Protected areas (in: Independent review of the Environment ... · Chapter 14: Protected Areas Chapter 14: Protected Areas Key points The EPBC Act provides for the establishment of

PROTECTED AREASChapter Fourteen

Independent Review of the ENvIRONMENT PROTECTION AND BIODIvERSITy CONSERvATION ACT 1999 224

Chapter 14: Protected Areas


Key points ■ The EPBC Act provides for the establishment of protected areas.

■ The National Reserve System (NRS), which currently includes more than 9,000 protected areas, is not an identified category of ‘protected area’ under the EPBC Act. It is, however, an Australian Government program that plays an important role in managing Australia’s biodiversity.

■ The NRS is made up of Commonwealth reserves declared under the EPBC Act, State and Territory national parks and other reserves, Indigenous lands and private land managed for conservation purposes.

■ Protected areas are an important component in meeting the Act’s biodiversity conservation objectives but are not currently regarded as a matter of national environmental significance (NES).

■ There is general support for current protected area strategies. There is room for more linkages between protected area strategies and other biodiversity protection mechanisms.

Commonwealth reserves and conservation zones

Current provisions of the Act14.1 under the Act, the Governor-General can proclaim Commonwealth reserves over certain areas of land or

sea.1 The Act requires a Commonwealth reserve proclamation to state the purpose for which the reserve is declared and to assign the reserve to one of seven International union for Conservation of Nature (IuCN) protected area categories.2

14.2 under the Act, a Commonwealth area outside a Commonwealth reserve can be proclaimed a ‘conservation zone.’3 The purpose of proclaiming a conservation zone is to provide interim protection for biodiversity and other natural features and heritage in the area while it is being assessed for possible inclusion in a Commonwealth reserve.

14.3 Responsibility for Commonwealth reserves and conservation zones is the function of the Director of National Parks, which is a statutory authority established under the Act.

14.4 While ‘protected areas’ are not currently regarded as a matter of NES under the Act, the Act seeks to protect the environment by prohibiting actions that have not been approved or authorised under the Act, and which:

■ have, will have or are likely to have a ‘significant impact’ on a matter of NES; or

■ are taken on Commonwealth land and have, will have or are likely to have a ‘significant impact’ on the environment; or

■ are proposed to be taken by the Commonwealth or a Commonwealth agency and have, will have or are likely to have a ‘significant impact’ on the environment.

14.5 In this respect, ‘protected areas’ are afforded some level of protection through other matters of NES, including heritage values, wetlands of international importance and threatened species.

1 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.344 provides that Commonwealth reserves may be declared over Commonwealth owned or leased land, Commonwealth marine areas, and areas beyond Australia’s jurisdiction for which Australia has relevant international obligations.

2 Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) sch.8 prescribes Australian IuCN reserve management principles for each IuCN category.

3 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.390D.

225 Chapter Fourteen PROTECTED AREAS


14.6 There are currently 35 Commonwealth reserves established under the EPBC Act:

■ six national parks;

■ two botanic gardens; and

■ 27 marine reserves.

14.7 Two conservation zones are currently established under the Act. One adjoins the Heard Island and Macdonald Islands Marine Reserve. The second comprises most of the Coral Sea Territory east of the Great Barrier Reef Marine Park (GBRMP).

14.8 The EPBC Act prohibits certain actions being taken in a Commonwealth reserve unless it is in accordance with a management plan made in operation for that reserve under the Act. 4 These actions are:

■ killing, injuring, taking, trading, keeping or moving a member of a native species;

■ damaging heritage;

■ carrying on an excavation;

■ erecting a building or other structure;

■ carrying out works; or

■ taking an action for commercial purposes.

14.9 Additionally, the Act (ss.355 and 355A) prohibits mining operations except in accordance with a management plan.5 When a management plan is not in operation, approval may be given for these actions to continue until a management plan comes into effect.6

14.10 The EPBC Regulations (Division 12.2) control, or allow the Director to control, a range of activities in Commonwealth reserves, such as camping, use of vehicles and vessels, littering, commercial activities, commercial fishing, recreational fishing and research.

