Nature Conservation Act amendments – 29 October 2014

Late news: Conservation Council was told on morning of proposed debate (30 October 2014) that consideration of the Nature Conservation Bill would be delayed to November sitting. While there seemed to be general agreement on the legislation there were matters to be sorted out between ACT Government directorates. The Conservation Council was pleased delay was envisaged to be only four weeks given the Review discussion paper was dated nearly four years earlier as November 2010.

After many years in development the Nature Conservation Bill 2014 will be considered by the ACT Legislative Assembly on Thursday 30 October 2014.

The Conservation Council welcomes the debate and has made participated in a range of processes with input from several member groups including Friends of Grasslands, Canberra Ornithologists Group, National Parks Association and the Environmental Defender’s Office.

The Conservation Council particularly welcomes the changes which give effect to an ecosystem or landscape approach to biodiversity. This means looking not just at individual species or ecological communities or managing areas of biodiversity within reserves, but rather the broader landscape and also focussing on addressing actual biodiversity outcomes.

The Conservation Council has also put forward some proposals which would further enhance the legislation. These include:

Biodiversity Offsets – assessment / approvals and governance

The Conservation Council has a number of issues on how the new arrangements introduced through the Planning and Development (Bilateral Agreement) Amendment Bill 2014 will deliver intended biodiversity outcomes. While the Conservation Council had previously proposed that biodiversity offset principles, governance arrangements and conditions be incorporated into the Nature Conservation Act (our recommendation 23) we now suggest that the issues are significant enough to warrant separate consideration either via amendments to the new Nature Conservation Act 2014 once passed or the Planning and Development Act 2007, rather than via consequential amendments to the Nature Conservation Bill 2014.

Ecosystem  approach  

The Conservation Council recommends to further enhance an ecosystem approach within the legislation the following additional changes be made:

  • Require that the Conservator must take into account findings of the biodiversity research and monitoring program, action plans and reserve management plans in exercising functions under the Act [section  21  (4)
  • Critical habitat – put in place mechanisms that critical habitat identified in action plans is factored into decision-­making

Dedicated  Conservator  position

The Conservation Council welcomes the strengthening of the role of the Conservator and requirement for the Conservator to have suitable qualifications and experience. It remains a high priority for the Conservation Council that the position of Conservator be a dedicated position. While it might be unusual for legislation to specify this the Conservation Council believes that if it is not in the legislation then the Government should make a formal commitment to create a dedicated position.  The PriceWaterHouseCoopers Report on the role of the Conservator (page 2) recommended Creation of Dedicated Position of Conservator.

Other matters

The Conservation Council also provided comments on several other matters including:

  • Transparency / Reporting / Consultation
  • Decision-­making
  • Conservation on private land – Rural Landholders

Our comments as provided to Government and all parties in the Legislative Assembly are attached.

If you want to watch the ACT Legislative Assembly (electronically) as it happens go here.

If you want to watch it later use the Daily on Demand service. You then have fast-forward and replay options.

20141027-Nature Conservation Bill 2014-comments (pdf)

Strategic Bushfire Management Plan and Plans of Management

The Conservation Council provided these comments to all parties in the Legislative Assembly for their consideration of the Emergencies Amendment Bill 2014.

 

Strategic Bushfire Management Plan and Plans of Management

Overview

We note existing provisions in Planning and Development Act 2007, Emergencies Services Act 2004 and Nature Conservation Act 1980 create the possibility of conflict in requirements between the Strategic Bushfire Management Plan and specific Plans of Management. We note our understanding that the current arrangements will be replicated in the forthcoming Nature Conservation Bill 2014.

We are mindful of the legal ramifications to Emergency Services Authority and Commissioner of the current situation. We are also aware of the dilemma that many of the Plans of Management are old and the requirements for regular review are weak. This could be remedied in the Nature Conservation Bill 2014 through more rigorous provisions regarding regular review of Plans of Management. We also support the need for effective and up-to-date Plans of Management to ensure good management of areas of ecological significance.

We do not support conflicts between the Strategic Bushfire Management Plan and Plans of Management. However we also do not support environmental objectives articulated in Plans of Management intended to ensure environmental outcomes should be compromised without due process. Our preference is mechanisms which avoid such conflicts while generally giving equal weighting to provisions of both – the Strategic Bushfire Management Plan and Plans of Management. We note the legal advice that technically it is not possible to give equal weighting to the SBMP and a Plan of Management.

However we do not support a blanket override of Plans of Management as per the current amendment [section 16].
We propose a desirable outcome could be achieved via the need for each of these documents to be cross-referenced at the initial development and at review stages, as well as at specific action points.

