EXPLANATORY STATEMENT
(Issued by Authority of the Minister for Sustainability, Environment, Water, Population and Communities)
Environment Protection and Biodiversity Conservation Act 1999
Environment Protection and Biodiversity Conservation (Kakadu) Proclamation 2013
Subsection 350(1) of the Environment Protection and Biodiversity Conservation Act 1999 (the 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. Subsection 344(1) of the EPBC Act prescribes the areas that may be declared as part of a Commonwealth reserve. Such areas include an area that is held under lease by the Commonwealth or the Director of National Parks as specified in sub-paragraph 344(1)(a)(iii).
The purpose of the Proclamation is to amend the Proclamation of Kakadu National Park (Kakadu) to add to Kakadu an area held under lease by the Director of National Parks that is located within the park but was not previously part of the park. The area is commonly known as the Koongarra Project Area (Koongarra).
Kakadu was declared by a Proclamation made 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, 12 June 1987, 22 November 1989 and 24 June 1991. These further Proclamations increased the area of the park.
The NPWC Act was replaced by the 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 Kakadu Proclamation was further amended on 23 May 2007 by a Proclamation under subsection 350(1) of the EPBC Act to include some additional areas in the park.
The boundaries of the areas that make up Kakadu are described in the Schedule to the Proclamation. The Koongarra area was excluded from the original, 1979 Proclamation (along with some other areas) because it was the site of a potential uranium mine. The relevant exclusion was described in paragraph (b) of Part I of the Schedule to the Proclamation. The subsequent Proclamations did not add Koongarra to the park.
Koongarra and surrounding areas of Kakadu are Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act 1976. Mining at Koongarra could only proceed with the consent of the traditional Aboriginal owners. That consent has not been given. Following a request from the senior traditional Aboriginal owner the government committed in 2010 to incorporate Koongarra into Kakadu. Following consultations required by the Aboriginal Land Rights (Northern Territory) Act 1976 the Koongarra land was leased by the Kakadu Aboriginal Land Trust to the Director of National Parks.
Incorporation of the Koongarra area into Kakadu was effected by a Proclamation under subsection 350(1) of the EPBC Act that omitted paragraph (b) of Part I of the Schedule to the Kakadu Proclamation. All the land described in paragraph (b) has become part of the park.
Subsection 351(1) of the 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 however 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) in relation to the Proclamation.
The Proclamation does not affect the exercise of any native title rights in accordance with the Native Title Act 1993 that may exist within the Koongarra area.
The Proclamation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Proclamation commenced the day after it was registered on the Federal Register of Legislative Instruments.
Overview
The Environment Protection and Biodiversity Conservation (Kakadu) Proclamation 2013, enacted under the authority of the Minister for Sustainability, Environment, Water, Population and Communities, aims to address the gap in the protection of the Koongarra Project Area within the Kakadu National Park. The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) allows for the amendment of the proclamation of Commonwealth reserves, such as the Kakadu National Park, to ensure comprehensive protection of significant environmental areas. The proclamation was issued by the Governor-General and is intended to include the Koongarra area, previously excluded due to its potential for uranium mining, into the park. This amendment responds to the 2010 commitment by the government to incorporate Koongarra into Kakadu, following consultations with the traditional Aboriginal owners and the leasing of the land to the Director of National Parks by the Kakadu Aboriginal Land Trust. The policy objective is to enhance the protection of culturally and environmentally significant areas within the park, ensuring the conservation of biodiversity and the preservation of Aboriginal heritage sites.
Scope and Application
The Environment Protection and Biodiversity Conservation (Kakadu) Proclamation 2013 amends the existing Proclamation of Kakadu National Park under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Specifically, it incorporates the Koongarra Project Area, which was previously excluded from the park, into the national park. This amendment applies to the area held under lease by the Director of National Parks, which is now part of Kakadu National Park. The proclamation is made under subsection 350(1) of the EPBC Act, which allows the Governor-General to amend or revoke a Proclamation of a Commonwealth reserve. The amendment is confined to the geographic area of Kakadu National Park, thereby affecting only the specified entities and conduct within this national park context. The proclamation does not apply to any other areas or reserves, and it is specifically tailored to the needs of the Kakadu National Park, respecting existing native title rights under the Native Title Act 1993. The proclamation does not require a report from the Director of National Parks, as it falls within the Kakadu Region, which is defined under the Environment Protection (Alligator Rivers Region) Act 1978.
Key Provisions
The main operative sections of the Environment Protection and Biodiversity Conservation (Kakadu) Proclamation 2013 (the Proclamation) include subsection 350(1) of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), which provides the authority for the Governor-General to make a Proclamation to amend or revoke a Proclamation of a Commonwealth reserve. In this case, the Proclamation amends the Kakadu National Park Proclamation to incorporate an additional area, the Koongarra Project Area, into the park. This change is made under subsection 344(1) of the EPBC Act, which specifies the types of areas that may be declared as part of a Commonwealth reserve, including areas held under lease by the Commonwealth or the Director of National Parks.
The Proclamation imposes certain obligations on the parties involved, primarily focusing on the addition of the Koongarra area to the Kakadu National Park. This addition is intended to protect the area from potential mining activities that could have occurred without the consent of the traditional Aboriginal owners, who have not granted permission for such activities. The process of incorporating Koongarra into the park involved leasing the land by the Kakadu Aboriginal Land Trust to the Director of National Parks, in accordance with the requirements of the Aboriginal Land Rights (Northern Territory) Act 1976. Additionally, the Proclamation ensures that the changes do not affect any native title rights that may exist within the Koongarra area, in compliance with the Native Title Act 1993.
In terms of consequences, the Proclamation itself does not specify any particular offences, penalties, or consequences for breach. However, actions that contravene the objectives of the EPBC Act, such as unauthorized mining within the newly incorporated area of Kakadu, could result in legal action under that Act. The EPBC Act includes provisions for both civil and criminal penalties for breaches. Civil penalties can include fines of up to $666,000 for individuals and $3.3 million for bodies corporate, while criminal penalties can include fines of up to $666,000 and/or imprisonment for up to five years for individuals, and $3.3 million and/or imprisonment for up to ten years for bodies corporate. The specific penalties imposed would depend on the nature and severity of the breach.