14.11 Provisions of the EPBC Act and Regulations dealing with activities in Commonwealth reserves do not prevent Indigenous people from continuing their traditional use of an area in a reserve for hunting or gathering (except for purposes of sale) or for ceremonial and religious purposes.7 The Act also states that it does not affect the operation of s.211 of the Native Title Act 1993, which provides that holders of native title rights covering certain activities do not need authorisation required by other laws to engage in those activities.8

14.12 The EPBC Act requires that the Director of National Parks develop a management plan for each Commonwealth reserve and must exercise powers and functions to give effect to that management plan. Management plans must provide for the protection and conservation of the reserve and must be consistent with the relevant Australian IuCN reserve management principles prescribed in the EPBC Regulations for the IuCN category to which the reserve has been assigned.9

14.13 Where a Commonwealth reserve is wholly or partially on Indigenous peoples’ land, the Act requires that there be a Board of Management that has a majority of members nominated by the traditional owners.10 In these circumstances, the Commonwealth reserve becomes a jointly managed reserve. Further information on the operation of jointly managed reserves is provided in Chapter 17 of this report. Ramsar wetlands are discussed in Chapter 9 of this report and Commonwealth marine reserves are discussed in Chapter 15.

14.14 Activities in conservation zones are regulated by Part 13 of the EPBC Regulations which applies a number of the provisions regulating Commonwealth reserves to conservation zones.11

4 Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss.354 and 354A.5 Mining is totally prohibited in Kakadu National Park under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.387(1).6 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.359B.7 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.359A.8 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.8.9 Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) sch.8.10 Environment Protection and Biodiversity Conservation Act 1999(Cth) s.377.11 Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) Part 13.



The national reserve system (nrs)

14.15 The NRS is Australia’s system of terrestrial protected areas. The System represents the outcome of the collective efforts of the Australian Government, State and Territory Governments, conservation groups and Indigenous and non-Indigenous landholders. The NRS is not however a category of ‘protected area’ under the EPBC Act. It is an Australian Government program that plays an important role in managing Australia’s biodiversity.

14.16 The NRS Program was established by the Australian Government to assist with the establishment and maintenance of a comprehensive, adequate and representative (CAR) system of terrestrial reserves in Australia.12

14.17 Continuing to build the NRS is also one of six priorities under the Caring for our Country program.13

Private conservation and covenanting schemes

14.18 Since 1999 there has been a growth in the private (not-for-profit) sector in land acquisition for biodiversity conservation. There are a number of private bodies active in this field. These bodies are now playing an important role in building a broader platform for biodiversity conservation, to some extent ‘unfettered’ by the various constraints of the public sector.

14.19 These private conservation schemes may seek the Environment Minister’s approval, as a requirement for landholder access to tax incentives.14 The key characteristics required for tax concessions are that covenants are perpetual, registered on title and protect and manage areas of high conservation value. Requirements are set out in the Guidelines for approval of a conservation covenanting program15 which were initially developed to assist landholder access income tax incentives provided under the Income Tax Assessment Act. There are currently 12 private covenanting schemes approved by the Environment Minister.16 These schemes have secured 4,250 covenants representing over 3.5 million hectares of high conservation value areas.

14.20 In addition, many private conservation arrangements provide useful conservation outcomes without being subject to these approval processes – that is, they operate entirely outside of Commonwealth Government oversight.

14.21 While the EPBC Act provides for a covenant to protect National Heritage values on Commonwealth land or Commonwealth heritage values of a place sold or leased17 and the ability to enter into Conservation Agreements for management of a wide range of activities on private land,18 the Garner Beach Habitat Action Group argued that the EPBC Act does not currently adequately provide for conservation or nature refuge type covenants.19 The application of covenanting programs and other mechanisms designed to integrate public and private conservation will be further examined during this review.

