Commonwealth Lands and Activities of the Commonwealth and Commonwealth Agencies

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1 Commonwealth Lands and Activities of the Commonwealth and Commonwealth Agencies 1. INTRODUCTION The Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act ) came into force on 16 July The EPBC Act applies throughout Australia, however, it contains a number of special requirements and obligations that only apply to Commonwealth agencies and Commonwealth land. This fact sheet deals with the following issues. What are Commonwealth areas, Commonwealth land and Commonwealth agencies? The environmental impact assessment and approval processes that apply to Commonwealth lands and actions of the Commonwealth and Commonwealth agencies. The protection of habitat on Commonwealth lands that is critical to the survival of a listed threatened species or ecological community. The protection of listed threatened species, listed threatened ecological communities and listed migratory species on Commonwealth lands. Environmental plans under the EPBC Act and their application to Commonwealth lands and Commonwealth agencies. The identification of listed threatened species, listed threatened ecological communities and listed migratory species on Commonwealth lands. Access to biological resources in Commonwealth areas. Environmental reporting by the Commonwealth and Commonwealth agencies. Where to go to get more information. 2. WHAT ARE COMMONWEALTH AREAS, COMMONWEALTH LAND AND COMMONWEALTH AGENCIES? 2.1 Commonwealth land Commonwealth land is defined under the Act as including: land owned by the Commonwealth or a Commonwealth agency (including land owned in Norfolk Island) and airspace over the land; an area of land held under lease by the Commonwealth or a Commonwealth agency (including an area held under lease in Norfolk Island) and airspace over the land; land in: - an external Territory (except Norfolk Island); or - the Jervis Bay Territory; and airspace over the land. 1

2 2.2 Commonwealth areas Commonwealth areas include Commonwealth land and the Commonwealth marine area. Broadly, the Commonwealth marine area includes the waters between 3 nautical miles and 200 nautical miles (or the edge of the continental shelf, which ever is further) of the low water mark, the airspace above those waters and the seabed below those waters. 2.3 Commonwealth agencies Commonwealth agencies are defined broadly so as to include (amongst other things): a Minister; a body corporate established for a public purpose under a law of the Commonwealth; a company in which the whole of the shares, or shares carrying more than one-half of the voting power, are owned by or on behalf of the Commonwealth; and a person holding or performing the duties of an office established under a law of the Commonwealth (except a judicial office or office of a member of a tribunal) or an appointment made under a law of the Commonwealth (except an appointment to a judicial office or office of a member of a tribunal). There are a number of exceptions from these general descriptions. For example, certain Aboriginal Land Trusts and Councils established under Commonwealth laws are excluded from this definition. Similarly, Telstra Corporation Ltd is also not a Commonwealth agency for the purposes of the Act. 3. ENVIRONMENTAL ASSESSMENT AND APPROVAL PROCESS 3.1 The approval trigger Under Part 3 of the EPBC Act, the following actions are required to be assessed and approved by the Minister: actions that are likely to have a significant impact on a matter of national environmental significance ; actions that are likely to have a significant impact on the environment on Commonwealth land; actions carried out on Commonwealth land that are likely to have a significant impact on the environment anywhere; and actions taken by the Commonwealth or a Commonwealth agency that are likely to have a significant impact on the environment anywhere. At present, the following are the matters of national environmental significance : world heritage values of declared World Heritage properties; ecological character of declared Ramsar wetlands; listed threatened species (other than extinct and conservation dependent species) and ecological communities (other than vulnerable ecological communities); migratory species listed under the Act; nuclear actions that are likely to have a significant impact on the environment; and the Commonwealth marine environment, which covers: - actions taken in a Commonwealth marine area that are likely to have a significant impact on the environment; - actions taken outside a Commonwealth marine area that are likely to have a significant impact on the environment in a Commonwealth marine area; and - fishing in a Commonwealth managed fishery that is likely to have a significant impact on the environment. 2

