Environment, planning and land law

Contributed by DavidMorris and current to 1 May 2016

This chapter covers those areas of law that regulate:

• our interaction with the natural environment
• planning arrangements for development of the built environment
• rights in relation to land, including Aboriginal land and mining rights and obligations.

We will look at the procedures provided for under law for conserving our natural environment, procedures for responding to environmental damage (for example, pollution events) and how to respond to proposals that have the potential for significant environmental impact.

We will also look at the development process and what options are available for individuals and the community at large to contribute to planning regimes and to make submissions about planning proposals.

Finally we will examine the law in relation to the rights, duties and obligations owners and occupiers have in relation to land. This section will cover land generally in the Northern Territory including pastoral leases and Aboriginal land.

Various pieces of legislation are referred to in this chapter. It is important to note there are often regulations and other statutory instruments which are relevant in determining the true legal situation in any particular matter.

Protecting the environment

Environmental impact

• What is it?
• What laws regulate human interaction with the environment?
• How can areas of environmental significance be protected?
• How can you respond to environmental damage?
• What action can you take in response to proposals for development that might cause significant environmental damage?

All human activity has environmental impact. Not all impacts on the environment are necessarily bad or harmful. So how do we decide, first, what activities have the potential, or are likely, to cause environmental harm and second, at what level of harm should environmental protection measures be applied?

Environmental harm

The environment of the Northern Territory is addressed by both Commonwealth and Northern Territory legislation. Commonwealth legislation, particularly the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA), is dealt with in Planning and Development. It should be noted that a legal relationship exists between Commonwealth and some Northern Territory legislation. Practical and legal links also exist between different pieces of Northern Territory legislation. A search of the Northern Territory Government legislation website reveals in excess of 25 Acts containing provisions concerning the environment, plus a large number of regulations, by-laws and the like. Due to the complexities which may arise in environmental law issues, seeking specific legal advice will often be necessary. Various legal practices, including the Environmental Defenders Office have relevant expertise.

There are three main levels at which Northern Territory legislation environmental protection legislation operates. First, at an advisory or recommendatory level through the Northern Territory Environmental Protection Authority Act 2012 (NT) (NTEPAA). Second, in relation to specific proposals which are capable of having a significant effect on the environment by application of the Environmental Assessment Act 1982 (NT) (EAA) and its subordinate Environmental Assessment Administration Procedures (EAAP). Third, at a specific, more limited and often reactive level, through the Waste Management and Pollution Control Act 1988 (NT) (WMPCA) and other legislation, such as the Water Act 1992 (NT) (WA). It should be noted that the WMPCA is currently under legislative review. The information provided is correct at the time of writing but readers are advised to always check for the most recent amendments of the Act.

The WMPCA defines 'environment' to mean 'land, air, water, organisms and ecosystems'. The definitions in s 4 of the WMPCA create graduated categories of 'harm'. However, the objectives of the WMPCA are generally directed to pollution and waste resulting from operations, rather than environmental impact from development. The WMPCA is considered in more detail in Pollution.

Both the NTEPAA and the EAA define 'environment' to mean 'all aspects of the surroundings of [people] including the physical, biological, economic, cultural and social aspects'. Section 4 of the EAA addresses the subject of 'harm' through the concept of 'proposed action', which is a broad range of matters 'capable of having a significant effect on the environment'. The operation and application of the EAA is considered in more detail in Planning and Development.

The NTEPAA addresses 'harm' through the concept of 'ecologically sustainable development', which seeks to conserve the environment in a way that continues to serve citizens of the future as detailed in s 3 of the Act. Different Northern Territory Acts address 'harm' or impact to the environment in different ways, depending on their object or purpose. In considering what laws might apply to any particular threatened or actual harm it is important to consider the various definitions and objects referred to.

Northern Territory Environmental Protection Authority

The Northern Territory Environmental Protection Authority (NTEPA) was established under the NTEPAA in 2012. As in s 6(2) of the NTEPAA, the NT EPA is an independent corporation. The NT EPA structure consists of a Chairperson and 4 members; Chairperson and members' roles are set out at s 11 and s 10 respectively. The functions and objectives of the NT EPA are set out at s 7 and s 8 of the NTEPAA. The NT EPA is limited to advisory and recommendatory functions and are not subject to Ministerial direction.

The NT EPA's primary functions are advisory and involve making recommendations to both government and the private sector in relation to development. The NT EPA must, at the request of the Minister, respond to requests for a number of environmental issues. Additionally, it may do so on 'its own initiative'.

The NT EPA's key functions are as follows:

1. Pursuant to the EAA, conducting environmental impact assessments to ensure development within the Northern Territory is synonymous to 'ecologically sustainable development'.
2. Regulating activities and licenses under the Waste Management and Pollution Control Act 1998 (NT) and the Water Act 1992 (NT).
3. To monitor the container deposit scheme under the Environmental Protection (Beverage Containers and Plastic Bags) Act 2011 (NT).
4. A myriad of other tasks that are required to use, conserve and enhance 'the community's resources so that ecological processes, on which life depends, are maintained, and the total quality of life now and in the future can be increased'.

The NT EPA's expertise is wide and varied. As such, topics covered by the NT EPA in publications and reports are diverse. It is intended that the NT EPA is equipped to address environmental waste and pollution management, economics and social issues relating to the environment and environmental scientific issues. It should be noted that the establishment of the NT EPA is quite recent, thus the full extent of the NT EPA's impact on environmental law within the Northern Territory will become clearer with time.

More information regarding the NT EPA is available at its website: http://www.ntepa.nt.gov.au/

Environmental conservation

There are several pieces of legislation that aim to conserve the natural and human (built) features of the Northern Territory environment. Under this legislation it is possible to protect:

• areas of land and the natural environment on it
• aquatic and marine areas and coastlines, including shipwrecks
• sites and objects of historic significance, such as buildings and gardens
• sites and objects of historic, archaeological or scientific value, such as buildings, geological structures and fossils
• sites and objects of cultural significance, such as Aboriginal sacred sites and objects
• native animals and plants.

The relevant pieces of legislation include NT laws, Commonwealth laws and international treaties. In this section we will examine these laws as categorised under two main headings:

• protecting heritage
• protecting flora and fauna.

The Northern Territory does not have a comprehensive environment and biodiversity conservation and protection act, unlike the Commonwealth which has the Environmental Protection and Biodiversity Act 1999 (EPBC Act). The Commonwealth Act can be triggered for some development actions in the Northern Territory that have the potential for a significant impact on the environment. This Act is triggered by actions that might have a significant impact on:

• declared World Heritage properties
• National Heritage place
• declared RAMSAR wetlands
• listed threatened species and communities (on the Commonwealth list of threatened or endangered species or communities)
• listed migratory species
• nuclear actions
• actions in Commonwealth marine areas
• a water resource, in relation to coal seam gas development
• matters involving the Commonwealth that are:
  • on Commonwealth land
  • outside Commonwealth land but likely to impact on Commonwealth land
  • undertaken by the Commonwealth or an agency of the Commonwealth
  • likely to have a significant impact on Commonwealth heritage values (of a place listed on the Commonwealth Heritage List).

Therefore it is important when considering either taking action that might have an environmental impact or objecting to a proposed development action to take into account both Northern Territory and Commonwealth law as well as any International Treaties. The various pieces of legislation are discussed in more detail below.

Protecting heritage

Within the Northern Territory, items and places of natural or cultural heritage are affected by three tiers of statutory regulation:

• NT legislation
• Commonwealth legislation
• International law.

The three tiers can overlap so that the same place may be protected as Northern Territory heritage, appear on the Register of the National Estate (under Commonwealth law) and be listed as 'World Heritage' on the international stage. Each tier is discussed in turn below.

NT legislation

Heritage conservation laws in the Northern Territory are found in the Heritage Act 2011 (NT) (HA). Declaring a heritage place or object under the HA gives that place or object certain protections. The HA protects places that are on the Heritage Register by requiring anyone who wants to carry out works to apply for and obtain a works approval. Sites that are Aboriginal or Macassan archaeological places are automatically protected under the HA because they have been declared to be heritage places.

Heritage is defined within Part 3 of the HA by defining the objects through which the heritage assessment criteria are determined. The criteria are then defined in the Heritage Regulations (NT). The HA establishes the Heritage Council, who have wide powers and functions, including conducting the assessment of heritage places and objects and providing ministerial advice. The Heritage Branch of the Department of Lands and Planning governs heritage matters.

