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Bill 1995 (No 2)
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.*
The Bill provides for:
*
the identification, and classification, of the species, populations and
ecological communities with which it is concerned, and
*
the identification of threatening processes that may threaten the
survival of those species, populations and ecological communities.
The Bill also provides for the declaration, and mapping, of habitats that are
critical to the survival of those identified threatened species, populations and
ecological communities that are classified as endangered.
* Amended in committee--see table at end of volume.
Provision is made for the preparation of recovery plans for threatened
species, populations and ecological communities and threat abatement plans
to manage key threatening processes.
Other measures are available to facilitate the appropriate assessment,
management and regulation of actions that may damage critical or other
habitat or otherwise significantly effect threatened species, populations and
ecological communities. The Bill makes provision for licences, stop work
orders and joint management agreements while the coverage of interim
protection orders and conservation agreements under the National Parks and
Wildlife Act 1974 (the NPW Act) (as amended by the Bill) is extended for
purposes of the conservation of threatened species, populations and
ecological communities, and their habitats.
New offences relating to harming (of threatened species, populations and
ecological communities, being animals) and picking (of threatened species,
populations and ecological communities, being plants), buying, selling or
possessing of threatened species or populations (being animals or plants) and
damaging of critical and other habitat are created, and are enforceable under,
the NPW Act.
These measures are integrated with, and complemented by, amendments
made by the Bill to the Environmental Planning and Assessment Act 1979
(the EPA Act). The amendments to the EPA Act require (among other
things) that:
*
critical habitat be identified in environmental planning instruments,
and
*
consent authorities and determining authorities must, when
considering proposed development or an activity (within the meaning
of that Act), assess whether it is likely to significantly affect
threatened species, populations and ecological communities, or their
habitats, and, if a significant effect is likely, to require the preparation
of a species impact statement in accordance with the requirements of
the Bill, and
*
consent authorities and determining authorities must, when
considering proposed development or an activity, have regard to
relevant recovery plans and threat abatement plans, and
*
a regime for concurrence and consultation between consent authorities
and determining authorities and the Minister administering the
proposed Act or the Director-General of National Parks and Wildlife
be instituted to aid the assessment process.
The Bill repeals the Endangered Fauna (Interim Protection) Act 1991,
makes consequential amendments to certain other Acts and enacts
consequential savings, transitional and other provisions.
Explanatory note page 2
Preliminary
Part 1 (clauses 15) contains provisions that set out the objects of the
proposed Act and define terms used in it. Among the expressions defined are
ecological community, habitat, population and threatening process. The
Part also contains machinery provisions, including provisions dealing with
the citation and commencement of the proposed Act.
Part 2
Listing of threatened species, populations and
ecological communities and key threatening
processes
Part 2 (clauses 637) provides for the identification, and classification, of
the species, populations and ecological communities with which the
proposed Act is concerned. It also provides for the identification of key
threatening processes that are most likely to jeopardise the survival of those
species, populations and ecological communities. To this end, this Part
provides for the listing:
*
in Schedule 1, of endangered species, endangered populations and
ecological communities and species that are presumed to be extinct,
and
*
in Schedule 2, of vulnerable species, and
*
in Schedule 3, of key threatening processes.
The initial lists of threatened species, that is, species that are endangered,
presumed extinct or vulnerable, are contained in the proposed Act.
Responsibility for inserting lists of endangered populations and endangered
ecological communities and threatening processes, and for adding items to,
omitting items from or amending items in the lists of threatened species,
populations and ecological communities and threatening processes rests with
the Scientific Committee established by the proposed Act. The Scientific
Committee must however refer a proposed determination for listing to the
Minister for review.
Division 1 (clauses 69) makes provision with respect to Schedules 13 that
are to contain lists of the species, populations and ecological communities
and key threatening processes with which the proposed Act is concerned.
Provision is made for the identification on those lists of species that are
endangered or vulnerable, and of ecological communities that are
endangered, on a national basis (being species or ecological communities
that are also listed under the Endangered Species Protection Act 1992 of the
Commonwealth).
