National Parks
The National Parks and Wildlife Act 1974 says that NPWS has the objective of managing national parks to conserve their natural and cultural heritage. Conservation must be balanced with other park management objectives, including regulating legitimate recreation (including MTB). NPWS is obliged to manage national parks for conservation and recreation purposes. National parks are created to conserve the area’s natural and cultural heritage and to provide opportunities for people to enjoy the parks and their heritage values through recreation.
Regulating MTB in national parks has advantages and creates opportunities for the sport. The primary advantage is that the sport is given legitimacy by the NPWS and by other stakeholders, such as environmentalists. Legitimacy is the express unambiguous recognition that MTB is allowed within national parks (subject to certain limitations) and leads to the right to participate in managing MTB in national parks and the opportunity and resources to build and maintain good trails. By contributing resources and creating opportunities, NPWS can exercise control over MTB and promote compliance amongst riders. Involvement of MTB riders in regulation means that issues such as biodiversity, erosion and public safety can be dealt with rationally and inclusively. Furthermore, once the regulation is written down in a plan of management everyone knows their rights and obligations, protecting riders from arbitrary trail closures. The need for regulation still depends on whether these benefits outweigh the costs.
The costs of regulating MTB are already apparent in most national parks. Regulation causes stagnation because trail access and design cannot evolve with the sport. Freeriding and downhilling are prohibited in most national parks because of environmental and public safety concerns. Furthermore, the number and diversity of open trails is greatly reduced to accommodate environmental and public safety constraints. This has the effect of forcing other forms of MTB into other public spaces or onto private land. The small areas of accessible public recreational space are already under heavy competition from other users (such as motorbikes). Regulation drives unauthorised trail construction further underground, leading to more dangerous trails and trail-builders having an improper sense of ownership. The costs therefore are a reduction in the scope of riding opportunities, movement of non-XC MTB into other areas, and more clandestine trails. If the NPWS are willing, these costs can be offset by allowing some MTB in national parks on good quality and interesting trails.
The big stick in the spokes of regulating MTB in national parks is the lack of clear policy from NPWS’ Head Office. Regulation depends on the attitude of the individual park manager, who has discretion to prohibit MTB or leave it unregulated. NPWS’ policy also has interpretation problems: is it a ‘track’ which is supposed to be closed to MTB or is it a ‘trail’ which is supposed to be open to MTB? These dangerously loose terms means that trails used by 4WDs can be called a “track” and closed to MTB. Assuming that the local NPWS office takes a reasonable view on regulating MTB, what form should the regulation take?
Regulation is the control exercised by an authority (NPWS) over a class of persons doing a particular activity (MTB riders). Regulation varies from prohibition to ‘no regulation’ and in between permits and licences. Prohibition means the activity can never be lawfully undertaken and ‘no regulation’ means the activity can be done anywhere at any time by any person. Permits allow the activity to only occur on a specific occasion in the specified manner with written permission from the authority. Permits are difficult to administer but allow for greater control of the activity. A licence is an open-ended approval for a particular activity in a particular area, subject to conditions. Licences are easier to administer but more difficult to enforce and less control can be exerted over the activity. The form of regulation can be varied according to circumstance: the nature of the activity being regulated, the effect of non-compliance, the likelihood of compliance with the regulation, and the enforcement costs. Accepting that MTB in national parks should be regulated, it is now a matter of determining the most appropriate and efficient way of regulating mountain biking in national parks.
Environmental constraints
Enjoying natural space on a bike is the heart and soul of MTB, but like all recreational activities MTB can impact those natural spaces. These impacts can be managed through regulation. Without regulation new trails have a tendency to be created and ‘chicken’ lines appear around obstacles. Generally, there are three kinds of impacts attributed to MTB: biodiversity, erosion and public safety. The creation and use of trails is said to impact biodiversity through habitat fragmentation, however, most MTB trails are pre-existing, narrow and low impact. Similarly, erosion is related to the soil type, slope, trail design, level of use, climate and vegetation, not only the type of use. Public safety is about walker-bike collisions and risks to MTB riders. Non-compliance could result in impacts being spread over a greater area, or impacts occurring in areas with the greatest susceptibility, or where they are less able to be appropriately managed. Non-compliance means the NPWS has not fulfilled their legislative objectives of balancing conservation with sustainable recreation.
