Management plans

Public land in the ACT must be managed by a ‘public land management plan’ (Planning Act s 318). There are two different types of public land management plans that are to be prepared depending on the nature of the public land in question. Areas of land that are reserves must be managed by a ‘reserve management plan’ in accordance with Part 8.3 of the Nature Conservation Act. Areas of land that are not reserves must be managed by a ‘land management plan’ in accordance with Part 10.4 of the Planning Act. If the area also includes a Ramsar wetland then a ‘Ramsar wetland management plan’ must also be prepared in accordance with Part 8.4 of the Nature Conservation Act.

The specific content of management plans has been an issue of debate in the ACT community over a number of years. Considerable public discussion has ensued over the degree of detail required in a management plan for it to meet the requirements of each respective Act. Public submissions have often called for greater detail to be included in management plans.

Where to find management plans

All management plans are disallowable instruments. This means that, under section 12 of the Legislation Act 2001 (ACT) (‘Legislation Act’), management plans are defined as ‘legislative instruments’ and therefore must be notified in the ACT legislation register, the Gazette or otherwise and presented to the ACT Legislative Assembly. If they are not notified they will not be enforceable (s 62). Registration in the ACT legislation register should mean that they can be publicly inspected (s 61). If it is not practicable to notify the management plan in the register, it may also be notified in another place the Parliamentary Counsel considers appropriate for public inspection (i.e. a Government website or the Gazette) (see Chapter 1 in this Handbook for more information on the notification of legislative instruments).

Reserve management plans

A custodian of a reserve must prepare a ‘draft reserve management plan’ for the reserve pursuant to the Nature Conservation Act (s 177(1)). A draft reserve management plan must identify the reserve and describe how the planning and development management objectives for the reserve are to be implemented or promoted in the reserve (s 176). The management objectives are set out in the abovementioned Schedule 3 of the Planning Act.

In drafting the reserve management plan, the custodian must consult with both the conservator and ACTPLA (s 177(2)). If the minister directs ACTPLA to prepare a planning report or strategic environmental assessment for the reserve, then the custodian must consider those documents when drafting the plan (s 178).

The processes for public consultation, ministerial approval and review of a reserve management plan are outlined in sections 179 through to 189 of the Nature Conservation Act. After this process is finished, the custodian of the reserve must take reasonable steps to implement the reserve management plan (s 188). While the custodian of the reserve must report to the minister about the implementation of the plan at least once every 5 years (s 189), this report is not automatically available to the public.

Reserves assigned to IUCN categories

Some reserves, or zones within reserves, can also be assigned to an IUCN category by the conservator (s 172(1)). This assignment of a reserve or zone to an IUCN category is a notifiable instrument (s 172(4)) (see above for definition). An IUCN category refers to the protected area management categories developed by the International Union for Conservation of Nature. These categories are recognised as global standards for reporting on protected areas.

The IUCN categories recognised under Australian law can be found in regulation 10.04 of the EPBC Act. There are seven different IUCN categories:

• strict nature reserve
• wilderness area
• national park
• natural monument
• habitat/species management area
• protected landscape/seascape
• managed resource protected area.

If a reserve, or a zone within a reserve, is assigned to an IUCN category, then the ‘reserve management plan’ for the area must be consistent with the IUCN reserve management objectives for that particular category of reserve (Nature Conservation Act s 176(c)(i)). The reserve management plan must also describe how the IUCN reserve management objectives for the reserve are to be implemented or promoted in the reserve or zone (s 176(c)(ii)).

The IUCN reserve management objectives for each IUCN category can be prescribed by regulation (s 173). However, the management objectives for the different reserves outlined in Schedule 3 of the Planning Act still apply and take precedence over any additional IUCN objectives. The Schedule 3 objectives serve to identify the overall purpose of the reserve and the IUCN objectives are used to inform management within that broader purpose.

Land management plans

The custodian of an area of public land that is not a reserve must prepare a ‘draft land management plan’ pursuant to the Planning Act (s 321). Each land management plan must identify the area to which it applies and describe the manner in which the relevant management objectives for that area are to be implemented or promoted (s 320).

In preparing the draft land management plan, the custodian must consult with both the conservator and ACTPLA (s 321(2)). Before approving the land management plan, the minister may direct ACTPLA to prepare either a planning report or a strategic environmental assessment for the draft plan (s 322). These documents must be considered by the custodian.

The processes for public consultation, ministerial approval and review of a land management plan are outlined in sections 323 through to 332A of the Planning Act. After this process is finished, the custodian of the area of public land must take reasonable steps to implement the management plan (s 332). A land management plan is a disallowable instrument (s 328(2)).

Ramsar wetland management plans

The conservator must prepare a ‘draft Ramsar wetland management plan’ for a Ramsar wetland as required in section 193 of the Nature Conservation Act. A draft Ramsar wetland management plan details how a Ramsar wetland is to be managed in order to preserve and protect the ecological character of the Ramsar wetland (s 192(1)(a)). Section 192 states that the term ‘ecological character’ is taken to have the same meaning as stated in section 16(3) of the EPBC Act, which draws its meaning from the Ramsar Convention. The Ramsar Convention defines ecological character as ‘the combination of the ecosystem components, processes and benefits/services that characterise the wetland at a given point’ (Ramsar Convention on Wetlands, Res IX.1 Annex A, COP, 9th mtg (8-15 November 2005) para 15).

The conservator must consult the Commonwealth minister who is responsible for administering the EPBC Act when preparing a draft Ramsar wetland management plan (Nature Conservation Act s 194(a)). The conservator must also consult with the custodian of the area of land that the wetland is located on if that area is unleased land or public land (s 194(b)).

