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Legal Framework for Protected Areas: Australia

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Legal Framework for Protected Areas: Australia Legal Framework for Protected Areas: Australia Ben Boer* Stefan Gruber** Information concerning the legal instruments discussed in this case study is current as of 6 May 2010 * Professor Emeritus, Australian Centre for Climate and Environmental Law, Faculty of Law, University of Sydney. ** PhD candidate, Australian Centre for Climate and Environmental Law, Faculty of Law, University of Sydney; legal practitioner, Chamber of Lawyers Frankfurt am Main, Germany. The authors are grateful for the comments of Dr Graeme Worboys and Professor Rob Fowler on this case study. 1 Australia Abstract The Australian continent, together with its islands and marine areas, manifests high levels of biodiversity. It has a comprehensive and globally recognized legislative and policy regime for terrestrial and marine protected areas. Despite this generally innovative scheme, Australia continues to suffer from significant loss of its biodiversity. This case study sets out the Australian legislative framework, policy and principles of protected areas legislation and management at the federal level. It focuses primarily on the Environment Protection and Biodiversity Conservation Act 1999 (Commonwealth) and the regulations made thereunder. Attention is also given to the new concept of connectivity conservation and its implementation in Australia. The pertinent aspects of the 2009 review of the Act, and especially its recommendations on protected areas, are canvassed. The case study also briefly deals with the Great Barrier Reef Marine Park Act 1975 (Commonwealth) and the Commonwealth legislation concerning the Antarctic. The various forms of terrestrial and marine protected areas and their legal frameworks are outlined, along with their establishment, planning, management and enforcement regimes. IUCN-EPLP No. 81 2 Australia Contents Acronyms and abbreviations ........................................................................................................... 5 1 Australia’s federal system ................................................................................................... 6 1.1 Overlap of federal and state/territory legislation ........................................................ 7 1.2 Local government powers .......................................................................................... 7 1.3 Australia’s unique environment .................................................................................. 8 1.4 Australia’s biodiversity .................................................................................................. 8 2 Australia’s protected areas system ..................................................................................... 10 2.1 Terrestrial protected areas: Australia’s National Reserve System .............................. 11 2.2 Marine protected areas .............................................................................................. 14 3 General framework for the protected areas system ......................................................... 14 3.1 Commonwealth legislation ......................................................................................... 14 3.1.1 Cultural matters .............................................................................................. 15 3.2 State and territory legislation ..................................................................................... 15 4 Governance of protected areas ........................................................................................... 16 4.1 Protected areas administered by the government ..................................................... 16 4.2 Protected areas and Indigenous peoples ................................................................... 16 4.3 Conservation agreements with private landowners and lessees of government land ..................................................................................................... 19 5 Evolution of protected areas policy and law ...................................................................... 20 5.1 Matters of national environmental significance and Australia’s international obligations .................................................................................................................. 22 5.2 Incorporation of international environmental law principles ...................................... 24 5.2.1 Ecologically sustainable development ........................................................... 24 5.2.2 Precautionary principle .................................................................................. 25 5.2.3 Access to information, public participation and access to justice ................. 25 6 Definitions ............................................................................................................................. 26 7 Institutional arrangements ................................................................................................... 28 7.1 Bilateral agreements ................................................................................................... 28 8 Advisory bodies ..................................................................................................................... 29 9 Planning and the National Reserve System ....................................................................... 30 9.1 Bioregional planning under the EPBC Act .................................................................. 31 9.2 Terrestrial and inland waters management plans ...................................................... 32 9.3 Marine bioregional planning ....................................................................................... 32 3 IUCN-EPLP No. 81 Australia 10 Characteristics, establishment, amendment and revocation of Commonwealth protected areas ..................................................................................................................... 34 10.1 World Heritage properties ........................................................................................... 34 10.2 National Heritage places ............................................................................................ 36 10.3 Wetlands of international importance (Ramsar sites) ................................................ 37 10.4 Commonwealth Heritage places ................................................................................ 37 10.5 Biosphere reserves ..................................................................................................... 38 10.6 Commonwealth reserves ............................................................................................ 39 10.7 Conservation zones .................................................................................................... 39 10.8 Antarctic protected areas ........................................................................................... 40 10.9 Marine protected areas .............................................................................................. 40 10.10 Australian Whale Sanctuary ....................................................................................... 42 10.11 Great Barrier Reef Marine Park .................................................................................. 42 10.11.1 Great Barrier Reef Marine Park Act ............................................................. 43 10.11.2 Managing the Great Barrier Reef Marine Park ............................................. 44 11 Requirements for management plans ................................................................................ 45 11.1 World Heritage sites ................................................................................................... 45 11.2 National Heritage places ............................................................................................ 46 11.3 Ramsar sites ............................................................................................................... 46 11.4 Commonwealth Heritage places ................................................................................ 46 11.5 Biosphere reserves ..................................................................................................... 47 11.6 Commonwealth reserves and IUCN categories ......................................................... 47 11.7 Commonwealth marine protected areas .................................................................... 48 11.8 Wildlife conservation plans for marine species .......................................................... 48 12 Buffer zones .......................................................................................................................... 49 13 Connectivity conservation ................................................................................................... 49 14 Controlling activities within protected areas ..................................................................... 50 14.1 Controlling activities in Commonwealth reserves ...................................................... 51 14.2 Controlling activities in other protected areas ........................................................... 53 15 Environmental impact assessment .................................................................................... 53 16 Enforcement .......................................................................................................................... 54 16.1 Criminal offences and penalties ................................................................................
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