Making a nomination for inclusion on the NT Heritage Register

1. A person (or a group of people) are able to nominate a place or object to the Heritage Council for it to be assessed by the Heritage Council as a heritage place. The Heritage Council can also assess, on its own initiative, whether a place or object is heritage.
   
   
2. An application must be set out in the Nomination Form prescribed by the HA. The nomination form is available for download from the Department of Lands and Planning website. It must be sent to the Heritage Council and include enough information to allow an assessment to be made of the heritage values of the place.
   
   
3. As soon as possible after receiving a nomination, the Heritage Council decides to accept or refuse the nomination. A nomination can only be refused if the place has already been the subject of an assessment in the last 5 years or if it is 'frivolous or vexatious'.
   
   
4. The Heritage Council assesses the heritage significance of the place. The Heritage Council must use the heritage assessment criteria to decide whether or not to declare a place or object as a heritage place or object. The heritage assessment criteria are:
   • Whether the place or object is important to the course or pattern of the Northern Territory's cultural or natural history
   • Whether the place or object possesses uncommon, rare or endangered aspects of the Northern Territory's cultural or natural history
   • Whether the place or object has potential to yield information that will contribute to an understanding of the Territory's cultural or natural history
   • Whether the place or object is important in demonstrating the principal characteristics of a class of cultural or natural places or environments
   • Whether it is important in exhibiting particular aesthetic characteristics
   • Whether it is important in demonstrating a high degree of creative or technical achievement during a particular period
   • Whether it has a strong or special association with a particular community or cultural group for social, cultural, or spiritual reasons, including the significance of the place to the Aboriginal people as part of their continuing and developing cultural traditions.
   • The assessment process takes six months from the nomination date. The Heritage Council may extend this date.
     
     
5. Whether it has a special association the life or works of a person or group of persons, of importance to the Northern Territory's history.
   
   
6. The Heritage Council makes a decision about whether or not the place has heritage significance. If it decides that a place has heritage significance, the Heritage Council prepares a statement of heritage values and gives this to the Minister for Lands and Planning. If the Heritage Council decides that the place does not have heritage significance, it has to tell the person who made the nomination. The person who nominated the place has a right to apply to the NTCAT for a review of the Heritage Council's decision.
   
   
7. Once the statement of heritage values is prepared, the Heritage Council must conduct a public consultation. The Heritage Council must:
   • Publish a notice in a newspaper telling people where they can read the statement of heritage values and telling them that they can make a written submission to the Heritage Council
   • Give written notice to owners and occupiers of the place and anyone else that the Heritage Council thinks is likely to be directly affected by a declaration that the place is a heritage place
   • People must make submissions to the Heritage Council about their views on the heritage place within 28 days of the newspaper notice.
     
     
8. Within 60 days of the end of the public consultation, the Heritage Council must decide whether or not to recommend to the Minister for Lands and Planning that the site should be declared as a heritage place. The Heritage Council must consider submissions made in the public consultation.
   
   
9. If the Heritage Council decides to recommend that the heritage place should be declared, the Heritage Council makes a recommendation to the Minister for Lands and Planning. If the Heritage Council decides to not to recommend the heritage place, certain people can appeal the decision to NTCAT.
   
   
10. If the place is recommended for declaration, the Minister for Lands and Planning must decide whether or not to declare the heritage place. If the Minister is satisfied that the place is of heritage significance and should be conserved, the Minister must permanently declare the place as a heritage place. If the Minister decides not to declare the place, certain people may have the right to apply to the Supreme Court of the Northern Territory to have the decision reviewed (explained under 'appeals procedure', below).

How to nominate a place for inclusion on the Territory Heritage Register

Public process for nominations

Any person can seek to have a place or object protected as heritage by following the procedures outlined below:

Provisional Declaration Orders

Provisional declaration orders can be used in two situations:

• where it is likely that a place or object is to be of heritage significance
• where a declaration preventing damage is necessary step to ensure its conservation (see s 36 of the Heritage Act 2011 (NT)).

Effectively, provisional declaration orders afford the Minister the power to place conditions on potential places or objects of heritage significance, before a permanent declaration is in force.

The process of making a provisional declaration order is straightforward. The Minister simply declares in writing that a place or object is subject to a provisional declaration and places a notice of declaration in the Government Gazette. The Council must then assess the heritage potential of the place or object. Until this happens and there is a permanent declaration of the place or object or revocation of the provision, the provisional declaration remains in force (Heritage Act 2011 (NT) s 39). The Minister either declares the place or object to be a heritage place or objects and notifies, via the Gazette, that no declaration will be made. Any person may request the Minister to make a provisional declaration order. Often an application for a provisional declaration order will be completed in haste due to the urgency of the situation. It is still important that the best arguments based on solid evidence and data are presented to the Minister to enable the Minister to justify the decision to the wider community.

Protection of archaeological places and objects / Aboriginal or Macassan archaeological places and objects

Archaeological places and objects, as well as Aboriginal or Macassan archaeological places and objects, are automatically protected under the Heritage Act. These places and objects are defined at ss 6 and 8 of the Heritage Act.

Archaeological places and objects refer to places or objects that a) relate to the past human occupation of the Northern Territory and b) have been modified by the activity of the occupiers see Heritage Act 2011 (NT) s 6(1), 8(1)). Aboriginal or Macassan archaeological places and objects refer to a) places or objects that relate to the past human occupation of the Territory by Aboriginal or Macassan people and b) have been modified by the activity of those people (see Heritage Act 2011 (NT) s 6(2), 8(2)). Places and objects falling under these definitions are declared to be heritage places and objects under the Heritage Act (see Heritage Act 2011 (NT) s 17, 18). It is a criminal offence to knowingly discover any of the above places or objects without declaring them to the Chief Executive Officer (see Heritage Act 2011 (NT) s 114).

Heritage offences

After a place or object has been declared of heritage value, it is an offence for a person to do the following without the permission of the Minister:

• Knowingly cause damage to a heritage place or object (HA s 111(1));
• Knowingly remove a part of a heritage place (HA s 112 (1)); and
• Knowingly remove a heritage object from the Territory (HA s 113(1));
  • The maximum penalty is 400 penalty units or 2 years imprisonment
• Unknowingly cause damage to a heritage place or object (HA s 111(2));
• Unknowingly remove a part of a heritage place (HA s 112(2)); and
• Unknowingly remove a heritage object from the Territory (HA s 113 (2));
  • Maximum penalty - 100 penalty units

Prosecution for the above offences can be brought by any person.

Appeals procedure

Certain people are given rights to appeal particular decisions. There are three opportunities to appeal a decision not to protect a place. These are:

• If the Heritage Council decides to refuse the nomination of a heritage place, it must inform the person who made the nomination. The person who nominated the place has a right to apply to the Northern Territory Civil and Administrative Tribunal (NTCAT) for an appeal of the Heritage Council's decision. This type of appeal is called a merits review. Northern Territory Civil and Administrative Tribunal can consider all the evidence about a decision and can make a decision to uphold the first decision, make a new decision or set aside the first decision and refer the matter back to the decision-maker with recommendations.
• If the Heritage Council decides not to recommend a heritage place for declaration by the Northern Territory Civil and Administrative Tribunal, certain people can appeal the decision to the Northern Territory Civil and Administrative Tribunal. This is a type of appeal called a merits review. It means that the Northern Territory Civil and Administrative Tribunal can consider all the evidence about a decision and can make a decision to uphold the first decision, make a new decision or set aside the first decision and refer the matter back to the decision-maker with recommendations.The people who can appeal are:
  • The person who nominated the place
  • Anyone who made a submission in the public consultation
  • The owner or occupier of the place, and any person who holds a resource interest
• If the Minister for Lands and Planning decides not to declare a heritage place, certain people can appeal the Minister's decision to the Supreme Court of the Northern Territory. This type of proceeding is called judicial review. It is about whether or not the Minister's decision was legally valid because there was an error of law in the decision-making process. The people who can appeal are:
  • The person who nominated the place
  • Anyone who made a submission in the public consultation
  • The owner or occupier of the place

Time Limits

• If you have the right to appeal a decision to NTCAT and you wish to do so, you must appeal within 28 days of receiving notice of the decision or if you did not receive a notice, within 28 days of becoming aware of the decision.
• If you have the right to appeal a decision to the Supreme Court of the Northern Territory, you must do so within 60 days of the decision.

