Risky Business – Legal Action Begins

This week it’s legal letters – both from ACAV and from Parks Victoria. In a potential bombshell, internal PV documents suggest the bans could only be valid for 12 months. It finally seems this issue is coming into the court of law – not just the court of public opinion.

ACAV’s Legal Letter to PV

After months of mystery ACAV have announced the legal action that they have been working on behind the scenes. This is based around the Set Aside Determination document used by Parks Victoria to put in place a rock climbing ban across over 550 square kilometres (the world’s largest climbing ban). We will analyse the actual Set Aside Determination document later in this article – but let’s first focus on ACAV’s legal action. From their press release:

“a letter from the ACAV lawyers was issued to Parks Victoria on Monday 2nd September 2019, asserting that the set aside determination for the Grampians rock climbing bans is invalid and proposing that the set aside determination should be revoked.”

You can read ACAV lawyer’s letter to PV at the link below:

It appears there are two reasons given why ACAV’s legal counsel believe the climbing bans using the Set Aside Determination are not valid.

Reason 1 – Climbing isn’t a sport

The first reason is somewhat of a technicality – but a valid one. The regulation used to ban all forms of climbing (reg 65) is one that only covers the prohibition of “sports”. The argument is that climbing is not a “sport” as it is not competitive or governed by a set of rules. To quote the legal letter:

“Regulation 65, by reference to “sport” and the use of the words of limitation “or similar”, is confined to prohibiting activities of a competitive nature, conducted under rules, in contrast to the (lesser) power of restriction in reg 66 which extends to “sport or other recreational activities”.

So climbing is a “recreational activity” rather than a sport. Fair enough. Climbing in the outdoors certainly does not involve competing against other climbers and is not organised by any sort of governing body or rule book. The loose “rules” climbers play by are more a code of ethics than a rule book and differ greatly between individuals. You can’t get a “yellow card” for dabbing, put in the sin bin for swearing or be fined for taking a fall and then claiming an onsight to your mates. You can even scoff as many performance enhancers as you want without repercussions. Some people might claim that climbing is now in the Olympics – but that whole indoor pursuit is so divorced from outdoor climbing that there are few parallels. It’s like comparing bushwalking to the 10,000 metre running race in a stadium. However – it does appear that PV only has to issue a new determination through reg 66 to fix this legal problem. ACAV believes this change to reg 66 is actually not a bad thing as:

“It’s a restriction not a prohibition – much lighter in legal terms. R66 implemented with climber input will protect culture, environment and climbing through a more granular approach. A simple sign at the trail-head is a lazy approach.”

Mike Tompkins – ACAV President

Reason 2 – It’s Unreasonable

The second reason given in the legal letter to PV is about the bans being both disproportional and legally unreasonable. This is a lot more of a solid argument to regain access to much of the climbing lost in the SPA bans. To quote the legal letter:

“in view of the objectives of the Act and Regulations, the availably of those alternative and less burdensome measures, the supposed mischief referred to in the briefing paper, and:
(a)  the extent of the measure by prohibiting all and any form of rock climbing and singling out that activity and no other recreational activity when other activities might also give rise the supposed mischief being addressed;
(b)  the indefinite duration of the measure (not limited to 12 months as stated in the briefing paper);
(c)  the width of the largely undefined and uncertain areas subject to the set-aside determination (incapable of meeting the requirement in reg 10 that Parks Victoria must erect or display signs at or near the entrance to each of those areas), the set-aside determination is legally unreasonable in being disproportionate to the supposed mischief to be addressed, noting that the determination is in the nature of by-law sourced from the power on s 38(2)(ca) of the Act, and the making of the determination is legally unreasonable in lacking an evident and intelligible justification.”