Environmental impacts directly attributable to mountain biking are limited to erosion of trails, damage to vegetation and natural features by off-trail riding, and spread of invasive weeds and plant diseases.[1] Indirect impacts are those associated with human presence in a natural setting – pressure on camping grounds, water supplies, waste facilities, and damage caused by trampling and vandalism of natural and cultural features.[2] In order to distinguish between recreational activities for the purpose of prohibiting or regulating access to natural areas for that activity only directly attributable impacts are relevant.
The need to consider the environmental impact of an activity is prescribed by the Environmental Planning and Assessment Act 1979 (‘EPAA’). ‘Environment’ is defined in the EPAA as including “all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings”.[3] Components of the ‘natural environment’ are: land, air and water, any layer of the atmosphere, any organic or inorganic matter and any living organism, and … includes interacting natural ecosystems that include [these] components.[4] Trail construction on public land could be a land use activity under Part 5 EPAA.[5]
An environmental impact assessment under Part 5 means that a public authority in considering [whether to permit or undertake] an activity shall examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity, in particular conservation reserves, flora and fauna protected under the National Parks and Wildlife Act 1974 (‘NPWA’), wilderness areas declared under the Wilderness Act 1987 and threatened species and habitats under the Threatened Species Conservation Act 1995 (‘TSC Act’).[6] If the activity is likely to significantly affect the environment (including threatened species and habitats) the public authority is required to provide an Environmental Impact Statement (EIS) and obtain consents under the Wilderness and Threatened Species Acts.[7] Trail construction is likely to affect the natural environment warranting consideration of environmental impacts, though the affect is unlikely to be significant, no EIS is needed.
An activity that is likely to affect the environment, could also cause ‘harm to the environment’ in the sense of pollution, that is “[to cause] any direct or indirect alteration of the environment that has the effect of degrading the environment”.[8] The physical alteration (erosion) could constitute harm to the environment warranting pollution control measures.
National Parks and Wildlife Act 1974
Nature conservation, including habitat and ecosystems, biodiversity, landforms, landscapes and natural features (including wilderness); and managing; and conserving lands, places and objects of social, historical and cultural significance; and applying the principles of Ecologically Sustainable Development (ESD), are the objects of the NPWA.[9] In exercising its functions, including providing facilities and opportunities for sustainable visitor use and enjoyment on conservation reserves,[10] the NPS must abide by these objects and “the public interest in the protection of the values for which land is reserved … and the appropriate management of those lands.”[11]
Each type of conservation reserve is to be managed according to a stated set of principles. For a national park, for example, these principles are “… to identify, protect and conserve areas containing outstanding or representative ecosystems, natural or cultural features or landscapes or phenomena that provide opportunities for public appreciation and inspiration and sustainable visitor use and enjoyment”.[12] A plan of management must be prepared for each conservation reserve, as soon as practicable after reservation,[13] and the plan must consider, amongst other things, the relevant management principles; the conservation objectives; the need for sustainable visitor facilities; appropriate and ecologically sustainable use of the reserve lands; and the reserve’s social, economic and cultural values.[14]
ESD requires integration of environmental considerations in land management decision-making, including: (a) the precautionary principle (lack of scientific certainty should not be used to postpone preventative measures against serious or irreversible environmental damage); (b) inter-generational equity (the present generation should maintain or enhance environmental health for the benefit of future generations) (c) conservation of biodiversity and ecological integrity; and (d) users of natural environments should pay the full cost of environmental damage and market mechanisms used to discourage environment damage.[15] ESD principles are not determinative instead they guide decision-making so that environmental impacts and mitigation measures are properly accounted for.
