A recent prosecution for an offence involving the destruction of habitat of the critically endangered Smoky Mouse has highlighted weaknesses in the enforcement regime under the NSW National Parks and Wildlife Act.
The Smoky Mouse is listed as an endangered species under both Commonwealth and state legislation in NSW. The total number of mature Smoky Mice in NSW has been estimated to be less than 50. Sightings of the mouse have been limited to an area in the Nullica State Forest and the adjacent South East Forests National Park.
The Forestry Commission of NSW is responsible for the management of 2.1 million hectares of native forests. It held a licence under the Threatened Species Conservation Act which prohibited it from carrying out any bush fire hazard reduction work in an "exclusion zone" that had been established in the Nullica State Forest to protect Smoky Mouse habitat.
However, in April and May 2009, the Forestry Commission carried out a hazard reduction burn in a section of the Nullica State Forest that was adjacent to the exclusion zone. The Commission's employees who started the burn were apparently unaware of the proximity of the hazard zone, due in part to deficiencies in the markings on burn plan mapping. No measures were put in place by the Commission to prevent the hazard reduction burn from spreading to the exclusion zone. After starting the burn, the Commission's employees left the area and did not return until most of the exclusion zone had been burnt.
The area that was destroyed by the burn was the only known habitat in the northern section of the distribution of the Smoky Mouse that had not been burned or logged within the previous 10 years. It provided the mouse with both a potential refuge and food resources.
Officers of what was then known as the Department of Environment, Climate Change and Water (now the Department of Environment and Heritage) observed the fire in the exclusion zone. An investigation followed, which resulted in the prosecution before the Land and Environment Court, Director-General, Department of Environment, Climate Change and Water v Forestry Commission of New South Wales [2011] NSWLEC 102.
It is of interest that in considering the appropriate sentence, Justice Pepper observed that the Forestry Commission's environmental record (which included convictions for 8 prior offences and the issuance of numerous penalty notices by the DECCW) reflected "a reckless attitude towards compliance with its environmental obligations". It is also remarkable that prior to the incident, the DECCW had issued a formal warning letter to the Commission concerning breaches of the Smoky Mouse exclusion zones that had involved spreading of mining debris and storing harvesting machinery; the warning letter requested that the Commission "educate and inform" all its staff and contractors about the exclusion zones before carrying out activities in adjacent areas.
Notwithstanding these circumstances, the penalty that the Court imposed on the Forestry Commission was only $5,600. It appears that this low fine a function of the fact that the maximum penalty available for a breach of a condition of a Threatened Species Act licence is only $22,000 under the National Parks and Wildlife Act. The penalty also is a product of the Court's conclusion that the overall seriousness of the offence was of "low to moderate" gravity.
As Justice Pepper noted in her judgement, the penalties for breach of a Threatened Species Act licence are "exceedingly low" compared to penalties that can be imposed for other environmental offences - for example, it is common for air and water pollution offences under the Protection of the Environment Operations Act to carry maximum fines of $1.1 million.
It is to be hoped that the Parliament of NSW will take notice of the result in this case, recognise the seriousness of conduct that poses harm to endangered species, and bring the penalties under the NPWA into line with other environmental legislation.
Only by doing so will Parliament ensure that there is a strong deterrent that will protect rare and endangered wildlife in NSW.
The link to the Court's judgement is: http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=152716
No comments:
Post a Comment