EN V I R O N M E N T PROTECTION AND BIODIVERSITY CO N S E RVAT I O N A C T U S E R S G U I DE

Transcription

1 EN V I R O N M E N T PROTECTION AND BIODIVERSITY CO N S E RVAT I O N A C T U S E R S G U I DE

2 Authors: Andrew Macintosh and Lyndall Kennedy Suggested citation: Macintosh, A. and Kennedy L. (2004) EPBC Act: User s Guide (3rd Edition.), WWF-Australia and the Tasmanian Conservation Trust, Canberra. About the authors: Andrew Macintosh has a Bachelor of Laws and a Bachelor of Commerce from the University of Sydney, as well as a Graduate Diploma of Environmental Studies from the University of Tasmania. Andrew was the EPBC Unit Coordinator from April to December Lyndall Kennedy has a Masters of Laws, a Bachelor of Laws and a Bachelor of Arts from the University of NSW, as well as the obligatory Graduate Diploma of Legal Practice from the College of Law, Sydney. Lyndall has been the EPBC Unit Coordinator since May The EPBC Unit Project has produced a range of information materials about the Environment Protection and Biodiversity Conservation Act 1999 (Cth), which can be viewed on its website at EBPC Unit Coordinator 15/71 Constitution Avenue, Campbell, ACT, 2612 Phone (02) epbc@wwf.org.au The web addresses in this gude were correct at the time of printing. If the link no longer works you can start navigating from the DEH homepage: or contact us. Third edition published in July 2004 by WWF-Australia and the Tasmanian Conservation Trust. Reprinted June 2005 with corrections and change of title. First edition published in 2002 under the EPBC Act: A Conservationist s Guide. WWF-Australia, Humane Society International and Tasmanian Conservation Trust All Rights Reserved. CONTENTS INTRODUCTION 2. TRIGGERING THE ACT 2.1 The general rule 2.2 The prohibitions 2.3 The trigger 2.4 Where the EPBC Act applies 3. MATTERS OF NATIONAL ENVIRONMENTAL SIGNIFICANCE 3.1 The world heritage values of declared World Heritage properties 3.2 The national heritage values of places on the National Heritage List 3.3 The ecological character of declared Ramsar wetlands 3.4 Listed threatened species and ecological communities 3.5 Listed migratory species 3.6 Nuclear actions 3.7 Commonwealth marine areas 3.8 Locating matters of National Environmental Significance 4. COMMONWEALTH LAND AND COMMONWEALTH AGENCIES 4.1 Actions covered 4.2 Definition: Commonwealth land 4.3 Definition: Commonwealth agency 4.4 Definition: Environment 4.5 Commonwealth Heritage List 5. THE ASSESSMENT AND APPROVAL PROCESS 5.1 The 5 basic stages 5.2 Referral to, or calling in by, the Minister (Stage 1) 5.3 Controlled action decision (Stage 2) 5.4 Assessment decision (Stage 3) 5.5 Environmental assessment (Stage 4) 5.6 EPBC Act approval (Stage 5) 5.7 Exemptions to the assessment process Photo credits: Pg13 Frog L Kennedy - Pg16 Wet Tropics L Kennedy - Pg25 Seashore Landscaping WWF - Pg32 Birdwatching WWF/A Jones - Pg36 Flying Fox L Kennedy - Pg38 Light House T Rich - Pg48 Regent Bird A Ley - Pg50 Atherton L Kennedy - Back cover Bush Food WWF-Australia ISBN Printed on 100% recycled paper using vegetable based ink. This is an EPBC Unit Project information brochure. The EPBC Unit Project wrote this brochure as a general information guide only. It may not fit your circumstances and it is not a substitute for legal advice. The EPBC Unit is a joint project of WWF-Australia, the Australian Council of National Trusts and the Tasmanian Conservation Trust with funding from the Australian Government Department of the Environment and Heritage PENALTIES 6.1 For taking action without approval 6.2 For breaching an approval condition 6.3 For failing to take action in the manner specified 6.4 For not obtaining or complying with a permit 7. APPEALS AGAINST CONTROLLED ACTION DECISIONS AND APPROVAL DECISIONS 7.1 Internal review by the Minister 7.2 Judicial review by the Federal Court 8. PREVENTING CONTRAVENTIONS SEEKING INJUNCTIONS 8.1 Defining: Interested person 8.2 Seeking an Injunction

3 OPPORTUNITIES FOR PUBLIC INVOLVEMENT IN EPBC ACT PROCESSES 9.1 Commenting at the referral stage 9.2 Commenting at the assessment stage 9.3 Commenting on permit applications 9.4 Commenting on wildlife trade provisions 9.5 Commenting on strategic assessments 9.6 Nominating to the EPBC Act lists 9.7 Preparing and assisting in the implementation of plans 9.8 Providing information for DEH to take action 9.9 Keeping in touch with what s happening 10. THE PERMIT PROCESS 10.1 When are permits required? 10.2 What matters are relevant to permit decisions? 10.3 Exemptions from permit requirements 10.4 Notification requirement for exempt action 10.5 Appealing permit decisions 11. WILDLIFE TRADE 11.1 Wildlife trade 11.2 List of CITES specimens 11.3 List of exempt native specimens 11.4 List of specimens suitable for live import 12. STRATEGIC ASSESSMENTS 12.1 Assessment coverage 12.2 Important elements of strategic assessments 13. THE LISTS AND LISTINGS 13.1 Protected species and ecological communities (Part 13) 13.2 Protected areas (Part 15) 14. ENVIRONMENTAL PLANS 14.1 Recovery plans and Wildlife Conservation Plans 14.2 Threat Abatement Plans 14.3 Management Plans for Protected Areas 14.4 Importance of EPBC plans 15. CONSERVATION AGREEMENTS 15.1 Conservation agreements 1. INTRODUCTION This Guide aims to provide information about the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act ), how it works, what its processes are, and how to use it to achieve conservation outcomes. It also explains how to make submissions in response to referrals made under the EPBC Act, as well as highlighting the types of actions that may receive financial help from the Australian Government. The EPBC Act is the Australian Government s principal piece of national environmental legislation. It came into force on 16 July 2000, and introduced major changes to the way that the Australian Government protects Australia s environment. 16. OPPORTUNITIES FOR AUSTRALIAN GOVERNMENT ASSISTANCE 16.1 Environmental plans 16.2 Identifying and monitoring biodiversity 16.3 Conservation agreements 16.4 Related funding programs 49 For more information please contact the EPBC Unit Project on (02) or epbc@wwf.org.au You can also write to us at MORE INFORMATION GLOSSARY OF TERMS ANNEXURES - A - B - C 15/71 Constitution Ave, Campbell, ACT 2612 or visit our website at 5

