The recreational use of off-road vehicles in conservation areas, particularly coastal areas, remains a controversial issue throughout Tasmania. This activity can have considerable impacts on threatened vegetation communities, coastal morphology and resident and migratory shorebird populations, and lead to the destruction of sites of Aboriginal cultural heritage significance, such as middens.
Many conservation groups advocate banning off-road vehicles in coastal conservation areas. Off-road vehicle users actively resist efforts to restrict track driving and emphasise the historical and social values attached to this recreational pursuit. Clearly, there is a tension between these views and the Tasmanian government has preferred to mediate between various stakeholders with a view to continuing to provide for ‘sustainable recreational vehicle use’.
This article looks briefly at the legal obligations in relation to management of conservation areas and whether off-road vehicle use conflicts with obligations to protect the values for which the areas were reserved. The article focuses principally on management of the Arthur-Pieman Conservation Area, where off-road driving by four-wheel drives (4WD), quad bikes and motorbikes has been recognised as one of the most significant pressures on cultural and natural values.
MANAGING CONSERVATION AREAS IN TASMANIA
The Parks and Wildlife Service (PWS) is required to give effect to the management plan for a reserved area under its management or, where no management plan exists, to manage the reserve in ‘a manner that is consistent with the purposes for which the land was reserved’ and having regard to the management objectives for the relevant reserve class.[1]
Conservation areas are reserved under the Nature Conservation Act 2002[2] for the purpose of ‘protection and maintenance of the natural and cultural values of the area of land and the sustainable use of the natural resources of that area of land.’ [3]
Management objectives include conserving biological and geological diversity and sites of cultural significance, rehabilitation work, cooperative management with Aboriginal communities and encouraging education and research based on natural and cultural values. However, the objectives also provide for exploration activities, hunting, commercial uses of coastal areas and encouraging appropriate tourism and recreational activities ‘consistent with the conservation of the conservation area’s natural and cultural values.’[4]
This multiple-use approach to reserve management is a common strategy in Australia, where managing authorities are required to balance wide ranging, often competing, objectives. This strategy is ‘underpinned by assumptions that nature constitutes a series of resources for human use and that such resources are accorded equal weight in governance of the overall resource.’[5] However, in practice, managing multiple uses can lead to compromises that threaten significant natural and cultural values.
The Tasmanian Reserve Management Code of Practice (the Code) provides guidance for management authorities making decisions in a multiple-use framework and identifies the following strategies for managing conflicts between competing reserve values[6]:
1. Identify and describe the nature of the conflict between the maintenance of values.
2. Identify and fill important gaps in knowledge of the values affected as far as practicable.
3. Consider alternative approaches to management that avoid or minimise the effect on values.
4. Identify how irreversible alternative management approaches are. Take into account the potential for cumulative impacts.
5. Identify the relative importance of the conflict for the maintenance of each of the associated values.
6. Determine the significance of the value before making a final decision. Internationally significant values are generally rated higher than locally significant values but this needs to be balanced against local abundance and national significance.
7. Give priority to the most significant value, taking into account the cumulative effects of an activity.
8. Implement the most appropriate guidelines, procedure or plan and monitor as required.
9. If necessary, halt or modify the guidelines, procedure or plan on the basis of the results of monitoring.
The Code explicitly provides that protection and maintenance of natural and cultural values is a fundamental objective in managing reserved areas and should direct all aspects of management.
Significantly for off-road track management, the Code recognises that recreational activities may give rise to contemporary social values if the activities have been practiced for a long time. However, the Code promotes those activities only where they are ‘consistent with the reserve’s management objectives, and are in accordance with existing strategies and a reserve’s management plan’.
The Code also emphasises the need to gather reliable, comprehensive information regarding values and impacts in order to managed reserves effectively:
Where sensitive areas or significant values are identified and there is potential for a proposed activity to impact on them, surveys will be completed unless the survey is likely to have an adverse impact on the values. The activity proposal will be modified to reduce the impacts and it will be reassessed prior to a decision being made about the activity.[7]
It endorses management of cultural heritage values in accordance with the Burra Charter and explicitly notes that tracks in dune areas should be carefully planned and checked for Aboriginal sites and relics prior to approval.[8]
REGULATING OFF-ROAD VEHICLE USE
The National Parks and Reserved Lands Regulations 2009 prohibit driving vehicles off-road in a reserve other than in ‘designated vehicles areas.’[9] PWS can designate off-road vehicle areas in conservation areas, regional reserves or nature recreation areas and has adopted a 4WD permit system allowing access to designated vehicle areas, subject to a range of conditions. It is an offence to drive off-road without a permit, or outside the track network authorised by the permit.
