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SEA and Protected Areas Management in the Sub-Antarctic

SEA and Protected Areas Management in the Sub-Antarctic. Simon Marsden - Lecturer in Law University of South Australia. Introduction. Application of EPBC Act to HIMI plans S 147-153 - mandatory assessment of actions under Cth fisheries management plans

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SEA and Protected Areas Management in the Sub-Antarctic

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  1. SEA and Protected Areas Management in the Sub-Antarctic Simon Marsden - Lecturer in Law University of South Australia

  2. Introduction • Application of EPBC Act to HIMI plans • S 147-153 - mandatory assessment of actions under Cth fisheries management plans • s 146 - discretionary assessment of other actions under strategic proposals • HIMI Fishery Management Plan subject to s 148 • HIMI Marine Reserve Management Plan not assessed under s 146

  3. HIMI Management Overview • External territories of Australia located in Antarctic Convergence 4000kms SW of Perth • Islands and territorial sea closed to fishing and managed as Wilderness Reserve by AAD • Beyond territorial sea to extent of EEZ managed as part of Australian Fishing Zone by AFMA • AAD and AFMA both Cth agencies

  4. SEA and EPBC Act - s 146 • S 146(1) • Minister may agree in writing with a person responsible for the adoption or implementation of a PPP that an assessment be made of impacts of actions under the PPP that are controlled actions • Controlled action • (likely) significant impacton Matter of National Environmental Significance, or • by the Cth or involving Cth land with (likely) sig impact on environment

  5. S 146(1) - cont • Matters of National Environmental Significance set outin Act (under review) - areas of Cth competence / obligation • Action broadlydefined in ss 523, 524 and 524A • No precise statutory definition although limited to ‘projects’ (and series of - Pioneer, Mees) • Definition thus depends on ordinary English meaning having regard to context and purpose of Act together with qualifications in ss 523 etc

  6. S 146(1) - cont • Likely to have (sig impact) means real chance or possibility regardless whether 50+% (Tillmans) • Sig impact means impacts that are important, notable or of consequence having regard to context and intensity (Flying Fox) • All adverse impacts from action means direct and indirect (Nathan Dam) • No case law on application of SEA provisions specifically

  7. S 146(1) - cont • S 146(1) could apply to HIMI because a declared World Heritage property & in a Cth marine area (both matters of NES - Ramsar listing?), and because action by Cth on Cth land potentially with sig impact • S 146(1A) applies to other actions taken in States or self-governing territories - not applicable to HIMI (contrast Macquarie)

  8. SEA and EPBC Act - s 147-153 • S 147 contains overview of provisions applicable to assessment of actions under management plans for fisheries managed in accord with Fisheries Management Act 1991 and Torres Strait Fisheries Act 1984 • All plans to must be assessed within 5 years of EPBC Act coming into force

  9. SEA and EPBC Act - s 147-153 • S 148(1) • Before the AFMA determines a plan of management for a fishery under s 17 of the Fisheries Management Act 1991, the Authority must: • (a) make an agreement with the Minister under s 146 for assessment of the impacts of actions under the plan; and • (b) consider any recommendations made by the Minister under the agreement

  10. SEA? • SS 146(1) and 148(1) refer to impacts of actions under the PPP - no reference to impact of PPP itself • will actions be contemplated at this time? • will PPP itself be assessed? • Offshore Petroleum SEA not limited to actions • Draft ToR for Major Military Training Exercises SEA concerned with EMS rather than projects • despite this emerging practice neither provision explicitly applies to impacts of proposed PPP

  11. HIMI Fishery Management Plan • Draft SEA and Management Plan released 2001 • ESD and precautionary principle feature prominently in draft and final Report (2002) • Impacts evaluated against guidelines for ecological sustainability of fishery • Impacts include incidental capture / mortality of endangered, threatened and protected species

  12. HIMI Fishery Management Plan - cont • Impact on Patagonian toothfish of great concern • Recommendation AFMA investigate extent to which HIMI and neighbouring islands (Kerguelen) share straddling stock • Recommendation that Category 1A Marine Protected Area be established to mitigate trawling on benthic communities • Impact on albatross and petrel from future introduction of long-lining recognised • Such action would need further assessment

  13. HIMI Reserve Management Plan • Reserve status requires preparation of management plan • Responsibility delegated to AAD by Director of National Parks (another Cth agency) • Certain actions in Cth reserves require authorisation - s 354 • Such actions must be carried out in accord with the plan and be assessed if controlled • Environment Protection and Management Ordinance 1987 also applicable - EPBC Act applies where inconsistency

  14. HIMI Reserve Management Plan - cont • Draft Marine Reserve Management Plan released 2005 • Includes comprehensive measures to prevent introduction of alien species • No recognition that plan itself could be assessed • Close relationship between Islands and EEZ (fishery) recognised • However despite working relationships between AFMA and AAD, no formal assessment of both or intention to assess Reserve Plan (AAD communication)

  15. HIMI Interactions • Straddling stocks - Patagonian toothfish may straddle EEZ and territorial sea as well as waters of other nations (France) • Terrestrial breeding of albatross and petrel potentially affected by long-lining • Alien species invasion - brassicas • Impact upon seals from boats also recognised in Reserve Plan - breed on islands also

  16. Australia’s Oceans Policy • Released 1998, Regional Marine Planning given emphasis as integrated and eco-system based approach • Designed to prevent conflict between different sectors over resource access and allocation • All Cth agencies will be required to operate in accordance with the Plans

  17. Australia’s Oceans Policy - cont • The Government will, as appropriate, use SEA as a key mechanism in the development, endorsement and implementation of Regional Marine Plans • One of the proposed Plans concerned with Kerguelen, an area including HIMI (not the French territory) • No Plan prepared as yet, and no intention to apply SEA (Oceans Office communication)

  18. Points for Discussion • If a protected area is subject to a management plan is an SEA needed? • contrast Parks Canada with Habitats Directive • Should the Fisheries SEA and HIMI Reserve Management Plans have been part of a higher level SEA • Oceans Policy / Antarctica / Regional Marine Plan? • Should SEA under s 148 be mandatory and under s 146 be discretionary? • effect on HIMI? • Should both explicitly apply to PPP rather than actions thereunder?

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