Explanatory note page 3
Division 2 (clauses 1015) deals with eligibility for listing of species,
populations and ecological communities that are endangered, species that are
presumed extinct, species that are vulnerable and key threatening processes.
Division 3 (clauses 1626) describes the process by which the items may be
added to or omitted from lists and by which items in lists may be amended,
and makes provision for public participation in that process.
Division 4 (clauses 27-37) describes the process by which species may be
listed provisionally in Schedule 1, on an emergency basis, before the formal
listing process described in Division 3 has been undertaken or completed,
and makes provision for public participation in that process. Only species
that are likely to be endangered may be provisionally listed.
Offences relating to the harming of threatened species, populations and
ecological communities (being animals), the buying, selling or possessing of
threatened species or populations (being animals or plants) and the picking
of threatened species, populations and ecological communities (being plants)
are contained in the NPW Act.
Part 3
Critical habitat of endangered species,
populations and ecological communities
Part 3 (clauses 3856) makes the Director-General of National Parks and
Wildlife responsible for identifying (where this is possible) habitat that is
critical to the survival of endangered species, populations and ecological
communities (that is, those species, populations and ecological communities
listed for the time being in Schedule 1) and for recommending to the
Minister administering the proposed Act that the habitat so identified be
declared critical habitat. The Director-General must consult with the
Scientific Committee before preparing a recommendation and must have
regard to any advice given by the Scientific Committee concerning
identification of critical habitat of endangered populations and ecological
communities.
Division 1 (clauses 3853) describes the process by which critical habitat is
identified by the Director-General and declared by the Minister and makes
provision for public participation in that process.
The Division specifies the land that is eligible for declaration as critical
habitat. Notice of a recommendation for identification of an area or areas of
land as critical habitat must be given to landholders who are affected by the
recommendation, public authorities exercising functions in relation to the
Explanatory note page 4
land and other specified persons, including mortgagees. Notice must also be
published in the press and the Gazette, and any person may make
submissions concerning the recommendation. In considering a
recommendation, the Minister must have regard (among other matters) to:
*
the likely social and economic consequences of a declaration, and
*
the likely consequences of a declaration for landholders of, or other
persons having an interest in, or on lawful uses of, the land.
If a public authority submits that a recommendation is likely to affect its
exercise of functions, the Minister administering the proposed Act is
required to consult with the Minister responsible for the public authority
before making a decision about the recommendation.
Regulations may be made under, and for the purposes of, the proposed Act
to prohibit or restrict the carrying out of specified action, or action of a
specified kind, on specified critical habitat.
Division 2 (clauses 5456) deals with the preparation, publication and other
dissemination of maps of critical habitat, and the maintenance of a register
of critical habitat by the Director-General. The register is to be open for
public inspection, free of charge. The register is also to be made available to
public authorities.
An offence relating to the damaging of critical habitat is contained in the
NPW Act. That Act also makes it an offence for a person to damage the
habitat of a threatened species, population or ecological community.
Part 4
Recovery plans for threatened species,
populations and ecological communities
Part 4 (clauses 5774) is the first of 4 Parts of the proposed Act that address
responses to threats to the survival of threatened species, populations and
ecological communities, and their habitats. Part 4 deals with recovery plans
for threatened species, populations and ecological communities and makes
further provision as to the protection of their critical habitats (if any).
The Director-General of National Parks and Wildlife must prepare recovery
plans for endangered species (other than species presumed extinct),
populations and ecological communities and may prepare recovery plans for
vulnerable species. The object of a recovery plan is to promote the recovery
of the threatened species, population or ecological community to which it
relates to a position of viability in nature. If critical habitat has been declared
for the species, population or ecological community, the plan must include
reference to that fact.
Explanatory note page 5
Division 1 (clauses 5769) deals with the preparation, contents, publication
and adoption of recovery plans.
The Director-General must, in preparing a recovery plan, have regard to the
objects of the proposed Act, the likely social and economic consequences of
the making of the plan, the most efficient and effective use of available
resources for the conservation of threatened species, populations and
ecological communities and, consistent with the principles of ecologically
sustainable development, minimising any significant adverse social or
economic consequences of the making of the plan. The Director-General
must also consider the inclusion in a recovery plan of measures to secure
public co-operation in the conservation effort.
