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
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.
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]