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Last updated: 16 October 2008
8.3 Managing Country
1 Overview
Key to terms used in this Fact Sheet
DECCW means the NSW Department of Environment, Climate Change and Water
EPA means the Environment Protection Authority (under DECCW)
IPA means Indigenous Protected Areas
LALC means Local Aboriginal Land Council
NPWS means the National Parks and Wildlife Service
PEOE Act means the Protection of the Environment Operations Act 1997
RFS means the NSW Rural Fire Service
Aboriginal people have managed the environments of NSW for thousands of years. This factsheet outlines how environmental laws can be used to continue to manage country. It addresses contaminated lands, the dumping of rubbish, water and noise pollution, bushfire mitigation, mining and environmental conservation.
2 Contaminated land
Contaminated land is land that contains pollutants at above-average levels and may cause harm to humans or the environment.1 A public register of all regulated contaminated lands is available through the Environment Protection Authority (EPA).2 Sites that are being monitored by the EPA for air, water, noise, and waste impacts can be found on the Protection of the Environment Operations Act1997 (POEO Act) register.3 The Land Titles Office also maintains records of land that has been declared unhealthy building land. If the Local Council is responsible for dealing with the contaminated land, it may not appear on these registers. In this case, the Local Council can provide information on contaminated land in the form of a certificate if you request one.4
You must inform the EPA if you become aware of any contamination on your land, even if the contamination was not caused by you.5 The EPA can order an investigation into land, to establish whether the contamination poses a risk of harm.6 Where it is not a significant risk, the Local Council is responsible for management.
If contamination is found to be present you, as occupier of the land, may be asked to remediate the land7 according to a remediation order8 or a clean up notice.9
Remediation may involve:
preparing a long-term management plan (if any) for the land, and
removing, dispersing, destroying, reducing, mitigating or containing the contamination of the land, and
eliminating or reducing any hazard arising from the contamination of the land (including by preventing the entry of persons or animals on the land).10
Remediation is the responsibility of the person that caused the contamination. If this person cannot be found or identified, responsibility may become that of the current owner of the land.
For more information on contaminated land, see Fact Sheet 4.3.
3 Dumping rubbish
It is illegal for transporters of waste to leave their waste anywhere that is not a legal waste facility. Properties must hold a waste facility licence from the EPA or their Local Council in order to accept waste. Such a licence may identify specific types of waste that the property can accept and if a different type of waste, or contaminated waste, is disposed of the transporter may have to pay for the cleaning it up,11 or remediate the land if the contamination causes a ‘significant risk of harm'.
Littering in a public place is also an offence that carries large fines, with more severe fines if the rubbish is likely to cause harm to people or the environment.12 If you wish to dump rubbish on your land you may need permission, depending on the likelihood of environmental damage, and the size, extent and source of the rubbish.13 To find out if you need permission, contact your Local Council or the Department of Environment, Climate Change and Water (DECCW).
If harmful waste is dumped illegally on your property or you suspect it has been dumped elsewhere you must report it to DECCW or the Local Council.14 Waste should not be touched, as it may be dangerous. Also, if the site is not disturbed, investigators may be able to identify who dumped the waste material.
If you wish to burn rubbish, you also need to check with your Local Council to confirm the rules regarding things that may be burnt in your area. You must try to minimise the air pollution caused by the burning, taking into account such things as wind direction and the material being burnt.15 You must never burn some items such as tyres, treated timbers, paint tins and solvent containers.16
For more information on waste management, see Fact Sheet 4.2.
4 Water pollution
There is a general ban on polluting surface and ground water without permission.17
It is also an offence to place matter where it is likely to get into the water and cause pollution, such as in a drain or gutter or a dry river bed.
Polluting waters without a licence is an offence that carries large fines.18 Any matter placed in water could be a pollutant depending on the effect the matter has on the water. For example, if the matter makes the water undrinkable for people or farm animals, or the condition of the water is changed, then the matter pollutes the water.
If you are in doubt, you should contact DECCW to see whether you need a licence. If the water pollution harms or is likely to harm the environment, the maximum penalty for an individual may include imprisonment.19
For more information on water pollution, see Fact Sheet 4.1.