4 2. TRIGGERING THE ACT 2.1 The general rule The general rule is that actions that are likely to have a significant impact on a matter protected under Part 3 of the EPBC Act must be referred to the Australian Government Minister for the Environment & Heritage (the Minister ) for a determination of whether environmental impact assessment is required. It is an offence to undertake an action that has, will have, or is likely to have, a significant impact on a matter protected under Part 3 without first obtaining the Minister s approval. The matters protected under Part 3 of the EPBC Act can be divided into two categories: A. matters of National Environmental Significance (Part 3, Division 1), which are: the world heritage values of declared World Heritage properties; the national heritage values of National Heritage places; the ecological character of declared Ramsar wetlands; threatened species and ecological communities listed under the EPBC Act (except extinct and conservation dependent species and vulnerable ecological communities); migratory species listed under the EPBC Act; nuclear actions that are likely to have a significant impact on the environment; the Commonwealth marine environment. B. proposals involving the Commonwealth (Part 3, Division 2), which are actions: carried out on Commonwealth land that are likely to have a significant impact on the environment anywhere; taken outside Commonwealth land that are likely to have a significant impact on the environment on Commonwealth land; undertaken by the Commonwealth or a Commonwealth agency anywhere in the world that are likely to have a significant impact on the environment anywhere; likely to have a significant impact on the Commonwealth heritage values of a place listed on the Commonwealth Heritage List. 2.2 The prohibitions The EPBC Act does not prevent the Minister from approving an action that has, will have, or is likely to have a significant impact on a matter protected under Part 3. What it does do is make it an offence for anyone to undertake that action without first seeking the Minister s approval. While the Australian Government Department of the E n v i ronment and Heritage ( DEH ) administers the EPBC Act on behalf of the Minister, it is the Minister who makes the final decision whether to approve an action. 2.3 The trigger Again, the EPBC Act is triggered by any action that is likely to have a significant impact on any matter protected under Part 3 of the EPBC Act An action... An activity only requires approval under the EPBC Act if it is an action. The Act defines action as including a project, development, undertaking and an activity or series of activities. An action can be positive or for the benefit of a matter protected under Part 3, or negative such as damaging a matter protected under Part 3. Both positive and negative activities fall within the definition of actions. The EPBC Act expressly excludes some government decisions from the definition of action such as the decision to fund or issue a governmental authorisation for someone else s action. So for example, a decision by the Government to fund a landcare group to undertake weed control is not an action, it is the actual weed control by the landcare group that is the action. Likewise, a local government decision to rezone land is not itself an action. However, any works done on the land, even if it is carried out in accordance with the zoning is potentially an action that is likely... Actions that are likely to have a significant impact on a matter protected under Part 3 require approval under the EPBC Act. In the Federal Court case of Booth v Bosworth [2001] FCA 1452, Justice Branson suggested the preferred interpretation of likely was that likely means prone, with a propensity or liable, and a real or not remote chance or possibility regardless of whether it is less or more than fifty per cent. 6 7

5 So likely, when used in the context of determining whether an action requires or required approval under Part 3 of the EPBC Act, will be taken to include possible impacts, provided there is a real chance of the relevant impact occurring to have a significant impact The notion of significant impact is a key factor in determining whether actions require approval under the EPBC Act. However, the EPBC Act does not define the term. The only authoritative statement of the meaning of significant impact under the EPBC Act is again provided by the Federal Court case of Booth v Bosworth [2001], where Justice Branson agreed that a significant impact is one that is important, notable or of consequence having regard to its context and intensity. A more recent Federal Court case approved this definition (Minister for the Environment and Heritage v Greentree (No.2) [2004] FCA 741). While the phrase significant impact is used in a number of State, Territory and local environment and planning laws, these interpretations are not directly applicable to the EPBC Act. 2.4 Where the EPBC Act applies A common misconception is that the EPBC Act, like the law it replaced, only applies to Commonwealth land. This is not the case. The EPBC Act applies to all land types in Australia. For example, this means that threatened species are just as protected in the back yard of private properties as they are in a Commonwealth reserve. DEH has also pro d u c e d administrative guidelines on what a significant impact is in relation to matters of National E n v i ro n m e n t a l Significance. These guidelines are not legally binding. However, they do provide a clear indication of the criteria that the Minister and DEH will apply to determine whether an action triggers the EPBC Act and re q u i re s Ministerial appro v a l. Copies of the guidelines a re available at: w w w. d e h. g o v. a u / e p b c / a s s e s s m e n t s a p p ro v a l s / g u i d e l i n e s / i n d e x. h t m l 3. MATTERS OF NATIONAL ENVIRONMENTAL SIGNIFICANCE There are seven (7) matters of National Environmental Significance. 3.1 The world heritage values of declared World Heritage properties Declared World Heritage properties are Australian properties on the World Heritage List kept under Article 11 of the World Heritage Convention. The Minister may also, in certain circumstances, declare that a property is a declared World Heritage property for the purposes of the EPBC Act. The world heritage values of a declared World Heritage property are matters of National Environmental Significance. Remember that it is not the property per se that is protected by the EPBC Act, rather it is the natural heritage and cultural heritage values contained in the property. The natural and cultural heritage values in World Heritage properties are usually described in the nomination documents and other materials prepared by the World Heritage Committee. The world heritage values of Australia s World Heritage properties, together with information about listing criteria and the world heritage listing process can be found on the DEH website. Australia currently has 16 World Heritage properties including the Ta s m a n i a n Wi l d e rness, the Great Barrier Reef, the Lord Howe Island Group and Kakadu National Park. Details of the location of Australia s World Heritage properties and their world heritage values are available from DEH at: w w w. d e h. g o v. a u / h e r i t a g e / w o r l d h e r i t a g e / i n d e x. h t m l 8 9

6 3.2 The national heritage values of places on the National Heritage List. 3.4 Listed threatened species and ecological communities 10 National Heritage Places are natural, historic and indigenous places that have been listed on the National Heritage List because the place has outstanding heritage values to the Nation, that is, to the Australian community as a whole. It is the national heritage values of National Heritage Places that are a matter of National Environmental Significance. H o w e v e r, the values are only an EPBC Act trigger for constitutional corporations (such as companies), anyone anywhere in Australia if in the course of trade or commerce, anyone in a Territory or Commonwealth area, anyone anywhere in Australia to the extent that the heritage values are indigenous heritage values, and anyone anywhere in Australia in respect of any area where Australia has obligations under Article 8 the Biodiversity Convention (usually natural heritage areas). 3.3 The ecological character of declared Ramsar wetlands Declared Ramsar wetlands are wetlands included on the List of Wetlands of International Importance under Article 2 of the Ramsar Convention. The Minister may also deem wetlands to be declared Ramsar wetlands in certain circumstances. The ecological character of Ramsar wetlands are a matter of National Environmental Significance. The term ecological character is defined under the EPBC Act as having the same meaning as in the Ramsar Convention (it s defined in Resolution VII.10 of the 7th Meeting of the Conference parties) 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. A database of nominations to the National Heritage List can be found on the DEH w e b s i t e w w w. d e h. g o v. a u / c g i - b i n / e p b c / h e r i t a g e _ a p. p l For more information about the National Heritage List please contact the EPBC U n i t s Heritage O u t reach Officer at: heritage@wwf.org.au Details on the location and heritage values of listed National Heritage places are available on the DEH website at: w w w. d e h. g o v. a u / h e r i t a g e / n a t i o n a l / i n d e x / h t m l T h e re are over 57 listed Ramsar wetlands in Australia. Details of their location and ecological character are available from DEH s website at: w w w. d e h. g o v. a u / w a t e r / w e t l a n d s / r a m s a r / i n d e x. h t m l and on the website for the Convention at: w w w. r a m s a r. o r g / p ro f i l e _ i n d e x. h t m The Minister is required to maintain a list of threatened species and a list of threatened ecological communities under the EPBC Act. These lists are not the same as lists maintained under Territory/State law. The list of threatened species is divided into six (6) categories: extinct, extinct in the wild, critically endangered, endangered, vulnerable and conservation dependent. Threatened species (except extinct and conservation dependent species) are matters of National Environmental Significance. The list of threatened ecological communities has three categories: critically endangered, endangered and vulnerable. Threatened ecological communities (except vulnerable ecological communities) are matters of National Environmental Significance. There are over 1600 listed threatened species and more than 28 ecological communities in these categories, with more being nominated by the public each year. The Threatened Species Network is a great source of information on threatened species listed under the EPBC Act see: Listed migratory species The Minister also maintains a list of migratory species under the EPBC Act. The list contains mostly bird and marine species and includes: all species included on the appendices to the Bonn Convention for which Australia is the Range State under the Convention; and all species included in the lists established under the Chinese-Australia Migratory Bird Agreement ( CAMBA ) and the Japan-Australia Migratory Bird Agreement ( JAMBA ). Up-to-date copies of the t h reatened species and ecological communities lists are available on the DEH website at: w w w. d e h. g o v. a u / b i o d i v e r s i t y / t h re a t e n e d / i n d e x. h t m l All species on the list of migratory species are matters of National Environmental Significance. A copy of the migratory species list is available on the DEH website at: w w w. d e h. g o v. a u / b i o d i v e r s i t y / m i g r a t o r y / l i s t. h t m l 11

