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Last updated: 12 November 2008
6.3 Protected areas
1 Overview
Key to terms used in this Fact Sheet
Act means National Parks and Wildlife Act 1974
Commonwealth Environment Department means the Commonwealth Department of Environment, Water, Heritage and the Arts
DECCW means the NSW Department of Environment, Climate Change and Water
Director-General means the Director-General of the NSW Department of Environment, Climate Change and Water3
EPBC Act means the Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Environment Minister means the NSW Minister for Climate Change and the Environment
IUCN means the International Union for the Conservation of Nature
NPW Act means the National Parks and Wildlife Act 1974 (NSW).
NPW Council means the National Parks and Wildlife Advisory Council established under the NPW Act.
NPWS means the NSW National Parks & Wildlife Service, now called the Parks and Wildlife Group within the NSW Department of Environment, Climate Change and Water.
Australia and NSW are facing a serious decline in biodiversity.1 It is therefore necessary for us to set aside sanctuaries or areas in which native species, vegetation and the ecosystems that support them can be permanently protected. Such areas are known as “protected areas”.
There are many different types of protected areas in NSW, ranging from World Heritage sites to nature reserves. Similarly, aquatic habitats are protected by marine parks and aquatic reserves. The level of legal protection varies for each type of area.
In NSW, the main legislation under which protected areas are created and managed is the National Parks and Wildlife Act 1974. These are managed by the NSW National Parks and Wildlife Service. In NSW, around 6.5 million hectares, or over 8% of the State, is in a protected area.2
Areas of land can also be protected under the main Commonwealth environmental law, the Environment Protection and Biodiversity Conservation Act 1999, which protects world heritage sites, National heritage sites and Ramsar wetlands.
Aquatic areas, such as marine parks, are protected under the Marine Parks Act 1997, the Fisheries Management Act 1994, and the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
This Fact sheet explains how NSW and Commonwealth law protects these types of protected areas.
Mechanisms for establishing protected areas on private land, such as biobanking sites, conservation agreements and wildlife refuges, are explained in Fact sheet 6.4.
1.1 Useful web links
Click here to go to the NSW State of the Environment Report 2006 (see Chapter 6 ‘Biodiversity', which contains statistics on terrestrial and aquatic protected areas in NSW)
Environmental & Planning Law in New South Wales, by Lyster, Lipman, Franklin, Wiffen and Pearson, The Federation Press (2007), Chapter 9 Protected areas, pp 342 – 379.
2 National parks and reserves
Many different types of protected areas are protected under the NSW park system, including national parks, nature reserves, wilderness areas, Aboriginal areas and State conservation areas. The primary purpose of the NSW parks system is to provide security, in perpetuity, for the State's natural and cultural heritage.
The main legislation regulating protected areas in NSW is the National Parks and Wildlife Act 1974 and National Parks and Wildlife Regulation 2002.
In January 2006, over 8% of land in NSW was held in a protected area under the National Parks and Wildlife Act 1974. These protected areas are held in over 750 parks and reserves, covering nearly 6.5 million hectares of land.4
2.1 Under-represented bioregions
Although the NSW parks system should ideally contain a representation of all terrestrial ecosystems, there exist significant regional imbalances.
For example, the bioregion with the highest proportion of land reserved within the NSW park system is the Australian Alps, which has almost 90% of its area protected in Kosciuszko National Park. In contrast, the NSW bioregions of the Riverina, NSW South-western Slopes and the Darling Riverine Plains have less than 2% of their area protected within the NSW reserve system.5
Similarly, wetlands are significantly under-represented in the NSW reserve system with most of the State's wetlands located on private and leasehold land. Only 2.4% of inland wetlands are within the NSW reserve system, with very low coverage of floodplain wetlands and freshwater lakes. Saline lakes are not represented at all.6
The NPWS is established under the National Parks and Wildlife Act 1974 and is now part of the Department of Environment, Climate Change and Water ( DECCW ). The Environment Minister is responsible for DECCW and the NPWS.
The NSW National Parks & Wildlife Service (NPWS) is responsible for managing the NSW parks system.
The NPWS also has responsibility for threatened species in NSW under the Threatened Species Conservation Act 1995 (see Fact sheet 6.1 for more information on threatened species).
The National Parks and Wildlife Advisory Council is established under the NPW Act.7 The NPW Council advises the Environment Minister and Director-General on the operation and management of parks and reserves. It has a particular role in considering representations received on draft plans of management.8
The most well known type of protected area in NSW is probably the national park. Contrary to what its name suggests, national parks are established and managed by the NSW State Government, not by the Commonwealth.
National parks generally cover large areas. Their purpose is to conserve ecosystems, natural and cultural features and landscapes, while allowing for public appreciation and sustainable visitor use.9
In January 2006, there were 173 national parks in NSW.10
2.3.1 How are national parks created?
National parks are created and managed under the National Parks and Wildlife Act 1974 (NSW).11 A national park can only be created over Crown land or land which has been acquired by, or given to, the Environment Minister for that purpose.12
To create a national park, the Governor must issue a notice, published in the Government Gazette, formally reserving land as a national park.13 The notice is then given to both Houses of Parliament and can be disallowed. Once the notice is tabled in Parliament, the area becomes a national park unless the Parliament votes against it.14
Funding is a major obstacle to reserving (creating) more national parks, and most are created from existing Crown land reserves. There is no formal process for members of the public to suggest additions to national parks, but it is possible to do so by informally lobbying the Director-General, the Environment Minister, or a State Member of Parliament.
If you want to have an area reserved as a national park, you could also approach the National Parks Association of NSW (NPA), a non-government conservation group that lobbies for the interests of national parks, or the Nature Conservation Council of NSW ( NCC ) an umbrella organisation representing 120 conservation groups across NSW.
Both the NPA and NCC are represented on the National Parks and Wildlife Advisory Council, which can discuss proposals for new park reservations with the Director-General.
Case study: Nominating an area for inclusion in a national park
Yanga National Park
Yanga National Park is considered to be the single most important acquisition in the recent history of national parks in NSW. Yanga Station, located on the Sturt Highway near Balranald on the Murrumbidgee River, was officially listed as a national park on the 28 th of February 2007 due to its geographic location, unique wildlife and cultural history.
