Law as a 'threatening process' to native fauna: an evaluation of the responsibility of the Game Laws and their successors for the decline in the native fauna of Australia and the statutory measures taken to address this decline

Abstract

Our society is beset by many problems, not least of which are those concerning the environment. The extinction of species of flora and fauna is one topical problem. The environmental, or ecological, 'crisis' is invariably considered as a consequence of the application of science and technology to nature; science and technology are also relied upon to redress this crisis. This preoccupation has tended to overlook what other forces in society constitute protagonists in the exploitation and manipulation of nature. Another force that reflects mankind's attitude towards nature, an attitude characterised by the dominion of nature, is law. This thesis examines the role of law as both a cause of, and a solution to, the ecological crisis in relation to the native fauna of Australia. The legislation applicable to native fauna was called the 'game laws' in the Colonial era, but the term 'game' carne to be superseded by other terms, such as animals, fauna and wildlife. From the beginning, this genre of legislation purported to 'protect' native fauna. While today this term might be understood to mean conservation or preservation, this was not always the case. Indeed, certain actions permitted by this legislation, and certain actions not dealt with by it, did anything but protect native fauna. The view is taken in this thesis that these statutes constituted a 'threatening process' to native fauna. This thesis necessarily involves an interdisciplinary approach. To set it in context, Part I (chapters one and two) provides historical and scientific information. There is an historical sketch of the changes that have occurred to the species of native fauna and some of the key causes responsible for these changes. The significance of these changes from a scientific view is considered by examining the ecological implications and what role science and technology have in overcoming the ecological problems. Part II (chapters three and four) provides a theoretical framework by which to understand how law is a manifestation of mankind's attitude towards nature. Part III (chapter five) includes an outline of the English game laws, so as to exemplify the theory presented in Part II and to provide a basis for understanding the legislation enacted in the Australian jurisdictions. Part IV (chapters six to twelve) is the major part of this thesis. It contains an analysis of the key types of provisions of this genre of legislation in terms of why they were enacted and what they were intended to achieve. The discussion of these provisions during the Parliamentary debates is drawn upon to facilitate an understanding of why the provisions were enacted. The critical aspect of this analysis is to discern any change in attitude towards native fauna demonstrated by this legislation during the period under review, that is, from the 1860's to the 1990's. The conclusion (chapter thirteen) is both retrospective and prospective. The retrospective part reviews why law cannot recognize the intrinsic value of nature, and it indicates how this legislation contributed to the decline in native fauna. The prospective part indicates what measures began to emerge that sought to reverse the decline in native fauna, especially in the legislation from the 1970's. There is also a proposed bill, which contains the essential provisions that should be contained in a statute concerning native fauna and their natural habitat.