The information contained in this fact sheet is current as at 1 January 2005.
Legal protection of terrestrial and marine areas plays a key role in biodiversity conservation. In New South Wales alone, around 6 million hectares or over 7% of the State are protected areas.
There are many different kinds of areas set aside to protect the environment, including World Heritage areas, national parks, wilderness areas, historic sites, crown lands, state forests, nature reserves and local and regional parks.
The level of protection varies for each type of area. In many cases, specific areas of land within one of these natural areas will be subject to different levels of protection. This section describes New South Wales and Commonwealth laws relating to protected areas.
The key state laws in relation to terrestrial protected areas are the National Parks and Wildlife Act 1974 and the Wilderness Act 1987.
For marine protected areas the applicable state laws are the Fisheries Management Act 1994 and the Marine Parks Act 1997. These laws are discussed below.
The New South Wales National Parks and Wildlife Act 1974 established the NSW National Parks and Wildlife Service (NPWS), which is part of the Department of Environment and Conservation.
The Director-General of the Department of Environment and Conservation considers and investigates proposals for additions to any national park, historic site, state recreation area, nature reserve, state game reserve, karst conservation reserve, regional park or Aboriginal area.
The main functions of the NPWS are to administer national parks and other lands under the National Parks and Wildlife Act and the Wilderness Act. The NPWS also has responsibility for threatened species under the Threatened Species Conservation Act 1995.
The purpose of reserving land as national parks is to identify, protect and conserve 'areas containing outstanding or representative ecosystems, natural or cultural features or landscapes or phenomena’.
Other types of reserve established under the National Parks and Wildlife Act include:
This chapter describes the process for reserving and managing land as a national park. It does not describe the law regarding the reservation and management of other types of reserves, which is similar, but not identical.
Proposals to add areas to existing national parks or reserve new national parks are considered by the Director-General of the NSW Department of Environment and Conservation. No formal process exists for members of the public to put proposals to the Director-General, but it is possible to do so informally by lobbying the Director-General, the Minister for the Environment or a State Member of Parliament.
National parks can only be declared over Crown land or land acquired by the Minister for the Environment for the purpose of reservation. Approval must be obtained from the Minister for the Environment or public authority that owns the land. The Governor then reserves a park or adds to an existing park by proclaiming it in the Government Gazette. Once this proclamation is tabled in NSW Parliament, the area becomes a national park, unless the Parliament votes against it.
Funding is a major obstacle to reserving more national parks, and most are created from existing Crown land reserves. If you want to have an area reserved as a national park, one place you could start would be contacting the National Parks Association (NPA), a non-government conservation organisation that lobbies for the interests of national parks. The NPA is represented on the National Parks and Wildlife Advisory Council, which can discuss proposals for new park reservations with the Director-General.
The Director-General must prepare a management plan for each national park. In preparing the plan, the Director-General must address a number of issues, including:
Draft plans of management are prepared by the Director-General. Public notice of the plan must be given and submissions invited from the public. Anyone can make submissions. The draft plan, with any submissions received, is sent to the regional advisory committee and then the National Parks and Wildlife Advisory Council for comment, before being submitted to the Minister for approval.
The Director-General can issue a stop work order for an activity if he or she considers that the activity is likely to significantly affect protected fauna, native plants, or their environment, Aboriginal objects, places or other items of cultural heritage on reserved land. A stop work order cannot be issued for some activities that are permitted under other laws.
A stop work order can stop the activity and specify that no action, other than that included in the stop work order, be carried out. The order takes effect as soon as it is affixed in the area, or the person undertaking the relevant activity is notified. A stop work order lasts for forty days but can be extended by the Director-General.
The Director-General must consult anyone affected by a stop work order and ascertain whether it is possible to modify the activity to protect the area. If no arrangements or modifications are possible, the Director-General must recommend an interim protection order be made.
If the Director-General thinks an area of land has significance or is critical habitat, or intends to take action under the National Parks and Wildlife Act or the Threatened Species Conservation Act, he or she can recommend to the Minister that an interim protection order be issued.
An interim protection order takes effect when it is published in the NSW Government Gazette. It can require that the area of land be preserved and maintained, particularly its fauna, flora, significant places and Aboriginal relics, and can last for up to two years while a conservation agreement is made or the land is reserved.