The former owners, the Black family, had a strong environmental interest in preserving the natural and cultural heritage of the area for future generations. Despite their family association with Yanga since 1919, they decided to offer the property for sale to the government.
Yanga contains what is believed to be the largest privately owned Red Gum forest in Australia comprising 17,000 hectares and has approximately 150 kilometres of Murrumbidgee River frontage. Threatened species recorded on the property include the Southern Bell Frog, Blue-billed Duck, Freckled Duck, Australasian Bittern, Major Mitchell's Cockatoo and Regent Parrot as well as various threatened plants.
Yanga also has a rich Aboriginal heritage including associations with creation stories. Sites on the property listed on the Aboriginal sites register include mounds, scarred trees, historic sites, burials and middens.15
2.3.2 What sort of protection does a national park provide?
National parks provide the highest level protection of protected areas in NSW. For example, they cannot be easily revoked: a national park can only be revoked by an Act of Parliament.16
However, national parks are not areas which are completely “locked away” from use. The NPW Act requires that parks should also provide opportunities for public appreciation and inspiration. They should allow for sustainable visitor use and enjoyment that is compatible with the conservation of the national park's natural and cultural values.17
Each national park must have a plan of management.18 The plan must set out not only how biodiversity will be protected in the park, but the extent to which the public is allowed to use the park (sustainable visitor use), and how lessees, licencees and occupiers can use the park.19
Forestry is not permitted in a national park.20
It is an offence to harm any animal or to discharge a prohibited weapon in a national park without a licence.21 Aboriginal owners are permitted to harm animals for domestic, ceremonial or cultural purposes.22
The Regulations also prohibit a broad range of activities in national parks such as driving vehicles off-road, using camels, horses and machines in parks, trespassing, taking animals into the park, camping (unless the area is set aside for camping), littering, trapping and poisoning animals, engaging in offensive conduct, lighting fires (except in a designated place), erecting structures without consent, damaging vegetation, carrying or discharging a weapon without consent (including a spear gun), or engaging in commercial activities.23
2.3.3 Mining in national parks
Mining or prospecting for minerals is not permitted in a national park unless there is an Act of Parliament which authorises the mining or if there is a pre-existing authorisation (existing interest).24 However, the Environment Minister can approve prospecting for minerals in a national park on behalf of the Government.25 Notice of such an approval must be given to both Houses of Parliament, which can vote against the approval.26
2.3.4 Leases, licences and easements
The Environment Minister can grant leases within a national park for things such as the building and use of accommodation, hotels, tourist facilities and surf life-saving clubs.27 A lease can also allow the adaptive reuse of an existing building, and authorise the exclusive use of land and buildings within a national park.28
The Minister can also grant someone a licence to occupy or use lands within a national park.29 A licence can only be granted over a modified natural area for up to three days, and can authorise the exclusive use of that area.30 The Director-General can also grant someone a (business) licence to operate a trade or business within a national park.31
The Minister must not grant a lease or licence unless it is in accordance with the relevant plan of management, and must have regard to the conservation values and cultural significance of the park.32 The Minister must refer all lease proposals to the National Parks and Wildlife Advisory Council, must publish notice in a statewide newspaper, and can choose to hold a public hearing into a proposed lease.33
The Minister can grant easements (such as for telecommunications) or rights of way through a national park.34 A lease, licence or easement cannot be granted over a wilderness area (see case study below: Wilderness is sacrosanct).35
All leases, licences (for occupation or use) and easements must be on a public register and placed on the NPWS website.36
2.3.5 Stop work orders
The Director-General (through an authorised officer)37 can issue a stop work order if the Director-General thinks that an activity is, or is about to be, carried out that is likely to significantly affect protected (native) fauna, native plants or their environment, an Aboriginal object or place or other items of cultural heritage.38 A stop work order cannot be issued if the activity is already authorised under another Act, such as by a development consent or licence to kill threatened species.39
The order takes effect as soon as it is affixed in the area, or the person undertaking the activity is notified. A stop work order lasts for 40 days, but can be extended.40 The Director-General does not need to notify anybody before they can issue an order.41 The person against whom an order is made can appeal against the order to the Minister.42 There is no further merits appeal to the Land and Environment Court, but the validity of the order could be challenged under judicial review.43
After making a stop work order, the Director-General must immediately consult with the person proposing to take the action to determine whether the activity can be modified. If satisfactory arrangements cannot be made to protect the environment, the Director-General must recommend that the Environment Minister make an interim protection order.44
2.3.6 Interim protection orders
The Environment Minister can make an interim protection order over national park land, but only after receiving a recommendation to do so from the Director-General.45 An interim protection order can prohibit someone from doing things, such as demolishing buildings, damaging the land, damaging or removing a tree or vegetation, or harming threatened species or their habitat.46
The Minister does not have to give anyone notice before they can make the order.47 The order takes effect when it is published in the Government Gazette or on a later date if specified in the order.48 An interim protection order has effect for up to 2 years, unless revoked beforehand.49 The Director-General must keep a public register of all interim protection orders.50
An owner or occupier of land subject to an interim protection order can appeal against the order to the Land and Environment Court (Class 4) within 60 days of receiving the order.51
It is an offence not to comply with an interim protection order (the maximum penalty for a corporation is $1.1 million, for an individual, $110,000.52
2.3.7 Enforcement
In addition to stop work orders and interim protection orders, the NPW Act can also be enforced through criminal or civil proceedings in the courts.
Usually, only DECCW commences criminal proceedings for an offence committed under the NPW Act. It is possible for an individual to bring criminal proceedings, but they must have the written permission of the Director-General.53 Proceedings for criminal offences under the NPW Act and Regulations can be dealt with by either a Local Court or the Land and Environment Court.54
However, civil proceedings to enforce breaches of the NPW Act can be brought by any person in the Land and Environment Court (Class 4).55 Civil proceedings (judicial review) involve asking the court to grant an injunction or declaration, rather than a fine or term of imprisonment, to enforce the Act.
