Kangaroo Kill, Submission 4 AAT, NSW 2002

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

Submission relating to evidence presented, from Hearings 19th and 20th November.

We have submitted a 23 page document, and other supporting documents, including Exhibit A, a book entitled “The Kangaroo Betrayed”, detailing our concerns about the 2002 Kangaroo Management Plan.

We’ve expressed concern about loss of the natural selection process, and heard from Dr Ian Gunn, that, of the papers which were quoted to produce the Grigg and Pople document ”Commercial Harvesting of Kangaroos in Australia, only 3 papers out of the 294 papers on kangaroos are on genetics, and only one has been published.

We have heard Dr Ian Gunn say on page 19 of the transcript, (Para 20) that “we don’t know enough about the the genetics of kangaroo populations, wether we are looking at reds, eastern or western greys, to make some of the decisions that have been made, or are about to be made”.

On page 20 (para 40) Dr Gunn expresses concern over the potential effects of drought, on top of a “cull”. He makes the point on page 21, that “we are looking at a population that needs to be maintained, not for 5 or 10 years, but for 100 years hence, so therefore really the studies that have looked at it, on bringing in the environmental fact, the reproduction capacity, the survival of them, have really identified that the periods of culling do have an effect on their population status.”

Again in crossexamination (Page 30 transcript, para 5-15) Dr Gunn made the point, that it takes up to 100 years to see the changes in a population that has been harvested or manipulated… And on page 21-22, transcript (para 40) Dr Gunn says in relation to the effect of the drought and the culling, “and these answers are just not there”.

We have heard evidence from 3 genetic scientists who cannot agree about whether the disruption of the natural selection process is affecting genetic strength.

We repectfully point out to the Tribunal that in exhibit A, “The Kangaroo Betrayed”, Doug Reilly states that "In any wild animal, if you disrupt in a short period of time the normal reproduction processes that have evolved over tens of thousands of years, you are in danger of putting the species at risk. Many of these species suffered incursion of exotic bacteria’s and viruses when their populations contained a critical and unsustainable gene pool " Doug Reilly 'From Conservation to exploitation in South Australia' 'THE KANGAROO BETRAYED!' (Exhibit A, Pages 37 to 38.)

The genetic models of which we have been told about by the respondent’s witnesses, have been shown to be theories and supposition, full of speculative information, and do not reflect real science, or any substantive data. The highly complex models are based on assumptions, but are they reliable enough to justify the continued, artificially manipulated, selective killing of a native species?? We have heard that models are only as good as their validation from fieldwork, and are generally used to predict things, which are then backed up by hard evidence.

On page 36, (para 5-15), Dr Gunn comments that “I’m of the opinion unless we have got-or unless I have clear information on an aspect, it is very hard to make a true and accurate judgement on –say what effect some procedure will have on the resulting population.”

We have heard from Professor Gordon Grigg, how models used to calculate DSE (dry sheep equivalent) have made a major over-estimate in the TGP (Total Grazing Pressure) by kangaroos, challenging the long-held ‘myth’ that kangaroos are a major cause of TGP. One group has claimed that the over-estimate may be as high as 500%.

We have learnt that two of NPWS / EA expert witnesses, Professor Gordon Grigg and Tony Pople wrote "The Commercial Harvesting of Kangaroos in Australia upon which all scientific papers and model's are based. These same two scientists are in charge of counting populations, paid by the Government agencies NSW NPWS and EA, and we submit are hardly unbiased or independent sources of information.

In the application to be joined to the Hearing, NPWS stated that the commercial kangaroo Industry contributes to the revenue that supports the kangaroo monitoring and research activities of NPWS. This is a clear conflict of interest. Is the Industry feeding the research, which then feeds off the Industry? If there were no kangaroo Industry, there would be no research, because the research feeds the need for an Industry! Do we have a closed circle here, just going round and round to justify the killing of a unique species of wildlife until the kangaroos are all gone?

We ask the Tribunal, should we be continuing to kill our wildlife based on such speculative and opportunistic science?

We note again that;

The Inter-governmental Agreement on the Environment (the IGAE) endorses the precautionary principle in the following terms: Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by:

(i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and

(ii) an assessment of the risk-weighted consequences of various options (4) [Emphasis added]

The IGAE has been adopted by all Australian governments.

We would argue that we have shown that there is a distinct lack of full scientific certainty, and that potential loss of genetic strength is a ‘threat of serious or irreversible environmental damage.’