The Director-General is charged, after consulting with the Scientific
Committee, with determining priorities in the preparation of recovery plans,
with the highest priority to be given to the preparation of plans for species,
populations and ecological communities that are endangered nationally.
Recovery plans must, among other things, identify the persons who are
responsible for the implementation of measures included in them. If a public
authority is to have this responsibility, the Minister administering the
proposed Act must consult with, and obtain the approval of, the Minister
responsible for the public authority to inclusion in the plan of the measures
to be taken by the public authority before completing preparation of the draft
plan.
Notice of the preparation of a draft recovery plan is to be given to affected
public authorities and in the press and the Gazette. Any person may make
submissions about the draft recovery plan.
The proposed Act provides for the approval of recovery plans by the
Minister administering the proposed Act, and for publication of that
approval. The Director-General is required to make a copy of a recovery
plan available for public inspection, without charge.
Division 2 (clauses 7074) deals with the implementation of recovery plans,
and includes procedures for public authorities to report on their
implementation of, or on proposed departures from, measures specified to be
taken in recovery plans.
A consultative procedure, aimed at resolving difficulties in implementation
of recovery plans, is provided.
Explanatory note page 6
In accordance with amendments proposed to be made by the proposed Act to
the EPA Act, the terms of recovery plans are to be taken into account by
consent authorities and determining authorities (within the meaning of that
Act) when they are considering development applications under Part 4, or
the carrying out, or applications for approval for the carrying out, of
activities under Part 5, of that Act.
Part 5
Threat abatement plans to manage key
threatening processes
As noted above, Part 2 of the proposed Act (Listing of threatened species,
populations and ecological communities and key threatening processes)
provides for the identification of key threatening processes by the Scientific
Committee. Part 5 (clauses 7591) deals with the preparation, at the
discretion of the Director-General of National Parks and Wildlife, and
implementation of threat abatement plans. The object of a threat abatement
plan is to manage a key threatening process so as to abate, ameliorate or
eliminate its adverse affects on threatened species, populations and
ecological communities.
Division 1 (clauses 7586) deals with the preparation, contents, publication
and adoption of threat abatement plans.
The Director-General must, in preparing a threat abatement plan, have regard
to the objects of the proposed Act, the likely social and economic
consequences of the making of the plan, the most efficient and effective use
of available resources for the conservation of threatened species, populations
and ecological communities and, consistent with the principles of
ecologically sustainable development, minimising any significant adverse
social or economic consequences of the making of the plan. The
Director-General must also consider the inclusion in a threat abatement plan
of measures to secure public co-operation in the conservation effort.
The Director-General is charged, after consulting with the Scientific
Committee, with determining priorities in the preparation of threat abatement
plans.
Threat abatement plans must, among other things, identify the persons who
are responsible for the implementation of measures included in them. If a
public authority is to have this responsibility, the Minister administering the
proposed Act must consult with, and obtain the approval of, ,the Minister
responsible for the public authority to inclusion in the plan of the measures
to be taken by the public authority before completing preparation of the draft
plan.
Explanatory note page 7
Notice of the preparation of a draft threat abatement plan is to be given to
affected public authorities and in the press and the Gazette. Any person may
make submissions about the draft threat abatement plan.
The proposed Act provides for the approval of threat abatement plans by the
Minister administering the proposed Act, and for publication of that
approval. The Director-General is required to make a copy of a threat
abatement plan available for public inspection, without charge.
Division 2 (clauses 8791) deals with the implementation of threat
abatement plans, and includes procedures for public authorities to report on
their implementation of, or on proposed departures from, measures specified
to be taken in threat abatement plans.
A consultative procedure, aimed at resolving difficulties in implementation
of threat abatement plans, is provided.
In accordance with amendments proposed to be made by the proposed Act to
the EPA Act, the terms of threat abatement plans are to be taken into account
by consent authorities and determining authorities (within the meaning of
that Act) when they are considering development applications under Part 4,
or the carrying out, or applications for approval for the carrying out, of
activities under Part 5, of that Act.