3 Actions are defined for these purposes as including a project, development, undertaking, activity or a series of activities. However, an action does not include a decision of a government body to grant a governmental authorisation or to provide funding by way of a grant. It should also be noted that environment is defined broadly so as to including the qualities and characteristics of places and the social, economic and cultural aspects of a place or thing. 3.2 Exemptions The EPBC Act provides a number of exemptions from the requirement for the actions described in paragraphs 2.1 and 2.2 above to be assessed and approved. For example, approval is not required for: actions that were authorised under State, Territory or Commonwealth law before 16 July 2000, and do not require any further authorisations; and actions that are a lawful continuation of an existing use of the land, sea or seabed that was occurring before 16 July (Note that an expansion or intensification of a use is not a continuation of a use.) For more information on exemptions from the assessment and approval process, see the EPBC Unit Fact Sheet on Exemptions. 3.3 How does the assessment and approval process work? The general steps in the assessment and approval process are as follows. Step 1 Referral A person who believes an action may have a significant impact on: a matter of national environmental significance; the environment on Commonwealth land; or the environment generally where the action is carried out on Commonwealth land or is being taken by the Commonwealth or a Commonwealth agency, must refer details of the action to the Commonwealth Minister for the Environment and Heritage (the Minister ). Step 2 Controlled action decision After the Minister receives a referral, he/she must decide whether the project needs to be approved under the Act (ie whether it is likely to have a significant impact on a matter of national environmental significance, the environment on Commonwealth land, or the environment generally where the action is taken by the Commonwealth or a Commonwealth agency or is carried out on Commonwealth land). Actions that require approval are called controlled actions. If the Minister decides the action does not require approval, the proponent can proceed with the action (provided all other Commonwealth/State/Territory approvals have been obtained). Step 3 - Provision of preliminary information If the Minister decides a project requires approval under the Act, the proponent must provide certain preliminary information about the project to the Minister. The information that must be provided is described in Part 5 and Schedule 3 of the Regulations. This information is intended to assist the Minister to decide how the project should be assessed. 3

4 Step 4 - Assessment approach decision Within 20 business days of receiving the preliminary information, the Minister must decide which of the following types of assessment will be used to assess the relevant environmental impacts of the action: assessment on the preliminary documentation; a public environment report ( PER ); an environmental impact statement ( EIS ); a public inquiry; or an accredited assessment process (which generally involves the accreditation of a State or Territory environmental assessment process, or another Commonwealth assessment process). Within 10 business days of making this decision, the Minister must give notice of the decision to the proponent and relevant State or Territory in which the project will be carried out, and publish notice of the decision on Environment Australia s website. Note that if a bilateral agreement is in place that accredits a State assessment process, the State (and not the Commonwealth) will assess the project. Similarly, if a Ministerial declaration is made that accredits another Commonwealth assessment process, the action will be assessed under that process (and not under the process outlined in the EPBC Act). For more information on bilateral agreements, see the EPBC Unit Fact Sheet on Bilateral Agreements. Step 5 Assessment After the proponent has been notified of the assessment approach decision, the assessment must be carried out. The processes that apply differ according to the type of assessment. For more information on these assessment processes, see the EPBC Unit Fact Sheet on Environmental Impact Assessment and Approval under the EPBC Act. Note that assessments under the EPBC Act will usually only assess the impacts of a proposed activity on the matters that triggered the approval and assessment requirement. So, for example, if a project requires approval because it is likely to have a significant impact on the environment on Commonwealth land, the assessment under the EPBC Act will usually only assess the potential impacts on the Commonwealth land. The Act defines these impacts as the relevant impacts. The broader environmental impacts of a project will usually be assessed under applicable State and Territory assessment processes. Step 6 Approval Once the Minister receives the relevant report on the assessment, he/she will usually have 30 business days (40 business days if the report was provided by Commissioners appointed to hold a public inquiry) to decide whether or not to approve the project in question. If the Minister approves a project, he/she can impose conditions on the approval. For more information on the approval process, see the EPBC Unit Fact Sheet on Environmental Impact Assessment and Approval under the EPBC Act. 3.4 Penalties for non-compliance Maximum penalties for taking an action without a required approval include 7 years imprisonment and/or a fine of up to $550,000 for an individual and $5.5 million for a corporation. The offender may also be required to pay for the mitigation or repair of any environmental damage caused by the action. Maximum penalties for contravening a condition of an approval include 2 years imprisonment and/or a fine of up to $110,000 for an individual and $1.1 million for a corporation. Directors and managers of companies can be found liable for offences committed by their companies. 4