12 Further information on the NRS is available on the Department of the Environment, Water, Heritage and the Arts’ website: http://www.environment.gov.au/parks/nrs/index.html.

13 Further information on the Caring for our Country program is available on the Caring for our Country website: http://www.nrm.gov.au/.14 The Taxation Laws Amendment Act (No. 2) 2001 (Cth) provides concessional tax treatment for land owners entering into certain types of

conservation covenants.15 DEWHA, Conservation covenanting programs and the Income Tax Assessment Act 1997(2009)

http://www.environment.gov.au/biodiversity/incentives/covenants-guidelines.html at 11 June 2009.16 DEWHA, Covenanting programs approved by the Minister for the Environment, Heritage and the Arts for the purposes of the Income Tax Assessment Act

1997 (2009) http://www.environment.gov.au/biodiversity/incentives/approved-programs.html at 11 June 2009.17 Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss.324ZA and 341ZE.18 Further information on Conservation Agreements is available in Chapter 10 of this report. 19 Submission 131: Garner Beach Habitat Action Group.



Key points raised in public submissions14.22 Some submissions believed that Australia does not yet have a representative reserve system, especially with

respect to freshwater ecosystems.20 Submissions argued that the Act should also provide for periodic review of management effectiveness of these protected area systems. Freshwater ecosystems, including wild rivers and inland water systems, are further discussed in Chapter 9 of this report.

14.23 The National Parks Australia Council was concerned that a lack of resources for Commonwealth reserves is a major hurdle for their effective management. Further, the Council stated that:

the legislative provisions … retain the emphasis on human usage which is such a marked characteristic of the rest of the Act and do not sufficiently emphasise the management of these reserves for their natural values.21

14.24 Submissions suggested that Commonwealth programs supporting the reserve system should be sufficiently flexible to take local circumstances into consideration. The Department of Natural Resources, Environment, the Arts and Sport (Northern Territory) noted that:

in the past, Australia has tended to nominate areas for their natural values. More could be done at the Commonwealth level to develop expertise and experience in identifying and promoting cultural values.22

14.25 A number of submissions specifically sought a greater role by the Commonwealth. Other submissions believed that natural heritage processes duplicate National Park and species protection provisions.23 It was therefore argued that protection of environmental and heritage values should occur where existing legislated protection provisions do not currently exist.

14.26 Some submissions believed that protected areas of true national significance, particularly the CAR reserve system, should be fully funded and planned by the Commonwealth Government.24

indigenous Protected areas

14.27 A number of submissions acknowledged the success of the Indigenous Protected Area program as an important vehicle in assisting Indigenous people in managing their estates and in recognising Indigenous governance and decision making arrangements.25 However other submissions suggested that the ability of Indigenous groups to be actively involved in the on-ground implementation and management of plans for conservation agreements was limited. This is further discussed in Chapter 17 of this report.

14.2.3 Discussion of key points14.28 An independent evaluation of the NRS Program was initiated in 2006 to inform ongoing development of

policy frameworks for implementation of current and future natural resource management initiatives.26

14.29 This evaluation considered the:

(1) extent to which the NRS Program has contributed to meeting Australian Government policy priorities to date, and

(2) capacity for enhanced achievement of Australian Government policy priorities by the NRS Program, including delivery of conservation, economic, cultural and social benefits in the context of sustainable natural resource management at landscape, regional and national scales.

20 Submission 101: Mr Jamie Pittock, Dr Debra Saunders and Ms Karen Stagoll.21 Submission 161: National Parks Australia Council.22 Submission 154: Department of Natural Resources, Environment, the Arts and Sport (Northern Territory).23 Submission 073: Australian Petroleum Production and Exploration Association.24 Submission 160: Associate Professor Geoff Wescott.25 See e.g. Submission 130: Centre for Aboriginal Economic Policy Research.26 The 2006 NRS Program Evaluation is available on the Department of the Environment, Water, Heritage and the Arts’ website:

http://environment.gov.au/parks/publications/nrs/evaluation-2006.html



14.30 Generally, the evaluation reported that ‘the NRS Program has been an important and cost-effective component of Australian Government’s efforts to conserve Australia’s unique biodiversity.’27 However, there are a number of measures raised in the evaluation and in submissions to this review that could be improved to further conserve Australia’s biodiversity.

