Published on Monash University's Dangerous Ground on July 28, 2013. 


Tootgarook Swamp: home to threatened species is now under threat.

Nestled among residential estates, a waste disposal centre, and golf courses on the southern end of the Mornington Peninsula is a vast expanse of seemingly vacant land. To the untrained eye, most of the land surrounding Elizabeth Street, Rosebud West, is simply browning, overgrown scrub. But Sanctuary Park Bushland Reserve, on the street’s southern side, supports an intricate system of natural hydrology that sustains various species of flora and fauna. It is not the only site of its kind in the area. The reserve, around 60km south east of Melbourne, forms part of an estimated 380 hectares that indigenous populations once called ‘the land of the croaking frog’. 

The Tootgarook Wetlands, or Tootgarook Swamp as it is also known, is claimed by local conservationists to be home to over 160 species of birds, fish, reptiles and mammals. Many of the swamp’s inhabitants are endangered and protected species, like the Ballion’s Crake, Lewin’s Rail, and Australasian Bittern birds, which all feature on the Commonwealth government’s Flora and Fauna Guarantee Act 1998. The Dwarf Galaxis fish, White-footed Dunnart and Swamp Skink are also protected. 

“I’ve been able to photograph, in the last year, 16 threatened species within 50 metres of here,” says Save Tootgarook Swamp’s Cameron Brown, who is grappling with legislation to protect what is left of the once-800 hectare wetlands from development environmentalists say will severely harm it.

The Mornington Peninsula Shire is considering the possibility of having the Tootgarook Swamp listed on the international Ramsar treaty as a ‘Wetland of International Importance’. But many locals are calling for alternate protection, arguing that Ramsar cannot adequately shield the site from the impact of harmful development. There are bids for planning amendments, public acquisition, and conservation protection overlays to protect the Tootgarook Swamp, as activists point to the apparent failure of the Ramsar treaty to protect other wetlands.

Just 30 kilometres east of Tootgarook is Westernport Bay, listed on the Ramsar treaty three decades ago. In March 2013, Victoria’s Napthine government committed $110 million over four years to commence planning for a large container port at Hastings on the bay’s western coastline – a project the government has been pushing for decades. The pending development at Westernport has left many questioning the significance of the Ramsar treaty, whose mission is largely disputed throughout the community.

The Convention on Wetlands of International Importance was held in Ramsar, Iran in 1971. Some 18 countries agreed to sign a treaty committing them to “maintaining the ecological character of their Wetlands of International Importance and to plan for ‘wide use’, or sustainable use, of all of the wetlands in their territories”.  The treaty, commonly known as the Ramsar Convention, is the only transnational environmental treaty that deals with a particular ecosystem.  Australia was the first signatory, listing the Northern Territory’s Cobourg Peninsula on 5 May, 1974. Since the Ramsar treaty came into effect in 1975, 2119 sites across the globe have been listed, with a total of 165 contracting parties to date.  These nations are committed to maintaining the “ecological character” of Wetlands of International Importance, “achieved through the implementation of ecosystem approaches, within the context of sustainable development”. Because the treaty is not legally binding, legislating for the acceptable use of wetlands is a responsibility for national governments.

Senior advisor to the Ramsar Secretariat for the Asian Region Lew Young disputes claims that the system is problematic.

“Nations do generally try their best to fulfill their obligations under the convention using the resources and expertise that they have,” he says. “At present, there is already a good system for the public, NGO and even the governments themselves to report to the secretariat if there are problems with implementation within the country.”

 Australia ratified the Ramsar treaty guidelines through the Commonwealth Environmental Protection and Biodiversity (EPBC) Act 1999. Section 16 of the Act states,

(1) A person must not take an action that:

 (a) has or will have a significant impact on the ecological character of a declared Ramsar wetland; or

 (b) is likely to have a significant impact on the ecological character of a declared Ramsar wetland.

