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

21 the Commonwealth government s responsibilities with respect to matters of national environmental significance. 79 Box 6: Objects of the Environment Protection and Biodiversity Conservation Act 1999 Section 3 of the EPBC Act provides: 3 Objects of Act (1) The objects of this Act are: (a) to provide for the protection of the environment, especially those aspects of the environment that are matters of national environmental significance; and (b) to promote ecologically sustainable development through the conservation and ecologically sustainable use of natural resources; and (c) to promote the conservation of biodiversity; and (ca) to provide for the protection and conservation of heritage; and (d) to promote a co operative approach to the protection and management of the environment involving governments, the community, land holders and indigenous peoples; and (e) to assist in the co operative implementation of Australia s international environmental responsibilities; and (f) to recognise the role of indigenous people in the conservation and ecologically sustainable use of Australia s biodiversity; and (g) to promote the use of indigenous peoples knowledge of biodiversity with the involvement of, and in co operation with, the owners of the knowledge. (2) In order to achieve its objects, the Act: (a) recognises an appropriate role for the Commonwealth in relation to the environment by focussing Commonwealth involvement on matters of national environmental significance and on Commonwealth actions and Commonwealth areas; and (b) strengthens intergovernmental co operation, and minimises duplication, through bilateral agreements; and (c) provides for the intergovernmental accreditation of environmental assessment and approval processes; and (d) adopts an efficient and timely Commonwealth environmental assessment and approval process that will ensure activities that are likely to have significant impacts on the environment are properly assessed; and (e) enhances Australia s capacity to ensure the conservation of its biodiversity by including provisions to: (i) protect native species (and in particular prevent the extinction, and promote the recovery, of threatened species) and ensure the conservation of migratory species; and (ii) establish an Australian Whale Sanctuary to ensure the conservation of whales and other cetaceans; and (iii) protect ecosystems by means that include the establishment and management of reserves, the recognition and protection of ecological communities and the promotion of off-reserve conservation measures; and (iv) identify processes that threaten all levels of biodiversity and implement plans to address these processes; and (f) includes provisions to enhance the protection, conservation and presentation of World Heritage properties and the conservation and wise use of Ramsar wetlands of international importance; and (fa) includes provisions to identify places for inclusion in the National Heritage List and Commonwealth Heritage List and to enhance the protection, conservation and presentation of those places; and (g) promotes a partnership approach to environmental protection and biodiversity conservation through: (i) bilateral agreements with States and Territories; and (ii) conservation agreements with land holders; and (iii) recognising and promoting indigenous peoples role in, and knowledge of, the conservation and ecologically sustainable use of biodiversity; and (iv) the involvement of the community in management planning. 79 See Council of Australian Governments, IUCN-EPLP No. 81

22 44 45 The EPBC Act was developed partly as a result of these federal-state conflicts and discussions, especially regarding jurisdiction over environmental matters. The Act makes it clear which matters are of national environmental significance. The legislative objects of the EPBC Act give a clear indication of the Commonwealth government s policy with respect to environmental matters, all of which relate in one way or another to protected areas. They also emphasize the promotion of ecologically sustainable development, a phrase that is now used in over 150 Commonwealth, state and territory environmentrelated statutes across Australia. The Act s objects are spelled out in section 3(1), while section 3(2) sets out how the objects are to be achieved (see Box 6). Following the 2009 review of the EPBC Act, 80 further evolution of the Commonwealth provisions concerning protected areas is likely. In particular, the review put forward recommendations concerning: Expansion of the role of bioregional plans to include the terrestrial and marine environment, and allowing the Commonwealth to develop such plans unilaterally (recommendation 6); Simplification of the process for National Heritage listing (recommendation 29); Management plans to focus on outcomes rather than content and process (recommendation 32); Minister to be able to prepare management plans for World Heritage properties, Ramsar wetlands and National Heritage places where collaboration with states has not produced effective plans (recommendation 34); Revision of provisions for the management of Commonwealth reserves to ensure that they meet the needs of marine reserves (recommendation 35); Protection of conservation zones while undergoing assessment (recommendation 36); Strengthening the protection of biodiversity in conservation zones (recommendation 36); Repeal of provisions regarding biosphere reserves (recommendation 37); Federal accreditation of state and territory management planning where those plans meet the requirements of the Act and Regulations (recommendation 127) Matters of national environmental significance and Australia s international obligations 46 The EPBC Act uses a list of matters of national environmental significance as the basis for the Act s decision-making, approval and environmental impact assessment mechanisms to be triggered. The Act provides that it is an offence to carry out any action in relation to a matter of national environmental significance unless an approval has been obtained from the Commonwealth Minister for the Environment. Matters of national environmental significance include: a declared World Heritage property 82 a National Heritage place 83 a declared Ramsar wetland 84 a listed threatened species or endangered community Commonwealth of Australia, 2009c. 81 Commonwealth of Australia, 2009c. 82 EPBC Act, s EPBC Act, s 15B. 84 EPBC Act, s EPBC Act, s 18. IUCN-EPLP No

23 a listed migratory species 86 a nuclear action 87 activities involving a Commonwealth marine area 88 the Great Barrier Reef Marine Park. 89 Since matters of national environmental significance include the Australian government s obligations under specified multilateral environmental agreements (MEAs), the Act incorporates a range of specific provisions concerning implementation of the following MEAs related to the conservation of natural and cultural environments: Convention on Wetlands of International Importance, especially as Waterfowl Habitat (1971); Convention Concerning the Protection of the World Cultural and Natural Heritage (1972); Convention on International Trade in Endangered Species of Wild Fauna and Flora (1973); Convention on Conservation of Nature in the South Pacific (1976); Convention on the Conservation of Migratory Species of Wild Animals (1979); United Nations Convention on the Law of the Sea (1982); Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (1986); and Convention on Biological Diversity (1992). The EPBC Act also refers to regional bilateral agreements for protecting the habitats of migratory birds: Japan-Australia Migratory Bird Agreement (JAMBA) (1974) 90 China-Australia Migratory Bird Agreement (CAMBA) (1986). 91 These agreements are transboundary in the sense that they refer to the trans-jurisdictional flyways of a wide variety of species. They contain obligations to exchange information, prohibit the taking of birds or eggs, and conserve the habitats of each species of bird where they breed and feed. Matters of national environmental significance also include actions that are taken by a Commonwealth agency or that have a significant environmental impact on Commonwealth land. At this stage, however, the Act does not include greenhouse gases, water and soils as matters of national environmental significance. Nevertheless, the EPBC Act does allow for the making of regulations under the United Nations Framework Convention on Climate Change (1992), 92 even though climate change itself is not currently listed as a matter of national environmental significance. The review of the EPBC Act recommended that climate change should be made a matter of national environmental significance EPBC Act, s EPBC Act, s EPBC Act, s EPBC Act, s 24B. 90 Agreement between the Government of Australia and the Government of Japan for the Protection of Migratory Birds in Danger of Extinction and their Environment (1974). 91 Agreement between the Government of Australia and the Government of the People s Republic of China for the Protection of Migratory Birds and their Environment (1986). Note that the Agreement between the Government of Australia and the Government of the Republic of Korea on the Protection of Migratory Birds (Korea-Australia Migratory Bird Agreement, or ROKAMBA) was concluded in 2007 but is not yet included in the EPBC Act. 92 See EPBC Act, s 520(3)(k). 23 IUCN-EPLP No. 81

24 on an interim basis through an amendment of the EPBC Regulations, pending the implementation of further legislation entitled the Carbon Pollution Reduction Scheme Act Incorporation of international environmental law principles 50 The EPBC Act includes a wide range of principles, some of which are generally applicable, while others are related specifically to protected areas. Elements of the generally applicable principles are addressed below, noting their specific application to protected areas, followed by a discussion of the principles that are primarily related to protected areas. A number of the general principles are also found in the Australian IUCN reserve management principles listed in the EPBC Regulations Ecologically sustainable development 51 The Intergovernmental Agreement on the Environment includes provisions concerning ecologically sustainable development. 94 The EPBC Act, which finds some of its political basis in the Intergovernmental Agreement, requires that all decisions under the Act must follow the principles of ecologically sustainable development. The Act states: The following principles are principles of ecologically sustainable development: (a) decision-making processes should effectively integrate both long-term and short-term economic, environmental, social and equitable considerations; (b) if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation; (c) the principle of inter generational equity that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations; (d) the conservation of biological diversity and ecological integrity should be a fundamental consideration in decision-making; (e) improved valuation, pricing and incentive mechanisms should be promoted In contrast to the EPBC Act, the EPBC Regulations specify the application of the narrower principle of ecologically sustainable use 96 in relation to protected areas: If resource use is consistent with the management principles that apply to a reserve or zone, it should (if it is carried out) be based on the principle (the principle of ecologically sustainable use) that: (a) natural resources should only be used within their capacity to sustain natural processes while maintaining the life-support systems of nature; and (b) the benefit of the use to the present generation should not diminish the potential of the reserve or zone to meet the needs and aspirations of future generations In Australia, exploitative resource uses such as logging and mineral extraction are generally prohibited in protected areas, with the result that the principle of ecologically sustainable use in the context of Commonwealth reserves would be more likely to apply to fisheries and other marine uses, rather than terrestrial uses. 93 See Commonwealth of Australia, 2009c, p. 22. The draft Carbon Pollution Reduction Scheme Act was the subject of significant controversy at the federal level between the political parties at the close of 2009, and its consideration by the Australian Parliament has been shelved for the present. 94 See Bates, 2010, chapter 7, for an extended discussion of ecologically sustainable development and associated principles. 95 EPBC Act, s 3A. 96 This principle is defined in the EPBC Act, s 528: ecologically sustainable use of natural resources means use of the natural resources within their capacity to sustain natural processes while maintaining the life support systems of nature and ensuring that the benefit of the use to the present generation does not diminish the potential to meet the needs and aspirations of future generations. 97 Environment Protection and Biodiversity Conservation (EPBC) Regulations 2000, Schedule 8, cl 5. IUCN-EPLP No

25 5.2.2 Precautionary principle The EPBC Act gives the precautionary principle 98 a good deal of prominence. In addition to being included under the principles of ecologically sustainable development, the Act provides that the Minister must take account 99 of the precautionary principle in making decisions concerning the subjects listed in section 391(3) of the EPBC Act. These include decisions regarding wildlife trade, permits related to activities in protected areas, and management plans for specific kinds of protected areas including World Heritage areas. The precautionary principle is also specifically mentioned in its application to protected areas in the EPBC Regulations (Schedule 8: Australian IUCN reserve management principles). Clause 3 of these principles provides: A lack of full scientific certainty should not be used as a reason for postponing measures to prevent degradation of the natural and cultural heritage of a reserve or zone where there is a threat of serious or irreversible damage. A New South Wales Land and Environment Court case in 2005, Telstra v Hornsby Shire Council, 100 made a very clear statement of the circumstances in which the precautionary principle should be activated and applied Access to information, public participation and access to justice The EPBC Act contains provisions for publishing information on the Internet. It requires the Department of the Environment to publish on the Internet each week a list of all permits issued or granted under the Act in the preceding week. 101 Other matters required to be published weekly include: notice of the Minister s intention to develop a draft bilateral agreement; referral to the Minister of an action 102 taken; decisions that an action is a controlled action ; 103 decisions about which approach is to be used for assessment of the relevant impacts of an action; guidelines for a report or statement; public invitations to comment on a draft of guidelines for a report or statement; drafts or finalized reports or statements by a designated proponent; and finalized recommendation reports given to the Minister. 104 In addition, the minister is obliged to furnish various kinds of reports, including an annual report and a periodic State of the Environment Report. 105 If such information is not forthcoming, legal action can be taken under the EPBC Act to ensure publication, unless other provisions concerning restrictions on confidential information under the Act apply. Under the EPBC Act, there are several opportunities for public participation in the nomination of natural protected areas. These include the nomination of sites for inclusion in the National Heritage List and Analyses of the precautionary principle can be found in Sadeleer, 2002, pp. 91 ff; and for Australia, in Peel, Analysis of particular application of the principle in the area of biodiversity is found in Cooney and Dickson, In May 2007, the IUCN Council approved a set of guidelines for the application of the principle in the context of biodiversity conservation and natural resource management (see IUCN, 2007). These have obvious implications for the application of the principle in protected areas of any type. 99 EPBC Act, s 391(1): The Minister must take account of the precautionary principle in making a decision listed in the table in subsection (3), to the extent he or she can do so consistently with the other provisions of this Act. Given the words take account of, it is difficult to determine whether the Minister is under an obligation to use or apply the precautionary principle as an actual basis for decision making. The reference to consistency with other provisions of the Act seems to indicate that the Minister must somehow balance the use of the principle with other provisions, but the Act provides no guidance in this respect. 100 Preston C.J., Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133 (24 March 2006). 101 EPBC Act, s 515(A). 102 An action includes a project, a development, an undertaking and an activity or series of activities; see EPBC Act definitions, s EPBC Act, s 67: An action that a person proposes to take is a controlled action if the taking of the action by the person without approval [ ] would be [ ] prohibited by the provision. 104 EPBC Act, s 170A, Publication of information relating to assessments. 105 EPBC Act, ss 516A and 516B; see also Beeton et al., IUCN-EPLP No. 81