The Minister can grant leases within a national park to provide accommodation and facilities, and licences to carry out trade or business activities. Leases and licences cannot be granted over land within a declared wilderness area (see discussion of wilderness areas below).
It is an offence to prospect or mine for minerals in a national park, unless the mining activity is authorised by an Act of Parliament. However, the Minister can approve prospecting for minerals on behalf of the government. Notice of such an approval must be tabled in Parliament, which can vote against the approval.
Usually, only the commences criminal legal proceedings for an offence committed under the National Parks and Wildlife Act. If you wish to commence proceedings, you will need written permission from the Director-General of the Department of Environment and Conservation.
However, if you think that the National Parks and Wildlife Act has been breached, you can take civil action in the Land and Environment Court. Any person can commence a proceeding in the court to remedy or restrain a breach of the Act.
In addition, any person may bring a judicial review proceedings in the Land and Environment Court on the basis that a decision maker, such as the Department of Environment and Conservation, failed to follow correct legal procedures under the National Parks and Wildlife Act.
The Wilderness Act 1987 was introduced to identify, protect and manage wilderness areas.
A 'wilderness area' is an area of land that:
Any person can write to the Director-General of the Department of Environment and Conservation and propose that an area be identified and declared as a wilderness area, or added to an existing area. The Director-General must assess the proposal, taking into account any written submissions, and advise the Minister for the Environment.
The following requirements apply in relation to the declaration of a wilderness area:
The Minister may enter into wilderness protection agreements relating to land identified as wilderness if the land is owned or controlled by the Crown.
The Minister first prepares a draft wilderness protection agreement and invites public submissions. The Minister must consider the comments of the National Parks and Wildlife Advisory Council, as well as any public submissions.
Terms of the wilderness protection agreement can include restricting the area’s use, requiring the government to contribute to management and conservation costs, or anything else required to protect the area. The wilderness protection agreement remains in force until the declaration of the area as wilderness is revoked.
An authority cannot carry out development in an area subject to a conservation agreement or wilderness protection agreement without the Minister's consent. The Minister can only give consent if the development will not adversely affect the area.
Management plans must be prepared for areas covered by wilderness protection agreements. These plans are prepared by the Director-General and, after comment from the Advisory Council, are submitted to the Minister for approval. The Minister can adopt the plan, with the consent of any other parties to the wilderness protection agreement. The Director-General and the other party to the agreement are responsible for implementing the plan.
If you think that the Wilderness Act has been breached, you can take civil action in the Land and Environment Court. Any person can commence a proceeding in the court to remedy or restrain a breach of the Act.
Blue Mountains Conservation Society Inc v Director-General National Parks and Wildlife; the Minister for the Environment and AFG Talons Pty Ltd (2004) NSWLEC 196
In May 2004, the Environmental Defender’s Office successfully represented the Blue Mountains Conservation Society Inc in its attempts to prevent filming of a war movie in the Grose Wilderness area of the Blue Mountains National Park.
The Land and Environment Court ruled that the proposed commercial filming of scenes for the movie in the area was unlawful, in a significant statement on the value of wilderness areas and the protection that should be afforded to them.
The Society claimed that the authority and consent for the commercial filming activities were in breach of the National Parks and Wildlife Act 1974 and the Wilderness Act 1987.
Justice Lloyd accepted the Society’s arguments that the proposed commercial filming in a wilderness area was completely antipathetic to the objects and management principles of the Act.
In his judgement, His Honour stated ‘the governing consideration in the present case is this: declared wilderness areas are sacrosanct’.
The Fisheries Management Act 1994 provides for the declaration of aquatic reserves. The Minister for Primary Industries may declare an area to be an aquatic reserves by publishing a notice in the NSW Government Gazette.
There are currently over a dozen aquatic reserves in NSW, including:
The purpose of aquatic reserves is to enhance the protection of fish and fish habitat in the area concerned. Each reserve, and the activities prohibited or regulated in it, are regulated by the NSW Fisheries Management (Aquatic Reserves) Regulation 1995.
In cases where an aquatic reserve is declared over an area land dedicated for a public purpose, the land can continue to be used for that purpose notwithstanding inconsistency with the Fisheries Management Act.
The Minister can issue an ‘aquatic reserve notice’ prohibiting the carrying out of any specified activity (including the taking of fish) in an aquatic reserve or part of an aquatic reserve.
It is an offence to posses any animal, plant, rock, sand or other thing that has been taken in contravention of an aquatic reserve notice.
