Biodiversity protection

Contributed by Jean-Pierre Clement and Golnar Nabizadeh and current to 1 September 2005

WHAT IS “BIODIVERSITY”?

Biodiversity (or biological diversity) is defined in Article 2 of the International Convention of Biological Diversity as:

“the variability among living organisms fromall sources including terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.”

HOW IS BIODIVERSITY PROTECTED?

The most important statute protecting biodiversity in Western Australia is the Wildlife Conservation Act 1950 (“the Act”). The Act is administered by the Department of Conservation and Land Management (CALM) under guidance from the Conservation Commission of Western Australia.

Under the Act, individual species of plants and animals are protected, with additional protection applying to species that are declared rare or endangered. Aquatic species may also be protected under the Fish Resources Management Act 1994 (WA).

Groups of species and their habitats (often referred to as ecological communities) are not directly protected under Western Australian law. This is expected to be remedied in the proposed Biodiversity Conservation Bill, which was being drafted at the time of writing. For details on the proposed Biodiversity Conservation Act, refer to CALM’s discussion paper dated December 2003, available from their website: www.calm.wa.gov.au.

Other laws relevant to biodiversity protection are those protecting particular areas (for example, national parks and other conservation areas) and those controlling activities that may directly or indirectly damage biodiversity (for example, planning laws or laws controlling land clearing).

PROTECTION OF FLORA (NATIVE PLANTS)

Flora is defined to mean any plant or part of a plant that is native to Western Australia, or is not native but which has been declared to be flora by the Minister for the Environment (s.6)

All flora (from algae and fungi to flowering plants) native to the State is declared to be protected under the Act. This includes marine plants such as seaweed and seagrass.

The Minister for the Environment may also declare any species of flora to be rare where that species is likely to become extinct or is otherwise in need of special protection (s.23F).

What controls apply to the taking of protected flora?

It is an offence to “take” protected flora:

• on Crown land (that is, any land other than private freehold land) without a licence from CALM; and
• on private land where the flora:
– is taken without the consent of the owner or occupier of the land; or
– is taken for the purpose of sale, and the person does not hold a licence from CALM.

To “take” in relation to flora includes to gather, pluck, cut, pull up, destroy, dig up, remove or injure the flora or to cause or permit the same to be done by any means (s.6).

The flora provisions of the Act are binding on the Crown. This means that, subject to the exemptions mentioned below, government departments and authorities must obtain a licence before taking flora.

The penalty for unlawfully taking flora is a maximum fine of $4,000 for each offence. For rare flora, the penalty is a maximum fine of $10,000 for each offence (s.23F).

Exemptions from requirement for a licence

ABORIGINAL PERSONS

Aboriginal people may (with the consent of the occupier of the land where relevant) take flora for food, but this excludes taking declared rare flora or flora on a nature reserve (s.23).

UNAVOIDABLE CONSEQUENCE OF PERFORMING A LAWFUL RIGHT OR AUTHORITY

A person cannot be convicted of taking protected flora without a licence if the person can prove that the taking occurred as an unavoidable incident or consequence of the performance of any right, power or authority conferred upon the person under another Act. This may exempt a local government from requiring a licence to remove a tree from a road verge where it is causing a hazard. However, the act of taking must be “unavoidable” – that is, there must be no option other than for the person to take the flora. The onus of proving that the act was unavoidable rests with the accused (s.23B(2)).

PROTECTION OF FAUNA (NATIVE ANIMALS)

All fauna that is native to Australia or periodically migrates to Australia is “protected” in Western Australia unless it is declared to be unprotected by the Minister for the Environment. At the time of writing, the only native or migratory species declared to be unprotected is the Australian Dingo.

The Minister may also declare a species of fauna that is likely to become extinct, is rare, or is otherwise in need of special protection (s.15(2)).

It is an offence to take protected or threatened fauna unless:

• the person has a licence from CALM (s.16);
• the taking was authorised under an open season declared by the Minister for that species (s.14(2)); or
• the taking was by an Aboriginal person for food on other than a nature reserve, and the species was not prescribed as exempt from Aboriginal usage (s.23).

To “take” includes to kill, capture, disturb, molest or hunt any fauna and also includes attempts to take fauna and assisting another person to take fauna (s.6).

