McEwen, Graeme --- "The Challenge Posed by Feral Animals" [2007] ALRCRefJl 9; (2007) 91 Australian Law Reform Commission Reform Journal 30

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The challenge posed by feral animals

*By Graeme McEwen

The environment and animal movements have long agreed on the preservation of habitat for native wildlife. But they have never agreed on how to resolve the conflict which can arise between feral animals and the environment. It should now begin to be addressed.

Animal welfare and community concerns initially stem from current short-term methods of control (for example, poisoning, trapping, disease and aerial shooting). But with few natural predators or diseases, introduced animals can and do cause agricultural, environmental and other damage, and act as reservoirs of disease.

Increasing international focus on fertility control

In the last 20 years though, there has been an increasing focus internationally on fertility control as the major control method of feral animal populations. Afterall, exotic species have been introduced by design or through inadvertence in most parts of the world. Fertility control offers significant welfare benefits whilst honouring the objects of agricultural and environmental protection. This stands in stark contrast to the acute and widespread suffering caused by nearly all existing short-term control methods. In addition, fertility control techniques stand to be, or are, species-specific and capable of delivery on a continental scale. Plainly, the emphasis moves from the kill rate to the birth rate.

Immunocontraception is the process by which the immune system of an animal is induced to attack the reproductive cells of its own species, thus preventing the animal from breeding. Immunocontraceptive agents can be delivered as a vaccine in a disseminating system (ie viral or bacterial vectors), and/or a non-disseminating system (eg oral baits).¹ Where a vector is employed for distribution of a contraceptive agent, the process is known as virally-vectored immunocontraception.

National long-term strategy required

In short, such technology invokes the broader challenge to provide for humane, where possible non-lethal, long-term strategies, and thus, to not simply perpetuate the present short-term thinking on the basis of what is cheap and what is quick. This will require a national strategy with the necessary resources for a long-term focus, and the marshalling of expertise in a coordinated and unfragmented manner.

Local statutes

Relevant state and territory legislation can be readily ascertained .

In Victoria, for example, the protective reach of the Prevention of Cruelty to Animals Act 1986 does not extend to ‘pest’ animals. By s.6(1)(d) the Act provides that it does not apply to:

'(d) anything done in accordance with the Catchment and Land Protection Act 1994.'

One of the objects of the Catchment and Land Protection Act 1994 is to provide for the control of noxious weeds and pest animals: see s4. In summary, responsibility for prevention and management of pest animals resides with landowners.

The Act is administered by the Department of Primary Industries. By Part 8 of the Act four categories of ‘pest’ animals are proclaimed: prohibited (s 64), controlled (s 65), regulated (s66) and established (s67). Rabbits and foxes, for example, are declared as established pest animals across Victoria. Landholders may be and are directed by the Department’s Secretary to prevent their spread and, so far as possible, to eradicate them (see s.70B for example).

Further, s6.(1)(b), Prevention of Cruelty to Animals Act 1986 does not apply to inter alia the treatment, killing, hunting, shooting, catching or trapping of animals which is carried out in accordance with a code of practice (except to the extent it is necessary to rely upon a code of practice as a defence to an offence under the Act). Relevant codes of practice are the Code of Practice for the Use of Small Steel-Jawed Traps (2001) and the Code of Practice for the Welfare of Animals in Hunting (2001). Section 15 of the Act prohibits large steel-jawed traps, with exceptions for wild dog control in certain counties. In summary, the codes of practice do not address the central welfare issue of such traps, or for that matter, their non-discriminatory impact in trapping non-target animals.

Further, new national codes of practice are proposed for feral animals, namely feral cats, wild dogs, foxes, feral goats, feral pigs, feral horses; and rabbits.² Interestingly, in the draft model code of practice for each of feral pigs, foxes, feral horses and rabbits, fertility control is canvassed as a possible alternative control technique and, in respect of rabbits is noted as being '... seen as a preferred method of broad-scale rabbit control as it offers a potential humane and target specific alternative to lethal methods.'

