Animal Law Committee. Submission on the Western Australian Shark Hazard Mitigation Drum Line Program July 2014

Transcription

1 Animal Law Committee Submission on the Western Australian Shark Hazard Mitigation Drum Line Program July 2014 Attn: Chairman, Environmental Protection Authority Department of Premier and Cabinet (Western Australia) Contact: Thomas Spohr President, NSW Young Lawyers Rebekah Lam Chair, NSW Young Lawyers Animal Law Committee Contributors: Amanda Richman Vice Chair, NSW Young Lawyers Animal Law Committee Meg Lam Daniel Cung Christopher McGrath 1

2 The NSW Young Lawyers Animal Law Committee is grateful for the opportunity to make a submission to the Environmental Protection Authority (the EPA) on the Western Australian Shark Hazard Mitigation Drum Line Program (the Program). NSW Young Lawyers NSW Young Lawyers supports practitioners in their professional and career development in numerous ways, including by encouraging active participation in its 15 separate committees, each dedicated to particular areas of practice. Membership is automatic for all NSW lawyers under 36 years and/or in their first five years of practice, as well as law students and currently numbers more than 15,000. The NSW Young Lawyers Animal Law Committee (the Committee) comprises of a group of approximately 200 lawyers and law students interested in animal welfare and laws regulating the treatment of animals. The Committee aims to raise awareness and provide education to the legal profession and wider community, while increasing understanding about the importance of protecting animals from abuse and neglect. A common theme amongst Committee members is a passion and desire to use our legal skills and the law to help improve the lives of animals. Introduction The Committee commends the Western Australian Government for recognising not only that it has a duty of care to the people of Western Australia, but also that it has less tangible and less legalistic obligations, including preserving the beach culture of Western Australia. However, the Western Australian Government also has a duty to uphold the values of Western Australians, including preservation of the natural environment and treating animals in accordance with high animal welfare standards. The Committee is of the view that the Program does not achieve these objectives, neither individually, nor in terms of striking an appropriate balance (to the extent that they are competing). The Committee submits that the resources being directed towards the Program would be better directed towards researching and implementing alternative, scientifically proven, solutions. As set out in this submission: - There are effective methods of achieving the Western Australian Government's stated objectives. - The Program has not been shown to be effective. On the contrary, the evidence to date is at best inconclusive and at worst, demonstrates that the Program would 2

3 be ineffective and therefore a waste of the Western Australian Government's resources. - Implementing the Program is an abrogation of the Western Australian Government's duties and responsibilities under domestic and international law. - The arguments used to justify exemption from the Environmental Protection and Biodiversity Conservation Act (the EPBCA) are unjustified. - The Australian public does not support the policy underlying the Program. Recommendation The Committee submits that the Western Australian Government should implement the following as an alternative package to the Program: - Public education campaigns that develop ocean users awareness of sharks and urge them to change their own practices, acknowledging that deep waters are the territory of sharks, not humans. - Increase warning systems. Adopt programs similar to Cape Town s Shark Spotters which would additionally provide employment opportunities. - Invest in shark behaviour research. - Research into and development of digital detection systems that provide protection from sharks. 1 - If necessary, capture and translocation (whilst seeking to minimise distress to the animals). South Africa and Hawaii have successfully implemented programs centred on coexistence between humans and sharks, as opposed to the destruction of endangered sharks. 2 For instance, the innovative Shark Spotters program in Cape Town utilises a comprehensive flag warning system to minimise the 'already small risk' of a shark attack. In addition, Shark Spotters runs a public awareness campaign and contributes to ongoing research on shark behaviour. 3 The Program involves the deployment of 60 static baited drum lines at select high use swimming beaches and surf breaks only. The Western Australian Government's primary objective in implementing the Program is to protect the lives of Western Australians. The Committee agrees with this objective but submits that implementing the alternative measures listed above is more likely to be effective than the Program in achieving this objective. These alternatives also have the benefit of not compromising on the welfare of animals or preservation of the natural environment, and so are consistent with the values held by many Western Australians. 1 Shark Mitigation Services (SMS) is developing a digital float that uses solar devices to detect sharks, and sends an alert to lifeguards via satellite: see st Century Shark, [TV program] National Geographic Channel, 30 December Save Our Seas Foundation, Shark Spotters, South Africa, 3

