Additional Comments from Senator David Pocock

Introduction

1.1I thank the Senate Environment and Communications References Committee (the committee) for undertaking this significant inquiry into the impacts of feral horses on the fragile Australian Alps.

1.2Feral horses do not belong in our National Parks or in our National Heritage Places. Federal, state and territory governments should not adopt policies or management plans which include goals to retain feral horses or other invasive species in National Parks or other protected areas.

1.3In the Australian Alps, feral horses pose an urgent and intensifying threat to a spectacular but vulnerable landscape. The Australian Alps environment is rare on our continent, with high peaks, glacial lakes and unique plants and animals which have adapted to the cold climate. It is home to threatened ecological communities and species, wetlands of international importance, migratory species and the headwaters of the Murray and Murrumbidgee Rivers.

1.4Invasive species affect more endangered animals than any other threatening process and have been identified as major threats to insect and plant life.[1] The plants and animals in the Australian Alps have evolved to exist together in a unique ecosystem, with water flowing to our major rivers regulated by the sphagnum moss and fen communities, which also provide habitat for the critically endangered corroboree frogs. The Mountain Pygmy Possum, also critically endangered, relies on the migratory bogong moth for its main food source. The presence of feral horses puts all parts of this complex ecosystem at risk.

1.5Climate change is making the alpine region drier and warmer. Winter temperatures are predicted to rise by more than 2°C in the future, meaning alpine flora and fauna which have adapted to a narrow ecological niche will be under even greater threat. With the NSW Government reporting in 2018 that only 15 per cent of the state’s remnant native vegetation remains in near natural condition, the need to protect what remains only becomes clearer and more urgent.[2] Grassy woodlands, montane lakes, bogs and fens, all of which provide habitat for alpine plants and animals, will be under an enormous amount of pressure.[3]

1.6The threats of climate change are existential, and our future depends on our ability to halt the damage and find ways to repair our landscapes. With feral horse numbers increasing at 15–20 per cent a year, the damage will be irreparable if change is not made soon. The feral horse population in the Australian Alps has been allowed to proliferate, predominantly in NSW, with resulting numbers increasing in Kosciuszko National Park (KNP) from an estimate of 14,300 to more than 18,800 in just over two years, from 2020 to 2022.

1.7The numbers are predicted to double again in the Australian Alps in five years without active management.[4]

1.8The idea of culling horses is a difficult one. But the reality is that after so much inaction, the time for alternative approaches like re-homing has passed. NSW will need to achieve an 84 per cent reduction to meet their target by 2027, and that will still leave 3,000 feral horses damaging the environment. At their estimated reproduction rate of 15–20 per cent a year, this will require around 450 to 600 horses to be culled annually to keep the population stable at 3,000. The cycle will continue as long as feral horses are left unchecked in the Alps.

1.9Scientific evidence shows that even small numbers of feral horses damage landscapes. While removing some will reduce the overall impact, any remaining horses will continue to destroy this fragile ecosystem.[5] Even as few as 13 feral horses can have negative impacts on an ecosystem, by developing and expanding tracks, creating roll pits, grazing and trampling grasslands, and scattering dung.[6]

1.10There is no minimum population of feral horses which would avoid degradation to the landscape.[7]

1.11Associate Professor Richard Swain, the Indigenous Ambassador for the Invasive Species Council, stated with great clarity:

This can't be about politics. If this isn't the decade of healing country it will be a decade of saying goodbye.[8]

Feral horses are destroying the fragile Australian Alps ecosystem

1.12This inquiry has collected evidence that feral horses have damaged the ecosystem in the Australian Alps, and will continue to damage the landscape until it is severely degraded. Feral horses trample the ground at the edge of creeks and rivers, causing soil and sediment to be swept into the waters.[9] They compact the soil to the extent that oxygen cannot get in and roots can’t take hold, preventing growth from coming back.[10] Feral horses destroy the vegetation that our vulnerable marsupials shelter in,[11] and pollute waterways which provide critical hydration to the plants and animals, and flow to our vital river systems.[12]

1.13Contrasting the alpine ecosystems between NSW and the ACT, the results of effective management are clear. In NSW, the lack of action on feral horse population management has led to trampled (‘pugged’) soil, erosion and overgrazing. In the ACT, which has a zero-tolerance policy towards feral horses, waterways are healthier, and the effects of climate change can be monitored more thoroughly.

