In the context of environmental protection the term ‘vulnerable to extinction’ has a specific meaning. That meaning is a legal definition. It doesn’t mean what most people think it means and that legal definition changes as legislation changes.

In Australia, the legal definition also changes between jurisdictions. That’s because we have a Commonwealth government and States and Territories all of whom legislate on environmental matters.

So the definition at the Commonwealth level is not usually the same as the definition in the State level. And the States tend to have different definitions from each other. Whilst I was studying law years ago, I quickly realised that ‘the law’ is a long, long way from clear and a long way from black and white.

Declaring a species as threatened

For a species such as a plant, animal or ecological community to be listed as a threatened species it must be declared as such under a legal instrument such as legislation.

The law governing this area is extremely complicated – way to complicated for this article. However, as a brief overview…

Legislation governs whether and how a species can be declared as a threatened species. The declaration is usually made by a Minister. They can be made by a Commonwealth minister under Commonwealth legislation and by State/Territory ministers using their State /Territory legislation.

Typically declarations are made based on scientific evidence, usually from a legislative scientific committee. That committee writes a conservation advice which is a document detailing the evidence for a species to be listed. A minister can base their decision on the contents of that document.

Strangely, even if the conservation advice shows clear evidence that a species is at risk of extinction, typically a Minister is at liberty to make a declaration or can choose to not make one. More on that later. First let’s identify the categories of threatened species at the Commonwealth level.

Threatened species categories in Australia

Currently, at the time of writing this article (October 2018), there are 6 categories of threatened species at the Commonwealth level. They are located in the Environmental Protection and Biodiversity Conservation Act 1999 (EPBCA) at sections 178 and 179 and are:

  1. Extinct
  2. Extinct in the wild
  3. Critically endangered
  4. Endangered
  5. Vulnerable
  6. Conservation dependent

Rather than defining each of these categories I’ll provide a link to a relevant section of the legislation. If you follow that link, you’ll find that particular words have particular meanings and that limits categorisation and makes it more complex to interpret.

Now lets focus on the vulnerable species category and see exactly what that means.

Vulnerable species and their traits – Commonwealth level

The current Commonwealth legal definition of ‘vulnerable’ species includes that the species is not critically endangered or endangered (both terms have legal definitions) and is “facing a high risk of extinction in the wild in the medium-term future, as determined in accordance with the prescribed criteria.” Two things strike me as odd.

First, that the term ‘vulnerable’ includes the second highest risk category of ‘extinction in the wild’ at the same time as providing a really restrictive time frame of ‘medium term’. Is medium term within the next 2-3 years? In my opinion, that’s a really restrictive definition.

The second thing that strikes me as profoundly odd and extremely disappointing is its overall restrictive scope especially when compared to the previous legislative instrument: Endangered Species Protection Act 1992 (Cth).

That 1992 definition defined a species as vulnerable if “at a particular time, within the next 25 years, the species is likely to become endangered unless the circumstances and factors threatening its abundance, survival or evolutionary development cease to operate.”

That strikes me as a pretty good and wide definition. That definition contains the remedy. Species usually go extinct because their abundance, survival or development is threatened by outside causes.

It appears to me that the definition and inclusion of species as vulnerable has been watered down from a protective ‘risk of being endangered within 25 years’ to a ‘risk of being extinct in the wild in the medium term’.

Likewise, surely if a species is at risk of being extinct in the wild within say 3 years, we should be really worried and be active in its protection.

What this change (from the 1992 legislation to the 1999 legislation) has meant is that the number of species listed is able to be reduced. It does not protect more species – in fact it does the exact opposite. The net is smaller.

The definition of vulnerable includes a prescribed criteria

Within the definitions of critically endangered, endangered, vulnerable and conservation dependent we see the term ‘prescribed criteria’. To state it again, the current Commonwealth legal definition of ‘vulnerable’ species includes that the species is not critically endangered or endangered and is “facing a high risk of extinction in the wild in the medium-term future, as determined in accordance with the prescribed criteria.”