7 3.6 Nuclear actions that are likely to have a significant impact on the environment For the purposes of the EPBC Act nuclear action includes: establishing or significantly modifying a nuclear installation; transporting spent nuclear fuel or radioactive waste products arising from reprocessing; establishing or significantly modifying a facility for storing radioactive waste products arising from re p rocessing; mining or milling uranium ores, excluding operations for recovering mineral sands or rare earths; establishing or significantly modifying a large-scale disposal facility for radioactive waste; de-commissioning or rehabilitating any facility or area in which an activity described above has been undertaken; any other type of action set out in the EPBC regulations. 3.7 Commonwealth marine areas and Commonwealth managed fisheries The matters of National Environmental Significance concerning the Commonwealth marine environment are: activities taken in a Commonwealth marine area that are likely to have a significant impact on the environment; activities taken outside a Commonwealth marine area that are likely to have a significant impact on the environment in a Commonwealth marine area; fishing in a Commonwealth managed fishery that is likely to have a significant impact on the environment. Nuclear actions are matters of National E n v i ronmental Significance for constitutional corporations (such as companies), anyone anywhere in Australia if in the course of trade or commerc e, and anyone in a Te r r i t o r y. Information on nuclear actions is available fro m DEH at: w w w. d e h. g o v. a u / e p b c / m a t t e r s / n u c l e a r. h t m l A nautical mile is equal to kms. Water less than 3 miles from the low water mark is considered State or Territory waters. However, even if an action is taken w i t h i n State or Territory waters a referral must still be made under the EPBC Act if that action may have a significant impact on the environment in Commonwealth waters. 3.8 Locating matters of National Environmental Significance The DEH website contains an interactive protected matter search tool that can help determine what matters of National Environmental Significance are found in a certain area. The Species Profile and Threats Database (SPRAT), is also available on the DEH website and is designed to provide information on EPBC Act listed threatened species and ecological communities. The SPRAT database can be accessed at: Recovery plans, listing advice and wildlife conservation plans also contain information on threatened species, threatened ecological communities and listed migratory species including the location of habitat that is important for their conservation and processes that threaten their survival. Similarly, management plans for World Heritage properties, National and Commonwealth Heritage places and Ramsar wetlands can also provide important information on the location of these areas, the protected values and character, as well as known threats. A general indication of the possible range of matters of National E n v i ro n m e n t a l Significance and Commonwealth areas in a locality can be obtained by using DEH s p rotected matters searc h tool. The search tool can be found at: w w w. d e h. g o v. a u / e r i n / e r t / e p b c / i n d e x. h t m l 12 Generally, the Commonwealth marine area, or Commonwealth waters, is the area between 3 nautical miles and 200 nautical miles from the low water mark of the Australian coast or the edge of the continental shelf (which ever is further). 13

8 4. COMMONWEALTH LAND AND COMMONWEALTH AGENCIES While often overlooked, these Commonwealth provisions can be of great assistance to conservationists seeking to protect and conserve elements of the natural and built environment. 4.1 Actions covered Actions involving the Commonwealth, Commonwealth agencies and Commonwealth land will require approval if: the action is likely to have a significant impact on the environment on Commonwealth land, irrespective of where the action is carried out and by whom. the action is likely to have a significant impact on the Commonwealth heritage values of a place on the Commonwealth Heritage List. the action is taken on Commonwealth land and is likely to have a significant impact on the environment (anywhere). the action is carried out by the Commonwealth or a Commonwealth agency and is likely to have a significant impact on the environment (anywhere) Environment on Commonwealth land Any action taken anywhere (for example on private or State owned land) that is likely to have a significant impact on the environment on Commonwealth land, must be referred to the Minister for a determination of whether it requires assessment under the EPBC Act. The most obvious examples are where the action is being taken on the land next door or upstream. However, there doesn t necessarily need to be a close geographical connection, so long as the proposed action is likely to have an impact on the environment on the Commonwealth land Environment anywhere if carried out on Commonwealth land Where the action is taken on Commonwealth land, the EPBC trigger is whether the action taken on that land is likely to have a significant impact on the environment anywhere. Again, the Commonwealth land on which the action is being taken doesn t necessarily need to have a close geographical connection to the environment where the significant impact is likely to occur. The requirement is whether there is a likely significant impact. You can see an up-to- date list of C o m m o n w e a l t h Heritage places on the DEH Website at: w w w. d e h. g o v. a u / h e r i t a g e / c o m m o n w e a l t h / i n d e x. h t m l 4.2 Definition: Commonwealth land The EPBC Act definition of Commonwealth land is quite broad and includes land owned or leased by the Commonwealth or a Commonwealth agency (including land on Norfolk Island), land in an external Territory (except Norfolk Island) the Jervis Bay Territory, and airspace over any of that land. Importantly, the definition includes land owned and leased by the Department of Defence. The Commonwealth land trigger has two parts: it covers the environment on Commonwealth land, and the environment anywhere where the action is taken on Commonwealth land. 4.3 Definition: Commonwealth agency The EPBC definition of Commonwealth Agency is also broad and includes any Australian Government Minister, a body corporate established for a public purpose by Commonwealth law, and a company in which the Commonwealth owns more than half the voting stock. There are a number of exemptions from the definition including Telstra Corporation Ltd, and certain Aboriginal Land Trusts and Councils

9 4.4 Definition: Environment Environment is defined to include: ecosystems and their constituent parts, including people and communities; natural and physical resources; the qualities and characteristics of locations, places and areas; the social, economic and cultural aspects of any of the above points; and the heritage values of places. 4.5 Commonwealth Heritage List The Commonwealth Heritage List is a list of natural, indigenous and historic heritage places on Commonwealth land, in Commonwealth waters or under Australian Government control, that have been identified by the Minister as having Commonwealth heritage values. That is, being of significant heritage value to the Nation. There are more than 340 places on the Commonwealth Heritage List (including Old Parliament House, Cockatoo Island in Sydney Harbour, and the Ningaloo Marine Area in WA). The public can also nominate to this list. A database of places nominated to the Commonwealth Heritage List is available on the DEH website at: 5. THE ASSESSMENT AND APPROVAL PROCESS The EPBC Act referral, assessment and approval process has 5 (five) basic stages. 5.1 The 5 basic stages The basic stages in the referral, assessment and approval process under the EPBC Act are: STAGE 1 STAGE 2 STAGE 3 STAGE 4 STAGE 5 An action is referred to, or called in by, the Minister. The Minister decides whether the action is a controlled action, ie whether it triggers the EPBC Act and requires approval or is eligible for a manner specified decision. If the action is a controlled action, the Minister decides what level of assessment report is appropriate. The assessment is carried out. The Minister decides whether to approve or refuse the action, and, on what conditions

