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The information in this fact sheet is up-to-date as of January 2011.

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6.3 Protected areas

6.3.1 Overview

Australia and NSW are facing a serious decline in biodiversity.1 It is therefore necessary to set aside sanctuaries or areas in which native species, vegetation and the ecosystems 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 protected 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 6.7 million hectares, or around 8.4% 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 (Cth) (EPBC Act), 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 EPBC Act.

This fact sheet explains how NSW and Commonwealth law protects 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.

6.3.1.1 Useful web links

• NSW State of the Environment Report 2009 (see Chapter 7 ‘Biodiversity', which contains statistics on terrestrial and aquatic protected areas in NSW)
• Commonwealth Department of Sustainablity, Water, Population and Communities

6.3.1.2 Useful legal texts

• 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.

6.3.2 NSW national parks and reserves

Many different types of protected areas fall within 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 2009.

6.3.2.1 Under-represented bioregions

Although the NSW parks system (detailed in the State of the Parks 2004 report) 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 Riverina Plains have less than 2% of their area protected within the NSW reserve system.3

6.3.2.2 NSW National Parks and Wildlife Service

The NPWS is established under the National Parks and Wildlife Act 1974 (NPW Act) and is part of DECCW. The Environment Minister is responsible for DECCW and the NPWS.

The NPWS is responsible for managing protected areas in NSW such as parks and reserves.

6.3.2.2.1 National Parks and Wildlife Advisory Council

The National Parks and Wildlife Advisory Council advises the Environment Minister and Director-General of DECCW on the operation and management of parks and reserves. It has a particular role in considering representations received on draft plans of management.4

6.3.2.3 National parks

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 and enjoyment.5

In December 2009, there were 185 national parks in NSW.6

6.3.2.3.1 How are national parks created?

National parks are created and managed under the NPW Act.7 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.8

To create a national park, the Governor must issue a notice, published in the Government Gazette, formally reserving land as a national park. The notice is then given to both houses of Parliament and may be disallowed. Once the notice is tabled in Parliament, the area becomes a national park unless the Parliament votes against it.10

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 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.

6.3.2.3.2 What sort of protection does a national park provide?

National parks provide some of the best protection of all protected areas in NSW. They are difficult to revoke as they can only be revoked by an Act of Parliament.12

However, national parks are not areas which are completely “locked away” from use. The NPW Act requires that national 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.13

Each national park must have a plan of management.14 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.15

Forestry is not permitted in a national park.16

It is an offence to harm any animal or to discharge a prohibited weapon in a national park without a licence.17 Aboriginal owners are permitted to harm animals for domestic, ceremonial or cultural purposes.18

A broad range of activities are prohibited in national parks, including: 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.19

6.3.2.3.3 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).20 However, the Environment Minister can approve prospecting for minerals in a national park on behalf of the government.21 Notice of such an approval must be given to both houses of Parliament, which can vote against the approval.22

6.3.2.3.4 Leases, licences and easements

The Environment Minister may grant leases within a national park for things such as the building and use of accommodation, hotels, tourist facilities and surf life-saving clubs.23 A lease may also allow the adaptive reuse of an existing building, and authorise the exclusive use of land and buildings within a national park.24

The Minister may also grant someone a licence to occupy or use lands within a national park.25 A licence may only be granted over a modified natural area for up to three days, and may authorise the exclusive use of that area.26 The Director-General of DECCW may also grant someone a (business) licence to operate a trade or business within a national park.27

The Environment 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.28 The Minister must refer all lease proposals to the National Parks and Wildlife Advisory Council, must publish a notice in a Statewide newspaper, and may choose to hold a public hearing into a proposed lease.29

The Minister may grant easements (such as for telecommunications) or rights of way through a national park.30 A lease, licence or easement cannot be granted over a wilderness area.31

All leases, licences (for occupation or use) and easements must be on a public register and placed on the DECCW website.32

6.3.2.4 State conservation areas

State conservation areas (formerly recreation areas) are created and managed under the NPW Act.33 They are similar to national parks in that they are relatively large areas which contain significant or representative ecosystems, landforms or natural phenomena or places of cultural significance, while providing opportunities for sustainable visitor use and enjoyment.34

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.35

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.36 The latest Review of State Conservation Areas is dated November 2008.

