Protected Plants Framework Reform

In Brief

• Recently the Queensland Government introduced the Nature Conservation (Protected Plants) and other Legislation Amendment Bill 2013 to change the Protected Plants Framework from as early as the start of 2014.
• Three options (including an option to maintain the current framework) were proposed in the “Review of the Protected Plants Legislative Framework under the Nature Conservation Act 1992” published in February 2013.
• The preferred option is presented as a way to reduce ‘green tape’ and simplify the regulations.  In this scenario ‘low risk activities’ are exempt from the requirement for threatened plant surveys and permits. Low risk activities are not defined in the document excepting that they are not high risk activities (which are activities that are undertaken in an area with a known threatened plant record or large scale activities that have a risk of impacting threatened species, e.g. occur in greenfield areas). In addition, permits will not be required for clearing unrestricted least concern plants (i.e. plants that are not designated as ‘special least concern’ and do not form part of the immediate habitat of a threatened plant).
• With the existing framework ‘expiring’ in August 2013, the Bill is due to be passed (or otherwise) late in 2013.

Full Article

Recently the Queensland Government made a decision to change the way that the State (through the Department of Environment and Heritage Protection – DEHP) will deal with threatened plant management.  These changes are due to commence in 2014 (subject to the Nature Conservation (Protected Plants) and other Legislation Amendment Bill 2013 being passed by parliament) and will mean that there are fewer permits and fewer instances in which permits are required to take, harvest or trade protected plants.  This article will provide an overview of the review process undertaken by the Queensland Government in making this decision and the outcomes for the Protected Plants Framework.

In February 2013 the Queensland Government released a document titled “Review of the Protected Plants Legislative Framework under the Nature Conservation Act 1992”.  The document was released as part of a public consultation process. Its purpose was to provide an overview of the legislative system governing the ‘taking’ or use of protected plants in Queensland and present options for a new ‘Protected Plants Framework’.  The legislation concerning protected plants is apparently due to ‘expire’ in August 2013 and includes the: Nature Conservation Act 1992 (NC Act), Nature Conservation (Wildlife) Regulation 2006, Nature Conservation (Wildlife Management) Regulation 2006 and the Protected Plants Conservation Plan 2000. 

The review suggests that if the existing framework were allowed to expire, there would be no protection in place for individual species and threatened plants. The concept of legislation ‘expiring’ is another discussion entirely, but certainly the existing Protected Plants Framework at least appears to have been somewhat effective in protecting threatened plants.  However, the review reports that stakeholders have labelled the existing framework as cumbersome and costly.  The existing framework is reported to be an administrative burden on both business and government, costing an estimated $53.5 million a year (which is mostly borne by businesses that are required to pay for  plant surveys).  The framework is also inefficient in that there are currently 12 different types of permits for the harvesting or taking of threatened plants and no assessment charges, so it is costly for the government to administer the permits.  The review suggests that the complexity of the framework is actually encouraging some individuals or businesses to opt not to obtain the necessary permits and the rate of legislative breaches is increasing.  For the nursery trade, this effect is apparently also seen in the low number of native plants bought and sold.  The upside to the existing framework, however, is that DEHP can utilise the information from the permit applications to create and maintain a database on the locations, population extents and population sizes of threatened plants.  This information is reportedly fed into a public database that helps to produce ‘essential habitat’ mapping (regulated under the Vegetation Management Act 1999 (VM Act)).