1.14South Endeavour Trust, a land trust privately conserving 20reserves in NSW and Queensland, have taken on the task of protecting and conserving fragile alpine moss and native species. It has spent precious money donated for protection and conservation on constructing fences to protect the ecosystem from feral horses running unchecked across the boundaries of KNP.[13]

1.15The only practical solution to ensure that this environment exists for future generations is a full eradication of feral horses in the Australian Alps National Parks and Reserves.

1.16The vast majority of submissions received during the course of this inquiry were from people passionate about the Australian Alps and who value this unique environment and want to preserve it for future generations. I thank each person who took the time to write to the committee about their love of this precious landscape, their frustration at the lack of management of feral horses, and their sense of urgency at the need to protect it.

Indigenous cultural heritage

1.17Indigenous heritage values are at significant risk from feral horses. Mr James Blackwell, a Wiradjuri man, told the committee:

Our cultural heritage is at risk, and the main thing preventing us fixing it is an idea that feral horses are somehow themselves worthy of protection. They are not. They are not part of this place, and they do not belong there. To argue they are worthy of protection due to the settler heritage of the region both ignores and disrespects our Indigenous cultural heritage, which has existed for over 65,000 years. It also places the environment below the said heritage.[14]

1.18The Australian Alps have been the site of social and spiritual connections for First Nations clan groups as part of their traditional country for tens of thousands of years.[15] Indigenous heritage values are set out in the National Heritage listing for the Australian Alps, and should be protected from actions against them under the EPBC Act.

1.19The management principles for National Heritage listed places set out that Indigenous people should be listened to when it comes to Indigenous heritage:

Indigenous people are the primary source of information on the value of their heritage and the active participation of indigenous people in identification, assessment and management is integral to the effective protection of indigenous heritage values.[16]

1.20Mr Blackwell set out clearly that Indigenous cultural heritage should be prioritised over feral horses:

Indigenous cultural heritage and environmental heritage of all Australians is not something that exists only if it does not conflict with the interests of those damaging said heritage.[17]

Native plant and animal species need to be prioritised

1.21The Atlas of Living Australia records more than 8,500 species of mammals, birds, insects, amphibians, plants and fungi living in the Australian Alps region.[18]

1.22The Australian Alps are home to critically endangered species, including the only known populations of some species. Once gone, these animals are not coming back. We are down to the last remaining populations of Southern Corroboree Frogs, Stocky Galaxias fish and other vertebrates. These critically endangered species that have been lost from other areas have found refuge in tiny remnant ecosystems within the Australian Alps, only to be under threat from an introduced pest animal.

1.23There are only around 30 adult Southern Corroboree Frogs left in the wild.[19]

1.24The only population of the Stocky Galaxias fish is currently protected from feral horses by a temporary fence.[20] This might stop the trampling at the water’s edge, but it does not provide a long-term solution or stop their habitat being polluted and degraded.

1.25Luckily, important habitat for the critically endangered Northern Corroboree Frog is located in the ACT, with no feral horse population established. This area is under threat, however, from neighbouring NSW feral horses which could impact the survival of the Northern Corroboree Frog in the near future. Horses trample the moss and leaf litter which these frogs rely on for breeding, meaning that if incursions happen, these already small populations will rapidly decline.[21]

1.26Native species need to be prioritised. Horses do not require the Australian Alps habitat for their survival, but so many of our native plants and animals do. Professor Don Driscoll at Deakin University stated:

There's a whole range of species that are just one or two little dots down in that corner [the Australian Alps], and then you draw the map of feral horses, and they're scattered across the entire country. It beggars belief that, through the [NSW] Kosciuszko Wild Horse Heritage Act, they've given priority to horses in an area that's critical for a whole range of our native species that only occur in Kosciuszko or in the Australian Alps.[22]

More coordination is needed to address this problem

1.27The current EPBC Act does not put an obligation on the Commonwealth to act to repair or regenerate matters of national environmental significance. The current EPBC Act is silent on failures to mitigate damage to protected matters such as National Heritage values, threatened ecological communities, threatened species, and migratory species.