In 2009, there were 110 State conservation areas in NSW.37 A State conservation area cannot be revoked except by an Act of Parliament,38 or unless it is to make it a national park or nature reserve.39

6.3.2.5 Historic sites

The purpose of reserving land as an 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.40

The process for declaring and managing historic sites is generally the same as for a national park.41

In 2010, there weer 15 historic sites in NSW, including places such as Hill End, Cadman's Cottage, and Wiseman's Ferry.

6.3.2.6 Nature reserves

Nature reserves are established and managed under the NPW Act.42 They are generally smaller than national parks. They are areas which are largely untouched, with high conservation value. Their purpose is to protect special or unique ecosystems.43 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.44 The limitations on mining that apply in respect of a national park (see above) also apply in a nature reserve.45

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.46 It is also an offence to pick or possess native plants in a nature reserve without a licence.47

In 2010, there were approximately 390 nature reserves in NSW.

6.3.2.7 Karst conservation reserves

Karst conservation reserves are areas of limestone or dolomite characterised 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.48

In 2010, there were 4 karst conservation reserves in NSW: Jenolan, Wombeyan, Abercrombie and Borenore caves.

6.3.2.8 Regional parks

These are areas which have a natural or modified landscape but are suitable for recreational use and enjoyment. Regional parks are intended to provide opportunities, in an outdoor setting, for public use.49

In 2010, there were 14 regional parks in NSW, including Bomaderry Creek, Parramatta River, and Penrith Lakes.

6.3.2.9 Aboriginal areas

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.50 Aboriginal areas can be used by Aboriginal people for cultural purposes.

In 2010, there were 14 Aboriginal areas in NSW.

6.3.2.10 Wilderness areas

Wilderness areas are usually large, remote and undisturbed areas, generally unchanged by humans and their works or areas that are capable of being restored to such a state.51 One of their functions is to provide opportunities for solitude and appropriate self-reliant recreation.52 They must be managed so as to preserve the capacity of the area to evolve in the absence of significant human interference.53

As at 2010, there were 49 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.

6.3.2.10.1 How are wilderness areas created?

The Environment Minister may declare an area as wilderness by publishing a notice in the Government Gazette.54 Any person can submit a proposal to the Director-General of DECCW that land be declared as, or added to, a wilderness area.55 The Director- General must advise the Environment Minister regarding the proposal within 2 years of receiving it.56

Wilderness areas are usually protected by a wilderness protection agreement or a Conservation Agreement under the NPW Act.57

The Environment Minister may vary, but not revoke, a wilderness area dedicated under the Wilderness Act 1987, unless the revocation is authorised by an Act of Parliament.58 If the wilderness area is covered by a Conservation Agreement, the Environment Minister may vary or revoke the wilderness declaration, but must table a copy of the variation or revocation before both houses of Parliament.59

Unlike a national park, a lease, licence or easement cannot be granted over a wilderness area.60 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.61

6.3.2.10.2 Wilderness Protection Agreements

The Environment Minister may enter into a Wilderness Protection Agreement if land identified as wilderness is owned or controlled by the Crown.62 A Wilderness Protection Agreement may restrict the area's use, require a statutory authority (or Crown) to allow certain activities in the area, or require certain management actions to be taken.63

Before entering into a Wilderness Protection Agreement, the Minister must prepare a draft, and invite and consider public submissions.64 The Minister must also invite and consider comments from the National Parks and Wildlife Advisory Council.65 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.66 The management plan must be consistent with the principles set out in the Wilderness Act 1987 for the management of wilderness areas.67

A Wilderness Protection Agreement remains in force until the declaration of the area as wilderness is revoked.68 All Wilderness Protection Agreements must be kept on a public register.69

The Environment Minister may 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.70

