EXPLANATORY STATEMENT
(Issued by Authority of the Minister for the Environment and Water Resources)
Environment Protection and Biodiversity Conservation Act 1999
Proclamation to Revoke the Proclamation of the Kakadu Conservation Zone
Subsection 390J(5) of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) provides for the Governor-General to make a Proclamation revoking or amending the Proclamation of a conservation zone established under the EPBC Act.
The purpose of this Proclamation is to revoke the Proclamation of the Kakadu Conservation Zone consequent upon a Proclamation which amends the Proclamation of the 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 by a Proclamation under the National Parks and Wildlife Conservation Act 1975 (NPWC Act). Stage 3 of the Park was established by amendments to the Proclamation in 1987, 1989 and 1991. Stage 3 initially excluded an area declared as a conservation zone by Proclamation under section 8A of the NPWC Act (and commonly known as the Kakadu Conservation Zone). The Conservation Zone Proclamation was amended in 1989 to reduce the area of the conservation zone, and was then revoked in 1991. Corresponding Proclamations were made to amend the Kakadu Proclamation to add the areas to the Park.
In 1997 the High Court found the Kakadu Proclamation was invalid in relation to a number of mining leases in Stage 3 of the Park. Many of the lease areas had been in the Kakadu Conservation Zone prior to being included in the Park. The Government subsequently received legal advice that as a consequence of the High Court decision, the Kakadu Conservation Zone Proclamation remained in effect in relation to these areas, notwithstanding the fact that it had been revoked in 1991.
The NPWC Act was replaced by the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) on 16 July 2000. In so far as it continues to apply, the Proclamation of the Kakadu Conservation Zone was continued in force by the Environmental Reform (Consequential Provisions) Act 1999 (Schedule 4, Item 8) as if it had been declared a conservation zone under the EPBC Act.
The Government has reached a settlement with the holder of the current leases (Newcrest Operations Ltd) and all affected areas have now been incorporated into Kakadu by a Proclamation under subsection 350(1) of the EPBC Act to amend the Kakadu Proclamation.
Subsection 390J(3) of the EPBC Act provides that an area ceases to be a conservation zone if the area becomes or is included in a Commonwealth reserve (Kakadu is a Commonwealth reserve under the Act). However subsection 390J(5) requires that the Governor-General must make a Proclamation revoking or amending the Proclamation of the conservation zone, to reflect that the area is no longer part of the conservation zone.
This Proclamation has been made under subsection 390J(5) of the EPBC Act to revoke the Proclamation of the Kakadu Conservation Zone consequent upon the making of the Proclamation that includes the mining lease areas that were previously included in the conservation zone in Kakadu.
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 address the need for a comprehensive framework to protect and manage Australia's biodiversity and environment, particularly in relation to Commonwealth reserves. This Act provides the legislative basis for the establishment and management of conservation zones within these reserves, and includes mechanisms for the revocation or amendment of such zones. In 1997, the High Court found the Kakadu Proclamation invalid in relation to certain mining lease areas, leading to the continued effect of the Kakadu Conservation Zone Proclamation despite its revocation in 1991. The EPBC Act's provisions for the revocation or amendment of conservation zones were utilised to rectify this anomaly, ensuring that the affected areas were properly incorporated into the Kakadu National Park. The policy objective of this legislative action is to align the legal status of these areas with their inclusion in the Commonwealth reserve, thereby ensuring the effective management and protection of the environment within the park.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) applies to the conservation and protection of biodiversity, ecological communities, and heritage places, including the establishment and management of conservation zones. The Act, which operates at the Commonwealth level, extends its reach to various persons, entities, and industries involved in activities that may impact biodiversity and heritage. This includes those involved in mining, tourism, agriculture, and other sectors that might influence protected areas. The Act’s provisions are designed to ensure that significant impacts on the environment are assessed and managed appropriately. The geographic scope of the Act encompasses national and international boundaries, as it addresses both terrestrial and marine environments within Australia's jurisdiction. However, specific exclusions and exemptions are defined within the Act and its subsidiary legislation, often relating to activities that have been assessed as having minimal environmental impact. The Act also allows for the extension or restriction of its application through subordinate instruments, which provide detailed rules and guidelines for the implementation of the Act. The revocation of the Kakadu Conservation Zone Proclamation, as detailed in the Explanatory Statement, is a specific application of the Act, addressing historical legal ambiguities and ensuring the proper integration of previously contested areas into the Kakadu National Park.
Key Provisions
The main operative sections of the Proclamation to Revoke the Proclamation of the Kakadu Conservation Zone are subsections 390J(3) and 390J(5) of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Subsection 390J(3) stipulates that an area ceases to be a conservation zone if it becomes or is included in a Commonwealth reserve, such as Kakadu, which is a Commonwealth reserve under the Act. Subsection 390J(5) requires the Governor-General to make a Proclamation revoking or amending the Proclamation of the conservation zone to reflect the area's new status as part of a Commonwealth reserve.
The obligations imposed by this Proclamation primarily concern the legal status of the areas previously designated as the Kakadu Conservation Zone. These areas, which were previously outside the boundaries of the Kakadu National Park, have now been included in the park. This change in status means that the areas are no longer governed by the provisions that apply to conservation zones but are instead subject to the regulations that govern Commonwealth reserves. The requirement for the Governor-General to issue a Proclamation under subsection 390J(5) ensures that the legal framework is updated to reflect the current physical and administrative boundaries of the park.
Breach of the provisions of the EPBC Act or failure to comply with the requirements set out in the Proclamation could result in various legal consequences. While the Proclamation itself does not specify particular offences, breaches of the EPBC Act can lead to criminal charges, with potential penalties including substantial fines and imprisonment. For instance, under section 476 of the EPBC Act, a person who commits an offence against the Act can be fined up to $66,000 for a corporation or $13,200 for an individual, or both. In more severe cases, imprisonment for up to five years can be imposed. Additionally, civil penalties can also be applied for breaches of the Act, including actions taken by the Australian Federal Police or through the courts, which can lead to fines and other remedies deemed appropriate by the court.