26 the Commonwealth Heritage List; these lists consist of both natural and cultural places. 106 The Minister is obliged to invite nominations to both lists. If accepted, the natural protected areas nominated may become part of the National Reserve System. 58 The EPBC Regulations include specific provisions for community involvement in the management of these areas: 5 The management of National Heritage places should make timely and appropriate provision for community involvement, especially by people who: (a) have a particular interest in, or association with, the place; and (b) may be affected by the management of the place. 6 Indigenous people are the primary source of information on the value of their heritage and the active participation of indigenous people in identification, assessment and management is integral to the effective protection of indigenous heritage values Schedule 8 of the EPBC Regulations specifically incorporates obligations for community participation under the Australian IUCN reserve management principles: Management arrangements should, to the extent practicable, provide for broad and meaningful participation by the community, public organisations and private interests in designing and carrying out the functions of the reserve or zone In addition, the Australian IUCN reserve management principles provide for transparency in decision making: The framework and processes for decision making for management of the reserve or zone should be transparent. The reasons for making decisions should be publicly available, except to the extent that information, including information that is culturally sensitive or commercial in confidence, needs to be treated as confidential Definitions The EPBC Act does not include a specific definition of protected areas as such. However, the National Reserve System established by the Commonwealth government in collaboration with the states and territories used the IUCN definition which prevailed at the time of its establishment. In 2009, it adopted the 2008 IUCN definition: 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. 110 The EPBC Act defines particular types of protected areas in terms of particular characteristics they must possess. 111 These are summarized as follows: Commonwealth reserves: there are no particular characteristics specified for Commonwealth reserves. The Governor-General can proclaim Commonwealth reserves over areas of land or sea that the Commonwealth owns, or that the Commonwealth or the Director leases, or that are located in a Commonwealth marine area; or areas outside Australia that the Commonwealth has international 106 EPBC Act, ss 324J and 341H. 107 EPBC Regulations, Schedule 5B, National Heritage management principles (regulation 10.01E). Similar provisions apply to Commonwealth Heritage places: EPBC Regulations, Schedule 7B, Commonwealth Heritage management principles (regulation 10.03D). 108 EPBC Regulations, Schedule 8, Part 1.1, pursuant to regulation EPBC Regulations, Schedule 8, Part 1.6, pursuant to regulation See Dudley, 2008, p Only the characteristics of natural areas and places are focused on here. IUCN-EPLP No

27 obligations to protect, and in respect of which Australia has obligations relating to biodiversity or heritage under an agreement with one or more other countries that may appropriately be met by declaring the area a Commonwealth reserve. 112 World Heritage properties: a property included in the World Heritage List is a declared World Heritage property as long as the property is included in the List. If a property is not yet on the World Heritage List, a declaration can be made that it is a declared World Heritage property for the period for which the declaration is in force. The definitions of cultural heritage and natural heritage are stated to be the same as those in the World Heritage Convention. 113 National Heritage places: a place has National Heritage value if and only if the place meets one of the criteria (the National Heritage criteria) prescribed by the regulations for the purposes of this section. The National Heritage value of the place is the place s heritage value that causes the place to meet the criterion. 114 National Heritage places that can be identified under both natural and cultural criteria are generally protected under one or more categories of protected area under the EPBC Act. The EPBC Regulations specify National Heritage criteria as any or all of the following: importance in the course or pattern of Australia s natural or cultural history; possession of uncommon, rare or endangered aspects of Australia s natural or cultural history; potential to yield information that will contribute to an understanding of Australia s natural or cultural history; importance in demonstrating the principal characteristics of a class of Australia s natural or cultural places, or a class of Australia s natural or cultural environments; importance in exhibiting particular aesthetic characteristics valued by a community or cultural group; and importance as part of Indigenous tradition. Commonwealth Heritage places: a place has Commonwealth Heritage value if and only if the place meets one of the criteria according to the Commonwealth Heritage criteria set out in the EPBC regulations. 115 Wetlands of international importance: a wetland, or part of a wetland, designated by the Commonwealth under Article 2 of the Ramsar Convention for inclusion in the List of Wetlands of International Importance is a declared Ramsar wetland as long as it is not excluded by the Commonwealth from the boundaries of a listed wetland or deleted by the Commonwealth from the List under Article In addition, the Minister may declare a wetland or part of a wetland to be a Ramsar wetland if it is of international significance or is likely to be of international significance because of its ecology, botany, zoology, limnology or hydrology, and the ecological character of some or all of the wetland is under threat. In other words, a declaration may be made over a wetland in order to protect it under the Act, prior to the wetland being listed under the Convention. Commonwealth marine areas: extensive marine protected areas have been declared within Australia s very large exclusive economic zone. Each of the following is a Commonwealth marine area, within which the Commonwealth can declare marine protected areas: EPBC Act, s 344, Declaring Commonwealth Reserves. 113 EPBC Act, ss 13 and EPBC Act, s 324D(1). 115 EPBC Act, s 341D(1). The Commonwealth Heritage criteria are virtually identical to the National Heritage criteria set out above; see EPBC Regulations 2000, cl 10.03A ( Commonwealth Heritage criteria ). 116 EPBC Act, s 17A. 117 For further explanation, see section 9.3 on marine bioregional planning, below. 27 IUCN-EPLP No. 81

28 (a) any waters of the sea inside the seaward boundary of the exclusive economic zone, except: (i) waters, rights in respect of which have been vested in a State by section 4 of the Coastal Waters (State Title) Act 1980 or in the Northern Territory by section 4 of the Coastal Waters (Northern Territory Title) Act 1980; and (ii) waters within the limits of a State or the Northern Territory; (b) the seabed under waters covered by paragraph (a); (c) airspace over waters covered by paragraph (a); (d) any waters over the continental shelf, except: (i) waters, rights in respect of which have been vested in a State by section 4 of the Coastal Waters (State Title) Act 1980 or in the Northern Territory by section 4 of the Coastal Waters (Northern Territory Title) Act 1980; and (ii) waters within the limits of a State or the Northern Territory; and (iii) waters covered by paragraph (a); (e) any seabed under waters covered by paragraph (d); (f) any airspace over waters covered by paragraph (d); (g) any other area of sea or seabed that is included in a Commonwealth reserve Institutional arrangements The vast majority of protected areas in Australia are managed through state and territory legislation by the relevant protected area agencies. 119 This section focuses on the federal situation. 120 As noted earlier, the EPBC Act is the main legislation for the establishment and management of protected areas at the federal level. 121 The Director of National Parks is a corporation established under the Act, and situated within the federal Department of the Environment, Water, Heritage and the Arts. The Director has overall responsibility for managing Commonwealth reserves and conservation zones. The Director s functions are set out in Box 7. The staff of Parks Australia 122 assists the Director in these functions. Within the Department, there are also specific bodies for the protection of the Great Barrier Reef (Great Barrier Reef Marine Park Authority) and the Wet Tropics (Wet Tropics Management Authority), areas which are also subject to separate legislation Bilateral agreements 66 The Commonwealth Minister can enter into agreements with state and territory governments under which those governments are authorized to take on the responsibilities of the Minister to assess actions that have an impact on matters of national environmental significance. 124 This is done through the mechanism of federal and state bilateral agreements. The EPBC Act defines a bilateral agreement 118 EPBC Act, s The relevant state and territory agencies are: the Australian Capital Territory Department of Territory and Municipal Services; the Department of Environment and Conservation (Western Australia); the Department of Natural Resources, Environment, The Arts and Sport (Northern Territory); the New South Wales National Parks and Wildlife Service; Parks Victoria; the Queensland Parks and Wildlife Service; South Australian National Parks and Reserves; and the Tasmania Parks and Wildlife Service. For further information, see the web sites listed at the conclusion of this case study. 120 See Boer and Gruber, 2010a as an example of state arrangements for protected areas. 121 For further details on the management of protected areas at the federal level, see Boer and Wiffen, 2006, chapter See DEWHA web site. 123 Great Barrier Reef Marine Park Act 1975 (Commonwealth); Wet Tropics of Queensland World Heritage Area Conservation Act 1994 (Commonwealth); Wet Tropics World Heritage Protection and Management Act 1993 (Queensland). 124 See EPBC Act, ss 3(2)(g)(i) and 29 ff. IUCN-EPLP No

29 as a written agreement between the Commonwealth and a state or a self-governing territory that provides for protecting the environment; promoting the conservation and ecologically sustainable use of natural resources; ensuring an efficient, timely and effective process for environmental assessment and approval of actions; and minimizing duplication in the environmental assessment and approval process. 125 Box 7: Director of National Parks The functions of the Director of National Parks are specified in the EPBC Act, section 514B, as follows: 514B Functions (1) The functions of the Director are: (a) to administer, manage and control Commonwealth reserves and conservation zones; and (b) to protect, conserve and manage biodiversity and heritage in Commonwealth reserves and conservation zones; and (ba) to contribute to the protection, conservation and management of biodiversity and heritage in areas outside Commonwealth reserves and conservation zones; and (c) to co operate with any country in matters relating to the establishment and management of national parks and nature reserves in that country; and (d) to provide, and assist in the provision of, training in the knowledge and skills relevant to the establishment and management of national parks and nature reserves; and (e) to carry out alone or in co operation with other institutions and persons, and to arrange for any other institution or person to carry out, research and investigations relevant to the establishment and management of Commonwealth reserves; and (f) to make recommendations to the Minister in relation to the establishment and management of Commonwealth reserves; and (g) to administer the Australian National Parks Fund; and (h) any other functions conferred on the Director under this or any other Act; and (i) to do anything incidental or conducive to the performance of any of the functions mentioned in paragraphs (a) to (h) (inclusive). [ ] (2) The Director may perform any of the Director s functions in co operation with a State, a selfgoverning Territory, an agency of a State or self-governing Territory or a Commonwealth agency. The general aim of such agreements is to minimise duplication of environmental impact assessment processes, strengthen intergovernmental co-operation and promote a partnership approach to environmental protection and biodiversity conservation. 126 Bilateral agreements relating to environmental impact assessment are now in force in all states and territories. 127 Although actions affecting protected areas that do not come under the EPBC Act are dealt with by agencies at the appropriate state and territory or local government level, these agreements are relevant when a decision is required under the EPBC Act from the Commonwealth Minister concerning protected areas within state and territory jurisdiction, because the area comes under the category of a matter of national environmental significance Advisory bodies The EPBC Act establishes three committees with specified functions to advise the Commonwealth Minister: Threatened Species Scientific Committee: The functions of this committee are extensive and include advising the Minister on recovery plans, threat abatement plans for listed threatened species or EPBC Act, s 45(2). 126 Agreement between the Commonwealth of Australia and the State of New South Wales under Section 45 of the Commonwealth Environment Protection And Biodiversity Conservation Act 1999 Relating to Environmental Impact Assessment (1997), paragraph 1. See further EPBC Act, ss See DEWHA, Bilateral agreements, web page. 29 IUCN-EPLP No. 81

30 communities of flora and fauna and approved conservation advice, 128 and the amendment and updating of lists of threatened species and communities. 129 Biological Diversity Advisory Committee: The functions of this committee include advising the Minister on matters related to the conservation and ecologically sustainable use of biological diversity. 130 Indigenous Advisory Committee: The function of this committee is to advise the Minister on the operation of the Act, taking into account the significance of Indigenous peoples knowledge of the management of land and the conservation and sustainable use of biodiversity The functions of each of these committees have a direct bearing on the management and conservation of protected areas. The use of listing processes for threatened species and communities of flora and fauna, and the conservation and ecologically sustainable use of biological diversity, together with the use of Indigenous knowledge regarding land and biodiversity, are central to the identification and management of protected areas. 9 Planning and the National Reserve System 70 As noted above, Commonwealth, state and territory governments have in recent years put into place a comprehensive National Reserve System for terrestrial areas. The National Reserve System Strategy emphasizes planning for biodiversity conservation on a number of levels: Our biodiversity continues to decline, and many important ecological processes and threats operate at scales larger than individual protected areas. Climate change, along with invasive species, land use change and altered landscape hydrology, presents a major challenge for biodiversity conservation planning in Australia. While we need to accelerate our efforts to expand and better manage Australia s National Reserve System, some of these threats will be best addressed at multiple scales local, regional and landscape through collaborative approaches that better coordinate conservation and management efforts on public and private lands The National Reserve System is very ambitious. It has been identified by the Commonwealth government as a priority area for investment and has set targets: To expand the area that is protected within the National Reserve System to at least 125 million hectares (an increase of 25 per cent), with priority to be given to increasing the area that is protected in under-represented bioregions. To expand the contribution of Indigenous protected areas to the National Reserve System by between 8 million and 16 million hectares (an increase of at least 40 per cent). To complete management plans for 100 per cent of Australian government-funded protected areas under the National Reserve System within two years of the formation of agreements relating to these areas The Minister must ensure that there is approved conservation advice available for each listed threatened species and each listed threatened ecological community, at all times while the species or community continues to be listed. Approved conservation advice refers to a document approved by the Minister from time to time, containing a statement that sets out: the grounds on which the species or community is eligible to be included in the category in which it is listed; the main factors that are the cause of it being so eligible; and either information about what could appropriately be done to stop the decline of, or support the recovery of, the species or community, or a statement to the effect that there is nothing that could appropriately be done to stop the decline of, or support the recovery of, the species or community (summarized from EPBC Act, s 266B). 129 EPBC Act, ss 502 and 503; see also DEWHA, Threatened Species Scientific Committee, web page. 130 EPBC Act, s 504; see also DEWHA, Biological Diversity Advisory Committee, web page. 131 EPBC Act, s 505A ff; see also DEWHA, Indigenous Advisory Committee, web page. 132 Commonwealth of Australia, 2009b, p Commonwealth of Australia, 2009b, p. 17. IUCN-EPLP No