The processes for public consultation, ministerial approval and review of a Ramsar wetland management plan are outlined in sections 195 through to 203 of the Act.

After this process is finished, the conservator or custodian of the reserve has an obligation to take reasonable steps to implement the management plan (s 202).

Management agreements

The conservator has the power under the Nature Conservation Act to propose a management agreement to a supplier of gas, electricity, water, sewerage, navigation or telecommunication services, or an entity responsible for the development of land (an agency) where the agency’s activities affect, or may affect, public land or unleased territory land, and the conservator reasonably believes the activities may conflict with the management objectives for the land (s 311).

Agency management agreements may deal with any or all of the following issues: access to land; fire management; drainage; management and maintenance of public or private facilities; rehabilitation of land or public or private facilities; indemnities; emergency procedures; internal stockpiling; fencing; feral animals and weed control (s 310).

Public participation in drafting management plans

The public consultation process is broadly similar for ‘reserve management plans’ as it is for ‘land management plans’ and ‘Ramsar wetland management plans’. The following paragraphs will briefly outline the process for public participation in

the development of reserve management plans pursuant to the Nature Conservation Act.

Public consultation period

When a custodian prepares a draft reserve management plan, they must also prepare a public consultation notice (s 179). The notice must state that any member of the public may provide the custodian with a written submission about the draft reserve management plan and include a copy of the draft reserve management plan.

It is important to note that the public consultation notice is a notifiable instrument and must therefore be notified pursuant to section 62 of the Legislation Act. This means that the public consultation notice must be registered in the ACT legislation register so that it can be publicly inspected or, if that is not practicable, it must be notified in another place the Parliamentary Counsel considers appropriate (i.e. a Government website or the Gazette) (s 61).

The public consultation period must run for a minimum of 6 weeks from the date the notice was published (Nature Conservation Act s 179(2)(a)(ii)). If a person chooses to make a submission to the custodian, they may withdraw their submission at any time. The custodian must consider any submissions they received during the public consultation period and then make any revisions to the plan that they consider to be appropriate (s 180).

Custodian to forward the draft to the minister

After considering public submissions, the custodian must then submit the draft reserve management plan to the ACT Minister for the Environment (‘the minister’) for approval along with a report outlining the issues raised by the public during the public consultation period. However, there is no specified time period in which this must occur. If the conservator or ACTPLA made a submission recommending a change to the draft reserve management plan and the custodian did not implement that change, the custodian’s report must explain why the change was not implemented (s 180).

Minister to forward the draft to a legislative committee

The minister is required to forward the draft reserve management plan and the reports mentioned in section 180 to the appropriate Legislative Assembly committee within five working days of receiving them (s 181).

This committee must then consider the draft reserve management plan and its associated reports before either recommending that the minister approves the draft plan or should make another recommendation about the draft plan. It is usual for this committee to also call for public comment on the draft reserve management plan either as general comments or on specific aspects of the draft. These written comments can also be supplemented by public hearings at which members of the public or organisations present their submissions and answer questions asked by the committee members. The evidence gathered through this process is considered by the committee when preparing its report to the minister on the final draft reserve management plan.

Minister to approve, return or reject the draft

Once the committee has referred the draft reserve management plan back to the minister, the minister is then obligated to take action on it (s 182(4)). However, if the committee does not refer the draft reserve management plan to the minister within six months of receiving it, the minister may take action on it, but is not obligated to do so (s 182(3)).

The minister has a range of options available upon receipt of a draft reserve management plan. The minister may either approve the draft reserve management plan, return it back to the custodian and direct certain action be taken, or reject it (s 183)(3)). If the minister returns the draft reserve management plan to the custodian, the minister must direct the custodian to take one or more of the following actions:

• consider a recommendation made by the Legislative Assembly committee
• conduct further specified consultation
• consider a revision suggested by the minister
• revise the draft in a specified manner (s 183(3)(b)).

A further opportunity for public participation will arise if the minister refers the draft reserve management plan back to the custodian for further consultation under section 183.

The minister must approve, return or reject the draft reserve management plan within the required time period, which is 45 working days from the day that the minister gains the authority to take action on it. This required time period begins either on:

• the day that the Legislative Assembly Committee refers the draft reserve management plan to the minister (s 183(4)(a))
• after six months have lapsed without the committee referring the draft reserve management plan to the minister after they have received it (s 183(4)(b))
• the day a custodian resubmits a draft reserve management plan to the minister after receiving a direction to revise it (s 183(4)(c)).

Draft to be presented to the Legislative Assembly

When the minister has approved the draft reserve management plan, it then becomes a ‘reserve management plan’ (s 184). Reserve management plans are notifiable instruments and are therefore notified and presented to the Legislative Assembly where they are subject to disallowance. At this time, the public have the opportunity to lobby Assembly members prior to their vote on the matter. Technical variations, that is, variations to correct matters such as errors or changes in titles and which do not go through a full public consultation process, are also disallowable instruments.

Review of plan

The custodian of the reserve must report to the minister about the implementation of the plan at least once every 5 years and the plans are reviewed once every 10 years. The review process must undertake the public consultation process as described above for a draft reserve management plan (s 189). Historically this review process of management plans has tended to be delayed and the Nature Conservation Act allows for ministerial extensions to this process (s 189(4)).

Land management plans and Ramsar wetland management plans

The process for public participation in the development of a land management plan is outlined in sections 323 through to 332A of the Planning Act. These provisions largely reflect the abovementioned public participation provisions in the Nature Conservation Act applicable to draft reserve management plans.

The process for public participation in the development of Ramsar wetland management plans is outlined in sections 195 through to 203 of the Nature Conservation Act. These provisions also largely reflect the above mentioned public participation provisions applicable to draft reserve management plans.