Legal Framework for Protected Areas: Australia. Ben Boer* Stefan Gruber**

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1 Legal Framework for Protected Areas: Australia Ben Boer* Stefan Gruber** Information concerning the legal instruments discussed in this case study is current as of 6 May 2010 * Professor Emeritus, Australian Centre for Climate and Environmental Law, Faculty of Law, University of Sydney. ** PhD candidate, Australian Centre for Climate and Environmental Law, Faculty of Law, University of Sydney; legal practitioner, Chamber of Lawyers Frankfurt am Main, Germany. The authors are grateful for the comments of Dr Graeme Worboys and Professor Rob Fowler on this case study. 1

2 Abstract The Australian continent, together with its islands and marine areas, manifests high levels of biodiversity. It has a comprehensive and globally recognized legislative and policy regime for terrestrial and marine protected areas. Despite this generally innovative scheme, Australia continues to suffer from significant loss of its biodiversity. This case study sets out the Australian legislative framework, policy and principles of protected areas legislation and management at the federal level. It focuses primarily on the Environment Protection and Biodiversity Conservation Act 1999 (Commonwealth) and the regulations made thereunder. Attention is also given to the new concept of connectivity conservation and its implementation in Australia. The pertinent aspects of the 2009 review of the Act, and especially its recommendations on protected areas, are canvassed. The case study also briefly deals with the Great Barrier Reef Marine Park Act 1975 (Commonwealth) and the Commonwealth legislation concerning the Antarctic. The various forms of terrestrial and marine protected areas and their legal frameworks are outlined, along with their establishment, planning, management and enforcement regimes. IUCN-EPLP No. 81 2

3 Contents Acronyms and abbreviations Australia s federal system Overlap of federal and state/territory legislation Local government powers Australia s unique environment Australia s biodiversity Australia s protected areas system Terrestrial protected areas: Australia s National Reserve System Marine protected areas General framework for the protected areas system Commonwealth legislation Cultural matters State and territory legislation Governance of protected areas Protected areas administered by the government Protected areas and Indigenous peoples Conservation agreements with private landowners and lessees of government land Evolution of protected areas policy and law Matters of national environmental significance and Australia s international obligations Incorporation of international environmental law principles Ecologically sustainable development Precautionary principle Access to information, public participation and access to justice Definitions Institutional arrangements Bilateral agreements Advisory bodies Planning and the National Reserve System Bioregional planning under the EPBC Act Terrestrial and inland waters management plans Marine bioregional planning IUCN-EPLP No. 81

4 10 Characteristics, establishment, amendment and revocation of Commonwealth protected areas World Heritage properties National Heritage places Wetlands of international importance (Ramsar sites) Commonwealth Heritage places Biosphere reserves Commonwealth reserves Conservation zones Antarctic protected areas Marine protected areas Australian Whale Sanctuary Great Barrier Reef Marine Park Great Barrier Reef Marine Park Act Managing the Great Barrier Reef Marine Park Requirements for management plans World Heritage sites National Heritage places Ramsar sites Commonwealth Heritage places Biosphere reserves Commonwealth reserves and IUCN categories Commonwealth marine protected areas Wildlife conservation plans for marine species Buffer zones Connectivity conservation Controlling activities within protected areas Controlling activities in Commonwealth reserves Controlling activities in other protected areas Environmental impact assessment Enforcement Criminal offences and penalties Civil enforcement: transgressions and penalties Finance Conclusion References IUCN-EPLP No. 81 4

5 Acronyms and abbreviations EPBC Act Environment Protection and Biodiversity Conservation Act 1999 EPBC Regulations Environment Protection and Biodiversity Conservation Regulations 2000 IUCN NRSMPA International Union for Conservation of Nature National Representative System of Marine Areas 5 IUCN-EPLP No. 81

6 1 Australia s federal system 1 Australia is a federal country with political power shared between Commonwealth, state and territory governments. Under the Australian Constitution, specific legislative powers are held by the Commonwealth government, 1 while states and territories hold legislative powers not expressly assigned to the Commonwealth government. State and territory legislative powers generally include jurisdiction over matters related to environmental protection and natural resource exploitation on land and in marine areas not owned or controlled by the Commonwealth government. 2 A significant limitation to powers which normally fall under state and territory jurisdiction is where the Commonwealth government has taken on an international responsibility, generally related to treaty obligations, to control development, protect cultural and natural heritage, or manage natural resources. Over the last three decades, the High Court of Australia has expanded the Commonwealth s reach, especially in relation to declared World Heritage areas. Box 1: Ten-year review of the EPBC Act The 2009 Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 assesses the operation of the EPBC Act as follows: 2.12 While the Act is the Commonwealth s primary piece of national environmental legislation, the States and Territories each have their own legislation Sometimes, the responsibilities of these two levels of government overlap, creating inefficiencies and duplication. State and Territory regimes may also have different approaches to environmental issues (such as threatened species listing) compared with the Act. Different administrators can make different judgments, often resulting in tensions. This is not always, or even usually, a bad outcome. The strength of the Australian Federation is the creative policy tension brought about by the federal system A number of potential inefficiencies have been identified within the operation of the Act, partly arising from overlaps with State and Territory legislation. These include: inconsistencies with and differences between State and Territory regulatory systems, creating gaps in regulation and confusion for cross-jurisdictional stakeholders; a focus on individual project assessments rather than landscape based assessment; a focus on recovery of single species; duplication of processes; regulation by multiple authorities/regulatory agencies; and lack of suitable standards. Source: Commonwealth of Australia, 2009c, pp Partly as a result of the legal conflicts generated by World Heritage issues, an Intergovernmental Agreement on the Environment 3 was negotiated in 1992 between the Commonwealth, the states and the territories. The Agreement provides for the allocation of powers regarding environmental and natural resources matters to the Commonwealth and the states and territories, including World Heritage and 1 The Commonwealth government is also referred to as the federal government or the Australian government. In this case study, Commonwealth government is used throughout. 2 Since the majority of terrestrial and marine protected areas in Australia come under state and territory jurisdiction, the situation in one state, New South Wales, is the subject of a separate case study to illustrate how protected areas systems operate at the sub-national level with the Australian federation; see Boer and Gruber, 2010a; and Farrier and Adams, See also the Intergovernmental Agreement on the Environment (1992), which sets out the roles of the Commonwealth, state and territory governments with respect to a range of environmental and natural resource decision making matters and responsibilities. IUCN-EPLP No. 81 6

