Australasian Plant Conservation
Originally published in Australasian Plant Conservation 17(2) August - September 2008, pp 36-38
Threatened flora and 'the law' in South
Australia: more issues than tissues?
Nature Conservation Society of South Australia,
Adelaide. Email: email@example.com
Despite enacting early legislation on national parks and
native vegetation, South Australia continues to lose
indigenous species much like other states. There are
currently two principal State Acts that relate directly to
the protection and conservation of threatened plant species
and communities in South Australia, namely the National
Parks and Wildlife Act 1972 and the Native Vegetation
Act 1991. The former has become somewhat antiquated
as a piece of conservation legislation, in that it fails to
reflect current types or levels of threat, while the latter has
been systematically weakened by a sprawling litany of
exemptions, lack of directional powers and problems with
administration and implementation.
As a consequence, South Australia's threatened plant
species and communities have inadequate legal protection.
Such sentiments have gained increasing recognition by
conservationists and at a State Government policy level,
with the recently adopted Nature Conservation Strategy
stating that 'the current suite of legislative instruments is
not delivering our aspirations and stopping the biodiversity
decline' (DEH 2007).
This article provides a brief critique, from the perspective
of a plant conservation practitioner, on the current situation
regarding State laws and threatened flora protection in
Current Laws for Plant Species Protection
The National Parks and Wildlife Act 1972 (NPW Act) is
the Act under which indigenous plant species can be listed
as Endangered, Vulnerable or Rare in South Australia.
There is no provision for listing threatened ecological
communities under this Act or any other State legislation.
The Act prescribes modest financial penalties for the
'unlawful taking' of 'native' plants on public land, with
'take' being defined as the manual removal of a plant or
part of the plant from the place in which it is growing,
or the damage of a plant. This 'protection' fails in two
main ways. The first is that threats other than those that
directly damage a plant, such as population or habitat
destruction, aren't currently addressed by this legislation
(Reynolds 2007; Parnell 1999). The second is that there is
no protection for native plants on private land unless the
species is 'prescribed' under the Act and currently no plant
species are so prescribed.
There are further issues relating to penalties and
enforcement of this legislation. Low probabilities of
detection or proof, lack of resources and political will, and
the risk of having damages awarded against unsuccessful
complainants are all barriers to successful enforcement.
There are also no mechanisms to actuate reparations,
such as requiring offenders to 'make good' damages or
destructive activities through ameliorative measures.
Protection of Threatened Plant Habitats
The Native Vegetation Act 1991 (NV Act) contains
provisions for protecting habitat for threatened plant
species as well as threatened vegetation communities
through its 'Principles of Clearance', a set of criteria against
which vegetation clearance applications are intended to be
assessed. Rigorous assessment against these principles
increasingly is being by-passed through exemptions (via
the regulations) for particular circumstances, management
guidelines and types of clearance, and so the strength of the
principles is diluted in implementation.
Development approvals obtained under South Australia's
development legislation override the NV Act. The Native
Vegetation Council, the statutory body set up by, and
which administers, this Act, has no powers of direction
on development and land use matters dealt with under the
Development Act 1993. This means that there is no strict
mechanism to ensure legal compliance with any advice on
a development provided by the Council.
There has recently (2004) been further relaxing of the NV
Act's protective strength through introduction of 'offset'
provisions, where proposed remnant vegetation destruction
can arguably be compensated for. This involves the
provision of what is termed in the legislation a 'Significant
Environmental Benefit' (SEB), typically revegetation
or payment into the Native Vegetation Fund. There are
serious issues with this concept and despite agency stated
intent, offset provisions were adopted without the support
of the State's non-government conservation sector.
The SEB concept is scientifically questionable, as no hard
evidence exists that the manifold ecological functions
of remnant vegetation can actually be reconstructed
through revegetated 'analogues', and that clearance can be
adequately compensated for in this way. Major concerns
with the 'offsets' concept are that despite the inadequate
understanding of the impact of clearance at all scales, or the efficacy of
revegetated areas to act as analogues, it sets
up a false sense of security with the public that remnant
vegetation clearance can be readily compensated for.
Threatened Plant Action Group members at work in the Adelaide Hills.
Photo: Tim Jury
State Development Law
A particular concern with the application of the South
Australian Development Act 1993, is its intersection with
other Acts, notably the Commonwealth Environment
Protection and Biodiversity Conservation Act 1999 (EPBC
Act). A highly unsatisfactory arrangement has recently
been established for Major Developments whereby the
Development Act now also serves the purpose of the
EPBC Act via an Australian Government-SA Government
The EPBC Bilateral Agreement came into force in July
2008, and aims to simplify the application assessment
process, by avoiding the need for discrete but concurrent
assessments under both State and National legislation.
