Introduction
The Federal government's marine bioregional planning program has seen the recent implementation of bioregional plans for several of Australia's marine regions and the development of a proposed new marine reserves network that may affect future activities proposed in Commonwealth waters and the way they are assessed under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).
EPBC Act - background
Under the EPBC Act, an action that has, will have, or is likely to have a significant impact on the environment in Commonwealth waters must be referred to the Federal Environment Minister for a decision about whether it is a 'controlled action' and therefore requires assessment and approval under the EPBC Act. Civil penalties and criminal offences apply for undertaking a controlled action without a necessary approval under the EPBC Act.
Marine Bioregional Plans
The Department of Sustainability, Environment, Water, Population and Communities (Department) has prepared and implemented Marine Bioregional Plans (Plans) for four Commonwealth marine regions, specifically, the South-west, North-west, North, and Temperate East marine regions. Information received by the Department through public submissions and stakeholder consultations undertaken between May 2011 and February 2012, together with detailed socio-economic assessments were considered in finalising the Plans for each region.
The Plans were developed with the aim of ensuring that Australia's marine environment is protected and managed effectively, while also supporting sustainable use of marine resources.
Although the Plans are not a binding legislative instrument (and therefore, do not affect the EPBC Act referrals process), the Federal Environment Minister is required to have regard to the Plans in making any decision under the EPBC Act to which the Plans are relevant.
Therefore, project proponents that plan to undertake an action
that may be a 'controlled action' in any of the regions
subject to the Plans will need to consider and address the matters
set out in the relevant Plan in their assessment of the impact of
their activities and how they propose to manage those impacts in
the context of an EPBC Act approval.
The Plans do not affect activities that have already been validly
approved. Accordingly, the Plans are only relevant to any new
activities proposed to be carried out, or a proposed
intensification or increase in an approved activity.
The Plans:
- Describe the marine environment and conservation values of each marine region;
- Set out broad biodiversity objectives;
- Identify conservation priorities; and
- Outline strategies and actions to address those priorities.
Each Plan sets out numerous key ecological features and regional priorities that are specific to each region. For example, a specific regional priority for the North-west marine region outlined in the North-west Plan is: "physical habitat modification" (e.g. from construction associated with offshore mining and oil and gas infrastructure), which has been identified as "of concern" for flatback turtles, and "of potential concern" for sea snakes, several species of turtle, dugong, inshore dolphins, various fish species, the Crown of England shipwreck, and several specific reefs. An example of a key ecological feature is the "Pinnacles of the Bonaparte Basin", which is identified in the North Plan as "a unique seafloor feature with ecological properties of regional significance".
There is nothing in the Plans that specifically prohibits or restricts activities in Commonwealth waters. However, as stated above, the Environment Minister is required to consider any potential adverse impacts on regional priorities and key ecological features specified in the relevant Plan when considering whether a 'controlled action' should be approved under the EPBC Act.
Marine Reserves Network
As part of the marine bioregional planning process, the Department has developed a new Commonwealth marine reserve network. Following the release of a draft marine reserve network for public consultation in 2011 and subsequent consideration of public submissions and stakeholder consultation, the Department released the final Commonwealth marine reserves network proposal on 14 June 2012 which was open for public comment until 10 September 2012.
The proposed network will add more than 2.3 million square kilometres to the existing national system of Commonwealth marine reserves, taking its overall size to 3.1 million square kilometres and will increase the number of reserves from 27 to 60. The Federal government has indicated that it intends to manage the new marine reserves in the same way it manages the existing Commonwealth marine reserves around Australia.
The final Commonwealth marine reserves network proposal includes a range of different management zones that determine what activities will be allowed. Some activities will not be permitted within any reserve while others will only be permitted within particular zones.
The Department has released marine reserve network mapping on its website. These maps identify the new marine reserves and outline proposed zoning within each of the marine reserves.
For example, under the Marine National Park Zone (IUCN II), the activity of "mining, (including exploration, development and other activities)" is proposed to be prohibited. However, mining is proposed to be permitted in the Special Purpose Zone (IUCN VI) and the Multiple Use Zone (IUCN VI). Mining activities in these zones would still, however, require approval from the Director of National Parks (DNP), unless they are carried out under usage rights that existed immediately before the declaration of a reserve, or are otherwise permitted under a management plan.
In addition, proposed mining activities would be subject to the assessment and approval provisions of the EPBC Act (discussed above) where the project is likely to have a significant impact on the environment or on a listed threatened or migratory species. On this point, it is worth noting that DNP approval of a mining operation under section 359B of the EPBC Act and the referral, assessment and approval of an action under Chapter 4 of the EPBC Act are related processes, and therefore, an application for DNP approval can be supplied in the form of an EPBC Act referral. Accordingly, only one application should be required for both EPBC Act approval and DNP approval.
Next steps
The Governor-General proclaimed the new Commonwealth marine reserves network after taking into account comments received during the 60 day public consultation period which closed on 10 September 2012.
Now that the marine reserves network has been passed by both Houses of Parliament and proclaimed, the DNP has developed management plans for each of the marine reserves. The purpose of the management plans is to give effect to the zoning arrangements within the marine reserves.
The management plans will be developed through two rounds of public consultation. Firstly, stakeholder feedback will be invited on a proposal to prepare a draft of a management plan for each marine reserve network. This consultation process began on 17 November 2012 and ended on 18 December 2012. Secondly, feedback will then be invited on a draft management plan for each marine reserve network. This consultation process will also run for at least 30 days and will commence in mid-January 2013.
During the period between the reserve coming into effect and the completion of management plans, the DNP will put in place interim management arrangements. Once the marine reserves have been proclaimed, areas can only be removed from a reserve if passed by both Houses of Parliament. Similarly, zoning within reserves can only be changed through management plans, which are subject to two rounds of public consultation and must be tabled for consideration by both Houses of Parliament.
Conclusion
The marine bioregional planning program shows the Federal government's increasing interest in the preservation and conservation of Commonwealth marine areas.
These measures may have an impact on future proposed activities within Commonwealth waters, or on the expansion or intensification of a current activity, depending on which zoning the activity falls under within the proposed new marine reserves network.
Project proponents looking to conduct an activity in Commonwealth waters that may be a 'controlled action' under the EPBC Act should inform themselves of any Plan that is relevant and consider and address the matters set out in the Plan and specify how it proposes to manage those impacts in the context of an EPBC Act referral.
In addition, project proponents and stakeholders should keep up to date with the latest developments in relation to the proposed Commonwealth marine reserve network. For the latest information, check the Department's website: http://www.environment.gov.au/coasts/mbp/index.html
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