14.31 Commonwealth reserves aim to conserve and protect land and sea. While the National Parks Australia Council commented that management of these reserves do not sufficiently emphasise their natural values, the management principles prescribed in the EPBC Regulations which determine management plans must be consistent with IuCN category principles. The categorising system, as promoted by the IuCN, places management as the primary objective; however, depending on the category, it is also about ‘guiding human processes so that the area and its resources are protected, managed and capable of evolving in a sustainable way.’28 Noting this, the Australian IuCN reserve management principles identified in the EPBC Regulations could include specific reference to biodiversity conservation, in order to place a greater emphasis on a reserve’s natural values.

14.32 The IuCN recently released the ‘Guidelines for Applying the IuCN System of Protected Areas Management Categories.’29 These Guidelines adopt a new definition of protected area, which maintains emphasis on biodiversity conservation but reclaims the roots of the protected area movement by focusing on ‘the conservation of nature with associated ecosystem services and cultural values.’30 under the IuCN Guidelines a protected area is now defined as:

a clearly defined geographical space, recognised, dedicated and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values.31

14.33 It should be considered whether the EPBC Act (or Regulations) should adopt the recent IuCN definition of ‘protected area.’ This may assist with developing expertise further to identify and promote cultural values, in line with natural values.

14.34 There is also a need to consider whether to increase the Act’s capacity to regulate activities in a conservation zone (for example, equivalent provisions that apply to Commonwealth reserves could also apply to conservation zones).

14.35 World and National Heritage properties with biodiversity values are also part of the NRS and as suggested by the Australian Petroleum Production and Exploration Association, natural heritage processes may duplicate National Park and species protection provisions.32 However, it is important to note that the Commonwealth heritage system and the NRS serve different purposes. The NRS aims to protect a CAR system of reserves in Australia rather than areas with significant heritage values or individual species protection, per se. A landscape approach should protect and manage habitats at a landscape level, but also account for the broader nature of ecological processes, such as individual species, or recognise the role of biodiversity in maintaining ecosystem processes.

14.36 By establishing a well managed CAR reserve system, the NRS meets an important international obligation for Australia under the 1993 Convention on Biological Diversity. Areas within the NRS are managed for biodiversity conservation outcomes for current and future generations. However it is noted that there are bioregions in Australia which are not represented due to resource and funding restraints. One of the targets for the Caring for our Country Business Plan is to increase the area that is protected within the NRS with priority given to under-represented bioregions. The Australian Government will need to continue to work with State and Territory governments, Indigenous groups, conservation organisations and other landholders to ensure that protected areas are added to the NRS in under-represented bioregions in a timely manner.

27 The 2006 NRS Program Evaluation, p.66.28 Adrian Phillips (2002). World Commission on Protected Areas: Management Guidelines for IUCN Category V Protected Areas, p.10. 29 The IuCN Guidelines are available on the IuCN website: http://www.iucn.org/about/union/commissions/wcpa/index.cfm?uNewsID=1794 at

26 May 2008.30 Guidelines for Applying the IUCN System of Protected Areas Management Categories, p.8.31 Guidelines for Applying the IUCN System of Protected Areas Management Categories, p.8.32 Submission 073: Australian Petroleum Production and Exploration Association.



14.37 The establishment of a robust reserve system is clearly a significant element in meeting the Act’s biodiversity conservation objectives. The ‘parks’ provisions of the Act are not, however, well integrated with other areas of the legislation. One option may be to provide a stronger link between landscape planning approaches and the NRS program.

Potential new habitat-related matters of NES

Key points raised in public submissions14.38 Many submissions argued that the current list of matters of NES needs to be updated to address current and

emerging national environmentally significant issues.

