posted by Dave Reeve
The Department of National Parks, Recreation, Sport and Racing (NPRSR) recently?released its new?Operational Policy - Rock climbing on QPWS managed areas. The document is dated 27th July 2012?and can be viewed here.
This document represents a significant milestone in the management of rock climbing by QPWS. Just how significant a step this is, I?ll endeavour to explain by examining the steps and mis-steps taken along the way, and the societal changes that influenced this outcome.
the changing demographic
Over the past fifty years, the trend in the climbing community has been one starting with a mere handful of climbers, anarchic by nature, certainly unmanageable by external dictate, and growing to a few thousand folk, individualistic, but receptive to appeals from reason. Indeed, it is good fortune that the vast increase in popularity of climbing has been accompanied by a shift to a demographic more understanding of the need for management.
Something else was changing as well over this period, and that was the very nature of the sport itself.? In the fifties and early sixties, rock climbing could best be considered as an extension of bush walking, steep bush walking if you like, where the object was to proceed from bottom to top overcoming such obstacles that lay on the chosen path. A form of adventure seeking that is still preserved on some routes today.
By the late sixties, however, non bush walking climbers were appearing on the scene. These newcomers were increasingly interested in climbing only for what it offered technically. The focus on technical ability, plus the impact of strong technical climbers from overseas rewrote in several decades what it meant to be a rock climber. Add to this process the recent explosive growth in indoor climbing, a substantial percentage of whose participants?will venture outdoors, and it is easy to understand that modern sport climbing brings a radically different demographic to the crags.
And, most importantly for the discussion in hand, sport climbing means bolted routes, no ifs, no buts, no exceptions. The vast majority of modern climbers will be climbing routes narrowly delineated by a line of bolts placed in the rock at roughly 2 to 3m intervals for a height of 20 to 30m.
Several other societal trends over this period play into the story. In the fifties, such National Parks as existed were managed by a state apparatus whose motivation was primary production and the exploitation of the state?s resources. Under these circumstances, located as they were on ?worthless? land, NPs inevitably acquired Cinderella status, and there was no clear vision and no underpinning legislation to guide their management.
However, with growing affluence came ?green? ideology, which began to impact the political discourse. In 1975 the National Parks and Wildlife Service was formed leading to the Queensland Parks and Wildlife Service a few years later. Although, no clear legislative framework was in place as to how QPWS should manage the parks under its supervision, a shift occurred within the public service whereby conservation values gained primacy in the formulation of management policy. There followed a phase of management best likened to locking the public library for fear of people damaging the contents through the willful act of reading.
In 1992, the Nature Conservation Act came into force, and for the first time, we see articulated in the state legislation a clear vision for the role of National Parks, and the principles by which they should be managed. Underlying this legislation, one of several eminently practical principles can be seen at play. Namely, the best outcome for the preservation of the natural environment within the National Parks will ensue if every effort is made to present to the public that which is considered worthy of preservation.
If management decisions are based on a logical appraisal of the balance between preservation and presentation, I believe, perhaps naively, that the Tragedy of the Commons can be averted. Where management chooses to present the conservation values of the park in a way that?engenders within park visitors a sense of stewardship, we begin to shift park visitors from being part of the problem to part of the solution.
If the climbing community wishes to access crags on the public estates, then all aspects of that access have to be evaluated within the context of the NCA. Like that for?any other visitor, climbing access needs to be managed?so that climbers?are empowered to become part of the solution. For those who love the great outdoors, I don?t think this is such a bad place to be after the decades of neglect.
A further societal trend worthy of comment is as follows.? With growing affluence there has been a parallel growth of the Nanny State, and with it, a shift in society?s perceptions of negligence and public liability. When I was a lad in the fifties, we were well warned of the hazards of diving into swimming holes, and yet everyone knew of someone, who knew of someone now wheelchair-bound, serving as testament to the folly of such actions. These people received no financial recompense, and nor did anyone think that they should?.. it was simply what happened when you did stupid things.