2.4 State conservation areas
State conservation areas (formerly recreation areas) are created and managed under the NPW Act.56 They are similar to national parks in that they are relatively large areas which contain significant or representative ecosystems, while providing opportunities for sustainable visitor use and enjoyment.57
However, the principal difference between a national park and a state conservation area is that mineral and petroleum exploration and mining may be permitted in state conservation areas.58
The classification of land as a state conservation area must be reviewed every 5 years to consider why it should not become a national park or nature reserve.59
In January 2006, there were 95 state conservation areas in NSW.60 A state conservation area cannot be revoked except by an Act of Parliament,61 or unless it is to make it a national park or nature reserve.62
The purpose of reserving land as a historic site is to identify, protect and conserve areas associated with a person, event or historical theme, or containing a building, place or feature of cultural significance.63
The process for declaring and managing historic sites is generally the same as for a national park.64
As July 2008, there were 15 historic sites in NSW, including places such as Hill End, Cadman's Cottage, and Wiseman's Ferry.
Nature reserves are established and managed under the NPW Act.65 They are generally smaller than national parks. They are areas which are largely untouched, with a high conservation value. Their purpose is to protect special or unique ecosystems.66 While scientific research is regularly permitted in nature reserves, there are often few visitor facilities (picnic areas, lookouts, walking tracks), in an attempt to minimise disturbance. A nature reserve cannot be revoked except by an Act of Parliament.67 The limitations on mining that apply in respect of a national park (see above) also apply in a nature reserve.68
It is an offence to harm any animal, use or possess any weapons or traps, or be accompanied by a dog in a nature reserve.69 It is also an offence to pick or possess native plants in a nature reserve without a licence.70
In July 2008, there were approximately 390 nature reserves in NSW.
Karst conservation reserves are areas of limestone or dolomite characterized by landforms such as caves. The purpose of reserving these areas under the NPW Act is to protect the caves and hydrological processes which form them, while allowing for public appreciation and sustainable visitor use.71
In July 2008, there were 4 karst conservation reserves in NSW: Jenolan, Wombeyan, Abercrombie and Borenore caves.
These are areas which have a natural or modified landscape but are suitable for recreational use and enjoyment. These parks are intended to provide opportunities, in an outdoor setting, for public use.72
In July 2008, there were 14 regional parks in NSW, including Bomaderry Creek, Parramatta River, and Penrith Lakes.
The purpose of reserving land as an Aboriginal area is to identify, protect and conserve areas associated with a person, event or historical theme, or containing a building or place, which is of natural or cultural significance to Aboriginal people.73 Aboriginal areas can be used by Aboriginal people for cultural purposes.
In July 2008, there were 14 Aboriginal areas in NSW.
The Wilderness Act 1987 (NSW) was introduced to identify, protect and manage wilderness areas. The Environment Minister is responsible for administering the Wilderness Act 19810.
Wilderness areas are usually large, remote and undisturbed areas, generally unchanged by modern human activity.74 One of their functions is to provide opportunities for solitude and appropriate self-reliant recreation.75 They must be managed so as to preserve the capacity of the area to evolve in the absence of significant human interference.76
The existing wilderness areas have all been created as an “overlay” on existing national parks and nature reserves.77
As at July 2008, there were 45 wilderness areas in NSW, representing about 2% of the total land area in NSW. These include places such as the Barrington Tops National Park (Hunter area), Mungo National Park (in outback NSW), Kosciuszko National Park (alpine area), and the Blue Mountains National Park.
The Environment Minister can declare an area as wilderness by publishing a notice in the Government Gazette.78 Any person can submit a proposal to the NPWS Director that land be declared as, or added to, a wilderness area.79 The Director must advise the Environment Minister regarding the proposal within 2 years of receiving it.80
Wilderness areas are usually protected by a wilderness protection agreement or a conservation agreement under the NPW Act.81
The Environment Minister can vary, but not revoke, a wilderness area which covers an area reserved or dedicated under the National Parks and Wildlife Act 1987, unless the revocation is authorised by an Act of Parliament.82 If the wilderness area is covered by a conservation agreement, the Environment Minister can vary or revoke the wilderness declaration, but must table a copy of the variation or revocation before both Houses of Parliament.83
Unlike a national park, a lease, licence or easement cannot be granted over a wilderness area.84 However, a declaration of an area as a wilderness area does not affect any pre-existing authorisation (existing interest), such as a permit, lease or licence.85
2.10.2 Wilderness protection agreements
The Environment Minister can enter into a wilderness protection agreement if land identified as wilderness is owned or controlled by the Crown.86 A wilderness protection agreement can restrict the area's use, require a statutory authority (or Crown) to allow certain activities in the area, and require certain management actions to be taken.87
Before entering into a wilderness protection agreement, the Minister must prepare a draft, and invite and consider public submissions.88 The Minister must also invite and consider comments from the National Parks and Wildlife Advisory Council.89 Areas covered by a wilderness protection agreement must also have a management plan, unless one has already been prepared for the area under the NPW Act.90 The management plan must be consistent with the principles set out in the Wilderness Act 1987 for the management of wilderness areas.91
A wilderness protection agreement remains in force until the declaration of the area as wilderness is revoked.92 All wilderness protection agreements must be kept on a public register.93
The Environment Minister can vary, but not revoke, the declaration of a wilderness area which is protected by a wilderness protection agreement, unless the revocation is authorised by an Act of Parliament.94
A statutory authority cannot carry out development in an area subject to a wilderness protection agreement or a conservation agreement without the Environment Minister's consent.95 The Minister can only give consent if the development will not adversely affect the area.96
2.10.3 Enforcement
Any person can take legal action (civil proceedings) to enforce the Wilderness Act 1987 in the Land and Environment Court (Class 4).97
Case study: Wilderness is sacrosanct
Blue Mountains Conservation Society Inc v Director-General National Parks and Wildlife; the Minister for the Environment and AFG Talons Pty Ltd (2004) 133 LGERA 406
In May 2004, the Blue Mountains Conservation Society Inc successfully prevented the filming of a war movie in the Grose Wilderness Area of the Blue Mountains National Park.
A film company proposed to film some scenes for a movie known as “Stealth” in the Grose Wilderness Area. The Director-General of the Department of Environment and Conservation granted the company an approval to carry out filming activity, and the NPWS issued a consent. These approvals would have permitted the construction of raised platforms and walkways, temporary generators, film and lighting equipment and the use of micro explosives.
The Blue Mountains Conservation Society objected to the filming because the Grose Wilderness Area was a sensitive environment, being a hanging swamp and a transitional open forest, and the larvae of the endangered giant dragonfly may be killed.
