Chapter 1 Introduction
1.4 Thesis structure
This thesis answers the research questions in three distinct stages, as set out in Figure 1.1. This section outlines how these three thesis stages contribute to answering the research questions.
Part 1 establishes the research context for this research. Chapter 2 introduces the research paradigm, methodology and research methods that have been adopted for this research. It argues that law and policy, including for biodiversity conservation, form part of an often messy framework of institutions, communities and individuals.87 This research uses both
qualitative and legal doctrinal research methods, taking a ‘socio-legal’ approach to addressing the broad research objectives. Qualitative research is used to supplement doctrinal approaches, providing a useful means to explore the varied experiences of key stakeholders, including of the practical operation of conservation law and policy.88
86 Eg Craig, Robin Kundis et al, ‘Balancing stability and flexibility in adaptive governance: an analysis of
tools available in U.S. environmental law’ (2017) 22(2) Ecology and Society 3; Camacho Alejandro E, ‘Transforming the means and ends of natural resources management’ (2011) 89 North Carolina Law Review 1405; Arnold, Craig Anthony (Tony) and Lance H Gunderson, ‘Adaptive law’ in Garmestani Ahjond S and Craig R Allen (eds), Social-ecological resilience and law (Columbia University Press, 2014).
87 This ‘mess’ includes political, social and cultural assumptions evident in social research but often ignored
in traditional legal research approaches, see generally Law J, ‘After method: an introduction’, in Law J (ed) After method: mess in social science research (Routledge, 2004) 1.
88 Merriam S, ‘Introduction to Qualitative Research’ in Merriam S (ed) Qualitative research in practice:
Figure 1.1 Structure of the thesis, identifying how each chapter contributes to answering the research questions
Having identified the adaptation strategies that frame the remainder of the thesis, Chapter 3 synthesises the scientific scholarship on biodiversity conservation and adaptation, and recommendations in the literature for each of the adaptation strategies. Chapter 3
highlights the most important characteristics of each adaptation strategy, and underpins the detailed, legal analyses in Part 3.
Part 2 ‘steps back’ from the conservation literature to assess the general capacity of legal frameworks for conservation to facilitate climate adaptation. Chapter 4, the only chapter in Part 2, establishes the legal context for the remainder of the thesis in two distinct ways. First, it provides a broad perspective on the ‘climate-readiness’ of legal frameworks for conservation in Australia. It investigates the expression of conservation goals in law, as a prerequisite for effective implementation of the adaptation strategies. It analyses direct legal priorities expressed in objects clauses, and indirect priorities expressed in regulations, guidelines, funding and practice. The results of this analysis reveal what is, perhaps, the
most challenging issue for reorienting conservation laws to promote adaptation: a fundamental question about what the law currently does – and what it should in future – seek to achieve through conservation law and practice. Legal objects clauses are intended to represent what society actually values from biodiversity but the answer to the question of ‘what is valued’, is far from certain under current conditions, let alone in a context of rapid environmental change.89 Chapter 4 proposes new ways of thinking about these goals, and of expressing adaptation-oriented goals in conservation laws.
The second ‘contextual’ role played by Chapter 4 is to develop a series of three legal design principles. These principles advocate laws that: (1) embody proactive conservation approaches; (2) improve legal flexibility without reducing accountability; and (3) prioritise adaptive management for biodiversity conservation. These three design principles are used to frame a doctrinal analysis of the laws and policies that implement the adaptation
strategies. They are also used in this thesis to inform recommendations for legal reform, to enhance the representation and adaptation-orientation of conservation laws for each climate adaptation strategy.
Part 3 is made up of thesis Chapters 5 to 8, which consider each of the key strategies for facilitating biodiversity adaptation under climate change.90 The adaptation strategies are to:
increase the number, size and diversity of protected areas and enhance protected area networks to improve representation, replication and resilience (‘protected area strategy’);
protect movement corridors, stepping stones and refugia, and create and manage buffer zones around reserves; and improve the matrix by increasing broader landscape connectivity and landscape permeability to species movement (‘connectivity strategy’);
89 Eg is it particular species, ecological communities or ecosystems, or aesthetics, familiarity, economic
values, spirituality, or – more likely – a complex and fluid combination of these? For more on this challenge, see Dunlop Michael et al, ‘Climate-ready conservation objectives: a scoping study’ (National Climate Change Adaptation Research Facility, 2013).
90 As identified in two meta-reviews of published conservation science, Heller and Zavaleta, above n 25,
which reviewed 22 years of international adaptation literature to identify and rank biodiversity conservation strategies for climate adaptation; Mawdsley, O'Malley and Ojima, above n 25, which reviewed literature and adaptation planning developed in the US, England, Mexico, Canada and South Africa.
reduce stressors and threats to biodiversity from sources other than climate change, both within and beyond protected areas (‘non-climatic stressors strategy’);
translocating organisms91 at risk of extinction (together with the next strategy, ‘ex
situ strategy’); and
engage more proactively with ex situ conservation, including by establishing captive breeding programs and captive populations of species that would otherwise become extinct (together with the strategy above, ‘ex situ strategy’).92
Part 3 presents a substantive analysis of the implementation of each of these adaptation strategies in Australian law. The protected area strategy is the subject of two chapters because the legal framework for increasing the protected area estate is quite distinct – in law and practice – from the process of enhancing the adaptive capacity of existing protected areas through their management and the use and management of neighbouring land. These two components of the protected area strategy are analysed separately in Chapters 5 and 6, respectively.