10 5.2 Referral to, or calling in by, the Minister (Stage 1) A proponent of an action that may have a significant impact on a matter protected under Part 3 of the EPBC Act must refer details of the action to the Minister for examination of whether environmental impact assessment and approval is required. If a proponent fails to make a referral in relation to an action that is likely to have a significant impact on a matter protected under Part 3, the Minister may call in the action. Commonwealth, State and Territory agencies may also refer actions that another person proposes to take to the Minister. 5.3 Controlled action decision (Stage 2) Upon receiving a referral, the Minister must determine whether the action triggers the EPBC Act and requires environmental impact assessment and approval. That is, whether the action is a controlled action likely to have a significant impact on a matter protected under Part 3 of the EPBC Act. At this stage the Minister can make one of three decisions: Approval not required this means that the action did not trigger the EPBC Act and can proceed (assuming all other approvals are in place). Approval not required manner specified this means that so long as the action is done in a particular way then the EPBC Act is not triggered and the action does not need to go through the assessment process. Approval required this means that the proposed action is a controlled action as it has triggered the EPBC Act and must be assessed and approved by the Minister before it can be undertaken. While members of the public cannot re f e r someone else s action to the Minister, they can contact the Minister or DEH and ask that the Minister call in the action. DEH will then contact the person undertaking the action and re q u i re them to p rovide the Minister with information about the action to assess whether a referral must be made. See A n n e x u re B of this guide for a pro f o r m a letter to help do this. The public can put in submisions saying why they believe an action is a controlled ction. See page 28 of this Guide for more details Manner specified decision The Minister can declare that an action does not require EPBC approval so long as it is done in a particular way. The Minister can only make a manner specified decision if, as part of and at the same time as the action, the proponent can do certain specified things that will ensure that the impacts on the Part 3 matters are avoided or mitigated to the extent that a significant impact will not occur. To qualify for a manner specified decision, the manner in which it is proposed to take the action cannot simply compensate for a significant impact but must directly avoid or mitigate the physical impacts of the action. Usually this means that if the action were not done in the particular way specified it would otherwise have a significant impact on a matter protected under Part 3 and trigger the EPBC Act Approval required decision If the Minister determines that an action is a controlled action, the Minister must identify which provisions of Part 3 are the controlling provisions for the action (ie the sections of the EPBC Act that relate to the protected matters that are likely to be significantly affected by the proposed action). The potential controlling provisions are listed in Annexure A of this Guide. For example, if a proposed action requires approval under the EPBC Act because it is likely to have a significant impact on an endangered ecological community, the controlling provisions are those provisions in Part 3 that provide protection for listed threatened ecological communities ss.18 and 18A. This decision is important as it determines the scope of the assessment that is carried out for the purposes of the EPBC Act. For example, if a p roponent is clearing EPBC listed species habitat, they may be able to request a manner specified decision if they are going to mitigate the impact on listed wildlife by leaving a buffer and a wildlife corridor. H o w e v e r, they are not eligible for a manner specified decision if t h e y re going to compensate for the impact by planting or restoring habitat e l s e w h e re. This planting or restoration is compensation, not mitigation, and is something that may be included in the conditions that can attach to the approval. The Minister usually has 20 business days to determine whether an action is a contro l l e d action and, if it is, what the contro l l i n g p rovisions are

11 5.4 Assessment decision (Stage 3) The Minister may choose between five alternate methods of assessment: accredited assessment process; assessment on preliminary documentation; public environment report; environmental impact statement; and public inquiry. In choosing the method of assessment, the Minister will consider the information provided by the proponent on the potential impacts of the proposed activity and, if the activity will be carried out in a State or Territory, comments received from the relevant State or Territory Government. After the Minister chooses the assessment approach, the proponent usually carries out the majority of the work associated with the assessment. 5.5 Environmental Assessment (Stage 4) Assessing the relevant impacts Opportunities for public involvment in the assessment pro c e s s depends on the type of assessment the Minister deems a p p ropriate. See page 29 of this Guide for m o re information. Assessments under the EPBC Act may address impacts other than relevant impacts. However, they will only do so where the relevant action will be taken in a State or Territory and that State or Territory has asked the Minister to ensure the assessment under the EPBC Act covers other impacts Assessment under a bilateral agreement The EPBC Act allows the Australian Government to make bilateral agreements. There are two types of bilateral agreements, assessment bilats and approval bilats. Assessment bilateral agreements have already been made with some States and Territories (including Tasmania, Western Australia and the Northern Territory). Under assessment bilats, certain actions that require approval under the EPBC Act will be assessed under accredited State/Territory processes. At the completion of the State/Territory assessment process, the State/Territory provides the Minister with a report on the relevant impacts of the proposed action. The Minister then uses this report in the same way as an EPBC Act assessment report when deciding whether or not to approve the action under the EPBC Act. A p p roval bilateral a g reements will transfer re s p o n s i b i l i t y for approving actions to the States and Territories. As of July 2005, no approval bilateral agre e m e n t s have been made. M o re information on the bilateral agre e m e n t s can be found on the DEH website at: w w w. d e h. g o v. a u / e p b c / a s s e s s m e n t s a p p ro v a l s / b i l a t e r a l / i n d e x. h t m l Once the Minister has determined what level of assessment report is appropriate, an assessment must be carried out on the relevant impacts of the proposed action. EPBC Act assessments usually only look at the relevant impacts of an action, ie the potential impacts of the action on the matters protected under Part 3 that the Minister determined are likely to be affected by the proposal. For example, if the Minister determines that a proposed action requires approval on the grounds it is likely to have a significant impact on a Ramsar wetland, the controlling provisions are s16 and s17b and the relevant impacts for the assessment are the potential impacts of the action on the ecological character of that wetland. As with the re f e r r a l p rocess, there are strict timeframes within which the Minister and DEH must carry out the tasks re q u i red during the assessment p ro c e s s. 5.6 EPBC Act Approval (Stage 5) After the completion of the assessment process, the Minister must decide whether or not to approve the proposed action and, if it is approved, whether to impose conditions on the approval. The Minister is usually required to make this decision within 30 days of the completion of the assessment process. In deciding whether or not to approve a proposed action, and what conditions to attach to an approval, the Minister must consider: 20 21

12 issues relevant to the matters protected under Part 3 of the EPBC Act that the Minister determined are likely to be affected by the proposal; economic matters; and social matters. The Minister is also required to take into account the principles of ecologically sustainable development, the assessment report, any applicable plans and any other information presented to the Minister on the relevant impacts of the proposed activity (which presumably includes public submissions). The Minister may also consider the environmental history of the person proposing to take the action when deciding whether or not to grant an approval. 5.7 Exemptions to the assessment process There are a number of instances where actions that may adversely affect matters protected under Part 3 may be exempt from the assessment and approval requirements under the EPBC Act. These exemptions include: actions authorised under the Great Barrier Reef Marine Park Act 1975 (Cth); 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; actions that are a lawful continuation of an existing use of the land, sea or seabed that was occurring before 16 July 2000 (this does not cover any change or expansion or intensification of a use); and actions that come within the definition of RFA forestry operations within an area under a regional forestry agreement. There are also a number of restrictions on the Minister s power to approve activities that relate to matters of National Environmental Significance. If, for example, there is a relevant EPBC plan in place (such as a management or recovery plan) the Minister must not act inconsistently with that plan when approving an action and deciding what conditions to place on that approval. Contact the EPBC Unit or DEH for more detailed information on the EPBC Act exemptions. Please seek professional legal advice before relying on an e x e m p t i o n. 6. PENALTIES 6.1 For taking action without approval 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. 6.2 For breaching an approval condition If an action is approved with conditions, then the action must be taken in accordance with those conditions. It is an offence to contravene a condition of an approval. 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. 6.3 For failing to take action in the manner specified Civil penalties apply if an action is not taken in the manner specified by the Minister. Maximum penalties for failing to take an action in the manner specified include a fine of up to $110,000 for an individual and $1.1 million for a corporation. 6.4 For not obtaining or complying with a permit If you take an action without a permit and one of the exemptions doesn t apply to you then you may have committed an offence and the maximum penalties include 2 years imprisonment and/or a fine of up to $110,000 for an individual and $550,000 for a corporation. Fines of up to $33,000 can also be imposed if you contravene a condition of a permit