Revoking the heritage status of places or objects

The Minister for Lands and Planning also has the power to revoke declarations of heritage places, which would mean that those places would lose their protected status. However, revocation of declared heritage places can only occur after public consultation.

The Heritage Council has to publish a notice in a newspaper telling people about the proposed revocation and inviting people to make submissions. Any person can make a submission to the Heritage Council within 28 days. This means that people can object to the revocation.

The Heritage Council must also notify the owner or occupier of the heritage place and anyone else the Council considers is likely to be directly affected if the declaration for the place or object is revoked.

The Heritage Council has to make a recommendation to the Minister for Lands and Planning as to whether or not the declaration about a heritage place should be revoked. When making its decision, the Heritage Council:

• Must have regard to the heritage assessment criteria for the place or object
• Must consider the submissions made to it in the public consultation period
• May carry out the research and make the inquiries it considers appropriate, and
• May ask the owner of the place or object to give it information relevant to the assessment.
  • If the Minister for Lands and Planning decides to revoke the declaration of a heritage place, a notice of this decision has to be published in a newspaper. Written notice also has to be given to anyone who made a submission in the public consultation and the owner or occupier of the heritage place.

Protection from work uses and works

The Heritage Act requires people (or companies) who want to carry out works on a heritage place to obtain a works approval before they can do any works. A works approval is permission to carry out works at a heritage place:

• The person (or company) proposing to carry out works needs to get the consent of the owner of the land on which the heritage place is located before an application for a works approval can be made
• There is no public notification or consultation about applications for works approvals and so there are no rights for third parties to object to the grant of a works approval
• The Heritage Council makes decisions about whether or not to grant works approvals for works that are not major works
• The Minister for Lands and Planning makes decisions about whether or not to grant works approvals for major works.

When deciding whether or not to grant a works approval, both decision-makers must consider certain matters:

• The extent to which works would affect the heritage significance of the heritage place
• The advice of the Aboriginal Areas Protection Authority if the heritage place is, or is in, an Aboriginal sacred site
• Any other matters relating to the conservation, use and management of the place that the decision-maker thinks is relevant
• The extent to which the application, if refused, would affect the reasonable or economic use of the place, or cause a person financial hardship

For decisions about major works, the Minister for Lands and Planning must also take into account the advice of the Heritage Council.

Enforcement

Heritage officers have powers under the Heritage Act 2011 (NT) to enforce the law. A Heritage officer has the power to:

• Is carrying out, or is about to carry out works; and
• The work is a serious or imminent threat to the heritage significance of a heritage place; and
• It is necessary to order the person to stop work or to prohibit the person from starting work in order to conserve the place.

Additionally, the Minister for Lands and Planning has the power to issue a repair order, which requires the owner of a heritage place to do works for the conservation of a heritage place.

Aboriginal and Torres Strait Islander Protection

As detailed above, Indigenous heritage is protected under the Heritage Act 2011. In addition, heritage can also be protected under the Northern Territory Aboriginal Sacred Sites Act.

The Northern Territory Aboriginal Sacred Sites Act protects Aboriginal sacred sites. Aboriginal sacred sites are sites that are sacred to Aboriginal people or which have significance according to Aboriginal tradition. This law creates:

• a Register of Aboriginal sacred sites
• a procedure for people who want to enter onto, use, or carry out works on sacred sites, or them to obtain approval from the Aboriginal Areas Protection Authority
• criminal offences for desecrating a sacred site; using or carry on work at a sacred site and entering onto sacred sites

As detailed above the Heritage Act 2011 sets up a system for assessing, declaring and protecting heritage places. Heritage places are areas that are significant for their historical, scientific, aesthetic or social significance. All Aboriginal or Macassan archaeological places have been declared to be heritage places. These are places that relate to the past occupation of the Northern Territory by Aboriginal or Macassan people and which have been modified by the activity of those people.

Aboriginal sacred sites protected under the Northern Territory Aboriginal Sacred Sites Act are also capable of being protected as declared heritage places under the Heritage Act 2011.There is some overlap between the two laws and sites of Indigenous cultural heritage can be listed and protected under both laws. For more details on heritage protection under the Northern Territory Aboriginal Sacred Sites Act , please refer to the Aboriginal Land, native title and heritage section.

Commonwealth legislation

In addition to the NT legislation that protects certain places and objects, Commonwealth legislation exists to protect culturally and historically significant objects and places.

Moveable cultural heritage

The Protection of Moveable Cultural Heritage Act 1986 (Cth) (PMCHA) protects the moveable cultural objects that are important for ethnological, archaeological, historical, literary, artistic, scientific or technological reasons. It gives effect to Australia's agreement to the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970. It should be noted that the PMCHA is currently undergoing legislative review. The information provided is correct at the time of writing but readers are advised to always check for the most recent amendments of the Act.

This PMCHA establishes a National Cultural Heritage Committee, which advises the Minister for Environment about objects that should be included in or removed from the National Cultural Heritage Control List. On the list, which is prescribed by regulation, are objects that constitute the moveable cultural heritage of Australia and are, therefore, subject to export controls. The list divides objects into Class A objects, which cannot be exported except where a certificate has been granted, and Class B objects, which can only be exported in accordance with a permit or certificate.

It is an offence to export or attempt to export an Australian protected object, except in accordance with a permit or certificate, or to contravene or attempt to contravene a condition of a permit or certificate. The maximum penalty on conviction is $200,000 for a body corporate and $100,000 or imprisonment for five years, or both, for an individual. The object must also be forfeited. To enforce the provisions of the PMCHA, inspectors are given wide powers of search and arrest. The decision of the Minister for Environment and Water Resources to grant or refuse a permit or certificate may be appealed to the Administrative Appeals Tribunal.

The PMCHA also establishes the National Cultural Heritage Fund, which exists to facilitate the acquisition of Australian protected objects.

Archaeological and anthropological objects and specimens are also included in Schedule 2 of the Customs (Prohibited Exports) Regulations of the Customs Act 1901 (Cth) and may not be exported from Australia except with the written consent of the Minister for Environment and Water Resources.

Aboriginal and Torres Strait Islander heritage protection

As detailed above, Indigenous heritage is protected under Northern Territory laws. There are also two national laws that can protect Indigenous heritage. These are:

• the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984
• the Commonwealth Environment Protection and Biodiversity Conservation Act 1999

Protection under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 protects areas of land in Australia and in Australian waters that have particular significance in accordance with Aboriginal tradition. Aboriginal tradition is defined as meaning the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals.

This law provides powers to the Australian Government to make special orders, called declarations, and to protect significant Aboriginal areas from desecration. It is a criminal offence to do an act or omit to do an act that breaches a declaration about a significant Aboriginal area.

Desecration is when:

• an area is used or treated in a manner inconsistent with Aboriginal tradition
• the use or significance of the area is adversely affected by something done in, on or near to the area
• passage through or over or entry upon an area occurs in a manner inconsistent with Aboriginal tradition

The Minister for the Environment only make an emergency declaration to protect an area under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 if an Aboriginal or Torres Strait Islander person has requested it. Applications can be made orally or in writing. Before a declaration can be made to protect an area, the Minister for the Environment must be satisfied that:

• the area is a significant Aboriginal area (meaning there is a body of traditions, customs, observances and beliefs of Aboriginals that make the area significant)
• there is a threat of desecration
  

An authorised officer may make an emergency declaration to protect significant Aboriginal areas where the area is under immediate and serious threat of desecration. To make a declaration, the authorised officer must be satisfied that:

• the area is a significant Aboriginal area (meaning there is a body of traditions, customs, observances and beliefs of Aboriginals that make the area significant)
• the area is under serious and immediate threat of desecration
• the desecration of the area is likely to occur before the Minister can make the declaration.

The Australian Government views its powers under Aboriginal and Torres Strait Islander Heritage Protection Act 1984 as a way to protect sites only after the Northern Territory processes have failed to do so.