7 National Heritage matters. 4 The 1992 Agreement was followed by an implementation agreement in 1997, entitled Heads of agreement on Commonwealth and State roles and responsibilities for the Environment. 5 That document became the basis for the enactment of the Environment Protection and Biodiversity Conservation (EPBC) Act in Overlap of federal and state/territory legislation Over the last three decades, a wide range of environmental legislation has been enacted at the federal, state and territory level, including specific legislation on protected areas. An examination of this legislation reveals many overlaps, inconsistencies and differences in standards and approaches between the jurisdictions. A recent review of the EPBC Act 6 recognizes these issues and makes a wide range of recommendations (see Box 1). It suggests that the EPBC Act be repealed and replaced with an Act to be known as the Australian Environment Act, which would more accurately reflect its national orientation. The review recommendations concerning relations with the states and territories focus on the standardization of environmental impact assessment regimes, and a common approach to the listing of threatened species through accrediting state and territory listing processes by the Commonwealth government, in place of the inefficient system of multiple listing by each jurisdiction, which is said to have created barriers to conservation outcomes. 7 Several significant recommendations are also made concerning the Commonwealth government s role in biodiversity conservation, 8 natural and cultural heritage, 9 and protected areas, 10 as will be outlined in subsequent sections Local government powers The Australian Constitution 11 does not refer to local government areas or authorities. The establishment and powers of local governments are determined by the relevant state and territory 12 governments, and vary from one jurisdiction to another. Local government powers usually include town planning; public health and sanitation services; water, sewerage and drainage systems; the construction and maintenance of local transportation; public infrastructure such as roads, streets, railway lines and bridges; the regulation of private construction; and the development and maintenance of public facilities such as parks, public libraries and community centres. Some local governments are involved in the identification of environmentally sensitive privately owned land within local government boundaries, and work with landowners to protect such areas through development controls imposed by local environmental plans A federal parliamentary inquiry was conducted in the mid-1990s on World Heritage management, resulting in a comprehensive report (see Parliament of Australia, 1996). See also Boer and Fowler, Heads of Agreement on Commonwealth and State roles and responsibilities for the Environment (1997), concerning matters of national environmental significance; environmental assessment and approval processes; listing, protection and management of heritage places; compliance with state environmental and planning legislation; and better delivery of national environmental programmes. Many of these issues were incorporated into the Environment Protection and Biodiversity Conservation (EPBC) Act Commonwealth of Australia, 2009c. 7 Commonwealth of Australia, 2009c, pp Commonwealth of Australia, 2009c, chapter 5. 9 Commonwealth of Australia, 2009c, chapter Commonwealth of Australia, 2009c, chapter Commonwealth of Australia Constitution Act The Australian Capital Territory does not have a local government structure. 13 See, for example, Department of Environment and Climate Change and Water (New South Wales), IUCN-EPLP No. 81