That said, codes of practice of any kind usually favour the interests of producers over animal welfare where there is a conflict and thus set low welfare thresholds. Further, compliance with a code of practice acts as a defence or exemption from prosecution under the Act for conduct which too often would otherwise constitute a cruelty offence. In addition, the Flora and Fauna Guarantee Act 1988 3 provides not only for conservation of threatened species, but also for the management of potentially threatening processes. Section 3 of the Act defines a potentially threatening process as 'a process which may have the capability to threaten the survival, abundance or evolutionary development of a taxon or community of flora or fauna.' Schedule 3 lists predation by red foxes and feral cats as threatening processes.

The welfare challenge of existing short-term methods

Turning then to the challenge posed by feral animals, we could begin at the beginning, by dropping the label of ‘vermin’ or ‘pest’ so that they are thereby removed from any serious notion of humane control. Afterall, in each of the draft national model codes of practice it is acknowledged that:

'An ethical approach to pest control includes the recognition of and attention to the welfare of all animals affected directly or indirectly by control programs.'

Second, the dimension of the animal welfare problem or, put more directly, the ‘quantity of suffering’ permitted by our indifference, is enormous. In summary, whilst there appears to be no estimate of fox numbers, we know anecdotally they are trapped and hunted in large numbers. Otherwise, for example, there are 300,000 feral horses; perhaps more than a million donkeys, mainly concentrated in the Kimberleys; estimates of feral pigs (which inhabit 38% of Australia) range from 3.5 million to 23.5 million; about 300,000 camels, mainly in the Northern Territory; 2.6 million feral goats, mainly concentrated in central-eastern South Australia, Western Australia, southern Queensland and western New South Wales; perhaps as many as 12 million feral cats⁴; thousands of feral cattle in the Northern Territory; in 1985 it was estimated there were 350,000 feral buffalo in the Northern Territory; and some 200 million rabbits.

Third, it is worth briefly listing the current methods of feral animal control to reinforce how most are primitive and inhumane practices in need of reform:

• poison bait (1080, pindone, strychnine);

• trapping (including steel-jawed trap);

• mustering into yards for later transport – itself stressful;

• shooting from ground or helicopter;

• electric fencing;

• dogging (rabbits and pigs);

• biological (disease);

• fumigation (rabbit burrows and fox dens);

• explosives (destruction of rabbit warrens).

The number, kind and diversity of methods reveal the extent of the problems perceived, the reactionary and short-term genesis of their employment, and the frustration of those in charge of feral animal control. Yet none of these methods are entirely successful and most cause stress, trauma or suffering for the animals. And despite the annual budgets for ‘pest’ control of the Federal, state and territory governments running into many millions of dollars, no introduced species of animal has ever been eradicated from Australia. Existing or past methods such as poisoning, myxomatosis, trapping and shooting have all ultimately failed to stem the tide of particularly foxes, rabbits and pigs.

The most commonly used control techniques for various feral animal species are as follows:

•feral pigs: lethal baiting, shooting, trapping and exclusion fencing. In the case of lethal baits, non-target animals including native species, working dogs and livestock, can be exposed to poisons of high toxicity directly or indirectly. Poisons commonly used are sodium monofluoroacetate (1080) and yellow phosphorus (CSSP). Warfarin is also being trialled. No case whatever can be mounted for the use of yellow phosphorus and warfarin, having regard to the long periods of pain and suffering by the animal before death.

The code of practice acknowledges the pain and suffering caused by 1080. Yet of the three categories of acceptability in respect of the various control techniques (‘Acceptable’, ‘Conditionally Acceptable’ and ‘Not Acceptable), 1080 poison is labelled as ‘Conditionally Acceptable’. ‘Conditionally acceptable’ is defined to be a technique which '...may not be consistently humane. There may be a period of poor welfare before death.' Apparently, at a stakeholders’ workshop leading ultimately to the development of these draft national model codes of practice, remarkably, it was thought that the 'jury is still out' on the severity of pain caused by 1080, and thus it was decided that ‘Conditionally Acceptable’ should still apply. ⁵ No doubt the absence of a humane alternative bore upon this thinking.⁵*

• wild dogs: lethal baiting, shooting, trapping and exclusion fencing. Lethal baiting employs 1080 and strychnine. The draft national model code of practice states that strychnine 'is considered inhumane'. However, baiting with 1080 is deemed ‘Conditionally Acceptable’;