The Department of the Environment has information about Australia's Indigenous heritage laws and contact details for the Department, accessible here: http://www.environment.gov.au/topics/heritage/laws-and-notices/indigenous-heritage-laws

Protection under the Environment Protection and Biodiversity Conservation Act 1999

The Australian Government has powers under the Environment Protection and Biodiversity Conservation Act 1999 to protect indigenous heritage that is within:

• declared world heritage properties
• national heritage places
• natural, indigenous and historic heritage places on Commonwealth land. A declared world heritage property is a property that is listed in the World Heritage List or which has been declared to be a world heritage property by the Environment. Uluru-Kata Tjuta National Park and Kakadu National Park are both listed on the World Heritage List. There are World Heritage Criteria used to decide whether or not property should be declared as a world heritage property. The Department of the Environment has information about the listing process for world heritage properties. Australian Government approval is needed before anyone can do anything that will have, or is likely to have, a significant impact on the cultural or natural heritage of a world heritage property.

National heritage places are places on the National Heritage List. This includes natural, Indigenous and historic places that are of outstanding heritage value to the nation. Uluru-Kata Tjuta National Park and Kakadu National Park are also listed on the National Heritage List. Australian Government approval is needed before anyone can do anything that will have, or is likely to have a significant impact on the national heritage values of a national heritage place.

Natural, indigenous and historic places which are on Commonwealth lands and waters or under Australian Government control, and identified by the Minister for the Environment (the Minister), as having Commonwealth heritage values can be included on the Commonwealth Heritage List.

There are criminal offences for taking actions which have a significant impact on these places. The Commonwealth Government Department of the Environment is responsible for prosecuting breaches of the Environment Protection and Biodiversity Conservation Act 1999.

For more information about laws that protect Indigenous heritage visit the Commonwealth Department of the Environment: https://www.environment.gov.au/

Shipwrecks in Australian Waters

The Historic Shipwrecks Act 1976 (Cth) (HSA) protects Australian shipwrecks and related articles that lie in the waters around the Australian coast.

The Register of Historic Shipwrecks is administered by the Department of Environment and Water Resources. All historic ships and relics are listed on the register, which anyone can inspect or purchase for a small fee.

The Minister, may, by publishing a notice in the Government Gazette and in any newspaper, declare a coastal area or sea or of part sea and part land to be a protected zone. Any person who is believed to possess or to know the whereabouts of part of a historic shipwreck or historic relic can be required to give that information to the Minister for Arts or be fined.

The Minister can also direct how the wreck or relic is to be kept. A person who fails to follow these directions can be fined up to $5000 or imprisoned for two years; a body corporate can be fined $25,000. It is also an offence to damage, interfere with or dispose of a historic shipwreck (or part of it) or relic, or to remove it from the water. An individual offender can be fined up to $10,000 or gaoled for five years or both; a body corporate can be fined $50,000.

Generally, a person who is charged with an offence has a defence if the action happened during an emergency or to save a life.

The HSA aims to ensure that historic shipwrecks are protected for their heritage values and maintained for recreational and educational purposes. It also seeks to control actions which may result in damage, interference, removal or destruction of a historic shipwreck or associated relic. Divers can use wreck sites for recreational purposes but relics must not be removed from the wreck site and the physical fabric of the wreck must not be disturbed, unless a permit has been obtained.

Some historic shipwrecks lie within protected or no-entry zones. These zones may cover an area up to a radius of 800 metres around a wreck site, and may be declared where circumstances place it at particular risk of interference. This declaration prohibits all entry into this zone in the absence of a permit. Permits are also required to undertake any activities otherwise prohibited or restricted by the HSA.

Anyone who finds the remains of a ship, or an article associated with a ship, needs to notify the authorities as soon as possible, and to give them information about what has been found and its location. Historic shipwrecks and associated relics do not automatically belong to the individuals who find them. The transfer, possession and custody of material such as relics, including coins, from historic shipwrecks, are also regulated. Historic shipwrecks and their associated relics are protected even if a person came into possession of this material long before the HSA existed.

The HSA is administered by the Commonwealth Government in conjunction with delegates in each of the States, the Northern Territory and on Norfolk Island. To find out information about permits and protected zones, a person should contact the Commonwealth Historic Shipwrecks Officer, or the Commonwealth Minister's delegate in their State or Territory.

Regulations under the HSA prohibit all kinds of activities that might damage a historic shipwreck or relic, such as trawling or diving. Permits to explore and recover historic shipwrecks and relics are granted by the Minister, who can revoke or suspend a permit, or vary the conditions at any time. A person who disregards a condition imposed by a permit can be fined up to $2000 or imprisoned for two years or both. Anyone finding the remains of a ship or an article associated with a ship must notify the Minister for Arts as soon as practicable. Rewards and compensation are payable under the HSA.

International Law

The World Heritage list

While the AHCA protects heritage items that are of Australian but not necessarily of world significance, the World Heritage provisions of the Environment Protection and Biodiversity Conservation Act 1999 are aimed at conserving the parts of Australia that are considered to form part of the natural or cultural heritage of the world. The World Heritage provisions of the EPBCA apply to Commonwealth, State and privately-owned property that is on the World Heritage List under Article 11 of the World Heritage Convention, or subject to a Ministerial declaration, which provides interim protection while a decision whether or not to include a property on the list is made or where the Minister is satisfied that some or all of the World Heritage values of the property are under threat.

There is no public nomination or consultation process for including properties on the list, although the Commonwealth Government must try to reach agreement with owners and occupiers of the land in question and with any relevant State or Territory government before it makes a submission to the World Heritage Committee. See Commonwealth legislation, below.

Protecting flora and fauna

The protection of flora and fauna is achieved in two main ways:

• by setting aside areas such as parks, reserves and wilderness zones where the natural environment is subject to various protections
• by protecting particular plant and animal species.

The Territory Parks and Wildlife Conservation Act 2006 (TPWCA) defines 'wildlife' as all 'animals and plants that are indigenous to Australia', together with migratory birds and any animal or plant which is prescribed by regulations. Section 43 of the TPWCA then has the effect that all indigenous vertebrates, other than 'aquatic life' as defined by the Fisheries Act, is 'protected wildlife' in the Northern Territory.

Specific species can also be listed on the threatened species registers.

There are two separate lists:

• A list compiled by scientists within the Northern Territory Department of Land Resource Management
• A list compiled by scientists within the Commonwealth Government Department of the Environment. There is considerable overlap between the two lists but they are not identical. The status of particular species within the Northern Territory may sometimes differ to their status in other States or at the national level. A species can have a very restricted distribution within the Northern Territory and hence be classified as threatened but can be common in other parts of Australia and hence not be listed under the EPBCA as threatened at a national level.

NT legislation

Protected Areas

The regulation of the following areas are governed by the TPWCA:

• Territory parks and reserves
• Wilderness areas
• Sanctuaries
• Areas of essential habitat

Mining activities authorised under the Mining Management Act 2001 (NT) (MMA), Mining Titles Act 2010 (NT)(MTA), Petroleum Act 1984 (NT) or Petroleum (Submerged Lands) 1981 (NT) are permitted in parks and reserves. Other activities, such as excavations, building work, chopping down trees and removing timber, may only be carried out in accordance with a plan of management. More restrictive controls apply to a wilderness zone.

Parks and reserves

How are parks and reserves created?

The Northern Territory can buy land for the purposes of establishing a park or reserve but this is not essential and parks and reserves can be established whether or not a person, other than the Territory holds the title, right or interest in respect to that land.

The legal process for creating a park or reserve is as follows:

• The Northern Territory Parks and Wildlife Commission prepares a report about the proposed establishment of a park or reserve
• Notices are placed in the Gazette; a local newspaper, if any, circulating in the area concerned; and in a newspaper circulating throughout the Territory telling people about the proposed park or reserve and inviting people to give written comments (called representations) within 60 days of the notice
• The Northern Territory Parks and Wildlife Commission must give due consideration to any representations it receives. The Commission provides the report together with the representations to the Administrator
• The Administrator must consider the report
• The Administrator may then declare an area of land to be a park or reserve
• The Administrator can also declare that all or part of a park or reserve is a wilderness zone.

There is no legal nomination process for members of the public to apply for a park or reserve to be created. The status of land declared as a park or reserve can be revoked and the area within a park or reserve can be amended, but only by resolution passed by the Legislative Assembly.

What is protected?

