Biodiversity Conservation Bill 2015 (WA)

Year: 
2015
Jurisdiction: 
Western Australia
Issues (subject): 
Environmental protection
Rights and interests - customary
Legislation considered: 
Unpassed

Stated purpose:

This purpose of this Act is to provide for the conservation and protection of biodiversity and biodiversity components, and the ecologically sustainable use of biodiversity components in Western Australia. This Act repeals the Wildlife Conservation Act 1950 (WA) and Sandalwood Act 1929 (WA), and includes consequential amendments to other Acts. 

Native title implications:

This Act will not affect the operation of the Conservation and Land Management Act 1984 (WA) and applies only to non-CALM Act land. The bill provides a defence for Aboriginal people against the prohibition on taking or disturbing flora or fauna if such a taking is for a customary purpose. If the offence is alleged to have been committed on exclusive native title land, the person must have either held the exclusive native title or had permission of the exclusive native title holder of the area. If the act done was inconsistent with the continued existence, enjoyment, or exercise of any native title rights and interests held by another person, the defence does not apply unless the person did the act to obtain fauna or flora sufficient only for food for themselves and their family but not for sale.

Further, fauna may be possessed by an Aboriginal person for an Aboriginal customary purpose. However, the sale of either fauna or flora is prohibited unless the regulations (see s 186) are met. In relation to permission, an exclusive native title holder may give permission for the taking or disturbance of fauna, and does not commit an offence in doing so.

The Bill also places restrictions on the taking of sandalwood. Sandalwood may not be taken without lawful authority to do so. The bill provides that being an owner or occupier, or having the consent of an owner or occupier, of land is not lawful authority to take sandalwood. The bill provides that the Minister may fix the maximum quantity of sandalwood that can be taken in a specified period or part of the specified period; however this provision does not relate to cultivated sandalwood. The Minister may decide if the limit applies to sandalwood of a specified kind or that taken in specified circumstances (see s 187).

The bill also has provisions relating to owners and occupiers placing duties on both the Minister and owners and occupiers in relation to flora and fauna. The Minister’s obligations include notifying owners and occupiers of the existence of and providing information about threatened species or ecological communities. The owner or occupier may in certain circumstances [see s 53(2)(c)] be obliged to inform other persons of the presence of the relevant species or community on their land. They may also have to ensure that habitat damage does not occur on their land, in the circumstances listed in s 59. When preparing a draft recovery plan to aid in species or habitat recovery, the owner or occupier must be consulted. The Minister may enter a biodiversity conservation agreement with an owner or occupier of land which may among other things restricts access or activities which can be carried out on the land (see s 115 for more information). For a discussion about whether native title holders are considered to be an owner or occupier please refer to page 18  – Managing Weeds on Native Tittle Lands: Workshop Report Broome WA 26-27 October 2011.

For further information see the Explanatory Memorandum.

Relevant provisions:

Division 3 -- Taking or disturbance by Aboriginal people 

s 181 Terms used

In this Division --

Aboriginal customary purpose means --

(a) preparing or consuming food customarily eaten by Aboriginal persons; or 

(b) preparing or using medicine customarily used by Aboriginal persons; or

(c) engaging in artistic, ceremonial or other cultural activities customarily engaged in by Aboriginal persons; or 

(d) engaging in activities incidental to a purpose stated in paragraph (a), (b) or (c); Aboriginal person means a person wholly or partly descended from the original inhabitants of Australia;

CALM Act land means --

(a) land, or land and waters, listed in the CALM Act section 5; and 

(b) land that, under the CALM Act section 8C, is under the management of the CEO; and 

(c) land to which the CALM Act section 131 applies; 

exclusive native title, in relation to an area of land or waters, means native title rights and interests (as defined in the NT Act section 223) -- 

(a) that exist in relation to the area, whether or not they have been determined under the NT Act to exist; and 

(b) that confer possession, occupation, use and enjoyment of the area on the holders of the native title rights and interests to the exclusion of all others; 

exclusive native title holder, for an area in relation to which exclusive native title exists, means -- 

(a) the registered native title body corporate (as defined in the NT Act section 253) in respect of the native title  rights and interests concerned; or 

(b) if there is no such body corporate, each person who holds the native title rights and interests concerned or a person acting with the authority of each such person; NT Act means the Native Title Act 1993 (Commonwealth). 

s 182 Taking or disturbance for Aboriginal customary purposes 

(1) This section does not affect the operation of the CALM Act.