4 Efficacy of the Program The efficacy of the Program needs to be established before it is implemented. The policy underlying the Program assumes that killing large sharks is the most effective means of reducing the risk of attack. However, the evidence to date on the efficacy of lethal controls is at best inconclusive and at worst, suggests that the Program would be ineffective and a waste of the Western Australian Government's resources: 4 - The review of the Program's trial run (which occurred between January and April this year) by the Department of Premier and Cabinet was inconclusive as to whether the program was effective in reducing the chance of a shark attack. During the trial run, the drum lines failed to catch any Great White Sharks (the species that was purportedly responsible for the bulk of attacks). 5 On the contrary, many of the sharks caught were Tiger Sharks, which have not been linked to recent human fatalities. - Examples from around the world suggest the measurable effect of lethal controls on the overall number of fatalities is questionable. 6 Indeed, in those locations in which lethal control measures appear to have led to a reduction in fatalities, improved emergency service response times and medical technology are thought to be the more likely contributing factors. 7 The Committee acknowledges that there has only been one fatal shark attack on controlled beaches in Queensland since drum lines have been used. However, the Queensland Government has also been using nets to protect swimmers. There is no evidence to suggest any causation link between the drum lines and the reduced number of shark fatalities. - Internationally, marine and ecological scientists have voiced their concerns over the lack of a sound scientific basis for the Western Australian government s shark baiting and destruction program. 8 The Committee notes that more than 250 imminent scientists and researchers signed submissions made to the EPA in response to the Program, in which it is claimed that the Program will be ineffective in protecting beach-goers, and detrimental to the ecosystem. - Reviews of the legal control programs implemented in Hawaii (which resulted in the destruction of 4668 sharks between 1959 and 1976) found that culling programs do not appear to have measurable effects on the rate of shark attacks. 9 4 R Pierce, Shark Focus: the past and future of worlds sharks, skates and rayes (2006) 49 The Shark Trust < 5 ABC News, WA shark cull: Trial too short to test effectiveness in reducing shark attack risk. 17 June, 6 R Pierce, note 4. 7 R Pierce, note 4. 8 Gibbs, L. and Warren, A., Killing Sharks: cultures and politics of encounter and the sea. Australian Geographer, 45(2), pp Wetherbee, B., Lowe, C. and Crow, G., A review of shark control in Hawaii with recommendations for future research. Pacific Science 48, pp ; Daryl McPhee, Likely effectiveness of netting or other capture programs as a shark hazard mitigation strategy in Western Australia (2010) Department of Fisheries, Perth, Western Australia No. 108, 10. 4

5 Accordingly, the Committee submits that the Western Australian Government cannot demonstrate that the Program would protect human life in any meaningful way, and so the Western Australian Government fails to meet its own stated objective in implementing the Program. Abrogation of the Western Australian Government's duties and responsibilities under domestic and international law The Great White Shark is listed as a vulnerable species and is protected under both domestic and international law. In Australia, the Great White Shark has been afforded protection under the EPBCA from capture, killing or other forms of endangerment since This listing was based on a number of factors, including evidence of a declining population, its life history characteristics and limited local distribution and abundance. 10 In 2002, a recovery plan was made in response to findings that suggested a significant decline in the size of the Great White Shark populations in Australian waters. 11 When reviewed, the lack of supporting evidence as to the recovery of Great White Shark numbers provided no reason to alter the Great White Shark s current status as vulnerable under the EPBCA. In 2012, the second National Plan for Action for the Conservation and Management of Sharks was released and outlined how Australia would manage and conserve sharks to ensure that they meet international conservation obligations. 12 At an international level, the Great White Shark is listed in the Convention on International Trade an Endangered Species of Fauna and Flora (CITES) 13 and the Convention on Migratory Species (CMS) 14 - Australia is a party to both. These instruments place limitations on the trade of Great White Shark products and help reduce the number of sharks killed through commercial and recreational fishing activities. The Great White and the Tiger Sharks are also classified as vulnerable to extinction and near threatened by the International Union for the Conservation of Nature (IUCN). 15 Despite domestic and international protection, the Federal Environment Minister has used his unfettered discretion to grant an exemption under domestic legislation to authorise the killing of both the Great White Shark and Tiger Shark. While the EPBCA does contain certain provisions to allow an action that is reasonably necessary to prevent a risk to 10 Department of Environment, White Shark 11 Department of Environment, note Department of Environment, note Convention on International Trade of Endangered Species, opened for signature 3 March 1973, 993 UNTS 243 (entered into force 1 July 1975). Two shark species were first added to Appendices II in 2003 and that 8 additional species were added in The effect of the entry of the Great White Shark commences 14 September 2014, two months the Program is scheduled to commence. 14 Convention on the Conservation of Migratory Species of Wild Animals, opened for signature 23 June 1979, 1651 UNTS 333 (entered into force 1 November 1983). Shark species were listed in 2010 at the sixteenth session of the Conference of the Parties in Cancun, Mexico. 15 I Fergusson, L.J.V Compagno and M Marks, Carcharodon carcharias and Galeocerdo cuvier, (2014). IUCN Red List of Threatened Species. Version. < 5