We note the Amendment Bill provides for consideration by the Commissioner of Plans of Management in preparing a draft Strategic Bushfire Management Plan. We welcome this as well as the formal requirement to consult with the Conservator and the need for a public report. [section 11]

This however does not address:

  • input and the need for consistency between the SBMP and development of new Plans of Management once the Strategic Bushfire Management Plan is in place; or
  • fire management actions that may arise / be proposed during the operational delivery of the SBMP which are inconsistent with a Plan of Management.

Another amendment could be a requirement for ESA to provide for remedial action to remedy damage in circumstances where they are required to undertake emergency control actions to the detriment of ecological values.

We propose two steps to address this:

  • the Conservator to provide advice on the consistency on a draft (new or review) plan of management with the SBMP. Issue to be addressed is mechanism if the Conservator agrees with a component of a Plan of Management on ecological grounds yet notes it will be inconsistent with the SBMP
  • except in emergency situations the Commissioner must consider the advice of the Conservator and relevant conservation organisations if a significant action is proposed to be undertaken which is inconsistent with a Plan of Management (Part 10.4 Planning and Development Act 2007). The advice and the Commisioner’s decision should also be made publicly available prior to the action being undertaken.

Background:

Emergencies Amendment Bill 2014

The Emergencies Amendment Bill before the Assembly proposes that if a strategic bushfire management plan is inconsistent with a plan of management, the plan of management has no effect to the extent of the inconsistency.

Current situation – Nature Conservation Act 1980 and Emergencies Act 2004

Section 77(3) of the Emergencies Act 2004 provides that “the strategic bushfire management plan has no effect to the extent to which it is inconsistent with any plan of management in force under the Planning and Development Act 2007, part 10.4 (Plans of management for public land) in relation to an area of unleased territory land or land occupied by the Territory”. This includes both reserve management plans and public lands.

Section 5(1) of the Nature Conservation Act 1980 provides that the “Act does not apply to the exercise or purported exercise by a relevant person of a function under the Emergencies Act 2004 for the purpose of protecting life or property, or controlling, extinguishing or preventing the spread of fire.”

In effect if a Plan of Management had specific requirements relating to bushfire management then the plan of management would take precedence over the Strategic Bushfire Management Plan. For example, Chapter 7.2.3 of the Namadgi Plan of Management outlines a range

This does not create an impediment to bushfire mitigation activities yet ensures that they are performed in an environmentally sensitive manner. Section 5(1) provides for legal protection in emergency situations.

Proposed Situation – Nature Conservation Bill 2014

The Nature Conservation Bill 2014, currently before the Assembly, provides the Act will not apply to relevant persons protecting life or property or controlling, extinguishing or preventing the spread of fire [section 7]. We have felt this provision allows for appropriate action in emergency situations.

A Consequential Amendment to the Emergencies Act maintains this arrangement [Schedule 2, part 2.3]

Cat Containment- Cat-alyst for media attention

Canberra has been abuzz with talk of cat containment this week with the possibility of Canberra becoming the first Australian city to ban cats from roaming free if options from a report on Responsible pet ownership and the protection of wildlife: Options for improving the management of cats in the ACT are explored. This media coverage has been fantastic for the Conservation Council’s community education program on the impacts of cats on Canberra’s wildlife. The more Canberrans talk about cats and their experiences of roaming cats hunting, fighting and getting injured, the more people will realise that it is better for our wildlife and our feline friends, to keep our cats inside or in our backyards day and night.

It all started Friday (10/10/14) with a Canberra Times article by John Thistleton. The article ‘Time is up for Canberra fat, unrestrained cats’  talks about cat management options in Canberra and highlights the need for further community education – cue the Conservation Council and our awareness building campaign.

This was followed up with a story about our friend Lyn Goldsworthy from the Frank Fenner Foundation and how she keeps her cats from roaming and hunting-  ‘Lyn Goldsworthy is a conservationist who loves cats but makes sure birds are out of reach’.  Lyn’s story is great as she demonstrates how affordable and easy keeping cats from roaming can be – as simple as supervising our cats on a leash in the backyard. There is no denying that Lyn’s cat Teagha is a content contained cat.

It quickly became apparent that this story has legs! Soon, we were talking to Marcus Paul from 2CC Canberra (who by the way contains his cat) and hearing cat containment discussions on ABC 666 and Radio National.

ABC News Canberra picked up the story Monday night ‘Canberra cat containment could be extended city-wide’ and followed through with the story on Lateline and ABC morning news – ‘Canberra cats may have to stay indoors’.

The reaction we have seen from all this media coverage has been overwhelmingly positive – which doesn’t surprise us given that a telephone survey from 2011 found that 65 percent of ACT residents support cat containment in new suburbs and 91 percent of residents think there are benefits to the community if cats are contained with the key benefit being reduced risk to wildlife.

If you want to keeping following our community education program on cat containment, follow us on Facebook for weekly ‘Fursday’ posts!