5 3.5 Community involvement Can I comment on proposed actions? Members of the public are usually provided with an opportunity to provide comments at two stages in this process: at the referral stage where members of the public will usually be provided with an opportunity to comment on whether the action is likely to have a significant impact on a matter of national environmental significance, the environment on Commonwealth land, or the environment generally where the action is taken by the Commonwealth or a Commonwealth agency or is carried out on Commonwealth land; and at the assessment stage where members of the public will usually be provided with an opportunity to comment on the adequacy of assessment documentation that has been prepared by the proponent, whether the action should be approved and, if it is approved, what conditions should be attached to the approval. What can I do if somebody has contravened the Act? If you are concerned that a project is being carried out without a required approval, you can: ask the Minister to call in the activity for a determination on whether it requires approval under the Act; write to the developer or relevant State agencies requesting them to refer the activity to the Minister under the EPBC Act; and/or if the activity has been commenced and it has caused significant harm to a matter of national environmental significance, ask the Minister to take enforcement action against the perpetrator. In addition, if you may be entitled to apply to the Federal Court for an injunction to prevent the action, and if appropriate, an order to repair or mitigate environmental damage. You should contact a qualified legal practitioner (such as the Environmental Defender s Office) if you are considering commencing any legal action. 4. PROTECTION OF CRITICAL HABITAT ON COMMONWEALTH LAND The Act requires the Minister to maintain a list of habitat that is critical to the survival of a listed threatened species or ecological community (called the Register of Critical Habitat ). Copies of the Register are available at: Critical habitat located on Commonwealth land is protected in three main ways. As discussed above, approval and assessment is usually required to take an action that is likely to have a significant impact on a matter of national environmental significance, the environment on Commonwealth land, or the environment generally where the action is taken by the Commonwealth or a Commonwealth agency or is carried out on Commonwealth land. There is a significant possibility that an action that is likely to have a significant impact on listed critical habitat on Commonwealth land will trigger the approval and assessment requirements. It is an offence under s.207b to take an action in a Commonwealth area that significantly damages listed critical habitat (other than habitat that relates to a conservation dependent species) without a permit or other relevant excuse (see section 5 below). Maximum penalties for damaging listed critical habitat in these circumstances include 2 years imprisonment and/or a fine of up to $110,000 for an individual and $550,000 for a corporation. Before a Commonwealth agency sells or leases any land containing listed critical habitat, it must ensure the contract includes a covenant for the protection of the habitat and must take reasonable steps to ensure the covenant binds any person who subsequently acquires an interest in the land. 5

6 For more information on critical habitat, see the EPBC Unit Fact Sheet on Threatened Species and Ecological Communities. 5. PROTECTION OF BIODIVERSITY ON COMMONWEALTH LAND 5.1 The permit requirement Under Part 13, a permit is required to do any of the following on Commonwealth land: take an action that results in the death or injury of a member of a listed threatened species (other than a conservation dependent species), listed threatened ecological community or listed migratory species; take, trade, keep or move a member of a listed threatened species (other than a conservation dependent species), listed threatened ecological community or listed migratory species; or significantly damage habitat that is listed on the Register of Critical Habitat as critical to the survival of a listed threatened species or ecological community (except a conservation dependent species ). 5.2 Exemptions There are a number of exemptions from these permit requirements. In this regard, a permit is not required for (amongst other things): actions provided for in, and taken in accordance with, a recovery plan or wildlife conservation plan for the relevant species; actions covered by an approval in operation under Part 9 for the purposes of relevant provisions in Part 3 (ie. ss.18, 18A, 20 and 20A); actions that are necessary to relieve or prevent the suffering of an animal; actions that are reasonably necessary to prevent risk to human health; actions that are reasonably necessary to deal with an emergency involving a serious threat to human life of property; actions that occur as the result of an unavoidable accident; and actions taken in accordance with a permit issued under the Great Barrier Reef Marine Park Act 1975 (Cwlth). 5.3 Notification requirement If a person harms, injures, takes or trades a member of a listed threatened species, listed threatened ecological community or listed migratory species without a permit, and the act is not an offence by virtue of the operation of one of the available exemptions, the person is required to notify Environment Australia within 7 days of becoming aware of the action. 5.4 Penalties Maximum penalties for taking an action without a required permit include 2 years imprisonment and/or a fine of up to $110,000 (for an individual) or $550,000 (for a corporation). Fines of up to $33,000 can also be imposed on a person who contravenes a condition of a permit. 6