Further we submit that the NPWS retains a discretion whether to permit or facilitate development in relation to kangaroos. This obligation does not require it to facilitate development of a commercial kangaroo Industry. The stated goal of ESD should be viewed as a minimum standard which applies. If NPWS permits or facilitates commercial development in relation to kangaroos, such development under the Legislation, must be ecologically sustainable.

We would argue that the commercial shooting of kangaroos which would be facilitated by the KMP is inconsistent with the KMP’s stated goal of ESD. One of the four principles comprising ESD and defined in the Protection of the Environment Administration Act 1991 (NSW), under which the KPM was supposedly developed, is the Precautionary Principle. This principle states that, “where there are serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation”.

We respectfully submit that were the Precautionary Principle be applied to the KMP, (which it should be) the KMP should be disallowed on the basis that it does not promote ESD.

Again the oft-quoted ‘Olsen and Braysher’ report asserts that, “natural resource systems such as those in which kangaroos exist in NSW are complex and our knowledge about them and how best to manage them is inadequate”. Given this admission, we consider that if the Precautionary Principle were applied to the KPM, it would be found the KMP cannot meet its stated goal of ESD.

We believe that the NSW NPWS and the Federal Minister have not considered the Precautionary Principle at all, never mind in equal consideration with any other principles they may have considered, and if they have, it was only to the extent of being able to produce a document that would facilitate the ongoing commercial kill, and export of kangaroo products.

On that basis we respectfully submit that the Plan does not meet the requirements of government policy, or Subsection 10(1B), nor regulation 5, (c), (d), (e), and (f).

We note the lack of real substantiated data in the models discussed by the respondents witnesses, therefore should we be making these sorts decisions with wildlife?

We have heard how we can’t predict the length of drought. (Page 20-21, transcript, Dr Ian Gunn) We have heard that a loss of 40% to 60% of a kangaroo population would be enough to have a serious effect on populations, and on the genetic diversity of the four commercially killed populations. (page 20 transcript, Dr Ian Gunn)

In response to a question on reductions in numbers, and the potential impacts of reductions in numbers, (transcript page 22, para 30) Dr Gunn says “Again the evidence is not clear, we haven’t got the genetic evidence….”

We note that no attempt has been made to reduce the commercial kill to compensate for the drought, despite assertions within the Plan, that that would be done.

We have heard from David Croft how the 5 year Plan is unsustainable, and is a compromise Plan. (transcript, page 83, para 5) Websters dictionary definition says...of the word compromise: To settle by a compromise; to bring to terms, to render liable to suspicion by lax conduct; endanger, as to reputation;" another dictionary, Jeddes and Grosset, says...”to adjust by compromise: to lay open to suspicion, disrepute”. Is a five year Plan capable of dealing with drought, disease, and other dis-climaxes which may affect populations? Where is the evidence that it is?

On pages 35 to 47, of the transcript, we have shown that in spite of the Ministers and NPWS claims, we have demonstrated that the Plan has only been marginally altered and not to accommodate community concerns, either. We observe that in the Statement of reasons provided by the Minister, Page 15 of the T-documents, para 41, states “The Management Program was amended by the NSW National Parks and Wildlife Service in a number of cases as a result of comment received”. We have shown that the Plan was not amended, only marginally altered, on Page 100 of the t-documents, and the Plan has been reformatted to make it appear to be a different document, when in fact it is not. The hastily added paragraph only waffles on about “indicators”, in an attempt to bring some credibility to the Plan. This additional paragraph is clearly an after-thought, and in no manner represents the concerns of the community submissions. This matter alone supports our contention that the Minister should not have approved the Plan. Clearly the Minister did not satisfy himself that the lawful processes were followed in the development of the Plan.

We note that on Page 126, of the Section 37 documents, Attachment c, EA states that “the Act states that prior to approving the management program that you must consider all comments received.” Neither Environment Australia, nor NSW National Parks and Wildlife Service have done that. Community comments have been ignored, or dismissed out of hand as though having no relevance.

We respectfully submit that the objects and intentions of the Legislation is to allow community concerns to be considered, in a genuine, lawful, and proper manner, in any kangaroo management Program, and the Plan, and the process of development of the Plan, is inconsistent with the Objects and Intentions of the Act. Specifically, subsection 10(1B), and regulation 5, (a), (c), (d), (e), (f).

