At 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.