Within a park or reserve, wildlife has legal protection and the land is generally protected from certain activities by creating a regime where certain activities are prohibited unless in accordance with a management plan. The following activities can only be done in accordance with the management plan for a park or reserve:

• Excavation
• Building or construction
• Carrying out works
• Timber felling and taking.

Parks and reserves can include coastal areas and the sea above any part of the seabed of the Northern Territory. However, the status of a park or reserve does not protect land from exploration or mining. Exploration for, or recovery and processing of, minerals in accordance with the conditions of the mining interest, right or power under the Mineral Titles Act, Petroleum Act 1984 (NT) or Petroleum (Submerged Lands) Act 1981 (NT) is permitted in a park or reserve. Additional legal processes apply before exploration and mining can be approved in these areas. There are criminal offences relating to harm to wildlife within the park or reserve.

The Commission also controls a large number of activities which may take place in parks or reserves including making fires; depositing waste; trade and commerce; public events; the possession of weapons, explosives and traps; use of metal detectors, and chemical substances; interference with wildlife; disturbance of natural features; taking or pollution of water; fishing; introduction of plants and animals; public behavior; use of portable generators; and public meetings.

Management of parks and reserves

Parks and reserves are managed by the Parks and Wildlife Commission unless there is a joint management agreement. The Parks and Wildlife Commission must comply with the management plan for the park or reserve.

Parks and reserves can be managed under a joint management agreement between the Northern Territory and the 'traditional Aboriginal owners' of the land. 'Traditional Aboriginal owners' is defined in the Aboriginal Land Rights (Northern Territory) Act 1976 as the person or persons who, by Aboriginal tradition, are responsible for making decisions about the park or reserve.

The joint management partners are together responsible for the management of the park or reserve and must comply with the joint management plan for the park or reserve. The joint management partners must perform their functions in a way that benefits traditional Aboriginal owners and the wider community; protects biological diversity; and serves visitor and community needs for enjoyment and education. Land Councils have the function of ascertaining and expressing the wishes and opinions of the Aboriginals living in the park or reserve and protecting the interests of the traditional Aboriginal owners.

Management plans for parks and reserves and public participation

Management plans must be prepared as soon as a park or reserve has been declared. The Parks and Wildlife Commission is responsible for preparing management plans. In preparing a management plan, the Commission must have regard to:

• For a park, the use, appreciation and enjoyment of the park
• For a reserve, the regulation of the reserve for the purpose for which it was created
• For both parks and reserves, the preservation of the park or reserve in its natural condition and the protection of its specific features including protection of objects and sites of biological, historical, paleontological, archaeological, geological and geographical interest; the protection, conservation and management of wildlife; and the protection of the park or reserve against damage. The management plan must contain a detailed description on how it is proposed the park or reserve will be managed. This description must include existing or proposed buildings, structures and facilities but exclude any excavation, works or operations related to mining interests. A management plan can also include the management of an area that is proposed to become a park or reserve but will not apply until that area becomes a park or reserve.

There is a process for public notification of new management plans and an opportunity for people to make comments on the plan. The process for preparing and approving a management plan is:

1. The Parks and Wildlife Commission prepares a management plan
2. The Parks and Wildlife Commission must notify the public in newspapers about the management plan and invite people to make written comments (called representations) within 1 month of the notice
3. The Northern Territory Parks and Wildlife Commission must consider any written comments that it receives
4. The Commission must give the management plan together with written comments from the public to the Minister for the Administrator
5. The Administrator may accept the plan of management or make alterations
6. The plan of management must be laid before the Legislative Assembly
7. If the Legislative Assembly does not pass a motion disallowing the plan of management within 7 days, then that plan comes into operation. If the Legislative Assembly passes a motion disallowing the plan of management, the Commission must prepare a new management plan.

Management plans can be amended but the public is not invited to comment on amendments to management plans. Management plans can be revoked but only if the process set out above is followed. Existing management plans remain in force until new management plans come into operation.

Wilderness zones

When a park or reserve is established, the Administrator may declare that the whole or a specified part of the park or reserve is a wilderness zone. A wilderness zone is an area of a park or reserve that has to be maintained in its natural state and used only for the purposes specified in the management plan.

In a wilderness zone, certain activities can only be done by the Parks and Wildlife Commission and only in accordance with the management plan. These are:

• excavation
• building or construction
• carrying out works
• timber felling and taking
• establishing of tracks and using vehicles, aircraft or vessels

The status of land as a wilderness zone does not prevent exploration or mining. Exploration for, or recovery and processing of minerals in accordance with the conditions of the mining interest, right or power under the Mineral Titles Act, Petroleum Act 1984 (NT) or Petroleum (Submerged Lands) Act 1981 (NT) is permitted in a park, reserve or wilderness zone. However, additional legal processes apply before exploration and mining can be approved in wilderness zones.

Sanctuaries

Sanctuaries are areas of land that were originally established under the Wildlife Conservation and Control Ordinance. Sanctuaries established under the Wildlife Conservation and Control Ordinance continues to be sanctuaries unless revoked under the Territory Parks and Wildlife Conservation Act. The Administrator can declare (by notice in the Gazette) the following to be sanctuaries:

• any area of unoccupied Crown land in the Northern Territory; or
• an area of land held in fee simple by the Corporation or in respect of which the Corporation holds a lease

The general public are prohibited from entering sanctuaries. It is an offence to take a firearm or trap into a sanctuary; to capture, take or kill an animal in a sanctuary; fish in freshwater in a sanctuary; or take protected plants from a sanctuary without a permit.

Areas of essential habitat

An area of land can be declared as an area of essential habitat where the area has been recognised as essential for the survival of wildlife generally or certain species of wildlife. Land that is declared to be essential habitat must be used and enjoyed in a way that is consistent with the declaration.

The declaration must describe the relevant area of land and specify the wildlife to which the declaration applies; give the reasons for making the declaration; give details of the objectives for, and proposed management of, the area; and state that the land must be used in a manner consistent with the objectives of the declaration. The declaration may also specify things, animals or plants that may not be taken into or out of the area; and activities that may not be carried out in the area unless authorised by the Director.

Overall, for land to become essential habitat, the Minister for Parks and Wildlife must decide, after a public process, that an area of land should be declared as essential habitat. The Minister then recommends to the Administrator that the area of land becomes essential habitat. The Administrator may declare (by notice in the Gazette) an area of land to be essential habitat if the land contains habitat that is essential for the survival of wildlife in that area.

Before the Administrator can declare land to be essential habitat:

1. The Director of the Parks and Wildlife Commission must consult with the owner and occupier of the land where, in the opinion of the Director, the owner's interests would be adversely impacted by the designation of the area as essential habitat.
2. The Minister for Parks and Wildlife must recommend the land be declared as essential habitat. Before the Minister for Parks and Wildlife can make the recommendation to the Administrator, the Minister must go through a public notification process. The Minister must:

The Minister for Parks and Wildlife must consider each submission and any other matter that comes to the Minister's attention. The Minister must then determine whether or not to make a recommendation to the Administrator and the contents of the recommendation.

If the Minister recommends that the area be declared an area of essential habitat, the Administrator may (by notice in the Gazette) declare the area to be an area of essential habitat (as long as the Director has also consulted as set out above).

The Minister for Parks and Wildlife also has emergency powers to create areas of essential habitat. If, in the opinion of the Minister, there is an area of land in which there is a species of wildlife that is likely to become extinct if not immediately protected, the Minister may (by notice in the Gazette) declare the area to be an area of essential habitat. The Minister can also amend or revoke an emergency declaration.

Where a declaration of an area of essential habitat has the effect of imposing a restriction on the use and enjoyment of land, the declaration is a restriction for the purposes of section 35 of the Land Title Act.

Threatened species protection

The Biodiversity Conservation unit of the Department of Land Resource Management is charged under s 29 of the Territory Parks and Wildlife Conservation Act 2006 (TPWCA) with classifying the conservation status of wildlife species in the Northern Territory. Species may be classified as 'Extinct in the Wild', 'Critically Endangered', 'Endangered', 'Vulnerable', 'Near threatened' and 'Data deficient'.

The list of threatened species in the NT was reviewed in 2010 - 2011. Information about these species may be obtained from the Department of Land Resource Management website at http://www.lrm.nt.gov.au/plants-and-animals/threatened-species/specieslist.

