Protection of Ramsar Wetlands under the EPBC Act

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1 Protection of Ramsar Wetlands under the EPBC Act 1. INTRODUCTION The Commonwealth Environmental Protection and Biodiversity Conservation Act 1999 (the EPBC Act ) commenced on 16 July 2000 and brought about major changes to Commonwealth environmental law. One important aspect of the EPBC Act is the protection it provides for wetlands that are included on the List of Wetlands of International Importance under Article 2 of the Convention on Wetlands of International Importance especially as Waterfowl Habitat done at Ramsar (1971) (called the Ramsar Convention ). Wetlands on this list are called Ramsar wetlands. Details of Australia s Ramsar wetlands are available on the Commonwealth Department of the Environment and Heritage s (which is called Environment Australia ) website at and also on the website for the Ramsar Convention (see: particularly the Annotated Ramsar list at: This fact sheet deals with the following issues relating to Ramsar wetlands. The key Ramsar wetland provisions of the EPBC Act. How are wetlands included on the List of Wetlands of International Importance? The environmental assessment and approval process. Management plans for Ramsar wetlands. Conservation agreements and financial assistance. Where to go to get more information. 2. THE KEY RAMSAR WETLAND PROVISIONS The key provisions of the EPBC Act that relate directly to Ramsar wetlands are: Part 3, ss.16 and 17B which impose approval and assessment requirements on activities that are likely to have a significant impact on the ecological character of a declared Ramsar wetland; Part 15, Division 2, Subdivision C which enables management plans to be prepared and implemented for Ramsar wetlands; and Part 15, Division 2, Subdivision B which sets out the process for the designation of wetlands on the List of Wetlands of International Importance. These provisions of the EPBC Act are discussed in greater length below. However, readers should be aware that there are also several other elements of the EPBC Act that, while not exclusively related to Ramsar wetlands, can provide protection for the wetlands and species and communities related to the wetlands. These include the following. Part 3 provides protection for matters of national environmental significance, the environment on Commonwealth land, and the environment generally where the relevant actions are carried out on Commonwealth land or are taken by the Commonwealth or a Commonwealth agency. The matters of national environmental significance include the ecological character of declared Ramsar wetlands (via ss.16 and 17B). However, they also include listed threatened species, listed threatened ecological communities, listed migratory species, the world heritage values of World Heritage Areas and Commonwealth managed fisheries. A number of Ramsar wetlands are found in World Heritage Areas and on Commonwealth lands. Similarly, species and ecological communities that rely on Ramsar wetlands for habitat may be included on the lists of threatened species, threatened ecological communities and migratory species. For more 1

2 information on matters of national environmental significance and the protections provided under Part 3, see the EPBC Unit Fact Sheet on Environmental Assessment and Approval under the EPBC Act. Part 13, Divisions 1-4 impose restrictions on actions taken in Commonwealth areas that may harm or injure a member of a listed threatened species or ecological community, listed migratory species, or listed marine species or a cetacean. For more information on these provisions, see the EPBC Unit Fact Sheets on Threatened Species and Ecological Communities, the Marine Environment and Migratory Species. Part 13, Division 5 requires recovery plans to be prepared for listed threatened species (except conservation dependent species) and ecological communities. Wildlife conservation plans can be prepared for conservation dependent species and listed migratory species. These plans must identify habitat that is critical to the survival of the relevant species or community and set out procedures to ensure the survival and recovery of the species or community. In many instances, these habitats will included Ramsar wetlands. 3. HOW ARE WETLANDS INCLUDED ON THE LIST OF WETLANDS OF INTERNATIONAL IMPORTANCE? In order to be eligible for inclusion on the List of Wetlands of International Importance, a wetland must satisfy one or more of the listing criteria. The criteria include (amongst other things) that the wetland: contains a representative, rare or unique example of a natural or near-natural wetland type found within the appropriate biogeographic region; supports vulnerable, endangered or critically endangered species or threatened ecological communities; supports populations of plant and/or animal species important for maintaining the biological diversity of a particular biogeographic region; supports plant and/or animal species at a critical stage in their life cycle, or provides refuge during adverse conditions; regularly supports 20,000 or more waterbirds; and regularly supports one per cent of the individuals in a population of one species or subspecies of waterbird. Only the Commonwealth can designate an Australian wetland for inclusion on the List of Wetlands of International Importance. However, landowners and conservation groups can nominate a wetland for inclusion on the list. In order to nominate a wetland for inclusion on the list, you must complete a Ramsar Information Sheet, which must contain information on location, ecological character, social and cultural values, threats and conservation measures for the wetland(including a map showing the site boundary). Ramsar information sheets and information on how to nominate a wetland are available at Prior to designating a wetland for inclusion on the list, the Commonwealth Minister for the Environment and Heritage (the Minister ) must be satisfied the Commonwealth has used its best endeavours to reach agreement with the owners and occupiers of the site on the designation and the management arrangements for the wetland. Similarly, if the nominated wetland is wholly or partly in a State or Territory, the Minister cannot designate the wetland for inclusion on the list unless he/she is satisfied the Commonwealth has used its best endeavours to reach agreement with the relevant State or Territory on the designation of the wetland and the management arrangements for the wetland. 4. ENVIRONMENTAL ASSESSMENT AND APPROVAL PROCESS 4.1 The approval trigger Part 3 of the EPBC Act requires activities that are likely to have a significant impact on a matter of national environmental significance and other matters concerning the Commonwealth to be assessed and approved under the Act. 2