13 7. APPEALS AGAINST CONTROLLED ACTION DECISIONS AND APPROVAL DECISIONS However, once the Minister has made a controlled action decision, that decision can only be reviewed before the proponent undertakes the relevant action. For example, if the Minister determines that land clearing is not a controlled action, then the Minister cannot change that decision after the proponent has cleared his land. Further information about internal review of c o n t rolled action and a p p roval decisions can be obtained from the EPBC Unit. T h e re are two avenues by which to appeal against controlled action decisions (ie a decision about whether or not a proposed action requires approval under the EPBC Act) and approval decisions: internal review by the Minister; and judicial review. There are similar restrictions on when the Minister can revoke or suspend an approval, or amend the conditions of approval. These generally require the action to have had a significant impact on a relevant matter protected under Part 3 where the relevant impact was not identified during the original assessment and/or the proponent has contravened a condition of the approval. 7.2 Judicial review by the Federal Court 7.1 Internal review by the Minister The Minister can only reconsider controlled action decisions in limited circumstances. These include where: there is substantial new information about the likely impacts of the action on a matter protected under Part 3; there has been a substantial change in circumstances since the first decision that relates to the likely impacts of the action on a matter protected under Part 3; the Minister determined the proposed action did not require approval because it will be carried out in a specified manner, and the action is not being, or will not be, carried out in the specified manner; or the Minister determined the proposed action did not require approval because it was exempt under a bilateral agreement or a declaration made by the Minister under s.33 (in relation to actions taken under an accredited management plan), and the bilateral agreement or declaration no longer applies or the relevant management plan is no longer in force. Requests for the Minister to reconsider a decision must be made before the proponant undertakes the action. The other avenue to have a controlled action or approval decision overturned is to seek judicial review of the decision in the Federal Court. Section 487 of the EPBC Act may assist conservationists in seeking judicial review of these decisions as it introduces the notion of an interested person that lessens the standing requirements that normally apply to members of the public who seek review of administrative decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth). For example, this lessened standing requirement allowed Dr Booth to take her action against Mr Bosworth in the Booth v Bosworth case. For case notes on this and other cases under the EPBC Act, see the EPBC Unit Project website at: Please seek pro f e s s i o n a l legal advice before undertaking any court a c t i o n. The Enviro n m e n t a l Defenders Office may be able to provide free legal advice about whether t h e re is a winnable case. w w w. e d o. o r g. a u 24 25

14 8. PREVENTING CONTRAVENTIONS SEEKING INJUNCTIONS The lessened standing requirements also apply for interested persons wanting to take injunctive proceedings 8.1 Defining interested person The EPBC Act provides that if a person commits an offence or otherwise contravenes the EPBC Act, an interested person can apply to the Federal Court for an injunction. Interested person is defined to include persons and companies who have engaged in a series of activities related to, and companies whose objects or purpose relate to, the protection or conservation of, or research into, the environment (including heritage values), within 2 years prior to the application being made. 9. OPPORTUNITIES FOR PUBLIC INVOLVEMENT IN THE EPBC ACT PROCESSES There are a number of opportunities for the community to get involved in EPBC Act processes. Some of the more important opportunities include: commenting on whether actions trigger the EPBC Act at the referral stage; commenting on whether actions should be approved and on what conditions; commenting on permit applications; commenting on assessments carried out in relation to wildlife trade; commenting on strategic assessments; Seeking an injunction The EPBC Act also provides that the Federal Court may issue an injunction irrespective of whether it appears the perpetrator will continue to engage in the illegal conduct. This removed the need to show that there is a real ongoing risk of the perpetrator engaging in an illegal act in the future. The EPBC Act also specifically states that the Federal Court cannot require a financial undertaking as a condition of granting an interim injunction for a breach of the EPBC Act. However, this is not protection against a costs order should the appliant loose their application. Commencing pro c e e - dings in the Federal Court for an injunction can be a costly and draining process. In many instances, a real threat of legal action can be used as a bargaining chip to i m p rove enviro n m e n t a l outcomes. Please contact a qualified legal practitioner (such as the Enviro n m e n t a l D e f e n d e r s Off i c e ) b e f o re taking court action. nominating to the EPBC Act lists; preparing and assisting in the implementation of plans; providing information for DEH to take action. 27

15 9.1 Commenting at the referral stage 9.2 Commenting at the assessment stage 28 As soon as practicable after receiving a referral the Minister must publish a notice on DEH s website calling for public comments 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 if the action is proposed by the Commonwealth or a Commonwealth agency or will be carried out on Commonwealth land. There is one exception to this, namely, the Minister is not required to call for public comment on a referral if the proponent states in their referral form that the proponent believes the action they propose to take is a controlled action. Note that the period for public comment on whether the action triggers the EPBC Act, ie whether it is a controlled action, is only 10 business days from the date that the notification is published on the DEH website. Remember that if the Minister decides that the action is not a controlled action or that it is eligible for a manner specified decision, then the action does not go through the assessment process. If you think that an action should be assessed, then it is important that you send in a submission at this stage of the process. The submission should set out why you think the action is a controlled action, ie how it is likely to have a significant impact on a matter protected under Part 3 of the EPBC Act. There is a proforma outline of a submission in response to a referral in Annexure C of this Guide. Note that public notices relating to referrals are only published on the DEH website. They are ususlaly NOT published in newspapers. A list of current referrals and public opportunities to comment on those referrals is available on DEH s website at: publicnotices/index.html The EPBC Unit also publishes a weekly containing details of the actions that have been referred to the Minister, and the opportunities to comment on referrals. To subscribe send an at: subscribe-epbcno tices@wwf.org.au The opportunities for public involvement in the assessment process will depend largely on the method of assessment Preliminary documentation, public environment report and environmental impact statement Where assessments are carried out by way of public environment report or environmental impact statement, the Minister must prepare guidelines for the content of the report or statement, and may invite the public to comment on the draft guidelines. Where assessments are carried out by way of preliminary documentation, public environment report or environmental impact statement, members of the public will be given an opportunity to provide comments on: the accuracy and completeness of draft assessment documentation (ie draft preliminary documentation, report or statement); and whether a proposed action should be approved and, if it is approved, what conditions should be attached to the approval. After the close of the public submission phase, the proponent must finalise the assessment documentation after taking into account the public comments. The final assessment documentation is then submitted to the Minister, along with copies of all public submissions. After the final assessment documentation has been submitted, the Secretary of DEH must prepare a report (called an assessment report ) on the proposed action and give it to the Minister. This assessment report must be provided on request to the public at a reasonable cost, although there are various exemptions to this, including where the Secretary is satisfied that the information is commercial-in-confidence. Notices calling for public comment on draft assessment documentation are re q u i red to be published on DEH s website at: w w w. d e h. g o v. a u / e p b c / publicnotices/index.html and in relevant n e w s p a p e r s. 29

16 Public inquiries and accredited assessment approaches The opportunities for public involvement in assessments carried out by way of public inquiry or an accredited assessment approach are slightly different from those described in the previous section. With respect to public inquiries, whether and how members of the public can participate in public inquiries is at the discretion of the commissioners. In most cases, it is likely that the public will be able to make both written and verbal submissions to the inquiry. However, there is no set procedure and the opportunities for public involvement will vary. Similarly, the opportunities for public involvement in an accredited assessment approach will depend upon the nature of the Australian Government, State or Territory process that is accredited. However, in most cases, it can be expected that members of the public will at least be given an opportunity to make submissions on draft assessment documentation and whether the relevant action should be approved. At the completion of a public inquiry or accredited assessment, the Commissioners will provide the Minister with a report on the relevant impacts of the action. The Minister will then use this report as the basis of the Minister s decision on whether or not to approve the action. 9.3 Commenting on permit applications Only people on the permit consultation register are provided with an opportunity to comment on permit applications. Once a year, the Minister will publish a notice on the DEH website inviting people to apply to be included on the register. Anyone who writes to the Minister during the period outlined in the notice will be included on the register. When the Minister receives a permit application, the Minister must notify the people on the register and invite them to make comments on the application. The period for submissions can be as short as 5 days. Before issuing a permit the Minister must consider all written submissions received from people on the register. 9.4 Commenting on wildlife trade provisions The EPBC Act contains a process for members of the public to make applications for items to be added to the list of specimens suitable for live import. Prior to the amendment of the list, the Minister must ensure that an assessment is carried out on the potential environmental impacts of the importation of the relevant plants or animals. Members of the public are provided with an opportunity to comment on the draft guidelines for the report and the draft report itself. For more detaisl go to: Commenting on strategic assessments Under Part 10 of the EPBC Act, the Minister can carry out a strategic assessment of a policy, plan or program. Strategic assessments can look at the impacts of actions taken under a policy, plan or program on any matter protected under Part 3. Members of the public can participate in strategic assessments by providing comments on the draft terms of reference for the assessment report and on the draft assessment report itself. 9.6 Nominating to the EPBC Act lists Anyone can nominate: native species or ecological communities for inclusion on the threatened species or threatened ecological community list; threatening processes for inclusion on the list of key threatening processes; natural, historic and indigenous places to the National Heritage List or the Commonwealth Heritage List. While there is no formal process under the EPBC Act for members of the public to participate in listing decisions for the following lists, there is nothing to stop members of the public from asking the Minister to nominate: habitat to the critical habitat register; species for inclusion on the lists maintained under the Bonn Convention, CAMBA and JAMBA; species to the list of marine species; wetlands for inclusion on the list under the Ramsar Convention; a place for inclusion on the World Heritage List; to the list of CITES specimens. 31

