Cunningham & Milthorpe s.n., 2/8/73
NSW National Parks and Wildlife Service , July 2002
ISBN 0 7313 6517 8
1. Relevant Legislation
- 1.1 Commonwealth Legislation
- 1.2 State Legislation
- 1.3 Recovery Plan Preparation
- 1.4 Recovery Plan Implementation
- 1.5 Critical Habitat
- 1.6 Environmental Assessment
Bertya sp. Cobar-Coolabah (Cunningham and Milthorpe s.n., 2/8/73) is listed nationally on the Environment Protection and Biodiversity Conservation Act (EPBC Act) 1999 as 'Vulnerable'. The EPBC Act regulates actions that may result in a significant impact on nationally listed threatened species and ecological communities. It is an offence to undertake any such actions in areas under State or Territory jurisdiction, as well as on Commonwealth-owned areas, without obtaining prior approval from the Commonwealth Environment Minister.
Threatened Species Conservation Act 1995 (TSC Act): Provides for the protection and recovery of threatened species; the declaration of critical habitat for those species; the proper assessment of any action affecting threatened species, or their habitat; and the licensing of actions that are likely to result in harm to a threatened species or damage to its habitat. Bertya sp. Cobar-Coolabah is listed on Schedule 2 of the TSC Act as 'Vulnerable'.
National Parks and Wildlife Act 1974 (NPW Act): Provides for the reservation, protection and management of natural areas, and the protection of native fauna and flora. It includes provisions for conservation agreements with other landholders, and provisions for licensing of scientific investigation of threatened species. The Act has been amended in regard to threatened species by the TSC Act 1995. One of the populations of Bertya sp. Cobar-Coolabah occurs in Gibraltar Range National Park, an area gazetted under the National Parks and Wildlife Act 1974 (NPW Act), and in the care and management of the New South Wales National Parks and Wildlife Service.
Environmental Planning and Assessment Act 1979 (EP&A Act): Provides for the proper assessment of the environmental impact of proposed activities. Assessment of the impact on threatened species has been integrated into the Act through amendments under the TSC Act. Clearing and development applications under consideration by Local Government and other public authorities, which are within the predicted range of Bertya sp. Cobar-Coolabah and contain suitable habitat, will need to consider the impact of the proposal on this species.
Native Vegetation Conservation Act 1997 (NVC Act): The clearing of native vegetation in NSW is subject to consent from the Department of Land and Water Conservation in accordance with the NVC Act. The Act is integrated with the EP&A Act, and requires that threatened species are taken into account by the consent authority when considering clearing applications under Part 4 of the EP&A Act. Bertya sp. Cobar-Coolabah occurs in the following Regional Vegetation Committee areas: Cobar (proposed), Northern Slopes and Plains, Northern Tablelands and Clarence.
Western Lands Act 1901: Under the Western Lands Act 1901, the Department of Land and Water Conservation may be a determining authority under the EP&A Act. Recovery Plans are one of the matters which should be taken into account by consent authorities as identified under the Department of Urban Affairs and Planning's 'Guide to Section 79C' guidelines.
Rural Fires Act 1997: Provides for the preparation of bush fire management plans. These plans may restrict the use of fire or other particular fire hazard reduction activities in all or specified circumstances or places to which the plan applies.
The TSC Act provides a legislative framework to protect and encourage the recovery of threatened species, endangered populations and endangered ecological communities in NSW. Under this legislation the Director-General of National Parks and Wildlife has a responsibility to prepare Recovery Plans for all species, populations and ecological communities listed as endangered or vulnerable on the TSC Act schedules. Similarly, the EPBC Act requires the Commonwealth Minister for the Environment to ensure the preparation of a Recovery Plan for nationally listed species and communities or adopt plans prepared by others including those developed by State agencies. Both Acts include specific requirements for the matters to be addressed by Recovery Plans and the administrative process for preparing Recovery Plans.
This Recovery Plan has been prepared to satisfy both the requirements of the TSC Act and the EPBC Act and therefore will be the only Recovery Plan for the species. It is the intention of the Director-General of National Parks and Wildlife to forward this Recovery Plan to the Commonwealth Minister of the Environment for adoption, once it has been approved by the NSW Minister for the Environment.
The TSC Act requires that a public authority must take any appropriate measures available to implement actions included in a Recovery Plan for which they have agreed to be responsible. Public authorities including councils identified as responsible for the implementation of Recovery Plan actions are required by the TSC Act to report on measures taken to implement those actions. In addition, the Act specifies that public authorities must not make decisions that are inconsistent with the provisions of the Plan.
Public authority responsible for the implementation of this Recovery Plan is the NSW National Parks & Wildlife Service.
The EPBC Act specifies that a Commonwealth agency must not take any action that contravenes a Recovery Plan.
Under the TSC Act, Critical Habitat may be identified for any endangered species, population or ecological community occurring on NSW lands. Once declared, it becomes an offence to damage Critical Habitat (unless the action is exempted under the provisions of the TSC Act) and a Species Impact Statement is mandatory for all developments and activities proposed within declared Critical Habitat. Since Bertya sp. Cobar-Coolabah is a Vulnerable species Critical Habitat cannot be declared.
Under the EPBC Act, Critical Habitat may be registered for any nationally listed threatened species or ecological community. When adopting a Recovery Plan the Federal Minister for the Environment must consider whether to list habitat identified in the Recovery Plan as being critical to the survival of the species or ecological community. It is an offence under the EPBC Act for a person to knowingly take an action that will significantly damage Critical Habitat (unless the EPBC Act specifically exempts the action). Although this offence only applies to a Commonwealth area, any action that is likely to have a significant impact on a listed species occurring within registered Critical Habitat on other areas is still subject to referral and approval under the EPBC Act. Proposed actions within registered Critical Habitat on non-Commonwealth areas are likely to receive additional scrutiny by the Commonwealth Minister.
The New South Wales Environmental Planning and Assessment Act 1979 (EP&A Act) requires that consent and determining authorities, and the Director-General of National Parks and Wildlife, as a concurrence authority, consider relevant Recovery Plans when exercising a decision-making function under Parts 4 and 5 of the EP&A Act. Decision-makers must consider known and potential habitat, biological and ecological factors and the regional significance of individual populations.
Any other action not requiring approval under the EP&A Act, and which is likely to have a significant impact on Bertya sp. Cobar-Coolabah, will require a Section 91 Licence from the Director-General of National Parks and Wildlife under the provisions of the TSC Act. Such a licence may be issued with or without conditions, or refused.
The EPBC Act regulates actions that may result in a significant impact on nationally listed threatened species and ecological communities. It is an offence to undertake any such actions in areas under State or Territory jurisdiction, as well as on Commonwealth-owned areas, without obtaining prior approval from the Commonwealth Environment Minister. As Bertya sp. Cobar-Coolabah is listed nationally under the EPBC Act, any person proposing to undertake actions likely to have a significant impact on this species should refer the action to the Commonwealth Minister for the Environment for consideration. The Minister will then decide whether the action requires EPBC Act approval.
Administrative guidelines are available, from Environment Australia, to assist proponents in determining whether their action is likely to have a significant impact. In cases where the action does not require EPBC Act approval, but will result in the death or harm of a member of Bertya sp. Cobar-Coolabah and the member is in, or on a Commonwealth area, a permit issued by the Commonwealth Minister under the EPBC Act will be required.