3 The matters of national environmental significance include the ecological character of declared Ramsar wetlands. Under ss.16 and 17B, actions that are likely to have a significant impact on the ecological character of a declared Ramsar wetland are required to be assessed and approved under the Act. 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. What is a declared Ramsar wetland Declared Ramsar wetlands include: all Ramsar wetlands in Australia (ie all Australian wetlands included on the List of Wetlands of International Importance under the Ramsar Convention); and all wetlands that the Minister deems to be a declared Ramsar wetland. The Minister can declare that a wetland is a declared Ramsar wetland if he/she is satisfied: the wetland is likely to be of international significance because of its ecological, botany, zoology, limnology or hydrology; and the ecological character of some or all of the wetland is under threat. These declarations are intended to be used to prevent damage to wetlands that are being considered for nomination for inclusion of the List of Wetlands of International Importance. Ecological character The term ecological character is defined under the Act as having the same meaning as in the Ramsar Convention. This term is not defined in the Convention (although it is referred to in clauses 3, 6 and 8), however, it was defined in Resolution VII.10 of the 7 th Meeting of the Conference of the Contracting Parties to the Convention as: the sum of the biological, physical, and chemical components of the wetland ecosystem, and their interactions, which maintain the wetland and its products, functions, and attributes. 4.2 Exemptions There are a number of important exemptions from the approval requirements in Part 3. In this regard, the following actions are exempt from the approval requirements: RFA forestry operations taken in accordance with a Regional Forestry Agreement (other than operations taken in a World Heritage Area or a Ramsar wetland or that are incidental to another action whose primary purpose does not relate to forestry); actions authorised under the Great Barrier Reef Marine Park Act 1975 (Cwlth); actions that were authorised under State, Territory or Commonwealth law before 16 July 2000, provided no further environmental authorisation was required to take the action at that date; and actions that are a lawful continuation of an existing use of the land, sea or seabed that was occurring before 16 July 2000 (although an expansion or intensification of a use is not a continuation of a use). The Minister also has the power to grant exemptions in certain circumstances. See the EPBC Unit Fact Sheet on Exemptions for more information on this issue. 4.3 How does the assessment and approval process work? The general steps in the assessment and approval process are as follows. 3

4 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 Minister. Environment Australia has published Administrative Guidelines on Significance, which are intended to assist proponents to determine when an action should be referred to the Minister. Supplementary guidelines have also been published on the application of the Environment Protection and Biodiversity Conservation Act 1999 and the Great Barrier Reef Marine Park (Aquaculture) Regulations 2000 to aquaculture projects in areas adjacent to the Great Barrier Reef. These guidelines can all be found on the Environment Australia EPBC website at: 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. 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. 4