However, within a matter of decades the landscape shifted to embrace a new idea whereby people weren?t always responsible for their own judgment calls, and the land manager was negligent if he failed to warn of even the most clear and evident danger. Couple this with an unending supply of youth, a percentage of whom will always rise to the dare of their peers, and you have opened a channel by which the more entrepreneurial of the legal profession will help themselves to the largess of the state. A situation was created under which young men still continued to break their necks by diving into rock pools, but the state now compensated them and their families for those fleeting seconds of errant thought.
The debate about how much of a Nanny the state should be is not relevant here. What is relevant is the fact that the apparatus of state needs to manage the estates for which it is responsible in a way that does not result in a bleeding of the public purse through liability claims. As we will see, this one issue rose to dominate the discussion of management of climbing on the public estate.
enter the demon bolt
Up until the development of modern sport climbs within our parks, such hardware as was affixed to the rock for purposes of protecting the lead climber was removed by the seconder. Maybe the situation was not quite as cut and dried as this, but it suffices for the point I am making, which is that the advent of sport climbing with its dependence on permanently fixed bolts signalled a huge increase in the number of fixtures placed throughout the public estate, and a concomitant increase in the number of people placing their trust in a fixture not of their own devising.
The thought that there could be many hundreds of such bolts out there on the cliffs,?all of uncertain heritage and all deteriorating with each passing year, each and every one a possible magnet for a public liability claim, was certain, sooner rather than later, to ring alarm bells in the offices of the responsible state department.
In 1997 we see a the ?South East Queensland Rockclimbing and Abseiling Risk Management and Litigation Conference? being convened in Brisbane. Viewed today, perhaps a little unfairly because the intervening fifteen years grants me the luxury of hindsight, the published proceedings of this conference create a distinct impression that the layers of public servants really had no idea of what it was they were attempting to manage, but they were unified in the belief that, whatever the nature of beast, it needed regulating. Margaret Laurence, the then Principal Legal Officer, Queensland Dept of Justice and Attorney General, concludes her contribution -
This brief overview of the relevant legislation demonstrates the limited scope for allowing activities such as rockclimbing and abseiling on public land. ? Margaret Laurence1
I guess that it is always easier to shut something down? than make the effort to understand it. But, such an approach comes at a cost to the conservation values of the park, where the ever arising novelty of recreation must be embraced and integrated by management if damage is not to ensue.? I believe the public should call out such failures for what they are, ?lazy management?, and? demand better for our National Parks. I could elaborate, but there is an entire blog post waiting to be written here, so I?ll leave it for now and move on.
It was commendable that representatives of the climbing community participated in the conference. However, with the notable exception of Gordon Brysland, all seemed as incapable as the public servants of articulating what it was that everyone was intent on fixing. Fortunately, Gordon Brysland, being both an active climber and legal expert in matters of public liability, was able to ?bell the cat? in his awesome contribution,? ?Waiting for Romeo?.
As a general proposition, it is arguable that in some cases the risk that a bolt may fail in the absence of negligence by anyone is an inherent risk of climbing. In others, a practice of land managers not to become involved in climbing may operate to protect them from liability. It is also possible that a greater proliferation of bolted routes will make it impossible in practice for a duty of care to be imposed which requires inspection and maintenance. There remains also the ability of land managers to avoid liability for bolts by entrenching appropriate policy decisions in management plans. ? Gordon Brysland2
Over a decade later, when Adam Gibson and I fronted up at our first meeting with DERM, having just kicked-off the fledgling ACAQ, it was clear that the cat was no longer belled, and quite a lot of time and effort was expended getting to the heart of the matter at this and the subsequent meetings. However, while attending a meeting some twelve months on, sudden inspiration moved me to ask,? ?Suppose for now we could wish away the problem of public liability that attaches to climber-installed bolts ? are there any other problems associated with climbing on the public estate that are intractable, or could not be managed by the available mechanisms?? People thought for a while and then one by one chimed in with a chorus of ?No, no there is nothing else that is a problem?. The sense of relief was palpable?.. yes, we can fix this, surely we can?