6 human health or to deal with an emergency involving a serious threat 16, the exemption was initially relied upon without public consultation, conflicts scientific research and represents a significant undermining of the intended goals and governmental responsibilities under both domestic and international law. Furthermore, research illustrates that sharks do not pose the serious public safety that is often suggested and as such the public interest argument used to gain the exemption from the EPBCA is not justified. (a) Disregard for science in exempting government from EPBCA Neither the Federal Environment Minister, nor the Western Australian Government, have provided coherent, evidence-based reasoning to support an exemption from the EPBCA necessary to justify the implementation of the Program. Current evidence indicates that both the Great White Shark and the Tiger Shark are threatened by human activities and are therefore in need of greater protection due to their pivotal role in their ecosystem as apex predators. 17 Research commissioned by the Western Australian Government, and conducted in 2013, concluded that due to the environmental impacts of shark control activities, it is not recommended that either shark nets or drum-lines be introduced into Western Australia. 18 The Program could mean the removal or substantial reduction of a shark species from the marine ecosystem and could have far-reaching consequences, including altering prey populations and potentially triggering entire community or ecosystem level changes. 19 Already populations of Great White Sharks have been severely reduced in most regions where they occur. 20 In fact, it is estimated that the population of Great White Sharks and Tiger Sharks may have decreased by up to 79% and 65% respectively since In Australia, a decline in catch per unit effort in various programs coupled with game fishing statistics indicates that Great White Shark numbers have been declining over time, even though they are protected. 22 The far-reaching environmental impacts that shark programs have on other marine fauna is recognised in domestic legislation. 23 In NSW for example, shark control programs are listed as a Key Threatening Process under both the NSW Fisheries Management Act 1994 and the NSW Threatened Species Conservation Act as the programs have been 16 Environment Protection & Biodiversity Conservation Act 1999 (Cth), part Environmental Defenders Office, 2013 Australia s sharks need protection and conservation management EDO 18 R Pierce, note Environmental Defenders Office, note Alison Kock and Ryan Johnson, White Shark abundance: not a causative factor in numbers of shark bite incidents (2011) WWF South Africa Report Series, Alison Kock and Ryan Johnson, note Alison Kock and Ryan Johnson, note Daryl McPhee, note 9, 10. 6

7 identified as adversely impacting two or more threatened species. 24 While it is not possible to predict the exact number of animals of each species that would be captured in Western Australia should the Program commence, it is clear that the Programs is inconsistent with scientific research and conservation principles and should therefore not proceed. (b) Lack of research supporting an argument of public safety Research indicates that although the number of sharks is declining globally, the number of shark attacks appears to be increasing. 25 While this is in part due to an increasing number of people who reside in coastal areas and use the water, 26 it is also appears to be a result of the way the term shark attack is coined. The term 'shark attack' does not draw any distinction between minor events and fatal incidents. 27 For example, bites from non-threatening sharks like the Wobbegong, which have accounted for 5.5% of all shark attacks in Australia since 1990, are not distinguished from more serious bites by other species of sharks, yet all events are labelled 'shark attacks'. 28 The term shark attack is even used to include events where there is no physical contact with a person. 29 According to one study, reclassifying 200 identified shark attacks as sights and encounters rather than an attack, reduces the number of reported shark attacks in NSW by 18.5%. 30 A full application of this new classification therefore offers a new perspective on shark attacks and reduces the total number of potential shark attacks recorded in NSW by 72% between 1900 and 2009, by 94% between 1959 and 2009 and by 96% between 1979 and This reclassification not only illustrates the lack of evidential support for a public interest argument but also provides a more accurate and helpful story to the public and places demand for policy responses in proper context. 32 Finally, observations of sharks in proximity to human swimmers in the ocean have demonstrated that sharks do not usually take an interest in people and that sightings by NSW Fisheries staff have revealed that bull sharks regularly swim close to, but ignore hundreds of human swimmers in Sydney Harbour. 33 Similarly, in Cape Town, the Shark Spotters program has reviewed more than 1,100 sightings of Great White Sharks swimming around surfers and near bathers. This story repeats itself in Port Stephens, 24 Daryl McPhee, note 9, Daryl McPhee, note 9, Daryl McPhee, note 9, Christopher Neff and Robert Hunter, 'Science, policy, and the public discourse of shark attack: a proposal for reclassifying human-shark interactions' (2013) Journal of Environmental Studies Science 3, Christopher Neff and Robert Hunter, note 27, Christopher Neff and Robert Hunter, note 27, Christopher Neff and Robert Hunter, note 27, Christopher Neff and Robert Hunter, note Christopher Neff and Robert Hunter, note Christopher Neff and Robert Hunter, note 27, 70. 7