• foxes: lethal baiting, shooting, trapping, den fumigation and exclusion fencing. Lethal baiting is viewed as the most effective method of fox control;

• feral goats: mustering, trapping at water, aerial shooting, ground shooting and exclusion fencing. ‘Judas’ goats are also used. 1080 baits, whilst trialled, are not permitted by reason of inter alia the significant risk of poisoning non-target species;

• feral cats: shooting, trapping, lethal baiting and exclusion fencing. Lethal baiting is not widespread as it is viewed as reasonably ineffective because 'feral cats are often found in low densities and can have large home ranges. Also, they are naturally wary;⁶

• feral horses: mustering, trapping at water, aerial shooting and ground shooting.

• rabbits: lethal baiting, warren destruction and fumigation, shooting, trapping, exclusion fencing and biological control with RHDV and myxomatosis. Lethal baits used are 1080 and pindone. The draft national model code of practice for rabbits describes pindone as 'inhumane'.⁷ and the use of chloropicrin for warren fumigation as 'highly inhumane' . Carbon monoxide is currently being investigated as a humane alternative to chloropicrin and phosphine in warren fumigation.

1080 poison then is the main poison of use for foxes, wild dogs (including dingoes), feral pigs and rabbits.

The toxins or poisons used for lethal control of feral animals are regulated by the Commonwealth’s Australian Pest and Veterinary Medicines Authority and permits are issued under poisons and dangerous goods (or similar) Acts and Regulations in the different states and territories.

Relevantly, all states and territories have agreed to phase out those control methods identified in the codes of practice as ‘Not Acceptable’, namely:

• steel-jawed traps: rabbits, foxes, dogs, cats;

• strychnine baiting: foxes, dogs;

• chloropicrin fumigation of warrens: rabbits;

• warfarin baiting: pigs; and

• yellow phosphorous (CSSP) baiting: pigs.⁸

Other problems with human intervention by killing include:

(a) first, that it requires continual intervention in the ecosystem—either massive kills every few years or an annual kill;

(b) second, that the natural response of survivors is increased fecundity and in any event, as most are highly mobile, they replace those killed with little difficulty; and

(c) third, the undesirable genetic selection of animals to kill—for example, where horses are shot (or darted) the result is craftier, harder to shoot animals next time around; or again, feral cats, which are naturally wary and readily trap or bait shy.

So these difficulties have led to a heightened desire for eco-controls.

Fertility control research

In the last 20 years six international 'Fertility Control and Wildlife Conferences' have been held at which scientists and others from around the world have reported on their research.

As long ago as the second ‘Fertility Control and Wildlife Conference' in 1990 at Melbourne, Dr. Tyndale-Biscoe of the CSIRO noted how his research team was then developing an entirely new method for the rabbit and the fox, 'which, if successful, will block fertilization without interfering with hormone function and can be introduced to the population at minimum cost.

Within only a year or so, a reproductive immunologist (part of the research team) had isolated the fox-related protein and produced an antibody in a test tube which made foxes infertile. At the time Dr. Tyndale-Biscoe noted the exciting prospect it offered as a generic technology capable of application to feral cats and pigs, or possum control in New Zealand.

Yet it was originally believed that the research team’s work would be unproductive.

Some 15 years later, in a paper prepared for the Prime Minister’s Science and Engineering Council on 13 September 1996 entitled 'Rabbits-prospects for long term control: mortality and fertility control', four members of the CSIRO Division of Wildlife and Ecology and Cooperative Research Centre for Biological Control of Vertebrate Pest Populations said:

'All agents that increase the rate of death are effective in the short term but must be applied continually, particularly if the species is highly fertile as are rabbits. Therefore another approach which constrains the birth rate (or fertility) of the pest is being developed. Mathematical modelling predicts that it has excellent prospects for long term suppression of populations.'.⁹

The paper concluded that virally vectored immunocontraception was technically feasible. The paper also noted in respect of the rabbit:

'...we cannot hope to eradicate it from this continent. Realistically we can only aim to reduce its numbers to levels where its impact is insignificant....

The VVIC approach for fertility control is considered an important advance in scientific thinking...