There are differing views about what constitutes “impact on the ecological character”.  Some argue it rules out any development at a Ramsar site.  But according to Mr Brown, development is permitted if it is sensitive to the ecology of the site in question.

“Ramsar is just the wise use of wetlands,” he says. “It’s using the wetlands in a way that enhances it or protects it.”

Flinders federal Liberal MP and Opposition  environment spokesman Greg Hunt agrees. He says even the Commonwealth Act does not simply allow or prohibit development at a site based on its Ramsar status.

“It’s not a definition of whether it’s good or bad,” he says. “It simply triggers the federal Act and is then subject to an assessment on the facts.”

Hunt says the federal environment protection Act requires the Environment Minister firstly to examine the development’s adherence to the legislation.

“The law makes it clear that if there is a detrimental impact it either has to be reduced, ameliorated, or the activity can’t proceed.

“If they are in breach, then that’s a factual question both to what’s actually proposed and what damage might occur. Then, either it’s got to be significantly changed, reviewed, or the activity would be blocked.”

 Hunt suggests the Act prohibits pre-emptive action by the government, which can act only in response to a proposal for development at a Ramsar site.

“The Minister of the day, whether it is myself or someone else, will have legal duties to test whether or not the (EPBC) Act is triggered. And if it’s in a Ramsar Convention…then to test whether or not the activity would breach the standards of care required of the Act.”

While the Environment Minister’s office declined requests to comment, the Ramsar secretariat’s Lew says Australia is leading the way in wetland conservation. 

“Its effectiveness is dependent on how well it is understood and used by the government and the environmentalists,” he says. “Australia is one of the better countries in taking an active approach to implementing the convention. Australia is already far ahead of many other  countries.”

While he has not received information regarding developments at Westernport, he expects the government will exercise proper  judgment and act in the interests of ecological character of the site.

A site for development or conservation?

But for many, the lack of pre-emptive action is problematic. Activists working in the Tootgarook Swamp group say they have been driven to explore alternate methods for conservation. Southern Peninsula Indigenous Flora and Fauna Association secretary Philip Jensen says even the government acknowledges the shortcomings of a potential Ramsar listing

“The person in (Department of Sustainability and Environment) that’s responsible for managing Ramsar sites told us that the best protection is the planning scheme, that the Ramsar does not just protect land per se,” he says.

 Zoning divisions in the swamp have been debated for more than a decade. An urban growth boundary divides the swamp, made up of green wedge zone, residential, and industrial areas. Local environmental activist Cameron Brown estimates as much as 80% of the swamp is privately owned and used for different purposes.

“One of the large problems is that the green wedge zone runs pretty much half way through the swamp. So down the bottom section you’ve got rural with green wedge. In the northern section you’ve got a mixture of reserve mixed with industrial mixed with freeway reserve.”

 According to Brown, the planning zone boundaries cannot contain the swamp’s diverse ecosystems. “It’s pretty confusing, but the animals – they don’t know it. They don’t care. They don’t understand what a fence is.”

He would like to see the planning scheme amended, but acknowledges that rezoning privately owned land could be problematic. “It’s just very complicated. Because you’ve got people that have owned the land for 10 years, since it was zoned that (way). Is it right to rezone it when those people bought it? But at the same time…it is right that somebody who bought the land so cheaply when the zoning was changed can turn around and make a huge profit, because that’s what we’ve seen happen.”

 In March, the Mornington Peninsula Shire and a developer won a Supreme Court case to overturn a Victorian Civil and Administrative Tribunal ruling that had deemed unlawful  the extension of an expired planning permit. As a result, the site in question, 95 Elizabeth Ave (opposite Sanctuary Park Bushland Reserve) remains a residential zone.  Developers are expected to generate substantial profits from housing projects at the site. Jensen says amendments should be made to the planning scheme, prohibiting any development at the swamp.