land managers go bolting
This heading is taken from Gordon Brysland?s? ?Waiting for Romeo?. In it he says -
Contracting recreational climbers to do the work, or permitting the same under familiar ?nod and wink? arrangements, would not shift legal liability from the land manager. Once a land manager makes an operational decision concerning climber safety, its duty of care is likely to be non-delegable. The duty is not just to take reasonable care, but to ensure that reasonable care is taken. ??. Were a climber to be injured as a result of bolt failure in these circumstances, and negligence was shown, the land manager could be legally liable, and damages awarded. ? Gordon Brysland2
The land manager is in a bind. In managing sport climbing he needs to be able to say ?don?t bolt there, bolt here instead? as a means of ensuring that impacts fall on areas where they can be best sustained. However, in prescribing where climbers may or may not bolt he is implicitly directing the placement of bolts and concomitantly increasing his exposure to the public liability they attract.? On the other hand, if he turns a blind eye to climbing activity at a particular crag, not only will he be willfully unaware of the placement of bolts , but also of the state of the environment at that particular site ? something that, under the NCA,?ought to be his primary concern.
three outcomes
It is not surprising, therefore, that we find a number of parks having management plans that take the option of proscribing rock climbing. At first brush, this makes sense in terms of the NCA, which makes it clear that in any contest between conservation and recreation, conservation wins (see section 17(a) of the act). Thus, if the only way of managing rock climbing is to turn a blind eye to it, with the consequent risk to conservation values, it might make more sense to ban climbing altogether. Such is the case for the latest Lamington NP management plan, and the blanket ban it places on all climbing within the park, including the substantial climbing resource of Poondarah. The ban on climbing at Poondarah works not because it is policed, but because the aspirations of the climbing community don?t extend to it. In fact it is largely unknown to the current generation of climbers. However, given that management plans run for 10 years, and in 10 years the aspirations of the younger generation will certainly have extended to Poondarah and beyond,? it is seems to me we have set the stage for a policy that serves neither the recreation nor the conservation values of the park. Thus are sown the seeds for future environmental damage at this site.
Where an area has a long and continuing tradition of climbing, it is not so easy for a land manager to shut-down climbing, especially when it is not proscribed by the existing management plan. Any new management plan attempting to do so is likely to be hit with a barrage of opposition during the public consultation phase. The Glasshouse Mountains NP is such an example, and with the exception of the ban on Mt Coonowrin, which is a matter apart, climbing has been managed in this park in a fairly hands-off manner. Here, on Mt Tibrogargan, the managers can quite reasonably claim ignorance of the host of climber-placed bolts, immersed as such bolts are, in a veritable sea of steep rock. Such distancing from the act of bolt placement carries the distinct disadvantage that the land manager is the last to know of damage being done by access to any recently opened sport crag.
The third type of outcome is illustrated by the unique situation that has occurred at Frog Buttress. Because this crag exhibits a very specific and unusual rock structure, one that favours a style of climbing where the use of bolts for protection is spurned, we have what is essentially a bolt-free climbing venue. Relieved of the bogeyman of bolt liability, the land manager has been able to step in and actively manage this park for climbing. This isn?t to say there aren?t ever issues between climbers and managers, but as someone who knew this crag from its inception 45 years ago, the positive benefits to the environment of managing visitor impacts is striking.
losing sight of what matters
To be sure, what matters is easy to grasp? our too few, too fragmented, National Parks ought not be trashed, or loved to death, by mismanagement of visitor traffic. Since 1992, land managers have had clear direction on this matter under the NCA. The spirit in which this act was drafted is abundantly clear. And yes, there is a pile of stuff in the act to?hold the rapacious and the exploitative elements in check, but none of this is germane to the current argument. What we are trying to hold in focus is the problem of managing visitors rightfully enjoying what is, after all, a publicly owned asset of the state. What the?NCA says about management of National Parks under sect 17,? is very straight forward -
A national park is to be managed to?
(a) provide, to the greatest possible extent, for the permanent preservation of the area?s natural condition and the protection of the area?s cultural resources and values; and
(b) present the area?s cultural and natural resources and their values; and
(c) ensure that the only use of the area is nature-based and ecologically sustainable.
(2) The management principle mentioned in subsection (1)(a) is the cardinal principle for the management of national parks.
