Abstract
Soil conservation legislation was first introduced in Australia over 80 years ago. It was one of the first areas of natural resource law and remained prominent until the 1980s. Australia is a federation of a national government, six state and two territory governments (i.e. nine jurisdictions). Legislatively, soil conservation is a state responsibility, and although the Australian Constitution 1900 does not provide specifically for the natural environment, this has not prevented the Commonwealth from taking a comprehensive and active leadership in soil conservation, from a strategic perspective and providing financial resources. At the state level, seven of the eight jurisdictions had some form of soil conservation law until the 1980s. The major types of land degradation the legislation seeks to control are soil erosion, soil salinity, soil acidity, soil contamination, nutrient loss and soil structure decline. By 2018, only five states retained a specialist soil conservation law. In the 20 years between 1980 and 2000, the activity of soil conservation was increasingly viewed as a major ecological issue in Australia and was integrated within comprehensive environmental law systems. Using the standard Australian definition of soil conservation as a guide to which of the consolidated laws relate to that definition, it indicates that there are around 200 individual laws in Australia that play a role in the implementation of soil conservation. These laws are categorised into three separate categories according to the level they contribute to achieving the objective of soil conservation. The first category includes specialized soil conservation laws; the second category includes the main supporting laws, and the third category includes the general supporting laws.
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Notes
- 1.
Australia State of the Environment 1996 and 2006. These reports describe the various forms of land degradation in Australia, their extent and, where data is available, trends.
- 2.
In this chapter a reference to “states” means the six state and two territory governments of the Australian mainland. The difference between Australian states and territories lies in the governing powers of the states and territories. Australia is a huge country and a continent in itself. It is referred to as a Commonwealth of Australia being a union of 6 states and the two territories (in total there are 10 Australian territories). This division between states and territories has been done for administrative convenience. Australian states came into existence even before the federal government came into power, and these states have their powers protected in Australian constitution. Territories are under the direct control of the federal government, and parliament has powers to legislate for territories while it cannot legislate for states.
- 3.
The Commonwealth of Australia Constitution Act 1900.
- 4.
The Commonwealth of Australia is the official name for Australia, which is a nation occupying the whole of the Australian continent; Aboriginal tribes are thought to have migrated from south-eastern Asia over 20,000 years ago; first Europeans were British convicts sent there as a penal colony. The Federation of Australia was the process by which the six separate British self-governing colonies of Queensland, New South Wales, Victoria, Tasmania, South Australia, and Western Australia agreed to unite and form the Commonwealth of Australia, establishing a system of federalism in Australia.
- 5.
Hannam (2006).
- 6.
The consolidated acts in the nine jurisdictions in the Australian Legal Institute database “austlii” were interrogated.
- 7.
It should be noted that various laws under the three categories play a role in controlling soil degradation which occurs from urbanisation and industrial uses.
- 8.
Bates (2016).
- 9.
Bates (2016).
- 10.
The Future We Want, UN Doc A/66/L 56.
- 11.
Houghton and Charman (1986), p. 116.
- 12.
E.g. see reference in Preamble to the New South Wales Soil Conservation Act 1938 as “an Act to make provision for the conservation of soil resources and farm water resources and for the mitigation of erosion”; under Section 4 of the Western Australian Soil and Land Conservation Act 1945 “soil conservation” means the application to land of cultural, vegetation and land management measures, either singly or in combination, to attain and maintain an appropriate level of land use and stability of that land in perpetuity and includes the use of measures to prevent or mitigate the effects of land degradation; under Section 3 of the Northern Territory Soil Conservation and Land Utilization Act 1980 “soil conservation treatment” means structural or agronomic work for the purpose of the conservation of soil or reclamation of land.
- 13.
New South Wales Soil Conservation Act 1938 Section 3, reference to “works” as (a) works necessary for the conservation of soil or the mitigation of erosion and any operations incidental thereto, or (b) works necessary for the conservation of water resources or the provision or improvement of the water supply to farming lands for domestic or stock purposes”; under Section 6 of the Queensland Soil Conservation Act 1986, “soil conservation measures” means works, land management practices, undertakings, acts, proposals, prohibitions and things designed, carried out, enforced or proposed to be carried out or enforced pursuant to this Act for the purpose of soil conservation or controlling or directing run-off water flow.