Part 6
Licensing
Part 6 (clauses 92113) deals with the licensing by the Director-General of
actions that are likely:
*
to harm threatened species, populations or ecological communities (in
so far as animals are concerned) or to result in the picking of
threatened species, populations or ecological communities (in so far as
plants are concerned), or
*
to damage critical habitat or other habitat of those species, populations
or ecological communities.
H a r m and pick are defined in the NPW Act.
A person does not commit an offence under Part 8A of the NPW Act of
harming or picking threatened species, populations or ecological
communities or damaging a critical habitat or the habitat of threatened
species, populations or ecological communities if the action taken by the
person is essential for the carrying out of
Explanatory note page 8
(a)
development in accordance with a development. consent within the
meaning of the EPA Act, or
(b)
an activity, whether by a determining authority or pursuant to an
approval of a determining authority, within the meaning of Part 5 of
that Act if the determining authority has complied with that Part.
Accordingly, a licence under the proposed Act is not required for the taking
of action that is so authorised under the EPA Act. However, amendments
made by the proposed Act to the EPA Act ensure that the same tests are
applied (with the involvement of the Minister administering this Act or the
Director-General of National Parks and Wildlife) to assess the consequences
of development or an activity under that Act before a decision concerning it
is made as are applied by the Director-General under the proposed Act in
determining whether a licence should be granted under Part 6.
The Part also contains provisions about species impact statements. These
statements are employed to measure the significance of the effect of actions
on threatened species, populations or ecological communities, or their
habitats. A species impact statement must be lodged with an application for
a licence under this Part if the Director-General determines that the action
proposed is likely to significantly affect threatened species, populations or
ecological communities, or their habitats. A similar requirement applies
when a development application is lodged, or an activity proposed, under the
EPA Act over critical habitat or that is likely to significantly affect
threatened species, populations or ecological communities, or their habitats.
Division 1 (clauses 92108) deals with the grant of licences, including the
making of applications, fees, determinations as to whether actions proposed
will significantly affect threatened species, populations or ecological
communities, or their habitats, publication of applications and the making of
submissions concerning them, matters that the Director-General must take
into account before granting licences, licence conditions, cancellation of
licences and appeals.
Specific provision is made as to the matters that the Director-General must
take into account when deciding whether an action .is likely to have a
significant effect on threatened species, populations or ecological
communities, or their habitats, and when, accordingly, an applicant should
be required to prepare a species impact statement. These matters mirror
those contained in proposed section 5A of the EPA Act that consent
authorities and determining authorities must apply in determining likely
significant effect on threatened species, populations and ecological
communities, and their habitats, and whether, therefore, species impact
statements should be prepared for the purposes of making appropriate
decisions under Parts 4 and 5 of that Act.
Explanatory note page 9
Similarly, both this Part and the proposed amendments to the EPA Act,
contain complementary provisions dealing with matters that the
Director-General must take into account when deciding whether to grant, or
to refuse to grant, a licence under the proposed Act and with matters that the
Director-General (or the Minister administering the proposed Act, if standing
in place of the Director-General) must take into account when acting as a
concurrence authority, or consulting with consent authorities or determining
authorities or the Minister administering the EPA Act, under that Act in
relation to development or activities affecting critical habitat or threatened
species, populations or ecological communities, or their habitats.
If the Director-General determines under Part 6 of the proposed Act that
there is likely to be a significant effect on threatened species, populations or
ecological communities, or their habitats, the Director-General must require
the licence applicant to prepare a species impact statement. If the
Director-General determines that a significant effect is not likely, no licence
under the proposed Act is required and the Director-General must give the
applicant a certificate to this effect. However, if the action proposed by the
applicant may affect protected fauna or protected native plants (within the
meaning of the NPW Act), the applicant may require a licence under that Act
before taking the action proposed.
If an action that is likely to affect threatened species, populations or
ecological communities, or their habitats as well as protected fauna or
protected native plants, a licence granted under the proposed Act may
authorise the harming of the protected fauna or the picking of the protected
native plants without the necessity for the applicant to apply for, and obtain,
a separate licence for this purpose under the NPW Act.
