Australia: Four proposed ways to contemporise Queensland’s protected plants legislative framework

HG Environment Alert: 4 March 2014
Last Updated: 6 March 2014
Article by Sarah Macoun and Olivia Williamson

The effectiveness and efficiency of Queensland's protected plants framework is under the spotlight. The Queensland State Government is undergoing two stages of review and reform of protected plants legislation and regulation with a view to securing compliance and enhancing conservation outcomes for protected plants.

In this Alert, Partner Sarah Macoun and Associate Olivia Williamson outline the changes and highlight likely benefits and possible challenges that might arise because of them.

Benefits of the proposed changes

  1. A reduction in the number of statutory instruments regulating protected plants in Queensland.
  2. A risk-based approach means that all low risk activities (such as harvesting, trading, growing and clearing least concern plants) will be exempt from permitting and licensing requirements.
  3. Cost savings are likely as a result of removing flora survey requirements for all but clearing in high risk areas.
  4. Applicants proposing to clear in high risk areas will be required to provide results of flora surveys to the Department, thereby improving and updating the Department's existing knowledge of protected plants in high risk areas.
  5. The currency period for a protected plants clearing permit is extended from six months to two years.
  6. A new exemption enables the clearing of protected plants regrowth in areas that have been legally cleared under a protected plants permit provided that it occurs within 10 years of the original permit.

Difficulties arising out of the proposed changes

  1. The proposed changes do not fully integrate the clearing of protected plants with the development assessment processes under the Sustainable Planning Act 2009. Applicants who obtain development approvals for clearing (for example, through local councils or for clearing under the Vegetation Management Act 1999 (VMA) will still need to obtain separate protected plant clearing permits in some circumstances.
  2. The removal of industry specific exemptions, including in relation to activities under a mining lease or a petroleum lease may create more, not less, regulation for the State and create another hurdle for industry seeking to do business in Queensland.

Current framework

The protected plants legislative framework includes six different pieces of legislation, with the Nature Conservation Act 1997 (NCA) being the primary piece of legislation.

The framework was introduced to manage threatening processes on native plants outside of protected areas. Activities involving clearing, harvesting, growing or trading protected plants are subject to permitting and licensing requirements under the framework. The requirements are primarily determined according to the nature and scale of an activity and the conservation category of the plant.

The current framework has been criticised as being "...complicated and burdensome, and difficult for operators to interpret and regulators to effectively implement and administer".

Proposed changes

The review and reform of the protected plants legislative framework attempts to overcome some of the complications and burdens identified with the current system.

The first stage of the review was completed with the passing of the Nature Conservation (Protected Plants) and Other Legislation Amendment Act 2013 (Amendment Act) on 29 October 2013. The substantive provisions of the Amendment Act have not yet commenced but when these provisions take effect they will, among other things, amend the NCA and the VMA. These amendments lay the foundation for subsequent changes to the relevant subordinate legislation.

Stage two of the review and reform takes the form of the draft Nature Conservation (Protected Plants) and Other Legislation Amendment and Repeal Regulation 2014 (draft Amendment and Repeal Regulation) released on 21 November 2013.

The draft Amendment and Repeal Regulation attempts to create a simpler and more effective framework for protected plant conservation in Queensland in four ways:

  1. Consolidation

It is proposed to repeal the Nature Conservation (Protected Plants) Conservation Plan 2000 (Conservation Plan) and the Nature Conservation (Protected Plants Harvest Period) Notice 2013, and consolidate the relevant provisions from the Nature Conservation (Administration) Regulation 2006. These provisions will be rolled into the Nature Conservation (Wildlife Management) Regulation 2006 (Wildlife Regulation), which will reduce the number of statutory instruments regulating protected plants in Queensland.

  1. A risk based approach

The new framework replaces compulsory requirements to conduct flora surveys with desk top analysis using new computer based flora survey trigger mapping as the starting point.

If the new trigger mapping shows a site to be within a high risk area (approximately three percent of the State where threatened plants have been identified), then a flora survey will be required to identify the presence of endangered, vulnerable and near threatened species. A clearing permit will be required where an exemption is not available.