Chapter 7 investigates the adaptation strategy of reducing or removing the effect of non-climatic stressors on biodiversity, to maximise ecological resilience and adaptive capacity. Legal frameworks for addressing non-climatic stressors include weed and pest animal strategies and legislative controls; biosecurity and quarantine arrangements; native vegetation clearing controls; and threat abatement listing and planning tools. Chapter 7 focuses on laws and policies for land clearing and invasive species, which are the two most significant non-climatic stressors for Australian biodiversity.
The ex situ strategy covers a range of conservation approaches, from supplementing species populations with genetically diverse individuals to increase the population’s
91 The term ‘organism’ is defined as ‘a species, subspecies or lower taxon, and includes any part, gametes,
seeds, eggs, or propagules of such species that might survive and subsequently reproduce’, International Union for the Conservation of Nature (‘IUCN’)/Species Survival Commission, Guidelines for
reintroductions and other conservation translocations: version 1.0 (IUCN, 2013) (‘IUCN Guidelines 2013’) 1.
92 Heller and Zavaleta, above n 25, 25; Mawdsley, O'Malley and Ojima, above n 25, 1087; scientific
scholarship often separates the second strategy into two, distinguishing movement corridors and stepping stones from improving matrix permeability but, given the similarities in the applicable law and policy, these have been combined in this research in the connectivity strategy.
adaptive capacity through to preserving species populations in zoological and botanical gardens, aquaria, and their genetic material in seed and gene banks. Given the breadth of legal issues that arise in these very different conservation contexts, Chapter 8 focuses specifically on conservation introductions. Conservation introductions involve introducing an organism, such as a species, population or ecological community, outside of the area in which it is defined as native (its ‘historical distribution’), for a conservation purpose.93
Conservation introductions are both an ex situ form of translocation,94 and a particularly controversial but increasingly important strategy for adaptation.95
Analysis of the connectivity strategy is integrated into each of Chapters 5 to 8. This approach highlights overlaps in the laws, policies and theoretical and practical challenges to implement the connectivity strategy and each of the other adaptation strategies.96 Chapter 9 then concludes this thesis, summarising the results for each of the research questions and demonstrating the substantial and novel contribution that this thesis makes to the climate adaptation and biodiversity conservation legal scholarship.
This thesis does not argue that each strategy will promote biodiversity adaptation
effectively in every context. Some of these strategies remain deeply contested, particularly introducing species and ecological assemblages outside their native range.97 However, the
adaptation strategies present useful and well-recognised examples of adaptation-oriented interventions for biodiversity which have been recommended for implementation and, by implication, for promotion through legal frameworks. The adaptation strategies are a useful frame for analysing the way that conservation law can promote biodiversity adaptation because they are diverse, ranging from relatively low-cost and low-information-needs strategies, such as increasing and enhancing the protected area estate, through to high-cost,
93 IUCN Guidelines 2013, above n 91, viii.
94 And therefore relevant to both the fourth and fifth adaptation strategies. 95 Further justification of this decision is set out in Chapter 3, Section 3.3.4. 96 For a detailed justification of this approach, see Chapter 2, Section 2.4.1.
97 Eg Ricciardi, A and D Simberloff, ‘Assisted colonization is not a viable conservation strategy’ (2009)
24(5) Trends Ecol Evol 248; and see Haddad, Nick M et al, ‘Potential negative ecological effects of corridors’ (2014) 28(5) Conserv Biol 1178.
high-intervention and species- or even population-specific strategies such as managed relocation.98
Finally, climate change is not the only, nor currently the most significant, threat for many species, ecological communities and ecosystems in Australia.99 Challenges for biodiversity other than climate change have been the subject of substantial research interest, and
include a lack of political will,100 insufficient conservation funding,101 and human consumption and population trends.102 This thesis argues that alongside responses to existing environmental challenges, Australian laws must also prepare for the future. In particular, conservation laws must facilitate adaptation in parallel with laws to address existing threats, to minimise the catastrophic biodiversity losses that would otherwise be inevitable. As climate change increases in pace, scale and interaction with other
biodiversity stressors, current conservation efforts will be wasted unless concerted, ambitious management interventions can also facilitate biodiversity adaptation.103
98 Chapter 3, Figure 3.1.
99 Steffen et al, above n 12; SotE 2016, above n 11.
100 Debus, B, ‘All living things are diminished: breaking the national consensus on the environment’ (The
Whitlam Institute, University of Western Sydney, 2014); Measham, Thomas G et al, ‘Adapting to climate change through local municipal planning: barriers and challenges’ (2011) 16(8) Mitigation and Adaptation Strategies for Global Change 889; Dovers Stephen R and Adnan A Hezri, ‘Institutions and policy processes: the means to the ends of adaptation’ (2010) 1(2) Wiley Interdisciplinary Reviews: Climate Change 212.
101 Waldron, above n 16; Watson, JE et al, ‘The performance and potential of protected areas’ (2014)
515(7525) Nature 67.
102 Eg Butchart, above n 10; Holdren, JP and PR Ehrlich, ‘Human population and the global environment’
(1974) 62 Am. Sci. 282; Cincotta, RP, J Wisnewski and R Engelman, ‘Human population in the biodiversity hotspots’ (2000) 404 Nature 990.
103 Eg Steffen, W et al, ‘Sustainability and planetary boundaries: guiding human development on a changing