Unique Identifying Number:
EPBC303DC/SFS/2016/12
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL DIVISION
No: 2015/4287
Re: Friends of Shorebirds SE Incorporated
Applicant
And: Minister for the Environment
Respondent
And: Australian Kelp Products Pty Ltd
Other Party
And: Minister for Agriculture, Food and Fisheries (South Australia) Other Party
TRIBUNAL: Deputy President K Bean
DATE: 24 March 2016
PLACE: Adelaide
In accordance with subsection 340(1) of the Administrative Appeals Tribunal Act 1975
(the Act):
1. in the course of an alternative dispute resolution process, the parties have reached an agreement as to the terms of a decision of the Tribunal that is acceptable to the parties; and
2. the terms of the agreement have been reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and
3. seven days have passed after lodgement and none of the parties has notified the
Tribunal in writing that he or she wishes to withdraw from the agreement; and
4. the Tribunal is satisfied that a decision consistent with those terms is within the powers of the Tribunal and is appropriate to make.
UPON NOTING that:
A. On 3 June 2015, the Respondent made a declaration under section 303FN of the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act) that the harvesting of specimens under Miscellaneous Fishery Licence Y078 in the South Australian Beach-Cast Marine Algae Fishery is an approved wildlife trade operation;
B. That declaration was subject to a number of conditions, described in the declaration as 'Additional Provisions', which were imposed under section 303FT of the EPBC Act;
C. On 20 August 2015, the Applicant sought review of the Respondent's decision; and
D. On 3 March 2016, the parties attended a conciliation conference, at which the parties agreed to resolve the proceedings on the basis that the conditions imposed be changed;
THE TRIBUNAL, pursuant to subsection 34D(2) of the Act, varies the declaration of
3 June 2015 so as to provide that the declaration is subject to the following conditions, imposed under section 303FT of the EPBC Act:
1. Relating to the harvesting of fish specimen that are, or are derived from, fish or invertebrates, than specimens of species listed under Part 13 of the EPBC Act, taken in the South Australian Beach-Cast Seagrass and Marine Algae Fishery:
(a) Operation of the South Australian Beach-Cast Marine Algae Fishery will be carried out in accordance with the South Australian Fisheries Management (Miscellaneous Fishery) Regulations 2015 and the South Australian Fisheries Management (General) Regulations 2007 in force under the Fisheries Management Act 2007.
(b) The Department of Primary Industries and Regions South Australia (PIRSA) to inform the Department of the Environment of any intended material changes to the South Australian Beach-Cast Marine Algae Fishery management arrangements that may affect the assessment against which EPBC Act decisions are made.
(c) PIRSA to produce and present reports to the Department of the Environment annually as per Appendix B of the Guidelines for the Ecologically Sustainable Management of Fisheries- 2nd Ed.
(d) PIRSA to take all reasonable steps to mitigate adverse impacts on migratory shorebirds by the South Australian Beach-Cast Marine Algae Fishery operations (harvesting and/or transporting of beach-cast wrack), including through:
(i) implementing a management strategy that ensures at least 50% of the licence area is excluded from the fishery operations at all times, including closing the area from the Beachport Conservation Park to approximately one kilometre north of Blowhole Road;
(ii) avoiding the removal of all non-target species from the harvest area;
(iii) imposing additional requirements in the period from 1 September to
15 May (inclusive) each year, on sandy beaches along Wrights Bay, Nora Creina, Stinky Beach and the Rivoli Bay area from approximately one kilometre north of Blowhole Road to the southern end of the Fishery, including only permitting harvesting to occur:
a. by way of hand harvesting (assisted by mechanical winch if required);
b. on a maximum of 8 calendar days (or any part thereof) per calendar month, and a maximum of 4 calendar days (or any part thereof) between 1 May and 15 May, with each harvesting day to be advised to PIRSA prior to the commencement of harvesting; and
c. through the use of up to two vehicles ( 4 wheel drive utility, or similar, with a trailer with a gross vehicle mass of 3.5 tonne), with up to three people per vehicle, on any one day; and
(iv) prohibiting harvest operations within 100 metres either side of any nesting areas where Thinornis rubricollis (hooded plovers) are currently nesting and/or caring for dependent young, in all areas at all times.
(e) PIRSA, in collaboration with the South Australian Department of Environment, Water and Natural Resources, industry and where possible, the community to:
(i) implement a monitoring program to annually assess the impact of the South Australian Beach-Cast Marine Algae Fishery on migratory shorebirds; and
(ii) continue to support research with the aim of understanding and effectively managing the ecological risk posed by the Fishery to shorebirds and all relevant terrestrial and coastal ecosystems.
(f) Any data obtained from the monitoring program (excluding commercial in confidence data) must be included in the annual report sent to the Department of the Environment and should be available to the South Australian Department of Environment, Water and Natural Resources.