8 1.3 Australia s unique environment Geologically, Australia is one of the oldest countries in the world and is the only country to cover a whole continent. It was once part of Gondwana, the land mass that combined today s continents and subcontinents of Africa, Antarctica, Australia, India and South America, which broke up more than 100 million years ago. Australia s isolation from other land masses has resulted in a high degree of endemicity, 14 making it one of 17 countries that are regarded as mega-diverse. 15 Australia covers an area of 7,682,300 sq km, not including its external territories. 16 The largest external territory is the Australian Antarctic Territory, which is also the largest area of Antarctica claimed by one nation, covering nearly 6 million sq km. Australia s exclusive economic zone, which extends to 200 nautical miles off the coast, is the third largest in the world, covering over 8 million sq km. If the exclusive economic zone contiguous to the Australian Antarctic Territory is taken into account, the marine area covers over 10 million sq km. 17 Outside the cities and developed areas, the landscape has hardly changed over hundreds of years, except for the impact of traditional land management practised by Australia s Aboriginal peoples, which has transformed grasslands in particular through burning regimes. 18 A large percentage of the original geology and biosphere is still evident, albeit some in remnant form. This includes the remains of the original Antarctic rainforest, and the Wet Tropics in Queensland. As far as marine areas are concerned, the Great Barrier Reef, which extends over 2,500 km along the north-eastern coast, is the world s largest and most intact coral reef system. While Australia has declared several major marine protected areas within its exclusive economic zone, there is significant potential to expand these areas. Australia s climate is tropical in the north, Mediterranean in the south, dry in the centre and temperate on the island state of Tasmania. The landscape is mainly flat with a few mountain ranges in the south, which attract some snowfall in winter. The continent is generally dry, and droughts are common and long-lasting. Over 70 per cent of the land consists of desert. Map 1 depicts some of the continent s maritime and terrestrial characteristics. 19 A high proportion of Australia s land is under public ownership, with many areas categorized as protected areas. 1.4 Australia s biodiversity 9 Australia is a highly biologically diverse country, 20 with its remote location allowing for the development of unique fauna and flora 21 (see Box 2). The country s terrestrial endemic species are extremely vulnerable to the impact of invasive species such as rabbits, foxes and cane toads. 22 Exotic plants such 14 See generally, Chapman, Beeton et al., 2006, referring to the assessment by the World Conservation Monitoring Centre. 16 Australia s seven external territories are: the Australian Antarctic Territory, Coral Sea Islands Territory, Norfolk Island, Territory of Ashmore Reef and Cartier Island, Territory of Heard and McDonald Islands, Territory of Cocos (Keeling) Islands, and Territory of Christmas Island. 17 Bateman and Bergin, 2009, p See, for example, Clarke, 2003, p For a map of Australia s political boundaries, population distribution and geographic details, see Geoscience Australia, See also Geoscience Australia, 2004, for a map of public lands in Australia. 20 Australian Museum, Worboys et al., 2005, pp. 12 ff. 22 Cane toads were introduced by English settlers in an effort to eliminate the sugar cane grub in Queensland cane fields. Native predators such as freshwater crocodile, various species of snake, as well as dingo and western quoll have been killed by eating or touching cane toads, which have now spread to suburban Sydney in New South Wales and to the Northern Territory (see Australian Museum, 2010). IUCN-EPLP No. 81 8

9 Australia as blackberry and mimosa 23 have infested some significant habitats of native fauna and flora. Many of Australia s ecosystems are very fragile. Since Europeans settlers arrived on the continent in the late 1700s, at least 50 endemic faunal species and 60 plant species have become extinct. 24 Map 1: Australia s land and marine areas Source: Geoscience Australia, In relation to the marine environment, more than 4,000 fish varieties and many thousands of invertebrates, plants and micro-organisms inhabit Australia s marine waters. These areas are subject to threats from unsustainable fishing, introduced marine pests and diseases, 25 the impact of tourism and recreational activities, land- and ship-based pollution, sedimentation, and the effects of climate change. 26 Australia s See Weeds Australia, See generally Australian Museum, Australia has over 250 introduced marine species. Fortunately most have little impact but some, including several crabs, mussels, seastars and seaweeds, have become aggressive pests in some locations (see Department of Agriculture, Fisheries and Forestry, 2009). 26 Department of the Environment, Water, Heritage and the Arts (DEWHA), IUCN-EPLP No. 81

10 coral reefs are particularly vulnerable, and are beginning to suffer from coral bleaching as a result of rising sea temperatures A number of marine protected areas have been declared around Australia s coastline and its islands. Jurisdiction over these areas is divided between the Commonwealth, states and territories. Generally speaking, states and territories have jurisdiction over fisheries in their coastal waters out to three nautical miles. 28 Box 2: Australia s biodiversity Australia s draft Biodiversity Conservation Strategy describes the country s biodiversity as follows: Australia is home to between 600,000 and 700,000 species, many of which are found nowhere else in the world. About 84% of plant species, 83% of mammal species, and 45% of bird species are only found in Australia. Australia is one of the most biologically diverse countries in the world. We have 6.7% of the world s vascular plant species, 7.0% of the world s mammal species, 8.4% of the world s bird species, 3.8% of the world s amphibian species and 17.0% of the world s marine and freshwater fish species. Many of our plant and animal species are endemic to Australia (found nowhere else on earth). Only about 25% of our species have been formally described. Our knowledge of different species and ecosystems varies according to our interest in them. The species we know best are large and charismatic, or of quantifiable economic importance, public interest or taxonomic interest. Mammals, birds and some groups of plants top the list. Source: Commonwealth of Australia, 2009a, p The main threats to biodiversity, as identified by the draft Biodiversity Conservation Strategy, 29 are: climate change (resulting in conditions such as prolonged drought); 30 invasive species; loss, fragmentation and degradation of habitat; unsustainable use of natural resources; changes to the aquatic environment and water flows; and inappropriate fire regimes (see Box 3). 13 Australia s mega-diverse status, combined with its large terrestrial and marine area, presents significant management challenges, making it all the more important to ensure that the country s unique biodiversity is legally protected through the declaration of appropriate parks and other types of protected areas at the national, state, territory and local government levels. 2 Australia s protected areas system 14 Australia s protected areas system covers both terrestrial and marine areas. While they are often dealt with together in a single enactment, the two categories are addressed separately in this case study. The main exceptions to the general pattern are the Great Barrier Reef Marine Park Act 1975 (Commonwealth) and specific marine protected areas legislation in several states. 27 See Australian Institute of Marine Science, 2007; in 2010, Lord Howe Island, off the shore of New South Wales, suffered a substantial bleaching event: Moore, Fisheries Management Act 1991 (Commonwealth), s Commonwealth of Australia, 2009a, p See also Steffen et al., 2009, p IUCN-EPLP No