17 10. THE PERMIT PROCESS Preparing and assisting in the implementation of plans It is possible for anyone with appropriate expertise to write a recovery plan and submit it to DEH for approval. Guidelines on what is required in a recovery plan can be found on the DEH website at: w w w. d e h. g o v. a u / b i o d i v e r s i t y / t h re a t e n e d / p u b l i c a t i o n s / recovery/guidelines/index.html 9.8 Providing information for DEH to take action Members of the public can t prosecute a person for breaching the EPBC Act only the Australian Government can do that. However, members of the public can provide DEH with enough information about the breach so that DEH can investigate. For example, information provided by WWF Australia and The Wilderness Society helped the Australian Government in its decision to take proceedings (and provided some of the evidence) against Ronald Greentree for clearing undertaken in the Gwydir Wetlands. Mr Greentree was found guilty of breaching s16 of the EPBC Act (Minister for the Environment and Heritage v Greentree (No2) [2004] FCA 741). 9.9 Keeping in touch with what s happening The EPBC Unit Project runs a free subscriber that sends an to subscribers every week containing information about the actions that have been referred to the Minister in the previous week and any decisions or listings. To subscribe, send a blank to: subscribe-epbcnotices@wwf.org.au There are various permits required under the EPBC Act When are permits required? In any Commonwealth area (ie land or water) a permit is required to kill, injure, take, keep or move a cetacean or a member of a listed threatened species (except a conservation dependent species), threatened ecological community, migratory species or marine species. A permit is also required to: interfere with a cetacean in a Commonwealth marine area; and significantly damage any habitat in a Commonwealth area that is listed on the Register of Critical Habitat as being critical to the survival of a listed threatened species or ecological community (other than a conservation dependent species) What matters are relevant to permit decisions? Generally, the Minister cannot issue a permit unless satisfied that: the activity will contribute significantly to the conservation of the relevant species. the adverse impact on the plant or animal is incidental to, and not the purpose of, the taking of the action and: - the activity will not adversely affect the conservation status of the species or a population of the species; - the activity is not inconsistent with a recovery plan or wildlife conservation plan for the species; and - the holder of the permit will take all reasonable steps to minimise the impact of the activity on the species. the activity is of particular significance to indigenous tradition and will not adversely affect the conservation status of the species. the activity is necessary to control pathogens and it will be conducted in a way that will (so far as is practicable) minimise the impact on the species. The criteria for permits to harm, injure or interfere with a cetacean are slightly different. The criteria relating to indigenous traditions and the control of pathogens do not apply. A permit can be issued to interfere with a cetacean if the activity is whale watching that will be carried out in accordance with standards specified in the regulations. 33

18 11. WILDLIFE TRADE Exemptions to permit requirements There are a number of exemptions from these permit requirements. 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 that are necessary to relieve or prevent the suffering of a listed animal or a cetacean; 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 or property; and actions that occur as the result of an unavoidable accident Notification requirement for exempt action If a person takes a prohibited action without a permit, and the action is not an offence because it falls within one of the available exemptions, the person is still required to notify DEH within 7 days of becoming aware of the action Appealing permit decisions A person whose interests are affected by a decision to issue or refuse a permit can apply to the Administrative Appeals Tribunal (AAT) for the decision to be reviewed. Appeals to the AAT are different from appeals to the Federal Court in a number of ways. Most importantly, the AAT conducts a merits review, while the Federal Court can only review matters relating to the law. This means that the AAT is able to stand in the shoes of the original decision maker and consider all matters that were relevant to the original decision. In contrast, Federal Court reviews are confined to the issue of whether the original decision was made in accordance with the law. Appeals to the AAT are usually cheaper and shorter than a Federal Court appeal. If you are considering commencing proceedings in the AAT, you should see a qualified legal practitioner Wildlife Trade Part 13A of the EPBC Act regulates the import and export of wildlife and specimens derived from wildlife. The regime under the EPBC Act replaces (and is similar to) that which applied under the Wildlife Protection (Regulation of Imports and Exports) Act 1982 (Cth). The trade in wildlife specimens is regulated by way of three lists: the list of CITES specimens; the list of exempt native specimens; the list of specimens suitable for live import. Copies of these lists are available at: List of CITES specimens The EPBC Act requires the Minister to maintain a list of CITES specimens. This list contains all species included in Appendices I, II and III of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (1973) (which is known as CITES ). Generally, a permit is required to import or export a member of a species that is included on the list, or a specimen derived from a member of a species on the list List of exempt native specimens Generally, a permit is required under Part 13A of the EPBC Act for the export of any native plant or animal, or a specimen derived from a native plant or animal, unless the plant or animal is included on the list of exempt native specimens. 35

19 11.4 List of specimens suitable for live import The list of specimens suitable for live import regulates the importation of live plants and animals. It is divided into two categories: unregulated specimens, and allowable regulated specimens. Generally, a permit is required to import allowable regulated specimens. Unregulated specimens, as the name suggests, can be imported without a permit. Live specimens that are not included on the list in either of the categories are prohibited from being imported. The EPBC Act contains a process for members of the public to make applications for items to be added to the list of specimens suitable for live import. Prior to the amendment of the list, the Minister must ensure that an assessment is carried out on the potential environmental impacts of the importation of the relevant plants or animals. Members of the public are provided with an opportunity to comment on the draft guidelines for the report and the draft report itself. DEH administers the list with regard to animals, while the Australian Quarantine Inspection Unit administers the plants listed in Schedule 5 - the Permitted Seeds list. More information on the wildlife trade lists is available from the EPBC Unit, and DEH website at: diversity/trade-use /lists/index.html 12. STRATEGIC ASSESSMENTS Under Part 10 of the EPBC Act, the Minister can agree to carry out a strategic assessment of a policy, plan or program. Strategic assessments can look at the impacts of actions taken under a policy, plan or program on any matter protected under Part Assessment coverage Once policies, plans and programs have undergone a strategic assessment, any future action taken in accordance with that policy, plan or program can be assessed by a less onerous assessment approach and, in certain circumstances, can exempt the actions from the standard assessment and approval processes under the EPBC Act. The most common instance where strategic assessments will be used is in relation to fisheries management plans for Commonwealth managed fisheries. Part 10 of the EPBC Act requires all fisheries management plans for Commonwealth managed fisheries to undergo a strategic assessment and, where the Minister endorses a fisheries management plan, the Minister is required to exempt actions that are approved under the plan from the requirement to obtain approval under the EPBC Act, but only for the purposes of the Commonwealth marine areas provisions of Part 3 (ie. ss.23 and 24A). Information on fisheries is available from WWF s Technical Fisheries C o n s e r v a t i o n O fficer on: (02) Information on the strategic assessment of fisheries management plans for C o m m o n w e a l t h managed fisheries is available from the DEH website at: or the Australian Fisheries Management Authority at:

