Kangaroo Kill, AAT Submission 3, NSW AAT Appeal 2006.

Kangaroo Kill, AAT Submission 3, NSW AAT Appeal 2006.

Members Support Team Administrative Appeals Tribunal Fax 02 9391 2448

To Deputy-President Hon R.N.J Purvis, QC.

Re Wildlife Protection Association of Australia, and Minister for the Environment and Heritage. N2002/286

Final submission relating to evidence presented.

In this, our second and final summary of evidence presented to the Tribunal, we discuss the evidence presented, from Hearings 16th and 18th December.

We heard from Dr John Auty, who has an extensive background in animal husbandry, animal welfare, State and Federal government process, and kangaroo issues.

We heard how kangaroos cannot be farmed, yarded, drenched for parasites, or fenced, nor can they be fattened, as can beef or sheep. We heard from Dr Auty how an unfavourable Industry has to be cloaked in subterfuge, to gain public acceptance.

We have heard how kangaroos will stop cycling or breeding in drought, and how large breeding animals die first in drought.

Dr Auty told us how the meat inspection Industry developed over time a high standard of meat hygiene, and how the commercial kangaroo killing fails on every fundamental health requirement. There is no ante-mortem inspection, and no personal hygiene (running water). Dr Auty then pointed out that all country butcher shop abbatoirs have been closed because they couldn’t provide adequate, professional hygiene.

Dr Auty also questioned the counting methodology, discussing his extensive experience in counting animals, both domestic and wild.

He also questioned the matter of the quota being separated from the Kangaroo Management Plan. How can a management Plan be separated from the quotas, and still be a management plan under the Intent of the Legislation?

Dr Auty believes the KPM is deficient, in that it doesn’t state, or require, that additional monitoring will occur if deemed necessary, or that matters of concern will be taken into account.

He also detailed his experiences in previous droughts, when the drought broke with flooding rain, and consequent parvo (chloroid blindness) diseases wiped out many animals.

Dr Auty then produced a series of photos, showing what happens to ex-pouch joeys when they are orphaned. While the motherless grey joey shown in the photos was hanging about with some reds, it would not be nurtured either by its dead mother, or by the red female, and would soon die of malnutrition.

This reinforces our contentions that cruelty to ex-pouch joeys is impossible to stop, because of the nature of their being out of the pouch, but still dependent on their slain mother, and they flee in terror to a lingering, stressful, inevitable death.

From Dr Croft, we heard that euros were found separately from wallaroos in NSW, and that populations had crashed in the Barrier ranges from 1998 to 2002.

Dr Croft stated that euros do not “bounce back” as readily as kangaroos. He also mentioned a radio-collaring program which monitored 25 animals, and not one produced an offspring, indicating, he said, “that reproduction was not necessarily automatic.” He said that a population could be depressed, then a drought could crash whatever is left. He stated that if following the Precautionary Principle, one should tend to be cautious. In his evidence, Dr Pople later agreed that there appeared to be a sharp decline in euro numbers, and a further decline was possible.

Dr Croft also questioned the data indicated in the quota document, indicating that the many increases shown therein were biologically impossible. Later evidence by Dr Tony Pople supported this contention, however Dr Pople indicated that he believed the anomolies were due to changes in correction, and other unclarified factors.

Dr Croft said that in some instances, immigration from another area were a “slight possibility” to account for these biologically impossible increases. The Amanda Bilton paper, tabled as Exhibit G, showed that average red kangaroo recruitment was only 6 to 8%. Even though the kill quota was based on 17%, and, according to NPWS data, has gone as high as 23%. In the responses to the submissions made to Environment Australia, (Page 134, t-docos) EA commented on this matter by saying that ‘these recruitment figures quoted by the respondents have not been generally accepted in the scientific community’. This comment is quite wrong of course, Dr Amanda Bilton and co-author Dr David Croft have wide respect in the scientific community.

NSW NPWS have known about this paper since July 14th, 2001, when it was presented at a Conference at the UNI NSW.

In previous evidence, Dr Hale has said that euros and wallaroos were genetically distinct. Dr Croft stated in evidence that both species were hill-dwellers, with not much migration between them, so one could expect some genetic difference. Again Dr Croft said that the Precautionary Pinciple indicates that caution should be used in allocating any shooting permits to these species, without first ensuring the distinct populations were identified and protected if necessary. Dr Croft stated that not enough research had been done in these matters.

