Love and loss on the colonial frontier: biodiversity conservation and the law in the pastoral lands of the Northern Territory

Since the early 1990s biodiversity conservation has become a prominent issue in environmental law and policy. And yet, its meaning remains vague. This thesis begins with an interdisciplinary analysis of the meaning and goals of biodiversity conservation. The understanding gained from this analysis is then applied to a particular environmental and legal context: the pastoral lands of the Northern Territory of Australia. The aim is to understand the nature and causes of biodiversity loss, and to consider the obstacles, and opportunities for, biodiversity conservation in the existing legal system of pastoral lease lands. The disciplines considered in the interdisciplinary analysis include: science, environmental ethics, and law. A cross-cultural perspective is also included: that of the Indigenous peoples of Australia. The analysis concludes that no clear meaning or goals for biodiversity conservation emerge from the scientific literature. A n d yet, there has been a tendency for scientists to present an objective, value-free meaning and goals, and for these to be inappropriately privileged in the development of law and policy. The perspective of Indigenous people and environmental ethicists demonstrates that there are many different ways to value biodiversity and many different meanings. Biodiversity conservation is immensely broad in its potential scope. I argue that detailed meanings and goals for biodiversity conservation should be context-specific and negotiated through a process that includes the needs, values and knowledge of all people interested in a place or region. Principles will have an important place in the decision-making process. Part II of the thesis includes an examination of the environmental and legal history of nature conservation in the Northern Territory and the knowledge about biodiversity loss and its causes in the rangelands under pastoral lease. The following chapters focus on a description and analysis of the law most relevant to the conservation of biodiversity in the pastoral lands. The statutes examined include: the Pastoral Land Act 1992 (NT), the Native Title Act 1993 (Cth), the Territory Parks and Wildlife Conservation Act 1976 (NT), the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and the Planning Act 1999 (NT). These laws entrench a number of obstacles to biodiversity conservation. Both the Northern Territory and Commonwealth law adopt a narrow approach to conservation that focuses on prohibitive rules relating to species conservation. The continued reliance on such prohibitions is necessary but not sufficient to advance biodiversity conservation. Attention must be given to laws which support longterm active conservation management. The law relating to pastoral land tenure appears to support biodiversity conservation by imposing conservation duties and responsibilities on pastoral lessees. However it is argued that in practice this law is an obstacle to biodiversity conservation because these land management conditions are unenforceable. The need to change land use in some parts of the Northern Territory rangelands has been inhibited by the conversion of pastoral leases to perpetual tenure. The Planning Act 1999 (NT) does not refer to biodiversity conservation and creates an obstacle to the development of a participatory, consensus-based planning process. The main opportunity for biodiversity conservation arises out of the legal recognition native title. The negotiation of co-existence between native title-holders and pastoral lessees as well as regional Indigenous Land Use Agreements, m a y stimulate crosscultural communication and provide a catalyst for new, more equitable and inclusive approaches to land management and strategic planning. In addition, opportunities exist in the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and the Territory Parks and Wildlife Conservation Act 1976 (NT) for the negotiation of cooperative management agreements for the conservation of biodiversity with landholders, supported by stewardship payments