Division 2 (clauses 109-113) deals with the form and content of species
impact statements and the notification of the Director-General's requirements
as to their preparation. It also makes provision for the accreditation of
persons to prepare assessments of species impact statements.
Part 7
Other conservation measures
Part 7 (clauses 114126) deals with certain other measures that may be
taken to conserve threatened species, populations and ecological
communities, and their habitats. These involve the making of stop work
orders by the Director-General or the making of joint management
agreements between the Director-General and other public authorities to
manage or regulate actions on land that may jeopardise the survival of
threatened species, populations or ecological communities, or their habitats.
Explanatory note page 10
Measures available under the NPW Act, involving the making of interim
protection orders by the Minister or the entering into of conservation
agreements by the Minister with land owners, may also be employed for the
conservation of threatened species, populations or ecological communities,
or their habitats (in consequence of the amendment of that Act by the
proposed Act).
Division 1 (clauses 114120) deals with the making of stop work orders by
the Director-General, appeals, consultations about modification of
detrimental action and recommendations for the making of interim
protection orders under the NPW Act.
The Director-General may, if of the opinion that action being, or about to be,
carried out that is likely to harm threatened species, populations or
ecological communities or damage critical or other habitat, order that the
action and any other action (other than any action specified in the order)
cease in, or in the vicinity of, the habitat concerned for a period of 40 days.
An order may be extended for a further period or periods of 40 days. (A
reference to action being carried out includes a reference to action that
should be, but is not being, carried out.) Power to make a stop work order
does not extend to the prevention of action authorised by or under a licence
granted under the proposed Act or the NPW Act, the sanction of an
appropriate planning determination or under the Bush Fires Act 1949 or the
State Emergency and Rescue Management Act 1989 if reasonably necessary
to avoid a threat to life or property.
No prior notice of the intention to make a stop work order need be given. A
person against whom an order is made may appeal to the Minister against
the making of the order. The Director-General is also required to consult
with the person to ascertain whether any suitable modification of the action
is possible.
Division 2 (clauses 121126) deals with the preparation, contents and
publication of joint management agreements, and provides for review of
joint management agreements, and the performance of parties to them, by
the Scientific Committee.
Joint management agreements are agreements entered into by the
Director-General with one or more public authorities to manage, control,
regulate or restrict an action that is jeopardising the survival of threatened
species, populations or ecological communities. Joint management
agreements must, among other things, identify the action that is the subject
of the agreement, the objective of the agreement, the measures to be adopted
to achieve the objective and the parties responsible for implementing the
measures.
Explanatory note page 11
Part 8
Scientific Committee
Part 8 (clauses 127136) establishes the Scientific Committee as a body
corporate, and describes its functions and membership. Provision is made as
to procedure of, and the manner of service of documents on, the Scientific
Committee. The Part provides that the Scientific Committee is not subject to
Ministerial control or direction. However, the Minister administering the
proposed Act is responsible for the appointment of the Chairperson and
Deputy Chairperson of the Scientific Committee from among its members.
Part 9
Miscellaneous
Part 9 (clauses 137151) makes provision for a number of miscellaneous
matters relating to the operation of the Act. These include:
a statement that the Act binds the Crown
a requirement for the Director-General to report on the operation of
the Act in the Director-General's annual report to Parliament
a statement that the Act is not intended to affect native title rights and
interests
a provision providing that the Director-General may decline to
disclose the location of critical habitat (or proposed critical habitat)
other than to specified persons if the Director-General is of the
opinion that disclosure would be likely to expose the critical habitat
(or proposed critical habitat) to a significant risk and that withholding
of the location is in the public interest, and if affected landholders
have requested, or are agreeable to, the withholding of the location
a provision enabling third parties to bring proceedings in the Land and
Environment Court for orders remedying or restraining breaches of the
Act
provisions as to the form and service of notices and other documents
under the proposed Act
a provision repealing the Endangered Fauna (Interim Protection) Act
1991 and certain Acts amending that Act
a provision concerning review of the operation of the Act as soon as
possible after the period of 2 years after the date of assent to the
proposed Act.
Explanatory note page 12
The Part also authorises the making of regulations, and contains formal
provisions giving effect to the Schedules amending other Acts and inserting
savings, transitional and other provisions.
