The Biodiversity Conservation Act 2016 (WA) (Act) will come into effect in its full form on 1 January 2019. The Act will replace the Wildlife Conservation Act 1950 (WA) and the Sandalwood Act 1929 (WA), and provide the State government with enhanced power to conserve and protect Western Australia’s native flora and fauna.
The changes are expected to have significant implications for landowners and developers. Thorough due diligence will be required to identify potential limitations on land use before acquiring a site with remnant native vegetation. Purchasers should check for:
- Notifications on title relating to the presence of threatened species, threatened ecological communities, habitat conservation notices, recovery plans or biodiversity conservation agreements and covenants;
- Any Ministerial listing of threatened species or threatened ecological communities relating to the land; and
- Any relevant entry on the public register of critical habitats.
The new Act will significantly increase individual and corporate penalties for the taking or unlawful disturbance of protected flora and fauna. If a threatened species or threatened ecological community is found when undertaking field work, this may trigger a legal duty to report the existence of the species or community to the Department of Biodiversity, Conservation and Attractions (Department).
Scope of the new Act
While the Wildlife Conservation Act prohibited the taking of protected flora and fauna, the Biodiversity Conservation Act will go much further in protecting ecological communities and habitats, and will introduce concepts such as ‘threatened ecological communities’, ‘threatening processes’, ‘critical habitats’ and ‘recovery plans’. Licences granted under the Wildlife Conservation Act to take native flora and fauna will continue under the new regime. However, the new Act will place stronger obligations on land owners, and provide stricter penalties for non-compliance.
The Act brings WA law into line with the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) by introducing national and international principles of biodiversity conservation and sustainable development. While many of the concepts introduced by the Act already appear in the EPBC Act, the Act will affect land owners in a direct way, including the notification on title of the presence of threatened species, threatened ecological communities and critical habitats. It will also provide opportunities for land owners to enter into biodiversity conservation agreements with the State and enable the targeted control of environmental pests.
Authorisations for traditional taking of protected native plants and animals by Aboriginal people that were in place under the Wildlife Conservation Act will continue under the new regime.
Nomination and reporting of threatened flora and fauna
Under the Act, any person may nominate a native flora or fauna species for listing as a ‘threatened species’. The Act will also introduce the concept of an ‘ecological community’, (defined as a naturally occurring assemblage of organisms that occurs in a particular habitat), and allow a person to nominate an ecological community for listing as a ‘threatened ecological community’. Depending on the level of threat, threatened species and ecological communities may be listed by the Minister as critically endangered, endangered or vulnerable.
In addition, any person may nominate a particular ‘threatening process’ (defined as a process that threatens, or may threaten, the survival, abundance or evolutionary development of a native species or ecological community) for listing as a ‘key threatening process’.
In the above cases, the Minister will assess the nomination, having regard to certain criteria set out in Ministerial guidelinesi and make a decision on whether or not to make a listing of a threatened species, threatened ecological community or key threatening process.ii
A threatened species or ecological community must be reported to the CEO of the Department (CEO) if it is found when carrying out field work for the purposes of an environmental impact assessment under the Environmental Protection Act 1986 (WA) (EP Act), or compliance with an EP Act application for a clearing permit.
Critical habitat register
The Minister may list a habitat as a ‘critical habitat’ if it is critical to the survival of a threatened species or a threatened ecological community. The critical habitat will then be listed on a publically available ‘critical habitat register’. Before a habitat is listed as critical habitat, the CEO must take steps to notify the owner or occupier of the land on which the habitat is located so that the owner or occupier can make submissions in relation to the proposed listing.
The CEO also has power to issue a habitat conservation notice to prevent habitat damage occurring to the listed critical habitat. The notice may be issued to the landowner, occupier or another person where the CEO considers that it is practicable for that person to comply with it. Where the notice is registered on title, it will bind successive owners and occupiers. The CEO must also provide a copy of the notification to the WA Planning Commission.
Notification on title
If there is reasonable evidence that a threatened species, a threatened ecological community, or critical habitat is present on land, the Minister may give notice to the owners or occupiers of that land about conservation management. The CEO may also lodge a notification document about the presence of the threatened species or threatened ecological community or critical habitat with the Registrar of Titles or the Registrar of Deeds and Transfers. Where such a notification has been lodged, the owner of the land has a duty to notify visitors about the presence of the species on the land and also notify the CEO of a change in ownership or occupation.
