Independent review of the Environment Protection and Biodiversity Conservation Act 1999: interim report
http://www.environment.gov.au/epbc/review/publications/interim-report.html
Chapter 14: Protected Areas
Key points
· The EPBC Act provides for the establishment of protected areas.
· The National Reserve System (NRS), which currently includes more than 9,000 protected areas, is not an identified category of ‘protected area’ under the EPBC Act. It is, however, an Australian Government program that plays an important role in managing Australia’s biodiversity.
· The NRS is made up of Commonwealth reserves declared under the EPBC Act, State and Territory national parks and other reserves, Indigenous lands and private land managed for conservation purposes.
· Protected areas are an important component in meeting the Act’s biodiversity conservation objectives but are not currently regarded as a matter of national environmental significance (NES).
· There is general support for current protected area strategies. There is room for more linkages between protected area strategies and other biodiversity protection mechanisms.
Commonwealth reserves and conservation zones
Current provisions of the Act
14.1 Under the Act, the Governor-General can proclaim Commonwealth reserves over certain areas of land or sea.[1] The Act requires a Commonwealth reserve proclamation to state the purpose for which the reserve is declared and to assign the reserve to one of seven International Union for Conservation of Nature (IUCN) protected area categories.[2]
14.2 Under the Act, a Commonwealth area outside a Commonwealth reserve can be proclaimed a ‘conservation zone.’[3] The purpose of proclaiming a conservation zone is to provide interim protection for biodiversity and other natural features and heritage in the area while it is being assessed for possible inclusion in a Commonwealth reserve.
14.3 Responsibility for Commonwealth reserves and conservation zones is the function of the Director of National Parks, which is a statutory authority established under the Act.
14.4 While ‘protected areas’ are not currently regarded as a matter of NES under the Act, the Act seeks to protect the environment by prohibiting actions that have not been approved or authorised under the Act, and which:
· have, will have or are likely to have a ‘significant impact’ on a matter of NES; or
· are taken on Commonwealth land and have, will have or are likely to have a ‘significant impact’ on the environment; or
· are proposed to be taken by the Commonwealth or a Commonwealth agency and have, will have or are likely to have a ‘significant impact’ on the environment.
14.5 In this respect, ‘protected areas’ are afforded some level of protection through other matters of NES, including heritage values, wetlands of international importance and threatened species.
13.1 There are currently 35 Commonwealth reserves established under the EPBC Act:
· six national parks;
· two botanic gardens; and
· 27 marine reserves.
14.7 Two conservation zones are currently established under the Act. One adjoins the Heard Island and Macdonald Islands Marine Reserve. The second comprises most of the Coral Sea Territory east of the Great Barrier Reef Marine Park (GBRMP).
14.8 The EPBC Act prohibits certain actions being taken in a Commonwealth reserve unless it is in accordance with a management plan made in operation for that reserve under the Act. [4] These actions are:
· killing, injuring, taking, trading, keeping or moving a member of a native species;
· damaging heritage;
· carrying on an excavation;
· erecting a building or other structure;
· carrying out works; or
· taking an action for commercial purposes.
14.9 Additionally, the Act (ss.355 and 355A) prohibits mining operations except in accordance with a management plan.[5] When a management plan is not in operation, approval may be given for these actions to continue until a management plan comes into effect.[6]
14.10 The EPBC Regulations (Division 12.2) control, or allow the Director to control, a range of activities in Commonwealth reserves, such as camping, use of vehicles and vessels, littering, commercial activities, commercial fishing, recreational fishing and research.