Schedule 1
Endangered species, populations and
ecological communities
Part 1 lists endangered species.
Part 2 makes provision for the list of endangered populations.
Part 3 makes provision for the list of endangered ecological communities.
Part 4 lists species that are presumed extinct.
Schedule 2
Vulnerable species
Schedule 2 lists vulnerable species.
Schedule 3
Key threatening processes
Schedule 3 makes provision for the list of key threatening processes.
Schedule 4
Amendment of the National Parks and
Wildlife Act 1974
Certain of the amendments to this Act have been referred to above.
Various definitions are revised or omitted, and certain new definitions are
inserted to accord with definitions contained in the proposed Act. The
concept of take (in relation to fauna) has been replaced with that of harm,
this expression being extended to cover threatened species, populations and
ecological communities, but does not include harming by the changing of
habitat. (Specific offences relating to damage to critical. and other habitat are
proposed to be included in the Act). A revised definition of pick is inserted.
Numerous consequential amendments arise because of these changes.
The definition of endangered fauna is omitted. A definition of threatened
interstate fauna is included to cover fauna, to be listed on a revised
Schedule 12 to the Act, that is not threatened in New South Wales but is
threatened elsewhere in Australia. Various offences relating to threatened
interstate fauna (for example, under sections 99, 100, 101 and 103) are
created.
Explanatory note page 13
Various amendments are made to include references to the proposed Act
(and, where appropriate, the Wilderness Act 1987) in provisions dealing with
the administration of the National Parks and Wildlife Service and similar
matters.
A provision dealing with the purpose and contents of conservation
agreements (section 69C) is revised so that such agreements may be entered
into for the purpose of conserving threatened species, populations and
ecological communities, and their habitats.
Provisions dealing with stop work orders (sections 91AA9 1FF in Division
1 of Part 6A) are revised to accord with those in the proposed Act. Stop
work orders under the NPW Act may now be made only by the
Director-General (rather than by either the Minister or the Director-General)
but an appeal against an order made by the Director-General may be made to
the Minister.
The provisions dealing with the making of interim protection orders
(sections 9 1A9 1 D in Division 2 of Part 6A) are also revised to
accommodate the making of orders in respect of critical habitat and
threatened species, populations and ecological communities, and their
habitats. These provisions are also revised by extending, from 12 months to
2 years, the period during which an interim protection order may operate and
by permitting the making of more than one order in respect of land owned
by the same owner.
Offence provisions relating to fauna (other than new offences arising under
the proposed Act) have been revised, among other things, to omit references
to endangered fauna and marine mammals and to include references to
threatened interstate fauna (see amendments to sections 981 01, 103 and
1 10112).. The offence of approaching a marine mammal closer than a
prescribed distance (previously section 99 (1) (c)) has been relocated as
proposed section 1 12G.
The new offences relating to the harming or picking of threatened species,
populations and ecological communities, buying, selling or possessing
threatened species or populations and damaging critical habitat and habitat
of threatened species, populations and ecological communities are contained
in a new Part, Part 8A (proposed sections 118A1 18E). Proposed section
118E enables a court, on finding an offence relating to the damaging of
habitat proven, to order an accused, in addition to or in substitution for the
payment of any pecuniary penalty for the offence, to mitigate the damage or
to restore the habitat concerned.
Explanatory note page 14
A provision dealing with rights to enter property (section 164) is extended to
enable critical habitat to be identified and mapped under the proposed Act,
to enable the Director-General (or the Minister, where appropriate) to
perform their functions as concurrence authorities or on being consulted for
the purposes of planning matters under the EPA Act, and generally to enable
compliance with the requirements of the proposed Act.
Amendments are also made concerning proceedings for offences, restraint of
breaches of the Act, evidentiary provisions and matters of a savings,
transitional and consequential nature.
Schedule 8B (dealing with the procedures and conditions of the Scientific
Committee under the Act) has been repealed as it is proposed that that
Committee be abolished and replaced by the Scientific Committee
established under the proposed Act.