The Species Survival Commission of the International Union for the Conservation of Nature (IUCN) has developed a classification system and criteria for use in assessing the conservation status of species. The first Threatened Species List for the NT using IUCN criteria (see below) was produced in 2003. This was reviewed in 2011, resulting in the current List. The Threatened Species List is reviewed every four to five years. Public comment is a vital component of the process of review (and is required under the TPWCA) and a period of public consultation is part of the listing process.

Protected Wildlife

Under the TPWCA it is an offence to, without authority:

• take or interfere with protected wildlife
• to be in possession of an animal that is protected wildlife
• to bring protected wildlife into, release protected wildlife in or take protected wildlife out of the Territory.

Offenders can be fined and imprisoned.

Protected wildlife can be plant or animal and is defined as:

• all wildlife in a park, reserve, sanctuary, wilderness zone or area of essential habitat
• vertebrates indigenous to Australia, including migratory animals
• species declared by the Minister for Parks and Wildlife by notice in the Gazette
• species prescribed by the regulations to the TPWCA
• threatened wildlife.

Protected wildlife is protected on all land in the NT, although Aboriginal peoples' right to their traditional uses of animals and plants is preserved.

A person who has been charged with taking or interfering with protected wildlife has a defence if the offence occurred as a result of the defendant's reasonable use and enjoyment of the land and was not the result of negligence.

The Director of Parks and Wildlife may issue permits that authorise a broad range of activities which would otherwise be offences under the TPWCA.

Threatened wildlife

The Minister for Parks and Wildlife must, by notice in the Government Gazette, identify the wildlife that is threatened wildlife, either by classification or species. The Director of Parks and Wildlife is not allowed to issue a permit authorising the taking of or interference with threatened wildlife without the Minister's written approval. Offences against threatened wildlife attract double the penalties that apply to those against protected wildlife.

Unprotected wildlife

Wildlife that is not included in the definition of protected wildlife is protected to the extent that the TWPCA makes it an offence for a person to take or interfere with unprotected wildlife for commercial purposes without the proper authority to do so. Fines and imprisonment apply.

Consequences of treating wildlife unlawfully

Under the TWPCA, there are a number of criminal offences for treating wildlife unlawfully. These include:

• taking or interfering with protected wildlife without authorisation (see TWPCA, s 66(1)). Taking means: in relation to an animal - to hunt, catch, restrain or kill, or attempt or assist to hunt, catch, restrain or kill, the animal; and in relation to a plant - to sever, remove, damage or destroy, or assist to sever, remove, damage or destroy, the plant
• a person having in their possession, or under their control, an animal that is protected wildlife without authorisation (see TWPCA, s 66(2))
• bringing protected wildlife into, releasing protected wildlife in, or take protected wildlife out of the Territory without authorisation (see TWPCA, s 66(3))
• taking or interfering with unprotected wildlife (i.e. wildlife that is not classed as protected wildlife) for commercial purposes without authorisation (see TWPCA, s 67)
• directly or indirectly, altering, damaging or destroying an area or part of an area of essential habitat without approval (see TWPCA, s 67C)
• taking, interfering with or removing wildlife in or from an area of essential habitat without authorisation
• There are also offences for possession and control of items or animals in areas of essential habitat that are forbidden, such as a weapon that discharges a projectile or any kind of trap.

Feral animals

The Minister can, by putting a notice in the Government Gazette, declare a species of animal to be a feral animal and an area of land to be a feral animal control area if they believe the wildlife or an area of habitat, ecosystem, vegetation or landscape is or soon will be threatened by a particular feral species.

The Director may require the owner or occupier of land in a feral animal control area to take measures for the control or eradication of the feral species. Fines apply for failure to comply.

It is an offence to release a feral animal in the NT. Fines and imprisonment apply.

Prohibited entrants

Vertebrate animal species that are not indigenous to the NT are prohibited entrants, unless they are deemed not to be under the regulations to the TWPCA. At the time of publication, approximately 65 species of domestic animals and ornamental birds had been deemed not to be prohibited species (TWPCA reg. 4, sch. 1).

The Minister can, by publishing a notice in the Government Gazette declare additional prohibited entrants.

Under the TWPCA it is an offence to:

• bring a prohibited entrant into the NT
• be in possession of a prohibited entrant
• release a prohibited entrant in the NT
• take a prohibited entrant out of the NT.

Fines and imprisonment apply for breaches.

Management programs

The PWC can formulate and implement management programs for the management of wildlife, feral animals and prohibited entrants. Wildlife management programs have as their goals the protection, conservation, sustainable use, control and management of wildlife.

Fish and marine life

The protection and regulation of fish and other marine life takes place under the Fisheries Act 1988 (FA) and its regulations. Recreational and commercial fishermen can obtain information about open seasons, size limits, bag limits and restrictions on the use of equipment from the Department of Primary Industry and Fisheries: http://www.nt.gov.au/d/

The FA regulates, conserves and manages fisheries and fishery resources to ensure their sustainability. It also regulates the sale and processing of fish and aquatic life. 'Fish' are defined under the FA to mean any species or class of fish, including crustaceans (such as crabs), echinoderms (such as sea cucumbers, sand dollars and star fish) and molluscs (such as oysters), and includes aquatic animals, other than birds, that have been declared by the Minister for Primary Industries, Fisheries and Mines to be a fish for the purpose of the FA. The definition includes fish eggs, fry, spat or larva, the dead body of a fish or part of it, and the shell or exoskeleton of a crustacean, echinoderm or mollusc or part of it.

Aquatic life is defined as any species of plant or animal life (except birds) that at any time in its life must inhabit water. The definition includes parts of such plants or animals. It doesn't include fish or aquatic life that has been declared as exempt from the FA by the Minister for Primary Industries, Fisheries and Mines.

The FA applies within the territorial limits of the NT; that is, from the high water mark to three nautical miles from the coast.

The FA prohibits a range of activities unless the proper licence has been obtained, including:

• the taking of any fish or aquatic life, farming, breeding, culturing or keeping live fish or aquatic life for sale or for the purposes of aquaculture, selling live fish or live aquatic life (the taking of fish or aquatic life for subsistence or personal use only is excluded from these provisions)
• the preparation of fisheries management plans (see below)
• licensing activities related to aquatic life, such as fishing, farming, breeding and selling
• licensing fishing vessels
• establishing a joint authority for co-management arrangements with the Commonwealth Government
• enforcement and regulation of the provisions.

Recreational Fishing

Subject to section 10 of the FA , a person is not to take fish or aquatic life for sale or profit unless the person does so under and in accordance with a licence. There is a maximum penalty of 170 penalty units, or two years imprisonment.

Limits on possession of fish and other species

The following information is available on the Department of Primary Industry, Fisheries and Mines (DPIFM) website.

• A possession limit is the maximum number of fish each person may have in possession at any time, other than in their place of permanent residence. It is not a boat limit, a trip limit or a daily limit.
• A person is deemed not to have taken, or to be in possession of a fish if, as soon as practicable after they catch it (allowing for it to be detached from the line, measured, weighed in a landing net or photographed), the person releases it to the water with as little injury as possible to the fish.
• Some special fishing controls apply in the following areas and care should be taken fishing (visit http://www.nt.gov.au/d/Fisheries/recreational/ for more information):
  • Various Aquatic Life Reserves (near Darwin)
  • Kakadu National Park
  • Daly River Fish Management Zone
  • Mary River Fish Management Zone
  • Tiwi Islands
  • Macarthur River and Sir Edward Pellew Islands
• A person does not need a fishing licence for recreational fishing in the Northern Territory, and none of your catch may be sold or bartered.
• A person shall not take cod, groper or any other fish from the genus Epinephelus if the cod, groper or other fish is more than 1.2m long

Reasons for having Possession Limits for Recreational Fishing

These controls have been put into place to:

• enhance the long term sustainability of fish stocks in the Northern Territory
• share aquatic resources more equitably among competing user groups
• reduce the potential for localised overfishing
• help eliminate the illegal sale of fish.

General Personal Possession Limit

Recreational fishers must observe a general personal fish possession limit in the Northern Territory. A person may not possess more than 15 fish or the equivalent of 15 fish whether the fish are whole, trunked, filleted, diced, minced or a combination of those.