7 6. ENVIRONMENTAL PLANS 6.1 Recovery plans and wildlife conservation plans The Act requires recovery plans to be prepared for listed threatened species and ecological communities (except conservation dependent species) (irrespective of where the species occur). Where a species or ecological community occurs wholly or partly in State or Territory, the Commonwealth must seek to cooperate with the relevant State or Territory when preparing and implementing recovery plans and wildlife conservation plans. The Minister may prepare wildlife conservation plans for conservation dependent species, listed migratory species, cetaceans and listed marine species. Threat abatement plans can also be prepared for listed key threatening processes. Commonwealth agencies are required to comply with recovery plans and threat abatement plans, and must take all reasonable steps to comply with the terms of wildlife conservation plans. 6.2 Management plans Management plans must be prepared for Ramsar wetlands and World Heritage Areas that occur wholly within a Commonwealth area. Where Ramsar wetlands and World Heritage Areas occur wholly or partly within a State or Territory, the Commonwealth must use its best endeavours to prepare and implement a management plan for the area in cooporation with the relevant State or Territory. Commonwealth agencies must comply with management plans for Ramsar wetlands and World Heritage Areas that occur wholly with a Commonwealth area, but need only take all reasonable steps to comply with a management plan for a Ramsar wetland or World Heritage Area that is located wholly or partly in a State or Territory. Management plans must also be prepared for Commonwealth reserves and Commonwealth agencies are required to comply with these plans. The Commonwealth can prepare management plans for Biosphere reserves that occur wholly within a Commonwealth area. If a biosphere reserve occurs wholly or partly in a State or Territory, the Commonwealth can cooperate to prepare and implement a management plan for the area. In either case, the Commonwealth and Commonwealth agencies must take all reasonable steps to comply with the terms of management plans for Biosphere reserves. 7. IDENTIFYING BIODIVERSITY ON COMMONWEALTH LAND Under Part 12 of the EPBC Act, the Commonwealth is required to prepare inventories of nationally listed threatened species, ecological communities and migratory species on Commonwealth land. These inventories must be prepared by 16 July 2005 (or within 5 years of the land becoming Commonwealth land), and must be kept up to date. 8. ACCCESS TO BIOLOGICAL RESOURCES IN COMMONWEALTH AREAS Regulations may be prepared to control access to biological resources in Commonwealth areas under the EPBC Act. Biological resources is defined for these purposes as including genetic resources, organisms, parts of organisms, populations and any other biotic component of an ecosystem with actual or potential use or value to humanity. Draft Regulations for a scheme to control access to genetic resources were released in September However, these regulations have not yet been made. Further information on the draft regulations is available at: 7

8 9. ANNUAL REPORTS OF COMMONWEALTH AGENCIES Under the EPBC Act, annual reports of Commonwealth agencies must deal with environmental matters, including how the agencies activities accorded with the principles of ecologically sustainable development. The principles of ecologically sustainable development are defined for these purposes as: decision-making processes should effectively integrate both long-term and short-term economic, environmental, social and equitable considerations; if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation; the principle of inter-generational equity that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations; and the conservation of biological diversity and ecological integrity should be a fundamental consideration in decision-making; improved valuation, pricing and incentive mechanisms should be promoted Under the Auditor-General Act 1997 (Cwlth), the Auditor General may conduct a performance audit on compliance with these requirements. 10. WHERE TO GO FOR FURTHER INFORMATION The EPBC Act and related information is available on Environment Australia s website at: EPBC Unit Website: Ph: (02) Fax: (02) epbc@wwf.org.au Environment Australia Community Information Unit Ph: ciu@ea.gov.au Compliance and Enforcement Ph: (02) compliance@ea.gov.au National Environmental Defender s Office Network Website: WWF Australia Website: Phone: enquiries@wwf.org.au Humane Society International Website: Phone: (02) enquiries@hsi.org.au Tasmanian Conservation Trust Website: Phone: (03) tct@southcom.com.au Warning!! This fact sheet has been prepared for information purposes only. WWF Australia, Humane Society International and the Tasmanian Conservation Trust shall not be liable for any loss or damage that may be occasioned directly or indirectly through the use of, or reliance on, the contents of this document. 8