Schedule 12 (Endangered Fauna) is amended by the repeal of all of the lists
of endangered species currently included in it. The matter in these lists has
been transferred to Schedules 1 and 2 to the proposed Act. Similarly,
Schedule 13 (Protected Native Plants) has been amended so as to delete
reference to threatened species that are now included on Schedule 1 or 2 to
the proposed Act and to appropriately revise its contents.
Schedule 5
Amendment of the Environmental Planning
and Assessment Act 1979
Certain of the amendments to this Act have been referred to above.
Certain definitions are provided to accord with those in the proposed Act.
The objects of the EPA Act (section 5) are revised to make it clear that the
protection and conservation of threatened species, populations and
ecological communities is within the compass of the EPA Act.
Proposed section 5A is inserted (in place of the current section 4A, which is
repealed) to set out the test to be applied by consent authorities and
determining authorities in determining whether there is likely to be a
significant effect on threatened species, populations and ecological
communities, and their habitats.
Provisions are included to make it clear that environmental planning
instruments may make provision for protection and conservation of native
plants and animals, including threatened species, populations and ecological
communities, and their habitats, and to require environmental planning
instruments to make provision as to critical habitat (proposed section 26 (e1)
and (2)).
Explanatory note page 15
Proposed section 34A requires the Director of Planning to consult with the
Director-General of National Parks and Wildlife before preparing a draft
State environmental planning policy, an environmental study or draft
regional environmental plan and councils to consult with the
Director-General of National Parks and Wildlife before preparing an
environmental study or draft local environmental plan if, in either case,
critical habitats or threatened species, populations and ecological
communities, and their habitats, will or may be affected by the draft policy,
environmental study or draft plan.
Requirements for consent authorities and determining authorities to have
regard to the register of critical habitat kept by the Director-General of
National Parks and Wildlife under the proposed Act are included (proposed
sections 76A and 1 10C).
A requirement is proposed to be inserted requiring provision, with a
development application, of a species impact statement prepared in
accordance with the proposed Act if the development concerned is on land
that is critical habitat or if it is likely to significantly affect threatened
species, populations or ecological communities, or their habitats (proposed
section 77 (3) (d1)). (Species impact statement is defined, by the proposed
Act, to include an environmental impact statement, prepared under the EPA
Act, that contains a species impact statement.)
Consent authorities under Part 4 of the Act are required to obtain the
concurrence of the Director-General of National Parks and
Wildlife to the
grant of development consent to development that is on land that is critical
habitat or that is likely to significantly affect an endangered species,
population or ecological community, or its habitat, and to consult with the
Director-General if a vulnerable species, or its habitat, is involved. However,
the Minister administering the proposed Act may, if the Minister wishes, act
in place of the Director-General of National Parks and Wildlife for the
purposes of the concurrence or consultation process. If a Minister is the
consent authority, the requirement for the concurrence is replaced with a
requirement that the Minister consult with the Minister administering the
proposed Act (proposed section 77A).
If the Minister administering the EPA Act considers, in light of the matters
referred to in section 101 of the EPA Act, that it is appropriate, the Minister
may, in place of the procedure
in proposed section 77A, determine
a development application in accordance with section 101 and without the
concurrence or consultation envisaged under proposed section 77A.
Explanatory note page 16
However, in that event, the Minister must consult with the Minister
administering the proposed Act if the land concerned is critical habitat or if
the development is likely to have a significant effect on an endangered
species, population or ecological community, or its habitat (proposed
section 77B).
Proposed section 77C sets out the matters that the Director-General of
National Parks and Wildlife (or the Minister administering the proposed Act,
if acting in place of the Director-General) must consider when acting as a
concurrence authority under proposed section 77A. Proposed section 77D
sets out the matters that the Director-General of National Parks and Wildlife
(or the Minister administering the proposed Act, if acting in place of the
Director-General) must consider for the purposes of consultations under
proposed section 77A.
Section 90 is amended to require consent authorities, in determining
development applications, to take into consideration the following:
*
the effect of the development on critical habitat
*
whether there is likely to be a significant effect on threatened species,
populations or ecological communities, or their habitats
*
any relevant recovery plan or threat abatement plan
*
the effect of the development on any other protected fauna or
protected native plants within the meaning of the NPW Act.