11 Box 3: Fire and biodiversity in Australia The draft Biodiversity Conservation Strategy explains the role of fire in Australia s rangeland ecology: Fire, as a recurrent disturbance, plays a significant role in the ecology of the rangelands. The interaction between fire and biodiversity at any specific location is shaped by the fire regime: the extent, seasonality, frequency, intensity and patchiness of fires. At the landscape scale, no single fire regime will be universally good for all species; some species can be extremely resilient to changes in fire regime, while others are highly sensitive to quite subtle changes. If the fire regime changes substantially from the one in which a particular ecosystem evolved, impacts will be felt on individual species and on the ecosystem as a whole. Despite pressure from altered fire regimes and other threats, and their characteristically infertile soils, the rangelands still contain relatively intact ecosystems. However, the rangelands have suffered greater biodiversity loss over the past two centuries than any other part of Australia. The greatest decline has occurred in sandy and stony desert ecosystems, in which about 33% of mammal species are locally extinct. Source: Commonwealth of Australia, 2009a, p. 73. The first protected area in Australia was the Royal National Park in New South Wales, established in 1879 and commonly referred to as the second declared national park in the world, after Yellowstone National Park in the United States, established in The subsequent declaration of Australia s many national parks and reserves by the Commonwealth, states and territories took place in a relatively uncoordinated and haphazard manner over the course of the 20th century; new terrestrial and marine protected areas continue to be added, many in the last two decades. 31 Although some large protected areas are located on Commonwealth property (that is, land and sea areas owned or controlled by the Commonwealth government), the majority of the country s protected areas fall under state and territory jurisdiction (New South Wales, Queensland, South Australia, Tasmania, Victoria, Western Australia, the Northern Territory and the Australian Capital Territory) and are administered by separate state and territory agencies. 32 Protected areas within and around Australia s main islands are administered by a variety of means. For example, Macquarie Island, Heard Island and McDonald Island, and the Australian Antarctic Territory come under the Australian Antarctic Division. 33 Norfolk Island and Christmas Island are administered by Parks Australia, under the Commonwealth Department of the Environment, Water, Heritage and the Arts, 34 while Lord Howe Island is administered by the New South Wales National Parks and Wildlife Service Terrestrial protected areas: Australia s National Reserve System As a result of Australia s 1993 ratification of the Convention on Biological Diversity (1992), a National Strategy for the Conservation of Australia s Biodiversity 36 was prepared through cooperation between the Commonwealth government, the states and the two self-governing territories, namely the Northern Territory and the Australian Capital Territory Australian protected areas are well documented on the Internet and can be searched through the Collaborative Australia Protected Area Database (CAPAD); see DEWHA, 2009d. 32 For further information, see DEWHA, Protected area management agencies in Australia and New Zealand, web page. 33 Australian Antarctic Division, undated. See also Australian Antarctic Division, web site. 34 See DEWHA, 2010a; and DEWHA, 2010d. The Australian Antarctic Territory is dealt with separately in section 10.8 below. 35 See Boer and Gruber, 2010a. 36 As noted above, a new draft strategy was published in 2009; see Commonwealth of Australia, 2009a. 11 IUCN-EPLP No. 81

12 Box 4: The National Reserve System A recent report, Australia s Strategy for the National Reserve System , describes the National Reserve System as follows: The National Reserve System is the system of formally recognised parks, reserves and protected areas primarily dedicated to the long-term protection of Australia s biodiversity. The protected areas occur on public, private and Indigenous land and are formally protected through legal or other effective means and managed in perpetuity. Only those areas that fall within the International Union for the Conservation of Nature (IUCN) definition of a protected area form part of the National Reserve System. According to the IUCN, a protected area is: 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. A secure and well-managed National Reserve System is essential for conserving Australia s biodiversity values within the broader context of integrated landscape management. They provide the foundation for building ecosystem resilience, buffering natural systems against pressures and threats, including climate change. Along with providing long-term protection of habitat and species, protected areas also provide significant other benefits such as ecosystem services, scientific reference sites, scenic amenity, naturebased recreation and tourism opportunities. They also contribute to cultural identity, community wellbeing and economic prosperity. The National Reserve System complements other efforts (in particular actions to improve vegetation, habitat, and water quality) to conserve biodiversity across terrestrial, inland freshwater and marine ecosystems and meet Australia s international obligations to protect our native species and habitats. 1 All Australian governments have agreed to minimum standards that protected areas must meet to be included in the National Reserve System: First, the land must be designated a protected area to be conserved forever, with effective legal means guaranteeing its perpetual conservation. Second, the area must contribute to the comprehensiveness, representativeness and adequacy of the National Reserve System. In other words, it must meet certain scientific criteria and strategically enhance the protected areas network. 2 Third, the area must be managed to protect and maintain biological diversity according to one of six international classes developed by IUCN. The six-level classification system defines protected areas according to their management purpose, ranging from strict nature conservation to multi-use reserves. For those who have been successful in obtaining Australian government funding to establish and manage a property in the National Reserve System, there are additional guidelines and processes to be followed. 3 The comprehensiveness, adequacy and representativeness of the National Reserve System, mentioned in the second point above, refers to the National Reserve System Scientific Framework s criteria. Commonly known as the CAR criteria, they are used throughout Australia s protected areas system for both terrestrial and marine areas at Commonwealth, state and territory level. The CAR criteria are defined as follows: Comprehensive: the inclusion in the National Reserve System of examples of regional-scale ecosystems in each bioregion. Adequate: the inclusion of sufficient levels of each ecosystem within the protected areas network to provide ecological viability and to maintain the integrity of populations, species and communities. Representative: the inclusion of areas at a finer scale, to encompass the variability of habitat within ecosystems. 4 1 Commonwealth of Australia, 2009b, p See DEWHA, 2009e. 3 See Commonwealth of Australia, undated; and DEWHA, Management, targets and monitoring for National Reserve System protected areas, web page. 4 DEWHA, 2009e. 18 More coherence has been brought to the Australian reservation process by the National Reserve System, 37 established in 1996 by the Commonwealth government to assist with the establishment and maintenance of a comprehensive, adequate and representative system of terrestrial 37 See DEWHA, History of the National Reserve System, web page. IUCN-EPLP No