The Court held that the proposed filming activities were not consistent with the management objectives for a wilderness area set out in the Wilderness Act 1987 (s 9). The approvals granted exclusive use of part of the Wilderness Area which amounted to the grant of a licence, and licences could not be issued in wilderness areas ( NPW Act, s 153A.
The Court declared the approvals to be invalid, and granted an injunction restraining filming from taking place in the Grose Wilderness Area.
In his judgment, the judge stated that “the governing consideration in the present case is this: declared wilderness areas are sacrosanct.”
3 Aquatic protected areas
In NSW, marine areas can be protected as:
marine parks, or
aquatic reserves.
The boundaries of some national parks also extend into aquatic areas.
In May 2006, about 45% of the NSW mainland and island ocean coastline was contained in protected areas (ie both NSW and Commonwealth areas, including marine areas within national parks).98
Relatively pristine rivers can be protected as ‘wild rivers' under the National Parks and Wildlife Act 1974, and the Commonwealth also protects some marine areas which fall within its jurisdiction.
A ‘no take zone' (NTZ) (or sanctuary zone) is a marine area that has been temporarily or permanently closed to fishing and other resource extracting activities. NTZs are a natural resource management tool that aim to ensure the long-term sustainability of marine areas, to enhance species diversity and ecosystem recovery and increase biomass. In addition to providing biological benefits, well selected no take zones and coordinated restrictions in adjoining areas can help ensure juvenile stock reach maturity and provide significant commercial benefits to fisheries, tourism and recreational anglers.99
Sanctuary zones in NSW
In New South Wales, the declaration of marine parks, zoning arrangements and the management of activities are governed by the Marine Park Act 19910. Declared marine parks are required to produce zoning plans that are subject to public notice within 12 months after declaration. Zoning plans can include no take (sanctuary) zones, as well as special purpose, habitat protection and general zones. The level and extent of activity permitted varies across the zones. Zoning plans are subject to review requirements.
Zoning plans, including the extent and location of no take zones vary across NSW marine parks dependent upon the ecological fragility or the area, the presence of protected species and the location of productive areas and breeding grounds.
Generally in designated no take or sanctuary zones in NSW, all fishing (including recreational activities) and any other taking of plant or animal life is prohibited. The prohibitions include:
All forms of fishing, including the collection of bait fish and shellfish.
Anchoring of vessels in reef or sea grass zones.
Collection of seashells or minerals such as sand.
The removal of seaweed.
The capture of fish for home aquariums.
Gutting of fish and cleaning of fishing equipment.
Excessive vessel speeds.
The above list is a general guide only. The Marines Park Authority produces guides for each NSW marine park, including no take restrictions that are specific to particular localities and general restrictions on activities.
Marine park rangers are empowered to issue penalty notices to persons found to be breaching no take regulations, and more serious offences can be pursued in the Land and Environment Court or the Local Court. In January 2009, a commercial fisherman was fined $10,000 in the Local Court for fishing in a no take zone within the Batemans Marine Park. Several of the Maori Wrasse and Red Rock Cod were still alive and were returned to the water.
No Take Zones in Federal Waters
The federal government is responsible for marine areas beyond 3 nautical miles from shore. Under the Environment Protection and Biodiversity Conservation Act 1999 (Cth), a significant network of marine protected areas have been declared in federal waters. Activities within Commonwealth reserves are regulated by management plans. Such plans can include the zoning of ‘no take' or sanctuary areas. Federal marine areas and their zones are allocated an IUCN category which prescribes the management principles to be applied in the reserve and subsequently the level of fishing and other activity within the zone. Lord Howe Island Marine Park (Commonwealth) for example, extends over 300,000 ha, of which 96,000 ha is declared sanctuary zones. Within the sanctuary zone, no commercial or recreational collecting or fishing is allowed.
As noted above, there is considerable scientific evidence that ‘no take' zones can produce both biological and commercial benefits. In light of the growing evidence and the importance of integrating and co-ordinating valuable sanctuary zones, t he Australian Government has committed to the creation of a National Representative System of Marine Protected Areas by 2012. The NSW Government has also previously committed to a multiple use marine park in each NSW marine region by 20010.
The New South Wales Nature Conservation Council is currently campaigning to increase the number of marine parks and the extent of sanctuary zones. Currently, 6% of NSW marine areas are protected ‘no take' zones. In addition, the NCC is seeking an additional 16 no take zones to further protect the endangered Grey Nurse Shark. The additional proposed protection would affect 1% of NSW marine waters.
3.1 Marine parks in NSW
Marine parks are created under the Marine Parks Act 1997 (NSW) and are managed by the Marine Parks Authority.100 They aim to conserve marine biodiversity and marine habitats by creating a comprehensive system of marine parks. The Minister for Primary Industries is jointly responsible for the Marine Parks Act 1997 together with the Environment Minister.
Marine parks can overlap national parks and nature reserves, but they cannot coexist with aquatic reserves as marine park declaration revokes an aquatic reserve.101
Once created, a marine park cannot be revoked except by an Act of Parliament.102
As at July 2008, there were 6 marine parks covering 34% of NSW coastal waters. These are:
Solitary Islands
Marine Park Jervis Bay
Marine Park Lord Howe Island
Marine Park Cape Byron
Marine Park Port Stephens – Great Lakes
Marine Park Bateman's Marine Park.