14.39 Several submissions argued that wilderness (areas) should be included as a matter of NES,33 in order to provide an additional layer of protection to many of the World Heritage and National Heritage List (NHL) places, and to protect wilderness areas not already covered by the EPBC Act. Some submissions suggested that the definition for ‘wilderness’ for the purposes of this trigger reflect the JANIS 1997 criteria,34 or the definition of ‘wilderness’ in either the NSW35 or South SA legislation.36

14.40 Several other matters of NES were briefly raised in submissions, including:

■ Habitat-related matter of NES:

■ Critical habitat (habitat critical for the survival of a species)37

■ Habitat fragmentation/habitat connectivity;38

■ Biosphere Reserves (according to international criteria); 39 and

■ Wetlands of National Significance and ‘wild rivers.’40

14.41 Wetlands of National Significance and ‘wild rivers,’ as potential new matters of NES, are discussed in Chapter 9 of this report.

Discussion of key points14.42 Several of the suggested new matters of NES relate to the protection of areas of land or sea in Australia.

These areas would be included as matters of NES based on a particular set of criteria, in particular ‘wilderness area’ criteria, types of habitat, and biosphere reserves.

wilderness areas

14.43 In considering whether it would be appropriate to add wilderness areas as a matter of NES, it will be necessary to consider whether there is a genuine regulatory ‘gap’ in the Act. Many areas that could fulfil the criteria for a ‘wilderness area’ would also meet the criteria for listing on the NHL.41 However, to be listed on the NHL, a place must be of ‘outstanding’ value to Australia’s natural or cultural heritage.

14.44 As mentioned above, the proclamation declaring an area a Commonwealth reserve must assign an IuCN category to the area. One of the seven IuCN categories that a reserve can be assigned to is ‘Wilderness area.’42

33 See e.g. Submission 069: Greater Blue Mountains World Heritage Area Advisory Committee, p.3; and Submission 191: Conservation Council of South Australia, p.6.

34 The Nationally Agreed Criteria for a Comprehensive, Adequate and Representative Reserve System for Forests in Australia (JANIS 1997) defines a wilderness area as being larger than 8,000 hectares in temperate areas and having a National Wilderness Inventory wilderness quality of at least 12.

35 Wilderness Act 1987 (NSW) s.6.36 Wilderness Protection Act 1992 (SA) s.3(2).37 Submission 135: CSIRO, p.3.38 Submission 064: Bird Observation and Conservation Australia, p.1.39 Submission 081: Ms Catherine Cheung, p.1.40 Submission 100: National Parks Association of Queensland.41 Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) reg.10.01A.42 Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) reg.10.03H.



habitat

14.45 It was suggested that critical habitat (habitat critical for the survival of a species)43 or habitat fragmentation/habitat connectivity44 be listed as a matter of NES under the Act.

14.46 ‘Critical habitat’ is currently defined as ‘habitat listed in the register in relation to a species or ecological community.’45 The Act currently provides that it is an offence to take an action that will have or is likely to have a significant impact on critical habitat for a listed threatened species (except for a conservation–dependent species) or ecological community in a Commonwealth area.46

14.47 Establishing critical habitat or habitat connectivity as a new matter of NES could be a mechanism in shifting to a landscape approach and, given the expected importance of habitat connectivity in helping species adapt to the possible impacts of climate change,47 could be one mechanism through which the Commonwealth addresses climate change adaptation.

Biosphere reserves

14.48 Biosphere reserves are those ecosystems which are internationally recognised under the united Nations Educational, Scientific and Cultural Organization (uNESCO) Man and the Biosphere Program. They are:

areas of terrestrial and coastal ecosystems promoting solutions to reconcile the conservation of biodiversity with its sustainable use. They … serve in some ways as ‘living laboratories’ for testing out and demonstrating integrated management of land, water and biodiversity.48

14.49 Australia currently has 14 Biosphere reserves49 within the World Network of Biosphere Reserves, as shown in the map below. These are currently regulated under Part 15 of the Act which allows the Minister to make and implement a management plan for all or part of a Biosphere reserve that is in a Commonwealth area. The Commonwealth and Commonwealth agencies are also required to take all reasonable steps to act in accordance with the Australian Biosphere reserve management principles and any management plan prepared for the reserve.