31 The National Reserve System uses the Interim Biogeographic Regionalisation for Australia (IBRA) as the basis for its national and regional planning framework. IBRA is a system of classification of Australia s landscapes, based on climate, geology, landform, native vegetation and species information collected from fieldwork, mapping and reports. There are 85 bioregions and 403 subregions classified under this system. The accumulated information is used as the basis for assessing and planning the National Reserve System. 134 The Strategy focuses on the use of bioregional planning, with the following priorities: To the extent possible, collaborate with key stakeholders to contribute to broad landscape conservation plans at the bioregional scale for priority IBRA bioregions to: identify significant biodiversity assets for inclusion in the National Reserve System (or other effective conservation measures) consider landscape processes (including fire, movement of species, hydrological flows) and cultural values in assessments of potential additions to the National Reserve System assess landscape ecological function for major ecosystems at scales larger than the individual protected areas (such as the IBRA subregion) and aim to maximise representativeness in the National Reserve System and other key requirements for building climate change resilience maximise the viability and integrity of ecosystem function and protect key refugia in the face of a changing climate by protecting the full range of ecosystems and complementing the National Reserve System with other off reserve conservation mechanisms develop regional responses to climate change, including protecting refuges, managing invasive species, maintaining ecologically appropriate fire regimes, providing access to water and integrating with changing land use. 135 The Strategy includes a specific theme on protected area planning and management. Priority actions under this theme include the development of a nationally agreed management framework and standards to provide for consistent management planning for all National Reserve System protected areas, consultation with stakeholders at the commencement of the planning process, and ensuring that management plans or statements of intent are in place for individual protected areas or groups of protected areas. 136 The emphasis in recent years has moved from focusing on specific management plans to generating a single plan to cover a group of protected areas with a common management context. The Strategy states: 74 The approach of either establishing reserve fragments as consolidated entities or grouping them under a single management plan where there are shared issues has several benefits: the landscape context and ecological connectivity of each reserve unit is given focused attention in the management planning process the planning process is more meaningful and resource efficient, not only for the reserve manager, but also for the regional stakeholders engaged in the process complex connectivity issues such as the implications of climate change and collaboration with other land managers and catchment and natural resource management regional bodies are more readily addressed Bioregional planning under the EPBC Act The EPBC Act includes significant provisions concerning the identification and monitoring of biodiversity and the preparation of bioregional plans. These provisions will be important in achieving the aims of the National Reserve System. This is recognized in the final report of the 2009 review of the EPBC Act, which sees the development of the National Reserve System as providing guidance on new areas to be listed and providing protection for buffer zones. 138 The Minister may prepare a bioregional plan Summarized from Commonwealth of Australia, 2009b, p Commonwealth of Australia, 2009b, p Summarized from Commonwealth of Australia, 2009b, p Commonwealth of Australia, 2009b, p Commonwealth of Australia, 2009c, p IUCN-EPLP No. 81

32 for a bioregion that lies within a Commonwealth area. 139 For a bioregion that is not wholly within a Commonwealth area, the Minister may cooperate with a state or a self-governing territory, or an agency thereof, or any other person in the preparation of a bioregional plan. The Act provides that a bioregional plan may include: components of biodiversity, their distribution and conservation status; important economic and social values; heritage values; objectives relating to biodiversity and other values; priorities, strategies and actions to achieve the objectives; mechanisms for community involvement in implementing the plan; and measures for monitoring and reviewing the plan While the Act states that a bioregional plan is not a legislative instrument, and thus cannot be the subject of an action for legal enforcement as such, the Minister is nevertheless obliged to have regard to a bioregional plan in making any decision under this Act to which the plan is relevant Terrestrial and inland waters management plans The Minister must make management plans for World Heritage places, 142 National Heritage places, 143 Commonwealth Heritage places 144 and Ramsar wetlands 145 which fall within Commonwealth areas. Each type of protected area has its own specific management guidelines under the EPBC Regulations. 146 Some Commonwealth management plans apply to places outside Commonwealth areas. In such cases, the Commonwealth is required to cooperate with the relevant states or territories. This applies to recovery or threat abatement plans, wildlife conservation plans, and management plans for protected areas such as properties on the World Heritage List, National Heritage places and wetlands listed under the Ramsar Convention. In addition, for such places that fall within the jurisdiction of a state or territory, the Commonwealth government must use its best endeavours to ensure that a plan for managing the property is prepared and implemented, in cooperation with the state or territory, in a way that is not inconsistent with the relevant management principles Marine bioregional planning 79 The Australian government s Oceans Policy 148 sets out a framework for integrated ecosystem-based planning and management for Australian Commonwealth waters. The Oceans Policy envisages the preparation of regional marine plans and the creation of a National Representative System of Marine 139 EPBC Act, s EPBC Act, s 176(4). 141 EPBC Act, ss 176(4) and 176(4A). 142 EPBC Act, s EPBC Act, s 324S. 144 EPBC Act, s 341S. 145 EPBC Act, s These are dealt with separately in section 11 below. 147 See for example EPBC Act, s Commonwealth of Australia, IUCN-EPLP No

33 Protected Areas (NRSMPA), in close consultation with state and territory agencies. 149 The programme for regional marine planning was placed under the EPBC Act in 2005, and the plans are known as marine bioregional plans. The system includes identification and establishment of marine protected areas in Commonwealth waters, but not including coastal waters, 150 which are managed by the relevant state and territory authorities. It is for this reason that various marine protected areas around Australia s coastline have separate state- and Commonwealth-managed sections. 151 The NRSMPA 152 is a national system of marine protected areas, initiated in 1998, that aims to contain a comprehensive, adequate and representative sample of Australia s marine ecosystems. It consists of marine protected areas in Commonwealth, state and territory waters. It is intended to form part of an integrated strategy for marine conservation and management, within a broader range of Commonwealth, state and territory mechanisms to achieve biodiversity conservation and the complementary sustainable management of Australia s marine jurisdiction. The ultimate goal of the NRSMPA is to protect marine areas that represent all major ecological regions and the communities of plants and animals they contain. 153 It may be noted in passing that the National Reserve System discussed previously does not include marine areas. Australia s Strategy for the National Reserve System recognizes the need for links between the two. The Strategy states: While this Strategy does not cover the establishment of protected areas in the marine environment, the National Reserve System s approach aligns with that of the National Representative System of Marine Protected Areas, which provides for the conservation, protection and management of marine and estuarine environments. The links between terrestrial, inland freshwater and marine protected areas will be particularly important in the context of climate change and for Indigenous land and sea country aspirations. Where possible, it would be beneficial to adjoin terrestrial and marine protected areas to enhance connectivity. A strong alliance between the two approaches will also improve coordination of on-ground actions to strategically address conservation objectives for the whole landscape and adjoining marine environments. 154 Marine bioregional planning includes the preparation of a profile for each marine region, describing key habitats, species, natural processes, heritage values, human uses and benefits. On the basis of the regional profile, the Department of Environment, Water, Heritage and the Arts conducts a strategic regional assessment of the conservation values of and current and emerging pressures on the marine environment, which is in turn included in the draft marine bioregional plan to be concluded after a period of public consultation. The marine bioregional plan must identify conservation values, priorities See DEWHA, 2008b. 150 The EPBC Act uses the term coastal waters to denote waters under the jurisdiction of a state. This reflects the Offshore Constitutional Settlement that was reached between the Commonwealth government and the state governments in 1975, the result of which was that the states were recognized as having jurisdiction over activities within three nautical miles of their coastlines (see Attorney-General s Department, 2007). The more usual term territorial waters refers, in Australia, to waters beyond the three nautical mile limit up to twelve nautical miles, in accordance with the outer limit established under Article 3 of the United Nations Convention on the Law of the Sea (1982). Coastal waters are defined in s 227 of the EPBC Act: (2) The coastal waters of a State or the Northern Territory are: (a) the part or parts of the territorial sea that are: (i) within 3 nautical miles of the baseline of the territorial sea; and (ii) adjacent to that State or Territory; and (b) any marine or tidal waters that are inside that baseline and are adjacent to that State or Territory but are not within the limits of a State or that Territory. 151 For example, the Solitary Islands Commonwealth Marine Reserve is on the seaward side and adjacent to the New South Wales Solitary Islands Marine Park. The whole marine area is managed by the New South Wales Marine Parks Authority on behalf of the Australian Government s Department of the Environment, Water, Heritage and the Arts (DEWHA, 2008c). 152 See DEWHA, 2008b. 153 Summarized from DEWHA, 2008b. 154 Commonwealth of Australia, 2009b, p IUCN-EPLP No. 81

34 and measures for protection, a network of marine protected areas, and a set of sustainability indicators to assess the health of the marine environment. 155 Box 8 sets out the aim and focus of the marine bioregional planning process, and Map 4 depicts the marine planning regions. 83 Marine bioregional plans are prepared pursuant to section 176 of the EPBC Act. This provision applies to both terrestrial and marine bioregional planning, and can include the following: components of biodiversity, their distribution and conservation status; important economic and social values; heritage values; objectives relating to biodiversity and other values; priorities, strategies and actions to achieve the objectives; mechanisms for community involvement in implementing the plan; and measures for monitoring and reviewing the plan. Box 8: Marine bioregional planning Marine bioregional planning is implemented in five regions. The process is explained as follows: Australia s marine bioregional planning program is designed to provide a clearer focus on conservation and sustainable management of Australia s marine environment. It is a process that is underpinned by the principles of ecologically sustainable development and it takes an ecosystem approach in managing Australia s marine biodiversity and environment. [ ] The marine bioregional planning process focuses primarily on Commonwealth waters (the area of Australian jurisdiction that extends past state/northern Territory waters from around 3 nautical miles to the outer limits of the Exclusive Economic Zone some 200 nautical miles from the shore). Source: DEWHA, 2010b. 10 Characteristics, establishment, amendment and revocation of Commonwealth protected areas 84 As indicated previously, the Minister may establish a variety of protected areas at the Commonwealth level. The processes of establishment, amendment and revocation vary according to the individual category of protected area, as set out in Part 15 of the EPBC Act: World Heritage properties, National Heritage places, Commonwealth Heritage places, wetlands of international importance (Ramsar sites), biosphere reserves, Commonwealth reserves and conservation zones World Heritage properties 85 The EPBC Act provides that the Commonwealth government may submit to the World Heritage Committee for inclusion in the World Heritage List a property in a state or territory only if the Minister is satisfied that the Commonwealth has used its best endeavours to reach agreement with the state or territory on the proposed submission of the property and on management arrangements. 156 The phrase, best endeavours, reflects some of the history of the implementation of the World Heritage Convention in Australia. Several court cases in the 1980s challenged the Commonwealth s power to 155 Drawn from Commonwealth of Australia, 2006a. 156 EPBC Act, s 314(2). IUCN-EPLP No

35 unilaterally nominate potential World Heritage properties. 157 The High Court of Australia ruled in favour of the Commonwealth government s legal power to nominate a property to the World Heritage List notwithstanding the wishes of the state or territory concerned. 158 The Intergovernmental Agreement on the Environment subsequently included the following provision: The Commonwealth will consult with the relevant State or States, and use its best endeavours to obtain their agreement, on nominations to the World Heritage List. 159 The EPBC Act makes it clear that failure to obtain agreement does not invalidate the nomination to the list. 160 Map 4: Marine planning regions Source: DEWHA, 2010c. The Minister may also revoke a proposed World Heritage listing before a nomination is sent to the World Heritage Committee, if the Minister is satisfied that the property does not have World Heritage value, if the Commonwealth government decides not to submit the property to the Committee for inclusion in the List, or if the Minister is satisfied that none of the World Heritage values of the property is under threat. 161 In accordance with the World Heritage Convention, once the property has been listed by the World Heritage Committee, it cannot be removed except by the Committee itself See Boer and Wiffen, 2006, chapter 3; see also Boer, See Commonwealth of Australia v State of Tasmania, paragraph Intergovernmental Agreement on the Environment, Schedule 8(3). 160 EPBC Act, s 314(3). 161 EPBC Act, s 15(3). 162 See Convention Concerning the Protection of the World Cultural and Natural Heritage (1972), Article 11; and UNESCO, 2008, cll 9, 24 and 176(d). 35 IUCN-EPLP No. 81

36 There are currently 17 Australian properties inscribed on the World Heritage List, as indicated in Map Map 5: Australian World Heritage properties 2008 Source: WTMA, undated b National Heritage places At the Commonwealth level, Australia has had a system of designating and listing natural and cultural heritage places since The National Heritage List contains properties that are particularly significant to Australia s national identity. It includes both cultural and natural heritage sites, and combinations of the two, that are of outstanding heritage value and reflect Australia s cultural and natural history, its development as a nation, its natural beauty and diversity, and the importance of the site to Indigenous traditions. Any person can nominate a site for inclusion in the National Heritage List. The Australian Heritage Council assesses whether the place is of outstanding heritage value and meets one or more of the National Heritage criteria. 165 The Heritage Council makes recommendations to the Minister, who takes 163 For details see DEWHA, Find Australian places on the World Heritage List, web page; and UNESCO World Heritage Centre, Australia, web page. 164 The Report of the Committee of Inquiry into the National Estate was published in As a result of the report, the Australian Heritage Commission Act 1975 (Commonwealth) was enacted and the Australian Heritage Commission was established. The Act introduced a system of listing places of significance to Australia s heritage on the Register of the National Estate. The Register applied to federal-, state- and territory-controlled land, but had direct protective effect only in relation to federal land. In 2003, amendments to the EPBC Act, and the enactment of the Australian Heritage Council Act 2003, introduced a new system of heritage protection, setting up two new lists: the Commonwealth Heritage List and the National Heritage List. These lists incorporate both cultural and natural heritage places. Many protected natural areas at the Commonwealth level are found on the National Heritage List. 165 EPBC Act, s 324D; and EPBC Regulations, cl 10.01A ( National Heritage criteria ). IUCN-EPLP No