20 13. THE LISTS AND LISTINGS 12.2 Important elements of strategic assessments The most important elements of the strategic assessment process are that: it enables the assessment of the cumulative impacts of actions on matters protected under Part 3 of the EPBC Act; it provides a mechanism for an exemption from the standard assessment and approval requirements for actions that would otherwise require approval under the Act; and members of the public can participate in strategic assessments by providing comments on the draft terms of reference for the assessment report and the draft assessment report. The EPBC Act contains a number of lists that are important for two main reasons: they determine the level of national statutory protection that is afforded to the things on the lists; and they have an important influence over the allocation of Australian Government, State and Territory resources that are available for conservation related activities Protected species and ecological communities (Part 13) There are 6 lists that relate to the protection of species, ecological communities and their habitats under Part 13 of the EPBC Act Threatened species Species included on the Threatened Species List (with the exception of extinct and conservation dependent species) are matters of National Environmental Significance and, therefore, are protected under Part 3 of the EPBC Act. Part 13 of the EPBC Act also prohibits any person from injuring or taking a member of a threatened species (except a member of a conservation dependent species) in a Commonwealth area without a permit, approval or relevant excuse. The EPBC Act provides for the preparation and implementation of recovery plans and wildlife conservation plans for species on the list. Further, stringent restrictions apply to the export of listed threatened species and specimens derived from l i s t e d t h reatened species under Part 13A of the EPBC Act. Information on how to make nominations is available from the EPBC Unit and DEH w w w. d e h. g o v. a u / b i o d i v e r s i t y / t h re a t e n e d / n o m i n a t i o n s / i n d e x. h t m l 38 The Minister makes decisions on whether to list or de-list species on the basis of information received from the Threatened Species Scientific Committee and members of the public. The Minister will usually provide members of the public with an opportunity to make comments on proposed changes to the list. Importantly, members of the public can nominate native species for inclusion on the list. Up-to-date copies of the list are available at w w w. d e h. g o v. a u / b i o d i v e r s i t y / t h re a t e n e d / s p e c i e s / i n d e x. h t m l The Thre a t e n e d Species Network is a good source of information about t h reatened species: w w w. w w f. o r g. a u / t s n 39

21 Threatened ecological communities Ecological communities on the Threatened Ecological Communities List (other than vulnerable communities) are matters of National Environmental Significance and are protected under Part 3 of the EPBC Act. Part 13 prohibits the taking or injuring of a member of a threatened ecological community in a Commonwealth area without a permit, approval or relevant excuse. It also provides for the preparation and implementation of recovery plans for ecological communities on the list. Members of the public can nominate ecological communities for inclusion on the list. Information on how to make nominations and comments on pro p o s e d changes to the list of t h reatened ecological communities is available f rom DEH and the EPBC Unit. Copies of the list of t h reatened ecological communities is available at: w w w. d e h. g o v. a u / b i o d i v e r s i t y / t h re a t e n e d / c o m m u n i t i e s / i n d e x. h t m Listed key threatening processes include such things as land clearance, predation by feral cats and foxes, die-back caused by the ro o t - rot fungus Phytophthera cinnamoni, and competition and land degradation by feral rabbits. The inclusion of a process on the list of key threatening processes does not (in itself) prevent the relevant process or related actions from being carried out. However, a person who proposes to carry out an action that is a key threatening process or that may contribute to a key threatening process may be required to seek the approval of the Minister. Further, the Minister may prepare threat abatement plans for key threatening processes, which can set out a procedure for identifying and implementing measures to minimise the adverse impacts of the process. Members of the public can nominate thre a t e n- ing processes for inclusion on the list of key t h reatening pro c e s s e s. For information on the list of key thre a t e n i n g p rocesses and how to make nominations see: w w w. d e h. g o v. a u / b i o d i v e r s i t y / t h re a t e n e d / k t p / index.html Critical Habitat Register Part 13 of the EPBC Act requires the Minister to establish the Critical Habitat Register, on which the Minister may list habitat that is critical to the survival of a listed threatened species or ecological community. It is an offence to damage habitat on the register in a Commonwealth area (except habitat of a conservation dependent species) without a permit, approval or relevant excuse. There is no formal process for members of the public to participate in listing decisions concerning the critical habitat register Key threatening processes The EPBC Act provides for the listing of processes that threaten the survival, abundance and evolutionary development of native species and ecological communities as key threatening processes. Processes are eligible for inclusion on this list if they could endanger a native species or ecological community or further endanger a listed threatened species or ecological community. The Critical habitat register can be viewed at: w w w. d e h. g o v. a u / b i o d i v e r s i t y / t h re a t e n e d / c r i t i c a l - h a b i t a t / W h e re habitat is identified in a re c o v e r y plan for a thre a t e n e d species or ecological c o m m u n i t y, the Minister must consider this habitat for inclusion on the re g i s t e r Migratory species Listed migratory species are matters of National Environmental Significance and are protected under Part 3 of the EPBC Act. The EPBC Act also prohibits the taking or injuring of a member of a migratory species in a Commonwealth area without a permit or relevant excuse and provides for the preparation of wildlife conservation plans for species on the list Marine species The list of marine species includes a wide range of animals, including sea-snakes, seals, crocodiles, dugongs, marine turtles, sea-horses, sea-dragons, pipefish and seabirds. Animals on the list of marine species are not matters of National Environmental Significance for the purposes of Part 3 of the EPBC Act. However, Part 13 prohibits any person from injuring or taking a member of a listed marine species in a Commonwealth area without a permit, approval or relevant excuse and provides for the preparation of wildlife conservation plans in relation to species on the list. WWF s Shorebirds Conservation Officer is a great source of information about migratory birds. Up-to-date copies of the list of migratory species are available on the DEH website at: versity/migratory/index. html The list of marine species can be viewed a t : w w w. d e h. g o v. a u / e p b c / s p e c i e s / m a r i n e. h t m l 41

22 13.2 Protected areas (Part 15) World Heritage properties 42 There are four lists that relate to the conservation of protected areas under Part 15 of the EPBC Act. These relate to Ramsar wetlands, World Heritage properties, National Heritage places, Commonwealth reserves and Biosphere reserves. Conservationists should also be aware that Part 15 contains provisions for the protection and management of Commonwealth reserves, Commonwealth Heritage places and Conservation zones (which are areas that are provided protection while they are being assessed for inclusion in a Commonwealth reserve). The environment in these areas receives protection under Part 3 of the EPBC Act, as they are part of a Commonwealth area Ramsar wetlands The ecological character of declared Ramsar wetlands are matters of National Environmental Significance and are protected under Part 3 of the EPBC Act. Under Part 15, management plans can be prepared for these wetlands. Only the Australian Government can designate an Australian wetland for inclusion on the List of Wetlands of International Importance under the Ramsar Convention. However, landowners and conservation groups can nominate a wetland for inclusion on the list. Prior to designating a wetland for inclusion on the list, the Minister must be satisfied that the Australian Government has used its best endeavours to reach agreement with the owners and occupiers of the site (and relevant State/Territory Governments) on the designation and management arrangements for the wetland. The list of Ramsar wetlands, copies of Ramsar Information Sheets and information on how to make nominations are available on DEH s website at: w w w. d e h. g o v. a u / w a t e r /wetlands/ramsar/ index.html or from Wetlands Help-line at: line.com/ramsar listing.htm Management plans for Ramsar wetlands must be consistent with the Australian Ramsar Management Principles as well as Australia s obligations under the Ramsar Convention. The world heritage values of declared World Heritage properties are a matter of National Environmental Significance and are protected under Part 3 of the EPBC Act. Management plans can also be prepared for declared World Heritage properties. Only the Australian Government can nominate Australian places to the World Heritage Committee for inclusion on the list. The Committee is responsible for determining whether nominated places are included on the list. Areas are only eligible for inclusion on the World Heritage List if they are found to have outstanding universal value on the basis of having natural or cultural heritage. The terms natural heritage and cultural heritage are defined in the Convention. The World Heritage Committee has also developed operational guidelines that provide criteria for the inclusion of places on the list. Prior to nominating a place for inclusion on the World Heritage List, the Minister must be satisfied the Australian Government has used its best endeavours to reach agreement with the owners and occupiers of the site (and relevant State/Territory Governments) on the nomination and management arrangements for the area National Heritage places The national heritage values of places on the National Heritage List are a matter of National Environmental Significance and are protected under Part 3 of the EPBC Act. A natural, historic or indigenous place can only be added to the National Heritage List if the Minister is satisfied that it has outstanding heritage value to the Nation because of the place s: Management Plans for World Heritage properties must be consistant with the World heritage Management Principles. The list of Australian world heritage properties is available at: heritage/awh/world heritage/index.html Management Plans for National Heritage Places must be consistant with the National Management Principles. 43