We have shown how the Code of Practice does not adequately address issues of cruelty, particularly the matter of in-pouch and ex-pouch joeys. We have heard that the COP is not linked to any Legislation, such as the Prevention of Cruelty to Animals ACT (POCTAA) or any other legally enforceable Legislation, and is therefore, unenforceable.

We have heard from NPWS that there are occasional night time excursions undertaken by NPWS staff in an attempt to monitor compliance with the Code of Practice. With all shooting being undertaken on private land, inaccessible to NPWS (without permission of the landholder), no evidence has been provided to demonstrate that this is an appropriate or adequate method of monitoring C. o. P. requirements relating to in-pouch or ex-pouch joeys. We have heard that there are only two dedicated Inspectors to monitor compliance in the whole Western Division. We have been told that Safe Foods, under a Memorandum of Understanding, (which neither the AAT or the community is privy to) undertakes “about fortnightly” inspections of processing plants, and apparently looks for bullet holes in the bodies. We have been told how the CoP allows the in-pouch joeys to be decapitated with a sharp instrument, presumably an axe or knife. We have heard how that would hardly be an acceptable way to kill juvenile domestic animals, but according to NPWS, EA, and the CoP, its acceptable in the Plan to kill juvenile kangaroos in this manner.

Once again, there is NO inspection at the POINT of SLAUGHTER. NPWS and EA rely on the shooters’ word for what occurs, hardly a scientific approach.

We have shown how NPWS cannot monitor compliance with the CoP, especially in relation to the treatment of joeys, other than occasional inspections of abbatoirs for misplaced bulletholes. 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, so they did NOT get to the processors where NPWS claims to pick up any cruelty. This proves the system is not being policed and NPWS should not claim that it is.

We’ve heard from Dr Gordon Grigg, about fanciful sheep replacement theories, or replacing sheep with kangaroos. We didn’t hear how Australia would continue to produce a wool crop, nor hear how sufficient or viable markets would be found for a meat from an animal that most of the world loves, and refuses to eat.

We have heard from Mr Josh Gilroy from NPWS (page 34 transcript, para 20) that there has been an escalation of non-commercial licenses issued since the drought, and (page 35 transcript, para 5) how landholders are not allowed to use these carcases commercially, nor are they required to bury the carcases. As we have pointed out in our Issues Statement, this encourages the feral animals, including pigs and wild dogs. Further concerns about the use of 1080 poison to kill these unwanted animals, and subsequent impact on biodiversity, is detailed on page 19-20 of our Issues Statement.

We respectfully submit that this lack of appropriate management and effective disposal of body parts and offal, also fails to meet the requirements of subsection 10 (1B), (c), and the Regulations, 5, (c) and (f).

We’ve heard from Dr David Croft about the inherent difficulties and inadequacies of dealing with 4 different species, under one management Plan, and how new species specific information cannot be incorporated into a Plan where all species are treated as one.

Dr Ian Gunn also expressed concern about the genetic diversity of each kangaroo species. (Transcript, Page 19-20, para 35 to para 10.) He questions whether we are dealing with one population of kangaroos that are genetically similar, or are we dealing with diverse populations of genetics within that major population of either red, western or eastern grey.

Dr Croft, on Page 82 of the transcript (paras 5-40) gave evidence about the completely different evolutionary history between the four kangaroo species which are commercially killed. He goes on (para 25), to say that if we want all those four species living in their normal ecosytems, with normal relations between them, then you have to understand those relationships, and you have to have a managment program which directs itself to each of those.”

Dr Croft (page 83/84, para 35, 5,and 10) also raised the matter of ‘overlap zones’, or how and where ‘difficult to identify from the air species’ were used as a basis for population assessment. Dr Croft stated that defining those areas, in view of population shifts, needed to done regularly. In his words, “quite regularly I think”. There is no evidence that such definitions are done any more than yearly, if that. On page 85 of the transcript, (paras 5-30), Dr Croft expressed again concern about the Plans’ lack of detail in relation to responses over drought and disease. Stating that “in a compromised document, you get generalised general statements about things, which really don’t help I don’t think, and I think you need to be much more specific”.

With respect, would the Tribunal please note that on Page 21 and 22 of our Issues Statement filed in July, we discussed at length the absence of detail in the Plan, including the lack of any budgets to verify the claims made in the Plan.

Dr David Croft went on to express concern about the Plan, including what the plan is for. On page 79, (para 10 –40,) he states that the Plan seems to be providing kangaroos for some purpose, but it is unclear as to what that purpose is. In para 25, he states that the Plan identifies no product… and in para 30 goes on to say what he sees as a major deficiency, it is a management program for the utilisation of 4 species of kangaroos, and it does not say what sort of product it is going to provide. It does not say what the mix of those four species of kangaroo is going to be, and what is the desirable mix of those four kangaroo species to be killed.