The Marine Parks Act 1997 provides for the creation of marine parks. These currently include Cape Byron, Jervis Bay, Lord Howe Island and the Solitary Islands. Once created a marine park cannot be revoked, except by an Act of Parliament.
In cases where a marine reserve is declared over an area that is dedicated for a public purpose, the land can only continue to be used for that original purpose if its use is consistent with Marine Parks Act.
The Marine Parks Regulation 1999 provides for the classification areas within a marine park for different uses by means of zoning plans. The regulations provide for sanctuary zones, habitat protection zones, general use zones and special purpose zones.
Mining is prohibited in marine parks. Aquaculture is prohibited within a park unless the activity is consistent with the zoning plan and a permit is granted. The regulations may prohibit or control other activities (such as aquaculture) within the park.
Consent authorities under the Environmental Planning and Assessment Act are required to consult with the Marine Parks Authority about developments that are outside the marine park that are likely to have an effect on the plants or animals within the marine park or their habitat.
If an application has been made to a consent authority for a development within the park, the consent authority must obtain the agreement of the Minister for the Environment and the Minister for Primary Industries.
The Commonwealth Environment Protection and Biodiversity Conservation Act 1999 allows the federal government to create and manage various types of protected areas, including World Heritage properties, Ramsar wetlands, Commonwealth reserves, biosphere reserves and conservation zones.
Current lists of Commonwealth protected areas are available on the Department of Environment and Heritage website: www.deh.gov.au.
The Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention) provides for the establishment of an international list of places of ‘outstanding, universal natural or cultural heritage value’.
In order for a place to be added to the list, an application must be submitted to the World Heritage Committee for consideration. The World Heritage Committee must then decide whether to add the place to the World Heritage List. Examples include the Great Barrier Reef, Kakadu National Park, Uluru-Kata Tjuta National Park or the Greater Blue Mountains Area.
Under Australian law, a property can only be submitted by the Commonwealth Government. If you want a place to be recognised as a World Heritage site, it is essential that you convince the Commonwealth Government to refer the place to the Committee. Nominations for World Heritage listing can occur for both Commonwealth and State land, and private or public land.
You can write a proposal to the Government asking them to consider World Heritage listing. You may like to contact a national or peak state environment group, to see if they have an example of a proposal that you can use as a guide.
The Environment Protection and Biodiversity Conservation Act provides protection for ‘declared World Heritage properties’. The Commonwealth Minister for the Environment may declare a property to be a declared World Heritage Property in the following circumstances:
This provides some protection for sites awaiting a decision as to their inclusion on the list and sites of outstanding value that have not been submitted to the World Heritage Committee.
The Environment Minister must consult with the relevant State or Territory governments before making a declaration.
World Heritage values are ‘matters of national environmental significance’ under the Environment Protection and Biodiversity Conservation Act. Any action that is likely to have significant impact on the World Heritage values of a declared World Heritage property must be assessed and approved by the Commonwealth Environment Minister. For more information on federal environmental assessment processes, see Fact Sheet 2.2 – Commonwealth Environmental Assessment Law.
Management plans must be prepared and implemented for World Heritage properties to preserve the values for which they have been listed. For properties on the World Heritage List that are not entirely Commonwealth owned lands, the Commonwealth must seek to prepare and implement management plans in co-operation with the relevant States and Territories. Commonwealth agencies must use all reasonable steps to perform their functions in line with these management plans and World Heritage management principles.
Under the Environment Protection and Biodiversity Conservation Act, the Commonwealth can designate a wetland to be included in the List of Wetlands of International Importance kept under the Ramsar Convention.
A declaration of a Ramsar site can occur on Commonwealth or State land, private or public land. However, the Minister must consult with the relevant State or Territory Minister and the owner or occupier of the land, prior to making the declaration. It is not necessary that the State or Territory or the landholder ultimately agree to the proposal.
Criteria have been developed under the Ramsar Convention to assess whether the wetland is one of international importance. These are that the wetland:
Ramsar sites are matters of national environmental significance under the EPBC Act. Any action that is likely to significantly impact on the ecological character of a Ramsar site must be assessed and approved by the Commonwealth Environment Minister. For more information on federal environmental assessment processes, see Fact Sheet 2.2 – Commonwealth Environmental Assessment Law.
