29 Sep 2016

WA's biodiversity conservation milestone

By Brad Wylynko and Mark Etherington

The WA State Parliament has passed the Biodiversity Conservation Bill 2015, which will replace the outdated conservation legislation and bring WA up to speed on a national level.

The State Parliament has achieved an environmental milestone, by passing new legislation to replace the outdated Wildlife Conservation Act 1950 (WA). On 13 September 2016, the Legislative Assembly completed the final step of approving amendments made by the Legislative Council to the Biodiversity Conservation Bill 2015.

The objects of the Bill are to conserve and protect biodiversity and to promote the ecologically sustainable use of biodiversity components in the State. The Bill also repeals the Sandalwood Act 1929 (WA) aiming to reduce the level of trade in unlawfully obtained sandalwood.

What has changed?

The Bill now allows for both species and ecological communities to be listed as "threatened", as well as allowing the Minister to list habitat as "critical habitat". If a person takes threatened flora, or takes, possesses or disturbs threatened fauna, fines of up to $500,000 can be imposed. Under the Sentencing Act, those fines rise to $2.5 million for body corporates. This is substantially above the $10,000 fines previously imposed by the Wildlife Conservation Act.

At the same time, new defences have been included. If a person taking flora or fauna (other than specially protected flora or fauna) does not have a licence, but can demonstrate that the taking occurred in the course of a lawful activity (the sole or dominant purpose of which was not to take flora or fauna) and the offence could not reasonably have been avoided, they will have a defence. In the case of specially protected flora or fauna there is an additional requirement that the person demonstrate that they were unaware, and could not reasonably have known, that the particular flora or fauna was present.

Consultants should note that there is now an obligation to report an occurrence of a threatened species if it is found in the course of carrying out field work for an environmental impact assessment or in relation to a clearing permit application. The penalty for failing to report the occurrence is $50,000.

Other major developments include the ability for landowners to enter into a biodiversity conservation covenant with the CEO in order to set aside part of their land for the conservation, protection or management of biodiversity on the land. A covenant may have the effect of restricting use of the land, restricting the nature of works that can be carried out on the land, or requiring that specific action must / must not be taken on the land.

A registered biodiversity covenant will bind each successive owner of the land, and any person who is bound by the covenant and contravenes the covenant may be subject to a fine of $50,000.

Similarly, a landowner may now enter into a conservation agreement with the Minister for Environment to:

  • facilitate ecological sustainable use of biodiversity components;
  • mitigate the effect of activities that may have an adverse impact on biodiversity; or
  • to otherwise promote or enhance biodiversity in the State.

The Minister may provide financial assistance, goods or services or technical advice to the landowner under the conservation agreement. In turn, the landowner may be required (among other things) to carry out a specified activity on the land, refrain from doing a specified activity on the land, permit access to the land or apply the money provided in a specified manner.

A streamlined approach

The Bill reflects the principles of ecologically sustainable development set out in the Commonwealth legislation, as well as being consistent with the State's commitments as a signatory to Australia's Biodiversity Conservation strategy 2010-2030. Many similarities can be drawn between the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and the Bill. For example, the criteria for listing a species as endangered, critically endangered or vulnerable are identical to the equivalent Commonwealth provisions. The consistency across the legislation should theoretically assist proponents in keeping track listings which are relevant to their project.

There is also scope for a more streamlined approvals process under the new legislation. The Explanatory Memorandum for the Bill provides that biodiversity management programmes prepared under the new Act may be considered as an accredited management arrangement under the Commonwealth legislation. This would allow operations covered by the programme to be exempt from approval under the Commonwealth Act.

Implications for you

The Bill is a complete overhaul of conservation legislation in WA and has a number of implications.  These include the imposition of significant penalties relating to threatened flora and fauna, the effect of conservation covenants and agreements, and the ability to streamline environmental approvals under Commonwealth legislation.

Of particular interest is the provision which allows the Minister, with the approval of the Governor and after a copy of the approval is laid before each House of Parliament, to authorise a person to take a threatened species even if it could be expected that the taking will render the species extinct. This could see a project being approved which might previously have been knocked back due to the potential for it to cause the extinction of a species. 

What happens next?

The Bill is yet to receive Royal Assent, and will come into effect on a date to be fixed by proclamation. 

Given the move away from the simplistic categorisation of flora and fauna in the old legislation, we anticipate it will be a large task for flora and fauna to be re-categorised under the new regime. This may require significant resources and time from the Minister for Environment and his department. We recommend following the new categorisations closely to determine any impact on current or upcoming projects. 

Our Environment and Planning team can assist you in reviewing the implications of the new legislation for your proposals. 



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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.