20 Dec New biodiversity legislation commences new year
Removing complexity to make growth and development happen.
The new Biodiversity Conservation Act 2016 (BC Act) – Regulations come into effect on 1 January 2019 bringing this new legislation into full effect and replacing the Wildlife Conservation Act 1950 (WC Act) and the Sandalwood Act 1929. The new BC Act enhances the State Government powers in conserving and protecting Western Australia’s (WA) native flora and fauna and introduces modern biodiversity conservation ideas into legislation, bringing WA into line with the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).
With the imminent introduction of the new BC Act, Strategen has reviewed the legislation and has identified the following key issues clients should be aware of:
- Transitional arrangements are in place to ensure those people who have a wildlife licences under the old WC Act will continue to have a valid licence once the new Regulations commence without needing to apply for a new licence. New licence types will then be issued once an existing licence expires.
- Licences will be able to be applied for online using a system developed by the Department of Biodiversity, Conservation and Attractions (DBCA). It will be available from the Department’s website prior to the new regulations commencing, and will allow for licence applications, amendments and renewals, payments and licence returns.
- The BC Act introduces an obligation to report an occurrence of a threatened species and communities if it is found in the course of carrying out field work for an environmental impact assessment or in relation to a clearing permit application. The penalty for failing to report the occurrence is $50,000.
- Transition arrangements for Threatened Ecological Communities (TECs) are not addressed in the new Regulations and, due to the specific wording in the Act, projects with existing approvals (including Native Vegetation Clearing Permits, Ministerial Statements, Works Approvals, State Agreements) will, under the current regime, automatically cause an offence on 1 Jan 2019 with regards to disturbance of TECs and will be unable to rely on any defences. To address this issue, it is proposed a Ministerial Order, to allow disturbance of TECs under existing approvals, will be issued on or before 1st January 2019.
- If a person takes threatened flora, or possesses or disturbs threatened fauna, fines of up to $500,000 can be imposed. Under the Sentencing Act, those fines rise to $2.5 million for body corporates.
- At the same time, new defences have been included. If a person taking flora or fauna (other than specially protected flora or fauna) does not have a license but can demonstrate that the taking occurred in the course of a lawful activity (the sole or dominant purpose of which was not to take flora or fauna) and the offence could not reasonably have been avoided, they will have a defence. In the case of specially protected flora or fauna there is an additional requirement that the person demonstrate that they were unaware, and could not reasonably have known, that the particular flora or fauna was present.
- The BC Act provides the ability for landowners to enter into a biodiversity conservation covenant with the CEO in order to set aside part of their land for the conservation, protection or management of biodiversity on the land. A covenant may have the effect of restricting use of the land, restricting the nature of works that can be carried out on the land, or requiring that specific action must/must not be taken on the land. A registered biodiversity covenant will bind each successive owner of the land and any person who is bound by the covenant. Any contravenes to the covenant may be subject to a fine of $50,000.
- Similarly, a landowner may now enter into a conservation agreement with the Minister for Environment to:
-facilitate ecological sustainable use of biodiversity components;
-mitigate the effect of activities that may have an adverse impact on biodiversity; or
-to otherwise promote or enhance biodiversity in the State.
To ensure clients are ready for the introduction of the new BC Act, Strategen can assist in preparing and implementing environmental management plans to protect threatened flora, fauna and ecological communities, wildlife management plans and fauna relocation. Strategen can also assist clients with the increased reporting commitments as part of ecological surveys and compliance processes, particularly given the obligation to report all occurrences of a threatened species.