In the Arthur-Pieman Conservation Area, 4WD permits allow access to the track network identified in the map attached to the permit. As discussed below, many of these tracks are controversial. As enforcement is difficult, many permit-holders have been driving outside the designated areas, largely without penalty.
PROTECTING ABORIGINAL HERITAGE VALUES
The principal legislation for the protection of Aboriginal heritage in Tasmania is the Aboriginal Relics Act 1975. This legislation is outdated, focussing on protection of localised ‘sites’ rather than landscape values generally, and remains difficult to enforce. However, the Act imposes clear obligations on managing authorities to manage and maintain protected sites and objects[10] and makes it an offence to destroy or damage identified relics.[11]
The management objectives for conservation areas include conserving sites or areas of cultural significance and many management plans explicitly outline measures for protection of Aboriginal heritage places. The National Parks and Reserved Lands Regulations 2009 also prohibit damaging, defacing or disturbing Aboriginal relics, unless an authorisation has been granted for the activity.[12]
RESPONSIBILITIES OF MANAGING AUTHORITIES
The courts have held that government authorities have a legally binding obligation to manage areas under their control in accordance with applicable management plans or legislative objectives. The managing authority should develop policies consistent with the achievement of those objectives, and should not be influenced by considerations that do not relate to those objectives. However, the nature and extent of the obligations that arise from management plans and objectives are left largely to the discretion of the managing authority.[13]
In Bannister Quest v Australian Fisheries Management Authority[14], the Federal Court considered a policy adopted by the Australian Fisheries Management Authority (AFMA) to restrict long vessels in the South East Fishery. The Fisheries Management Act 1991 set out clear management objectives which the AFMA was obliged to pursue, including efficient and cost effective fisheries, ecologically sustainable development and maximising economic returns. The AFMA was also required to consult the Management Committee for the South East Fishery in relation to decisions affecting the fishery.
The AFMA initially intended to lift the restriction, recognising the economic benefits of allowing access by larger vessels. However, after consultation with the Management Committee, the AFMA decided to maintain the restrictions, to avoid social and economic impacts on small-scale operators. Bannister Quest, an applicant for a permit for a long vessel, sought review of the decision, arguing that the restriction on long vessels was inconsistent with the legislative objectives and based on irrelevant social and equity considerations.
The Federal Court noted that, while the AFMA had an obligation to consider the views of the Management Committee, its overriding duty was to pursue the management objectives set out in the legislation. The Court was satisfied that lifting the restriction was consistent with those objectives but the revised policy was in direct conflict with the objective of maximising economic efficiency and did not contribute to achievement of the other objectives. Concerns regarding the economic pressure and social upheaval associated with allowing long vessels to access the fishery were irrelevant and did not justify the change in position.
In Bannister Quest, the social considerations were in conflict with the objectives expressed in the legislation. However, the courts have also recognised that management objectives themselves are often in conflict (as recognised in the Reserves Code). Where authorities are responsible for managing multiple uses, and potentially competing objectives, the courts have been reluctant to dictate the manner in which objectives are to be achieved. Provided the managing authority ‘has regard to’ all the relevant objectives, the weight to be given to competing objectives is left to its discretion.[15]
ARTHUR-PIEMAN CONSERVATION AREA
The Arthur-Pieman Conservation Area (APCA) covers over 100,000 hectares in north-west Tasmania. The area was reserved in 1982 and its status was elevated to conservation area in 1999, following an inquiry into reserve classifications which identified a need to protect more of Tasmania’s coastal resources.[16] The APCA was confirmed as a conservation area under the Comprehensive, Adequate and Representative reserve system established as part of the Regional Forest Agreement commitments.[17]
The APCA, which forms the western section of the Tarkine, has been identified as ‘one of the world’s greatest archaeological regions’ in terms of Aboriginal heritage. Numerous sites throughout the APCA are identified in the Register of the National Estate and protected under the Aboriginal Relics Act 1975.
