On 28 February 2012, the Victorian Government lodged an appeal with the Federal Court against the Federal Environment Minister, challenging his recent decision to refuse approval to the Government’s ‘alpine grazing trial’.
In case you missed it, here’s a very quick background: shortly after taking office in December 2010, the Coalition introduced cattle grazing to the Alpine National Park as part of a ‘scientific trial’. While the ‘scientific’ merits of the trial have been seriously questioned, by the Victorian National Parks Association among others, cattle grazing in alpine regions is known to have damaging impacts on threatened flora and fauna – for example, it is formally listed as a ‘potentially threatening process’ under the Flora and Fauna Guarantee Act 1988.
Because of its potential environmental impacts, before it commenced the trial in January 2011, the Government should have referred the trial to the Federal Environment Minister for approval under the Environment Protection and Biodiversity Act 1999 (the EPBC Act). But it made no such referral. The Federal Minister eventually demanded a referral, and the Victorian Government removed the cattle from the Park.
In December 2011, the Victorian Government proposed to recommence the alpine grazing trial in December 2012, for a period of six years. This time, it wrote to the Federal Environment Minister, Tony Burke, seeking his approval. On 31 January 2012, the Minister Burke decided that the alpine grazing trial was ‘clearly unacceptable’ – the strongest finding the Minister can make under the EPBC Act.
Now, the Secretary to the Department of Sustainability and Environment has lodged an appeal in the Federal Court against Minister Burke’s decision. The appeal has been lodged under the Judiciary Act 1903 and the Administrative Decisions (Judicial Review) Act 1977.
The Secretary’s main argument is that the Minister Burke based his decision on information that the Victorian Government did not provide to him: namely, two scientific reports on the environmental impacts of alpine grazing on the high country. The Secretary has also argued that Minister Burke based his decision on features of the Alpine National Park, such as its recreation, aesthetic characteristics and social values, which were not appropriate under the EPBC Act.
Its legal merits aside, what will happen if the appeal succeeds?
The matter will simply be returned to Minister Burke for him to make his decision again. It seems unlikely that his decision would be any different second time round, even if he could not consider the scientific reports and features of the Park the Secretary has argued he should not. In any case, the Federal Minister could request that DSE provide him with more information, or could carry out his own detailed environmental assessment of the trial.
There is very good reason to suggest that the appeal, like the alpine grazing trial itself, is a giant waste of time and money.
The Secretary of DSE has many responsibilties, including fire management. But under section 7 of the Flora and Fauna Guaranatee Act 1988 one of them is to promote the objectives of conserving Victoria’s flora and fauna, and managing threatening processes like cattle grazing in alpine regions. In this latest effort, the Secretary appears to be doing entirely the opposite.