37 the final decision on the inscription. 166 The Minister can also remove all or part of a National Heritage place from the National Heritage List if it has lost its outstanding heritage value. 167 Before doing so, the Minister must seek comments from the Australian Heritage Council and the public. 168 There are also provisions for an emergency listing process. 169 The National Heritage List is maintained by the Department of the Environment, Water, Heritage and the Arts, and currently contains 107 properties, including all of Australia s World Heritage properties Wetlands of international importance (Ramsar sites) Australia currently has 65 Ramsar-listed wetlands, covering a total of approximately 7.5 million hectares. 171 One, Kakadu National Park, is also on the World Heritage List. The majority of these are situated within the states, the Australian Capital Territory and the Northern Territory. The exceptions are the islands belonging to Australia that are outside state and territory jurisdiction. Wetlands situated on state or territory land can be designated by the Commonwealth government for inclusion in the Ramsar list when the Minister is satisfied that the Commonwealth government has used its best endeavours to reach agreement with the relevant state or territory, and with any landholders or occupiers. 172 However, as with World Heritage sites, non-compliance with this requirement does not affect the designation of a wetland or existing listings. A Ramsar wetland can be removed from the international list by the Minister at any time without any conditions relating to the deletion except for giving notice in the Government Gazette and notifying the Ramsar Secretariat Commonwealth Heritage places The Commonwealth Heritage List includes historic, natural and Indigenous heritage sites situated in Commonwealth lands or waters, or under its control. In order to be listed, a site must contain significant Commonwealth Heritage values. The criteria are similar to the National Heritage criteria, with the main difference being that the heritage value must be significant rather than outstanding. 174 There seems to be no practical difference between these two evaluative terms. Any person can nominate a site for inclusion in the Commonwealth Heritage List. The Australian Heritage Council assesses the heritage value of the place against the Commonwealth Heritage criteria and makes a recommendation to the Minister, who makes the final decision on the listing. 175 The Minister can also remove all or part of a Commonwealth Heritage place from the Commonwealth Heritage List when it has lost its significant heritage value, or is no longer a Commonwealth area or EPBC Act, s 324A. 167 EPBC Act, s 324L. 168 EPBC Act, s 324M. 169 EPBC Act, s 324JK ff. 170 World Heritage properties are managed according to World Heritage management plans under the EPBC Regulations. For the list of Australian National Heritage places, see DEWHA, Full list of places on the National Heritage List, web page. 171 For a map of Ramsar sites in Australia, see DEWHA, 2008a. 172 EPBC Act, s 325 ff. 173 EPBC Act, s 327(1)(d). 174 EPBC Regulations, cl 10.03A(2). 175 EPBC Act, s 341A ff. 37 IUCN-EPLP No. 81

38 under the control of the Commonwealth. 176 Before doing so, the Minister must seek comments from the Australian Heritage Council and the public. 177 There are also provisions for an emergency listing process. 178 The Commonwealth Heritage List currently contains 337 properties Biosphere reserves 93 Biosphere reserves are based on the Man and the Biosphere Programme launched by the United Nations Educational, Scientific and Cultural Organization (UNESCO) in The Man and the Biosphere Programme proposes: An interdisciplinary research agenda and capacity building aiming to improve the relationship of people with their environment globally. [. ] It notably targets the ecological, social and economic dimensions of biodiversity loss and the reduction of this loss. It uses its World Network of Biosphere Reserves as vehicles for knowledge-sharing, research and monitoring, education and training, and participatory decision-making A biosphere reserve usually consists of one or more protected areas and some of the surrounding areas. Its aim is to foster both conservation and the sustainable use of natural resources. 181 A significant aspect of biosphere reserves is that humans are regarded as an integral component. The level of environmental protection ranges from complete protection to various kinds of sustainable activity. As of May 2010, there were 553 biosphere reserves worldwide in 107 countries, of which there are 14 in Australia. 182 Two of these are also World Heritage properties, as well as being inscribed on the National Heritage List. 183 The EPBC Act includes brief provisions on biosphere reserves, 184 and the EPBC Regulations include a set of biosphere management principles, which contain requirements for the preparation of management plans. 185 The 2009 review of the EPBC Act notes that biosphere reserves do not attract any specific legislative protection or regulatory controls, except for those that apply under other protected area categories. It recommends that the Act be amended to repeal the biosphere reserve provisions, as they create the impression of regulation and give rise to uncertainty about the role of the Commonwealth government in relation to their management EPBC Act, s 341L. 177 EPBC Act, s 341M. 178 EPBC Act, s 341JJ ff. 179 There are currently no World Heritage places on the Commonwealth List. In contrast to the National Heritage List, the vast majority of Commonwealth Heritage sites are cultural. The list can be accessed at DEWHA, Commonwealth Heritage List, web page. 180 For further information, see UNESCO Man and the Biosphere Programme, web site. 181 The central international declarations and key documents on biospheres can be accessed at UNESCO, Biosphere Reserves - Official documents, web page. 182 The 14 Australian biosphere reserves are: Barkindji Biosphere Reserve (New South Wales); Croajingolong National Park (Victoria); Fitzgerald River National Park (Western Australia); Hattah-Kulkyne National Park (Victoria); Kosciuszko National Park (New South Wales); Macquarie Island World Heritage Area (Tasmania); Mamungari Conservation Park (South Australia); Mornington Peninsula and Western Port (Victoria); Noosa Biosphere Reserve (Queensland); Prince Regent Nature Reserve (Western Australia); Riverland Biosphere Reserve (Calperum and Taylorville Stations) (South Australia); Uluru Kata Tjuta National Park (Northern Territory); Wilsons Promontory Marine Park and Marine Reserve (Victoria); and Yathong Nature Reserve (New South Wales). For a map of Australian biosphere reserves, see DEWHA, 2009a. 183 These are Macquarie Island and Uluru Kata Tjuta National Park. 184 EPBC Act, ss EPBC Regulations, cl and Schedule Commonwealth of Australia, 2009c, pp IUCN-EPLP No

39 10.6 Commonwealth reserves The concept of Commonwealth reserves derives from the first Commonwealth national parks legislation, the National Parks and Wildlife Conservation Act, now repealed. As noted in the review of the EPBC Act, the reserve provisions were: 97 enacted at a time when the focus of Commonwealth reserves was primarily terrestrial. Commonwealth marine reserves were initially restricted to a small number of relatively small, iconic sites. The exception was the Great Barrier Reef which was established and managed under separate legislation. 187 Under the EPBC Act, the Commonwealth government can proclaim Commonwealth land and marine areas, or areas that the Commonwealth leases, as Commonwealth reserves. 188 There are presently 35 areas proclaimed as Commonwealth reserves: six national parks, two botanic gardens and 27 marine reserves. 189 When proclaiming a site, the Governor-General must assign it to one of the Australian IUCN Protected Area Categories. 190 The Australian system uses all IUCN categories (strict nature reserve, wilderness area, national park, natural monument, habitat/species management area, protected landscape/seascape, and managed resource protected area). The IUCN category of the site determines how the site is to be managed and used. Under the EPBC Regulations, there are specific Australian IUCN reserve management principles 191 for all Commonwealth terrestrial and marine protected areas. The status of a Commonwealth reserve may be revoked or its boundaries altered once an adequate notice period has been given and other conditions are fulfilled. In doing so, or in proclaiming new Commonwealth sites, the Minister must consider a report prepared by the Director of National Parks and Reserves. When preparing the report, the Director must invite the public to comment Conservation zones The Governor-General can proclaim a terrestrial or marine area to be a conservation zone while it is being assessed for designation as a Commonwealth reserve. 193 Such proclamations can be made to protect the biodiversity of the area during the assessment process. The status of an area as a conservation zone may be revoked or amended if the government is satisfied that the area should not be designated as or included in a Commonwealth reserve. A proclamation must be made if an area becomes or is included in a Commonwealth reserve, or if it ceases to be a Commonwealth area. 194 The first marine conservation zone, for the Heard Island and McDonald Islands World Heritage sub- Antarctic island group, was established in the Southern Ocean in It is administered and managed by the Australian Antarctic Division of the Department of the Environment, Water, Heritage and the Arts, on behalf of the Director of National Parks Commonwealth of Australia, 2009c, p EPBC Act, s 343 ff. 189 Commonwealth of Australia, 2009c, p EPBC Act, s 346. The EPBC Act refers to seven categories, with IUCN categories Ia and Ib being treated as two separate categories. 191 EPBC Regulations, Schedule 8, Australian IUCN reserve management principles. 192 EPBC Act, ss EPBC Act, s 390B. 194 EPBC Act, s 390J. 39 IUCN-EPLP No. 81

40 103 The second such zone was established in May 2009 in the Coral Sea, off the coast of Queensland. 195 The Coral Sea Conservation Zone covers approximately 972,000 sq km. The area contains an extraordinary array of biodiversity but is also recognized for significant cultural heritage values, in particular as the site of the Battle of the Coral Sea of The Australian part of the Coral Sea has been proclaimed a conservation zone in order to provide interim protection to the area while an assessment is made to investigate whether it qualifies for inclusion in one or more Commonwealth marine reserves Antarctic protected areas The Antarctic biosphere is highly vulnerable to the impact of human activity. As one of the Antarctic Treaty Nations, Australia is involved in the protection of the Antarctic continent. The international and national legal regime for protected areas that applies to the Antarctic is complex. At the international level, under the Antarctic Treaty, the Agreed Measures for the Conservation of Antarctic Fauna and Flora (1964) established a system of protected areas. The Protocol on Environmental Protection to the Antarctic Treaty (1991), known as the Madrid Protocol, 197 includes provisions in its Annex V 198 under which Parties may declare Antarctic Specially Protected Areas for the purpose of protecting outstanding environmental, scientific, historic, aesthetic or wilderness values, any combination of those values, or ongoing or planned scientific research. 199 Such areas cannot be entered without a special permit, and any human activity must be authorized and specified in a management plan. The agreed potential Antarctic Specially Protected Areas must be nominated by the Antarctic Treaty Parties following a set of selection guidelines and are to be approved at an Antarctic Treaty Consultative Meeting. Measures and obligations under the Madrid Protocol have been implemented by Australia through the Antarctic Treaty (Environment Protection) Act 1980 (Commonwealth). 200 In addition to several protected areas in the Antarctic, Australia also has protected areas located in the sub-antarctic region: the Macquarie Island Commonwealth Marine Reserve, 201 and the Heard Island and McDonald Islands Marine Reserve. Both these reserves fall under the jurisdiction of the EPBC Act and are included in the World Heritage List Marine protected areas Australia has well-developed legal and institutional mechanisms to guide the creation and management of marine protected areas at the Commonwealth and state level. The EPBC Act covers all Commonwealth marine protected areas. While the Great Barrier Reef is governed by its own legislation, the Great Barrier Reef Marine Park Act, the region has now also been added as a matter of national environmental significance under the EPBC Act. Obligations relating to marine protected areas under international conventions are also addressed in the EPBC Act. 203 The Governor-General may declare Commonwealth marine protected areas either 195 For a map of the Coral Sea Conservation Zone, see DEWHA, 2009c. 196 See DEWHA, Marine Protected Areas, web page. 197 Protocol on Environmental Protection to the Antarctic Treaty (1991) (Madrid Protocol). 198 Madrid Protocol, Annex V ( Area protection and management ). 199 See Antarctic Protected Areas Information Archive, web site. 200 See Antarctic Treaty (Environment Protection) Act 1980 (Commonwealth). 201 See DEWHA, Macquarie Island Commonwealth Marine Reserve, web page. 202 See DEWHA, Heard Island and McDonald Islands Marine Reserve, web page. 203 The exception is the Convention on the Conservation of Antarctic Marine Living Resources (1980), incorporated into domestic law through the Antarctic Marine Living Resources Conservation Act 1981 (Commonwealth). IUCN-EPLP No

41 in Commonwealth marine areas or in areas that Australia is required to protect under its international obligations. 204 The following international conventions are directly or indirectly relevant to marine protected areas in Australia: Convention concerning the Protection of the World Cultural and Natural Heritage (1972), Convention on International Trade in Endangered Species of Wild Fauna and Flora (1973), Convention on the Conservation of Migratory Species of Wild Animals (1979), Convention on the Conservation of Antarctic Marine Living Resources (1980), United Nations Convention on the Law of the Sea (1982), Convention on Biological Diversity (1992), and United Nations Framework Convention on Climate Change (1992). Commonwealth marine protected areas include reefs and other marine areas between the limits of state coastal waters (up to 12 nautical miles) and 200 nautical miles from the coast, and include the seabed. Commonwealth marine protected areas around Australia and its islands are depicted in Map 6) Map 6: Commonwealth marine protected areas Source: Commonwealth of Australia, 2009e. 204 EPBC Act, s For a full list of offshore marine protected areas that are Commonwealth reserves, see Commonwealth of Australia, 2008b. 41 IUCN-EPLP No. 81