Click here to go to the DECCW website on marine parks
3.1.1 Zoning plans
Each marine park has its own zoning plan which specifies what can be done in each zone.103 The Regulations provide for sanctuary zones,104 habitat protection zones,105 general use zones106 and special purpose zones.107 ‘Sanctuary' zones provide the highest level of protection and do not permit fishing, collecting, dredging, aquaculture or mooring on designated sites. ‘Habitat protection' zones also provide a high level of protection, but allow for some recreational and fishing activities which do not harm habitat or affect fish populations. Aquaculture is permitted within a general use zone.108
3.1.2 Development in and near marine parks
Consent authorities under the EPA Act must consult with the Marine Parks Authority about developments that are in the locality of a marine park, and which are likely to have an effect on the plants and animals within the park.109 A consent authority which is considering a development application for development within a marine park must consider the objects of the Marine Parks Act 1997, any relevant zoning plan, and in some cases, obtain the concurrence (agreement) of the Primary Industries Minister and Environment Minister.110
Mining is prohibited in marine parks.111
3.2 Aquatic reserves
Aquatic reserves can be declared under the Fisheries Management Act 1994 (NSW), and are managed by the NSW Department of Primary Industries (Fisheries). The Act is managed jointly by the Minister for Primary Industries and the Environment Minister. The purpose of an aquatic reserve is to protect fish habitat, to allow for species management, and to protect threatened species and communities.112
The Minister for Primary Industries can declare an area to be an aquatic reserve by publishing a notice in the Government Gazette.113 A marine park declaration revokes an aquatic reserve.114
The types of fishing and collecting which are allowed in each aquatic reserve are specified in the management plan,115 or in the Fisheries Management (Aquatic Reserves) Regulation 2002 which contains detailed provisions relating to Long Reef, Shiprock, Towra, North Harbour and Bushranger's Bay.
In September 2008, there were 12 aquatic reserves in NSW, including Barrenjoey Head, Towra Point and Shiprock Aquatic Reserve.
Development within an aquatic reserve cannot proceed unless the consent authority considers any relevant management plan and obtains the concurrence (agreement) of the Minister for Primary Industries.116 Developments outside an aquatic reserve, but which might affect plants or animals within an aquatic reserve, may require prior consultation with the Minister for Primary Industries.117
3.2.2 Aquatic reserve notifications
The Minister for Primary Industries can prohibit activities in an aquatic reserve (such as fishing) by issuing an aquatic reserve notification.118 The notice is published in the Gazette, in a local newspaper, and is exhibited near the reserve.119
It is an offence to carry out an activity, or to possess an animal, plant, rock, sand or other thing, in contravention of an aquatic reserve notification.120
3.3 Wild rivers
The Director-General can declare any river or part of a river to be a wild river (if it flows over land reserved under the NPW Act).121
The purpose of declaring a wild river is to protect and conserve water courses which exhibit substantially natural flows in a condition largely undisturbed since European occupation.122
The effect of a wild river declaration is very limited: it requires a statutory authority to consult with, and consider the advice of, the Environment Minister before carrying out development in relation to a wild river.123 In addition, plans of management prepared under the NPW Act should make provision for the protection and management of wild rivers.124
The first wild river was declared in NSW in 2005 under the National Parks and Wildlife Act 1974.
The 200 kms of declared wild river in NSW are:
Washpool Creek, where it flows through Washpool National Park
A stretch of the Upper Brogo River, in Wadbilliga National Park
The Kowmung River, where it flows through Kanangra-Boyd National Park
The upper Hastings and Forbes rivers, flowing through Werrikimbe National Park.
3.4 Commonwealth marine protected areas
3.4.1 Marine reserves and parks
Commonwealth marine reserves and parks are located in Commonwealth waters and are reserved and managed under the Environment Protection and Biodiversity Conservation Act 1999.
There are about 14 Commonwealth marine protected areas throughout Australia, of which three are in NSW:
Solitary Islands Marine Reserve
Cod Grounds, off Laurieton (which protects habitat for the Grey Nurse Shark)
Elizabeth and Middleton Reefs Marine National Park.
At the Commonwealth level, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) allows the Commonwealth Government to create and manage several types of protected areas.125
The Environment Protection and Biodiversity Conservation Act 1999 allows for six types of protected areas:
Wetlands of international significance (called Ramsar wetlands)
Biosphere reserves
4.1 World Heritage properties
4.1.1 How are World Heritage properties listed?
The Convention for the Protection of the World Cultural and Natural Heritage (1972) ( World Heritage Convention ) allows places of “outstanding, universal, natural or cultural heritage value” to be listed and protected.126
Only the Australian Government can nominate places in Australia for entry onto the World Heritage List.127 The World Heritage Committee, established under the World Heritage Convention,128 assesses each nomination and decides whether to enter a place on the World Heritage List.129 A property cannot be included on the World Heritage List without the consent of the State where the site is.130
4.1.2 Declared world heritage properties are protected
The Environment Protection and Biodiversity Conservation Act 1999 provides protection for ‘declared world heritage properties'.131
In October 2008, there were five declared world heritage sites in NSW:
Central Eastern Rainforest Reserves of Australia,
Lord Howe Island,
Willandra Lakes and
the Greater Blue Mountains Area,
the Sydney Opera House.
For more information on World Heritage in Australia, see Fact sheet 3.2.
4.1.3 Environmental assessment and management plans
Declared world heritage properties are protected under the EPBC Act through two mechanisms: environmental assessment and management plans.
Activities which may have a significant impact on the values of a world heritage site must be referred to the Commonwealth Environment Minister, who then determines whether, and if so, what level of environmental assessment is required.132
Management plans must be prepared and implemented for World Heritage properties to preserve the values for which they have been listed.133
For more information on how World Heritage is protected under the EPBC Act, see Fact sheets 3.1 EPBC Act and 3.2 Commonwealth Heritage law
4.2 National Heritage places
The EPBC Act allows places which are thought to be of outstanding heritage value to the nation to be listed, managed and protected.134
National Heritage sites and their heritage values are recorded on the National Heritage List.135 A place that is included in the National Heritage List is called National Heritage place.136 Natural, historic and Indigenous sites within Australia can be listed as National Heritage.137
The Environment Minister ultimately decides whether to include a place on the List, although the Minister must follow the consultation process set out in the EPBC Act.138
National Heritage places are protected through two mechanisms: requiring environmental assessment for actions which might significantly affect a place, and requiring the Minister to make management plans for all places on the National Heritage List that are entirely within a Commonwealth area.139
For more information on National Heritage places, see Fact sheet 3.2 (Commonwealth heritage protection law).
4.3 Commonwealth Heritage places
On 19 February 2007, amendments to the EPBC Act came into force which allow heritage on Commonwealth land to be listed, managed and protected.140 The purpose of this new type of listing is to give the Commonwealth greater control over heritage places which are located in the areas that the Commonwealth owns or controls.