5 Noise pollution
There is no general ban on causing noise. However if noise is ‘offensive noise', a police, Council or DECCW officer may issue a ‘noise abatement direction', which is a temporary order that requires control of the noise. In addition, the Council may issue a noise control notice, to place ongoing restrictions on the noise. An offensive noise is one which is likely to interfere with the comfort of a person on another property.20 Certain noisy activities, such as operating heavy machinery may need a licence from DECCW.21
If you are affected by noise you can apply to the Local Court for a ‘noise abatement order'.
For more information on noise abatement orders and noise pollution generally, see Fact Sheet 4.1.
6 Bushfire mitigation
Approval is required to light a fire during the ‘bush fire danger period', which is usually from 1 October to 31 March.22 However, the danger period may be varied by a Local Council or DECCW, so you should check with your local Rural Fire Service (RFS) and DECCW for variations and bans.
You usually need a permit to light a fire during the bush fire danger period, which is available from your local RFS Fire Control Centre. You may also need to notify your neighbours and the Council. Permits are automatically cancelled if a total fire ban comes into force, or if the fire danger is ‘high' or above.
Outside the bush fire danger period you may still need a permit. You may also need to notify your neighbours, the local RFS Fire Control Centre24 and the Local Council, letting them know the location, purpose, period and time of the fire.25 If you live in a built-up area, you must also give your local fire brigade at least 24 hours notice.
It is always advisable to contact the RFS or Council before lighting a fire as failure to notify the required people or obtain a permit, can lead to severe penalties including fines and imprisonment.26
You should also check to see if your area is protected under a Bush Fire Risk Management Plan. These are plans prepared by the Bush Fire Management Committees in various parts of the state which set out requirements for managing risks associated with bush fire and may impose restrictions on lighting fires in certain places. If a plan has been prepared for your area, you can get a copy from your Local Council.
You have a legal duty to take certain steps to prevent bushfires. These include any steps that the Bush Fire Co-ordinating Committee advises you to take, and any steps included in a Bush Fire Risk Management Plan that applies to your land.
Your Local Council can issue you with a notice requiring you to do hazard reduction work on your property. You can object to having to comply with a notice27 and the Council's Fire Control Officer must try and find an acceptable solution with you. If you are still not satisfied, you can appeal to the Commissioner of the RFS. Otherwise it is an offence to not comply with the notice and an officer of the Local Council, fire brigade or RFS can enter your property and carry out the work, at your expense.28
If a fire breaks out on your property, you should immediately contact 000 if you cannot put it out yourself. Also contact the NSW Fire Brigade on (02) 9265 2999 to find your local service office, the Rural Fire Service on (02) 8741 5555, the Forestry Commission, or DECCW for assistance.29
Officers of the Rural Fire Brigade have powers to do various things on private property to control fires and minimise danger, including: pulling down buildings, structures and fences, removing living or dead vegetation, establishing fire breaks, and using water from your property without payment.
The Rural Fire Brigade must give you written notice of its intention to come onto private property, unless entry is needed urgently.
As a general rule, the Crown owns the minerals on or under your land including native title land, and LALC lands.30 The consent of the landowner is not required for mine to be approved. The mining industry is the only industry in Australia where a private company can develop a person's land without their consent. However, once a mining lease has been granted the mining company is still required to obtain consent from the landowner to further develop or sub-divide the land.31 The native title right to negotiate cannot stop the approval of a mine.
However, landowners are entitled to compensation if mining affects either their farming activities or their land. Native title holders and registered native title claimants are entitled to compensation if mining impacts on their native title rights and interests. There is no compensation for the destruction of Aboriginal places, objects, artefacts or relics under a NPWS consent to destroy. Any type of partnership, agreement or contract may be entered into with mining companies to manage the impacts of their activities on Aboriginal rights, interests or heritage.32
There are a variety of licences and leases that allow mineral prospecting and extraction and in many instances approval from either the Department of Planning or a Local Council will be required for such activities. A number of restrictions are placed on mining activites. Mining operations are not permitted within 200 metres of a person's home, within 50 metres of a garden or on any land improvement such as a dam without the written consent of the land occupier.33 A land occupier may not take back their consent after it has been granted.