42 10.10 Australian Whale Sanctuary 110 The EPBC Act provides for the establishment of an Australian Whale Sanctuary. This reflects the Commonwealth government s strong position against whaling. Subject to certain exceptions, the Whale Sanctuary has been declared for all Australian waters, including its offshore Antarctic claimed territory. 206 While this is not named as a marine protected area as such, it can be so regarded in relation to cetaceans. Over the last six years, major litigation has taken place in the Federal Court of Australia in relation to the enforcement of prohibitions in the Australian Whale Sanctuary. This took the form of an action against a Japanese whaling company by the non-governmental organisation Humane Society International, seeking to enforce the provisions prohibiting whaling in the Australian Whale Sanctuary. 207 The upshot of this protracted litigation was that the Federal Court authorized court papers to be served on the Japanese company out of jurisdiction. In early 2010, the Commonwealth government was giving consideration to the taking of legal action to enforce the EPBC Act in the International Court of Justice Great Barrier Reef Marine Park The Great Barrier Reef, located off the coast of Queensland in the Coral Sea, plays a particularly important role in Australia s marine protected areas system. It is the world s largest reef system, stretching over 2,600 km from north to south, and covering an area of approximately 344,400 sq km. It consists of over 2,900 individual reefs and 900 islands, with 70 distinct habitat types or bioregions. 209 Four hundred species of soft corals and hard corals inhabit the Great Barrier Reef. As many as 30 species of whale, dolphin and porpoise can be found in the area, which is also the breeding ground for six species of sea turtle. Over 120 species of shark, stingray and skate live and hunt on the reef, while 49 species of pipefish, 9 species of seahorse and 17 species of sea snake inhabit the region. In total, more than 1,500 species of fish live on the reef. Meanwhile, the islands situated within the Great Barrier Reef Marine Park are breeding grounds for many bird species. 206 EPBC Act, s 225 provides: (1) The Australian Whale Sanctuary is established in order to give formal recognition of the high level of protection and management afforded to cetaceans in Commonwealth marine areas and prescribed waters. (2) The Australian Whale Sanctuary comprises: (a) any waters of the sea inside the seaward boundary of the exclusive economic zone, except: (i) waters, rights in respect of which have been vested in a State by section 4 of the Coastal Waters (State Title) Act 1980 or in the Northern Territory by section 4 of the Coastal Waters (Northern Territory Title) Act 1980; and (ii) waters within the limits of a State or the Northern Territory; and (b) any waters over the continental shelf, except: (i) waters, rights in respect of which have been vested in a State by section 4 of the Coastal Waters (State Title) Act 1980 or in the Northern Territory by section 4 of the Coastal Waters (Northern Territory Title) Act 1980; and (ii) waters within the limits of a State or the Northern Territory; and (iii) waters covered by paragraph (a); and (c) so much of the coastal waters of a State or the Northern Territory as are prescribed waters. 207 Humane Society International v Kyodo Senpaku Ltd [2006] FCAFC 116 (14 July 2006); and subsequent orders, Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2008] FCA 3 (15 January 2008). A summary of the litigation can be found in McGrath, Taylor, Commonwealth of Australia, 2006b. For a map of the Great Barrier Reef, see Commonwealth of Australia, 2006b, p. 15. IUCN-EPLP No

43 Most of the Great Barrier Reef has been a World Heritage site since It is divided into 30 reef bioregions and 40 non-reef bioregions, and is managed through four management areas. 210 Major issues with respect to the management of the area are summarized in the latest Australian government report on the reef: 113 The outlook for the Great Barrier Reef ecosystem is at a crossroad, and it is decisions made in the next few years that are likely to determine its long-term future. Unavoidably, future predictions of climate change dominate most aspects of the Great Barrier Reef s outlook over the next few decades. The extent and persistence of the damage to the ecosystem will depend to a large degree on the amount of change in the world s climate and on the resilience of the Great Barrier Reef ecosystem in the immediate future. 211 The most serious threat to the Great Barrier Reef clearly comes from climate change (see Box 9). Changes in ocean temperature also have a major impact on fish, as many species can only exist within a specific temperature range. If rising temperatures force such species to move to other grounds, the food chain will be significantly compromised. Further threats come from the land, with rivers constantly draining pesticide- and fertilizer-polluted water from coastal and inland farms. Corals are highly sensitive to such chemical influences. The water quality of the rivers in the region is thus of great importance to the survival of this ecosystem. Changing sea temperatures and chemical influences also support the spread of destructive species, such as the crown of thorns starfish, which leads to further damage Box 9: Impact of climate change The Great Barrier Reef Outlook Report 2009 Information Sheet states: Impacts from climate change have already been witnessed and all parts of the ecosystem are vulnerable to its increasing effects, with coral reef habitats the most vulnerable. [ ] The average annual sea surface temperature on the Great Barrier Reef is likely to continue to rise over the coming century and could be as much as 1 to 3 C warmer than the present average temperature by In the last decade there have been two severe mass coral bleaching events resulting from prolonged elevated sea temperatures. In addition, Great Barrier Reef waters are predicted to become more acidic with even relatively small increases in ocean acidity decreasing the capacity of corals to build skeletons and therefore create habitat for reef biodiversity in general. Sea level on the Great Barrier Reef has already risen by approximately 3 mm per year since Changes in the climate also mean that weather events are likely to become more extreme and severe. Almost all Great Barrier Reef species and habitats will be affected by climate change, some seriously. Source: Great Barrier Reef Marine Park Authority, 2009b Great Barrier Reef Marine Park Act The Great Barrier Reef is administered jointly by the Commonwealth and Queensland governments under the Great Barrier Reef Marine Park Act. 213 The Act is specifically dedicated to provide for the long term protection and conservation of the environment, biodiversity and heritage values of the Great Barrier Reef Region and to allow ecologically sustainable use of the Great Barrier Reef Region. 214 The operation of the Great Barrier Reef Marine Park Act was reviewed in The Detailed zoning maps for each zone of the Great Barrier Reef are at Great Barrier Reef Marine Park Authority, Zoning Maps, web page. 211 Great Barrier Reef Marine Park Authority, 2009a, p. i. See also Commonwealth of Australia, 2009d. 212 More information can be found at Great Barrier Reef Marine Park Authority, Climate change on the Great Barrier Reef, web page. 213 An overview of the Act can be gained from Boer and Gruber, 2010b. 214 Great Barrier Reef Marine Park Act, ss 2A(1) and 2A(2)(a). 215 Commonwealth of Australia, 2006b. 43 IUCN-EPLP No. 81

44 review included comprehensive observations and recommendations with respect to the legislative framework, especially concerning consistency between the Great Barrier Reef Marine Park Act and the EPBC Act. 116 As a result of the review, the Great Barrier Reef Marine Park Act was amended in late 2009, together with new provisions inserted into the EPBC Act, with the intention of making the two pieces of legislation more integrated. 216 In the context of this case study, the most important changes include making marine parks a matter of national environmental significance under the EPBC Act. 217 Thus, in addition to the current permit requirements for activities under the Great Barrier Reef Marine Park Act, activities in the marine park that are likely to have a significant impact on the environment, and activities outside the marine park that are likely to have a significant impact on the environment of the marine park or other nationally protected matters, must be referred to the Minister for a determination as to whether an approval is required under the EPBC Act. If an approval is required under both the EPBC Act and the Great Barrier Reef Marine Park Act, only one application is required. In addition, requirements for environmental impact assessment under both pieces of legislation are now combined, eliminating duplication Managing the Great Barrier Reef Marine Park The goals for the management of the Great Barrier Reef Marine Park are best summed up by the 25-Year Strategic Plan for the Great Barrier Reef World Heritage Area, 218 produced in Its goals for the Great Barrier Reef World Heritage Area are as follows: Healthy environment: an area which maintains its diversity of species and habitats, and its ecological integrity and resilience, parts of which are in pristine condition. Sustainable multiple use: non-destructive activities which can continue forever, in such a way that maintains the widest range of opportunities for appropriate sustainable use and does not adversely affect the ecological integrity of natural systems. Maintenance and enhancement of values: the continuation and enhancement of diverse aesthetic, ecological, economic, cultural and social values, providing for the aspirations of residents, users, Aboriginals and Torres Strait Islanders, and the global community. Integrated management: management of activities which takes into account the ecological relationship between the area and other adjacent areas, particularly the mainland. Knowledge-based but cautious decision making in the absence of information: decisions based on a commitment to research, monitoring and review, using data and experience from all sources and erring on the side of caution in the absence of information. An informed, involved, committed community. The concept behind the 25-Year Strategic Plan was to take the concerns and opinions of stakeholders into account, including governments, Aboriginal and Torres Strait Islander communities, conservationists, scientists, recreational users and established Reef industries such as fishing, shipping and tourism. 219 Cooperation is also important from an economic point of view as the fishing industry in the Great Barrier Reef area is worth around $1 billion annually. In addition, some of the area is a busy commercial shipping channel and tourism is one of the main sources of income for Queensland. In July 2004, a 216 DEWHA, 2009b. 217 EPBC Act, s 24B. 218 See Great Barrier Reef Marine Park Authority, For further information, see Great Barrier Reef Marine Park Authority, The 25 Year Strategic Plan, web page. IUCN-EPLP No

45 new zoning plan was brought into effect for the Great Barrier Reef Marine Park. 220 There are also four management plans in force for various sections of the park Requirements for management plans A variety of management plans for terrestrial and marine protected areas are required under the EPBC Act. The provisions are extensive, and are briefly summarized in this section. They can consist of plans for Commonwealth reserves, bilaterally agreed plans between the Commonwealth and the states and territories for protected areas within the states and territories, and bio-regional plans, as well as recovery plans and threat abatement plans in relation to particular species. The requirements for management plans depend on the type of protected area in question. The EPBC Regulations include management principles for each major category and set out the requirements for management plans. The National Reserve System produced a set of Plan of Management Guidelines in World Heritage sites Management plans for World Heritage sites must follow the Australian World Heritage management principles set out in the EPBC Regulations. They state: 120 The primary purpose of management of natural heritage and cultural heritage of a declared World Heritage property must be, in accordance with Australia s obligations under the World Heritage Convention, to identify, protect, conserve, present, transmit to future generations and, if appropriate, rehabilitate the World Heritage values of the property. 223 For properties entirely within a Commonwealth reserve, 224 the EPBC Act specifies that at least one management plan must be prepared for each World Heritage site, 225 which must be reviewed every five years. 226 Management arrangements vary for each World Heritage property. The Great Barrier Reef Marine Park Authority 227 and the Wet Tropics Management Authority 228 are responsible for the overall management of these properties, while the Queensland Parks and Wildlife Service provides day-to-day management. Uluru-Kata Tjuta National Park and Kakadu National Park are under Aboriginal traditional ownership, 229 and are managed by the Director of Parks and the traditional owners The zoning plan and relevant reports can be accessed at Great Barrier Reef Marine Park Authority, Zoning publications, web page; zoning maps can be accessed at Great Barrier Reef Marine Park Authority, Zoning maps, web page. 221 These are: the Cairns Area Plan of Management, Hinchinbrook Plan of Management, Shoalwater Bay (Dugong) Plan of Management and Whitsundays Plan of Management; see Great Barrier Reef Marine Parks Authority, Plans of management, web page. 222 See Commonwealth of Australia, undated. 223 EPBC Regulations, Schedule 5, Australian World Heritage management principles. 224 World Heritage properties constituted by Commonwealth reserves are Kakadu National Park and Uluru Kata Tjuta National Park. 225 EPBC Act, s EPBC Act, s For further details on management arrangements for the Great Barrier Reef, see Great Barrier Reef Marine Park Authority, Who Participates?, web page. See also section above. 228 For further details on management arrangements, see WTMA, Wet Tropics of Queensland World Heritage Area, web page. 229 Traditional owners of indigenous people s land are defined in s 368(4) of the EPBC Act as: (a) a local descent group of indigenous persons who: (i) have common spiritual affiliations to a site on the land under a primary spiritual responsibility for that site and for the land; and (ii) are entitled by indigenous tradition to forage as of right over the land [ ]. 230 See DEWHA, Kakadu National Park, web page; DEWHA, Uluru-Kata Tjuta National Park, web page; and Director of National Parks, IUCN-EPLP No. 81

46 123 The Australian Antarctic Division provides day-to-day management for the Heard and McDonald Islands Group. The remaining World Heritage sites are managed by the relevant state government agencies, 231 with oversight by the Commonwealth Department of the Environment, Water, Heritage and the Arts National Heritage places 124 The Minister must make a written management plan when a place is included in the National Heritage List. 232 Such plans must be revised every five years. 233 The plans must follow the National Heritage management principles, 234 as set out in the EPBC Regulations, and must ensure the protection of the site s heritage values. 235 The contents of all management plans for National Heritage places must also cover a specific range of issues. 236 As noted earlier, Australia s World Heritage properties are also in the National Heritage List; only a World Heritage management plan is required for these properties Ramsar sites 125 When a wetland is listed as a Ramsar site, the Minister must make a written management plan for the site. 237 Such plans must be revised every five years. 238 The plans must follow the Australian Ramsar management principles Commonwealth Heritage places The Minister must make a written management plan when a place is included in the Commonwealth Heritage List. 240 Such plans must be revised every five years. 241 The plans must follow the Commonwealth Heritage management principles. 242 The contents of all management plans for Commonwealth Heritage places must also cover a specific range of matters. 243 The EPBC Act and the Commonwealth Heritage management principles contemplate that some areas on the Commonwealth Heritage List can also be protected under other provisions of the Act, with similar management requirements or principles. A Commonwealth Heritage place can conceivably also be listed on the National Heritage List 244 or the World Heritage List. 245 In such cases, plans can be 231 For more information on Australia s World Heritage management objectives and management arrangements, see DEWHA, Management of Australia s World Heritage listed places, web page. 232 EPBC Act, s 324S ff. 233 EPBC Act, s 324W. 234 EPBC Regulations, Schedule 5B, National Heritage management principles. 235 A guide for drafting management plans for National Heritage places is available at DEWHA, Management plans for National Heritage places, web page. 236 These requirements are set out in the EPBC Regulations, Schedule 5A. 237 EPBC Act, s 328, unless it is included in a Commonwealth reserve and covered by another plan. 238 EPBC Act, s EPBC Regulations, Schedule 6, Australian Ramsar management principles. 240 See EPBC Act, s 341S, unless it is included in a Commonwealth reserve and covered by another plan: EPBC Act, s 341U. 241 EPBC Act, s 341X. 242 EPBC Act, s 341Y; EPBC Regulations, Schedule 7B, Commonwealth Heritage management principles. 243 EPBC Regulations, Schedule 7A, Management plans for Commonwealth Heritage places. 244 However, there are no overlaps between these two lists at present. 245 All Australian World Heritage properties are also on the National Heritage List. IUCN-EPLP No