Commonwealth heritage sites and their heritage values are recorded on the Commonwealth Heritage List.141 A place that is on the Commonwealth Heritage List is called a Commonwealth Heritage place.142
Commonwealth Heritage listing does not offer as much protection as National Heritage listing because, unlike National Heritage, Commonwealth Heritage is not listed as a matter of national environmental significance under the EPBC Act, which triggers the requirement for environmental assessment (see Fact sheet 3.1 for more information on the EPBC Act and matters of national environmental significance.)
For more information on how Commonwealth Heritage places are listed and protected, see Fact sheet 3.2 on Commonwealth heritage protection law.
4.4 Commonwealth reserves and conservation zones
Commonwealth reserves can be declared over areas of land or sea that:143
the Commonwealth owns or leases;
are in a Commonwealth marine area; or
are outside Australia that the Commonwealth has international obligations to protect.
4.4.1 Reserves must be assigned a category
When a new Commonwealth reserve is created, it must be assigned to one of the following categories (based on IUCN categories):144
strict nature reserve
wilderness area
national park
natural monument
habitat / species management area
protected landscape / seascape
managed resource protected area
Examples of Commonwealth reserves are Kakadu National Park, Uluru-Kata Tjuta National Park and Boodereee National Park at Jervis Bay.
Australia's National Reserve System
As part of its membership in the IUCN (International Conservation Union) WCPA (World Commission on Protected Areas), the Australian Network of Environmental Defender's Offices (ANEDO) was invited to prepare a submission on the draft strategy for Australia's National Reserve System 2008-2030, which sets out the directions for protection and management of terrestrial biodiversity under the National Reserve System. The strategy is grounded in sound ecological principles and provides a good direction to protected area managers, however requires funding for full implementation for these benefits to be realised.
4.4.2 Conservation zones pending reserve declaration
The EPBC Act allows an area to be declared as a conservation zone while it is being assessed for inclusion in a Commonwealth reserve.145
Land is protected in a conservation zone under the EPBC Regulation 2000, which prohibits a wide range of activities from being undertaken in the zone, such as building, damaging the area, taking plants or animals, lighting fires and fishing.146
4.4.3 Management plans
A management plan must be developed for each reserve.147 The management plan must not be inconsistent with the Australian IUCN reserve management principles,148 and must set out whether mining is permitted.149 Management plans expire after 10 years.150
4.4.4 Use of Commonwealth reserves
Many works (such as building and excavating) and activities (such as killing or taking native species) cannot be carried out in a Commonwealth reserve unless permitted by a management plan.151 The Regulations set out a broad range of general offences, such as carrying out scientific research, dumping waste, taking animals into a reserve, climbing, abseiling, walking off marked tracks, camping and lighting fires.152
In the absence of a management plan, prohibited activities must be approved,153 and the reserve must be managed in a way which is appropriate for its assigned category.154 There are exceptions for indigenous persons who engage in traditional use of an area declared as a Commonwealth reserve.155
Mining and prospecting is permitted in a Commonwealth reserve if it is in accordance with the management plan.156
Wetlands in Australia can be listed by the Commonwealth as a ‘Wetland of International Importance' under the Ramsar Convention.157 Listing a wetland under the Ramsar Convention provides international recognition of the importance of that wetland.
4.5.1 Ramsar wetlands can be listed over public or private land
The Commonwealth can nominate for inclusion on the List of Wetlands of International Importance under the Ramsar Convention wetlands on Commonwealth or State land, or public or private land (see case study below).158 It is not necessary that the State or Territory, or the landholder ultimately agree to the proposal.
The potential to list wetlands located on private or leasehold land is particularly important because wetlands are significantly under-represented in the NSW reserve system, with most being located on private and leasehold land.159
In January 2006, there were 11 Ramsar wetlands in NSW, with only three of these being over private land (Gwydir Wetlands, a small part of the Hunter Estuary – Shortland Wetlands, and the Wilgara Wetlands in the Macquarie Marshes).160 All other Ramsar wetlands relate to land which is held as Crown land or a national park or reserve.
Click here to go to the Commonwealth's EPBC Act website on Ramsar wetlands
4.5.2 How are Ramsar wetlands protected?
Ramsar wetlands are protected through two mechanisms: requiring environmental assessment for actions which might significantly affect a declared Ramsar wetland,161 and requiring management plans.
Management plans must be prepared for all Ramsar wetlands on Commonwealth lands, and the Commonwealth must use its best endeavours to prepare one for wetlands on non-Commonwealth land.162 Management plans must not be inconsistent with the Ramsar Convention or the Australian Ramsar management principles.163 Commonwealth agencies must all use reasonable steps to perform their functions in line with these management plans and Ramsar management principles.164
4.5.3 Nominating a wetland for Ramsar listing
Criteria have been developed under the Ramsar Convention to assess whether a nominated wetland is one of international importance and should be included on the List of Wetlands of International Importance. These criteria include things such as whether the wetland supports endangered species, whether the wetland regularly supports 20,000 or more waterbirds, or whether the wetland regularly supports fish stocks.165
Only the Commonwealth Government can nominate a wetland for listing. If you wish to see a particular wetland protected, you can write to the Commonwealth Environment Minister asking the Minister to consider a Ramsar listing for that particular site. Make sure that you address the requirements for nomination and the criteria that must be met under the Ramsar Convention. If the site is owned or controlled by the State or a private individual, it will be extremely helpful if the landowner supports their wetland being listed.
Some conservation groups which focus on wetland protection, such as the World Wide Fund for Nature or the National Parks Association of NSW may be able to help you prepare your submission to the Commonwealth Government.
For more information on how Ramsar wetlands are listed and protected in Australia, see Fact sheet 3.1 on the EPBC Act.
Case study: How private land in the Gwydir Wetlands was declared as a Ramsar site
The Gwydir Wetlands are in the heart of one of Australia's largest cotton growing areas, at the end of the Gwydir River in northern NSW. The wetlands provide breeding and feeding grounds for large numbers of waterbirds, such as jabiru, magpie geese, brolga, freckled ducks, and habitat for endangered species.
For the past thirty years water flow to the wetlands has been reduced due to water extraction for irrigation. As a result of the change in flow patterns, large areas of the wetland are failing to receive regular flooding.
Large parts of the wetland are held as private freehold land by a number of different owners.