Furthermore, the enormity of the problems being experienced by Australia with the rabbit and the fox dictate that the research must be pursued to provide long term solutions for problems which are uniquely Australian.' ¹⁰

A few years earlier, at the 2003 international conference on 'Fertility Control for Wildlife Management', and just as Dr. Tyndale-Biscoe had forecast, researchers from the New Zealand Marsupial Cooperative Research Centre at Land Care Research noted that immunocontraception offered an effective and humane alternative approach to possum management, and that possum fertility control baits should be available for use within eight years.

Also at the 2003 conference, seven members of the CSIRO’s (then) Pest Animal Control Cooperative Research Centre noted that fox fertility control in Australia through vaccination with a bait-delivered anti-fertility vaccine was an important alternative to lethal fox control with 1080 poison to reduce their impact on native Australian fauna and livestock. They reported on progress with a suitable potential vaccine vector (canine herpesvirus -CHV) and that an oral bait containing wildtype CHV could induce anti-viral immune responses in foxes.

Similar reports at this conference were provided, for example, on development of fertility control techniques for eastern grey kangaroos and free-ranging koalas, both immunological and endocrinal. The report concluded that both immunological and endocrinal techniques had shown dramatic progress in the last five years, suggesting that long-term broad scale fertility control was now within reach.

Australia’s legislative and regulatory framework

With the advent of all this promising research, what then is Australia’s legislative and regulatory framework? First, the Commonwealth has no express powers under the Constitution in respect of environmental matters. There are, of course, heads of power that may be called in aid, including:

(a) the trade and commerce power (s.51(i));

(b) the corporations power (s.51(xx));

(c) the taxation power (s.51(ii));

(d) the external affairs power (s.51(xxix));

(e) the quarantine power (s.51(ix));

(f) the posts and telegraph power 51(v));

(g) the power in respect of Commonwealth instrumentalities and the public service (s.52);

(h) the power in respect of customs, excise and bounties (s.90);

(i) the financial assistance power (s.96); and

(j) the territories power (s.122).

In addition, there is of course s.109.¹¹

Second, the most important Commonwealth statute is the Environment Protection and Biodiversity Conservation Act 1999.¹² An objective of the Act is to promote a cooperative approach to the protection and management of the environment by governments, the community, landholders and indigenous peoples. This sharing of responsibilities reflects the cooperative federalism of the Intergovernmental Agreement on the Environment signed by the Commonwealth and all States and Territories in 1992.

The Commonwealth Environment Protection and Biodiversity Conservation Act 1999 provides a framework for the management of species other than native species by listing key threatening processes (s.183) and providing for threat abatement plans (s.270B).

Section 301A provides for the development of regulations for the control of non-native species, where they may threaten or would likely threaten biodiversity.

Another relevant Commonwealth statute is the Natural Heritage Trust of Australia Act 1997 administered jointly by the Department of Environment and Heritage and the Department of Agriculture, Fisheries and Forestry. The Trust’s focus is upon a more targeted approach to environmental and natural resource management in Australia. The Natural Heritage Trust supports a National Feral Animal Control Programme managed by the Bureau of Rural Sciences. It was established to reduce the damage to agriculture caused by ‘pest’ animals.¹³

Apart from state legislation and state bodies (see above), local government also discharges a role in undertaking pest, plant and animal risk control measures. Indeed, local government bodies have made a large number of applications for National Heritage Trust grants.

The principal international convention

The principal international convention is the Convention on Biological Diversity, the objects of which include the conservation of biological diversity. It notes there is an urgent need to address the impact of invasive alien species. Plainly, the Commonwealth has responsibility. By Article 8(h) each Contracting Party shall, as far as possible and as appropriate:

'Prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats

or species.' ¹⁴

The Convention on Biological Diversity sets out a number of Guiding Principles for the prevention, introduction and mitigation of impacts of alien species that threaten ecosystems, habitats and species.