It is proposed that Part 5 of the EPA Act be amended to require determining
authorities to take the same matters into account when considering the likely
effect of an activity on the environment or, in the case of recovery plans and
threat abatement plans, when considering species impact statements
(proposed sections 111 (4) and 112A).
A requirement is proposed requiring provision of a species impact statement
before a determining authority carries out, or grants approval in relation to
the carrying out of, an activity that is on land that is. critical habitat or is
likely to significantly affect threatened species, populations or ecological
communities, or their habitats (proposed section 112 (1B)).
A Minister who is a determining authority under Part 5 is required to consult
with the Minister administering the proposed Act before carrying out, or
granting an approval for the carrying out of, an activity on land that is
critical habitat or that is likely to significantly affect threatened species,
populations or ecological communities, or their habitats (proposed
section 1 12B).
Explanatory note page 17
Determining authorities (other than Ministers) are required to obtain the
concurrence of the Director-General of National Parks and Wildlife before
carrying out, or granting an approval for the carrying out of, an activity on
land that is critical habitat or that is likely to significantly affect an
endangered species, population or ecological community, or is habitat, and
to consult with the Director-General if a vulnerable species, or its habitat, is
involved. However, the Minister administering the proposed Act may, if the
Minister wishes, act in place of the Director-General of National Parks and
Wildlife for the purposes of the concurrence or consultation process
(proposed section 1 12C).
Proposed section 112D sets out the matters that the Director-General of
National Parks and Wildlife (or the Minister administering the proposed Act,
if acting in place of the Director-General) must consider when acting as a
concurrence authority, and proposed section 1 12E sets out the matters that
the Minister and the Director-General of National Parks and Wildlife (or the
Minister administering the proposed Act, if acting in place of the
Director-General) must consider for the purposes of consultations under
proposed sections 1 12B and 112C.
Amendments are also made concerning restraint of breaches of the EPA Act
and matters of a savings, transitional and consequential nature.
Schedule 6
Amendment of other Acts and regulations
Consequential amendments are made to various Acts and regulations.
Amendments
to
certain
of
the
Acts
are
highlighted
below.
The Dividing Fences Act 1991 is amended to provide that no order may be
made for the fencing work on land that is critical habitat without the consent
of the Director-General of National Parks and Wildlife.
Amendments are made to the Land and Environment Court Act 1979 to
enable that Court to exercise jurisdiction in relation to appeals concerning
licences and third party enforcement proceedings under the proposed Act.
The Local Government Act 1993 is amended by the insertion of a note
drawing attention to the obligation of councils to implement those measures
contained in recovery plans and threat abatement plans, prepared under the
proposed Act, for which councils are responsible.
The Non-Indigenous Animals Act 1987 is amended to make it clear that that
Act does not affect the operation of the proposed Act.
Explanatory note page 18
The Rural Lands Protection Act 1989 is amended, among other matters, to
provide that an order to declare a species of insects to be a noxious species
under that Act cannot be made without the concurrence of the
Director-General of National Parks and Wildlife if the species happens to be
a threatened species under the proposed Act.
The Soil Conservation Act 1938 is amended to provide that the
Commissioner of the Soil Conservation Service may prepare maps
identifying, as protected land, critical habitat, or land containing threatened
species, populations or ecological communities, or their habitats. The
Commissioner may also impose conditions on an authority to destroy timber
on protected land if the authorised action is likely to have an adverse effect
on critical habitat, or land containing threatened species, populations or
ecological communities, or their habitats.
The Timber Industry (Interim Protection) Act 1992 is amended to reflect the
changes made by the proposed Act to the regime for dealing with threatened
species.
Schedule 7
Savings, transitional and other provisions
Schedule 7 enables the making of regulations of a savings or transitional
nature consequent on the enactment of the proposed Act.
Provisions dealing with the dissolution of the Scientific Committee under the
NPW Act, the extension of certain licences under section 120 of that Act, the
treatment of those licences for the purposes of the proposed Act and savings
with respect to planning matters and stop work orders are also inserted.
Explanatory note page 19