In 1997, the World Wide Fund for Nature ( WWF ) and the National Parks Association of NSW ( NPA ) began working with these landowners to establish a Ramsar listing over the wetlands. To begin with, WWF and NPA established an ‘in principle' process for making Ramsar nominations over private land with the NSW National Parks and Wildlife Service ( NPWS ) and Environment Australia.
An informal consultative group was then established, which included interested landholders, an independent wetlands ecologist, regional and head office staff from NPWS and Environment Australia, and staff from NPA and WWF. Properties with important wetland areas were identified with the assistance of a wetlands ecologist, and this included the Gwydir wetlands. Landholders on the Gwydir were sent a discussion paper and invited to a series of meetings to discuss the implications of a Ramsar listing.
In February 1999, after numerous meetings and discussions, all parties supported the land being nominated as a Ramsar wetland. In May 1999, the Gwydir wetlands were formally announced by the Commonwealth Government as Australia's 50th Ramsar site.
4.6 Biosphere reserves
Biosphere reserves are areas that have been designated under the UNESCO Biosphere Program.166 They are areas in which people are an integral component, and are managed to support sustainable relationships between people and their environment. They are not a major component of the Commonwealth's strategy to protect biodiversity, and there is no formal mechanism in the EPBC Act for creating a biosphere reserve.
The Commonwealth and each Commonwealth agency must exercise its powers and functions in relation to a biosphere reserve in a way that is not inconsistent with the Australian Biosphere reserve management principles or a management plan.167
These are 14 biosphere reserves in Australia, of which three are in NSW: Barkinkji Biosphere Reserve, Kosciuszko National Park and Yathong Nature Reserve.
Click here to go the Commonwealth Environment Department's website on biosphere reserves
See the NSW State of the Environment Report 2006, Chapter 6 Biodiversity.
NSW State of the Environment Report 2006, Chapter 6.2 Terrestrial reserve system and conservation.
National Parks and Wildlife Act 1974, s 5 (Definitions)
NSW State of the Environment Report 2006, Chapter 6.2 Terrestrial reserve system and conservation, Table 6.4.
NSW State of the Environment Report 2006, Chapter 6.2, Terrestrial reserve system and conservation.
NSW State of the Environment Report 2006, Chapter 6.7 Aquatic protected areas.
National Parks and Wildlife Act 1974, s 22.
National Parks and Wildlife Act 1974, s 23 (Functions and duties of Council).
National Parks and Wildlife Act 1974, s 30E(1).
NSW State of the Environment Report 2006, Table 6.4 Types of NSW terrestrial protected areas.
National Parks and Wildlife Act 1974, s 31.
National Parks and Wildlife Act 1974, s 30B, s 145 and s 148.
National Parks and Wildlife Act 1974, s 30E(1) and 30E (2)(d) – (e).
National Parks and Wildlife Act 1974, s 72.
National Parks and Wildlife Act 1974, s 72AA sets out the objectives and content of plans of management.
National Parks and Wildlife Act 1974, s 42.
National Parks and Wildlife Act 1974, s 45.
National Parks and Wildlife Act 1974, s 45(6).
National Parks and Wildlife Regulations 2002, clauses 6 – 25.
National Parks and Wildlife Act 1974, s 41(1) and (3), and s 39 defines an “existing interest”.
National Parks and Wildlife Act 1974, s 41(4).
National Parks and Wildlife Act 1974, s 41(5).
National Parks and Wildlife Act 1974, s 151, s 151B(12), and Part 12 generally.
National Parks and Wildlife Act 1974, s 151B(2) and (4).
National Parks and Wildlife Act 1974, s 151(1)(f).
National Parks and Wildlife Act 1974, s 151B(3) – (4).
National Parks and Wildlife Act 1974, s 152.
National Parks and Wildlife Act 1974, s 151B(5) – (6).
National Parks and Wildlife Act 1974, s 151B(7) – (10).
National Parks and Wildlife Act 1974, s 153, s 153C (landlocked areas), and s 153D (telecommunications facilities).
National Parks and Wildlife Act 1974, s 153A. But note the exceptions in s 153C (landlocked areas), and s 153D (telecommunications facilities).
National Parks and Wildlife Act 1974, s 151D.
National Parks and Wildlife Act 1974, s 156B.
National Parks and Wildlife Act 1974, s 91AA.
National Parks and Wildlife Act 1974, s 91AA(3) – (4).
National Parks and Wildlife Act 1974, s 91DD.
National Parks and Wildlife Act 1974, s 91BB.
National Parks and Wildlife Act 1974, s 91CC.
National Parks and Wildlife Act 1974, s 176A, and Land and Environment Court Act 1979, s 20(1)(cg).
National Parks and Wildlife Act 1974, s 91EE.
National Parks and Wildlife Act 1974, s 91A.
National Parks and Wildlife Regulation 2002, cl 92
National Parks and Wildlife Act 1974, s 91C.
National Parks and Wildlife Act 1974, s 91B(2).
National Parks and Wildlife Act 1974, s 91D and 91E.
National Parks and Wildlife Act 1974, s 91I.
National Parks and Wildlife Act 1974, s 91H, Land and Environment Court Act 1979, s 20(1)(cf), and Land and Environment Court Rules 2007, Rule 6.1 (Time for appeal).
National Parks and Wildlife Act 1974 s 91G.
National Parks and Wildlife Act 1974, s 179(1A).
National Parks and Wildlife Act 1974,s 176.
National Parks and Wildlife Act 1974, s 176A, and Land and Environment Court Act 1979, s 20(1)(cg).
National Parks and Wildlife Act 1974, Division 4, s 47A – 47N.
National Parks and Wildlife Act 1974, s 30G.
National Parks and Wildlife Act 1974, s 30G(1)(c) and s 47J.
National Parks and Wildlife Act 1974, s 47M.
NSW State of the Environment Report 2006, Table 6.4 Types of NSW terrestrial protected areas.
National Parks and Wildlife Act 1974, s 47L.
National Parks and Wildlife Act 1974, s 47MA.
National Parks and Wildlife Act 1974, s 30F.
National Parks and Wildlife Act 1974, Division 3, s 31 – 46.
National Parks and Wildlife Act 1974, Division 6, s 48 – 58.
National Parks and Wildlife Act 1974, s 30J.
National Parks and Wildlife Act 1974, s 52.
National Parks and Wildlife Act 1974, s 54.