13 reserves. 38 The Commonwealth Department of Parks and Reserves is the key federal coordinating authority for the National Reserve System 39 (see Box 4). From 1996 to 2009, over 30 million hectares was added to the National Reserve System, some two thirds of which has been allocated under the Indigenous Protected Areas Programme. 40 The National Reserve System is identified as one of six national priorities under the Commonwealth government s natural resource initiative, entitled Caring for our Country, launched in The National Reserve System now includes over 9,000 parks, reserves and Indigenous-owned lands managed under the jurisdiction of the Commonwealth government as well as states and territories. National Reserve System areas are depicted in Map 2. These areas cover nearly 900,000 sq km, which represents more than 11 per cent of the Australian land mass. 42 However, the consistency of protection Map 2.pdf :16:19 of bioregions varies considerably over the continent Map 2: Reserve boundaries of the National Reserve System Source: Parks Australia, 2010a. 38 See Commonwealth of Australia, 2008a. 39 See DEWHA, Coordinating the National Reserve System, web page. 40 The Indigenous Protected Areas Programme is dealt with separately below. See also DEWHA, Indigenous Protected Areas, web page. 41 Further information is available at Commonwealth of Australia, Welcome to Caring for our Country, web page. 42 In 2008 the Australian government announced an investment of $180 million over five years to accelerate development of the National Reserve System. For an overview of key tasks of the National Reserve System, see Commonwealth of Australia, 2008a. 43 For a map of Australia s bioregions, see Parks Australia, 2010c. 13 IUCN-EPLP No. 81

14 2.2 Marine protected areas Marine protected areas are of special importance to Australia. As an island continent, surrounded by many small islands, 44 Australia has a vast coastline, and is contiguous to three oceans (Indian, Pacific, and Southern or Antarctic) and three seas (Arafura, Coral and Timor). It claims a significant part of the Antarctic seas under a combination of the provisions of the Antarctic Treaty (1959) and the declaration of Australia s exclusive economic zone under the United Nations Convention on the Law of the Sea (1982). The Australian exclusive economic zone, including the Australian Antarctic Territory, covers over 10 million sq km. 45 Australia is also host to the Great Barrier Reef, the world s largest coral reef system, which is famous for its extraordinary marine biodiversity. The Commonwealth government has jurisdiction from beyond the territorial sea 46 to the outer limits of the exclusive economic zone. The marine protected areas declared around Australia s coastline and islands represent over 10 per cent of Australia s exclusive economic zone. 47 The most significant of these is the Great Barrier Reef Marine Park, which covers an area of 344,000 sq km. In May 2009, the Commonwealth government declared some 972,000 sq km of the Coral Sea, to the limits of the 200 nautical mile exclusive economic zone, off the Queensland coast, to be a conservation zone pursuant to the EPBC Act, providing interim protection during an assessment process to determine whether the area should become part of the Commonwealth marine reserve system. 3 General framework for the protected areas system 23 The overall legislative drafting approach taken at Commonwealth, state and territory level is to include conservation mechanisms related to habitats, ecosystems and species within the same statute. Similarly, cultural and natural heritage matters are generally dealt with in a single statute, although in several jurisdictions, Indigenous heritage issues are dealt with separately Commonwealth legislation 24 The earliest Commonwealth laws relating to various aspects of terrestrial and marine protected areas were the Environment Protection (Impact of Proposals) Act 1974, Australian Heritage Commission Act 1975, Great Barrier Reef Marine Park Act 1975, and National Parks and Wildlife Conservation Act These were followed by several other legislative instruments dedicated to the protection of the environment. 50 Another significant step was the enactment of the World Heritage Properties Conservation Act 1983 (Commonwealth). 51 This was introduced with the particular purpose of preventing the construction of a major hydropower dam on the Franklin River in south-west Tasmania, a listed World Heritage area, now known as the Tasmanian Wilderness World Heritage 44 There are over 8,000 islands in Australia s maritime area; most of them are relatively small. 45 Bateman and Bergin, 2009, p The particular Australian meaning of territorial sea is explained in section 9.3 below. 47 For a map of Australia s marine parks, see Commonwealth of Australia, 2006b, p See Boer and Wiffen, 2006, chapter 9, Aboriginal and Torres Strait Islander Heritage Law. 49 Of these, the Great Barrier Reef Marine Park Act 1975 continues in force, while the Australian Heritage Commission Act 1975, Environment Protection (Impact of Proposals) Act 1974, and National Parks and Wildlife Conservation Act 1975 are repealed. 50 For a history of the development of Australian protected areas, see Worboys et al., 2005, pp. 35 ff. 51 Now repealed. IUCN-EPLP No