1.28The final report of the Independent Review of the EPBC Act, led by Professor Graeme Samuel, set out the following critique of the Act as a whole:

The EPBC Act itself does little to support environmental restoration. Stabilisation of decline or a net improvement in the state of the environment cannot be achieved under the current system. Restoration is required to enable future development to be sustainable.[23]

1.29The failure to stop damage is just as harmful as actively causing it. The EPBC Act is in desperate need of reform, and the next iteration of this legislation should put an obligation on the Commonwealth to intervene to protect matters of national environmental significance.

1.30Importantly, the failure to act is not generally a ‘controlled action’ under the EPBC Act.Under the Act, only a ‘deliberate action (rather than doing nothing)’ can be assessed by the Environment Minister.[24]

1.31A failure to mitigate the damage done by an increasing feral pest population which risks the extinction of threatened species, is not by itself an action. The inaction of the NSW Government to stop the damage caused by feral horses is unlikely to be a referrable action under the Act, and so the Commonwealth Environment Minister is not able to intervene. In addition to this, under the EPBC Act, state governments are effectively exempt from seeking the Environment Minister’s approval for actions.[25]

1.32The Commonwealth needs to take a more active role in the management of the Australian Alps National Parks and Reserves.

1.33Despite the name ‘national park’, the 11 parks and reserves which make up the Australian Alps are not on Commonwealth land. Instead, they are on state land and are managed by the relevant state or territory government. This arrangement has led to three very different approaches to the management of feral horses between NSW, Victoria and the ACT.

1.34In complete disregard of the important ecosystem values of the Australian Alps, NSW enacted legislation which protects this feral pest in more than 30 per cent of KNP. The ‘horse retention area’ includes Indigenous heritage sites, important ecological sites, listed threatened ecological communities and species, a migratory bird subject to international treaty, significant rivers within the Murray-Darling Basin, and many other environmental values.[26]

1.35The NSW Government announcement of the potential use of aerial culling is welcome, but is only a good start. Keeping any remaining population of feral horses will only lead to the same problem in the future.

1.36At the public hearing, the Department of Climate Change, Energy, the Environment and Water (DCCEEW) pointed to constitutional barriers for its lack of intervention. These barriers relate to the ability for the Commonwealth to regulate according to the heads of power in the constitution, which leads to ‘more limitations…than there might be for some other matters of national environmental significance’.[27]

1.37The committee heard that ‘the government is concerned about the activities in the park’ and is using ‘the levers at its disposal’, but that ‘Commonwealth laws can't curtail or interfere with the capacity of a state to function as a government’. NSW legislation protects feral horses in approximately a third of KNP and limits the control methods to remove horses from the other areas by not allowing aerial shooting.

1.38DCCEEW could not clearly set out the powers it has to regulate National Heritage listed places. DCCEEW officials told the committee that the Commonwealth Environment Minister could prescribe more regulations and new principles for the development of management plans. These, however, seem to be constrained by the same constitutional barriers:

…the extent to which [regulations] can restrict a state's own legislative capacity is a more complicated constitutional area. There will be limitations in that sense in how the Commonwealth might intervene vis-a-vis the states.[28]

1.39The former Environment Minister clearly believed that it was within the Commonwealth’s power to address the increasing threat of feral horses in the Australian Alps, as evidenced in the letter sent to the former NSW Environment Minister in 2021. The letter set out that the Commonwealth considered that the NSW Government was ‘failing in its obligations to protect the National Heritage values [of the Alps] from feral horse damage’ and that:

For this reason the Australian Government is considering the development of regulations under the Act that oblige protected area managers to take specific action on feral horses, including the responsible, evidence-based, and humane reduction and management of populations, to safeguard the unique biodiversity and heritage values of this nationally significant place.[29]

1.40The department was asked to provide the legal advice they sought and obtained relating to the Commonwealth’s regulation-making powers and related constitutional issues before the letter was sent in 2021. DCCEEW declined to provide the advice, and stated that it was long-standing practice not to disclose privileged legal advice. As discussed in the committee’s report, the committee wrote to the department and the Environment Minister to clarify that privileged legal advice is not a ground accepted by the Senate for the refusal to provide information.

1.41The Minister was given the opportunity to provide the advice confidentially, but this was also declined.

