The Price of AccessAt least as the federal government sees things, the controversy over cattle grazing in Victoria’s Alpine National Park is now over.
Environment minister Tony Burke on Tuesday ruled, on advice from his department, that the proposed trial reintroduction of up to 400 cattle for five months a year was “clearly unacceptable under national environmental law and will not proceed.”
Readers may remember that when the Coalition was elected to government in Victoria a little over a year ago the return of alpine grazing — allegedly as a fire prevention measure — was a prominent election promise. For a government often attacked as slow moving, this particular promise seemed to be treated with some urgency; the cattle returned briefly last year before being ordered out by Canberra, which insisted that Victoria seek approval for the trial. That approval has now been denied.
The mountain cattlefolk are a small but influential constituency, and the Baillieu government seems not to be taking the decision lying down.
State environment minister Ryan Smith is reported as saying “the trial was an election commitment the government intended to keep” and that he was “seeking advice from the Victorian Government Solicitor’s Office and his department on possible next steps.”
The weight of expert opinion certainly seems to favour Canberra’s position. The cattlefolk have been unable to produce serious scientific backing for their claims, or show that anything has changed since the Bracks government, responding to concerns about destruction of the sensitive alpine environment, first stopped the grazing in 2005. There is no particular reason to doubt Burke’s claim that his decision “is based on a thorough and rigorous assessment of the proposal”.
Nonetheless, the decision raises some uncomfortable questions. While the federal government has broad powers under the Environment Protection and Biodiversity Conservation Act of 1999, you will search in vain through the heads of power in section 51 of the constitution for anything about “grazing”, “conservation”, “fire prevention”, or anything else that might seem to support such legislative intervention.
Despite their name, national parks have always been a state responsibility. If a state government with a clear electoral mandate is not permitted to determine policy on what is obviously an internal issue, one wonders whether states really have any autonomy at all. If Canberra can decide this, what can’t it decide?
The precedent, of course, is the Tasmanian dams case of 1983 (Commonwealth v Tasmania), in which the high court by a 4-3 majority upheld the Hawke government’s legislation to stop Tasmania from damming the Franklin River. That case turned primarily on the external affairs power; south-west Tasmania had been declared a world heritage area, and the Commonwealth relied upon the relevant international treaty to justify its actions.
But the Victorian alps are not world heritage — they are on the national heritage list, but that is purely a domestic matter. Nor do any of the other considerations from the dams case seem to apply (the Victorian government is not a trading corporation, there are no Aboriginal sites at risk and river navigation is not an issue).
Yet the high court in recent times has been so indulgent towards Commonwealth power — notably in the WorkChoices case of 2006 (NSW v Commonwealth) that even if the Victorians should launch a challenge it seems quite possible that the Environment Protection and Biodiversity Conservation Act would be upheld in its entirety.
Ideally, issues such as this should be settled by consensus: state and federal governments should sit down together, work through the scientific evidence and agree on a position, with appropriate compensation to those affected. But if that proves to be impossible and one side has to have its way, then the whole point of federalism is that it allocates that final responsibility sometimes to one level and sometimes to another.
If instead we adopt the rule that the federal government always prevails, we no longer have a federal system. However serious the damage that the cattle might be doing, it strikes me that the constitutional damage of stopping them might be more serious still.
16 thoughts on “Canberra says no to grazing — so what are states for?”
Bo Gainsbourg
February 2, 2012 at 2:34 pmHmmm, I think this is drawing a pretty long bow. To suggest that the federal environment minister making sure that national parks that are national heritage are not used as subsidised paddocks for a few highly priveleged graziers seems entirely appropriate. Many farmers would like to get free or cheap paddocks run at the taxpayers expense, only a priveleged few ever have. All the scientific evidence shows that cows damage those alpine areas and don’t do anything to prevent fires. At least Tony Burke has cut through the bullsh*t (literally) and for once told it straight. Its a national park, not a free farm, even if you are in the exclusive liberal national mates club. If people want to wring their hands over federal state legal arrangements I’d suggest finding something more deserving, this one’s a no brainer on any analysis. 99.99% of farmers make a buck without depending on a special free/peanuts lease in a national park, I think these guys can too.
Pedantic, Balwyn
February 2, 2012 at 2:37 pmThough Charles Richardson and I are on the same side vis a vis the Bailleau Government’s appaling action I think he has missed the point re federal intervention.
Whilst under the Australian Constitution the creation and management of national parks is the responsibility of the State Governments, surely that does not abrogate the right or responsibilty of the Federal Government to ensure that they are appropriately managed?
If a State Government decided to mine a National Park, as an example, wouldn’t it be in the national interest for a higher authority, the Feds, to step in and prevent such action?
Hugh (Charlie) McColl
February 2, 2012 at 3:24 pmPedantic, it’s not about the way national parks are managed. The EPBC Act can only be applied when there are Commonwealth interests at stake. So the site must be one of: World Heritage listed, National Heritage listed, an international migratory bird site, Commonwealth land etc. The minister’s statement (linked in the article) includes that the cattle grazing plan would have…
“…a clearly unacceptable impact on the national heritage values of the Australian Alps National Parks and Reserves National Heritage Place.
Because most of the sites are part of a listed National Heritage Place, the Commonwealth government’s EPBC powers come into play. Unless a site is listed in this way (and most national parks are NOT so listed) the Commonwealth government cannot stick its nose in.