A statutory authority may not carry out development in an area subject to a Wilderness Protection Agreement or a Conservation Agreement without the Environment Minister's consent.71 The Minister may only give consent if the development will not adversely affect the area.72

6.3.2.10.3 Enforcement

Any person may take legal action (civil proceedings) to enforce the Wilderness Act 1987 in the Land and Environment Court.73

6.3.2.11 Enforcement

6.3.2.11.1 Stop Work Orders

The Director-General of DECCW (through an authorised officer)74 may 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.75 A stop work order may not be issued if the activity is already authorised under another Act, such as by a development consent or licence to kill threatened species.76

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 may be extended for such period or periods of 40 days as the Director-General thinks fit.77 The Director-General does not need to notify anybody before an order is issued.78 The person against whom an order is made may appeal against the order to the Environment Minister.79 There is no further merits appeal to the Land and Environment Court, but the validity of the order could be challenged in the Land and Environment Court under judicial review.80

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 may be modified. If satisfactory arrangements cannot be made to protect the environment of any protected fauna or native plants, the Director-General must recommend that the Environment Minister make an interim protection order.81

6.3.2.11.2 Interim protection orders

The Environment Minister may make an interim protection order over land which has natural, scientific or cultural significance, but only after receiving a recommendation to do so from the Director-General.82 An interim protection order may prohibit someone from doing things, such as the demolition, damaging, defacing, destruction, pulling down or removal of any building, structure or work on the land, damaging the land, damaging or removing a tree or vegetation, or harming threatened species or their habitat.83

The Minister does not have to give anyone who may be affected by the order notice of the intention to make the order.84 The order takes effect when it is published in the Government Gazette or on a later date if specified in the order.85 An interim protection order has effect as specified in the order, being no longer than 2 years, unless revoked beforehand.86 The Director-General must keep a public register of all current interim protection orders.87

An owner or occupier of land subject to an interim protection order may appeal against the order to the Land and Environment Court within 60 days of receiving the order.88

It is an offence not to comply with an interim protection order. The maximum penalty for a corporation is $1.1 million and for an individual it is $110,000.89

6.3.2.11.3 Enforcement

In addition to stop work orders and interim protection orders, the NPW Act may 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.90 Proceedings for criminal offences may be dealt with by either a Local Court or the Land and Environment Court.91

However, civil proceedings to enforce breaches of the NPW Act can be brought by any person in the Land and Environment Court.92 Civil proceedings involve asking the court to grant an injunction or declaration, rather than a fine or term of imprisonment, to enforce the Act.

6.3.3 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.

The NSW State of the Environment Report 2009 states that about 46% of the NSW mainland and island ocean coastline is contained in protected areas (ie both NSW and Commonwealth areas, including marine areas within national parks).

Relatively pristine rivers can be protected as ‘wild rivers' under the NPW Act, and the Commonwealth also protects some marine areas which fall within its jurisdiction.

6.3.3.1 Marine parks in NSW

Marine parks are created under the Marine Parks Act 1997 (NSW) and are managed by the Marine Parks Authority.93 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.

A declaration of a marine park revokes any declaration of the area as an aquatic reserve.94

Once created, a marine park cannot be revoked except by an Act of Parliament.95

As at July 2008, there were 6 marine parks covering 34% of NSW coastal waters. These were:

• Solitary Islands
• Jervis Bay
• Lord Howe Island
• Cape Byron
• Port Stephens – Great Lakes
• Batemans Marine Park.

