Protection of World Heritage Properties under the EPBC Act

Transcription

1 Protection of World Heritage Properties 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 areas included on the list maintained under Article 11 (called the World Heritage List ) of the Convention for the Protection of the World Cultural and Natural Heritage (called the World Heritage Convention ). Areas included on the World Heritage List are called World Heritage properties. Details of Australia s World Heritage properties are available on the Commonwealth Department of the Environment and Heritage s (which is called Environment Australia ) website at More information on the World Heritage Convention is available at This fact sheet deals with the following issues relating to World Heritage properties. The key World Heritage provisions of the EPBC Act. How are properties included on the World Heritage List? The environmental assessment and approval processes. Management plans for World Heritage properties. Conservation agreements and financial assistance. Where to go to get more information. 2. THE KEY WORLD HERITAGE PROVISIONS The key provisions of the EPBC Act that relate directly to World Heritage properties are: Part 3, ss.12 and 15A which impose approval and assessment requirements on activities that are likely to have a significant impact on the world heritage values of a declared World Heritage property; Part 15, Division 1, Subdivision D which enables management plans to be prepared and implemented for World Heritage properties; and Part 15, Division 2, Subdivisions B and C which set out the procedure for the nomination of places for inclusion on the World Heritage List. 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 World Heritage properties, can provide protection for these places and the species and communities related to these places. 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 world heritage values of declared World Heritage properties (via ss.12 and 15A). However, they also include listed threatened species, listed threatened ecological communities, listed migratory species, the ecological character of declared Ramsar wetlands and the Commonwealth marine environment. Some World Heritage areas include Ramsar wetlands and are found in Commonwealth areas. Similarly, species and ecological communities that are found in World Heritage properties may be included on the lists of threatened species, threatened ecological communities and 1

2 migratory species. For more 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 World Heritage properties. 3. HOW ARE AREAS INCLUDED ON THE WORLD HERITAGE LIST? Only national governments of the parties to the World Heritage Convention can nominate areas within their territories for inclusion on the list. Nominations are made to the World Heritage Committee, which is comprised of 21 representatives of the parties to the Convention. The Committee is responsible for determining whether a nominated place should be 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 a criteria for the inclusion of places on the list on the basis of natural and cultural heritage. Copies of the operational guidelines are available on the website for the Convention at: There are five stages in the listing process. A nomination is made to the World Heritage Committee. Nominations are reviewed by the World Heritage Centre to ensure they contain all necessary information. Technical reports are prepared on whether the nominated places meet the listing criteria. If the nomination is based on the place having cultural heritage, the technical reports are usually prepared by International Committee on Monuments and Sites ( ICOMOS ). If the nomination is based on the place having natural heritage values, the technical reports are usually prepared by the International Union for the Conservation of Nature ( IUCN ). Technical reports are evaluated by the World Heritage Bureau and a recommendation is made to the Committee on whether or not to include the place on the list. The Bureau is comprised of 7 members of the World Heritage Committee and is responsible for assessing whether the area meets the listing criteria and making recommendations on listing to the Committee. The World Heritage Committee determines whether or not to include the nominated place on the World Heritage List. If there is insufficient information to support a nomination, the Committee can defer its final decision on listing until further investigations have been carried out. Prior to nominating a place for inclusion on the World Heritage 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 nomination and the management arrangements for the area. Similarly, if the nominated area is wholly or partly in a State or Territory, the Minister cannot nominate the area unless he/she is satisfied the Commonwealth has used its best endeavours to reach agreement with the relevant State or Territory on the nomination and the management arrangements for the area. 2

3 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. The matters of national environmental significance include the world heritage values of declared World Heritage properties. Under ss.12 and 15A, actions that are likely to have a significant impact on the world heritage values of a declared World Heritage property 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 World Heritage property? Declared World Heritage properties include: all World Heritage properties in Australia (ie all Australian places included on the World Heritage List); and all places that the Minister deems to be a declared World Heritage property. The Minister can declare that a place is a declared World Heritage property if: the place has been nominated for inclusion on the World Heritage List; or the Minister is satisfied that the place has, or is likely to have, world heritage values and some or all of those values or under threat. World heritage values The world heritage values of a declared World Heritage property are the natural heritage and cultural heritage contained in the property that justify its inclusion on the World Heritage List. Information on the world heritage values of Australia s World Heritage properties is available at: Exemptions There are a number of important exemptions from the approval requirements in Part 3. In this regard, the following actions (amongst other things) 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. 3

4 4.3 How does the assessment and approval process work? The general steps in the assessment and approval process are as follows. Step 1 Referral A person who believes an action may have a significant impact on: a matter of national environmental significance; the environment on Commonwealth land; or the environment generally where the action is carried out on Commonwealth land or is being taken by the Commonwealth or a Commonwealth agency, must refer details of the action to the 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. Supplements to the 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, grey-headed flying-foxes and spectacled flying-foxes. 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). 4

5 Within 10 business days of making this decision, the Minister must give notice of the decision to the proponent and relevant State or Territory in which the project will be carried out, and publish notice of the decision on Environment Australia s website. Note that if a bilateral agreement is in place that accredits a State assessment process, the State (and not the Commonwealth) will assess the project. Similarly, if a Ministerial declaration is 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 world heritage values of a declared World Heritage property, the assessment under the EPBC Act will usually only assess the potential impacts on the values of the property. 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 World Heritage property, these may include: the assessment report and submissions received from members of the public concerning relevant environmental issues; the Australian World Heritage management principles; any management plan that is in force for the World Heritage property; and the terms of the World Heritage Convention. In addition, when deciding whether or not to approve a project for the purposes of ss.12 and 15A (ie the provisions that relate to declared World Heritage properties), the Minister must not act inconsistently with Australia s obligations under the World Heritage Convention and, if the property is wholly within a Commonwealth area, must not contravene any management plan that has been prepared for the property. If the relevant property 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 World Heritage management principles and any management plan that has been prepared under the Act for the property. The Australian World Heritage management principles are found in Schedule 5 of the regulations. Relevantly, the management principles provide that an action should not be approved if it would be inconsistent with the protection, conservation, presentation or transmission to future generations of the World Heritage values of the property. The management principles also provide that approval of the action should be subject to conditions, if 5

6 necessary, to ensure protection, conservation, presentation or transmission to future generations of the World Heritage values of the property. 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 1: the Minister must prepare management plans for World Heritage properties in Commonwealth areas that are consistent with the terms of the World Heritage Convention and the Australian World Heritage management principles; and the Commonwealth must use its best endeavours to ensure: - management plans are prepared and implemented for World Heritage properties 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 World Heritage Convention or the Australian World Heritage management principles. 6

7 The Australian Ramsar management principles require the primary purpose of management of World Heritage properties to be to identify, protect, conserve, present, transmit to future generations and, if appropriate, rehabilitate the World Heritage values of the property. The management principles also set out several matters that management plans for World Heritage properties should contain. These include a description of the world heritage values of the property and the steps that are necessary to ensure their protection, conservation and presentation. The Commonwealth and Commonwealth agencies are required to comply with management plans for World Heritage properties 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 World Heritage property that is wholly or partly in a State or Territory in accordance with the Australian World Heritage management principles and any management plan that has been prepared under the Act for the place. 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 World Heritage property 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 World Heritage property. 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 World Heritage properties. For example, the Minister could enter into a conservation agreement with the owner of a property that includes a World Heritage property, whereby the Commonwealth pays the property owner to assist in the management and conservation of the place and its biodiversity. 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: 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