A recent enforceable undertaking relating to clearing of Carnaby’s black cockatoo habitat on the Swan Coastal Plain illustrates the Commonwealth environmental regulator’s continued interest in WA and conservative view of species level impacts.
Over a 12 month period a WA quarry company cleared approximately 8 hectares of Banksia low woodland in Nowergup, foraging habitat for the Carnaby’s black cockatoo. The company did not have an approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The Deputy Secretary of the Department of Sustainability, Environment, Water, Population and Communities (DSEWPaC), on behalf of the Commonwealth Environment Minister, considered this action has had, or is likely to have, a significant impact on the Carnaby’s black cockatoo, a listed threatened species in the endangered category.
The company has agreed in June this year, through the enforceable undertaking, to pay $100,000 to the WA Department of Environment Regulation.1
As an alternative to instituting proceedings for a contravention in the Federal Court, the Commonwealth has a range of administrative enforcement actions available to it under the EPBC Act. Enforceable undertakings are one of these enforcement tools and favoured by DSEWPaC as the contravention in question does not need to be proved to the relevant evidential threshold through formal legal proceedings. The undertaking is essentially financial, to pay a specified amount within a specified period, either to the Commonwealth or another person for the purposes of activities directed towards the protection and conservation of the relevant matter of national environmental significance. The amount of recent enforceable undertakings range from $20,000 to $1.45 million and are determined in light of the circumstances of the particular case.
This is the second enforceable undertaking in the past 12 months involving clearing of Carnaby’s black cockatoo habitat and reflects our experience of increasing DSEWPaC compliance and enforcement action in WA. In particular, it sends a clear signal to proponents that even small amounts of clearing in Carnaby’s black cockatoo habitat areas will be viewed by DSEWPaC as likely to have significant species level impacts. We recommend proponents exercise caution clearing in such areas without an approval under the EPBC Act being in place.