6.3.3.1.1 Zoning plans

Each marine park has its own zoning plan which specifies what can be done in each zone.96 The zones are: sanctuary zones,97 habitat protection zones,98 general use zones99 and special purpose zones.100 ‘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.101

6.3.3.1.2 Development in and near marine parks

Consent authorities under the Environmental Planning and Assessment Act 1979 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.102 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 of the Minister for Primary Industries and the Environment Minister.103

Mining is prohibited in marine parks.104

6.3.3.2 Aquatic reserves

Aquatic reserves may be declared under the Fisheries Management Act 1994 (NSW) (FM Act), and are managed by Industry and Investment NSW. Responsibility for administering the FM Act is shared between the Minister for Primary Industries and the Environment Minister. Aquatic reserves are designed to protect fish habitat; provide for species management; and to facilitate educational activities and research.106

The Minister for Primary Industries may declare an area to be an aquatic reserve by publishing a notice in the Government Gazette.107 A marine park declaration revokes any declaration of an aquatic reserve.108

The types of fishing and other activities which are allowed in each aquatic reserve are specified in the management plan,109 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 2010 there were 12 aquatic reserves in NSW, including Barrenjoey Head, Towra Point and Shiprock Aquatic Reserve.

6.3.3.2.1 Development in aquatic reserves

Development within an aquatic reserve may not proceed unless the consent authority considers any relevant management plan and obtains the concurrence of the Minister for Primary Industries.110 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.111

6.3.3.2.2 Aquatic reserve notifications

The Minister for Primary Industries may prohibit activities in an aquatic reserve (such as fishing) by issuing an aquatic reserve notification.112 The notice is published in the Gazette, in a local newspaper, and is exhibited near the reserve.113

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.114

6.3.3.3 Wild rivers

The Director-General may declare any river or part of a river to be a wild river (if it flows over land reserved under the National Parks and Wildlife Act 1974 ).115

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.116

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.117 In addition, plans of management should make provision for the protection and management of wild rivers.118

The first wild river was declared in NSW in 2005 under the National Parks and Wildlife Act 1974.

The 200 kilometers of declared wild rivers 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; and
• the upper Hastings and Forbes rivers, flowing through Werrikimbe National Park.

6.3.3.4 Commonwealth marine protected areas

6.3.3.4.1 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 (Cth).

There are about 14 Commonwealth marine protected areas throughout Australia, three of which are in NSW:

• Solitary Islands Marine Reserve;
• Cod Grounds, off Laurieton (which protects habitat for the Grey Nurse Shark); and
• Elizabeth and Middleton Reefs Marine National Park.

6.3.4 Commonwealth protected areas

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.119

The EPBC Act allows for six types of protected areas:

• World heritage properties;
• National heritage places;
• Commonwealth heritage places;
• Commonwealth reserves (including conservation zones);
• Wetlands of international significance (called Ramsar wetlands); and
• Biosphere reserves.

6.3.4.1 World Heritage properties

6.3.4.1.1 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 as world heritage sites.

Only the Australian Government can nominate places in Australia for entry onto the World Heritage List.120 The World Heritage Committee assesses each nomination and decides whether to enter a place on the World Heritage List.121 A property cannot be included on the World Heritage List without the consent of the State where the site is located.122

6.3.4.1.2 Declared world heritage properties are protected

The EPBC Act protecs ‘declared world heritage properties'.123

In 2010, there were five declared world heritage sites in NSW:

• Central Eastern Rainforest Reserves of Australia;
• Lord Howe Island;
• Willandra Lakes;
• Greater Blue Mountains Area; and
• Sydney Opera House.

For more information on World Heritage in Australia, see fact sheet 3.2.

6.3.4.1.3 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 environmental assessment is required and, if so, the type of environmental assessment that should be carried out.124

Management plans must be prepared and implemented for world heritage properties to preserve the values for which they have been listed.125

For more information on how world heritage is protected, see fact sheets 3.1 Environment Protection and Biodiversity Conservation Act and 3.2 Commonwealth Heritage law.

6.3.4.2 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 as national heritage.126

National heritage sites and their heritage values are recorded on the National Heritage List.127 Natural, historic and Indigenous sites within Australia can be listed as national heritage.128

The Commonwealth Environment Minister ultimately decides whether to include a place on the National Heritage List, although the Environment Minister must follow the consultation process set out in the EPBC Act.129

National heritage places are protected through two mechanisms: requiring environmental assessment for actions which might significantly affect th place, and requiring the Environment Minister to make management plans for all places on the National Heritage List that are entirely within a Commonwealth area.130

For more information on National Heritage places, see fact sheet 3.2 Commonwealth heritage protection law.