ESD principles could be easily applied to a decision to construct of a new trail through a natural area. Say a particular soil type is highly erosion-prone on steep slopes after rain, the location and direction of the trail and volume of use could do serious or irreversible damage to the natural environment (without a rigorous scientific study concluding as much). This would mean that future generations would inherit a spoiled landscape, with deep erosion ruts and an ever-widening trail causing vegetation damage and greater erosion as users tried to avoid the ruts. The vegetation damage and erosion affects the integrity of the local ecosystem and biodiversity. The costs of avoiding environmental damage (for example constructing timber boardwalks) should be borne by the user, either through park entry fees or in-kind support (for example, labour and materials from local clubs). ESD is not a justification for exclusion at the first hurdle, rather a set of considerations through which practical and environmentally sustainable decisions can be made.
Bicycles fall within the NPWA definition of a vehicle, “an apparatus propelled, or directed or controlled, upon land, snow or ice by human …power”.[16] Vehicles are only permitted to leave the road entering into or traversing the national park with NPS consent.[17] While ‘road’ is not defined, it is safe to presume trails are excluded. Mountain bikes have no absolute right of access to conservation reserves, except on roads.
The National Parks and Wildlife Regulation 2002, furthermore, prohibits organised sporting competitions (for example club mountain bike races) and any person from engaging in any activity or recreational pursuit that involves risking personal safety or the safety of others or damaging the environment.[18] Mountain biking is not one of the listed prohibited activities or recreation pursuits.[19] The prohibition does not apply in the case of NPS consent, approval under a plan of management, or a notice permitting the activity.[20] A notice prohibiting an activity within all or part of the park overrides a plan of management approving that activity.[21] Mountain bike access is entirely discretionary – either through NPS consent, a plan of management, or a notice allowing (and not prohibiting) the activity.
Other environment protection laws
Water catchment areas are a unique form of conservation reserve, governed by its own legislative regimes with the over-riding objective of protecting the quality of metropolitan water supply.[22] Exclusion of access to the most sensitive areas is absolute[23] and in other sensitive areas access is strictly controlled. A ‘cycle’ is defined as a vehicle[24] and riding vehicles in sensitive areas is prohibited without the Sydney Catchment Authority’s consent.[25]
The Wilderness Act 1987 concerns the identification, declaration and management of wilderness areas. A wilderness area is: an area of land and its ecosystems that have not been substantially modified by humans and human activities or could be restored to its unmodified state; is sufficiently large, and is capable of providing opportunities for solitude and appropriate self-reliant recreation.[26] Once declared, a wilderness area is to be managed to protect (or restore) its unmodified state, to allow the area to continue evolving without human interference, and permit opportunities for solitude and appropriate self-reliant recreation.[27] As a matter of policy that NPS says “cycling within declared wilderness areas is generally not allowed but may be permitted on specified management (vehicle) trails only…consistent with any plan of management [or NPS approval]”.[28] In the case of the Kosciusko National Park, the policy shifted from cycling being permitted on all maintenance trails within the wilderness area, to permitting cycling on a seasonal basis along four management trails only[29] (a 92% reduction in recreation space[30]).
Threatened species are also touted as legitimate reasons for closures and restricted access. The TSC Act protects plants, animals and other life-forms, their groupings and habitats which are threatened with, or are vulnerable to, extinction or are endangered.[31] The protective mechanism is the listing of threatened species and key threatening processes by a Scientific Committee, and preparing recovery and threat abatement plans. Its real power is its integration with land use and conservation planning, by way of a species impact statement for development proposals and concurrent consent from the Minister for the Environment.[32] According to the NPS, if a trail transverses an area where threatened or endangered species have been recorded or is likely to have a significant detrimental impact on threatened species, it could amount to an offence of knowingly destroying threatened species habitat (under s 118D NPWA).[33] Prosecuting habitat destruction for trail construction would be difficult as it is neither listed as a key threatening process, nor included in the listing of any threatened species.[34] Like the wilderness laws, a land manager citing threatened species laws as a reason to close or regulate mountain biking is exercising their discretion rather enforcing a strict legal obligation.
Environmental law might appear justify a particular decision to regulate mountain bike access, but the decision remains at the land manager’s discretion. Another legal consideration that plays heavily on the decision-making process is the perceived safety hazards associated with mountain biking and the liability for injury or loss.
[references are available on request]