The area provides an important corridor for migratory bird species and breeding habitat for shorebirds, and comprises significant and diverse vegetation communities, including buttongrass moorland, rainforest and Sphagnum communities.
The APCA has been a popular recreational destination for many years, with a strong local culture of off-road vehicle use. The need to manage the impacts of this activity was recognised in the Interim Arthur–Pieman Protected Area Plan of Management 1991. Despite this, when the current management plan for the reserve was introduced in 2000 PWS noted that there had been rapid growth in off-road vehicle use in the preceding 10-15 years and impacts on reserve values had accelerated.[18]
The Resource Planning and Development Commission reviewed a new draft management plan in 2001 and received numerous submissions concerned that off-road vehicle use in the APCA was causing ‘unremitting damage’ to cultural sites. However, the Commission was satisfied that off-road vehicle use could continue in the area:
The Commission remains of the view that with careful management the impacts of recreational vehicle use can be minimised and therefore does not support a banning of recreational vehicles from the area. However, the Commission does advocate banning recreational vehicles from more sensitive areas of the APCA if the management system is proven ineffective.[19]
The final Arthur–Pieman Conservation Area Management Plan 2000 (the Management Plan) addressed off-road vehicle use in light of the ‘urgent need to protect vulnerable natural and cultural heritage values’.[20] The Management Plan establishes an Off-Road Vehicle Consultative Group, comprising representatives of the Tasmanian Aboriginal Land Council (now TALSC), the Tasmanian Conservation Trust, the fishing industry, PWS, local government and off-road vehicle clubs. The Management Plan also requires:
§ a sustainable off-road vehicle policy to be developed which provides for ‘responsible, low-impact experiences’ within the reserve and minimises conflicts with other recreational activities and conservation of natural and cultural values[21];
§ the managing authority to implement a management system incorporating various regulatory tools (including a permit system, self-management and education). Within three years, the system must be shown to substantially reduce degradation of natural and cultural values and improve compliance with permit conditions.[22]
The Management Plan sets default prescriptions which can be enlivened if the Minister is satisfied that the new system is not achieving its aims, including a prohibition on ‘use or construction of access routes and infrastructure which adversely impact on Aboriginal sites’.
The Management Plan also set out a number of prescriptions in relation to managing impacts on Aboriginal heritage, requiring the managing authority to:
§ provide maximum protection to those specific sites found within the areas inscribed on the Register of the National Estate
§ protect Aboriginal sites within the National Estate listing or areas declared under the Aboriginal Relics Act 1975
§ close vehicle routes over sites protected under the Aboriginal Relics Act 1975 and identify alternative routes in consultation with the Aboriginal community and relevant consultative groups
§ prepare a program for the relocation of vehicle routes over sites other than those protected by order under the Aboriginal Relics Act.
Despite numerous statements to the effect that off-road tracks needed to be assessed and off-road recreational vehicle use regulated urgently, to address ongoing damage to Aboriginal sites and coastal values, no formal policy has been adopted to date.
In April 2010, the government released the Draft Arthur-Pieman Conservation Area Sustainable Recreational Vehicle Access Report[23]. The report recognised that many sites within the APCA have been extensively damaged, and many others have yet to be subject to detailed surveys to assess their cultural heritage significance. The draft report described the APCA as an area ‘of international significance, displaying a richness of cultural heritage and a relative lack of disturbance that is extremely rare’.
Having regard to these heritage values, and the social values ascribed to off-road vehicle use, the draft report outlined the government’s intention for each of the 94 identified vehicle tracks in the reserve. The proposal included closing some existing tracks on the basis of identified impacts. However, it also recommended maintaining some tracks despite clear evidence of damage to registered midden sites, such as the track between Temma and Greenes Creek.[24]
The government received numerous submissions in response to the draft report, both supportive and critical of the proposals in relation to the track network. The submissions also highlighted information gaps and advocated for further assessment of reserve values. PWS has advised:
Those responses are currently being analysed. They will be evaluated along with the geoconservation, flora and fauna assessment, an Aboriginal heritage survey and a local social values report.