On page 80 of the transcript, para 5-30, Dr Croft debunks the economic argument for killing kangaroos. He goes further on page 81 of the transcript, para 5-10, and mentions the attitudinal problem that exists throughout rural Austrlaia, and in the NSW NPWS, that basically the value in kangaroos is in their hides and meat. On Page 87, Dr Croft goes further, stating that he believes NSW NPWS are remiss in not attempting to educate the general public about the four different species, and the differences between those species. We submit that on the evidence shown so far, NSW NPWS don’t want to educate anyone, that the less importance is attached to kangaroos, the easier it is to produce a document that will enable them to easily, and without public fuss, keep on killing them. SEE EXHIBIT A 'The Kangaroo BETRAYED!" page 37: 'To be able to undertake the largest wildlife slaughter in the world today it was necessary to undertake a long and sustained program of misinformation within Australia to convince the community that these animals are in plague proportions throughout the country areas of Australia. This was achieved by presenting the animal as a 'resource'.

We have already pointed out, and the 1986 Tribunal noted (Page 20 of our Issues Statement) that ---“ The correspondence before the Tribunal, leading up to the approval of the management program in 1984 and again in 1985, gives the impression that the ANPWS {now Environment Australia}, (and indeed also the QNPWS) were concerned only to get some document formally approved by a given date to enable the culling of kangaroos and export of kangaroo products to continue.” 18 years later, we have shown that EA has not changed, and NSW NPWS is clearly no different.

In Exhibit E, a letter to myself from Maryland Wilson, President of the Australian Wildlife Protection Council states that “ I act as the Animal Welfare Representative on the NSW KMAC. To my disappointment and disgust, KMAC takes no responsibility for the welfare of kangaroos or cruelty to them. KMAC acts as a clearinghouse for kangaroo killing. · They issue licences · They issue tags · They do not police the killings at point of slaughter which is where cruelty occurs · They take no notice whatsoever of the welfare of kangaroos”

The NSW NPWS designs their program to accommodate one basic premise…a profitable and on-going commercial kill of kangaroos, regardless of threats to kangaroo populations which they do not want to know about. They are the agents of death. . Nothing else is ever considered, despite our years of trying to make the non-consumptive use of kangaroos with suitable infrastructure, an issue.” End quote. (See Exhibit E)

We respectfully submit that this Management plan, which fails to separate any of the species for individual sustainable management purposes, also fails to meet the requirements of subsection 10 1(B), and Regulation 5 under the Act, specifically a, c, and e.

We respectfully point out to the Tribunal that in our Issues Statement filed in July, we noted that in the judicial summary of a previous appeal through the AAT in 1985, No.N85/229 AAT No 2692 in Para 66 of the same document, the 1985 Tribunal noted that “Even granted the complexities of administration of Commonwealth-State relations, the conclusion is inescapable that the ANPWS appear to have adopted the attitude that neither the content of the management program, nor the formalities of approval of the management program, nor, more recently, the requirements of the AAT Act or of the Tribunal (as to which see paragraphs 24-29 supra), were matters which required its serious attention. To an extent, this attitude derives from the underlying assumption described in paragraph 51 supra, that nothing has really changed with the introduction of the Wildlife Act. Having reached this conclusion, the Tribunal, in considering the submission by the applicant that "The Minister was not, or ought not to have been satisfied as to the matters set out in paragraphs (a), (b), (c) and (d) of sub-section 5(1) of the Regulations", (a submission which is discussed at length in paragraphs 112 and following, infra) is put upon its enquiry as to whether, in advising the Minister as to the approval of the management program, the ANPWS regarded the matters set out in the regulation as worthy of serious consideration.” End quote. As we have commented previously, nothing has changed. In the year 2002, this cavalier attitude persists throughout the government Departments.

We have heard from David Croft how the NPWS is illegally allowing an endangered sub-species of wallaroo to be killed, and that we do not know what other subspecies are also being killed. This matter alone is a breach of the Regulations.

We note that on pages 47-48 of the transcript, Mr Josh Gilroy informed us that NPWS uses “evidence” from a combination of landholders, or landholder organisations, to establish that “kangaroos were widespread and abundant", rather than from an independent source, or expressions of concern from the public, or the scientific community. We submit that most landholders loathe kangaroos, just want to get rid of them, and they are hardly a reliable source of “evidence” to justify a commercial kill.