47 combined to meet all relevant provisions 246 and additional management requirements or principles may be provided. A plan for a Commonwealth Heritage place can be incorporated into the same document as other plans that the Act or another Commonwealth law requires or permits to be prepared. 247 In addition, recognizing that state, territory and local responsibilities for some places on the Commonwealth list may overlap, the Commonwealth Heritage management principles specifically require that the management of Commonwealth Heritage places should seek to integrate, where appropriate, any Commonwealth, State, Territory and local government responsibilities for those places Biosphere reserves The Minister may make a written plan for managing a biosphere reserve or part of a biosphere reserve. If such a plan is made, it must conform to the Australian biosphere reserve management principles. 249 The Australian National Commission for UNESCO has overall responsibility for UNESCO activities in Australia but responsibility for the implementation of management plans remains with the Department of the Environment, Water, Heritage and the Arts Commonwealth reserves and IUCN categories The EPBC Act explicitly uses the IUCN protected area categories with respect to Commonwealth reserves, each of which must be assigned an IUCN category. 251 The EPBC Regulations include comprehensive management principles for each of the categories. 252 These management principles must be followed by the Director of National Parks in relation to all Commonwealth reserves. 253 Management plans are either developed by the Director of National Parks or in cooperation with a board established for particular reserves. They are required to include a range of contents. 254 Management plans for Commonwealth reserves cease to have effect after 10 years unless they have already been revoked. 255 They can be amended or revoked and replaced by new management plans at any time. 256 The EPBC Act specifies activities that are prohibited in a Commonwealth reserve except in accordance with a management plan for the reserve. 257 If a management plan for the reserve is not in operation, the Director must manage the reserve according to the management principles of the IUCN category most recently assigned to the reserve More information can be found at DEWHA, Commonwealth Heritage, web page. 247 EPBC Act, s 341W. 248 EPBC Regulations, Schedule 7B, Commonwealth Heritage management principles. 249 EPBC Act, s 338; EPBC Regulations, Schedule 7, Australian Biosphere reserve management principles. 250 More information can be found at DEWHA, Australia s Biosphere Reserves, web page. 251 EPBC Act, s 346 ff. 252 EPBC Regulations, Schedule 8, Australian IUCN reserve management principles. 253 For a map showing the use of IUCN protected area categories in Australia s National Reserve System, see Parks Australia 2010b. 254 The contents can be found in EPBC Act, s EPBC Act, s EPBC Act, s Control of activities is dealt with in section 14, below. 258 EPBC Act, s IUCN-EPLP No. 81

48 11.7 Commonwealth marine protected areas The Director of National Parks is responsible for managing Commonwealth marine protected areas. In drawing up and implementing management plans, which are valid for a maximum of 10 years, the Director is obliged to have regard to the relevant IUCN categories and the Australian IUCN reserve management principles. 259 Where a management plan is not in force, the Director must act in accordance with the IUCN reserve management principles for the IUCN category that the reserve or zone has most recently been assigned, in the same way as for terrestrial reserves. 260 The management of commercial and recreational fishing 261 and commercial marine tourism activities 262 are of particular importance in many such areas. In addition, petroleum and mineral exploration; tourism; various kinds of marine pollution; introduced species; the collection of fauna such as shells, clams and trepang; and the impact of commercial shipping and low-flying aircraft are among the concerns addressed by the management plan. One of the keys to effective marine protected areas management is to understand the connection between activities onshore and their effects on the marine environment. Effective control mechanisms, the banning of fishing activities in specific areas and the monitoring of marine biodiversity are the main components of effective management. At the Commonwealth, state and territory level, fishing activities are controlled by specific legislation. The Fisheries Management Act 1991 (Commonwealth) 263 requires plans of management to be made for the exploitation and protection of fisheries in Australian waters. The Act refers to Australia s obligations under the United Nations Fish Stocks Agreement (1995) 264 drawn up under the United Nations Convention on the Law of the Sea. Under the provisions of the Fish Stocks Agreement, there is an obligation to protect biodiversity in the marine environment. 265 The Fisheries Management Act contains strong provisions for the control of a wide range of fishing practices, consistent with this obligation Wildlife conservation plans for marine species 135 The EPBC Act provides for the Minister to make wildlife conservation plans for the protection, conservation and management of, inter alia: listed migratory species that occur in Australia or an external territory; listed marine species that occur in Australia or an external territory; species of cetacean that occur in the Australian Whale Sanctuary; and conservation-dependent species. The Minister can also adopt a plan made by a state or territory as a wildlife conservation plan under this legislation EPBC Act, s 348(1); and EPBC Regulations, cl and Schedule EPBC Act, s See Department of the Environment and Water Resources (DEWR), 2007a. 262 See DEWR, 2007b. 263 Fisheries Management Act. 264 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (1995). 265 Fish Stocks Agreement, appended to the Fisheries Management Act. 266 EPBC Act, s 285. IUCN-EPLP No

49 12 Buffer zones There are no direct references to buffer zones in the EPBC Act. However, according to the Commonwealth government s Plans of Management Guidelines, 267 requirements for buffer zones for protected areas are referred to and it states that they are intended to be included in management plans in the future Connectivity conservation While the protection of large areas of land and sea should always be the highest priority of a protected areas system, there is an increasing need to address the fragmentation of biologically significant areas. Keeping protected areas interconnected in the natural landscape has also become an important conservation response. The concept of connectivity conservation is a relatively recent addition to the protected areas lexicon, and represents a new and complementary approach to the conservation of land and sea. IUCN s World Commission on Protected Areas now has a significant focus on largescale connectivity conservation areas, with the recent publication of a global guide on connectivity conservation management. Connectivity conservation is defined as follows: 137 Connectivity conservation is defined using biodiversity conservation criteria, but also includes social and institutional dimensions. Connectivity conservation describes actions taken to conserve landscape connectivity, habitat conductivity, ecological connectivity or evolutionary process connectivity for natural and semi-natural lands that interconnect and embed established protected areas. It may be represented by direct interconnections or by the ecological interconnectedness of disjunct conservation areas. The strong connectedness of people to natural and semi-natural connectivity lands is also recognized. This connection of people (and their groups and institutions) to land, combined with a shared conservation vision and actions such as communication, cooperation, collaboration and partnerships offer significant means for facilitating connectivity conservation outcomes. 268 Although the definition is focused on the conservation of biodiversity, the social aspects of such conservation are also recognized as very important. Box 10: A continental-scale lifeline to engage people with nature The Department of Environment, Climate Change and Water (New South Wales), describes the Alps to Atherton Initiative as follows: The Great Eastern Ranges Initiative is a globally significant and internationally recognised program that will help people, plants and animals adapt to future environmental threats by maintaining, improving and reconnecting islands of natural vegetation along the Great Eastern Ranges. These ranges are 2800 km long and extend from the Australian Alps north of Melbourne, Victoria to the Atherton Tablelands to the west and north of Cairns in far north Queensland. DECCW will work with a wide range of voluntary partners to improve the conservation management and connectivity of these natural areas. Source: Department of Environment, Climate Change and Water (New South Wales), In the Australian context, there are no direct references to connectivity corridors in the EPBC Act. However, a good deal of work has been done on connectivity corridors in Australia. For example, a corridor is proposed for the Eastern Australian Great Escarpment, between Cairns and the Victorian Commonwealth of Australia, undated. 268 Worboys et al., 2010, p. xxxi. 49 IUCN-EPLP No. 81

50 border, spanning some 2,800 km (see Box 10). 269 Known as the Alps to Atherton (A2A) Initiative, this major connectivity conservation initiative is seen to provide very significant benefits for biodiversity conservation and protected areas in eastern Australia. 270 It represents an adaptive response to climatecaused biome shifts and aims to conserve more than 8,257 vascular plants, 1,235 animal species and the richest concentrations of wildlife in Australia. It helps to provide essential ecological services to 93 per cent of Australia s east-coast population and 74 per cent of the country s total population, including potable water for four capital cities and several hundred other cities and towns. It is seen as important for Indigenous peoples as well, since it includes multiple Aboriginal dreaming tracks. It is also of significance for non-indigenous Australians, containing the routes of early explorers, and is associated with a range of cultural attributes, such as stories, adventures and histories The institutional arrangements for the A2A initiative involve an inter-agency working group from the five jurisdictions involved: the states of New South Wales, Queensland and Victoria, the Australian Capital Territory, and the Commonwealth government, under the auspices of the Environment Protection and Heritage Council. 272 The issue of how legislative changes can promote connectivity conservation is yet to be addressed collectively or individually by these governments. However, connectivity is mentioned several times in the 2009 review of the EPBC Act, where it is recommended that the Act be amended to include ecosystems of national significance as a new matter of national environmental significance. It states that the matter protected should be the ecological character of a listed ecosystem, and that the criteria used to identify ecosystems should include that the ecosystem is of significant national value for one or more reasons, including that it contains high-value areas that create connectivity between other ecosystems. 273 According to the National Reserve System Plans of Management Guidelines, 274 requirements for corridors for protected areas are to be provided for in the future. In order to adequately address connectivity conservation across state and territory boundaries, negotiations such as those involved in the A2A initiative will require complementary legislation at the state, territory and Commonwealth levels in the future. 14 Controlling activities within protected areas 141 A wide range of activities are conducted in Australia s protected areas. One factor to be considered in this context is that a significant part of the country s income is generated by tourism, 275 and that the country s national parks and reserves are among its main tourist attractions. The most popular activities are bushwalking, wildlife tours, camping, kayaking and river cruises. Terrestrial and marine protected areas are enjoyed by foreign and local visitors alike. A significant number of these places are also important for Australian Indigenous peoples, and these communities and individual traditional owners are increasingly involved in protected areas management. Well-known areas such as the Great Barrier Reef, and the Uluru Kata Tjuta, Kakadu and Blue Mountains National Parks are environmentally 269 See Pulsford et al., For a map of the Alps to Atherton Initiative, see Department of Environment and Climate Change (New South Wales), 2007, p Summarized from Worboys et al., 2010, p Worboys et al., 2010, p Commonwealth of Australia 2009c, p Commonwealth of Australia, undated. 275 Total international and national tourist consumption figures are in the order of $8 billion per annum; see Australian Bureau of Statistics, IUCN-EPLP No

51 impacted by fishing, bushwalking, climbing and other outdoor activities. The threat of annual fires is also a major issue in most parks and reserves. One of the most important management challenges for Australia s protected areas regime is to address both the need for recreation activities by users of protected areas and the environmental and cultural impact of these activities. It is therefore crucial to secure close cooperation between protected areas management authorities and tourism industry operators and user groups, to minimize the effects of recreational activities on protected areas, while not limiting the tourism industry and activities by individuals and groups more than necessary Controlling activities in Commonwealth reserves Activities in Commonwealth reserves can be controlled in a number of ways. As indicated above, a Proclamation must assign the reserve to a particular IUCN category, and that assignment affects how the reserve is managed and used. 277 In general, activities cannot be conducted in a Commonwealth reserve unless permitted by a management plan. If no management plan is in place, the reserve must nevertheless be managed in a way that is appropriate for the category it has been assigned by Proclamation or by an earlier management plan. 142 Box 11: Controlling activities in a Commonwealth reserve Section 356 of the EPBC Act provides for regulations to control the following activities in Commonwealth reserves: pollution of soil, air or water in a manner that is, or is likely to be, harmful to people, biodiversity, heritage or the natural features of Commonwealth reserves; tourism; protection and preservation of Commonwealth reserves and property and things in Commonwealth reserves; protection and conservation of biodiversity in Commonwealth reserves; access to all or part of a Commonwealth reserve; removal of trespassers; camping; public safety; use of fire; trade or commerce within a Commonwealth reserve; use of vehicles, removal and impounding of vehicles, aircraft or vessels from places where they have been left in contravention of the regulations or have been abandoned; use of vessels in, and the passage of vessels through, Commonwealth reserves; landing and use of aircraft in, and flying aircraft over, Commonwealth reserves; giving effect to management plans for Commonwealth reserves; taking of animals or plants into or out of Commonwealth reserves; impounding, removal, destruction or disposal of animals found straying in Commonwealth reserves; taking into Commonwealth reserves, and using in Commonwealth reserves, weapons, traps, nets, snares, fishing apparatus and other devices; laying of bait and the use of explosives and poisons; collection of specimens and the pursuit of research for scientific purposes; licences, permits and authorities relating to activities in Commonwealth reserves, conditions subject to which they are issued, and the charging of fees; and any matter incidental to or connected with a matter described in section See Commonwealth of Australia, 2004; and Australian Heritage Commission, EPBC Act, s 342 ff. 51 IUCN-EPLP No. 81