Conditions on a mining approval can also include restrictions on activities to protect Aboriginal cultural heritage.34 Holders of exploration licenses, must get a permit from the National Parks and Wildlife Service (NPWS) to disturb or harm any Aboriginal site or place in the exploration area.35 For other licences and leases, approval is required under Part 3A of the Environmental Planning and Assessment Act 1979, which may need environmental impact and heritage impact assessment.36 Native title holders and registered native title claimants have a right to negotiate how exploration and mining goes ahead on native title lands. Restrictions may include how and where mining happens, protection or relocation of Aboriginal objects or other agreements for employment or compensation.
If the conditions of a mining lease or licence are breached, you can report the breach to the Department of Primary Industries, the DECCW or contact the mine or write to the Minister for Primary Industries. Also, any person may bring an action in the NSW Land and Environment Court to remedy or restrain a breach of environmental or planning laws.37
8 Managing environmental conservation
Three of the six Commonwealth National Parks in Australia are joint-managed by Aboriginal people. In NSW, Aboriginal people can own and jointly manage national parks and other reserves.38
Certain protected areas39 can be transferred to the Local Aboriginal Land Council (LALC) and leased back to the National Parks and Wildlife Service (NPWS) for continued use as a national park or other reserve. Aboriginal owners and representatives of the LALC negotiate the terms of the lease with the NPWS and rent is paid by the NPWS into special accounts for each park to compensate the Aboriginal owners for loss of full use and enjoyment of the lands. The rent must be spent within the park in line with the Plan of Management. Aboriginal owners jointly manage the reserve as a majority on a board of management with the LALC and NPWS.
In addition, the Native Title Act1993 allows for the registration of Indigenous Land Use Agreements (ILUAs) which are generally initiated by native title holders or claimants. These allow for the joint management of both Commonwealth and State protected areas.40 Memorandums of Understanding (MOUs) can also be negotiated between any party for joint or co-management of land.
9 Voluntary Conservation
There are a number of programs through which landholders can voluntarily conserve areas of ecological value on their properties some of which are listed here.41 For more information on the following agreements, see Fact Sheet 6.4 Conservation on private land.
9.1 Voluntary Conservation Agreements
A Voluntary Conservation Agreement is a statutory covenant which is attached to the title of the land.42 The land remains in the ownership of the landholder but the landholder and any future purchasers are required to manage the property in accordance with the conservation agreement.
9.2 NSW Environmental Trust: Protecting Our Places Program
The ‘Protecting Our Places' program aims to restore or rehabilitate Aboriginal land or land that is culturally significant to Aboriginal people. It also aims to educate communities about the local environment and the value Aboriginal communities place on their natural environment.43
9.3 Biobanking
Aboriginal groups own and continue to acquire areas of land with significant biodiversity values. Aboriginal landowners have a duty to care for this country, but are often required to also provide employment and economic advancement for their communities.
DECCW has established a Biodiversity Banking and Offsets Scheme (BioBanking)44 - a new scheme which may have the potential in the future to be used by Aboriginal groups to conserve (or bank) the biodiversity values on their land and sell the ‘credits' on the market.
9.4 Property Vegetation Plans
Property vegetation plans45 are a way to authorise native vegetation clearing and/or access financial incentives such as grants to help fund conservation practices.
For more information contact your local Catchment Management Authority.46
9.5 Nature Conservation Trust Agreements
The Nature Conservation Trust47 aims to encourage conservation on privately managed land in partnership with land managers. The Trust buys property of high conservation value, places a conservation covenant on it and then sells the property and may also enter into agreements with landholders to manage land for the protection of natural heritage.48
9.6 Indigenous Protected Areas
The IPA program supports Indigenous landowners to manage their lands for the protection of natural and cultural features in accordance with internationally recognised standards and guidelines. The program is part of the National Reserve System program and the Natural Heritage Trust. Applications should be made using the standard application form.49
9.7 Tax Incentives and Rate Relief50
Donations to eligible environmental bodies of property valued at over $500051 enable the donor to gain an income tax deduction. Gifts granted under a will attract a capital gains tax exemption.
Also, if a landholder enters a perpetual conservation covenant, they will gain an income tax deduction for any decrease in land value as a result of entering into the covenant, and capital gains tax provisions will apply as if it were a sale or gift of land. The value of the deduction can be spread over five years.
