EXPLANATORY STATEMENT
(Issued by Authority of the Minister for the Environment and Water Resources)
Environment Protection and Biodiversity Conservation Act 1999
Proclamation to Amend the Proclamation of Kakadu National Park
Subsection 350(1) of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) provides that the Governor-General may make a Proclamation to revoke or amend the Proclamation of a Commonwealth reserve made under the
EPBC Act.
The purpose of this Proclamation is to amend the Proclamation of Kakadu National Park (Kakadu) to rectify the partial invalidity of the Proclamation as found by the High Court in 1997 in relation to a number of mining lease areas.
Kakadu was established in 3 stages between 1979 and 1991. Stage 1 was established by a Proclamation under the National Parks and Wildlife Conservation Act 1975 (NPWC Act) on 5 April 1979. The Proclamation was amended by further Proclamations under that Act on 20 December 1985 (Stage 2), and 12 June 1987,
22 November 1989 and 24 June 1991 (Stage 3). The boundaries of the Park are described in the Schedule to the Proclamation. The Schedule has 11 parts (I to XI).
The NPWC Act was replaced by the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) on 16 July 2000. The Proclamation of Kakadu was continued in force by the Environmental Reform (Consequential Provisions) Act 1999 (Schedule 4, item 3) as if it had been declared a Commonwealth reserve under the EPBC Act.
The establishment of Stage 3 incorporated into Kakadu a number of areas that were the subject of mining leases at the time of Proclamation. In 1997 the High Court ruled (in Newcrest Mining (WA) Ltd. v. Commonwealth) that the park Proclamation was invalid with respect to 23 mining leases because the Proclamation, together with an absolute prohibition on mining in the park under the NPWC Act, had effected an acquisition of property from the lease holder other than on just terms as required by section 51(xxxi) of the Constitution. Subsequent inquiries disclosed a further 6 mining leases that, based on the High Court decision, had not been validly declared part of the park between 1987 and 1991.
The Proclamation has incorporated these mining lease areas into Kakadu now that the Government has reached a settlement with the holder of the current leases (Newcrest Operations Ltd).
The boundaries of the areas that make up Stage 3 are currently described by Parts VII to XI of the Schedule to the Kakadu Proclamation. The boundaries of the areas are generally described by reference to degrees of latitude and meridians of longitude. Together the areas now comprise Northern Territory Portion 220 (vested in the Director of National Parks) and most of Northern Territory Portion 4774 (which is Aboriginal land vested in the Gunlom Aboriginal Land Trust and leased to the Director).
Incorporation of the 29 mining leases into Kakadu was effected by a Proclamation under subsection 350(1) of the EPBC Act to amend the Kakadu Proclamation. This Proclamation omitted Parts VII to XI of the Schedule to the Kakadu Proclamation and substituted new Parts of the Schedule that described the outer boundaries of the same area (by reference to NT Portions 220 and 4774). All land within that area, including the 29 mining leases, is now part of the Park.
Subsection 351(1) of the EPBC Act requires that before the Governor-General makes a Proclamation under subsection 350(1) the Minister must consider a report prepared by the Director of National Parks under section 351. Paragraph 351(6)(a) provides that this requirement does not apply in relation to a Proclamation that declares an area in the Kakadu Region to be a Commonwealth reserve. The Kakadu Region is defined in the Environment Protection (Alligator Rivers Region) Act 1978 and includes the area of Kakadu. Hence no report was prepared by the Director of National Parks under subsection 351(1).
The Proclamation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Proclamation commenced on the day after it was registered on the Federal Register of Legislative Instruments.
Overview
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was enacted to provide for the protection of the environment, particularly with respect to matters of national environmental significance. This Act was introduced to address the need for a comprehensive framework that integrates environmental protection with biodiversity conservation and the management of activities that impact the environment. The EPBC Act was established by the Commonwealth Parliament and serves as a central piece of legislation aimed at safeguarding Australia's natural heritage. The policy objective of the Act is to promote the sustainable use of natural resources while protecting biodiversity and critical ecosystems. This specific Proclamation to Amend the Proclamation of Kakadu National Park was issued under the authority of the Minister for the Environment and Water Resources to rectify the partial invalidity of the original Proclamation as determined by the High Court in 1997. The Proclamation aims to incorporate certain mining lease areas into Kakadu National Park, ensuring that these areas are now validly part of the park following a settlement with the lease holders.
Scope and Application
The Proclamation to Amend the Proclamation of Kakadu National Park is a legislative instrument under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). It applies to the rectification of the partial invalidity of the original proclamation of Kakadu National Park, which was established in stages between 1979 and 1991. The amendment specifically addresses the inclusion of 29 mining lease areas within the park's boundaries, which were previously ruled invalid by the High Court in 1997 due to the failure to acquire the properties on just terms as required by the Australian Constitution. This amendment rectifies the park's proclamation by incorporating these areas into Kakadu, ensuring the entire park is now recognised as a Commonwealth reserve under the EPBC Act. The Proclamation has a national jurisdictional reach as it pertains to a Commonwealth reserve, and it extends to all entities and persons within the amended boundaries of Kakadu National Park. No specific exclusions or exemptions are stated in the text, and the scope of the amendment is confined to the rectification of the park's proclamation concerning the mining leases.
Key Provisions
The main operative sections of this Proclamation are subsections 350(1) and 351(1) of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Subsection 350(1) allows the Governor-General to make a Proclamation to amend or revoke the Proclamation of a Commonwealth reserve, which in this case is Kakadu National Park. The Proclamation seeks to rectify the partial invalidity of the original Kakadu Proclamation as found by the High Court in 1997. This was achieved by incorporating 29 mining leases into the Park, thereby amending the boundaries described in the Schedule to the Kakadu Proclamation. Subsection 351(1) of the EPBC Act generally requires the Minister to consider a report from the Director of National Parks before making such a Proclamation, but this requirement was not applicable here because the Proclamation relates to a declaration within the Kakadu Region, as defined in the Environment Protection (Alligator Rivers Region) Act 1978.
The Act imposes specific obligations and requirements on the parties involved in the governance of the Park. Firstly, the Minister for the Environment and Water Resources must ensure that the Proclamation is made in accordance with the EPBC Act, particularly subsection 350(1). This involves amending the original Proclamation of Kakadu National Park to include the 29 mining leases, which were previously found to be invalid. The Act also requires that the new boundaries of the Park, now incorporating the mining leases, are accurately described in the Schedule to the Proclamation. The Director of National Parks, although not required to prepare a report under subsection 351(1) in this instance, still has a role in managing the Park and ensuring compliance with the amended Proclamation.
The Act outlines potential civil and criminal consequences for breaches related to the governance of the Park. Under section 509 of the EPBC Act, a person who contravenes any provision of the Act, or any condition of a licence or authority issued under the Act, commits an offence and is liable to a penalty. The maximum penalty for a corporation that contravenes the Act can be significant, up to several million dollars, depending on the nature and severity of the offence. Additionally, individuals who are responsible for managing the Park and fail to comply with the requirements of the amended Proclamation may also face personal liability. These penalties serve as a deterrent against non-compliance and ensure the protection of the Park’s ecological and cultural values.