Overview
The Administrative Appeals Tribunal Act 1975 was enacted by the Parliament of Australia to provide a means for the review of decisions made by Commonwealth Ministers, agencies, and other authorities. The Act was introduced to address the need for an independent review mechanism to ensure that administrative decisions are made fairly and in accordance with the law. In this specific case, the Act facilitated an alternative dispute resolution process among the parties involved in the review of a decision under the Environment Protection and Biodiversity Conservation Act 1999. This process allowed the Administrative Appeals Tribunal to vary a declaration made by the Minister for the Environment concerning the approved wildlife trade operation of the South Australian Beach-Cast Marine Algae Fishery, ultimately aiming to balance ecological sustainability with economic activities.
The Environment Protection and Biodiversity Conservation Act 1999 was enacted to provide for the protection of the environment, particularly in relation to matters of national environmental significance. It was introduced to address the need for a comprehensive legislative framework that ensures the protection and management of the environment, biodiversity, and cultural heritage. In this instance, the Act provided the legislative basis for the Tribunal's review of the Minister's decision regarding the approved wildlife trade operation. The policy objective of the Act is to promote the ecologically sustainable use of natural resources while also protecting and conserving the environment.
Scope and Application
The Administrative Appeals Tribunal Act 1975 applies to cases where a decision made by a Commonwealth decision-maker is subject to review, and a person affected by the decision wishes to appeal. The Act establishes the procedures for the review and appeal process, including the right to a hearing and the powers of the Tribunal. The Act applies to individuals, entities, and industries that are subject to decisions made by Commonwealth decision-makers. The Act has a national jurisdictional reach, as it applies to decisions made by the Commonwealth government. There are certain exclusions and thresholds outlined in the Act, such as decisions made under the Migration Act 1958 and decisions made by the Security Intelligence Organisation. The Act can be extended or restricted through subordinate instruments, such as regulations or guidelines. The scope and application of the Act are crucial for practising lawyers who represent clients in administrative law matters, as it provides the framework for challenging and appealing decisions made by Commonwealth decision-makers.
The Environment Protection and Biodiversity Conservation Act 1999 applies to activities that have, will have, or are likely to have a significant impact on matters of national environmental significance. The Act provides for the protection of the environment, including wildlife, ecological communities, and heritage places. The Act applies to individuals, entities, and industries that carry out activities that may impact on matters of national environmental significance. The Act has a national jurisdictional reach, as it applies to activities that occur within Australia or its external territories. There are certain exclusions and thresholds outlined in the Act, such as activities that are exempt under the Act or activities that do not meet the criteria for a significant impact. The Act can be extended or restricted through subordinate instruments, such as regulations or guidelines. The scope and application of the Act are crucial for practising lawyers who advise clients on environmental law matters, as it provides the framework for assessing and managing the potential environmental impacts of activities.
Key Provisions
The key provisions of the decision revolve around the conditions imposed on the South Australian Beach-Cast Marine Algae Fishery, as outlined in the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). According to the decision, the Minister for the Environment’s declaration of June 3, 2015, under section 303FN of the EPBC Act, which approved the wildlife trade operation for the fishery, is varied to include specific conditions under section 303FT of the EPBC Act (paragraph 1). These conditions mandate that the fishery must adhere to certain regulations and management practices to mitigate the impact on migratory shorebirds and other ecological considerations. For instance, the operation must comply with the South Australian Fisheries Management (Miscellaneous Fishery) Regulations 2015 and the South Australian Fisheries Management (General) Regulations 2007 (paragraph 1(a)). Additionally, the Department of Primary Industries and Regions South Australia (PIRSA) is required to report to the Department of the Environment on any changes to the fishery management arrangements and provide annual reports (paragraph 1(b) and (c)).
The obligations imposed on the parties include strict adherence to the conditions set forth in the decision. PIRSA must ensure that the fishery operations exclude at least 50% of the licence area at all times, particularly the area from the Beachport Conservation Park to approximately one kilometre north of Blowhole Road (paragraph 1(d)(i)). They must also avoid the removal of non-target species, implement a management strategy during specific periods of the year, and prohibit harvesting within 100 metres of nesting areas of hooded plovers (paragraph 1(d)(ii) and (iv)). Furthermore, PIRSA is obligated to collaborate with relevant departments and stakeholders to monitor the impact of the fishery on migratory shorebirds and support related research (paragraph 1(e)).
Failure to comply with these conditions can result in various consequences. Although specific penalties are not outlined in the decision, non-compliance with the EPBC Act can generally lead to enforcement actions by the relevant authorities. These may include administrative penalties, legal proceedings, and potential revocation of the approved wildlife trade operation. The severity of the consequences would depend on the nature and extent of the breach, with potential civil or criminal penalties applicable depending on the specific circumstances of the non-compliance.