Bright lines on fuzzy boundaries? How the law of New South Wales deals with the existence and extent of endangered ecological communities

Endangered ecological communities are described in final determinations made under the Threatened Species Conservation Act 1995 (TSC Act). The boundaries of ecological communities usually involve ecotones, with a gradual transition from one community to another. Especially in the case of high-level communities with wide geographical and climatic distributions, in the vicinity of any location, many species mentioned in final determinations may not be present, leading to debate as to whether the community exists on a site or not. In nature, there are often no bright lines or clear delineations. The law is a logical system of rules which operate upon people, objects or events. It has developed a system of procedural rules to aid decision-making. These rules have not been developed in ecological or environmental contexts. Nevertheless, they apply to the interpretation and application of final determinations made under the TSC Act. The TSC Act, National Parks and Wildlife Act 1974 (NPW Act) and Environmental Planning and Assessment Act 1979 (EP&A Act) have adopted as their objects a number of cardinal principles of environmental and ecological management, including the precautionary principle and principles of conservation of biological diversity, ecological integrity and ecologically sustainable development. Application of the ordinary procedural rules has meant that, where choices must be made concerning the interpretation and application of final determinations, interpretations which favour the advancement of these objects are to be preferred. In this manner, where decisions have to be made in a legal context concerning the extent and existence of endangered ecological communities, cardinal ecological principles influence the outcome of the choice. This paper examines three recent decisions of the Courts concerning the interpretation and application of final determinations under the TSC Act. In these cases, the Court has interpreted and applied the determinations so that their provisions achieve the result which will best give effect to the purpose and language of the TSC, NPW and EP&A Acts, including the adopted cardinal ecological principles, while maintaining the unity of the language in the determinations and avoiding inconsistency. In this search for the meaning which best maintains the unity of the language of the determinations, the Court has been careful to examine in detail and apply all of the relevant terms of the determinations, rather than apply a reductionist approach which attaches too much significance to one aspect at the expense of others.