The State presents three options for taking the Protected Plant Framework forward, with the least preferred option being to leave it as it is.  Option 2 (the preferred option) is presented as a way to reduce ‘green tape’ and simplify the regulations.  In this scenario ‘low risk activities’ are exempt from the requirement for surveys.  Low risk activities are not defined in the document excepting that they are not high risk activities (which are activities that are undertaken in an area with a known threatened plant record or large scale activities that have a risk of impacting threatened species, e.g. occur in greenfield areas).  By exclusion, low risk activities could be considered as small – medium scale developments and/or development in areas where there are no known threatened plant records.  There are also exemptions from permits where the impact on threatened plants has been assessed already (perhaps in an Environmental Impact Statement (EIS) or a process under Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) or an Environmental Authority (EA) granted for a mining activity). Least concern species will no longer be subject to permitting (unless they are essential in supporting a threatened plant).  Even some high risk activities are afforded exemptions, where the interest is in public safety or to maintain existing infrastructure. No threatened plant assessment is required for undertaking maintenance, collecting of fodder and weed control so long as there are no threatened plant records in the area.  Should the applicant be conducting a ‘high risk activity’ and discover through survey that they require a permit to clear threatened plants, the costs associated with the application will be $2,500.  There are also no permitting requirements for harvesting activities.

The benefits of Option 2 are reportedly:

• permits will not be required in instances where assessment under other legislation is complete,
• only 3 instead of 12 permits will exist,
• costs of assessment are recovered by DEHP, and
• money from applications can be used for enforcement of the legislation.

The review reports that the costs associated with Option 2 are greatly reduced to $3.02 million (mostly borne by business) and the requirement for less permits (from a harvester perspective) will encourage the native plant trade.  Whilst the review reports that Option 2 will still provide adequate protection to threatened plants, this is questioned by some stakeholders.  The criticism of Option 2 is mostly around the removal of the requirement to conduct surveys for threatened plants in all but ‘high risk’ scenarios that are not exempt from permitting.  This will inevitably mean that:

•  if a development with a ‘small to medium’ footprint is undertaken in an area where there is no public data for threatened plants, there will be no way to know if the development will result in the removal of a threatened plant (or a whole population of threatened plants)
• development in brownfield areas or areas that have been disturbed at some point (such as regrowth areas) will also go unchecked and those threatened species that respond to disturbance (e.g. Acacia species) will become particularly vulnerable
• impacts to threatened plants will go completely unrecorded and unmitigated in ‘low risk’ activities
• there is less data collected on threatened plants distribution and population dynamics
• less data collected on threatened plants creates a positive feedback loop in that then there is less data available to trigger a ‘high risk’ activity (which again leads to less survey and even less data).

The final option (Option 3) is even less popular with constituents, so much so that the review also acknowledges that it may not deliver an appropriate level of protection.  Option 3 is a ‘co-regulation’ scenario where a self-assessable code for dealing with threatened plants is developed by government, industry and potentially other interested stakeholders.  The idea being that; development would be required to be in line with the code and in instances where it was not then a one off application to DEHP would be made and DEHP would assess it on its merits.  The obvious disadvantage of this approach is that it relies on landholders and business operators to be knowledgeable and educated about the process in the first place.  Then it relies on a system of ‘good faith’ in an industry where it has already been demonstrated that some operators are electing to breach the existing legislation.  The review also suggests that the start-up costs of Option 3 would be around $19 million, with on-going costs of $3.59 million (still more expensive than Option 2).  The review does consider that Option 3 would result in more survey for threatened plants being undertaken, however, this would ultimately be dependent on the content of the code.

The consultation period for the review closed on 24 March 2013 with 102 formal submissions being received.  A Decision Regulatory Impact Statement (DRIS) was published in April 2013 and it recommended a revised version of Option 2 be implemented.  Interestingly, there was limited support for Option 3 (co-regulation) and the majority of submissions supported Option 1 (maintaining the existing Protected Plants Framework).  Supporters of Option 1 were mostly from the recreational, conservation and natural resource management sector (92%) and the reasons cited for supporting this option were associated with the perceived risk of loss of threatened species and data associated with Option 2 (due to reduced requirement for survey).  Whilst most (53%) of the natural resource management sector supported Option 1, about 20% supported Option 2.  Most of the support for Option 2 (62%) came from commercial plant trade, industry (infrastructure and development), local government and agriculture. 