In discussing the current drought Dr Croft stated he believed it was much more serious than previous droughts, which in 1985, produced a loss of 70% of kangaroo populations. When asked if he expected similar losses in this drought, he said yes, because feed is non-existent.

(It’s worth mentioning to the Tribunal that a request, in a letter sent the government last month by all the wildlife and conservation groups, including Australian Conservation Foundation, Nature Conservation Council NSW, Total Environment Centre, Colong Foundation, Humane Society International, Animals Australia, (a federation of 40 animal societies), Australian for Animals, World League for the Protection of Animals, AWPC, WPAA, Kangaroo Protection Cooperative, Animal Liberation NSW, asking for a moratorium on killing kangaroos while the drought was on, has been rejected).

Dr Pople in his evidence, agreed that this drought could well be worse than the 1985 drought, and we are certainly going to see ‘a reduction in numbers’.

Dr Croft, in his evidence, said that he didn’t believe that the Minister’s Scientific Advisory Committee fairly represented scientific opinion, and did not include representation, or a voice for Tourism, Non-consumptive use, or Animal welfare. Dr Pople later informed us that the Ministerial Advisory Committee had been discontinued, which is probably a fair indication of it’s worth.

In subsequent questioning by the respondents, Dr Croft said he believed wildlife watching tourism had grown enormously over the last 2 decades, and there were many opportunities for businesses to take clients into rural areas. Dr Croft said he believed there were other ways in which kangaroos could be used, other non-lethal and non-consumptive ways.

In his evidence, Dr Tony Pople believed that increases and anomolies in the quota data, were due to an application of new correction factors. He then claimed to have “long runs of data”, which provided good reference. When questioned about the accuracy of “long runs of data” which varied enormously due to changes in methodology and correction factors, he stated that those ‘factors could be worked out’, a response we believe is unlikely to happen, and would be very difficult to implement. Dr Pople told us that correction factors were changed regularly.

We respectfully suggest to the Tribunal, that the methodology, and other factors, have been changed so often to try to improve accuracy, that the NPWS data is useless.

When asked to describe what he believed was a viable kangaroo population, Dr Pople was clearly unable to answer the question.

Dr Pople also informed us that aerial counts were done in winter only, and it seems prudent to undertake counts in summer as well, if the Precautionary Principle were to followed. We have clearly shown, many times through this hearing, the Precautionary Principle has not been followed. He also agreed that counting was done in National Parks, where no shooting was allowed, but could not explain why.

In his Statement of Evidence, (page 3, 1st para) Dr Pople said “ensuring commercial viability is not an objective of the KMP. This is appropriate, as there are good bio-economic arguments that harvesting solely for economic gain will not ensure conservation of the resource, or even sustainability of the harvest. (Clark, Cauley and Gunn, Pople and Grigg). Government agencies had been careful to avoid this pitfall.” When asked why he thought the damage mitigation clause had been removed, so kangaroos would be a ‘resource’, rather than a pest, he also could not explain why this had been done. He also said that ’if it isn’t commercially viable, then it isn’t worth harvesting”.

Dr Pople also agreed that a commercial shooting program would manipulate populations, and Dr Croft suggested that many farmers would not allow shooters on their properties, because they believed that commercial shooting would actually increase the number of kangaroos. When asked to describe a successful wildlife harvesting program, anywhere in the world, Dr Pople briefly but hopefully mentioned the US white-tailed deer. I have some experience in the issue of white-tailed deer, (I work on this issue with US groups), and it is anything but successful. John A Hoyt, from the Humane Society International, in his book “Wildlife in Peril” says the same thing.

Dr Pople discussed the need to be ecologically sustainable, and the need to be commercially viable. Strange bedfellows indeed as Deputy-President Purvis noted, and a difficult balancing act, one which we believe, like a kid on a new bicycle, has overbalanced and crashed.

Steve McLeod and Gilroy evidence to be included here.

Unfortunately at this time, we will be unable to include comments on Josh Gilroy’s evidence in this document.