For the remaining low risk areas:

  • Clearing without a protected plant clearing permit may take place if the clearing impact area is shown on the flora survey trigger map as a low risk area and the clearing happens within two months after the person obtains a copy of the flora survey trigger map. If the clearing does not start within two months, the flora survey trigger map must be re-checked to confirm that the current mapping shows the area remains a low risk area.
  • If, as a result of a flora survey or otherwise, a protected plant is identified (irrespective of whether the land is identified on the trigger mapping as being high or low risk), that flora survey must be provided to the Department and a protected plant clearing permit will be required unless it can be shown that the identified endangered, vulnerable or near threatened plants or their supporting habitat is outside the clearing impact area.

Where the flora survey trigger map is relied on, we strongly recommend that a dated copy of the map that was consulted prior to any clearing is retained as a record and that the date the mapping was obtained is checked before carrying out any clearing.

  1. Exemption consolidation

Sections 89 and 90 of the NCA set out a range of offences for taking and using protected plants, but carve out a number of exemptions to those offences. Part 3 of the draft Amendment and Repeal Regulation proposes to consolidate exemptions in the Wildlife Regulation, removing them from the NCA.

Pre-existing approvals

For holders of existing protected plant clearing permits, notable proposed exemptions include:

  • the re-clearing of protected plants in a high risk area, where the taking is within an area from which taking has already been approved under a protected plants clearing permit or other authority, and the taking is to the extent authorised as lawful and it happens within 10 years from the permit or authority and complies with the protected plant code of practice; and
  • taking protected plants in a high risk area to the extent authorised as lawful in the course of an activity under an authority made or given by the Governor in Council or as approved by the Chief Executive, or a mining lease or a petroleum lease, which were in force immediately before the commencement of the provisions.

For new activities

For persons carrying out new activities that may involve the taking or use of protected plants, the notable proposed exemptions include:

  • Taking of a least concern plant, other than a special least concern plant.
  • In a low risk area, taking a protected plant by clearing if the clearing impact area is shown on the flora survey trigger map as a low risk area and the clearing happens within two months after the date that map is obtained.
  • In a high risk area:
    • A flora survey report for the area given to the chief executive within the previous two years shows that endangered, vulnerable or near threatened plants or their supporting habitat are outside the clearing impact area.
    • For routine management of existing infrastructure.
    • In the course of an activity under the VMA for thinning or clearing of an encroachment.
    • In the course of an activity for weed control or a conservation purpose under the VMA and in compliance with protected plants code of practice.
    • To the extent authorised as lawful under another Act or law after the commencement of the provisions and which complies with the protected plants assessment guideline and code of practice.

Where the taking of a protected plant in the wild is exempt from needing a permit, the clearing is to be carried out in accordance with a new code of practice for the taking and use of protected plants.

Resource activities

The draft Amendment and Repeal Regulation proposes to remove the exemption for taking a protected plant in the course of industry specific activities. For example, at present, a clearing permit is not needed for taking a protected plant where the taking happens in the course of activities under a mining lease or a petroleum lease.

The removal of the industry specific exemption is not intended to apply retrospectively, so that

"...activities previously exempt from a protected plants clearing permit, will continue to operate under the exemption. The amendment will allow for the clearing of protected plants only to the extent previously authorised under the exemption that was in force immediately before the commencement of the Amendment Regulation".

Activities under a mining or petroleum lease granted after the section commences are not afforded the same protection and will be subject to the same risk-based assessment process under the Wildlife Regulation as other persons and activities.

  1. Reduction in permit type

The number of permit and licence types to be reduced from eleven to three. Specifically:

  • a clearing permit (for taking); and
  • two licences, protected plant harvesting licence and a grower's licence (for harvest and use).

There is no longer the need for a licence to trade or move protected plants.

The reforms also propose to extend the currency period for clearing permits from six months to two years. This will reduce the need for permit holders to reapply for another permit in circumstances where the clearing cannot be completed within time.

The Amendment and Repeal Regulation will need to ultimately be approved by the Governor in Council before it takes effect. HopgoodGanim's Planning and Environment team will watch with interest to see the results consultation brings to bear on the ultimate form of the draft Amendment and Repeal Regulation.

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

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.

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Sarah Macoun
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