6.3.4.3 Commonwealth Heritage places

Heritage places on Commonwealth land can be listed, managed and protected as Commonwealth heritage.131 This type of listing gives the Commonwealth greater control over heritage places which are located in areas that the Commonwealth owns or controls.

Commonwealth heritage sites and their heritage values are recorded on the Commonwealth Heritage List.132

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 at the Commonwealth level. 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.

6.3.4.4 Commonwealth reserves and conservation zones

Commonwealth reserves can be declared over areas of land or sea that:133

• the Commonwealth owns or leases;
• are in a Commonwealth marine area; or
• are outside Australia that the Commonwealth has international obligations to protect.

6.3.4.4.1 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):134

• strict nature reserve;
• wilderness area;
• national park;
• natural monument;
• habitat / species management area;
• protected landscape / seascape; or
• managed resource protected area.

Examples of Commonwealth reserves are Kakadu National Park, Uluru-Kata Tjuta National Park and Booderee National Park at Jervis Bay.

6.3.4.4.2 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 as a Commonwealth reserve.135

Conservation zones can prohibit 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.136

6.3.4.4.3 Management plans

A management plan must be developed for each reserve.137 The management plan must not be inconsistent with the Australian IUCN reserve management principles,138 and must set out whether mining is permitted.139 Management plans expire after 10 years.140

6.3.4.4.4 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.141 The EPBC 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.142

In the absence of a management plan, prohibited activities must be approved,143 and the reserve must be managed in a way which is appropriate for its assigned category.144 There are exceptions for Indigenous persons who engage in traditional use of an area declared as a Commonwealth reserve.145

Mining and prospecting is permitted in a Commonwealth reserve if it is in accordance with the management plan.146

6.3.4.5 Ramsar wetlands

Wetlands in Australia may be listed by the Commonwealth as a ‘Wetland of International Importance' under the Ramsar Convention.147 Listing a wetland under the Ramsar Convention provides international recognition of the importance of that wetland.

6.3.4.5.1 Ramsar wetlands can be listed over public or private land

The Commonwealth may nominate wetlands on Commonwealth or State land, or public or private land (see case study below) for inclusion on the list of wetlands of international importance.148 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 public reserve system, with most being located on private and leasehold land.149

In July 2010, there were 12 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).150 All other Ramsar wetlands relate to land which is held as Crown land or a national park or reserve.

6.3.4.5.2 How are Ramsar wetlands protected?

Ramsar wetlands are protected through two mechanisms: environmental assessment is required for actions which might significantly affect a declared Ramsar wetland,151 and management plans must be prepared.

Management plans must be prepared for all Ramsar wetlands on Commonwealth lands, and the Commonwealth must use its best endeavours to prepare management plans for wetlands on non-Commonwealth land.152 Management plans must not be inconsistent with the Ramsar Convention or the Australian Ramsar management principles.153 Commonwealth agencies must take all reasonable steps to perform their functions in line with these management plans and Ramsar management principles.154

6.3.4.5.3 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 water birds, or whether the wetland regularly supports fish stocks.155

Only the Commonwealth Government may 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.

6.3.4.6 Biosphere reserves

Biosphere reserves are areas that have been designated under the UNESCO Biosphere Program.156 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.

These are 16 biosphere reserves in Australia, three of which are in NSW: Barkinkji Biosphere Reserve, Kosciuszko National Park and Yathong Nature Reserve.