- Nature Conservation Act 1992 sect 17
Note that visitor safety is not up there in bright lights. Note also that the cardinal principle is flagged, and it is not visitor safety. However, in providing for the chief executive to draft subsidiary regulations of the act for purposes of its administration, we do find visitor safety gets a mention. Under ?sect 175 2, we have -
(1) The Governor in Council may make regulations under this Act.
(2) A regulation may be made with respect to any of the following matters?
(a) access to protected areas by persons or animals;
(b) the use of land, and activities, in protected areas;
(c) providing for the safety of persons in protected areas, including the regulation of access to, and activities in, protected areas by persons or classes of persons; Example for paragraph (c) A regulation might regulate camping in a protected area by children, or adults accompanying children, to protect children from injury by animals.
- Nature Conservation Act 1992 sect 175
It has to be believed that such regulations, as are created under sect 175, are pursuant to the primary aims of sect 17, and not arbitrary or self-serving in any shape or form. However, as we shall see,? it was too much to hope that regulations, being the lantana of the public affairs landscape, would stay subservient to the primary legislation.
With the passage of time, various regulations accreted themselves to the NCA. No doubt all were borne out of good intentions to support sect 17, no doubt all were abundantly clear in their purpose, but, fourteen years after the NCA passed into law, when the Nature Conservation Regulations 2006 were signed off by the Governor in Council, one wonders how clear the intent of much of the minutia was to those authorising them. This four part gift-set for insomniacs includes amongst its number?Nature Conservation (Protected Areas Management) Regulation 2006 (NCR) .? In this we see formulated a number of mechanisms designed to regulate access to the public space. Two of them show that the bogeyman of public liability was causing the regulators to lose sight of what really matters.
Firstly, restricted access areas. Under NCR sect 74 we have -
(1) The chief executive may declare a protected area or a part of a protected area to be a restricted access area only if the chief executive reasonably believes the declaration is necessary or desirable?
(a) to secure the safety of a person or a person?s property; or ???
(c) to conserve or protect the cultural or natural resources of the area or native wildlife ??;
or??.
(f) for the orderly or proper management of the area.
- Nature Conservation (Protected Areas Management) Regulation 2006 sect 74
I can understand 1(c), but what is safety doing up there as the first point?? In what way does this regulation help management to carry out its obligations under sect 17 of the NCA? As the for the final point 1(f), this is the epitome of a self-serving regulation. It is laziness writ large.
Secondly, special activities. Under NCR sect 79 we have -
The chief executive may declare only 1 or more of the following activities to be a special activity for all or part of a protected area?
(a) an activity that will, or is reasonably likely to, have an unusual or significant impact on the cultural or natural resources of the area or part;
(b) an activity for which special training or supervision is needed before a person can safely engage in the activity;
(c) an activity that will, or is reasonably likely to, involve a risk to the public.
Examples of activities that may be declared as special activities?
rock climbing, white water rafting- Nature Conservation (Protected Areas Management) Regulation 2006 sect 79
Again, I can partially understand point (a), though I am struggling to grasp exactly how any activity that causes ?unusual or significant impact on the cultural or natural resources? would ever be acceptable. But points b) and c)? Whatever has that to do with sect 17 of the NCA? And then to make rock climbing exemplar of a special activity? It is clear that the understanding of the true risks and attendant public liability exposure presented by sport climbing, as well as the appreciation of the aspirations of the burgeoning sport climbing community was at a nadir within the state bureaucracy when these regulations were drafted.
So we see that by 2006, matters had come to a pass whereby land managers were losing sight of the cardinal principle. Fear of litigation and minutia of regulation having displaced the issues of rightful concern. Hindsight is a harsh judge, but I can?t help but think that a simple snapshot of the situation at climbing crags throughout Europe and the United States would have alerted all but the willfully blind to the recreational demand that was heading our way.
closing the gap
In the closing days of 1999, a profound hiatus opened between the climbing community and land managers when Mt Coonowrin, a major and unique facet of South East Queensland climbing, was closed to public access. The closure was pre-emptive, with no public consultation period, and I believe, without the knowledge of the public servants who were actively engaging the climbing community via the South East Queensland Rockclimbing and Abseiling Site Management Forum. This unfortunate mis-step destroyed the trust that had been built up, and pushed? the new surging interest in sport climbing ?underground?, with the subsequent development of sport crags being carried out ?below the radar? of the land management.