52 143 The EPBC Act states: (1) A person must not do one of the following acts in a Commonwealth reserve except in accordance with a management plan in operation for the reserve: (a) kill, injure, take, trade, keep or move a member of a native species; or (b) damage heritage; or (c) carry on an excavation; or (d) erect a building or other structure; or (e) carry out works; or (f) take an action for commercial purposes The EPBC Act provides for detailed regulations to be made for specific activities, in addition to the provisions concerning the restrictions imposed by virtue of the IUCN categories (see Box 11). The Director of Parks has specified powers to prohibit or control specific activities, and to issue permits for activities that are otherwise prohibited. 279 The Director performs these functions and exercises powers in accordance with the management plan and relevant decisions of the board of management of the particular reserve. 280 Control of mining operations is also provided for. Mining cannot be carried out except in accordance with a management plan in operation for the reserve. 281 Mining is completely prohibited in Kakadu National Park 282 and in the Antarctic. 283 Prior use rights held immediately before a property was included in a Commonwealth reserve are generally recognized. 284 Box 12: Indigenous use in Commonwealth reserves Section 359A of the EPBC Act provides: 359A Traditional use of Commonwealth reserves by indigenous persons (1) This Division and regulations made for the purposes of this Division do not prevent an indigenous person from continuing in accordance with law the traditional use of an area in a Commonwealth reserve for: (a) hunting or food-gathering (except for purposes of sale); or (b) ceremonial and religious purposes. (2) However, regulations made for the purposes of this Division do affect an indigenous person s traditional use of an area in a Commonwealth reserve if they: (a) are made for the purpose of conserving biodiversity in the area; and (b) expressly affect the traditional use of the area by indigenous persons. 146 The EPBC Act includes special provisions relating to the traditional use of Commonwealth reserves by Indigenous peoples (see Box 12). 285 The EPBC Regulations also provide for the authorization of activities by Indigenous peoples, by agreement between the Director of Parks and the relevant Aboriginal land council. These include entering an area to which access is restricted or prohibited; taking or keeping an organism that is a member of a native species; using a vehicle, vessel or aircraft in an area where such use would otherwise be prohibited; taking a dog into a Commonwealth reserve; taking firewood from a Commonwealth reserve; and carrying out a cultural activity in a Commonwealth reserve EPBC Act, s 354(1). 279 EPBC Regulations, Division See for example Director of National Parks, 2007, p EPBC Act, s 355 ff. 282 EPBC Act, s See Antarctic Treaty (Environment Protection) Act, ss 19A and 19B. 284 EPBC Act, s EPBC Act, s 359A. 286 EPBC Regulations, cl IUCN-EPLP No

53 The Minister may also issue conservation orders to restrict or prohibit specified actions in a Commonwealth area, or to require specified parties to act in order to protect listed threatened species or ecological communities Controlling activities in other protected areas Some protected areas within the boundaries of the states and territories also come under the jurisdiction of the Commonwealth government if they are listed under conventions to which Australia is a party, particularly the World Heritage Convention and the Ramsar Convention. Areas listed under these conventions are covered by the IUCN reserve management principles set out in the EPBC Regulations. The Commonwealth government can take enforcement action against individuals or corporations in relation to offences concerning activities taking place within the states and territories, if the activities involve a transgression of Australia s international obligations. 288 In addition, such areas can be protected through conservation agreements (see Box 13). 148 Box 13: Conservation agreements Section 305 of the EPBC Act provides: 305 Minister may enter into conservation agreements (1) The Minister may, on behalf of the Commonwealth, enter into an agreement (a conservation agreement) with a person for the protection and conservation of all or any of the following: (a) biodiversity in the Australian jurisdiction; (b) the world heritage values of a declared World Heritage property in the Australian jurisdiction; (c) the National Heritage values of a National Heritage place; (d) the Commonwealth Heritage values of a Commonwealth Heritage place (whether inside or outside the Australian jurisdiction); (e) the ecological character of a declared Ramsar wetland in the Australian jurisdiction; (f) the environment, in respect of the impact of a nuclear action in the Australian jurisdiction; (g) the environment in a Commonwealth marine area in the Australian jurisdiction; (h) the environment on Commonwealth land in the Australian jurisdiction. 15 Environmental impact assessment The EPBC Act provides a comprehensive set of procedures for the environmental impact assessment of actions controlled under the legislation. The Act specifies that it is an offence to carry out actions without the approval of the Minister if such actions have, will have or are likely to have a significant impact on a matter of national environmental significance. The relevant matters include, as indicated above, World Heritage properties, National Heritage, wetlands of international significance, listed threatened species and communities, listed migratory species, Commonwealth marine areas and the Great Barrier Reef. A key obligation of state and territory governments and their agencies, local governments, Commonwealth agencies, developers proposing an action, and private persons is to refer any actions that might have a significant impact on matters of national environmental significance to the Minister for EPBC Act, s 463 ff; Commonwealth areas are defined in s 525 and include (in summary): land owned or leased by the Commonwealth or a Commonwealth agency and airspace over the land; land in an external territory; the coastal sea of Australia or an external territory; the continental shelf, and the waters and airspace over the continental shelf; the waters of the exclusive economic zone, the seabed under those waters and the airspace above those waters; any other area of land, sea or seabed that is included in a Commonwealth reserve. 288 The question of enforcement is dealt with in section 16 below. 53 IUCN-EPLP No. 81

54 approval. The Minister must decide whether to approve that action or if further environmental impact assessment is needed. 289 The EPBC Act provides that an assessment may be coordinated using a process laid down under a bilateral agreement, 290 a process specified in a declaration by the Minister, a state or territory environmental impact assessment process accredited by the Minister, information included in the referral to the Minister, preliminary documentation provided by the proponent, a public environment report, an environmental impact statement, or a public inquiry. Once the report of the assessment is given to the Minister, he or she must decide whether or not to approve the action, and what conditions to attach to any approval. However, the Minister cannot overturn decisions of state or local governments on matters that are not classified as matters of national environmental significance. 16 Enforcement 151 Enforcement processes under the EPBC Act can take place under either criminal or civil procedures. The primary difference between criminal and civil enforcement is that the standard of proof for civil enforcement is lower, which generally means that it is easier to obtain a conviction. For criminal prosecutions, the case must be proved beyond reasonable doubt. For civil enforcement, the standard of proof is on the balance of probabilities Criminal offences and penalties There are a wide range of offences specified in the EPBC Act concerning various protected area categories. 291 The offence provisions follow a common pattern and carry similar criminal penalties. The World Heritage criminal offence and penalty provisions are typical, and listed in Box 14. Section 15A(2A) specifies the standard in cases where strict liability is imposed in relation to World Heritage properties. A note within this section refers to the fact that, in relation to the matters in this subsection, the defendant bears an evidential burden as set out in the Commonwealth Criminal Code. 292 When strict liability is imposed, the evidentiary burden changes, so that the defendant must prove his or her innocence, rather than the prosecution having to prove guilt beyond reasonable doubt. The penalty units mentioned in section 15A(3) refer to a monetary fine, the level of which is set from time to time through regulations. The use of regulations in this respect is a regular drafting practice to cope with economic inflation and avoids having to amend all relevant legislation that includes monetary penalties. Regulations are more easily changed as they generally do not need to be debated in Parliament. The provisions of the EPBC Act relating to protected areas are enforced by wardens, rangers and inspectors. They are appointed by the Minister and are usually police officers, or officers and employees of government departments. Members of the Australian Federal Police as well as Customs officers 289 EPBC Act, ss EPBC Act, s 66. A bilateral agreement in this context is an agreement between the Commonwealth government and a state or territory government which sets out the responsibilities for the conduct of environmental impact assessment; see EPBC Act, ss 11 and 29; see also section 7.1 above. 291 Criminal enforcement provisions for each category commence at the following sections of the EPBC Act: s 15A (World Heritage); s 15C (National Heritage); s 17B (Ramsar wetlands); s 18A (threatened species); s 20A (listed migratory species); and s 24A (marine areas). 292 See Commonwealth Criminal Code, s 6.1 on strict liability. IUCN-EPLP No

55 can act as wardens, rangers and inspectors ex officio. 293 In order to monitor compliance with the provisions of the Act, a wide range of actions, such as the use of electronic equipment in private and public premises, is available to officers for the purpose of investigation. Furthermore, they are given the power to board vessels, aircraft or vehicles; access and search premises; seize objects; and arrest suspects. 294 Box 14: Criminal offences related to World Heritage properties Section 15A of the EPBC Act provides: 15A Offences relating to declared World Heritage properties (1) A person is guilty of an offence if: (a) the person takes an action; and (b) the action results or will result in a significant impact on the world heritage values of a property; and (c) the property is a declared World Heritage property. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (1A) Strict liability applies to paragraph (1) (c). Note: For strict liability, see section 6.1 of the Criminal Code. (2) A person is guilty of an offence if: (a) the person takes an action; and (b) the action is likely to have a significant impact on the world heritage values of a property; and (c) the property is a declared World Heritage property. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (2A) Strict liability applies to paragraph (2) (c). Note: For strict liability, see section 6.1 of the Criminal Code. (3) An offence against subsection (1) or (2) is punishable on conviction by imprisonment for a term not more than 7 years, a fine not more than 420 penalty units, or both Civil enforcement: transgressions and penalties In addition to criminal enforcement provisions, the EPBC Act contains provisions for civil enforcement with respect to each of the protected area categories. These provisions follow a typical pattern: a civil penalty is imposed where an action is taken without meeting the requirement for approval of activities with a significant impact on a particular category of property. 295 The relevant World Heritage provisions are set out in Box 15 as an example. To date, few civil proceedings have been launched by the government with respect to protected areas under the EPBC Act. The case of Minister for the Environment & Heritage v Greentree 296 remains the most significant. In this case, a landholder in Queensland, when clearing a large tract of land for grazing purposes, bulldozed a listed Ramsar wetland. The defendants were proceeded against civilly for taking an action which had a significant impact on the ecological character of a declared Ramsar wetland under section 16 of the EPBC Act, found guilty, and fined a total of $450,000 plus costs. The EPBC Act also includes provisions concerning enforcement of the legislation by an interested person. An interested person may include an individual or an organization outside the government EPBC Act, s 39 ff. 294 EPBC Act, s 403 ff. 295 Civil enforcement provisions for each category commence at the following sections of the EPBC Act: s 12 (World Heritage); s 15B (National Heritage); s 16 (Ramsar wetlands); s 20 (listed migratory species); s 23 (marine environment); and s 24B (Great Barrier Reef Marine Park). 296 Minister for the Environment & Heritage v Greentree (No 3) [2004] FCA 1317 (14 October 2004). 55 IUCN-EPLP No. 81

56 whose interests are affected. Either may apply to the Federal Court for a prohibitory or mandatory injunction to stop any activity that may be an offence or which constitutes a contravention of the legislation. 297 Several major organizations have undertaken enforcement actions pursuant to these provisions. They include the Environmental Defenders Office 298 and Humane Society International. 299 Box 15: Civil penalties related to World Heritage properties Section 12 of the EPBC Act provides: 12 Requirement for approval of activities with a significant impact on a declared World Heritage property (1) A person must not take an action that: (a) has or will have a significant impact on the world heritage values of a declared World Heritage property; or (b) is likely to have a significant impact on the world heritage values of a declared World Heritage property. Civil penalty: (a) for an individual 5,000 penalty units; (b) for a body corporate 50,000 penalty units. 17 Finance The main revenue sources for protected areas at the Commonwealth level are appropriations from annual budgets. At the state level, finance provisions vary considerably. 300 Funds are also derived from entrance fees. Parks Australia manages three parks that attract large numbers of visitors each year: in 2009, Booderee National Park south of Sydney and Uluru Kata Tjuta National Park in central Australia both attracted some 400,000 visitors, while Kakadu National Park attracted over 200,000. Booderee and Uluru Kata Tjuta charge entrance fees, while Kakadu abolished them in Meanwhile, the Great Barrier Reef Marine Park Authority requires commercial tourism operators to pay an environmental management charge, which is included in the fees charged to tourists. The charge applies to tourist operations, aquaculture activities, vessel chartering and vending operations, the discharge of sewage, and the operation of resorts. 301 Other revenues include charges paid in respect of leases, permits and licences related to protected areas; and any other money received by the Director of National Parks in the performance of the Director s functions See EPBC Act, s For example, see Booth v Bosworth [2001] FCA 1453 (17 October 2001), concerning the protection of the World Heritage values of the Wet Tropics World Heritage Area. 299 Humane Society International v Kyodo Senpaku Ltd [2006] FCAFC 116 (14 July 2006); and subsequent orders, Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2008] FCA 3 (15 January 2008), concerning the taking of whales in the Australian Whale Sanctuary. 300 One innovative scheme worth noting is that in the state of Victoria: Parks Victoria derived 43% of its total income of AUD 137 million in from an annual parks charge levied on residential and commercial properties throughout greater Melbourne. The parks charge funds the development and management of a network of regional parks, gardens, trails, waterways, bays and other significant recreation and conservation assets within the greater metropolitan area. The parks charge has been included on the water, sewerage and drainage bills issued to domestic and non-domestic properties since The amount charged is based on the net annual value of commercial and residential properties, with a minimum charge of just over AUD 50 for the majority of ratepayers (Organisation for Economic Co-operation and Development [OECD], 2007, p. 83). 301 For further details, see Great Barrier Reef Marine Park Authority, Environmental Management Charge, web page; see also Worboys et al., 2005, p A summary of protected areas revenues can be found in OECD, 2007, p. 83. IUCN-EPLP No

