Australia: Marine Estate Management Legislation in NSW

WHAT IS HAPPENING

The Marine Estate Management Act 2014 (the ME Act) commenced on 19 December 2014.

The ME Act may impact any person carrying out commercial or recreational activities in NSW coastal waters, as well as any person carrying out development or activities in those waters, or on the adjoining land.

Strategic management of the NSW marine estate will occur through marine parks and aquatic reserves under a 'marine estate management strategy' supported by 'management plans' and 'management rules' for individual marine parks and aquatic reserves .

Current regimes for the management of aquatic reserves under the Fisheries Management Act 1994 and the management of marine parks under the Marine Parks Act 1997 will be replaced by the ME Act.

The Marine Estate Management Authority will be established to advise on the management of the marine estate, carry out risk and threat assessments in respect of the marine estate and prepare the 'marine estate management strategy'. The Authority's chair will be appointed by the Minister for the Environment and the Minister for Primary Industries.

WHAT DOES THIS MEAN?

What areas will be impacted?

Section 6 of the ME Act defines the marine estate to mean:

  1. the coastal waters of the State within the meaning of Part 10 of the Interpretation Act 1987,
  2. estuaries (being any part of a river whose level is periodically or intermittently affected by coastal tides) up to the highest astronomical tide,
  3. lakes, lagoons and other partially enclosed bodies of water that are permanently, periodically or intermittently open to the sea,
  4. coastal wetlands (including saltmarsh, mangroves and seagrass),
  5. lands immediately adjacent to, or in the immediate proximity of, the coastal waters of the State that are subject to oceanic processes (including beaches, dunes, headlands and rock platforms),
  6. any other place or thing declared by the regulations to be the marine estate,
  7. but does not include any place or thing declared by the regulations not to be the marine estate.

Marine parks and aquatic reserves will be declared for the primary purpose of conserving biological diversity, maintaining ecosystem integrity and function of bioregions in the marine estate, and the secondary purpose of management and use of that marine park.

A marine park may include any area of land, provided that the owner of that land grants consent in relation to land above the mean high water mark. This includes any land that has been reserved or dedicated for a public purpose and land owned or managed by a local council or Crown land.

If an area within a marine park or aquatic reserve is subject to a plan of management under the National Parks and Wildlife Act 1974 or the Crown Lands Act 1989, the management rules for the marine park or aquatic reserve will prevail over the plan of management to the extent of any inconsistency.

Marine parks and aquatic reserves under the Marine Parks Act 1997 are taken to be declared under the ME Act.

What can be done in marine parks and aquatic reserves?

A threat and risk assessment will be carried out by the Marine Estate Management Authority to identify threats to the triple bottom line, assess the risks associated with those identified and prioritise threats to inform decision makers.

A management plan will be prepared for each marine park and may be prepared for each aquatic reserve. This will address values and uses for each park or reserve, provide strategic direction, and prescribe the management strategies for identified threats and risks.

Specific regulatory controls will be prepared in the form of management rules for a particular marine park or aquatic reserve. Management rules may make provision for:

  • Zoning of areas within marine parks and aquatic reserves;
  • The purpose of those zones;
  • Defining permissible and prohibited uses in those zones, including a prohibition on mining (section 54 of the ME Act); and
  • The management of those zones.

What does this mean for developers and decision makers?

Before determining an application under Part 4 of the Environmental Planning and Assessment Act 1979 (EPA Act) in a marine park or aquatic reserve, a consent authority must take into consideration the applicable management rules and management plan, the purpose of the applicable zone and any relevant notifications issued under the ME Act. The consent authority must also obtain concurrence of the Ministers responsible under the ME Act.

A 'determining authority' under Part 5 of the EPA Act must not carry out or grant approval to an activity within a marine park or aquatic reserve unless it has taken into consideration the applicable management rules and management plan, the purpose of the applicable zone and any relevant notifications. Consultation or concurrence of the Ministers responsible under the ME Act (being the Minister for the Environment and the Minister for Primary Industries) will be required.

If a development or activity is in the locality of a marine park or aquatic reserve, a consent authority or determining authority (Authority) will also trigger obligations to consider additional matters or advice under the ME Act about the impact on the marine park or aquatic reserve. If the Authority is of the opinion that the proposed development is likely to have an effect on the plants, animals or habitat within the marine park or aquatic reserve, it must consult with the Ministers responsible under the ME Act before determining the application.

Offences and penalties

Contravention of the ME Act or Regulations is an offence and may attract a penalty of up to $110,000.00 for corporations and $55,000.00 in any other case.

There is also personal liability for directors and managers of corporations who commit offences under the ME Act.

WHAT DOES THIS MEAN FOR CURRENT LICENCES AND PERMITS?

Aquaculture permits and aquaculture leases under the Fisheries Management Act 1994 will not be affected by the changes until those permits and leases come up for renewal. At that time, they will be assessed under the new regime and may not be renewed unless the Regulations provide that aquaculture is a permissible use or activity in the relevant area.

NEXT STEPS

Any person with an interest in the marine estate, including commercial operators, recreational users, adjoining landowners and local councils, should monitor developments through the NSW Marine Estate, and proactively engage in the development of management plans and management rules for relevant marine parks and aquatic estates.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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