However, the objects of the EPBC Act and the SA
Development Act 1993 are clearly not identical or necessarily
complementary. For example, the EPBC Act deals
with 'Matters of National Environmental Significance',
and therefore requires specialised assessment and
Through a series of planning reviews and amendments,
third party appeal rights have been eroded. In any case,
third party appeals are plagued by issues such as scientific
uncertainty and the burden of proof typically falling
on concerned yet under-equipped and under-resourced
Land Management Practices
A significant limitation with legislative approaches is that
usually they aren't retrospective, meaning that threats
and degradation from existing land use and management
practices remain unaddressed, as oft-exempted 'current
activities'. Unless threatening processes arising from
existing land use and associated management can be
stopped, abated or reversed, affected threatened plant
populations or communities will undergo further decline
and eventual extirpation.
Problems also exist with the management of public land
and protected areas containing threatened flora. Legal
requirements for management plans don't necessarily
translate into sound implementation of management actions
to protect and restore native flora, and the management
of these reserved natural areas does not always reflect
their conservation values. This is particularly so due to
the 'dual mandate' of the NPW Act: 'to provide for the
establishment and management of reserves for public
benefit and enjoyment; to provide for the preservation of
wildlife in a natural environment'.
While there is generally the perception that threatened
flora are secure in reserves this is not always the case,
particularly for species sensitive to recreation impacts, park
management activities, or requiring particular successional
habitats to maintain populations. Increasing fuel reduction
burns to protect neighbouring residences around reserves
near Adelaide, without scientific monitoring and subsequent
amelioration of ecological impacts such as biological
invasions, is a case in point. An additional and increasingly
concerning issue is that training and support for reserve
management staff and contractors is often inadequate,
increasing the risk that significant flora is managed
inappropriately or at worst, inadvertently destroyed.
The control of prescribed weed species in native
vegetation, which is required under law (Natural
Resources Management Act 2004), also poses problems.
Land managers without adequate biodiversity knowledge
and management training, compelled by their legal
obligations, frequently employ non-selective methods such
as broadacre spraying which tends to destroy indigenous
plants intermingled with or adjacent to infestations.
Eyewitnesses have observed threatened plants on public
land being killed in this way (Bates pers. comm. 2006,
Hands pers. comm. 2000).
Conclusion & Recommendations
Current South Australian laws have become too antiquated
and weak to provide for adequate protection of the State's
threatened flora, and do not set a framework that aids
recovery. They don't reflect the parlous state of many
threatened species populations and vegetation communities
nor the range and impact of attendant threats. Additionally,
the anthropogenic origin of many threatening process (e.g.
livestock grazing) means that human land-uses tend to
subordinate plant conservation concerns due to economic
factors. This overlooks the true value of ecosystem
functions, species existence rights, and our stewardship
responsibilities for indigenous flora.
Of course it's easier to criticise than come up with
constructive recommendations for improving the current
scenario. Notwithstanding the inherent risks of legislative
review in opening them up to intense lobbying pressure for further concessions
(e.g. in the form of exemptions),
some suggestions for improving the state's current NPW
Act could include:
- changing 'unlawful taking' to 'unlawful
removal' (to address non-collection offences and
adequate enforcement provisions (and resources);
broadening 'specified areas' to include all land tenures
within South Australia;
- activating the current 'prescribed species' provision by
prescribing threatened and other significant plant species
(e.g. threatened ecological community dominants);
- adding a critical habitat register with strong protective
provisions for scheduled species in reserves and on
crown land (to trigger controls in public land planning
- introducing schedules for threatened ecological
communities and key threatening processes;
providing for a scientific committee with criteria to
review scheduled species; and
- more incisive use of existing powers by the state
government, as advocated for other jurisdictions
elsewhere (see Kennedy & Fry 1986).
The principles of the NV Act must be given due
consideration in all aspects of the Act's implementation,
and in particular it must be ensured that SEB offsets
demonstrate a significant, tangible conservation gain and
do not act as perverse incentives.
Laws in themselves won't recover threatened flora. Laws
are essentially governance instruments, enacted and utilised
to restrict or influence social behaviour and establish
punitive deterrents. They do however have the potential
to limit the inimical impacts of developments and some
land management practices on threatened flora, provided
there are workable arrangements for administration and
enforcement. And therein lies the trick and an increasingly
pressing challenge for conservationists and legislators
concerned about sustaining indigenous plant diversity into
Thanks to Annie Bond, Nicole Lewis, Vicki-Jo Russell and Tim Milne
for providing comment.
DEH (2007). No Species Loss: A Nature Conservation Strategy for South
Australia 2007-2017. Department for Environment and Heritage (DEH),
Government of South Australia.
Kennedy, M. & Fry, I. (1986). Legislative Proposals in
species conservation strategy for Australia - Policies for the future.
In: M. Kennedy & R. Burton (eds) Endangered Species Program,
Parnell, M. (1999). Endangered Species Law Reform in South Australia:
The Adequacy of Existing Legislation in South Australia's Threatened
Species: Is Law Reform Needed? Workshop Proceedings, Black Hill
Flora Centre, South Australia.
Reynolds, C. (2007). The legal state of play - or how legislation supports
nature conservation. Presentation to Nature Conservation Legislation
Review Seminar, November 2007, Adelaide.