- 14.
- 15.
Bradsen (1988).
- 16.
Breckwoldt (1988).
- 17.
Hannam (2003), pp. 112–115.
- 18.
Australia (1978a) Report 1; Report 14.
- 19.
Australia (1978b), Report 1 Chapter 4, Land degradation assessment.
- 20.
Australian Soil Conservation Council (1989).
- 21.
Australia (1983).
- 22.
Australia (1989).
- 23.
Australia (1992b).
- 24.
Australia (1992a).
- 25.
Includes the Environment Protection Act 1997 and the Planning and Development Act 2007.
- 26.
E.g. the Environment Protection and Biodiversity Conservation Act 1999 at the Commonwealth level; see Hannam and Boer (2004) for a detailed discussion on essential elements for soil legislation.
- 27.
The Natural Heritage Trust was set up by the Australian Government in 1997 to help restore and conserve Australia’s environment and natural resources. Since then, considerable numbers of community groups and organizations have received funding for environmental and natural resource management projects. The Natural Heritage Trust ceased to operate on 30 June 2008. Its function was included in the work of the ‘Caring for our Country’ funding program. Caring for our Country was an initiative that offered multi-year funding to provide certainty for stakeholders. The Australian Government announced that Caring for our Country would be combined with the National Landcare Programme in 2013. The National Landcare Programme is continuing to deliver upon initiatives that were in place before 1 July 2014. The delivery of the second phase of ‘Caring for our Country’ (2013–2018) was through two specific streams, Sustainable Environment and Sustainable Agriculture. The Sustainable Environment stream aimed to ensure Australia’s national environmental assets are conserved, resilient and healthy. The Environment Protection and Biodiversity Conservation Act 1999 focuses Australian Government interests on the protection of matters of national environmental significance—nationally and internationally important flora, fauna, ecological communities and heritage. Caring for our Country investment under the strategic objectives was guided by these legislative responsibilities. The Sustainable Agriculture stream was delivered in the context of other major government policies and initiatives including the National Food Plan, the Intergovernmental Agreement on Biosecurity, the Carbon Farming Initiative, drought policy reform and the National Volunteer Strategy.
- 28.
The National Landcare Program is a key part of the Australian Government’s commitment to protect and conserve Australia’s water, soil, plants, animals and ecosystems, as well as support the productive and sustainable use of these valuable resources.
- 29.
The Australian Natural Resources Atlas was developed by the National Land and Water Resources Audit to provide online access to information to support natural resource management. The Atlas was managed and maintained within the Department of the Environment, Water, Heritage and the Arts. The Atlas comprises a number of tools and information on Australia’s natural resources.
- 30.
E.g. Commonwealth—Department of Agriculture and Water Resources and Department of the Environment, Water, Heritage and the Arts; Victoria—Department of Environment, Land, Water and Planning; New South Wales—Office of Environment and Heritage, Department of Primary Industries, Local Land Services; Western Australia—Department of Environment and Conservation; Queensland—Department of Natural Resources, Mines and Energy, Department of Agriculture and Fisheries.
- 31.
Martin (2017), p. 34 suggests that ‘any policy that depends on substantial government investment must be considered to have a limited chance of being successfully adopted. A return to the golden age of public investment in soils governance, much as it might be desired, seems unlikely for economic reasons.’
- 32.
Graham (1992), p. 205.
- 33.
The Australian Soil Resource Information System provides access to information and data products for a number of themes. Themes are developed to assist users to quickly view data of a topic of interest without having to negotiate the many data layers on the ASRIS maps page. Nutrient Management, Atlas of Australian Soils, Physiographic Regions of Australia, Acid Sulfate Soils and Crop Modelling are available.
- 34.
