the need to protect habitat is much easier said than done. Why is that? It largely comes down to three obstacles that have been intractable so far.

Where threatened species are found in AustraliaEnvironmental Resources Information Network (ERIN), Department of Environment

Protecting species, but not their homes

First, the law in Australia does not protect habitat per se. It only protects species. It does this through a process of listing and then making it an offence to kill or take the listed species. Listing species alone, however, does nothing to protect habitat.

It is true that it is possible to list critical habitat under Commonwealth law and various state laws. That has largely been ignored. The problem has been a persistent lack of political will.

Politicians are reluctant to list habitat because it means that parcel of land will be off limits to development. That is something most politicians seek to avoid in pursuit of short-term economic benefits.

Second, protecting habitat is subject to politics. Even when a species is listed, it is possible for governmental decision-makers to exercise discretion and permit a development, even if it will threaten the species.

A decion-maker will be required to consider a number of factors (ordinarily environmental, economic, and social impact) in exercising his or her discretion.

However, if these factors are appropriately ventilated, then the law allows the discretion to be exercised against a threatened species. What we have in these sorts of cases is environmental law without necessarily environmental protection.

It becomes a matter of right process and the only remedy for those dissatisfied when the process has been followed is at the ballot box.

Third, protecting habitat is economically tough. David Attenborough, the famous environmental documentary presenter, has highlighted that humans are in competition with the other species for space on this finite planet.

He correctly observed that it will take a great deal of willpower and economic strength to fix things. The questions for us is, do we have what it takes? Or, will we leave future generations with an environment less rich, less diverse than the one we inherited?

Tighter regulation, more money

The ACF report recommends that in Australia we start by improving recovery plans for species. In particular, ACF maintains that recovery plans must contain “measurable and targeted restraints on the destruction of threatened species habitat and outline restorative outcomes that any approval decisions must work toward”.

The ACF recognises this will not be cheap. It calls for an annual investment of A$370 million to implement recovery plans and purchase land for protected areas.

To follow the recommendation would be to start to seriously protect habitat. It would only be a start though.

Much would depend on whether the new recovery plan arrangements deprived decision-makers of discretion to allow the destruction of habitat despite protection.

Much would depend on where and how much habitat was set aside. Much would depend on the sufficiency of funding. Still, it is a start and you have to start somewhere. One thing is certain, we should start now.

Don Anton provided legal advice to ACF on environmental law issues in the late 1990s. He has been a member of the IUCN World Commission on Environmental Law since 1996.