5 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 in place 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 ecological character of a Ramsar wetland, the assessment under the EPBC Act will usually only assess the potential impacts on the ecological character of the wetland. 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. In deciding whether or not to approve a proposed action and what conditions to attach to an approval, the Minister must have regard to relevant social and economic issues. The Minister must also have regard to matters that are relevant to the matter(s) that triggered the approval requirement under the EPBC Act. Where the matter that triggered the approval requirement was a Ramsar wetland, these may include: the assessment report and submissions received from members of the public concerning relevant environmental issues; the Australian Ramsar management principles; any management plan that is in force for the Ramsar wetland; and the terms of the Ramsar Convention. In addition, when deciding whether or not to approve a project for the purposes of ss.16 and 17B (ie the provisions that relate to declared Ramsar wetlands), the Minister must not act inconsistently with Australia s obligations under the Ramsar Convention and, if the Ramsar wetland is wholly within a Commonwealth area, must not contravene any management plan that has been prepared for the wetland. If the relevant Ramsar wetland is located wholly or partly in a State or Territory, the Minister is required to take all reasonable steps to ensure he/she exercises his/her approval power in a way that is not inconsistent with the Australian Ramsar management principles and any management plan that has been prepared under the Act for the wetland. The Australian Ramsar management principles are found in Schedule 6 of the regulations. Relevantly, the management principles provide that an action should not be approved if it would be inconsistent with: maintaining the ecological character of the wetland; or providing for the conservation and sustainable use of the wetland. The management principles also provide that approval of the action should be subject to conditions, if necessary, to ensure that the ecological character of the wetland is maintained. 5

6 4.4 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. 4.5 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. If an action is assessed by way of a public environment report or environmental impact statement, members of the public may also be provided with an opportunity to comment on draft guidelines for the report or statement. 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. 5. MANAGEMENT PLANS Under Part 15, Division 2: the Minister must prepare management plans for Ramsar wetlands in Commonwealth areas that are consistent with the terms of the Ramsar Convention and the Australian Ramsar management principles; and the Commonwealth must use its best endeavours to ensure: - management plans are prepared and implemented for Ramsar wetlands that are wholly or partly in the States and Territories in cooporation with the relevant States and Territories; and - that these plans are not inconsistent with the Ramsar Convention and the Australian Ramsar management principles. The Australian Ramsar management principles require the primary purpose of management of Ramsar wetlands to be: to describe and maintain the ecological character of the wetland; and 6

7 to formulate and implement planning that promotes: - conservation of the wetland; and - wise and sustainable use of the wetland for the benefit of humanity in a way that is compatible with maintenance of the natural properties of the ecosystem. The management principles also set out several matters that management plans for Ramsar wetlands should contain. These include a definition of the ecological character of the wetland, a description of the characteristics of the wetland that make it a wetland of international importance, and mechanisms to deal with the impacts of actions that individually or cumulatively endanger the ecological character of the wetland. The Commonwealth and Commonwealth agencies are required to comply with management plans for Ramsar wetlands in Commonwealth areas. The Commonwealth and Commonwealth agencies must also take all reasonable steps to ensure they exercise their powers and perform their functions in relation to a declared Ramsar wetland that is wholly or partly in a State or Territory in accordance with the Australian Ramsar management principles and any management plan that has been prepared under the Act for the wetland. 6. CONSERVATION AGREEMENTS AND FINANCIAL ASSISTANCE Under the EPBC Act, the Commonwealth may give financial or other assistance for the protection or conservation of a declared Ramsar wetland to a State, Territory or any person. This could include the provision of finding to assist in the implementation of a management plan for a Ramsar wetland. The Act also allows the Minister to enter into conservation agreements with landholders and others for the protection and conservation of biodiversity. These agreements can provide for the protection of Ramsar wetlands. For example, the Minister could enter into a conservation agreement with the owner of a property that includes a Ramsar wetland, whereby the Commonwealth pays the property owner to assist in the management and conservation of the wetland. See the EPBC Unit Fact Sheet on Conservation Agreements for more information on this issue. 7. 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 Threatened Species Network Website: 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. 7

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