Against this background, I turn to the relevant Ministerial Councils, principally the Natural Resources Management Ministerial Council, but also the Primary Industries Ministerial Council. Ministerial Councils enable the national implementation of proposals where the division of constitutional powers creates barriers. The objective of the NRMMC is to:

'Promote the conservation and sustainable use of Australia’s natural resources.' ¹⁵

Vertebrate Pests Committee

The principal relevant Ministerial Council committee is the Vertebrate Pests Committee,¹⁶ which is a sub-committee of the Natural Resource Policies and Programs Committee created in early 2004. It acts as one of two major advisory committees in support of the work of the Natural Resource Standing Committee,¹⁷ which in turn supports the work of the Natural Resources Management Ministerial Council.

In summary, direct control of feral animals still resides primarily with the states and territories, and extends to landholders and rural industry. The Commonwealth plays a coordinating control, particularly through the Vertebrate Pests Committee, Invasive Animals Cooperative Research Centre and the National Feral Animal Control Programme.

The ‘Australian Pest Animal Strategy'

In 2007, the Vertebrate Pests Committee published its 'Australian Pest Animal Strategy: a national strategy for the management of vertebrate pest animals in Australia.' Three brief observations may be made about this document. First, humaneness in the treatment of pest animals has a very low priority. At best, Key Principle no. 10 notes that:

'Where there is a choice of methods, there needs to be a balance between efficacy, humaneness, community perception, feasibility and emergency needs.'

Second, it purports to list 'the most useful pest animal control methods'.¹⁸ They comprise the usual inhumane short term methods, save and except for 'fertility control' and one other method, namely, changes in land use including agricultural practices (eg timing of lambing or planting different crops).

This last method is entirely sensible. But fertility control is not discussed, and when the question of research is referred to, it is more about co-ordination than leadership.

Third, commercial harvesting of feral animals is sanctioned. As with commercial harvesting of kangaroos, this is contrary to proper population management and points up how the dollar prevails over animal welfare.

Suffice to say, commercial enterprises are keen to ensure their resource is stable. Once a species is reduced in density in an area, it becomes more expensive to capture or kill further animals. Again, this will mean animals are left to regenerate the depleted population in that area.

Recent federal parliamentary committee reports

There have been two recent federal parliamentary committee reports on feral animals.¹⁹ Both reports recommend a national strategy and framework.

Whilst much useful factual material may be found in each report, overall animal welfare issues received scant attention or a low priority.

The 'extremely inadequate' research funding

In the report of the Senate Environment, Communications, Information and the Arts References Committee, it was noted that the CSIRO had argued that funding for the management of invasive species is inadequate and that funds delivery was generally provided year-to-year or for 18 months at a time, which did not allow for long-term strategic control measures to be planned.²⁰

The Committee noted that it had heard that it can take more than 10 years for a biological control method to be developed from inception to implementation, and said:

'Long-term commitment to funding is essential especially for programs that are seeking to develop biological control responses to invasive species. Central to being able to plan and implement such a research activity is the need for a guaranteed commitment to funding.' ²¹

Further, whilst research institutions are required to seek co-investment from external investors to match core funding, what private investor will be prepared to wait some 10 to 20 years for a product to be sufficiently developed to be introduced to the market, given the present low rate of funding by government? The CSIRO is no longer the primary research institution on pest animal research. It is now 'outsourced' to or carried out by a federal body called the Invasive Animals Cooperative Research Centre. According to its website, its 'terrestrial products and strategies' include fertility control. The key question of course is whether this is or can be a priority, having regard to the bleak prospect of funding.

Conclusion

In conclusion, enough research and studied assessment exists to show that, when weighed against the historic failings of short-term inhumane measures, fertility control offers real hope as a long-term measure. At a minimum, it points up how more sophisticated attempts can and should be made to improve our treatment of these animals, and how this can be done whilst recognising the needs of our natural environment. If this much only were to be acknowledged, we would cease to reach for what is cheap and what is quick, and then perhaps begin to turn away from the inhumanity and the chaos we presently leave in our wake. For the present, the exemption of feral animals from the protective reach of animal protection statutes, and the adoption in the draft national model codes of practice of a ‘Conditionally Acceptable’ category which sanctions inhumanity in control methods and ‘poor welfare before death’, says it all.

Endnotes

1. L Hinds and P Cowan, ‘Fertility Control for Wildlife Management: The Options’ (Paper delivered at Fertility Control for Wildlife Management Conference, Christchurch, 4 December 2003).