Unlike the provisions relating to declared rare flora, the approval of the Minister is not required to take a rare species of fauna. Note that the Crown is not bound by the fauna protection provisions of the Act, and is therefore exempt from the requirement to obtain a licence to take fauna: Bridgetown-Greenbushes Friends of the Forest v CALM (1997) 94 LGERA 380.

The penalty for illegally taking protected fauna is a maximum fine of $4,000, or $10,000 in the case of threatened fauna (ss.15 and 26).

Aquatic species

Aquatic species of animal, such as fish, molluscs and crustaceans are subject to specific protection under the Fish Resources Management Act 1994 (WA). Under this Act, the taking of species which are threatened as a result of overexploitation can be the subject of restrictions or prohibitions. Note that the definition of “fish” in the Fish Resources Management Act does not include aquatic mammals, aquatic reptiles, aquatic birds, amphibians or pearl oysters.

Can the public have input into the listing of threatened species?

While it is not a legal requirement, the Minister for the Environment seeks the advice of the Threatened Species Scientific Committee before publishing lists of threatened flora. The Committee meets at least once a year before making a recommendation to the Minister.

Members of the public can make nominations to the Committee on listing or de-listing species of plants or animals. Criteria for listing and de-listing and nomination forms are available from CALM.

Is there a right to make submissions or appeal against licence decisions?

There is no third party right of appeal against a decision to issue a licence to take flora or fauna under the Wildlife Conservation Act. Nor is a register of licences available to the public.

CONSERVATION AREAS

Terrestrial conservation reserves

Land may be set aside for any public purpose, including for the conservation of the environment. The types of conservation areas include national parks, conservation parks and nature reserves. Most conservation reserves are vested in the Conservation Commission of Western Australia and managed by CALM.

Marine conservation reserves

Marine areas may also be set aside for the protection of plants, animals and the environment generally. There are two mechanisms for creating marine conservation areas in Western Australian waters – under the Conservation and Land Management Act 1984, and under the Fish Resources Management Act 1994.

Biodiversity conservation on private land

Owners of private land can enter into agreements to set aside that land for conservation purposes. This is done through entering into a conservation covenant – usually with a public authority (for example, CALM or the Commissioner of Soil and Land Conservation) or the National Trust. While not a public reserve, this mechanism does provide a means through which private landholders can legally protect biodiversity values on their land. Conservation covenants are legally binding on subsequent owners of the land where the covenant is registered on the title of that land.

Taxation benefits may apply to persons entering into certain types of covenants to protect native vegetation.

CONTROLS ON THREATENING ACTIVITIES

Land clearing controls

Land clearing has been a significant cause of biodiversity loss in Western Australia. It is an offence to clear native vegetation without a clearing permit under the Environmental Protection Act. There are a number of exemptions from this requirement, including where the clearing is undertaken as part of a subdivision approval.

Clearing of land without approval can lead to a fine of up to $250,000 for an individual or $500,000 for a body corporate.

Land degradation

There are a number of controls on causing land degradation, particularly in relation to agricultural and pastoral lands. For example, the holder of a pastoral lease is required to manage the lease in a sustainable manner to preserve the native vegetation on the leased land.

BIODIVERSITY PROTECTION UNDER COMMONWEALTH LAW

In addition to the State controls considered above, there are a number of laws directed at protecting biodiversity under Commonwealth law.

Commonwealth areas

Special controls apply to activities within Commonwealth areas, including land owned by the Commonwealth and Australia’s marine waters. Commonwealth marine areas are generally waters between three and 200 nautical miles from the coast. Within these areas, it is an offence to kill or otherwise unlawfully interfere with listed threatened species, ecological communities, migratory species and marine species.

Any person can nominate a species or a community to the threatened species' or threatened ecological communities' lists. It is also an offence to take whales, dolphins or porpoises in Australian marine waters.

International trade controls

The EPBC Act regulates international trade in wildlife and wildlife products. Specifically, the Act makes it an offence for a person:
• to export or import a species identified by the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”) without a permit unless an exemption applies;
• to export any native species without a permit or unless an exemption applies; and
• to import any live species without a permit or unless the species is listed by the Minister as suitable for live import.

Environmental impact assessment

In addition to the above, proposals that are likely to have a significant impact on the environment are required to undergo environmental impact assessment, either under State or Commonwealth law (see ‘Environmental impact assessment under Commonwealth law’ above).