“It’s the only avenue we’ve got: areas under immediate threat are the ones zoned as residential. So that is our focus, to get that zoning changed.”

Friends of Chinaman’s Creek member Norman McKinlay says the shire should consider selling the swamp to a statutory body committed to its conservation. He agrees with Jensen on the futility of a Ramsar listing, suggesting public ownership instead.

“We have Westernport which is a Ramsar wetland, but it really doesn’t protect it 100 per cent,” he says. “What we need is to get one body that looks after the whole Tootgarook Swamp, because it’s split into so many different landholders that it’s a very complicated situation.”

According to McKinlay, Melbourne Water is the most appropriate suggestion: “They’ve got all the expertise and possibly money on hand”, a view that Jensen shares.

For Cameron Brown, who acknowledges that development in Tootgarook Swamp is not preferred but seems inevitable, proper management of the land is imperative. He suggests public acquisition may be “beyond the shire’s pocket” now, and advocates for cooperation between landowners (including the shire).

“It’s probably a very complex sort of wish, but it would be achievable I believe. Because obviously if it is developed in the right way, it would be beneficial to the landowner.”

Brown points to Boneo Park, 150 hectares of privately owned land that was recently protected with a conservation covenant. In February, owner Rob McNaught signed a deed with non-profit, statutory body Trust For Nature, which committed Boneo Park to long-term protection. According to the Opposition’s Greg Hunt, arrangements like this should set an example to other landowners of significant ecological sites. Like Brown, he believes a conservation covenant is preferable to state acquisition.

“I’m not sure why you would take it out of loving, caring private hands that have conservation covenanted it,” he says. “I think sometimes land can be in much safer long-term hands where you have a good custodian.”

Although they disagree with residential zoning, both Jensen and McKinlay also welcome McNaught’s efforts. The trust, which declined requests for an interview, has the potential to act as a negotiator for sites like the Tootgarook Wetlands. It allows landowners to retain ownership of their land, while ensuring the ongoing conservation of ecological character.

According to Hunt, even in the event of a Ramsar listing, bodies like the trust would continue to be crucial to the conservation of the Tootgarook Wetlands.

“One is a legal status, the other is a physical action and the complementary activity,” he says. “My own view is that if it stacks up, why wouldn’t you list it, but listing alone doesn’t actually protect the land. What really matters is the on-the-ground practical conservation rehabilitation work.”

Brown echoes the call for proper recognition of the role of Ramsar. He says appropriate use of the Tootgarook Swamp, in line with what the Ramsar treaty deems “wise use” which “maintains the ecological character” of wetlands, could bring wider benefits for the community than housing developments.

“Building some houses on the swamp will only bring a short-term income for a short time period, whereas appropriate development could see a long-term income and benefit to the actual whole economy of Rosebud.”

He suggests the Tootgarook Swamp has huge potential for ecotourism. “Usually the best time to see birds is dusk and dawn,” he says. “Because it’s late and early, that could mean breakfast and dinner, maybe a stay-over. So they’re all things that will actually benefit the town, in terms of tourism, because it’s international – especially if it’s Ramsar.”

Echoing Hunt, the status that comes with a Ramsar listing is the most significant aspect for Brown. “The landowner would be getting international recognition. (For) somewhere like Eagle Ridge Golf Course, partially on the wetland… it doesn’t stop them doing what they’re doing so long as they’re incorporating the wetland in.”

The formative stage in achieving a resolution between opposing viewpoints at Tootgarook Swamp, according to Mr Brown,  is education about the importance of the environment.

“There’s that ignorance is bliss, where you think, ‘If I don’t know I don’t have to worry.’ But as soon as you learn about something and understand what’s there how can you ignore it?”

For him, the recognition that comes with a Ramsar listing is a catalyst to action. 

It remains to be seen whether the Tootgarook Swamp is listed on the Ramsar treaty, and whether any of the land is rezoned. But activists say they will continue to stand their ground.


AuthorToni Brient