Background

The two major legislative regimes for protection of vegetation in Queensland are the Vegetation Management Act 2009 (Qld) (VMA) and the Nature Conservation Act 1992 (Qld) (NCA). Whereas the VMA focuses on broad scale clearing of mapped ecosystems, the NCA targets the protection of individual listed species. Both are the subject of separate reviews by the State Government. This article addresses the current review of the NCA.

What’s happened?

In February and March 2013, the Department of Environment and Heritage Protection (DEHP) invited submissions on a consultation regulatory impact statement entitled Review of the Protected Plants Legislative Framework under the Nature Conservation Act 1992. The paper puts forward three key options to address the ‘complex and burdensome’ nature of the current framework. These are:

  1. Maintaining the current framework
  2. Greentape reduction and regulatory simplification, and
  3. Co-regulation.

After consultation, one option will be chosen. Greentape reduction and regulatory simplification is the DEHP’s preferred option. The key feature of option 2 is a permit exemption for all low risk clearing activities.

Who should read this?

Anyone who undertakes activities which involve clearing, harvesting or growing and trading protected plants.1

What do they need to do?

Be aware that the protected plants legislative framework may change and keep up to date with the proposed changes.

Details

The consultation regulatory impact statement puts forward three options for reforming the legislative framework for protected plants:

Maintaining the current framework

Maintaining the current legislative framework was considered by the DEHP because it would minimise disruption to businesses operating under the current scheme.

Under the current scheme, subject to an array of exceptions, a protected plant that is in the wild must not be cleared. As a result, in practice, flora surveys are usually carried out before any clearing of an area which may affect protected plants which is not otherwise exempt. The DEHP has recognised that the current framework is expensive, costing business an estimated $52.795 million per annum. The majority of this is due to the practice of doing flora surveys before clearing ($50.469 million).

Greentape reduction and regulatory simplification (preferred option)

Option 2 is a risk based approach. It seeks to regulate activities that pose a high risk to plant biodiversity while exempting those that pose a low risk.

Under option 2:

  • All low risk clearing would be exempt from permit requirements. ‘Low risk clearing’ means ‘small-medium scale clearing that does not occur in an area where there is a known record of a threatened or special least concern plant’.
  • Low risk clearing would not require a flora survey, even if the clearing might result in the removal of some threatened plants.
  • Flora surveys would only be required for high risk clearing activities. ‘High risk clearing activities’ means ‘activities with a large clearing footprint or activities being undertaken in an area where there is a known record of a threatened or special least concern plant’.
  • High risk clearing activities would not require a permit where the flora survey does not identify threatened plants on the site and the DEHP is notified.
  • No clearing permit would be required for mining and petroleum activities where protected plants are cleared in accordance with an Environmental Authority issued under the Environmental Protection Act 1994 (Qld).
  • Business would save an estimated $50.157 million per annum.

Co-regulation

Option 3 puts forward a system of industry self-regulation in which government would play a limited role in regulating activities affecting protected plants.

Under option 3:

  • There would be an exemption for all clearing activities from permitting and licensing requirements.
  • A self-regulatory code would be developed in consultation with relevant industry groups based on the identification of threatened plant populations in Queensland.
  • Clearing exemptions would be determined in consultation with industry, and would likely include clearing involving least concern plants and small scale clearing where there are no known records of threatened or special least concern plants.
  • Only non-exempt clearing activities would need to be undertaken in accordance with the self-regulatory code.
  • Non-exempt clearing activities would require an application to the DEHP for a protected plant evaluation of the relevant site.
  • Only businesses that were signatories to the code would be able to undertake a non-exempt activity.
  • Businesses would then need to self-assess their own activities against the code.
  • If required, anyone undertaking an non-exempt activity would need to demonstrate that they had met all code requirements.

Sam Campbell