The 1989 law was repealed and the soil and water conservation provisions were replaced by the introduction of the Natural Resources Management Act 2004.
- 35.
E.g. the New South Wales Local Land Services Act 2013; Section 36 provides for the preparation of the state strategic plan which sets the vision, priorities and overarching strategy for local land services in the state, with a focus on appropriate economic, social and environmental outcomes.
- 36.
See Amalgamated Society of Engineers v Adel SS Co Ltd (1920) 28 CLR 129, Uther v Federal Commissioner of Taxation [1947] 74 CLR 508.
- 37.
- 38.
- 39.
Bradsen (1988), p. 133.
- 40.
Section 528 of the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 defines “environment as including (a) ecosystems and their constituent parts, including people and communities; and (b) natural and physical resources; and (c) the qualities and characteristics of locations, places and areas; and (d) heritage values of places; and (e) the social, economic and cultural aspects of a thing mentioned in paragraph (a), (b), (c) or (d).
- 41.
Hannam and Boer (2004); Commonwealth Environment Protection and Biodiversity Conservation Act 1999, Carbon Credits (Carbon Farming Initiative) Act 2011, Climate Change Authority Act 2011.
- 42.
Collaborative Study (1978a) Report 3 Towards a National Approach to Land Resource Appraisal; Report 12, A Register of Current Australian Soil Conservation Research.
- 43.
E.g. Commonwealth Natural Resources Management (Financial Assistance) Act 1992.
- 44.
The Constitution Section 51(2).
- 45.
The Constitution Section 51(3).
- 46.
Collaborative Study (1978a) Report 1, A Basis for Soil Conservation Policy in Australia.
- 47.
The respective laws in the three categories contain legal rules (a rule externally compels a person, through force, threat or punishment, to do the things that the respective governments have deemed good or right in terms of soil conservation) and principles (to motivate people to do the things that seem good and right in terms of soil conservation. Further, various laws provide for the development of programs (a plan, action or schedule of activities, procedures, etc., to be followed that will achieve soil conservation).
- 48.
Original table was from Hannam (2006) but updated in 2018.
- 49.
Queensland Soil Conservation Act 1986; New South Wales Soil Conservation Act 1938; Western Australian Soil and Land Conservation Act 1945; Northern Territory Soil Conservation and Land Utilisation Act 1980.
- 50.
The current system of integrated natural resource law is very human resource efficient for Australia, a large country with a small population base, as it enables groups of natural resource specialists to work closely together to identify and solve natural ecosystem management problems which are characterised by complex and multidisciplinary environmental issues. Concomitant with the evolution of integrated natural resources management law has been the reorganisation of government institutions—moving from the individual specialist institutions of the past, to fewer integrated multi-function environmental institutions with a wide range of scientific, ecological, economic, sociological and technical expertise.
- 51.
E.g. at the Commonwealth level it is the Environment Protection and Biodiversity Conservation Act 1999.
- 52.
One exception was the implementation of forestry, soil conservation and water conservation in New South Wales under the Conservation Authority Act 1949, where the Conservation Authority of New South Wales had powers, authorities, duties and functions to coordinate the activities of the three agencies.
- 53.
Under Section 3 of the Victorian Catchment and Land Protection Act 1994 the meaning of “land” includes soil, water, vegetation and fauna on land.
- 54.
This law operates jointly with the Western Australia Soil and Land Conservation Act 1945.
- 55.
South Australia introduced a Sand Drift Act in 1923, followed by the Soil Conservation Act in 1939, the Soil Conservation and Land Care Act in 1989 (in conjunction with the Pastoral Land Management and Conservation Act of 1989), and finally, the Natural Resources Management Act 2004.
- 56.
Under Section 3 of this law, “natural resource management” means management of any activity that uses, develops or conserves (a) air, water, land, plants, animals and micro-organisms; and (b) the systems they form; under Schedule 1 of this law, the objectives of the resource management and planning system is to provide for the fair, orderly and sustainable use and development of air, land and water.
- 57.
