Biodiversity Conservation Regulations Briefing Update

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The Biodiversity Conservation Act 2016 (BC Act) and Biodiversity Conservation Regulations 2018 (BC Regulations) came into effect on 1 January 2019 replacing the Wildlife Conservation Act 1950 (WC Act) and the Sandalwood Act 1929.  Whilst the WC Act regulated the taking of flora and fauna, the BC Act provides for increased protection for flora and fauna by covering aspects which were not previously included such as Threatened Ecological Communities (TEC), threatening processes, critical habitats and management for environmental pests.  It also provides for incentives and programs for individuals, community groups and businesses to conserve biodiversity.  The BC Act and BC Regulations are supported by Ministerial Guidelines which contain finer details on basic criteria listed in the Act and Regulations.

Key points of the BC Act are discussed below:

  • Listing – Standardisation across State and Federal legislation has been achieved by species and TECs listing categories now similar to the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act); species are listed as critically endangered (CE), endangered (E), vulnerable (V), extinct (EX), extinct in the wild (EXW) (IUCN threat categories). Habitat critical to the survival of threatened species or communities can now be listed and placed on a register.  There is no nomination process for this and identification of critical habitat is likely through recovery plans.  Consultation with landholders will occur before listing and areas of critical habitat may be subject to habitat conservation notices (HCN).
  • Licensing – Regulations provide for a more streamlined and modern web based licensing system for application and payment. Existing WC Act and Sandalwood Act licenses will continue to be valid with no requirement to apply for a new license until the old license expires.  For new applications, BC Act licences will be issued as of 1 January 2019.  Licence fees are being reviewed and are likely to be subject to minor increases.  Licences are species specific and do not cover future BC Act listings.  Regular checking of BC Act listings is recommended.
  • Duty to Report – The BC Act includes an obligation to report an occurrence of a threatened species and communities if they are found in the course of carrying out field work for an assessment under Part IV of the Environmental Protection Act 1986 (EP Act) or a clearing permit application under Part V of the EP Act. Reporting can be oral or written and must be by the person carrying out the fieldwork.  The penalty for failing to report the occurrence is $50,000.  There is also extended liability whereby if an employee is charged with an offence, an employer may also be charged with the offence whether or not the employee acted without the employer’s authority or contrary to orders or instruction.
  • Penalties – Fines for taking threatened flora, or possessing or disturbing threatened fauna. Fines can be up to $2.5 M for corporations and up to $50,000 for individuals, however new defences have been included.
  • Incentives and Programs – Provision for landowners to enter into one or both of the following:
  • Biodiversity conservation covenant – for long term or permanent protection of private land for the conservation, protection or management of biodiversity. Covenants can be both positive and/or restrictive, i.e. enhancing as well as protecting existing habitat.  Covenants are registered on the land title and must be disclosed at the time of sale to prospective buyers.
  • Biodiversity Conservation Agreement – to facilitate ecological sustainable use of biodiversity components through cooperative agreements for biodiversity conservation management of lands. This may involve provision of finances, materials and expertise to land holders.
  • Biodiversity Management Programs and Recovery Plans – provision for the development of programs for the management of species, communities and habitats for conservation, and Recovery Plans to guide recovery of listed threatened species and communities. Anyone likely to be affected by the program will be consulted directly.

If you have any queries or would like advice or assistance please contact MBS Environmental.  Further reading can be sought directly from the Department of Biodiversity Conservation and Attraction’s website.