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Licensed to Kill : Endangered Fauna Licensing Under the National Parks & Wildlife Act 1974 (NSW) Between 1991-1995

Author(s): James Prest

The focus of this paper is on the effectiveness of administration of the Endangered Fauna (Interim Protection) Act 1991 by the National Parks and Wildlife Service of NSW, Australia, between 1991 and 1995, particularly in regulating the effects on biodiversity of logging operations in NSW publicly owned native forests. A key mechanism of the Act was its requirement that those seeking to significantly modify the habitat of endangered fauna seek a licence to take or kill, and that they prepare a Fauna Impact Statement (FIS) justifying their activity. This historical and empirical study focuses on the licensing practices of the NPWS considering temporary licensing, licence variations and the use of authorities in place of licensing. This study presents previously unpublished data on the operation of the licensing system. 95% of the licences granted to the Forestry Commission were temporary licences. Thus the Forestry Commission held those licences without ever having been required to complete FIS and without the threat of public appeal against decisions to grant general licences. The paper examines the reasons for accommodatory approaches by regulators such as the NPWS, and finds that some of these factors were present in some instances of particular aspects of the implementation of the Act. These factors included lack of agency resources, imbalance of power and insecure basis of regulatory agency authority, avoidance of perceived economic dislocation, lack of public support, and the undermining effect of plans for new legislation. Examination of the history of operation of these EFIP Act provides an excellent vantage point from which to examine other biodiversity legislation. Australian biodiversity and ecosystems are unlikely to be protected by merely enacting legislation which bears the name "endangered species protection" if attention is not paid to the issue of implementation. The drafters of any new legislation need to consider how political pressure will tend to result in the misuse of specific provisions. The paper closes with a historical account of the circumstances surrounding the enactment of the EFIP Act, arising from the Corkill litigation over logging of Chaelundi State Forest.

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Research theme: Environmental Law, Law, Governance and Development, Regulatory Law and Policy

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