Hannam (2006), the objectives of each individual law in Category 3 are summarised in Appendix 2.
- 58.
- 59.
Australia (1992a).
- 60.
- 61.
This term is widely used in the principal laws.
- 62.
E.g. Section 7 South Australia Natural Resources Management Act 2004; Section 7 Tasmania Natural Resource Management Act 2002.
- 63.
Hannam (2006), the objectives of each individual law in Category 2 are summarized in Appendix 2.
- 64.
Under Section 11(c), the Climate Change Authority can conduct research about matters relating to climate change. Further, under the Carbon Credits (Carbon Farming Initiative) Act (2011), and Section 3 (2). The first object of this Act is to remove greenhouse gases from the atmosphere, and avoid emissions of greenhouse gases, in order to meet Australia’s obligations under any or all of the following: (a) the Climate Change Convention; (b) the Kyoto Protocol; (c) an international agreement (if any) that is the successor (whether immediate or otherwise) to the Kyoto Protocol. (3) The second object of this Act is to create incentives for people to carry on certain offsets projects. (4) The third object of this Act is to increase carbon abatement in a manner that: (a) is consistent with the protection of Australia’s natural environment; and (b) improves resilience to the effects of climate change.
- 65.
The Commonwealth Environment Protection and Biodiversity Conservation Act 1999 introduce into Australian law many aspects of key global treaties, including the 1992 Biological Diversity Convention; 1992 United Nations Framework Convention for Climate Change, 1995 United Nations Convention to Combat Desertification; Note, “biological diversity” is defined in various state laws e.g. in Section 10 of the Queensland Nature Conservation Act 1992 it is defined as (1) ‘the natural diversity of native wildlife, together with the environmental conditions necessary for their survival, and includes (a) regional diversity, that is, the diversity of the landscape components of a region, and the functional relationships that affect environmental conditions within ecosystems; and (b) ecosystem diversity, that is, the diversity of the different types of communities formed by living organisms and the relations between them; and (c) species diversity, that is, the diversity of species; and (d) genetic diversity, that is, the diversity of genes within each species’. Section 10(2) specifies that ‘in subsection (1) landscape components includes landforms, soils, water, climate, wildlife and land uses’.
- 66.
Hannam and Boer (2004) Section II, International principles for drafting national soil legislation, p. 21.
- 67.
Environmental protection is defined under Section 15, sustainable agriculture is defined under Section 16, and natural resources management is defined under Section 17 of the Natural Heritage Trust of Australia Act 1997.
- 68.
Section 1.3 the purpose of this Act is to maintain a healthy, productive and resilient environment for the greatest well-being of the community, now and into the future, consistent with the principles of ecologically sustainable development (described in Section 6(2) of the Protection of the Environment Administration Act 1991).
- 69.
Under Section 1.3(c) the object is to require environmental, social, cultural heritage and economic considerations to be taken into account in decision-making about Crown land.
- 70.
E.g. the functions of Local Services Boards formed under Section 26 of the New South Wales Local Land Services Act 2013, is ‘to determine the general policies and strategic direction of Local Land Services’ (Section 4). Under Section 4(1) ‘local land services’, means programs and advisory services associated with agricultural production, biosecurity, natural resource management and emergency management, including programs and advisory services associated with the following: (a) agricultural production, (b) biosecurity, including animal pest and disease and plant pest and disease prevention, management, control and eradication, (c) preparedness, response and recovery for animal pest and disease and plant pest and disease emergencies and other emergencies impacting on primary production or animal health and safety, (d) animal welfare, (e) chemical residue prevention, management and control, (f) natural resource management and planning, (g) travelling stock reserves and stock watering places, (h) control and movement of stock, (i) related services and programs.
- 71.
Section 3; under Section 5, “natural resource management” extends to the following matters relating to the management of natural resources: (a) water, (b) native vegetation, (c) salinity, (d) soil, (e) biodiversity.
- 72.
Section 13.
- 73.
Section 15.
- 74.
Hannam (2006), the objectives of each individual law in Category 3 are summarized in Appendix 2.