With the exception of the issues around data collection, most feedback on Option 2 was around clarification of low and high risk activities.  The response has been to further define high risk activities and remove the reference to the size of the impact area (maintaining an environmental context).  High risk activities are defined as:

• a clearing activity undertaken in an area where there is a known record of a threatened plant; or
• a clearing activity undertaken in an area where there is a mapped ‘special biodiversity area’ (areas identified by DEHP as containing special biodiversity values).

The state of affairs in the new Option 2 will still remain that surveys are required for all high risk activities, but clearing permits will apply to an area (rather than a particular species) and permits for clearing of protected plants will not be required in instances where:

a)  A survey of the impact area is undertaken in accordance with the applicable survey methodology guideline; and

i.  the survey results demonstrate that threatened plants are not present in the impact area; and

ii.  the proponent has submitted the results of the flora survey and any supporting evidence to the department to demonstrate that this is the case.

b)  The area has been surveyed and the department notified (in accordance with the requirements of exemption a)  above) within the preceding five years.

c)  The clearing occurs in the course of a timber plantation management activity, provided:

i.  the clearing is undertaken in a timber plantation that has been established under an authority issued under another Act;

ii.  the area has previously been legally cleared to facilitate the current use of the land.

d)  The clearing is being undertaken to maintain existing infrastructure and complies with the code of practice.

e)  The protected plants in the area have previously been legally cleared under an NC Act clearing permit issued in the preceding 10 years.

f)  The protected plants in the area have been legally cleared under an NC Act clearing permit and the vegetation in the area has not regrown to a state that meets the definition of remnant vegetation under the VM Act (i.e. clearing of regrowth).

g)  The clearing is associated with a ‘relevant development activity’, and protected plants in the area have been legally cleared in the preceding 10 years.

h)  The clearing is being undertaken by State or local government, and protected plants in the area have been legally cleared in the preceding 10 years.

i)  The protected plants will be cleared in accordance with conditions under the Environmental Protection Act 1994 (EP Act)

j)  The impacts on protected plants will be mitigated and/or offset in accordance with a condition of an authority issued under another Act.

The new Option 2 also acknowledges that changes will need to be made to the EP Act and EP Regulation in order to adequately achieve the integration of the Protected Plants Framework into the EA process for all resource activities.  It also claims it will remove many of the barriers to trade in native species and ultimately increase their presence in the market.

In summary, when (and if) Option 2 becomes the new Protected Plant Framework in early 2014 it will take the following form:

• low risk activities are exempt from survey,
• permits will not be required for clearing unrestricted least concern plants (i.e. plants that are not designated as ‘special least concern’ and do not form part of the immediate habitat of a threatened plant,
• flora surveys will only be required for high risk activities (now more clearly defined), and
• permits will only be required for high risk clearing activities that will result in clearing of threatened plants and/or supporting habitat.

The main reasons given for the review and the subsequent changes to the existing Protected Plants Framework were costs and its complex and cumbersome nature.  Whilst everyone seems to have agreed that the existing process is an administrative burden, the issues surrounding costs (which are primarily associated with surveys) remain a point of contention.  On the one hand, government and industry clearly support removing the requirement for survey in low risk situations.  However, the conservation and environment sector perceives this as a danger to the knowledge base on threatened species and to the species themselves.  For the moment, the DRIS has cited that “not adopting Option 2 would simply ignore the issues and calls for reform identified in the first place”.  DEHP will take a new Protected Plants Framework forward in 2014 with a communication and education strategy, new forms and development of support material.  The effectiveness of the new system will be monitored, including that the take, use and trade of protected plants does not threaten the viability of these plants in the wild (although this may be challenging with less data being collected on protected plants with the adoption of the new system).

The Nature Conservation (Protected Plants) and other Legislation Amendment Bill 2013 is due for public hearing on 7 August 2013, with the Committee due to report on the final form of the Protected Plants Framework in Queensland on 19 August 2013.