The general possession limit enables each person to possess up to15 fish in total. The following 'at risk' species must be limited to the number specified:

• 3 Golden Snapper
• 2 Black Jewfish
• 5 barramundi
• 3 King Threadfin
• 3 Mangrove Jack
• 2 Spanish Mackerel
• 10 Red Snappers - Saddletail, Crimson, Indonesian
• 5 Tricky Snapper (Grass Emperor)
• 5 Stripey Snapper (Spanish Flag)
• 5 Russels' Snapper
• 5 Tuskfish
• 5 Coral Trout
• 5 Red Emperor
• 5 Cod and Groper
• 3 sharks (excluding protected species)
• 1 Marlin and Sailfish
• 15 Bream
• 5 other fish species not subject to specific individual limits In addition to 15 fish in total limits, each person may possess up to:
• 10 mud crabs
• 30 crabs (other than mud crab)
• 10 L of molluscs (in shell)
• 30 freshwater crustaceans - cherabin and /or redclaw
• 5 tropical rock lobster
• 50 whiting and/or garfish (combined)
• 100 pilchards and/or sardines and/or herring (combined)
• 10 L of molluscs (in shell)
• 10 L saltwater prawns (all species combined)
• 30 octopus, cuttlefish and squid (combined)

Vessel limits

• Vessels with 4 or less people on board, each person may take their allocated quota, as above;
• Vessels with 5 - 7 people on board, each person can take a maximum of 4 times the personal possession limit of designated 'at risk' species. The balance can consist of the second list, as above;
• Vessels with over 8 or more people on board may take a maximum of 8 times the personal possession limit of designated 'at risk' species. The balance of the general possession limit can consist of the second list, as detailed above.
• While these are the maximum possession limits, you should only take what you need. Further there are specific limits on managed species of fish.

Protected Species

You must not be in possession of protected species, including:

• All species of cod / groper longer than 1.2 metres
• Sawfish, Northern River and Speartooth Sharks
• Giant Clams

Protected species must be released unharmed. Section 10 of the FA specifies that a person must not take (as by-catch or otherwise) any fish or aquatic life that is considered a protected species under the TWPCA. The penalty is a maximum fine of $10,000 plus $500 per day for a continuing offence.

Consequences of contravening fishing laws

Consequences of contravening the FA vary, depending on the nature of the offence. These are set out in detail at Schedule 6 of the Fisheries Regulations. In addition, protected areas are described in detail at Schedule 1AB of the Fisheries Regulations. Prior to fishing, refer to the Fisheries Regulations and fish within the restrictions.

Fisheries Management Plans

The Fisheries Division of the DPIFM develops fisheries management plans whose purposes are to conserve, enhance, protect, use and manage the fish and aquatic life resources in the NT to:

• promote, develop and maintain commercial and amateur fishing
• provide for optimum yields and maintain quality
• ensure that fisheries are not endangered or over-exploited
• encourage tourist and scientific interest in fish and aquatic life
• ensure that the habitats of fish or aquatic life and the general environment are not detrimentally affected.

To prepare these plans, the Minister for Primary Industry and Fisheries can establish and appoint members to an advisory committee for each management area or managed fishery. Every proposed plan must be submitted to the Minister and, if there is agreement in principle with the plan, it must be publicised in the Government Gazette and newspapers circulating in the NT. The Minister for Primary Industry and Fisheries must consider any submissions received within a month after the date of notification in the Gazette and can amend the draft plan as they consider appropriate.

Management plans include restrictions on the species of fish that may be taken and the number of licences that may be issued, catch quotas, and size limits. The following fishery management plans are available on the DPIFM website:

1. Barramundi Fishery Management Plan;
2. Doctors Gully Aquatic Life Reserve Management Plan;
3. Mud Crab Fishery Management Plan;
4. Pearl Oyster Culture Industry Management Plan; and
5. Spanish Mackerel Fishery Management Plan.

The Register

Under s 117A of the TPWCA the Director of the Parks and Wildlife Commission must keep at the main office of the PWC a register in which is to be recorded the details of the following:

• areas of essential habitat
• management programs
• classifications of wildlife
• feral animal control areas.

At the main office the Director must also keep:

• a copy of the classification of wildlife
• a list of threatened species
• a list of protected animals
• a list of feral animals
• a list of prohibited entrants
• a list of animals that are not prohibited entrants
• a copy of the declarations of areas of essential habitat and feral animal control areas
• a copy of the management programs.

Any member of public can inspect the register during business hours. The information is also available at the Parks and Wildlife Commission's website.

Bushfire control

The Department of Land Resource Management is responsible for implementing the Bushfires Act 1980 (NT) and supporting landholders with fire mitigation. It should be noted that the Bushfires Act is currently under review. The information provided is correct at the time of writing but readers are advised to always check for the most recent amendments of the Act.

The department conducts policy development, research, equipment subsidy and maintenance programs, education and extension, training, administrative support and volunteer brigade support. Much of the research carried out is a collaborative effort between Bushfires NT (BFNT), National Heritage Trust (NHT) and Commonwealth bodies. Bushfires NT as the umbrella organisation has a planning and coordinating role in fire management as its primary purpose, rather than acting as a fire fighting service.

The projects involve fire monitoring and development of coordinated fire mitigation programs across Northern Australia.

There are approximately 15 Volunteer Brigades throughout the Territory, the majority being in the rural areas surrounding Darwin. At the time of writing a Northern Territory bushfire management strategy is under development by BFNT and the Bushfires Council.

The basic objectives are the prevention and mitigation of wildfires. The guiding principles to achieve these objectives includes that fire prevention is the responsibility of individual landholders and organised efforts towards fire management and control should be directed by the landholder.

Traditional burning is still practised on Aboriginal Land in the Northern Territory. Strategies to achieve the objectives are being developed, taking into account changes in development in rural areas and advances in research and fire control.

Policy Guidelines

Bushfires NT operates under a series of policy guidelines designed to achieve its fire management objectives. They include:

• protection of life, property and the environment from the effects of wildfires
• maintenance of natural resources, including native ecosystems and productive lands, by the use of appropriate fire regimes.

The policy stresses the need for individual landholders, be they public or private, to have fire management plans in place which are devoted to the pre-suppression of large and intense fires. Such plans should be set in the context of a broader regional strategy.

High levels of risk, effort and the complexity in responsive technology required mean that direct fire suppression measures are used only when human life, assets or environmental values are threatened. Bushfires NT role is one of coordinating pre-suppression work to achieve consistent levels of practice most suited to the differing areas of the Northern Territory.

Commonwealth legislation

Australia's national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBCA), requires that a person must not take an action that has, will have, or is likely to have a significant impact on a matter of national environmental significance unless the action is taken with Commonwealth Government approval. This law sets up a process for assessing the impacts of proposed actions.

In all cases where an action that has, will have, or is likely to have a significant impact on a matter of national environmental significance, the person (or company) proposing to take the action must submit a referral to the Commonwealth Minister for the Environment. An action means any project, development, undertaking or any activity or series of activities. Detailed information regarding the EPBCA can be located in 'Development and Planning', this Chapter (where)?.

Matters of national environmental significance

The Environment Protection and Biodiversity Conservation Act 1999 sets out the matters of national environmental significance, as follows:

• Listed threatened species and communities. For example, Masked Owl (Tiwi Island), Northern quoll, Freshwater sawfish, Saltwater and Freshwater Crocodiles
• Listed migratory species. For example, dugong and saltwater crocodile
• Ramsar wetlands of international importance
• Commonwealth marine environment
• World heritage properties such as Kakadu National Park and Uluru-Kata Tjuta National Park
• National heritage places such as Hermannsburg Historic Precinct (near Alice Springs), Kakadu National Park, Wave Hill Walk Off route and Uluru-Kata Tjuta National Park
• The Great Barrier Reef Marine Park
• Nuclear actions (including uranium mines)
• A water resource, in relation to coal seam gas development and large coal mining development

Referral of actions

A person (or company) proposing to take the action that has, will have, or is likely to have a significant impact on a matter of national environmental significance, must submit a referral to the Commonwealth Minister for the Environment.

• An action means any project, development, undertaking or any activity or series of activities.
• A referral is a document which explains what the proposed action is and whether or not the person taking the action believes that it will have, or is likely to have a significant impact on a matter of national environmental significance.