23 44 importance in the course, or pattern, of Australia's natural or cultural history; possession of uncommon, rare or endangered aspects of Australia's natural or cultural history; potential to yield information that will contribute to an understanding of Australia's natural or cultural history; importance in demonstrating the principal characteristics of: - a class of Australia's natural or cultural places; or - a class of Australia's natural or cultural enviro n m e n t s ; importance in exhibiting particular aesthetic characteristics valued by a community or cultural group; importance in demonstrating a high degree of creative or technical achievement at a particular period; strong or special association with a particular community or cultural group for social, cultural or spiritual reasons; special association with the life or works of a person, or group of persons, of importance in Australia's natural or cultural history; importance as part of Indigenous tradition Biosphere Reserves Biosphere reserves are areas designated for inclusion in the World Network of Biosphere Reserves by the International Coordinating Council of the Man and the Biosphere program of UNESCO. There is no process whereby members of the public can nominate places for designation as Biosphere reserves and the EPBC Act does not provide any substantive explicit protection for these areas. However, the EPBC Act enables management plans to be prepared for these areas and for the Australian Government to provide financial and technical assistance for their protection and conservation. There are currently 12 Biosphere reserves in Australia, including such places as Wilson's Promontory and Croajingolong National Parks in Victoria and Kosciuszko National Park in NSW. The public can nominate a place for inclusion on the National Heritage list. The EPBC Unit s Heritage Outre a c h O fficer can pro v i d e m o re information: h e r i t a g w w f. o r g. a u Information is also available from the DEH website at: w w w. d e h. g o v. a u / heritage/index.html Information on Australia s b i o s p h e re reserves is available on DEH s website at: w w w. d e h. g o v. a u / p a r k s / b i o s p h e re/index.html and on UNESCO s website at: w w w. u n e s c o. o r g / m a b / w n b r.htm 14. ENVIRONMENTAL PLANS The EPBC Act provides for the preparation and implementation of a number of environmental plans that may be relevant to conservationists Recovery Plans and Wildlife Conservation Plans The Minister is required to prepare recovery plans for listed threatened species and ecological communities (other than conservation dependent species ) and may prepare wildlife conservation plans for conservation dependent species, listed migratory species, marine species and cetaceans that occur in Australian waters. Recovery plans set out the steps that are necessary to ensure the continued survival and recovery of the species or ecological community. This includes identification of the habitat that is critical to the survival of the relevant species or ecological community and the actions that are necessary to protect that habitat. Recovery plans are also required to identify populations of the relevant species or ecological community that are under pressure and the steps that are required to ease the pressure on these populations. Wildlife conservation plans are quite similar to recovery plans in that they outline the actions that are required to support the continued survival of the relevant species. More particularly, they must outline the actions that are necessary to protect the relevant species, identify habitats of the species and specify the actions needed to protect those habitats. Anyone with relevent expertise can pre p a re recovery plans and submit them to DEH for approval. Information on how to pre p a re recovery plans and copies of approved re c o v e r y plans are available on DEH s website at: w w w. d e h. g o v. a u / b i o d i v e r s i t y / t h re a t e n e d / re c o v e r y / i n d e x. h t m l 45

24 14.2 Threat Abatement Plans (TAPs) The Minister may prepare Threat Abatement Plans (TAPs) for processes on the list of key threatening processes if the Minister considers that a plan is a feasible, effective and efficient way to abate the relevant process. These TAPs must identify the research, management, abatement and mitigation measures that are necessary to minimise the impact of the process on the affected native species or ecological community. While it is not an offence for individuals to breach a TAP, they do bind the Commonwealth and its agencies. This means that the Minister must not act inconsistently with a TAP when deciding whether to approve an action and on what conditions Management Plans for Protected Areas Management plans must be prepared by the Minister for World Heritage properties National heritage Places and Ramsar wetlands that are located wholly within a Commonwealth area. Similarly, management plans must be prepared for all Commonwealth reserves and places on the Commonwealth Heritage List. Where a World Heritage property, National heritage Place or Ramsar wetland is located wholly or partly in a State or Territory, the Minister must use best endeavours to prepare and implement management plans for these areas in cooperation with the relevant State or Territory. Management plans can also be prepared for Biosphere reserves. Where the reserve occurs wholly or partly in a State or Territory, these plans may be prepared in cooperation with the relevant State or Territory. T h reat abatement plans have been pre p a red for such things as the incidental by-catch of s e a b i rds during longline fishing operations. Copies of the thre a t abatement plans are available at: w w w. d e h. g o v. a u / b i o d i v e r s i t y / t h re a t e n e d / t a p / i n d e x. h t m l 14.4 Importance of EPBC plans Plans are a valuable source of information when trying to determine the potential impact of a proposed activity and whether the activity requires approval or a permit under the EPBC Act. Plans are a valuable source of free science for the community to use when making submissions on referrals. The process of preparing and implementing plans can provide a means for initiating community involvement in the conservation of biodiversity and heritage. Plans will often establish processes for the distribution of funding and assistance. This funding is often provided via related Australian Government funding programs. Plans can establish procedures for devising and implementing incentive schemes to assist stakeholders to conserve important elements of the environment (including heritage values). The preparation and implementation of plans for select elements of biodiversity and heritage areas can have beneficial flow-on effects for other aspects of the environment. For example, a management plan for a Ramsar wetland could determine the water allocations that are necessary to conserve the ecological character of the wetland. By ensuring that flows are allocated to the wetland, this could assist in addre s s i n g salinity and water issues in the surrounding area

25 15. CONSERVATION AGREEMENTS 15.1 Conservation agreements The EPBC Act allows the Minister to enter into voluntary conservation agreements with any person for the protection and conservation of biodiversity and heritage. These agreements can require a range of activities to be undertaken, provided they will result in a net benefit to conservation and are not inconsistent with any relevant recovery, threat abatement, wildlife conservation, or management plans. Conservation agreements with private land holdersare similar to conservation covenants under State and Territory legislation, in that they attached to the land to which they relate. Consequently, they may be used as a tool for securing conservation outcomes. For example, a conservation agreement could require a landholder to set aside a particular area of land as a nature reserve and, in return, the Australian Government provides money to enable the landholder to carry out specified actions and to assist the landholder to maintain the reserve. The person will still own land, but will be bound to comply with the terms and conditions of the agreement. Like most contracts, conservation agreements can only be varied or terminated with the consent of all the parties to the conservation agreement, and will remain in force and attached to the land even after it is sold. 16. OPPORTUNITIES FOR AUSTRALIAN GOVERNMENT ASSISTANCE 16.1 Environmental plans The development and implementation of plans under the EPBC Act provides the public with a number of opportunities to obtain financial and technical assistance for conservation related activities Identifying and monitoring biodiversity The EPBC Act allows the Minister to provide financial and technical assistance to any person in relation to the identification and monitoring of components of biodiversity (which includes species, ecological communities, ecosystems and ecological p rocesses). So, for example, the Minister may be willing to provide funding to a conservation group to assist in monitoring an EPBC listed threatened or migratory species Conservation agreements The EPBC Act enables the Minister to enter into conservation agreements with any person for the protection and conservation of biodiversity and heritage. These agreements can be a vehicle for funding Related funding programs The presence of matters of National Environmental Significance may assist in attracting funding for programs associated with their conservation. For example, a program to improve water quality and restore habitat for a listed threatened species by removing weeds and pests from a waterway may qualify for assistance from the Australian Government

26 MORE INFORMATION EPBC Unit Project Phone (02) Fax (02) Web WWF-Australia Phone Web Australian Council of National Trusts Phone (02) Web Tasmanian Conservation Trust Phone (03) Web Department of the Environment & Heritage Web DEH Community Information Unit Phone Environmental Defender s Offices in each State and Territory Web Natural Heritage Trust Web Threatened Species Network Web