8 where shark biologist Barry Bruce has studied juvenile Great White Sharks that consistently ignore people in the nearby surf. 34 These observations not only point to the need for a more public education effort on the subject of shark behaviour towards humans, but also demonstrate the lack of scientific evidence that supports exempting protection of the Great White Shark and Tiger Shark on the basis of public safety. The Australian public is unlikely to be in favour of the Program The overwhelming majority of Australians do not support lethal control measures for reducing the risk of shark attacks. Using the words of the Review Western Australia Shark Mitigation Drum Line Program 'science alone will not provide the basis for the development of public policy, rather it informs public policy'. 35 Public policy must also be informed by public opinion: in most cases there ought to be some correlation between the public s professed preferences and public policy. 36 The Committee submits that the Program is disconnected from the opinions and values of the public in relation to sharks, and this disconnect cannot be justified on any other ground which could properly form the basis for the development of public policy. There have been a number of public opinion polls following the decision of the Western Australian Government to initiate the trial run of the Program, all of which demonstrate that the overwhelming majority of the public do not support the policy which underlies the Program. - According to a 2014 poll, the majority of Australians do not fear sharks, feel safe in the sea, and do not support killing sharks to make the beach safer. Furthermore, 83% of Australians have not changed their recreational activities in the ocean because of the risk of shark attack and 82% believe that people enter the water at their own risk A Patterson Research Group FlashPoll of 300 people, carried out with a random sample of Perth residents, found 63% opposed the drum lines policy and only 21% were in favour A West Australian online poll of 4600 participants found that 82% did not support the measures of the Western Australian Government A study of 557 ocean users in Western Australia found that the majority of ocean users were against lethal control methods and strongly supported strategies 34 Christopher Neff and Robert Hunter, note Government of Western Australia, Department of Premier and Cabinet, pg Martin A, Hindmoor A., Gibbons A Is policy congruent with public opinion in Australia?: Evidence from the Australian Policy Agendas Project and Roy Morgan, Australian Political Studies Association. 37 Sydney Morning Herald Shark cull: 80% of Australians opposed, poll finds, 28 January West Australian Most against shark kill plan: poll, 22 January West Australian Majority say no to killing great whites. 8

9 relate to ocean users developing awareness of sharks and the ocean and changing their own practices. 40 This public opposition has led to several protests around Australia in February It was estimated that 6,000 people attended a protest in Cottesloe, Perth and 2,000 in Manly, Sydney. 41 Events were also held in at least 10 locations across the nation, from the NSW central coast to Adelaide, Melbourne, Hobart, and Broome. 42 There has also been a number of strongly supported social media campaigns and online petitions. 43 The Environmental Protection Agency received 23,000 submissions during a one month consultation period 44 and continues to be picketed for its inaction on this issue. 45 Conclusion If the aim of the Western Australian Government is to reduce the risk of shark attacks in Western Australia, the weight of the evidence suggests that the Western Australian Government should abandon cull policies in favour of adopting non-lethal measures of managing the risk of shark attacks on humans. Although the Committee agrees with the objectives of the Program, the Committee submits that it is inappropriate for the Western Australian Government to commence the Program when: - There are more effective measures at the Western Australian Government's disposal. - There is limited (if any) evidence that the Program would be effective in saving human lives. - The Program would constitute an abrogation of the Western Australian Government's responsibilities and obligations under domestic and international law. - The Program is not supported by the weight of public opinion. Implementation of the Program would therefore suggest that the Western Australian Government would prefer to be seen to be responding to recent shark attack fatalities, rather than implementing well-reasoned policy responses which would in fact save lives. 40 Gibbs L. Warren A Killing Sharks: cultures and politics of encounters of the sea, Australian Geographer. 45:2, ABC News WA shark cull: Thousands rally at Cottesloe beach as catch-and-kill protests ramp up. 2 February Sydney Morning Herald Thousands protest at Manly over WA shark cull. 2 February tiy.html#ixzz36B8BIwiS. 43 Perth Now Thousands join online campaign against shark cull in WA. 27 November ABC News WA shark cull: EPA rules out assessment despite 23,000 public submissions. 12 March Ninemsn WA shark cull protestors picket EPA, 27 June. 9

10 The Committee therefore urges the Western Australian Government to abandon the Program and direct its resources to implementing a package of non-lethal, effective measures to protect the lives of people in Western Australian waters. We look forward to your response. Thomas Spohr President NSW Young Lawyers Rebekah Lam Chair NSW Young Lawyers Animal Law Committee alc.chair@younglawyers.com.au 10