57 All revenues are paid into the Australian National Parks Fund established under the EPBC Act. 303 The money in the fund may only be applied to meet costs, expenses and other obligations incurred by the Director in the performance of the Director s functions. As noted above, the Director s functions include the management of Commonwealth reserves, as well as the range of duties set out in section 514B of the EPBC Act (see Box 7). Under these provisions, the Director may contribute to the protection, conservation and management of biodiversity and heritage in areas outside Commonwealth reserves and conservation zones. The Fund is further applied to any remuneration, allowances and compensation payable in relation to the management of Commonwealth reserves. 304 Equally important are the investments by the Commonwealth government in the National Reserve System. Under this system, a partner organization can purchase property and manage it for conservation, while the government provides up to two thirds of the purchase price. 305 Other funding programmes include the National Heritage Investment Initiative and the Indigenous Heritage Programme Conclusion While Australia now has over 9,000 terrestrial legally protected areas at Commonwealth, state and territory level, representing 11.6 per cent of Australia s terrestrial area, the nation continues to face major issues concerning biodiversity conservation. The Organisation for Economic Co-operation and Development Environmental Performance Review of 2007 observed that considerable gaps remain in the representation of ecosystem types. 307 The Strategy for Australia s National Reserve System notes: 163 Our biodiversity continues to decline, and many important ecological processes and threats operate at scales larger than individual protected areas. Climate change, along with invasive species, land use change and altered landscape hydrology, presents a major challenge for biodiversity conservation planning in Australia. While we need to accelerate our efforts to expand and better manage Australia s National Reserve System, some of these threats will be best addressed at multiple scales local, regional and landscape through collaborative approaches that better coordinate conservation and management efforts on public and private lands. 308 The Strategy specifies the following national targets for the National Reserve System: examples of at least 80 per cent of all regional ecosystems in each bioregion by 2015; examples of at least 80 per cent of all regional ecosystems in each subregion by 2025; core areas for the long-term survival of threatened ecosystems and threatened species habitats in each of Australia s bioregions by 2030; and critical areas for climate change resilience, such as refugia, to act as core lands in broader landscapescale approaches to biodiversity conservation by The Strategy indicates that state and territory governments will prepare five-year plans to implement the Strategy EPBC Act, s 514R ff. 304 EPBC Act, s 514T. 305 Instructions for business plans and investment proposals, and information on funding under the National Reserve System can be accessed at DEWHA, Applying for funding, web page. 306 For further information, see DEWHA, Heritage grants and funding, web page. 307 OECD, 2007, p Commonwealth of Australia, 2009b, p Commonwealth of Australia, 2009b, p Commonwealth of Australia, 2009b, p IUCN-EPLP No. 81

58 Over the last two decades, with the initiation of the Intergovernmental Agreement on the Environment, concluded in 1992, together with subsequent agreements, and further work by the Council of Australian Governments, a more integrated approach has been forged between Commonwealth, state and territory governments. The cooperative arrangements now in place have resulted, amongst other things, in the National Reserve System, which should lead to more common management approaches being adopted by governmental agencies across Australia. In relation to the marine environment, Australia has made some important additions over the last few decades, and is implementing the National Representative System of Marine Projected Areas, covering over 10 per cent of Australia s exclusive economic zone. 311 If the Coral Sea Conservation Zone established in 2009 becomes a declared Commonwealth reserve, the total area of protected waters will be considerably increased. Taken as a whole, the Commonwealth, state and territory legislative and institutional framework represents a relatively strong and comprehensive regime for the establishment, conservation and management of both terrestrial and marine protected areas. Representatives of the various national parks and wildlife agencies around Australia now meet on a regular basis and cooperate in a wide range of endeavours. However, it is clear that despite these cooperative arrangements, as reflected in the EPBC Act with regard to biodiversity and the coordinated management of terrestrial and marine protected areas, new approaches are needed. The Strategy for Australia s National Reserve System demands a more closely integrated legislative and institutional national, state and territory regime. Further, the new paradigm of connectivity conservation requires strong legislative support at federal, state and territory level. The 2009 review of the EPBC Act provides a good deal of promise for new approaches, and it is to be hoped that its recommendations will be acted on in the not-too-distant future. 311 DEWHA, 2008b; OECD, 2007, p. 86. IUCN-EPLP No

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64 vulnerability of Australia s biodiversity to climate change. A report to the Natural Resource Management Ministerial Council commissioned by the Australian government. CSIRO Publishing. Available at biodiversity-vulnerability-assessment-lowres.ashx. Taylor, Lenore Rudd resurrects plan to take Japan to international court over whaling. Sydney Morning Herald, May 1. Online: Thompson, P Bob Brown of the Franklin River. Sydney: Allen & Unwin. United Nations Educational, Scientific and Cultural Organisation (UNESCO) Operational Guidelines for the Implementation of the World Heritage Convention. Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage. WHC. 08/01. Available at Weeds Australia Weed management guide: Mimosa. Available at Wet Tropics Management Authority (WTMA) Protection Through Partnerships. Available at Involvement of Rainforest Aboriginal People in WTMA Policy, Planning, Permitting and Management. Policy Statement 14. Available at policy14_aboriginal_participation.pdf.. (Undated a). Laws and Policies Protecting the World Heritage Area, online (Undated b.) What is the World Heritage Convention? (map), online Worboys, Graeme, Michael Lockwood and Terry De Lacy Protected Area Management. 2nd edition. South Melbourne: Oxford University Press. Worboys, Graeme, Wendy Francis and Michael Lockwood Connectivity Conservation Management: A Global Guide. London: Earthscan. Web sites Antarctic Protected Areas Information Archive. Home page, [Last updated: 15 December 2006.] Australian Capital Territory Department of Territory and Municipal Services. Home page, Australian Antarctic Division. Home page, Commonwealth of Australia. Welcome to Caring for our Country, [Last updated: 10 March 2010.] Department of Environment and Conservation (Western Australia). Home page, IUCN-EPLP No

65 Department of Natural Resources, Environment, The Arts and Sport (Northern Territory). Home page, Department of the Environment, Water, Heritage and the Arts (DEWHA). Home page, Applying for funding, [Last updated: 23 March 2010.]. Ashmore Reef National Nature Reserve and Cartier Island Marine Reserve, [Last updated: 08 January 2010.]. Australia s Biosphere Reserves, [Last updated: 19 February 2010.]. Bilateral agreements, [Last updated: 18 August 2009.]. Biological Diversity Advisory Committee, index.html. [Last updated: 10 December 2009.]. Booderee National Park, [Last updated: 24 March 2010.]. Booderee National Park Management Plan, management-plan.html. [Last updated: 29 July 2009.]. Cod Grounds Commonwealth Marine Reserve, [Last updated: 07 December 2009.]. Commonwealth Heritage, [Last updated: 11 January 2010.]. Commonwealth Heritage List, [Last updated: 11 January 2010.]. Conservation organisations, index.html. [Last updated: 02 July 2009.]. Coordinating the National Reserve System, index.html. [Last updated: 10 July 2008.]. Coringa-Herald National Nature Reserve, [Last updated: 19 March 2010.]. Declared Indigenous Protected Areas, [Last updated: 06 January 2010.]. Elizabeth and Middleton Reefs Marine National Nature Reserve, coasts/mpa/elizabeth/index.html. [Last updated: 07 December 2009.]. Find Australian places on the World Heritage List, world/index.html. [Last updated: 27 January 2009.] 65 IUCN-EPLP No. 81

66 . Full list of places on the National Heritage List, list.html. [Last updated: 18 June 2008.]. Great Australian Bight Marine Park (Commonwealth Waters), mpa/gab/index.html. [Last updated: 29 June 2009.]. Heard Island and McDonald Islands Marine Reserve, heard/index.html. [Last updated: 29 June 2009.]. Heritage grants and funding, [Last updated: 27 January 2010.]. History of the National Reserve System, [Last updated: 02 July 2009.]. Indigenous Advisory Committee, [Last updated: 01 December 2009.]. Indigenous Protected Areas, [Last updated: 05 March 2010.]. Kakadu National Park, [Last updated: 05 March 2010.]. Lease Agreements, [Last updated: 20 January 2010.]. Lihou Reef National Nature Reserve, [Last updated: 19 March 2010.]. Lord Howe Island Marine Park (Commonwealth Waters), lordhowe/index.html. [Last updated: 07 December 2009.]. Macquarie Island Commonwealth Marine Reserve, macquarie/index.html. [Last updated: 29 June 2009.]. Management of Australia s World Heritage listed places, about/world/managing.html. [Last updated: 24 April 2008.]. Management plans for National Heritage places, national/plans/index.html. [Last updated: 06 May 2008.]. Management, targets and monitoring for National Reserve System protected areas, [Last updated: 18 January 2010.]. Marine Protected Areas, [Last updated: 08 December 2009.]. Mermaid Reef Marine National Nature Reserve, index.html. [Last updated: 08 January 2010.]. Ningaloo Marine Park (Commonwealth Waters), index.html. [Last updated: 08 January 2010.]. Protected area management agencies in Australia and New Zealand, au/parks/hoa.html. [Last updated: 23 April 2009.] IUCN-EPLP No

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68 Legal instruments Most legal instruments discussed in this case study are available online. Readers may locate the full text on the ECOLEX web site ( using the identification codes indicated below, or at the URL provided. Commonwealth Acts Antarctic Marine Living Resources Conservation Act 1981 Antarctic Treaty (Environment Protection) Act 1980 Australian Heritage Commission Act 1975 (repealed) Australian Heritage Council Act 2003 Coastal Waters (Northern Territory Title) Act 1980 Coastal Waters (State Title) Act 1980 (Commonwealth) LEX-FAOC LEX-FAOC LEX-FAOC LEX-FAOC LEX-FAOC LEX-FAOC Commonwealth of Australia Constitution Act d797364ca256f9d0078c087/$FILE/ConstitutionAct.pdf Environment Protection (Impact of Proposals) Act 1974 (repealed) Environment Protection and Biodiversity Conservation Act 1999 Fisheries Management Act 1991 Great Barrier Reef Marine Park 1975 National Parks and Wildlife Conservation Act 1975 (repealed) Wet Tropics of Queensland World Heritage Area Conservation Act 1994 World Heritage Properties Conservation Act 1983 (repealed) LEX-FAOC LEX-FAOC LEX-FAOC LEX-FAOC LEX-FAOC LEX-FAOC LEX-FAOC State and Territory Acts Conservation and Land Management Act 1984 (Western Australia) Fisheries Management Act 1994 (New South Wales) Marine Parks Act 1997 (New South Wales) Marine Parks Act 2004 (Queensland) Marine Parks Act 2007 (South Australia) National Parks Act 1975 (Victoria) LEX-FAOC LEX-FAOC LEX-FAOC LEX-FAOC LEX-FAOC LEX-FAOC IUCN-EPLP No

69 National Parks and Reserves Management Act 2002 (Tasmania) National Parks and Wildlife Act 1972 (South Australia) National Parks and Wildlife Act 1974 (New South Wales) Nature Conservation Act 1980 (Australian Capital Territory) Nature Conservation Act 1992 (Queensland) Territory Parks and Wildlife Conservation Act 1976 (Northern Territory) Wet Tropics World Heritage Protection and Management Act 1993 (Queensland) Wilderness Act 1987 (New South Wales) LEX-FAOC LEX-FAOC LEX-FAOC LEX-FAOC LEX-FAOC LEX-FAOC LEX-FAOC LEX-FAOC Commonwealth Regulations Environment and Biodiversity Conservation Regulations 2000 LEX-FAOC State and Territory Regulations Fisheries Management (Aquatic Reserves) Regulation 1995 (repealed) (NSW) Marine Parks (Zoning Plans) Regulation 1999 (NSW) Marine Parks Regulation 2009 (NSW) National Parks and Wildlife Regulation 2009 (NSW) LEX-FAOC LEX-FAOC LEX-FAOC LEX-FAOC Other instruments Agreement between the Commonwealth of Australia and the State of New South Wales under Section 45 of the Commonwealth Environment Protection And Biodiversity Conservation Act 1999 Relating to Environmental Impact Assessment (1997) Heads of agreement on Commonwealth and State roles and responsibilities for the Environment (1997) Intergovernmental Agreement on the Environment (1992) Management scheme intergovernmental agreement for the Wet Tropics of Queensland World Heritage Area (1990) 69 IUCN-EPLP No. 81

70 Cases Booth v Bosworth [2001] FCA 1453 (17 October 2001) Commonwealth of Australia v State of Tasmania [1983] HCA 21; (1983) 158 CLR 1 (1 July 1983) Humane Society International v Kyodo Senpaku Ltd [2006] FCAFC 116 (14 July 2006) Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2008] FCA 3 (15 January 2008) Minister for the Environment & Heritage v Greentree (No 3) [2004] FCA 1317 (14 October 2004) Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133 (24 March 2006) COU COU COU COU COU COU International treaties and agreements Agreed Measures for the Conservation of Antarctic Fauna and Flora (1964) Agreement between the Government of Australia and the Government of Japan for the Protection of Migratory Birds in Danger of Extinction and their Environment (1974) Agreement between the Government of Australia and the Government of the People s Republic of China for the Protection of Migratory Birds and their Environment (1986) Agreement between the Government of Australia and the Government of the Republic of Korea on the Protection of Migratory Birds (2007) Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (1995) Antarctic Treaty (1959) Convention Concerning the Protection of the World Cultural and Natural Heritage (1972) Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (1986) Convention on Biological Diversity (1992) Convention on Conservation of Nature in the South Pacific (1976) TRE TRE TRE TRE TRE TRE TRE TRE TRE TRE IUCN-EPLP No

71 Convention on International Trade in Endangered Species of Wild Fauna and Flora (1973) Convention on the Conservation of Antarctic Marine Living Resources (1980) Convention on the Conservation of Migratory Species of Wild Animals (1979) Convention on Wetlands of International Importance, especially as Waterfowl Habitat (1971) Protocol on Environmental Protection to the Antarctic Treaty (1991) United Nations Convention on the Law of the Sea (1982) United Nations Framework Convention on Climate Change (1992) TRE TRE TRE TRE TRE TRE TRE IUCN-EPLP No. 81