- 75.
Section 3(1).
- 76.
Section 3(2).
- 77.
Section 3.
- 78.
By definition, mining is an activity that requires approval under State Environmental Planning and Assessment laws and Environment Protection laws. A major consideration in assessment is the potential for protection of significant ecological values and successful land rehabilitation.
- 79.
E.g. see Section 6 Western Australia Mining Act 1978.
- 80.
Section 3(a)-(f); Part 3 Environmental obligations.
- 81.
Objects of the Act, Section 3; the principles of ecologically sustainable development as described by Section 6(2) of the Protection of the Environment Administration Act 1991.
- 82.
Part 4 of the Act, Dispute Resolution and Remedies.
References
Australia (1978a) A Basis for Soil Conservation Policy in Australia, Commonwealth and State Government Collaborative Soil Conservation Study 1975–1977, Report 1. Department of Environment, Housing and Community Development
Australia (1978b) A Basis for Soil Conservation Policy in Australia, Commonwealth and State Government Collaborative Soil Conservation Study 1975–1977, Report 14, Legislative, Administrative and Financial Arrangement Affecting Soil Conservation. Department of Environment, Housing and Community Development
Australia (1983) National Conservation Strategy for Australia, Living Resource Conservation for Sustainable Development. Australian Government Publishing Service, Canberra
Australia (1984) Land use policy in Australia, Senate Standing Committee on Science, Technology and the Environment. Australian Government Publishing Service, Canberra
Australia (1989) The effectiveness of land degradation policies and programs, report of the house of representatives standing committee on environment, recreation and the arts. Australian Government Publishing Service, Canberra
Australia (1992a) Intergovernmental Agreement on the Environment
Australia (1992b) National strategy for ecologically sustainable development. Australian Government Publishing Service, Canberra
Australian Soil Conservation Council (1989) National Soil Conservation Strategy. Department of Primary Industries and Energy, Canberra
Bates G (2016) Environmental law in Australia. Butterworth’s
Bradsen JR (1988) Soil conservation legislation in Australia, report for the National Soil Conservation Program. University of Adelaide
Breckwoldt R (1988) The dirt doctors, a jubilee history of the soil conservation service of NSW. Soil Conservation Service of NSW
Downes RG (1970) Soil conservation law in Australia. Soil Conservation Authority, Victoria
Graham OP (1992) Survey of land degradation in New South Wales, Australia. J Environ Manage 2:205
Hannam ID (2000) Soil conservation policies in Australia: successes, failures, and requirements for ecologically sustainable policy. In: Napier TL, Napier SM, Tvrdon J (eds) Soil and water conservation policies and programs: successes and failures. Soil and Water Conservation Society, CRC Press, New York
Hannam ID (2003) Soil conservation in Australia. J Soil Water Conserv 58(6):112A–115A
Hannam (2006) Soil and Water Conservation Law in Australia, Technical Assistance to the People’s Republic of China for the Implementation of the National Strategy for Soil and Water Conservation, TA 4404. Asian Development Bank
Hannam ID, Boer BW (2002) Legal and institutional frameworks for sustainable soils, a preliminary report. IUCN, Gland, Switzerland and Cambridge, UK, 88 p
Hannam ID, Boer BW (2004) Drafting legislation for sustainable soils: a guide. IUCN, Gland, Switzerland and Cambridge, UK
Houghton PD, Charman PEV (1986) Glossary of terms used in soil conservation. Soil Conservation Service of New South Wales
Martin P (2017) Soils governance, an Australian perspective. In: Ginzky H et al (eds) International Yearbook of Soil Law and Policy 2016. Springer International Publishing
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Hannam, I. (2020). Soil Legislation in Australia. In: Yahyah, H., Ginzky, H., Kasimbazi, E., Kibugi, R., Ruppel, O. (eds) Legal Instruments for Sustainable Soil Management in Africa. International Yearbook of Soil Law and Policy(). Springer, Cham. https://doi.org/10.1007/978-3-030-36004-7_10
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