Such a situation was less than ideal in that management lost track of where new climbing development was taking place. Even more important was the fact that management was left nursing an increasingly irrelevant understanding of rock climbing, one that might be applicable to the ?bolt-free? climbing at Frog Buttress, but left them ill-equipped to cope with the burgeoning growth of sport climbing. ? This state of affairs persisted for ten years, and might have continued longer if it were not for an event that forced the climbing community to stand-up and be counted. A number of climbers were fined by QPWS for fixing bolts at Mt Flinders. The validity of using the NCR for this purpose is a subject apart. What matters for the purposes of this discussion was that it provided the catalyst for the formation of a climbers organisation capable of engaging the state bureaucratic apparatus. Thus, the ACAQ was born out of this one act of bureaucratic overreach, and formal communications with the Department of Environment and Resource Management (DERM) commenced.
I don?t believe anybody, climber or public servant, wants to see the environment trashed, or more pointedly, wants to be the person responsible for a policy that has such an outcome. So, by keeping this one thing,? the only thing that really matters,? in the centre of the negotiating table,? progress was relatively straight forward.
Kudos should go to the public servants who took on board the new information ACAQ was able to provide, and to come up with a policy draft for cliff-based activities on the estates managed by DERM. And, it was with as much surprise as pleasure for me to discover that the many hours ACAQ had invested in reviewing drafts had finally made it into an official QPWS Operational Policy (OP) some three years later. All this despite hiccups along the way which included contention over the Draft Mt Coolum NP Management Plan, and tumultuous changes in the structure of state departments following the state elections.
where are we now?
There is plenty not to like, or to push back against in the new OP, but it would be churlish to do so without pausing to consider what is good, if not great, about this document.
This is the best bit ? right at the start, where it should be -
1.1 QPWS will allow rock climbing in appropriate areas, consistent with the protection of park values.
1.2 QPWS will accommodate a diversity and range of settings and opportunities for rock climbing activities at appropriate sites across the State.
- Rock climbing on QPWS managed areas 2012
Not impressed? Well you should be. Whilst most climbers have no doubt of their basic right to climb within a National Park, there are still? QPWS officers who view rock climbing as the deviant behaviour of a reckless minority.? In all fairness, in times past (I hope they are past) there were members of the climbing community whose cavalier behaviour showed they had no notion of the concept of a national park, so the above prejudice may well be justified. However, what this OP does, is provide guidance for QPWS officers on the ground, and right there at point 1, it is recognizing recreational rock climbing as a valid activity within the framework of the NCA sect 17. Beyond this point we are, as they say, just messing with the details.
The second best bit is here -
6.1 QPWS acknowledges that permanent fixed protection and other permanent climb aids (including anchors and chains) already exist at many sites within QPWS managed areas and that these are necessary for maintaining a range of climbing opportunities.
- Rock climbing on QPWS managed areas 2012
There, at last, they have gone and spoken the unspeakable. I guess this became easier with the realisation that with the growth of sport climbing came an evolution in safety systems. Bolts became much safer, and the exposure to single point failure diminished, taking it out of the extreme sport classification. Climbing no longer was the edgy, high stakes game it was decades ago.
So we come to a pass, exactly twenty years after a legislative mechanism suitable for the management of recreational climbing within the protected estates was signed into law, to a point where we can actually use its framework in a way that ensures the best for both climber and environment.
References:
1.? Laurence M. 1997, ?Common and Statute Law Relevant to the Management of Public Land?: in Proceedings of the South East Qld Rockclimbing and Abseiling Risk Management and Litigation Conference ISBN 0-7242-7992-X
2.? Brysland G. 1997, ?Waiting for Romeo?: in Proceedings of the South East Qld Rockclimbing and Abseiling Risk Management and Litigation Conference ISBN 0-7242-7992-X
Source: http://www.qldclimb.org.au/2012/12/commentary-on-nprsr-operational-policy-rock-climbing-on-qpws-managed-areas/
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