1.42This is a disappointing outcome for this inquiry, as it appears that there is uncertainty as to the extent of the Commonwealth’s power to regulate and protect National Heritage values. Also, it is concerning that the Australian Government has advice that sets out that it does or does not have the power to enact legislation relating to National Heritage values but does not feel that the Australian Parliament should have access to that advice.

1.43At the end of this lengthy and complex inquiry, one question is left unanswered: to what extent is the Commonwealth responsible for the protection of matters of national environmental significance in the Australian Alps from the threat of feral horses?

Our water quality is under threat

1.44We can’t afford to compromise the quality of water in our rivers. We rely on rivers with headwaters in KNP for human consumption, biodiversity and agriculture.

1.45The committee heard that ‘the worst catchment health is reported where feral horses are present’.[30] Natural vegetated land—to promote the highest yield of water, and waterways free from erosion—is required in order to sustain clean water supply to south-eastern Australia.

1.46Our water is one of our most precious and vital resources for sustaining our communities, as well as the agriculture which feeds us. Deakin University told the committee that feral horses are associated with poor conditions in NSW at these critical headwaters:

Murray River Headwaters—overall ecosystem health is poor, with damage to the sphagnum bogs;

Murrumbidgee River Headwaters—overall ecosystem health is very poor, with low numbers of fish and poor vegetation condition on the slopes; and

Snowy River Headwaters—overall ecosystem health is poor, with damage caused by feral horses to increase erosion and silt, and polluted by large amounts of horse dung. Feral horses have disrupted the flow regime and water quality into this catchment.

1.47The Murrumbidgee River is a water source for 16 nationally significant wetlands, and its poor health is a threat to the Northern Corroboree Frog and Stocky Galaxias.[31] The Murrumbidgee catchment is the supplier of water which supports agriculture—a quarter of fruit and vegetable production in NSW relies on this water. This includes around half the grapes grown in NSW and half of Australia’s rice production.[32]

1.48In stark contrast, Deakin University stated that the Cotter River Headwaters in the ACT have an excellent overall ecosystem health, despite bushfire impacts, due to the absence of feral horses. This catchment is critical to the ACT, and supplies the majority of its water requirements. The ACT Government stated that:

Within the ACT, feral horses have the potential to cause catastrophic damage to the high value biodiversity and sensitive sub-alpine wetlands in the National Heritage listed Namadgi National Park. This includes areas of the Cotter Catchment that supply water to Canberra and Queanbeyan. Namadgi National Park protects the Ginini Flats Wetland Complex, the most significant intact Sphagnum bog and fen community in the Australian Alps which is listed under the Ramsar Convention on Wetlands. With the highest feral horse density in Kosciusko National Park occurring immediately to the West of this wetland, feral horses are a significant and increasing threat. It is on this basis that the ACT adopts a zero-tolerance policy on feral horses.[33]

The ACT has paid the price for NSW inaction

1.49The former NSW government’s failure to address this issue has put the cost onto neighbours of KNP. The ACT Government told the committee that they received $250,000 in 2022-23 under the Commonwealth’s Enhancing National Pest Animal and Weed Management agreement, with another $250,000 provided in 2023-24 if project milestones are reached.[34] This funding extends to established pest animals and weeds—not specifically for managing feral horses which may stray into the territory from NSW.

1.50This is not enough to tackle this problem without action to stop the horses coming into the ACT, given the NSW feral horse population will double in the next five years without urgent action.

Innovative thinking is needed

1.51There are no easy solutions to the problem of feral horses in the Australian Alps. The population has been left to multiply, and this will continue to increase exponentially over time without action. Without significant amendments to the control methods permitted by the NSW Government, including the introduction of aerial shooting, rangers are fighting a losing battle.

1.52Even with aerial shooting, and even if NSW is able to meet its legislated reduction target of 3,000 horses remaining in the next four years, the job is enormous.

1.53Making the task more difficult, the committee heard that feral horses have spread from national parks onto adjoining land, including state forests, causing significant costs to landholders to construct fencing and repair damaged landscapes, as discussed above. Feral horse populations in NSW state forests adjacent to KNP could move between state forests and KNP, increasing the overall population.

1.54Further work is needed to determine the best management practices that will control population numbers in areas adjoining KNP and prevent further feral horse incursions into the park.

1.55The NSW Government should urgently repeal the Kosciuszko Wild Horse Heritage Act 2018, which has been identified as presenting the biggest threat to the Australian Alps.