National Parks and Wildlife Act 1974, s 56.
National Parks and Wildlife Act 1974, s 510.
National Parks and Wildlife Act 1974, s 30I, and Division 7, sections 58K – 58S.
National Parks and Wildlife Act 1974, s 30H, and Division 5, sections 47O -
National Parks and Wildlife Act 1974, s 30K, and Division 10, sections 62 – 64..
Wilderness Act 1987, s 6.
Wilderness Act 1987, s 6(1)(c), and s 9(c).
Wilderness Act 1987, s 9.
Wilderness Act 1987, s 8(1A0.
Wilderness Act 1987, s 8.
Wilderness Act 1987, s 10.
Wilderness Act 1987, s 7(4).
Wilderness Act 1987, s 8 and s 16.
Wilderness Act 1987, s 8(4A).
Wilderness Act 1987, s 8(4).
National Parks and Wildlife Act 1974, s 153A. But note the exceptions in s 153C (landlocked areas), and s 153D (telecommunications facilities).
Wilderness Act 1987, s 8(5).
Wilderness Act 1987, s 10.
Wilderness Act 1987, s 12.
Wilderness Act 1987, s 11.
Wilderness Act 1987, s 11(2) – (4).
Wilderness Act 1987, s 110.
Wilderness Act 1987, s 9 and 19.
Wilderness Act 1987, s 13.
Wilderness Act 1987, s 14.
Wilderness Act 1987, s 8(3).
Wilderness Act 1987, s 15.
Wilderness Act 1987, s 15(2).
Wilderness Act 1987, s 27, and Land and Environment Court Act 1979, s 20(1)(ch).
NSW State of the Environment Report 2006, Chapter 6.7 Aquatic protected areas.
Marine Parks Authority (NSW Government) (2008) ‘A Review of Benefits of Marine Protected Areas and Related Zoning Considerations'. Available at: http://www.mpa.nsw.gov.au/pdf/A-review-of-benefits-MPAs.pdf
Marine Parks Act 1997, Part 5 (Marine Parks Authority).
Marine Parks Act 1997, s 10.
Marine Parks Act 1997, s 8.
Marine Parks Regulation 1999, Part 2, ss 17B – F.
Marine Parks Regulation 1999, cl 6 – 9A
Marine Parks Regulation 1999, cl 10 – 13.
Marine Parks Regulation 1999, cl 14 – 110.
Marine Parks Regulation 1999, cl 18 – 18C.
Marine Parks Regulation 1999, cl 110.
Marine Parks Act 1997, s 20(2) and (3).
Marine Parks Act 1997, s 19.
Marine Parks Act 1997, s 18.
Fisheries Management Act 1994, s 194(2).
Fisheries Management Act 1994, s 194.
Marine Parks Act 1997, s 10.
Fisheries Management Act 1994, s 197A.
Fisheries Management Act 1994, s 197C
Fisheries Management Act 1994, s 197D.
Fisheries Management Act 1994, s 197E.
Fisheries Management Act 1994, s 197F.
Fisheries Management Act 1994, s 197K.
NPW Act, s 61(1).
NPW Act, s 61(4).
NPW Act, s 61A(2).
NPW Act, s 72AA(1)(v).
EPBC Act, Part 15 (Protected areas).
Click here to see a copy of the World Heritage Conventionhttp://www.austlii.edu.au/au/other/dfat/treaties/1975/410.html].
EPBC Act, s 314 requires the Environment Minister to use its best endeavours with the relevant State or person before submitting the listing.
World Heritage Convention, Article 8.
World Heritage Convention, Article 12(2).
World Heritage Convention, Article 11(3).
EPBA Act, s 13 and 14.
EPBC Act, s 15B.
EPBC Act, s 316, 318 and 323.
EPBC Act, Part 15, Division 1A, ss 324 A – 324 ZC.
EPBC Act, s 324 C
EPBC Act, s 324 D(2).
EPBC Act, s 324 D, and EPBC Regulations 2000, cl. 10.01A.
EPBC Act, s 324 JJ.
EPBC Act, s 324S.
See Environment and Heritage Legislation Amendment Act (No 1) 2006, Sch 1; and EPBC Act, ss 341 A - 341 ZH.
EPBC Act, s 341 C(1).
EPBC Act, s 341 C(3).
EPBC Act, s 344.
EPBC Act, s 346, and Environment Protection and Biodiversity Conservation Regulations 2000, cl 10.03.
EPBC Act, s 390C – D.
EPBC Act, s 390E, and EPBC Regulations 2000, cl 13.01 – 13.02.
EPBC Act, s 366.
EPBC Act, s 367(3), the principles are set out in cl 10.04 and Sch 8 of the Environment Protection and Biodiversity Conservation Regulations 2000.
EPBC Act, s 367(1)(f).
EPBC Act, s 373.
EPBC Act, s 354, and s 354A (Offences).
EPBC Regulations 2000, cll 12.10 – 12.66.
EPBC Act, s 354(3A) and s 359A.
EPBC Act, s 3510.
EPBC Act, s 359A.
EPBC Act, s 355 and s 355A (Offences).
Convention on Wetlands of International Importance 1971 (known as the Ramsar Convention). The Convention was signed in the small town of Ramsar, Iran, in 1971, and is thus known as the Ramsar Convention.
EPBC Act, s 326.
NSW State of the Environment Report 2006, Chapter 6.7 Aquatic protected areas.
NSW State of the Environment Report 2006, Table 6.4 Types of NSW terrestrial protected areas.
EPBC Act, s 16 – 17B.
EPBC Act, s 328 – s 334. EPBC Act.
EPBC Act, s 328(3). Section 335 allows regulations to set out principles for the management of Australian Ramsar wetlands. The Australian Ramsar management principles can be found in the Environment Protection and Biodiversity Conservation Regulations 2000, cl 10.02..
EPBC Act, s 334 and s 335.
As adopted by the 4 th, 5 th, 6 th and 7 th Meetings of the Conference of the Parties to the Ramsar Convention to guide the implementation of Article 2.1 on the designation of Ramsar wetlands.
EPBC Act, s 3310.
EPBC Act, s 338 – 340. The Australian Biosphere reserve management principles are set out in the EPBC Regulations 2000, cl 10.03 and Sch 10.