15 Area. 52 It also sowed the seeds of greater influence in state environmental issues by the Commonwealth government, eventually leading to the 1992 and 1997 Intergovernmental Agreements on the Environment and the enactment of the EPBC Act. The EPBC Act is now the principal legislative instrument at the federal level concerning protected areas. It replaced and repealed all of the above enactments except for the Great Barrier Reef Marine Park Act. The EPBC Act is a comprehensive piece of legislation, comprising 528 sections and supported by substantial regulations, entitled the Environment Protection and Biodiversity Conservation (EPBC) Regulations The Commonwealth Minister for the Environment, Heritage and the Arts is responsible for the overall implementation of the EPBC Act. The EPBC Act was reviewed in The final review report contains a large number of recommendations, some of which bear directly on protected areas. These recommendations include protected areas management planning and more consistency between the ways in which terrestrial and marine protected areas are dealt with Cultural matters While the EPBC Act focuses primarily on the natural environment, cultural considerations are also integrated into the legislation. Provisions relating to World Heritage properties, 54 National Heritage places, Commonwealth Heritage places and Australia s Indigenous peoples refer to the cultural, historic, Indigenous or natural values that meet the criteria set for each individual list. 55 To be listed as a World Heritage site, a place must contain world heritage values as defined in the Act. The National Heritage List includes places of outstanding heritage significance to Australia. The Commonwealth Heritage List comprises places situated in Commonwealth lands and waters, or lands and waters under Commonwealth government control, which possess Commonwealth Heritage values. Cultural heritage matters are also dealt with in state and territory national parks and wildlife legislation, as well as in specific heritage legislation which generally covers both natural and cultural matters State and territory legislation The conservation, use and exploitation of land, marine areas and resources are largely administered at the state and territory level, due to jurisdictional and constitutional provisions. This means that there See DEWHA, Tasmanian Wilderness, web page. The threat to build the dam was very controversial, and galvanized the conservation movement at the time. The controversy played a part in bringing down the government of Prime Minister Malcolm Fraser; see, for example, Bonyhady, 1993; Thompson, Commonwealth of Australia, 2009c; the main protected areas recommendations are dealt with in section 5 below. 54 See EPBC Act, s 12(3): A property has world heritage values only if it contains natural heritage or cultural heritage. The world heritage values of the property are the natural heritage and cultural heritage contained in the property. The use of the term world heritage values is somewhat confusing, but should be understood to mean outstanding universal value as used in the World Heritage Convention. This becomes obvious by virtue of the fact that the EPBC Act refers to the Convention s definitions of cultural and natural heritage, which use the term outstanding universal value as the quintessential characteristic of World Heritage properties. 55 See EPBC Act, ss 3(1)(ca), 3(2)(f), 3(2)(fa), 3(1)(f) and 3(1)(g). The heritage value of a place is defined to include the place s natural and cultural environment having aesthetic, historic, scientific or social significance, or other significance, for current and future generations of Australians. Note that reference to Australia s Indigenous peoples generally includes Aboriginal people and Torres Strait Islanders unless the context otherwise requires. 56 See generally, Boer and Wiffen, IUCN-EPLP No. 81

16 are many more protected areas established at state and territory level than at the Commonwealth level. The primary state and territory laws for terrestrial areas include: National Parks and Wildlife Act 1972 (South Australia) National Parks and Wildlife Act 1974 (New South Wales) National Parks Act 1975 (Victoria) Territory Parks and Wildlife Conservation Act 1976 (Northern Territory) Nature Conservation Act 1980 (Australian Capital Territory) Conservation and Land Management Act 1984 (Western Australia) Nature Conservation Act 1992 (Queensland) National Parks and Reserves Management Act 2002 (Tasmania). 29 Legislation in each state as well as in the Northern Territory also provides for the establishment of marine protected areas. These are dealt with either under general national parks and wildlife laws, or by means of separate marine parks legislation, as follows: Marine Parks Act 1997 (New South Wales) Marine Parks Act 2004 (Queensland) Marine Parks Act 2007 (South Australia). 4 Governance of protected areas 30 For the most part, Australian protected areas are located on public land, and are administered by public agencies at Commonwealth, state and territory level. A variety of other arrangements are also in place, including conservation agreements with private landowners, and large areas of land which are held under traditional ownership by Aboriginal peoples and Torres Strait Islanders Protected areas administered by the government 31 The Commonwealth, state and territory governments have enacted national parks and wildlife legislation or its equivalent, typically setting up institutional arrangements and placing responsibility for administration of the legislation under a specific Minister. Institutional arrangements are covered in section 7 of this case study. 4.2 Protected areas and Indigenous peoples 32 Australian Aboriginal peoples and Torres Strait Islanders have taken care of their land for tens of thousands of years. Land is central to their identity both at the individual and community level. It constitutes their cultural and economic base in ways that are not well understood by the broader Australian community. In the past, interaction between the Commonwealth, state and territory governments and traditional owners was generally characterized by paternalistic and discriminatory policies. In addition to the need for greater attention to Indigenous social, health and cultural matters has been the need for legal recognition of their relationship to traditional lands and the conservation of their heritage. A good deal has been achieved in this respect over the last several decades, with many positive developments in 57 For details on the use of conservation agreements and agreements relating to Indigenous protected areas, see Boer and Gruber, 2010a. IUCN-EPLP No