A significant impact is an impact which is important, notable or of consequence, having regard to its context or intensity. Detailed information regarding the significant impact test can be found here: https://www.environment.gov.au/system/files/resources/42f84df4-720b-4dcf-b262-48679a3aba58/files/nes-guidelines_1.pdf

Public comments on referral

Referral documents can be viewed online on the webpage of the Department of Environment website. People have the right to make comments on a referral within 10 business days. This deadline is strict, so it is important to make comments within 10 days. The Department of the Environment has guidance on how to search for referral documents and how to make comments.

Decision on referral

The Minister for the Environment makes decisions about whether a referred action will have, or is likely to have, a significant impact on a matter of national environmental significance. The Minister has to take into account any public comments that he/she receives on the referral.

The Minister can decide:

• That the action is a controlled action - this means that the proposal is likely to have a significant impact on a matter of national environmental significance. It means that the proposal will need to be assessed for its environmental impacts
• That the action is not a controlled action provided it is taken in a particular manner - this means that the proposed action will not have a significant impact provided that it is done according to the conditions set by the Minister, or
• That the action is not a controlled action - this means that the action is not likely to have a significant impact and so can proceed without any further Commonwealth environmental assessment or approval.
  • It is an offence to take an action while the decision making process on a referral is still taking place.

Form of environmental assessment

If the Minister for the Environment decides that the proposed action is a controlled action, it will require an environmental assessment. There are several types of assessments. These are:

• An accredited assessment process
• Assessment on referral information only
• Assessment on preliminary documentation
• A public environment report
• An environmental impact statement
• A public inquiry

The public can make comments on the environmental impact assessment which must be made within the specified time limit.

Approval

At the end of the environmental impact assessment process, the Commonwealth Minister for the Environment decides whether or not to approve the controlled action.

In determining whether to approve a controlled action, the Minister must consider

• The impacts on each matter of national environmental significance
• Economic and social matters
• The principles of ecologically sustainable development
• The environmental assessment material and any subsequent reports
• Public comments
• Comments from other Ministers

The Minister must not act inconsistently with Australia's international obligations.

Challenging decisions

The decision of the Minister of the Environment that an action is not a controlled action or to approve a controlled action can only be challenged in a court through judicial review.

The Environment Protection and Biodiversity Conservation Act 1999 sets out the people called 'persons aggrieved' who can apply for a judicial review of a decision by the Minister. A person aggrieved by a decision is:

• In the case of an individual, an individual is an Australian citizen or a person who normally resides in Australia or an external Territory and who at any time in the previous 2 years has engaged in activities in Australia or an external Territory to protect, conserve or research the environment
• In the case of an organisation, an organisation or association is incorporated or otherwise established in Australia or an external Territory; and at any time in the previous 2 years has engaged in activities in Australian or an external Territory to protect, conserve or research the environment; and at the time of the decision, the objects and purposes of the organisation or associated included to protected, conserve or research the environment.

The Minister for the Environment makes decisions about whether a referred action will have, or is likely to have a significant impact on a matter of national environmental significance. The Minister has to take into account any public comments that he/she receives on the referral.

The Minister can decide:

• That the action is a controlled action - this means that the proposal is likely to have a significant impact on a matter of national environmental significance. It means that the proposal will need to be assessed for its environmental impacts.
• That the action is not a controlled action provided it is taken in a particular manner - this means that the proposed action will not have a significant impact provided that it is done according to the conditions set by the Minister; or
• That the action is not a controlled action - this means that the action is not likely to have a significant impact and so can proceed without any further Commonwealth environmental assessment or approval.
  • It is an offence to take an action while the decision making process on a referral is still taking place.

Similarly to the scheme for the protection of flora and fauna in the NT, the EPBCA has different provisions relating to the protection of places and the protection of species.

Protected species

Under the EPBCA, nationally listed threatened species are protected from being killed and injured in Commonwealth areas. They are also protected no matter where they are in Australia because, under the EPBCA, any action that has, will have or is likely to have a significant impact on a nationally listed threatened species or migratory species is subject to the Commonwealth Government's environmental impact assessment and approval mechanisms (see Planning and development).

Lists of nationally listed threatened species can be seen on the Department of the Environment website: http://www.environment.gov.au/

The Environment Minister is responsible for ensuring that recovery plans are made for each listed threatened species. In addition, the Minister is responsible for administering a permit scheme, under which they can authorise certain action in relation to threatened species and ecological communities that would otherwise be prohibited.

To fulfil Australia's international obligations under the Convention on International Trade in Endangered Species of Wild Flora and Fauna (The CITES Convention), the EPBCA contains a legal regime for regulating trade in internationally endangered and Australian wildlife species.

Consequences of contravening the EPBCA

Areas that are protected by the EPBCA are strictly controlled by the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth)(EPBCR). The EPBCR additionally sets out criteria for decision-making; for example, division 5.2 sets out matters to be addressed by draft public environment report and environmental impact statement. The EPBCA and its regulations together create a protective framework; contravening the specific requirements of the Act and the regulations may result in an offence. The Compliance and Enforcement Policy published on the Department of Environment website provides detailed information about the ways the EPBCA and framework is enforced.

Compliance mechanisms

Compliance mechanisms vary depending on the nature of the offence. They may include the following (see Department of the Environment, 'Compliance and Enforcement Mechanisms', accessed at www.environment.gov.au/epbc/compliance-and-enforcement/mechanisms for more detail):

Strict civil or criminal penalties that can apply to individuals and corporations that contravene environmental approvals under the EPBCA - including giving false or misleading information in obtaining an approval.

• Taking action that is likely to significantly impact a matter of national environmental significance without first obtaining an approval may result in a civil penalty of up to $900,000 for an individual and $9 million for a body corporate, or a criminal penalty of seven years imprisonment and/or a $75,600 fine
• Taking action that is likely to significantly impact a matter on Commonwealth land without first obtaining an approval may result in a civil penalty of up to $180,000 for an individual or up to $1.8 million for a body corporate, or a criminal penalty of up to two years imprisonment and/or a $21,600 fine
• Taking, or failing to take, an action that results in contravening a condition of their approval may result in a civil penalty of up to $180,000 for an individual and up to $1.8 million for a body corporate, or a criminal penalty of up to two years imprisonment and/or a $21,600 fine
• Providing false or misleading information during the approval process may result in a criminal penalty of up to two years imprisonment and/or a $21,600 fine. Remediation orders and determinations to mitigate and repair environmental damage resulting from any contraventions of the EPBCA
• If the Minister for the Environment suspects that there has been an act or omission contravening the EPBCA , the Minister may ensure certain steps are taken to reverse the outcomes of that act or omission
• The Federal Court may also order the remediation of environmental damage
• Compensation to affected parties for loss or damage may be payable where a person has contravened the EPBCA.

Enforceable undertaking to negotiate civil penalties and provide for future compliance

• An enforceable undertaking is a document written to the Minister, specifying that a person will pay specified amounts to the Commonwealth or another party for the purpose of giving effect to a protected matter.

Directed Environmental audits are directed by the Minister if it suspected that an authorised area is having greater impacts than the impacts anticipated during the initial environmental assessment or if it suspected that there has been a breach of a condition of that authority.

Liability of executive officers may be enforced in certain circumstances. Criminal and civil liability (including up to two years imprisonment) against executive officers is an available enforcement where a body corporate has breached the EPBCA.

Injunctions may be ordered by a court to inhibit a party or parties from undertaking or continuing an activity. An application to the Federal court may be lodged by the Minister for the Environment, an interested person (other than an unincorporated organisation) or a person acting on behalf of an interested person (who is not an unincorporated organisation).

Publication of any contraventions of the EPBCA may occur as the Minister sees fit. For more information about compliance mechanisms and offences stemming from the EPBCA, please refer to the Department of Environment website.

What to do if you see a potential contravention of the EPBCA

Some examples of contravention of the EPBCA are:

• Failing to take action in a specified manner
• Commencing an action prior to approval
• Failing to obtain or comply with a permit

There are a number of ways to report a potential contravention of the EPBCA. You may report suspected contraventions in a number of ways:

Email: compliance@environment.gov.au
Phone: (02) 6274 1372 or free call 1800 110 395
Fax: (02) 6274 1607

Post:
Compliance and Enforcement Branch
Environment Assessment and Compliance Division
Department of the Environment
GPO Box 787
Canberra ACT 2601