What is the prescribed criteria relevant to these listings? The prescribed criteria are found in the Regulations. Regulation 7.01 is headed: Criteria for listing threatened species and it contains a table that includes criteria for listing vulnerable species. Importantly, regulation 7.01 states that only one of the criteria needs to be met, which for a vulnerable species is:

  • A substantial reduction in species numbers in the immediate future;
  • That it’s geographical distribution is precarious for the survival of the species and is limited;
  • The estimated total number of mature individuals is limited and evidence suggests that the number will continue to decline at a substantial rate or the number is likely to continue to decline and its geographical distribution is precarious for its survival;
  • The estimated total number of mature individuals is low; or
  • The probability of its extinction in the wild is at least 10% in the medium-term future.

So there are some issues here. What is a ‘substantial reduction’? How do we measure that? What constitutes a ‘precarious’ geographical distribution? We can measure probabilities and we can see that this last criterion is directly relevant to the definition of vulnerable.

Now, even if one or all of these things are met, the Minister does not need to make a declaration and does not need to add a species to the threatened species list. The making of declarations is found in section 34D of the Act which says many things including that “the Minister may make a declaration”. The wording is ‘may’ make, not ‘must’ make. The making of a declaration is therefore discretionary despite evidence. I would argue our diverse Australian community demands and expects protections for species other than ourselves…

Likewise, any Approved Conservation Advice (which is a legal document based on scientific inquiry) is to be ‘regarded’ and not necessarily followed. The contents and details that a Commonwealth approved conservation advice must have are found in section 266B of the Act.

Vulnerable species and their identities

We can see that the meaning of vulnerable in this environmental protection context is pretty wish washy. Not only can it change over time, it does change over time. The changes in the 1999 Act were massive and left our environmental heritage relatively unprotected.

Species that are on the brink of extinction might only have basic protections and be categorised as vulnerable to extinction or have no protections at all.

If we look at the Commonwealth species list currently published (as at October 2018) we see there are 590 listed vulnerable plants and 207 listed vulnerable animals.

Compared to 10 or 20 years ago, these numbers may have reduced. But how would we know the real scenario for plants and animals when the goal posts keep changing? We’d have to issue an FOI request (Freedom of Information) to compare the numbers from then.

Protections for threatened species

Most of the threatened species I’ve looked at over the years don’t even have basic protections. I’ve written about Graptophyllum ilicifolium and the weaknesses involved in protecting that species. I’ve also looked at Grevillea venusta and completely busted the myth that she’s being protected.

Here’s another example I literally stumbled upon: In 2018 the plant Solanum bauerianum (Bridal Flower) was listed as extinct at the Commonwealth level. The conservation advice for that listing states that at the time of writing the conservation advice, that plant was not listed at all under the Commonwealth legislation. There were no protections at the Commonwealth level prior to it being listed as extinct. This is despite it being listed as extinct in Tasmania.

I would have thought that an extinction event in Tasmania would have put the Commonwealth government and the other States and territories on notice.

We can see now that any reduction in numbers to threatened species is likely due to a change in definition, rather than species protection mechanisms. I’m sure there are exceptions but I am yet to find evidence of them.

We’re losing our environmental heritage. We’re losing eons of evolutionary diversity. We might be told that the number of species listed as vulnerable to extinction has reduced due to the great efforts of our government and key stakeholders but as we can see, it’s much more likely that any reduction in listings is due to the definition being strangled.

Worse perhaps are government decisions based on unreliable and completely insufficient evidence. My blog about Grevillea venusta will open your eyes to environmental law in this country.

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Wayne · December 12, 2018 at 6:26 pm

Insightful and informative as always. I hope that you keep blogging when you ‘hit the wallaby trail’.

    Amber Hall · December 12, 2018 at 7:11 pm

    Thanks Wayne, yes I’ll be writing whilst travelling 🙂

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