Microseris
February 2, 2012 at 4:38 pmBit hard for the two sides to work on the scientific evidence. For Baillieu and the mountain rednecks er cattlemen there isn’t any evidence. Cows don’t eat trees, they eat grass. There is already kangaroos in the parks doing that.
It is also one of the few election promises he has honoured. Too busy stacking the likes of VicForests with relatives and pro loggers.
Democracy at work.
John Bennetts
February 2, 2012 at 5:58 pmCharles Richardson:
“Ideally, issues such as this should be settled by consensus: state and federal governments should sit down together, work through the scientific evidence and agree on a position.”
Sit down together? Agreed position?
The departure from the status quo was entirely the act of Baillieu, who foolish-brave refused to sit down, changed the rules and now finds that his actions aren’t agreed to by the Commonwealth.
I’d say that Baillieu has acted like a strutting schoolyard bully displaying his bravado in front of his gang and has been called to account by a prefect.
Game over.
Hugh (Charlie) McColl
February 3, 2012 at 2:06 pmSo, what are states for? We all know about the evolution of the federal structure but the issues of national significance today still have to be dealt with under that constitutional structure. Hence the necessity for the Australian government to create new processes/powers from time to time to deal with new, seemingly unique, issues, many of which are physically located in the states.
For example the concept of World Heritage was completely new when the General Convention of the United Nations Education Scientific and Cultural Organisation (UNESCO) concluded the World Heritage Convention in November 1972.
The central tenet of the Convention is that there are places that are of such ‘outstanding universal value’ that their disappearance constitutes a harmful impoverishment of the heritage of all humanity. Those countries that are parties to the Convention (including Australia) are obligated to ensure the identification, protection, conservation, presentation, and transmission to future generations of this World Heritage. The Great Barrier Reef was accepted for inclusion upon the World Heritage List in 1981.
What are states for? The GBR state of Queensland facilitates (within more or less the same environmental/planning/economic structures as the other states) the development of vast coal seam gas extraction and the enormous industrial complexes of liquified natural gas export located on the coast at Gladstone. All states facilitate such ventures if they can – don’t they?.
In my view, the states should be constrained from doing anything that prevents Australia delivering on its international OBLIGATIONS to protect, preserve and present the Great Barrier Reef and the dozen other World Heritage sites in Australia.
Ref. The Outstanding Universal Value of the Great Barrier Reef World Heritage Area, Lucas, Webb, Valentine and Marsh, 1997.
Charles Richardson
February 3, 2012 at 4:04 pmTrouble is, no amount of repeating that this is a matter of national importance – which I don’t dispute – creates a constitutional power for the federal govt to address it. And if we stop caring about whether govts actually have the legal power to do the things they’re doing, then I think we’ve lost something even more precious than our alpine meadows. I’m sorry if that makes me a pedant.
Fact is, national parks aren’t a federal responsibility. I’d have no problem with amending the constitution to make them one (they are in the US, for example), but until we do I think there’s a problem here.
@Hugh: I think that’s a reasonable view of world heritage areas, but it’s beside the point because the Victorian alps aren’t a world heritage area. Their significance, while no doubt completely genuine, is something the commonwealth has just decided for itself, and it’s not a good thing for govts to get to decide what their powers are.
Hugh (Charlie) McColl
February 3, 2012 at 7:15 pmCharles, read my post to Pedantic. Those particular Victorian national parks (with, I understand, one exception) ARE listed as National Heritage Places. The Commonwealth, through the EPBC Act, is responsible for protecting those National Heritage values. They are not necessarily exactly the same as World Heritage values but that is not the point. The Commonwealth as not “just decided”. It is already responsible and empowered through the EPBC Act. That is why the whole thing was referred to the Commonwealth in the first place. Check it out. You are missing a crucial point.
Charles Richardson
February 4, 2012 at 7:41 am@Hugh: Yes, I understand that they’re on the national heritage list. But the critical difference between that and world heritage is that world heritage is an international matter – sites are listed by virtue of an international treaty, hence attracting the external affairs power. National heritage is just something that we do. One involves an international process that provides a check on a govt’s bone fides; the other doesn’t. To say the commonwealth is “responsible and empowered through the EPBC Act” just means it’s empowered itself: it’s a commonwealth act.
Look at it another way: the listing of the alpine areas lists the cattle industry as part of its heritage value. What would you think if, relying on that, a conservative federal govt insisted on returning the cattle against the wishes of a state Labor govt?
Hugh (Charlie) McColl
February 4, 2012 at 10:32 amCharles, I don’t think your rationale is correct. I’m not a constitutional lawyer (in a fit!) but I think the EPBC Act applies regardless of “external affairs power”. That is, the Commonwealth Environment Minister is authorised (ie. required) under the Act to examine a proposal (that is referred under the Act – because the proposal might impact on WH, NH, C’wealth Land, RAMSAR site, threatened species etc.) and if not satisfied may require alterations to the plan or may in fact reject it outright. Minister Garrett did just that with a rail/port proposal in central Queensland a couple of years ago. The rejection did not require any “external powers”, it was entirely consistent with provisions of the EPBC Act because of the location of the proposal – on Commonwealth land in the Shoalwater Bay military exercise area – which is part of Queensland but Commonwealth Land. Exactly the same authority or ‘power’ applies to the Alpine National Parks but only because they are a National Heritage Place. Some other national parks in Australia are also on that list and a very few (Kakadu) are WH listed.