17 recent times, including an official apology from the Commonwealth government for past treatment of those who are referred to as the Stolen Generations. 58 An ongoing challenge is to find culturally appropriate ways for Indigenous peoples to participate in the preparation of management plans for protected areas and the day-to-day management of the reserves. The Commonwealth manages several protected areas jointly with traditional owners. 59 The first area that was managed under such an agreement was the Kakadu National Park in the Northern Territory, established in 1979 and expanded in two stages up to There are now formal lease agreements signed by the Director of National Parks and the relevant land trusts representing the traditional owners of the park. The lease agreements accord traditional owners and other Aboriginal peoples the following rights: the right to continue, in accordance with Aboriginal law, the traditional use of any area of the park for hunting or food gathering (other than for purposes of sale); the right to continue the traditional use of any area of the park for ceremonial and religious purposes; and 33 subject to the provisions of the management plan, the right to reside within the park. 61 There are two other Commonwealth protected areas with similar arrangements. Uluru Kata Tjuta National Park in the Northern Territory was originally declared in 1977 under the name of Uluru (Ayers Rock-Mount Olga) National Park, with the change to its present name occurring at the request of the traditional owners in Booderee National Park was established in 1995 and is owned by the Wreck Bay Aboriginal Community within the Commonwealth lands of Jervis Bay, south of Sydney. 63 In these parks, the traditional owners lease the land to the Commonwealth and participate in its protection through advisory committees and cooperative management arrangements. This secures the involvement of Indigenous peoples in the management of their land and promotes the beneficial use of Indigenous knowledge of land management practices in order to make protection as effective as possible. The Wet Tropics of Queensland represent another example of joint management between the government and the traditional Aboriginal owners. The Commonwealth government works closely with the Queensland government to operate the Wet Tropics Management Authority, 64 through a special agreement, made in 1990, entitled Management scheme intergovernmental agreement for the Wet Tropics of Queensland World Heritage Area, which forms a schedule to the Wet Tropics World Heritage Protection and Management Act 1993 (Queensland). Under Schedule 1 of that Act, the Wet Tropics Management Authority may enter into, and facilitate the entering into, cooperative management Human Rights and Equal Opportunity Commission, An official apology was given by the Prime Minister in the Australian Parliament for Australia s historical treatment of its Indigenous peoples, and in particular concerning the effects of the forcible removal of Indigenous children from their parents and communities (see Rudd, 2008). 59 In-depth case studies can be found in Bauman and Smyth, For further details on co-management, see Ross et al., 2009; and Smyth and Ward, See also DEWHA, Kakadu National Park, web page. 61 Further information on these lease agreements is available at DEWHA, Lease agreements, web page. 62 DEWHA, 2010e. 63 See also DEWHA, Booderee National Park, web page. For information on the Booderee National Park Management Plan (Commonwealth of Australia, 2002), see DEWHA, Booderee National Park Management Plan, web page. See further Farrier and Adams, See Wet Tropics Management Authority (WTMA), undated a. 17 IUCN-EPLP No. 81

18 agreements (including joint management agreements) with land-holders, Aboriginal people particularly concerned with land in the Area and other persons. 36 The corresponding Commonwealth legislation is the Wet Tropics of Queensland World Heritage Area Conservation Act 1994, the object of which is to give effect to the agreement made between the Commonwealth and Queensland, and to facilitate the implementation of Australia s international duty for the protection, conservation, presentation, rehabilitation and transmission to future generations of the Wet Tropics of Queensland World Heritage Area. 65 A significant aspect of the legislative scheme, as stated in the preamble to the Commonwealth legislation, is to recognise a role for Aboriginal peoples particularly concerned with land and waters in the Area, and give Aboriginal peoples a role to play in its management. Policies for the implementation of the Wet Tropics Management Plan are called Protection Through Partnerships. While the language of joint management is used in the legislation and management documents, the term seems to be loosely used to refer to arrangements for consultation rather than true participation in management decisions and their implementation, with the Primary Goal being to ensure that the area is managed so that Australia s obligations are met under the Convention Concerning the Protection of the World Cultural and Natural Heritage (1972) (World Heritage Convention), as evidenced by the extract in Box Box 5: Protection Through Partnerships On the subject of Aboriginal involvement in management, the Wet Tropics World Heritage Protection Through Partnerships policy states: The Authority will encourage development of joint management agreements. Where land is national park, Aboriginal involvement in management will be negotiated between the Department of Environment and Aboriginal peoples in accordance with the provisions of the Nature Conservation Act Aboriginal involvement in national park management may include co-operative management arrangements or joint management arrangements. The Department sees joint management as an option where the land is Aboriginal land or where native title rights exist. Where agreed by all parties, the Authority may facilitate negotiations and become a party to management agreements. Where policies and activities of the Authority affect Aboriginal involvement in national parks, these will be developed and implemented in partnership with the Department of Environment. The fundamental role of the Authority in negotiating or facilitating management agreements is to ensure achievement of the Primary Goal for the Area and ensure Australia s obligations under the World Heritage Convention are being met. The Authority will seek to do this while respecting Aboriginal culture, and liaising with Aboriginal peoples. Under management agreements the Authority may provide for financial, scientific, technical and other assistance for Aboriginal peoples to contribute to achieving the Primary Goal for the Area. Source: WTMA, 2002, p Indigenous communities can also apply for government funding and other support to declare and manage their own protected areas under the Commonwealth government s Caring for our Country initiative. 67 Under the Commonwealth government scheme, there are now 36 declared Indigenous protected areas, 25 consultation projects, 3 co-management consultation projects, 11 new consultation projects and 2 new co-management consultation projects, as shown in Map Wet Tropics of Queensland World Heritage Area Conservation Act 1994 (Commonwealth), s See also WTMA, For further information, see DEWHA, Indigenous Protected Areas, web page. 68 See also DEWHA, Declared Indigenous Protected Areas, web page. IUCN-EPLP No