1. NSW State of the Environment Report 2009 , Chapter 7 Biodiversity.
2. NSW State of the Environment Report 2009 , Chapter 7.3 Reserves and conservation.
3. NSW State of the Environment Report 2009 , Chapter 7.3, Reserves and conservation.
4. National Parks and Wildlife Act 1974, s. 23 (Functions and duties of Council).
5. National Parks and Wildlife Act 1974, s. 30E(1).
6. NSW State of the Environment Report 2009, Table 7.6 Types and Extent of NSW terrestrial protected areas.
7. National Parks and Wildlife Act 1974, s. 31.
8. National Parks and Wildlife Act 1974, s. 30B, s. 145 and s. 148.
9. National Parks and Wildlife Act 1974, s. 30A.
10. National Parks and Wildlife Act 1974, s. 35.
11. National Parks Association of NSW, ‘ Yanga National Park ' National Parks Journal (2005).
12. National Parks and Wildlife Act 1974, s. 37(1).
13. National Parks and Wildlife Act 1974, s 30E(1) and 30E (2)(d) – (e).
14. National Parks and Wildlife Act 1974, s. 72.
15. National Parks and Wildlife Act 1974, s. 72AA sets out the objectives and content of plans of management.
16. National Parks and Wildlife Act 1974, s. 42.
17. National Parks and Wildlife Act 1974, s. 45.
18. National Parks and Wildlife Act 1974, s. 45(6).
19. National Parks and Wildlife Regulation 2009, cll. 6 – 26.
20. National Parks and Wildlife Act 1974, s. 41(1) and (3), and s. 39 defines an “existing interest”.
21. National Parks and Wildlife Act 1974, s. 41(4).
22. National Parks and Wildlife Act 1974, s. 41(5).
23. National Parks and Wildlife Act 1974, ss. 151, 151B(12), and Part 12 generally.
24. National Parks and Wildlife Act 1974, s. 151B(2) and (4).
25. National Parks and Wildlife Act 1974, s. 151(1)(f).
26. National Parks and Wildlife Act 1974, ss. 151B(3) – (4).
27. National Parks and Wildlife Act 1974, s. 152.
28. National Parks and Wildlife Act 1974, s. 151B(5) – (6).
29. National Parks and Wildlife Act 1974, ss. 151B(7) – (10).
30. National Parks and Wildlife Act 1974, s 153, s. 153C (landlocked areas), and s 153D (telecommunications facilities).
31. National Parks and Wildlife Act 1974, s. 153A. But note the exceptions in s. 153C (landlocked areas), and s. 153D (telecommunications facilities).
32. National Parks and Wildlife Act 1974, s. 151D.
33. National Parks and Wildlife Act 1974, Division 4, ss. 47A – 47N.
34. National Parks and Wildlife Act 1974, s. 30G.
35. National Parks and Wildlife Act 1974, s. 30G(1)(c) and s. 47J.
36. National Parks and Wildlife Act 1974, s. 47M.
37. NSW State of the Environment Report 2009, Table 7.6: Extent and types of terrestrial protected areas and changes since 2006.
38. National Parks and Wildlife Act 1974, s. 47L.
39. National Parks and Wildlife Act 1974, s. 47MA.
40. National Parks and Wildlife Act 1974, s. 30F.
41. National Parks and Wildlife Act 1974, Division 3, ss. 31 – 46.
42. National Parks and Wildlife Act 1974, Division 6, ss. 48 – 58.
43. National Parks and Wildlife Act 1974, s. 30J.
44. National Parks and Wildlife Act 1974, s. 52.
45. National Parks and Wildlife Act 1974, s. 54.
46. National Parks and Wildlife Act 1974, s. 56.
47. National Parks and Wildlife Act 1974, s. 57.
48. National Parks and Wildlife Act 1974, s. 30I, and Division 7, ss.58K – 58S.
49. National Parks and Wildlife Act 1974, s. 30H, and Division 5, s. 47O
50. National Parks and Wildlife Act 1974, s 30K, and Division 10, ss. 62 – 64.
51. Wilderness Act 1987, s. 6.
52. Wilderness Act 1987, s. 6(1)(c), and s. 9(c).
53. Wilderness Act 1987, s. 9.
54. Wilderness Act 1987, s. 8.
55. Wilderness Act 1987, s. 7.