The Minister must prepare a management plan that is consistent with both Australia’s obligations under the Ramsar Convention and the Australian Ramsar management principles set out in the Environment Protection and Biodiversity Conservation Act. For Ramsar sites that are not entirely Commonwealth owned lands, the Commonwealth must try to prepare and implement management plans in co-operation with the relevant States and Territories. Commonwealth agencies must use all reasonable steps to perform their functions in line with these management plans and Ramsar management principles. There is no provision for public consultation in the development of management plans.
Only the Commonwealth government can designate a wetland as a Ramsar wetland. You can write a proposal to the Government asking them to consider Ramsar listing for a particular site. Make sure that you address the requirements for nomination and the criteria that must be met, as described above.
If the land you are concerned about is either owned or controlled by a State or Territory or a private person, it will be extremely helpful for your nomination if the landholder supports recognition of the wetland as a Ramsar site. You should discuss this with them.
The Gwydir Wetlands are in the heart of one of Australia’s largest cotton growing areas, at the end of the Gwydir River in NSW. The wetlands provide breeding and feeding grounds for very large numbers of waterbirds (including jabiru, magpie geese, brolga, freckled ducks), and habitat for endangered species.
For the past twenty years they have been suffering 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.
In 1997, the World Wide Fund for Nature (WWF) and the NSW National Parks Association (NPA) discussed an ‘in principle’ process for Ramsar nominations on private land with the NSW National Parks and Wildlife Service (NPWS) and Environment Australia.
An informal consultative group was established, which included interested landholders, an independent wetlands ecologist, regional and head office staff from NPWS, Environment Australia and staff from NPA and WWF. Properties with important wetland areas were identified with the assistance of a wetlands ecologist. These landholders were contacted, sent a discussion paper and invited to the first meeting.
In February 1999, after numerous meetings and discussions, all parties supported the land being nominated as a Ramsar wetland. In May 1999, the Commonwealth Government announced the Gwydir Wetlands as Australia’s 50th Ramsar site.
Commonwealth reserves can be declared over areas of land or sea that:
When a new Commonwealth reserve is created, it must be assigned to one of the following categories:
A management plan must be developed for each reserve. The process for the development of management plans provides a number of opportunities for community involvement. Comments must be invited from the public on the proposal to prepare a draft plan, and on the draft plan itself, and those comments must be considered.
The final management plan must provide for the protection and conservation of the reserve, stating how the natural features of the reserve are to be protected and specifying any activities (including mining) that may be carried on in the reserve. There may be different zones within the reserve. A management plan expires seven years after it takes effect.
The activities that can occur in a reserve depend upon the type of reserve and whether a management plan is in place for the reserve:
1. If there is no management plan in place the following applies:
The Director of National Parks must manage the reserve in accordance with the reserve management principles that apply to the particular type of reserve. General management principles and principles specific to each type of reserve are set out in Schedule 8 of the Environment Protection and Biodiversity Regulations 2000.
The Commonwealth Government or a Commonwealth agency must not exercise its powers inconsistently with the reserve management principles.
If the reserve is classified as a wilderness area, additional restrictions apply, such as restrictions on development generally, creation of tracks, extraction of water, carrying out of scientific research and extraction of minerals.
2. If a management plan is in place:
The Director of National Parks can grant a lease or a licence for activities on land or a seabed in a Commonwealth reserve, but only in accordance with a management plan in operation for the reserve.
Biosphere reserves are reserves that have been designated under the UNESCO Biosphere Program. The intention of the biosphere program is to promote conservation and the ‘wise use’ of biodiversity.
Biosphere reserves are not a major component of the Commonwealth’s strategy to protect biodiversity and there is no formal mechanism in the Environment Protection and Biodiversity Conservation Act for creating a biosphere reserve.
The Minister may make and implement a management plan for a biosphere reserve. Unlike Commonwealth reserves, the Environment Protection and Biodiversity Conservation Regulations do not restrict activities by private individuals or State agencies in Biosphere reserves.
More information on biosphere reserves is available from the UNESCO website at: www.unesco.org/mab.
Conservation zones are areas that may be declared in order to protect the biodiversity within the area while the area is being assessed for inclusion in a Commonwealth reserve. The Environment Protection and Biodiversity Conservation Regulations provide for various activities to be controlled or prohibited in conservation zones. However, any person that had a right to use the land or seabed prior to declaration of the zone may continue to exercise those rights.