From Dr McLeod we heard that there was a high degree of mortality amongst juveniles, and that a kangaroo population would be a stable population over a long period of time, perhaps 100 years. He also stated that “lots of models are misinterpreted We would like to respectfully make the point again to the Tribunal, should we be using complicated models, based on anomalous figures and assumptions, to justify a wildlife kill?

Dr McLeod also disagreed with figures quoted in the Amanda Bilton Paper, so we submit that clearly there is no scientific agreement on many matters relating to kangaroos, and the commercial kill in particular.

We note that the Regulations clearly state that;

c. Whether the management program contains measures to ensure that the taking of the kangaroos in the wild is not likely to cause irreversible changes, or have long-term deleterious effects on the kangaroos or their habitat;

d. Whether the management program provides for adequate monitoring and assessment of the effects of taking kangaroos;

e. Whether the management program provides for a response to changes in kangaroo populations and habitats, and to changes in the knowledge and understanding of the biology and ecology of kangaroos; and

We submit that justifying a commercial kangaroo kill, on complex, assumptive models, which can be manipulated to show any desired result, is not consistent with the Act. We submit that this management program does not contain measures to ensure that the taking of the kangaroos in the wild is not likely to cause irreversible changes, or have long-term deleterious effects on the kangaroos or their habitat;

d. Whether the management program provides for adequate monitoring and assessment of the effects of taking kangaroos;

We state again that the document, The Commercial Harvesting of Kangaroos in Australia, co-authored by Prof. Gordon Grigg and Dr Tony Pople, is a flawed and biased document. It uses the word ‘pest’ 40 times to describe kangaroos. It uses data, which we believe has been shown in this hearing to be flawed. It starts from a basic premise that kangaroos have to be killed. It fails to look at non-lethal crop protection strategies, or non-lethal tourism opportunities, and expresses strong support for a commercial Industry.

With respect, we believe we have shown that a 5- year Plan is unworkable, and inappropriate to managing a commercial kangaroo kill. We have shown the 4 species killed should be managed individually, with a separate and distinct KMP for each species, taking into account biological differences. (It’s worth mentioning here to the Tribunal that the W.A. KMP waiting for Federal approval, has a separate Plan for both Western greys, and reds. However, the documents are identical, except for the names of the animals. Clearly this is an attempt to delude, that the plans are separate, and different for each of the two species, when in fact they are not. Subterfuges such as this do not help the credibility of the relevant government departments.)

We have demonstrated that the Code of Practice, not enforced by Legislation, is useless in preventing cruelty, especially to in-pouch and ex-pouch joeys.

We have seen from the evidence provided by Dr Pople, and Mr Josh Gilroy, that a shift from ‘damage mitigation’ to ‘sustainable use’ clearly breaches the policies of NSW NPWS, Federal government policy, and we believe it also breaches the Objectives of the Act.

We respectfully submit that the requirement for damage mitigation must remain, to be consistent with Government policy, and to comply with the objects of the Legislation. By removing the damage mitigation requirement, the Plan fails to meet the requirements of the Legislation, subsection 10(1B), and regulation 5 (c), (d), (e), (f).

We believe we have shown that the KMP is full of scientific uncertainty, and that the NSW NPWS and the Federal government have not considered the Precautionary principle, or other principles of the Intergovernmental Agreement on the Environment, adopted by all governments (the IGAE). We respectfully refer the Tribunal to pages 7 and 8 of our Issues Statement, dated 1/6/2002.

We note that the KMP has adopted an adaptive management technique, claiming to improve its understanding of kangaroos and their interaction with the environment, social and economic systems. However we submit that the KMP retains the potential to breach international obligations under Artiticle 7 of the Convention on Biological Diversity which Australia ratified on the 18 June 1993 and which entered into force on 29 December 1993. Article 7(a) of that Convention requires:

'components of biological diversity important for conservation and sustainable use to be identified' . We submit that the kangaroo is the worlds’ most identifiable tourism icon, after the Statue of Liberty. It features as a logo for Qantas, many sporting teams, features on our stamps and coins, our Coat of Arms, is used as a registered trade mark by over 400 Australian companies, and is synonymous with Australia. In fact, the kangaroo is deeply entrenched in our culture, and in our Indigenous culture and legend.