56. Wilderness Act 1987, s. 7(4).
57. Wilderness Act 1987, s. 8 and s. 16.
58. Wilderness Act 1987, s. 8(4A).
59. Wilderness Act 1987, s. 8(4).
60. National Parks and Wildlife Act 1974, s. 153A. But note the exceptions in s. 153C (landlocked areas), and s. 153D (telecommunications facilities).
61. Wilderness Act 1987, s. 8(5).
62. Wilderness Act 1987, s. 10.
63. Wilderness Act 1987, s. 12.
64. Wilderness Act 1987, s. 11.
65. Wilderness Act 1987, ss. 11(2) – (4).
66. Wilderness Act 1987, s. 17.
67. Wilderness Act 1987, ss. 9 and 19.
68. Wilderness Act 1987, s. 13.
69. Wilderness Act 1987, s. 14.
70. Wilderness Act 1987, s. 8(3).
71. Wilderness Act 1987, s. 15.
72. Wilderness Act 1987, s. 15(2).
73. Wilderness Act 1987, s 27, and Land and Environment Court Act 1979, s 20(1)(ch).
74. National Parks and Wildlife Act 1974, s. 156B.
75. National Parks and Wildlife Act 1974, s. 91AA.
76. National Parks and Wildlife Act 1974, s. 91AA(3) – (4).
77. National Parks and Wildlife Act 1974, s. 91DD.
78. National Parks and Wildlife Act 1974, s. 91BB.
79. National Parks and Wildlife Act 1974, s. 91CC.
80. National Parks and Wildlife Act 1974, s. 193, and Land and Environment Court Act 1979, s. 20(1)(cg).
81. National Parks and Wildlife Act 1974, s. 91EE.
82. National Parks and Wildlife Act 1974, s. 91A.
83. National Parks and Wildlife Regulation 2009, cl. 103
84. National Parks and Wildlife Act 1974, s. 91C.
85. National Parks and Wildlife Act 1974, s. 91B(2).
86. National Parks and Wildlife Act 1974, s. 91D and 91E.
87. National Parks and Wildlife Act 1974, s. 91I.
88. 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).
89. National Parks and Wildlife Act 1974 s. 91G.
90. National Parks and Wildlife Act 1974, s. 191.
91. National Parks and Wildlife Act 1974, s. 189.
92. National Parks and Wildlife Act 1974, s. 193, and Land and Environment Court Act 1979, s. 20(1)(cg).
93. Marine Parks Act 1997, Part 5 (Marine Parks Authority).
94. Marine Parks Act 1997, s 10.
95. Marine Parks Act 1997, s 8.
96. Marine Parks (Zoning Plans) Regulation 1999, cll 1.6 – 1.24.
97. Marine Parks (Zoning Plans) Regulation 1999, cll 1.11 – 1.15
98. Marine Parks (Zoning Plans) Regulation 1999, cll 1.16 – 1.18.
99. Marine Parks (Zoning Plans) Regulation 1999, cll 1.19 – 1.21.
100. Marine Parks (Zoning Plans) Regulation 1999, cll 1.22 – 1.24.
101. Marine Parks (Zoning Plans) Regulation 1999, cl 1.21.
102. Marine Parks Act 1997, s 20(2) and (3).
103. Marine Parks Act 1997, s 19.
104. Marine Parks Act 1997, s 18.
105. Marine Parks Authority (NSW Government) (2008) ‘A Review of Benefits of Marine Protected Areas and Related Zoning Considerations'.
106. Fisheries Management Act 1994, s. 194(2).
107. Fisheries Management Act 1994, s. 194.
108. Marine Parks Act 1997, s. 10.
109. Fisheries Management Act 1994, s. 197A.
110. Fisheries Management Act 1994, s. 197C
111. Fisheries Management Act 1994, s. 197D.
112. Fisheries Management Act 1994, s. 197E.
113. Fisheries Management Act 1994, s. 197F.
114. Fisheries Management Act 1994, s. 197K.
115. National Parks and Wildlife Act, s. 61(1).
116. National Parks and Wildlife Act, s. 61(4).
117. National Parks and Wildlife Ac, s. 61A(2).
118. National Parks and Wildlife Ac, s. 72AA(1)(v).
119. Environment Protection and Biodiversity Conservation Act 1999, Part 15 (Protected areas).
120. Environment Protection and Biodiversity Conservation Act 1999, s. 314. This requires the Commonwealth to use its best endeavours to reach agreement with the relevant State or person before submitting the listing.