19 Map 3.pdf :17:46 Australia Map 3: Indigenous protected areas in Australia Source: Commonwealth of Australia, Conservation agreements with private landowners and lessees of government land With greater emphasis being placed in recent years on the conservation of biodiversity, Commonwealth and state authorities have established various kinds of mechanisms to protect representative ecosystems on private land, as well as on lands held under long-term lease from the government. Under the EPBC Act, the Minister may enter into a conservation agreement with a landholder. Such an agreement can relate to private or public land, or to marine areas, and may cover a wide range of matters concerning: biodiversity, the World Heritage values of declared World Heritage properties, the National Heritage values of National Heritage places, the Commonwealth Heritage values of Commonwealth Heritage places, the ecological character of a declared Ramsar 69 wetland, the environment with respect to the impact of a nuclear action, the environment in a Commonwealth marine area, and 38 the environment on Commonwealth land generally Convention on Wetlands of International Importance, especially as Waterfowl Habitat (1971). 70 EPBC Act, s IUCN-EPLP No. 81

20 39 40 There are a number of non-governmental organizations in Australia that regularly purchase land for the purposes of conservation and then enter into an agreement with the Commonwealth government in relation to management and funding. 71 These lands become part of the National Reserve System. The Australian government s policy, through the National Reserve System Programme, is to provide up to two dollars for every dollar invested by a conservation organization to add a new property to the National Reserve System. At state level, agreements to restrict the use of private land take various forms, such as conservation agreements in New South Wales 72 and, in Tasmania, agreements between farmers, the Commonwealth government and the Tasmanian government Evolution of protected areas policy and law Over the last three decades, Australian environmental policy at the Commonwealth and state level has placed greater emphasis on the establishment of marine and terrestrial protected areas. In 1998, Australia s Oceans Policy was published; it set out a framework for integrated ecosystem-based planning and management for all of Australia s marine jurisdictions. 74 The terrestrial policy framework is encapsulated in the National Reserve System. 75 These developments have occurred against a background of conflict between governments, private interests and non-governmental environmental organizations, especially in relation to forestry activities, dam building and other threats to natural environments. Particular political and legal conflicts have arisen in relation to the nomination and conservation of World Heritage areas in various states and territories. 76 As noted above, an Intergovernmental Agreement on the Environment 77 was entered into by the Commonwealth government, the states and territories, and the Local Government Association of Australia in 1992 after a good deal of negotiation. The agreement is not regarded as legally binding according to an advice from the Attorney-General s Department, 78 but is nevertheless seen as a politically significant document, which has generally been followed by the signatories. The agreement recognizes that certain matters, particularly those related to Australia s international obligations, fall under the jurisdiction of the Commonwealth government, but that land use and resources are largely matters for state and territory governments. The 1997 Intergovernmental Agreement emphasized 71 Five such conservation organizations are listed on the National Reserve System web page: the Australian Wildlife Conservancy, Bush Heritage Australia, the Nature Conservancy, the Tasmanian Land Conservancy and Trust for Nature (see DEWHA, Conservation organisations, web page). 72 Conservation agreements in New South Wales are dealt with in Boer and Gruber, 2010a. 73 See DEWHA, Tasmania s Protected Areas on Private Land programme, web page. 74 Commonwealth of Australia, 1998, p. 2; see further section 9.3 on marine bioregional planning, below. 75 Outlined in section 2.1, above. 76 The most significant legal action concerned the proposed construction of a hydro dam on the Franklin River, which lies within the boundaries of a World Heritage site in south-western Tasmania. The High Court of Australia ruled in favour of the Commonwealth government in upholding the validity of the World Heritage Properties Conservation Act 1983 (Commonwealth), which served to halt the building of the dam; see Commonwealth of Australia v State of Tasmania [1983] HCA 21; (1983) 158 CLR 1 (1 July 1983). The area has now been incorporated into a larger World Heritage listing, known as the Tasmanian Wilderness; see United Nations Educational, Scientific and Cultural Organization (UNESCO) World Heritage List, Tasmanian Wilderness, web page. See further Boer and Wiffen, 2006, chapter See Intergovernmental Agreement on the Environment. 78 Advice issued by Attorney-General s Department, January 1994 (cited in Parliament of Australia, 1998). IUCN-EPLP No