In laymans terms it means the specific targeting of climbers (as opposed to other user groups that can also “cause mischief”), the open ended time frame and the ability to actually manage such a huge area with signage is not reasonable. Allowing bushwalkers to still go to these areas whilst prohibiting climbers is an example of rock climbers being targeted unreasonably. There are 8 sites where they have erected signage (The Gallery, Millenium etc) but the many remaining crags (and thousands of routes) are not signposted as prohibited. Even Summer Day Valley seems to fall outside as the signs erected there are no regulatory notices with required wording stating the regulations.

This letter is only a response from ACAV seeking remediation or further meditation. The bans will be in place until PV withdraws them or a judicial review deems then invalid. It’s also important to remember there are genuine Cultural Heritage sites in some of these areas that climbers may not know about. Protecting these sites is of the highest importance. Regardless of where you climb, tread lightly, always cooperate with Rangers and be respectful if approached.

Vertical Life has written a good analysis of the possible legal outcomes from this bold ACAV move. Read it here.

Set Aside Determination

The following is information about the actual Set Aside Determination – a document supplied to the ACAV legal team from PV’s own Manager of Legal Services John Stevens. This document is part of paperwork that PV’s COO Simon Talbot used to gain approval for the prohibition of rock climbing in the Grampians National Park SPAs. These were signed in February this year – just days before the bans were announced to a gob smacked climbing community. Remember that PV had been working on this plan for more than a year but had failed to mention anything about it to VCC/CliffCare who were in regular meetings with them.

Download the lot at the link below.

Let’s dig in! The big news seems to be right there on the first page. The initial application was for a prohibition on all forms of rockclimbing… for a twelve month period – with the letter dated 1/2/2019. This doesn’t appear to be a mirage… but is it what it says? Do the bans end in February 2020? We have yet to get this clarified.

Reasons for the Bans

The next part of the document gives the reasons for the bans – which is quite interesting reading. Who came up with these reasons? Rangers in the Grampians PV office or someone at head office? Information seems shoddy in places. Lets look at the listed reasons in detail:

“It has become apparent through observation and research (undertaken at other locations) that rock climbing is damaging both Aboriginal cultural heritage and the natural environment”

Where was this research performed and by whom? What were the results? No further information was supplied in this document. Attempts to get any of this background research through FOI has been blocked by redactions of up to 90%. The wording “is damaging” rather than “potentially damaging” is a low blow. Despite more than a hundred years of rock climbing in the Grampians we have only seen photos of a chalked up quarried edge at The Gallery and a lone safety bolt placed a few metres from art (now removed). What we have seen is graffiti from tourists straight over Aboriginal art – but those tourists are free to come and go.

“The manufacturing of holds by trundling or hold chipping the rock surface leading to direct damage to Aboriginal rock shelters and artwork and environmental damage through the removal of vegetation, changes in water flow and erosion”

That’s quite a sentence to unpack. Hold manufacturing (chipping) in the Grampians is simply not something that occurs to any degree. World wide climbing ethics frown on this practice and it is a falsehood to claim it happens in the Grampians. It’s certainly odd that this is the #1 reason given for the bans! Grampians rock quality is famous for being super hard and clean. There is little loose rock or choss that could endanger others and needs removing. The reason people travel from around the globe to climb in the Grampians is because the rock is so good. The last claim in this record breaking sentence about “changes in water flow” is truly bizarre. The Grampians has little moving water at all – and none near climbing areas. What are they talking about? Rain? We would suggest building roads and tourist tracks would cause much larger changes to water flow and erosion than a couple of climbers.

“The installation of fixed anchors points directly into rock faces leading to direct damage to Aboriginal rock shelters and artwork and environmental damage through the removal of vegetation, changes in water flow and erosion”

Now bolts are causing changes in water flow and erosion? This is looking more like the remains of an older copy/paste template application now. Did anyone actually read this? And again the claim of “direct damage” to Aboriginal artwork by safety bolts has been proved again and again to be false. Show us the evidence PV! Most climbers would readily agree that new bolts should be restricted in the Grampians to avoid potential problems. But let’s not claim it’s about to redirect creeks.