14.11 Provisions of the EPBC Act and Regulations dealing with activities in Commonwealth reserves do not prevent Indigenous people from continuing their traditional use of an area in a reserve for hunting or gathering (except for purposes of sale) or for ceremonial and religious purposes.[7] The Act also states that it does not affect the operation of s.211 of the Native Title Act 1993, which provides that holders of native title rights covering certain activities do not need authorisation required by other laws to engage in those activities.[8]
14.12 The EPBC Act requires that the Director of National Parks develop a management plan for each Commonwealth reserve and must exercise powers and functions to give effect to that management plan. Management plans must provide for the protection and conservation of the reserve and must be consistent with the relevant Australian IUCN reserve management principles prescribed in the EPBC Regulations for the IUCN category to which the reserve has been assigned.[9]
14.13 Where a Commonwealth reserve is wholly or partially on Indigenous peoples’ land, the Act requires that there be a Board of Management that has a majority of members nominated by the traditional owners.[10] In these circumstances, the Commonwealth reserve becomes a jointly managed reserve. Further information on the operation of jointly managed reserves is provided in Chapter 17 of this report. Ramsar wetlands are discussed in Chapter 9 of this report and Commonwealth marine reserves are discussed in Chapter 15.
14.14 Activities in conservation zones are regulated by Part 13 of the EPBC Regulations which applies a number of the provisions regulating Commonwealth reserves to conservation zones.[11]
The National Reserve System (NRS)
14.15 The NRS is Australia’s system of terrestrial protected areas. The System represents the outcome of the collective efforts of the Australian Government, State and Territory Governments, conservation groups and Indigenous and non-Indigenous landholders. The NRS is not however a category of ‘protected area’ under the EPBC Act. It is an Australian Government program that plays an important role in managing Australia’s biodiversity.
14.16 The NRS Program was established by the Australian Government to assist with the establishment and maintenance of a comprehensive, adequate and representative (CAR) system of terrestrial reserves in Australia.[12]
14.17 Continuing to build the NRS is also one of six priorities under the Caring for our Country program.[13]
Private conservation and covenanting schemes
14.18 Since 1999 there has been a growth in the private (not-for-profit) sector in land acquisition for biodiversity conservation. There are a number of private bodies active in this field. These bodies are now playing an important role in building a broader platform for biodiversity conservation, to some extent ‘unfettered’ by the various constraints of the public sector.
14.19 These private conservation schemes may seek the Environment Minister’s approval, as a requirement for landholder access to tax incentives.[14] The key characteristics required for tax concessions are that covenants are perpetual, registered on title and protect and manage areas of high conservation value. Requirements are set out in the Guidelines for approval of a conservation covenanting program[15] which [16]were initially developed to assist landholder access income tax incentives provided under the Income Tax Assessment Act. There are currently 12 private covenanting schemes approved by the Environment Minister. These schemes have secured 4,250 covenants representing over 3.5 million hectares of high conservation value areas.
14.20 In addition, many private conservation arrangements provide useful conservation outcomes without being subject to these approval processes – that is, they operate entirely outside of Commonwealth Government oversight.
14.21 While the EPBC Act provides for a covenant to protect National Heritage values on Commonwealth land or Commonwealth heritage values of a place sold or leased[17] and the ability to enter into Conservation Agreements for management of a wide range of activities on private land,[18] the Garner Beach Habitat Action Group argued that the EPBC Act does not currently adequately provide for conservation or nature refuge type covenants.[19] The application of covenanting programs and other mechanisms designed to integrate public and private conservation will be further examined during this review.
Key points raised in public submissions
14.22 Some submissions believed that Australia does not yet have a representative reserve system, especially with respect to freshwater ecosystems.[20] Submissions argued that the Act should also provide for periodic review of management effectiveness of these protected area systems. Freshwater ecosystems, including wild rivers and inland water systems, are further discussed in Chapter 9 of this report.
14.23 The National Parks Australia Council was concerned that a lack of resources for Commonwealth reserves is a major hurdle for their effective management. Further, the Council stated that:
the legislative provisions … retain the emphasis on human usage which is such a marked characteristic of the rest of the Act and do not sufficiently emphasise the management of these reserves for their natural values.[21]
14.24 Submissions suggested that Commonwealth programs supporting the reserve system should be sufficiently flexible to take local circumstances into consideration. The Department of Natural Resources, Environment, the Arts and Sport (Northern Territory) noted that:
in the past, Australia has tended to nominate areas for their natural values. More could be done at the Commonwealth level to develop expertise and experience in identifying and promoting cultural values.[22]
14.25 A number of submissions specifically sought a greater role by the Commonwealth. Other submissions believed that natural heritage processes duplicate National Park and species protection provisions.[23] It was therefore argued that protection of environmental and heritage values should occur where existing legislated protection provisions do not currently exist.
