National recovery plan for the Nightcap Oak (Eidothea hardeniana)

Threatened Species Unit, Western
New South Wales Department of Environment and Conservation, 2004
ISBN: 0 7313 6781 2

2. Legislative Context

2.1 Legal Status

The Nightcap Oak is listed as Critically Endangered on the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) and Endangered on the NSW Threatened Species Conservation Act 1995 (TSC Act).

2.2 Recovery Plan Preparation

The TSC Act provides a framework to protect and encourage the recovery of Threatened Species, Endangered Populations and Endangered Ecological Communities in NSW. Under this legislation the Director-General of the DEC has a responsibility to prepare Recovery Plans for all species, populations and ecological communities listed as Endangered or Vulnerable on the TSC Act schedules. Similarly, the EPBC Act requires the Commonwealth Minister for the Environment and Heritage to ensure the preparation of a Recovery Plan for nationally listed species and communities, or adopt plans prepared by others including those developed by State agencies.

This Recovery Plan was placed on public exhibition from 7 March 2003 to 11 April 2003.

The Threatened Species Conservation Amendment Act 2002 states that an approved Recovery Plan must include a summary of advice given by the NSW Scientific Committee with respect to the plan, details of any amendments made to the plan to take account of that advice and a statement of the reasons for any departure from that advice. This summary is provided in Appendix 1.

This Recovery Plan has been prepared to satisfy both the requirements of both the TSC Act and the EPBC Act and, therefore, will be the only Recovery Plan for the species. It is the intention of the Director-General of the DEC to forward this Recovery Plan to the Commonwealth Minister for the Environment and Heritage for adoption, once it has been approved by the NSW Minister for the Environment.

2.3 Recovery Plan Implementation

The TSC Act requires that a public authority must take appropriate measures to implement actions included in a Recovery Plan, and report on implementation of those actions for which they have agreed to be responsible. In addition, the Act specifies that public authorities must not make decisions that are inconsistent with the provisions of the plan. The government agency relevant to this plan is the DEC .

The EPBC Act specifies that a Commonwealth agency must not take any action that contravenes a Recovery Plan.

2.4 Relevant Legislation

The Nightcap Oak occurs only on DEC estate. Relevant legislation includes:

  • NSW National Parks and Wildlife Act 1974;
  • NSW Environmental Planning and Assessment Act 1979;
  • NSW Rural Fires and Environmental Assessment Legislation Amendment Act 2002;
  • Commonwealth Environment Protection and Biodiversity Conservation Act 1999.

The most significant implications of the above legislation in relation to the TSC Act are described below and in Section 2.5.

National Parks and Wildlife Act 1974 and Environmental Planning and Assessment Act 1979

The National Parks and Wildlife Act 1974 (NPW Act) regulates activities within national parks and nature estate reserves and therefore applies to areas within DEC that contain the Nightcap Oak. This Act also requires that a licence must be obtained to propagate or sell the Nightcap Oak.

The NPW Act and TSC Act are administered by the DEC. These Acts require that any proposal to pick or damage the habitat of a threatened plant species must be approved by the DEC, unless the activity has been granted consent or approval under the Environmental Planning and Assessment Act 1979 (EP&A Act) or is conducted with approval under the Rural Fires Act 1997. If a proposal is likely to have a significant impact on the Nightcap Oak then a Species Impact Statement (SIS) must be prepared.

Rural Fires and Environmental Assessment Legislation Amendment Act 2002

The NSW Rural Fires and Environmental Assessment Legislation Amendment Act 2002 amends the Rural Fires Act 1997 and several environmental assessment-related Acts. This Act provides for mapping bush-fire prone lands and the development of a Bush Fire Environmental Assessment Code. This code is aimed at streamlining the assessment process for hazard reduction works. To this end, the Code will include general ameliorative prescriptions and, in some cases, species specific prescriptions. Threatened species and their habitats are one of the items considered in the code.

Environment Protection and Biodiversity Conservation Act 1999

The EPBC Act provides a framework for the protection of Nationally listed Endangered and Vulnerable Species and Endangered Ecological Communities. This includes the preparation of a Recovery Plan and assessment of the impact of activities on the subject species.

2.5 Environmental Assessment

The EP&A Act requires that approval authorities consider known and potential habitat of threatened species, biological and ecological factors and the regional significance of individual populations when exercising a decision-making function under Parts 4 and 5 of the EP&A Act.

The DEC is the public authority with a decision making function regarding the Nightcap Oak. Additional authorities may have responsibilities if the species is located in other areas in the future.

Any activity not requiring development consent under the EP&A Act, and which is likely to have an impact on the Nightcap Oak, requires a licence or a certificate from DEC under the provisions of either the TSC Act or NPW Act.

The EPBC Act regulates actions that may result in a significant impact on nationally listed threatened species. It is an offence to undertake any such actions without obtaining prior approval from the Commonwealth Minister for the Environment and Heritage. As the Nightcap Oak is listed Nationally under the EPBC Act, any person proposing to undertake actions likely to have a significant impact on this species must refer the action to the Commonwealth Minister for consideration. The Minister will then decide whether the action requires EPBC Act approval.

Consultation with indigenous people

Local Aboriginal Land Councils, Elders and other groups representing indigenous people in the areas where the Nightcap Oak occurs have been identified and a copy of the Nightcap Oak Recovery Plan sent to them. Their comments on this plan have been sought and considered in the preparation of this Recovery Plan. It is also the intention of the DEC to consider the role and interests of these indigenous communities in the implementation of the actions identified in this plan.

2.6 Critical Habitat

The TSC Act makes provision for the identification and declaration of Critical Habitat. Under the TSC Act, Critical Habitat may be identified for any Endangered Species, Population or Ecological Community occurring on NSW lands. Once declared, it becomes an offence to damage Critical Habitat (unless the action is exempted under the provisions of the TSC Act) and a SIS is mandatory for all developments and activities proposed within declared Critical Habitat.

Under the EPBC Act, Critical Habitat may be registered for any nationally listed threatened species or ecological community. When adopting a Recovery Plan the Commonwealth Minister for the Environment and Heritage must consider whether to list habitat identified in the Recovery Plan as being critical to the survival of the species or ecological community. Any action that is likely to have a significant impact on a Commonwealth listed species occurring within registered Critical Habitat on non-Commonwealth land is subject to referral and approval under the EPBC Act.

This Recovery Plan identifies those habitat features and the location (sections 3.2 - 3.4) critical to the survival of the Nightcap Oak, as required by the EPBC Act.

To date, Critical Habitat has not been declared for the Nightcap Oak under the TSC Act or the EPBC Act.

2.7 Key Threatening Processes

As of July 2004 there are 22 Key Threatening Processes listed on the TSC Act. Of these, Anthropogenic Climate Change, Clearing of Native Vegetation and Infection of native plants by Phytophthora cinnamomi have the potential to impact on the Nightcap Oak. Land Clearance and Dieback Caused by the Root-rot Fungus Phytophthora cinnamomi are also listed as Key Threatening Processes on the Commonwealth EPBC Act. Threat Abatement Plans must be prepared for all listed Key Threatening Processes. In addition to these Key Threatening Processes, a range of other processes are recognised as threatening the survival of the species in NSW. These are listed in Section 4.