“Girdling of trees to create belay points leading to direct damage to vegetation”

Err what? We are not sure who was doing their research but this is a very odd claim. We presume they are referring to trees being damaged by climbers running ropes around them as abseil points. This just isn’t a problem in the Grampians (it is at some areas in Australia like Frog Buttress). The uniqueness of Grampians geology generally means trad and natural rock bollards are used instead of slinging trees. This is not a major problem – or even a minor one. Fail PV.

“Removing and brushing vegetation during climbs leads to direct damage to vegetation and the use of chalk creates a visual disturbance and damages vegetation especially lichen and mosses…”

Fair point – but these should apply to all of the Grampians – not just Special Protection Areas or Set Asides. By singling out SPA areas it appears they are saying that damaging vegetation outside of them is ok? And it certainly is not (don’t do it!). A point should be made that, just like the Grampians is known for it’s rock quality, it is also known for the natural cleanliness of it’s rock. Removing vegetation or scrubbing lichen has never been common as it simply doesn’t exist at the majority of Grampians climbing areas. Climbers can make an effort to do less harm, especially with bouldering pads. This is strangely not mentioned however.

So now we know the “official reasons” – some legit some not so legit. That isn’t a surprise as it’s now common knowledge that PV actually did very little research into climbing before pushing through these bans. Research was mostly conducted in the office and a heavy anti-climber bias from certain rangers has been woven into this document. Parks Victoria certainty didn’t talk it through with any climbing groups such as the VCC before applying for these bans.

Risky Business

Another section to look at is the “risk management” component of this document. This is where Simon Talbot checks off risks associated with creating these new “set aside” areas where climbing is prohibited.

The folly! Clearly PV was oblivious to the economic and financial damage they were about to put on themselves (in attempting to manage all of this) and also the destruction of the climbing tourism industry. Suddenly Licensed Tour Operators were banned from the most popular crag in the Grampians, Summer Day Valley, and international and interstate visitors began cancelling their holidays. Can you imagine the financial cost that PV has occurred just dealing with the fallout from SDV? And the media attention? They have employed new stakeholder managers, media people and are now hosting Rock climbing round table meetings with all the Victorian climbing clubs – whilst using an external company Deloitte to “facilitate” it. At a recent LTO meeting in Halls Gap they had 8 PV staff in attendance plus 3 from Aboriginal Victoria. This is costing them a bomb.

Simon Talbot also failed to tick the “human resources and safety” risk box. And what ended up happening? PV is forced to send in action vested “compliance officers” working in pairs into the bush to try and enforce these bans. Staff are now being put into situations where they are supposed to be patrolling cliffs – usually the domain of skilled rock climbers using safety equipment. We hope these rangers are now wearing helmets! Seems like a safety hazard for staff to us. And the PV office atmosphere is now described as “toxic” according to several insiders we have spoken to. PV staff have been cautioned, investigated, put on leave and even let go (or asked to leave?). It’s not happy times in human resources. Every time a PV staff member has to deal with the climbing bans – it’s less time they can deal with any of many other issues associated with managing the rest of the Grampians (or in Simon Talbots case – the whole of Victoria’s National Parks). Another own goal from PV risk assessment.

Business disruption was another risk they thought wasn’t an issue. Not only has this clearly effected the working business of running Parks Victoria, it has affected numerous accommodation and guiding businesses in the region. And that is just scratching the surface.

Lastly, don’t forget that by shutting some of the best and safest climbing areas in the country they have forced climbers to move to areas with far higher levels of loose rock. The danger to the climbing community is not to be sneezed at. Climbers once used Summer Day Valley as their training ground to gain skills required to climb at other areas. School groups, scouts and the military are now required to use places never designed for large groups.

The bans are also damaging the mental health of hundreds of climbers and putting into doubt the continued existence of the town of Natimuk. This is millions of dollars of damage. There were so many risks in these bans that were never thought through.

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