Annex 1 of the Convention defines a component of biological diversity as a 'species of cultural importance. ' Given the biological and cultural significance of the kangaroo, as argued above, we submit that the kangaroo is a 'component of biological diversity' for the purposes of Article 7 of the Convention.

Article 7(c) of the Convention requires:

(i) processes and categories of activities which have or are likely to have significant adverse impacts on the conservation and sustainable use of biological diversity to be identified; and

(ii) the effects of such activities to be monitored through sampling and other techniques.

We believe we have shown from evidence given by our expert witnesses, that commercial kangaroo harvesting has a significant adverse impact on the kangaroo population, particularly in times of drought. We have also shown that the mechanisms in the KMP for monitoring the effects of the commercial harvest are hopelessly inadequate. For example, under the KMP, the commercial quota will be set at approximately 15% of the population for Eastern Grey Kangaroos, Western Grey Kangaroos and Wallaroos and 17% of the population estimate for Red Kangaroos, and in recent years, in some cases have gone as high as 23%.

However, even assuming that this level of harvesting is sustainable in the long-term, satisfactory evidence has not been produced to show that the quotas, which have supposedly been set at 'sustainable levels’, have taken the following additional factors which affect the kangaroo population into account:

(i)

a, special quotas (Issued when commercial quotas have been filled);

b, kangaroos that are not accounted for because they are shot inhumanely in breach of the Code and left to fend for themselves;

c, kangaroos killed by unlicensed shooters and non-commercial kills; (Our Submission on West Nyangay (Exhibit B, the 1996 NPWS trial, last page 5th para) showed that 30 % of dead and dying kangaroos and their joeys were left on the ground because they were not killed humanely,)

d, the many deaths associated with natural disasters (floods and drought), disease, roads accidents, poisoning and loss of habitat.

We have had no clear indication as to whether the commercial quotas, which have allegedly been set at sustainable levels, include a consideration of the above factors. If they do not, we submit that is a clear breach of Australia's international obligations, should the commercial harvesting and export of kangaroos be permitted to continue.

We respectfully submit that the plan fails to meet the requirements of subsection 10 (1B), and Regulation 5 under the Act, and the KMP is not consistent with the obligations of Australia under the Convention on International Trade in Endangered Species of Wild Flora and Fauna.

All State, Territory and Commonwealth fauna protection legislation affords kangaroos the status of protected wildlife. Despite this, the extensive kangaroo industry has developed, facilitated either by the declaration of open seasons (Queensland and Tasmania) or through the misuse of provisions of Acts designed to allow the destruction of wildlife causing agricultural damage (NSW, SA, WA and Victoria until 1983). There is no specific Commonwealth, State or Territory Act to control or administer the kangaroo industry. In addition the various legislated State and Territory fauna protection Acts contain no specific clauses enables the establishment or maintenance of a kangaroo industry. No Australian Parliament has debated the establishment of the kangaroo industry nor passed any legislation specifically intended to establish such an industry, therefore it has been set up without genuine public discussion. There is no legal or democratic mandate for a kangaroo industry.

It is our contention that the Management Program should be set aside on the grounds that the Minister was not, or should not have been, satisfied as to some of the matters prescribed in subsection 10 (1b) of the Act, specifically (c), and matters prescribed in Regulation 5.

The issues raised by Regulation 5 of the Regulations are, for the decision we have requested to be reviewed, as follows:-

a. Whether there was sufficient information available to the Designated Authority, concerning the biology and ecology of kangaroos such as to enable the Designated Authority to evaluate the management plan;

d. Whether the management program provides for adequate monitoring and assessment of the effects of taking kangaroos;

f. Whether the management program is consistent with the object of the Act, namely "to comply with the obligations of Australia under the Convention and otherwise to further the protection and conservation of the wild fauna and flora of Australia and of other countries".

We also have shown that under Sub-section 10 (1b), the Legislation is not effective, in that it has failed to achieve the intent and/or objects of the Act.

We respectfully submit to the Tribunal that we believe our submissions have presented ample evidence and argument, to support our contention that the NSW Kangaroo Management Program 2002 should be set aside, on the grounds that the Minister was not, or should not have been, satisfied as to the matters prescribed in Section 10(B), of the Act, and regulation 5, of the Regulations.

Sincerely, Pat O’Brien

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