Both of the respondents’ expert genetic witnesses claim that kangaroo movements from protected areas to non-protected areas gives an assurance that genetic impoverishment will not occur. Yet we have heard from NPWS that only 6% of NSW is protected habitat, and that kangaroos are subject to both commercial and non-commercial shooting throughout the rest of the State, so in reality, is that small 6% protected area enough? Again, we would argue that we don’t know. No evidence has been produced to show that 6% is enough area to maintain genetic diversity in kangaroo populations. On page 30 of the transcript, para 5 and 10, Mr Josh Gilroy claims that there are extensive very heavily wooded areas (between Cobar and Bourke) and in this area there are properties which the Industry doesn’t service. We would like to point out that I know that area fairly well. For years I shot foxes in that area, and there are not large mobs of kangaroos there, because the heavily wooded country provides very little feed for them. That’s why the Industry doesn’t service that area, the low numbers of kangaroos make it not worth their while. We would argue that the respondent’s witnesses have not shown that there are enough protected areas in NSW to offset any potential genetic loss from consistently shooting the largest animals. Is this a deliberate attempt on the part of NPWS to claim protection and safe sanctuary for kangaroos when there is very little? We submit that 6 % is not an adequate safe refuge area for kangaroos from the shooters bullets. They find few safe areas to be free, and are fugitives in their own land.

We are concerned by the void in scientific knowledge with respect to the quota, and the added effects of other mortalities of kangaroos, such as; added effect of road kills, added effects of sporadic disease outbreaks, added effects of drought, added effects of non-commercial permits handed out to farmers, added effects of illegal shooting, added effects of sports shooting, added effect of “special quotas”, added effects of loss of habitat, added effects of kangaroos wounded, unaccounted for, and left to die. These matters may be explained to the tribunal during the next hearings.

In a paragraph from our Issues Statement, we pointed out that Kangaroos are shot at in every place a kangaroo shooter can get with a vehicle. The areas that are safe to the kangaroo are generally hilly, boggy or too dense with forest or inaccessible for some other reason. Kangaroos and humans have one thing in common. If the area is no good for humans then it is no good for the shot at species, and these areas are small, not connected, not evenly distributed and may not have feed. National Parks are also credited as a refuge but the same story affects them, with no safe corridors for wildlife to move through. (“David Nicholls, ex-kangaroo shooter”).

Special Quota. We have argued all along that the Special Quota is only an extension of the commercial quota, and we have heard nothing to change our opinion on this matter. On page 30 of the transcript (para 15-35) NPWS (Mr Gilroy) talks about the Special Quota. From his evidence, it seems to us that it clearly is an extra quota, nothing more, and included in the Plan so that selected landowners can use the commercial shooters to kill extra kangaroos, above the quota, from their properties.

We have questioned the Plan, and the processes that were undertaken to arrive at the final Plan.

We have shown that community comments were ignored in the process of developing the Plan.

In our Statement of Issues, we have questioned sustainability, lack of good scientific information, potential genetic loss, counting methodology, failure to consider community concerns, cruelty issues, and health issues.

We have been disadvantaged by late joiners, late evidence demands, and our own lack of experience.

In spite of the expert witnesses called by the respondent, we have not heard anything over the first two days that convinces us that the Plan should ever have been approved. While there may be a fairly substantial body of information available about the kangaroo, serious doubts have been raised about the quality of scientific assertions based on modeling.

But we believe we have shown clear and compelling evidence throughout our submission, and from our evidence, that NSW NPWS had no intention of considering community views. We submit we have shown clearly that the Federal government department, Environment Australia, has not properly and lawfully considered the many issues associated with this Plan, and in many such matters has failed to comply with the Legislation.

We have shown that the Federal Minister has merely rubber-stamped the NSW NPWS Plan, without considering public comment, and should not have approved the Plan, pursuant to Subsection 28 (1). We have clearly demonstrated that the paucity of adequate information and detail in the Plan is symptomatic of the contempt that the authors of the Plan have for the law, the community and their concerns, the natural environment, and for the kangaroos themselves.

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.

With respect, we would like permission to file another Submission on Wednesday morning, dealing with Monday the 18th, and the final evidence of our Appeal.

Sincerely, Pat O’Brien

Go to NSW Appeal Index!

Click here for Kangaroo Home Page!