05 Jul 2012

Koala populations protected under national environmental law

by Karen Trainor, Nicole Besgrove

A proposed action likely to have a significant impact on certain koala populations must now be referred under the EPBC Act.

On 30 April 2012 Environment Minister Tony Burke listed the combined Queensland, NSW and ACT koala populations as "vulnerable" on the national list of threatened species after a Senate Inquiry last year found that numbers were declining in Queensland and NSW.

Listed threatened species are recognised as a matter of national environmental significance. Any action that is likely to have a significant impact on this threatened species must be referred to the Federal Minister administering the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) and, where determined as a "controlled action", undergo an environmental assessment and approval process under the EPBC Act.

If a person proposing to take an action believes that the action may be, or is a controlled action, they must refer the proposal to the Minister for a decision as to whether or not the action is a "controlled action". In relation to threatened species, a controlled action is an action that:

  • has or will have a significant impact on a listed threatened species included in the vulnerable category; or 
  • is likely to have a significant impact on a listed threatened species included in the vulnerable category.

The Department of Sustainability, Environment, Water, Population and Communities (DSEWPaC) is in the process of preparing referral guidelines to assist in determining whether a proposed action is likely to have a significant impact on these koala populations.

In the interim, DSEWPaC has published an Interim koala referral advice for proponents, which complements the Koala Species Listing Factsheet and should be read in conjunction with "Significant impact guidelines 1.1 - Matters of Environmental Significance" to assess whether a proposed action will have a significant impact on koalas.

DSEWPaC has also prepared a map which indicates where the habitat of protected koala populations is likely to occur.

Implications for development

If your proposed development action has already been referred under the EPBC Act and the Minister has already decided whether that action is a controlled action (ie. either it is a controlled action or it is not a controlled action if undertaken in a manner specified) your proposal will not be affected by the new koala listing as the Minister's decision in the first instance cannot be revoked, varied, suspended, challenged, reviewed, set aside or called in question because of, or for reasons relating to, the new koala listing.

If you have not referred an action, but the land the subject of the proposed action may contain koala habitat, it is recommended that you seek technical advice as to whether a referral is required.

 

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.