The new Act will provide much stronger deterrent penalties for the unlawful taking, possession or disturbance of protected flora and fauna, including the unlicensed taking of sandalwood, and destruction of threatened ecological communities.
The Wildlife Conservation Act provides a maximum penalty of $10,000 for the taking of flora and fauna species, regardless of whether those species were categorised as ‘likely to become extinct’, ‘rare’ or ‘otherwise in need of special protection’. By contrast, the new Act will provide modern threatened species categories (critically endangered, endangered, vulnerable, extinct and extinct in the wild), for flora, fauna and ecological communities and allow for differential penalties based on threat ranking, with maximum penalties of $500,000 for an individual and $2.5 million for a corporation.iii
If a body corporate is guilty of certain offences under the Act, an officer of the body corporate will also be guilty of the offence if the officer failed to take all reasonable steps to prevent the commission of the offence.iv
Where there are threatened species, threatened ecological communities, or a combination of such species and communities on land, the CEO will prepare a ‘recovery plan’ in consultation with the owners or occupiers and other relevant bodies. The recovery plan will provide for research and management actions to stop the decline of, and support the recovery of, each threatened species or ecological community. Also, an approved recovery plan must be taken into account by relevant public authorities in carrying out functions affected by the plan.
In certain circumstances, the Minister may authorise the taking or disturbance of a threatened species or the modification of a threatened ecological community. Conditions that may be imposed on an authorisation include monetary contribution towards purchasing land of conservation value, exchanging land of conservation value for other land, specific land management measures, or conducting or funding relevant research. The approach is similar to environmental offsets applied under the EP Act where a condition is imposed on a clearing permit or following environmental impact assessment of a proposed development under the EP Act or the EPBC Act.
If, in the Minister’s opinion, the proposed taking or disturbance could be expected to result in the threatened species becoming listed as an extinct species, the approval of the Governor must be obtained before the authorisation can be given.
Biodiversity conservation covenants and agreements
Several parts of the Act are already in effect. These include Parts 7 and 8 which allow the Minister, on behalf of the State, to enter into a biodiversity conservation agreement or a biodiversity conservation covenant with an owner or occupier of land for various purposes, including to prevent or mitigate the effect of adverse impacts on biodiversity, or otherwise promote or enhance biodiversity conservation.
The Minister may provide goods or services, financial assistance or technical advice to an owner or occupier to assist them to carry out activities under a biodiversity conservation agreement.
Biodiversity conservation agreements and covenants are protected by notification or registration on title and will bind successive owners and occupiers. Previously, nature conservation covenants could be registered on land titles as restrictive covenants. The Act now provides for both positive and restrictive covenants and penalties for non-compliance.
The new arrangements do not invalidate existing registered nature conservation covenants.v
Commencement of new provisions
Several parts of the Act commenced in December 2016 following its Royal Assent on 21 September 2016. However, the remaining parts could not commence until the Biodiversity Conservation Regulations 2018 (Regulations) were drafted and approved. The Regulations have now been finalised and were published in the Government Gazette on 14 September 2018. The new biodiversity conservation regime will commence on 1 January 2019.
This article was written by Charmian Barton, Partner and Kristen Phillips, Solicitor.
i Ministerial guidelines will be issued under s. 260(1) of the Act. The guidelines will be based on the internationally accepted IUCN Red List of Threatened Species criteria as appropriate for use in the Australian context and consistent with applicable national agreements for standardised species threatened status assessments.
ii The Minister may also list a native species as a ‘specially protected species’, defined as a species of special conservation interest, which can include cetaceans (whales and dolphins), migratory species, species subject to an international agreement, or species otherwise in need of special protection.
iii The Act will increase maximum penalties for unlawful taking of sandalwood from $200 as provided in the Sandalwood Act 1929 to $200,000 for an individual or $1 million for a business or corporation.
iv In considering what constitutes reasonable steps, a court must have regard to: what the officer knew or ought to have known about the commission of the offence, whether the officer was in a position to influence the body corporate in relation to the commission of the offence and any other relevant matter.
v See https://www.dpaw.wa.gov.au/plants-and-animals/468-biodiversity-conservation-act-2016 (accessed 5 November 2018).
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