2. The draft national model codes may be found at the website of Invasive Animals Cooperative Research Centre: <www.invasiveanimals.com/index.php?id=164>.

3. There is also the Domestic (Feral and Nuisance) Animals Act 1994 (Vic) which is of only limited relevance, applying to nuisance dogs and cats and the powers of councils to deal with dangerous such animals or where they are found at large.

4. Parliament of Australia—House of Representatives Standing Committere on Agriculture, Fisheries and Forestry, Taking Control: A National Approach to Pest Animals (2005), [2.37]–[2.75].

5. A Braid and C Buller, Final Report to the Vertebrate Pes Committee: Codes of Practice for Human Vertebrate Pest Control—Finalisation for Adoption by Australian States and Territories (2007) Invasive Animals Cooperative Research Centre, 13.

5*. New and less inhumane and more animal specific toxins are apparently under development. It is not known whether they will be humane, as distinct from less inhumane: see further http://www.invasiveanimals.com/index.php?id=4.

6. Model Code of Practice for the Humane Control of Feral Cats (2007) Invasive Animals Cooperative Research Centre <www.invasiveanimals.com/index.php?id=164>, 6.

7. Ibid, 6–7.

8. Ibid, 1. the Management of Vertebrate Pest Animals in Australia (2007), [1.3].

9. CSIRO Division of Wildlife and Ecology and Cooperative Research Centre for Vertebrate Biological Control of Vertebrate Pest Populations, Rabbits—Prospects for Long Term Control: Mortality and Fertility Control (1996), 7.

10. Ibid, 10.

11. Section 109 provides that where a State law is inconsistent with a Commonwealth law, the Commonwealth law shall prevail and the State law ‘shall to the extent of the inconsistency, be invalid’.

12. See also the Quarantine Act 1908 (Cth) which has obvious relevance to the import of animals at Australia’s borders.

13. Regulatory Impact Assessment—Consultation Draft 2007—August 2007: National Codes of Practice for the Humane Control of Vertebrate Pest Animals (2007) Invasive Animals Cooperative Research Centre <www.invasiveanimals.com/index.php?id=164>, 3.

14. See also the Convention on Biological Diversity Conference of the Parties, COP 6 Decision VI/23: Alien Species that Threaten Ecosystems, Habitats or Species, 7–19 April 2002, < www.cbd.int/decisions/?m=cop-06>.

15. Primary Industries Ministerial Council and National Resource Management Ministerial Council, About the NRM Ministerial Council, <www.mincos.gov.au/about_nrmmc>. The NRMCC comprises the ministers from the Commonwealth, state, territories and New Zealand esponsible for primary industries, natural resources, environment and water policy.

16. The Vertebrate Pests Committee comprises one member from: each Australian state and territory; New Zealand; the CSIOR; Bureau of Rural Sciences; the Australian Government Department of Environment, Water, Heritage and the Arts; and Biosecurity Australia. It monitors research, but is not funded to conduct research.

17. The Standing Committee comprises the departments heads or chief executive officers of the relevantCommonwealth, state, territory and New Zealand government agencies responsible for natural resource policy issues.

18. ‘Killing or removal (eg, baiting, shooting, trapping or mustering); exclusion (eg, fencing or netting); biological or fertility control; habitat manipulation (eg, removal of surface refuges); and changes in land use including agricultural practice (eg, timing of lambing or Cont: planting different crops)’: Vertebrate Pests Committee, Australian Pest Animal Strategy: A National Strategy for the Management of Vertebrate Pest Animals in Australia (2007), [1.3].

19. Parliament of Australia—Senate Environment, Communications, Information Technology and the Arts References Committee, Turning Back the Tide—The Invasive Species Challenge (2004); Parliament of Australia—House of Representatives Standing Committee on Agriculture, Fisheries and Forestry, Taking Control: A National Approach to Pest Animals (2005).

20. Parliament of Australia—Senate Environment, Communications, Information Technology and the Arts References Committee, Turning Back the Tide—The Invasive Species Challenge (2004), [5.119].

21. Ibid, [8.57].

* Graeme McEwen is the Chair of the Barristers Animal Welfare Panel, a Bar Association of the Victorian Bar which addresses a national agenda.