121. World Heritage Convention, Article 11(2).
122. World Heritage Convention, Article 11(3).
123. Environment Protection and Biodiversity Conservation Act 1999, ss. 13 and 14.
124. Environment Protection and Biodiversity Conservation Act 1999, s. 15B.
125. Environment Protection and Biodiversity Conservation Ac t 1999, ss. 316, 318 and 323.
126. Environment Protection and Biodiversity Conservation Act 1999, Part 15, Division 1A, ss. 324 A – 324 ZC.
127. Environment Protection and Biodiversity Conservation Act 1999, s. 324 C
128. Environment Protection and Biodiversity Conservation Act 1999, s. 324 D, and Environment Protection and Biodiversity Conservation Regulations 2000, cl. 10.01A.
129. Environment Protection and Biodiversity Conservation Act 1999, s. 324 JJ.
130. Environment Protection and Biodiversity Conservation Act 1999, s. 324S.
131. See Environment and Heritage Legislation Amendment Act (No 1) 2006, Sch 1; and Environment Protection and Biodiversity Conservation Act 1999, ss. 341 A - 341 ZH.
132. Environment Protection and Biodiversity Conservation Act 1999, s. 341 C(1).
133. Environment Protection and Biodiversity Conservation Act 1999, s. 344.
134. Environment Protection and Biodiversity Conservation Act 1999, s. 346, and Environment Protection and Biodiversity Conservation Regulations 2000, cll. 10.03H, 10.04.
135. Environment Protection and Biodiversity Conservation Act 1999, s. 390C – D.
136. Environment Protection and Biodiversity Conservation Act 1999, s. 390E, and EPBC Regulations 2000, cl 13.01 – 13.02.
137. Environment Protection and Biodiversity Conservation Act 1999, s. 366.
138. Environment Protection and Biodiversity Conservation Act 1999, s. 367(3). The principles are set out in cl. 10.04 and Sch. 8 of the Environment Protection and Biodiversity Conservation Regulations 2000.
139. Environment Protection and Biodiversity Conservation Act 1999, s. 367(1)(f).
140. Environment Protection and Biodiversity Conservation Act 1999, s. 373.
141. Environment Protection and Biodiversity Conservation Act 1999, s. 354, and s. 354A (Offences).
142. EPBC Regulations 2000, cll. 12.10 – 12.66.
143. Environment Protection and Biodiversity Conservation Act 1999, s. 354(3A) and s. 359A.
144. Environment Protection and Biodiversity Conservation Act 1999, s. 357.
145. Environment Protection and Biodiversity Conservation Act 1999, s. 359A.
146. Environment Protection and Biodiversity Conservation Act 1999, s. 355 and s. 355A (Offences).
147. 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.
148. Environment Protection and Biodiversity Conservation Act 1999, s. 326.
149. NSW State of the Environment Report 2006, Chapter 6.7 Aquatic protected areas.
150. NSW State of the Environment Report 2006, Table 6.4 Types of NSW terrestrial protected areas.
151. Environment Protection and Biodiversity Conservation Act 1999, ss. 16 – 17B.
152. Environment Protection and Biodiversity Conservation Act 1999, ss. 328 – 334.
153. Environment Protection and Biodiversity Conservation Act 1999, 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.
154. Environment Protection and Biodiversity Conservation Act 1999, s. 334 and s. 335.
155. 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.
156. Environment Protection and Biodiversity Conservation Act 1999, s. 337.
157. Environment Protection and Biodiversity Conservation Act 1999, ss. 338 – 340. The Australian Biosphere reserve management principles are set out in the EPBC Regulations 2000, cl. 10.03 and Sch 7.