As defined under the Contaminated Land Management Act 1997, Pt 1 s 5.
The EPA is a statutory authority within the Department of Environment, Climate Change and Water.
Access to the register must be provided upon request to the EPA.
Environmental Planning and Assessment Act 1979, s 149. Councils must provide these certificates upon the payment of the appropriate fee.
Contaminated Land Management Act 1997, Pt 5 s 60.
Contaminated Land Management Act 1997,ss 7, 9 and Pt 3.
The appropriate people to be ordered is set out in Contaminated Land Management Act 1997s 12.
Contaminated Land Management Act 1997, s 23.
Protection of the Environment Operations Act 1997,s 91
Contaminated Land Management Act 1997, s 4.
Protection of the Environment Operations Act 1997s 91.
The maximum penalty is $3,300 for an individual and $5,500 for a corporation. Protection of the Environment Operations Act 1997, ss 145, 145A.
Protection of the Environment Operations Act 1997, s 144.
Protection of the Environment Operations Act 1997, s 147.
Protection of the Environment Operations (Clean Air) Regulation 2002,cl 6C.
Protection of the Environment Operations (Clean Air) Regulation 2002,cl 6D. For more information, contact the DECCW Pollution Line on 131 555 or your local Fire Brigade or Rural Fire Service.
Protection of the Environment Operations Act 1997, s 120.
The maximum penalty for a corporation is $1,000,000, with an additional maximum penalty of $120,000 for each day the offence continues. For individuals, the maximum penalty is $250,000 with a $60,000 additional penalty for each day the offence continues.
Maximum penalty for environmental harm is $1,000,000 for a company and $250,000 and/or 7 years imprisonment for an individual.
Offensive noise is defined in the dictionary of the Protection of the Environment Operations Act 1997.
Protection of the Environment Operations Act 1997, s 42. Check with DECCW to see if you require a licence.
Rural Fires Act 1997,s 81.
No Burn Notices, see DECCW website www.environment.nsw.gov.au/air/aboutnb.htm#nbn
with at least 24 hours notice.
Rural Fires Act 1997,ss 86-88.
Rural Fires Act 1997,ss 86-88, 92.
Within seven days of being given the notice.
Rural Fires Act 1997,s 70. Failure to comply with a notice also comes with a maximum penalty of $5,500 or 12 months imprisonment see Rural Fires Act 1997, s 66.
The maximum penalty for not doing so is a fine of $2,200 and/or 6 months imprisonment. See Rural Fires Act 1997,s 64.
The Native Title Act 1993 reserve state ownership of mineral rights.
Mining Act 1992, ss 140, 141.
Refer to www.ATNS.org.au for more examples of Agreements.
Mining Act 1992,ss 31, 49, 62, 118.
Environmental Planning and Assessment Act 1979,s 80A(1).
National Parks and Wildlife Act 1974,ss 87, 90.
For more information on the application process, contact the Environmental Defenders Office, the NSW Aboriginal Land Council or the Minerals Council at www.nswmin.com.au.
See the Environmental Planning and Assessment Act 1979,s 123 and the Protection of the Environment Operations Act 1997,s 253.
See the National Parks and Wildlife Act 1974,Part 4A and the Aboriginal Land Rights Act 1983, s 36A.
Being areas under Schedule 14 of the National Parks and Wildlife Act 1974.
Under the Native Title Act 1993,s 24BI.
Refer to the ‘Biodiversity on Private Land Factsheet” on the EDO website for further information voluntary conservation tools at http://www.edo.org.au/edonsw/site/factsh/fs05_3.php
National Parks and Wildlife Act 1974,s 69B.
For more information, contact the Trust's Aboriginal Liaison Officer on (02) 8837 6399 or at ‘Environmental Trust' PO Box 644, PARRAMATTA NSW 2124
Under the Threatened Species Conservation Amendment (Biodiversity Banking) Act 2006.
Native Vegetation Act 2003,Part 4.
Or visit http://www.nativevegetation.nsw.gov.au/fs/fs_03.shtml
Established by the Nature Conservation Trust Act 2001.
Rate relief is available for land with a conservation covenant.