43 Submission 135: CSIRO, p.3.44 Submission 064: Bird Observation and Conservation Australia, p.1.45 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.207A(4).46 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.207B.47 See e.g. Submission 135: CSIRO, p.2.48 uNESCO, FAQ – Biosphere Reserves (2008) http://www.unesco.org/mab/doc/faq/brs.pdf at 12 May 2009, p.1.49 A list of Australia’s Biosphere Reserves is available on the Department of the Environment, Water, Heritage and the Arts’ website:

http://www.environment.gov.au/parks/biosphere/index.html at 8 May 2009.



Biosphere reserves in australia

14.50 Biosphere reserves are intended to fulfil 3 basic functions:

■ a conservation function – to contribute to the conservation of landscapes, ecosystems, species and genetic variation;

■ a development function – to foster economic and human development which is socio-culturally and ecologically sustainable; and

■ a logistic function – to provide support for research, monitoring, education and information exchange related to local, national and global issues of conservation and development.

[and are] organized into 3 interrelated zones:

■ the core area;

■ the buffer zone; and

■ the transition area.

Australian Biosphere Reserves

±0 500 1,000250

Km

Great Sandy Biosphere Reserve

BarkindjiBiosphere Reserve

KosciuszkoNational Park

CroajingolongNational Park

YathongNature Reserve

MamungariConservation Park

Uluru - Kata TjutaNational Park

Prince RegentNature Reserve

Fitzgerald RiverNational Park

Hattah-KulkyneNational Park

Mornington Peninsula &Western Port

Wilsons PromontoryMarine Park & Marine Reserve

RiverlandBiosphere Reserve

NoosaBiosphere Reserve

Data Source:

Collaborative Australian Protected Areas Database (CAPAD) 2006 © Commonwealth of Australia, Department of the Environment, Water, Heritage and the Arts

Barkindji Biosphere Reserve:Sunrise 21 Inc.

Great Sandy Biosphere Reserve:Burnett Mary Region Group

Noosa Shire boundary© 2006 MapData Sciences Pty Ltd, PSMA.

Mornington Peninsula & Western Port© MPWPBR Ltd 2009

State and Territory Borders:© Commonwealth of Australia, Geoscience Australia.

Caveat:All data are presumed to be correct as received from data providers. No responsibility is taken by the Commonwealth for errors or omissions. The Commonwealth does not accept responsibility in respect to any information or advice given in relation to, or as a consequence of anything contained herein.

Map produced by:Environmental Resources Information Network (ERIN), Australian Government Department of the Environment, Water, Heritage and the Arts, June 2009.

© Commonwealth of Australia, Department of the Environment, Water, Heritage and the Arts, 2009.

Geographic Coordinate System on the GDA94 Datum.

Macquarie Island

0 5025 Km

Macquarie IslandWorld Heritage Area

14.51 Only the core area requires legal protection and hence can correspond to an existing protected area such as a nature reserve or a national park.50

14.52 The ‘core area’ of the Biosphere reserve is often already listed as a World Heritage area or Ramsar wetland or is on the NHL, and is therefore already protected under the Act. There appears to be little need for listing Biosphere reserves as a new matter of NES.

14.53 Further, the designation of Biosphere reserves seems to carry only symbolic importance. It is not clear whether the designations carry any regulatory impact and therefore the question should be asked as to whether the Biosphere reserve provisions should be retained.

50 uNESCO, FAQ – Biosphere Reserves (2008) http://www.unesco.org/mab/doc/faq/brs.pdf at 12 May 2009, p.1.

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Protected areas (in: Independent review of the Environment ... · Chapter 14: Protected Areas Chapter 14: Protected Areas Key points The EPBC Act provides for the establishment of