14.26 Some submissions believed that protected areas of true national significance, particularly the CAR reserve system, should be fully funded and planned by the Commonwealth Government.[24]
Indigenous Protected Areas
14.27 A number of submissions acknowledged the success of the Indigenous Protected Area program as an important vehicle in assisting Indigenous people in managing their estates and in recognising Indigenous governance and decision making arrangements.[25] However other submissions suggested that the ability of Indigenous groups to be actively involved in the on-ground implementation and management of plans for conservation agreements was limited. This is further discussed in Chapter 17 of this report.
14.2.3 Discussion of key points
14.28 An independent evaluation of the NRS Program was initiated in 2006 to inform ongoing development of policy frameworks for implementation of current and future natural resource management initiatives.[26]
14.29 This evaluation considered the:
(1) extent to which the NRS Program has contributed to meeting Australian Government policy priorities to date, and
(2) capacity for enhanced achievement of Australian Government policy priorities by the NRS Program, including delivery of conservation, economic, cultural and social benefits in the context of sustainable natural resource management at landscape, regional and national scales.
14.30 Generally, the evaluation reported that ‘the NRS Program has been an important and cost-effective component of Australian Government’s efforts to conserve Australia’s unique biodiversity.’[27] However, there are a number of measures raised in the evaluation and in submissions to this review that could be improved to further conserve Australia’s biodiversity.
14.31 Commonwealth reserves aim to conserve and protect land and sea. While the National Parks Australia Council commented that management of these reserves do not sufficiently emphasise their natural values, the management principles prescribed in the EPBC Regulations which determine management plans must be consistent with IUCN category principles. The categorising system, as promoted by the IUCN, places management as the primary objective; however, depending on the category, it is also about ‘guiding human processes so that the area and its resources are protected, managed and capable of evolving in a sustainable way.’[28] Noting this, the Australian IUCN reserve management principles identified in the EPBC Regulations could include specific reference to biodiversity conservation, in order to place a greater emphasis on a reserve’s natural values.
14.32 The IUCN recently released the ‘Guidelines for Applying the IUCN System of Protected Areas Management Categories.’[29] These Guidelines adopt a new definition of protected area, which maintains emphasis on biodiversity conservation but reclaims the roots of the protected area movement by focusing on ‘the conservation of nature with associated ecosystem services and cultural values.’[30] under the IUCN Guidelines a protected area is now defined as:
a clearly defined geographical space, recognised, dedicated and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values.[31]
14.33 It should be considered whether the EPBC Act (or Regulations) should adopt the recent IUCN definition of ‘protected area.’ This may assist with developing expertise further to identify and promote cultural values, in line with natural values.
14.34 There is also a need to consider whether to increase the Act’s capacity to regulate activities in a conservation zone (for example, equivalent provisions that apply to Commonwealth reserves could also apply to conservation zones).
14.35 World and National Heritage properties with biodiversity values are also part of the NRS and as suggested by the Australian Petroleum Production and Exploration Association, natural heritage processes may duplicate National Park and species protection provisions.[32] However, it is important to note that the Commonwealth heritage system and the NRS serve different purposes. The NRS aims to protect a CAR system of reserves in Australia rather than areas with significant heritage values or individual species protection, per se. A landscape approach should protect and manage habitats at a landscape level, but also account for the broader nature of ecological processes, such as individual species, or recognise the role of biodiversity in maintaining ecosystem processes.
14.36 By establishing a well managed CAR reserve system, the NRS meets an important international obligation for Australia under the 1993 Convention on Biological Diversity. Areas within the NRS are managed for biodiversity conservation outcomes for current and future generations. However it is noted that there are bioregions in Australia which are not represented due to resource and funding restraints. One of the targets for the Caring for our Country Business Plan is to increase the area that is protected within the NRS with priority given to under-represented bioregions. The Australian Government will need to continue to work with State and Territory governments, Indigenous groups, conservation organisations and other landholders to ensure that protected areas are added to the NRS in under-represented bioregions in a timely manner.