1.56The NSW and Victorian governments should adopt the ACT Government’s zero-tolerance approach to feral horse management, to ensure that the Australian Alps are not further destroyed by feral horses.

1.57The Australian Government should provide immediate and ongoing funding to the ACT Government in order to allow the work of feral horse monitoring and management to continue, for as long feral horses persist in Kosciuszko National Park.

1.58Section 523 of the EPBC Act should be amended to add "the failure to act", as a definition of ‘action’, where the result of that failure is likely or be known to have a significant impact on a matter of national environment significant.

Senator David Pocock

Participating Member

Footnotes

[1]Dr Ian Cresswell, Dr Terri Janke and Professor Emma Johnston, State of the Environment Report 2021 – Overview, pp. 56–65.

[2]Dr Ian Cresswell, Dr Terri Janke and Professor Emma Johnston, State of the Environment Report 2021 – Land, pp. 25–27.

[3]NSW Government, Climate change impacts on our alpine areas.

[4]Professor Christopher Johnson, Member, Threatened Species Scientific Committee, Proof Committee Hansard, 7 September 2023, p. 3.

[5]Dr Arn Tolsma and Dr James Shannon, Arthur Rylah Institute, Assessing the Impacts of Feral Horses on the Bogong High Plains, Victoria: Final Report, 2018, p. 1.

[6]Dr Arn Tolsma and Dr James Shannon, Arthur Rylah Institute, Assessing the Impacts of Feral Horses on the Bogong High Plains, Victoria: Final Report, 2018, p. 25.

[7]Dr Arn Tolsma and Dr James Shannon, Arthur Rylah Institute, Assessing the Impacts of Feral Horses on the Bogong High Plains, Victoria: Final Report, 2018, p. 25.

[8]Honorary Associate Professor Richard Swain, Indigenous Ambassador, Invasive Species Council, Proof Committee Hansard, p. 20.

[9]Threatened Species Scientific Committee, Submission 19, p. 1.

[10]Agriculture Victoria, What is pugging.

[11]Deakin University, Submission 25, p. 3.

[12]DCCEEW, Submission 23, p.11.

[13]South Endeavour Trust, Submission 41.

[14]Mr James Blackwell, Proof Committee Hansard, 23 August 2023, p. 21.

[15]Department of Climate Change, Energy, the Environment and Water (DCCEEW), Submission 23, p.8.

[16]EPBC Regulations, Regulation 10.01E.

[17]Mr James Blackwell, Submission 82, p, 4.

[18]Atlas of Living Australia, Australian Alps.

[19]Fenner School of Environment and Society, answers to questions on notice, 7 September 2023 (received 14 September 2023).

[20]Ms Renee Hartley, Fenner School of Environment and Society, Proof Committee Hansard, 7September 2023, p. 3.

[21]Ms Renee Hartley, PhD Scholar, Fenner School of Environment and Society, Proof Committee Hansard, 7September 2023, p. 3.

[22]Professor Don Driscoll, Professor of Terrestrial Ecology, Deakin University, Proof Committee Hansard, 7September 2023, p. 7.

[23]Professor Graeme Samuel AC, Independent Review of the EPBC Act – Final Report, 2020, p. 44.

[24]Subsection. 70(1), EPBC Act. If the Minister thinks that a state or agency of a state is proposing to take a controlled action, the Minister may request that the proposed action be referred.

[25]Section. 524, EPBC Act.

[26]National Parks and Wildlife Service, Kosciuszko National Park Wild Horse Heritage Management Plan, 2021, p. 14.

[27]Mr James Barker, Branch Head, World and National Heritage Branch, DCCEEW, Proof Committee Hansard, 23 August 2023, p. 36.

[28]Mr James Barker, Branch Head, World and National Heritage Branch, DCCEEW, Proof Committee Hansard, 23 August 2023, p. 36.

[29]Correspondence from the Hon Sussan Ley MP to the Hon Matt Kean MP, MS21-000806, 17June2021.

[30]Deakin University, Submission 25, p. 6.

[31]Deakin University, Submission 25, p. 6.

[32]MDBA, Murrumbidgee.

[33]ACT Government, Submission 83, p 2.

[34]ACT Government, answers to questions on notice, 23 August 2023 (received 1 September 2023).