A decision will be made soon on how best to manage sustainable access to the reserve, including the future use of different tracks.[25]
Though the draft Sustainable Vehicle Access Policy is still being developed and the new track network has yet to be finalised, permits continue to be issued for off-road vehicles. This is concerning, given the clear evidence of the damaging effect of many tracks on heritage values.
IS PWS MEETING ITS MANAGEMENT OBLIGATIONS IN THE APCA?
PWS has an unenviable role in pursuing its numerous, competing objectives to achieve sustainable outcomes. However, this does not justify the failure to finalise a new management system for sustainable recreational vehicle use in the reserve. Concerns about the impact of off-road vehicles have been debated since at least 1991, yet no clear policy has been adopted.
Lack of clear guidance for resolving the competing objectives in the Management Plan is compounded in the APCA by the confusing role of the Management Committee and the Off-Road Vehicle Consultative Group. These committees include stakeholders with inherently contradictory interests, and ‘dominance by a coalition of vested commercial and recreational interests that oppose PWS prescriptions for stronger regulation of their high impact activities.’[26] The requirement for consensus amongst such a diverse, and often polarised, group has stagnated decisions.
Consistent with the approach set out in the Code, PWS should acknowledge that ‘in multiple-use decision making, some interests and values are indeed more important that others and that not all resource issues can be win-win situations.’[27] The Code provides support for the protection of cultural and natural values as the fundamental objective to be pursued in managing reserves. This is also consistent with the explicit obligations under the Management Plan to provide ‘maximum protection’ to recognised Aboriginal sites.
Following the decision in Bannister Quest, while the views of stakeholders with an interest in maintaining recreational opportunities in the APCA are relevant and should be considered, they should not dominate and cannot override the principal responsibility to pursue the objectives of the Management Plan. Given the irreversible nature of the recorded impacts, the significance of the landscape to the Tasmanian Aboriginal community and the protection of threatened flora and fauna and fragile coastal landforms must be the primary focus of conservation management in the APCA.
Tasmanian legislation currently authorises some off-road vehicle use in conservation areas. However, this activity should not be allowed where its impacts clearly conflict with the fundamental management obligations to protect natural values and preserve areas of Aboriginal heritage. There is ample evidence of extensive damage being caused to sites of international significance in the APCA, and the need for stronger regulation of these impacts. PWS has an obligation to do more to implement.
CONCLUSION
The multiple-use approach to managing the APCA is failing to provide adequate protection for cultural and natural heritage, with clear clear evidence that off-road vehicle use is causing extensive damage to cultural sites, disturbance of breeding habitat and vegetation impacts.
Recreational activities occurring in a conservation area must be consistent with the purpose of the area and management decisions, including allocation of enforcement resources, should be based on restricting activities that pose a significant risk to protected natural and cultural values. Where there is evidence that high-impact activities such as off-road vehicle use are irreversibly compromising Aboriginal sites and coastal values, the managing authority must reconsider whether allowing the activity is consistent with its management obligations.
Balancing the local community’s strong desire for continued access for recreational driving with conservation objectives remains one of the most significant management issues for the APCA. Political difficulties associated with regulating the use of off-road vehicles are further compounded by the practical difficulties associated with monitoring and enforcement in a large, remote area.
In order to give effect to the Management Plan and satisfy its obligations, PWS should act quickly to:
§ immediately implement all closures recommended in the draft Sustainable Recreational Vehicle Policy and close tracks that have already been identified as compromising cultural values (such as the Temma to Greenes Creek track). This is consistent with the default provisions outlined in the APCA Management Plan
§ complete Aboriginal heritage surveys in accordance with the Burra Charter, to identify any other tracks that are damaging significant natural or cultural values, and appropriate management responses;
§ amend the APCA Management Plan to more clearly articulate priority values and a hierarchy of management objectives
§ review the structure of the APCA Management Committee to clarify the role of committee members
§ actively enforce the off-road permit system to deter future breaches. There are clear, practical difficulties with enforcing off-road vehicle policies in an area as vast and remote as the APCA; however, adequate resources must be allocated to monitoring, investigating complaints and taking enforcement action
§ consider a moratorium on new 4WD track permits until the Sustainable Recreational Vehicle Policy is finalised, and impose strict limits on the number of permits issued in future years.
Jess Feehely
Principal Lawyer
Environmental Defenders Office (Tas) Inc