(2) It is a defence to a charge of an offence under this Act of taking 2 fauna or flora to prove --  

(a) the accused is an Aboriginal person; and  

(b) the accused took the fauna or flora for an Aboriginal  customary purpose; and  

(c) in taking the fauna or flora the accused complied  with --  

(i) section 156(1) or 175(1), as the case requires;  and  

(ii) any regulations that restrict or exclude the operation of this subsection; and 

(d) if the offence is alleged to have been committed on land other than CALM Act land, the person who has control or management of the land consented to the taking of the fauna or flora; and 

(e) if the offence is alleged to have been committed in an 18 area in relation to which exclusive native title exists, the accused either -- 

(i) held the exclusive native title alone or with other persons; or 

(ii) took the fauna or flora with the permission of the exclusive native title holder for the area.

(3) It is a defence to a charge of an offence under this Act of disturbing fauna to prove -- 

(a) the accused is an Aboriginal person; and 

(b) the accused disturbed the fauna for an Aboriginal customary purpose; and  

(c) in disturbing the fauna the accused complied with -- 

(i) section 156(1); and 

(ii) any regulations that restrict or exclude the operation of this subsection; and

(d) if the offence is alleged to have been committed on land other than CALM Act land, the person who has control or management of the land consented to the disturbance of the fauna; and 

(e) if the offence is alleged to have been committed in an area in relation to which exclusive native title exists, the accused either --  

(i) held the exclusive native title alone or with other persons; or  

(ii) disturbed the fauna with the permission of the exclusive native title holder for the area. 

(4) If, but for this subsection, the defence provided by subsection (2) or (3) would entitle an Aboriginal person to do an act that is inconsistent with the continued existence, enjoyment or exercise of any native title rights and interests (as defined in the NT Act section 223) held by another Aboriginal person, the defence does not apply to that act unless it is proved the accused did the act in order to obtain fauna or flora sufficient only for food for the accused and the accused's family, but not for sale. 

(5) The defences provided by subsections (2) and (3) are in addition to the defences provided by sections 151(1) and (2), 153(3) and (4) and 174(1) and (2). 

s 183 Possessing fauna taken for Aboriginal customary purposes

If fauna is taken in circumstances giving rise to a defence under section 182(2), an Aboriginal person is authorised to possess the fauna for an Aboriginal customary purpose.  

s 184 Selling fauna or flora taken for Aboriginal customary purposes

An Aboriginal person who takes fauna or flora for an Aboriginal customary purpose must not sell the fauna or flora, or any part of it, unless, under the regulations, the sale is excepted or the person is authorised or licensed to do so.

Penalty: a fine of $10 000. s 185 Permission given by exclusive native title holder to take or disturb fauna  

(1) In this section --  disturbance means the doing of anything referred to in paragraph (a)(i), (ii) or (iii) of the definition of disturb in section 5(1); taking means the doing of anything referred to in paragraph (a)(i) of the definition of take in section 5(1). 

(2) If the exclusive native title holder for an area in relation to which exclusive native title exists permits the taking or disturbance of fauna in the area, the exclusive native title holder does not commit an offence under this Act by reason of giving the permission.  

(3) Subsection (2) applies despite any other provision of this Act.

s 186 Regulations: restriction or exclusion of s. 182(2) or (3) 

(1) The regulations may restrict or exclude the operation of section 182(2) by reference to any of, or a combination of, the following -- 

(a) the fauna or flora taken; 

(b) the class of person taking the fauna or flora; 

(c) the time of taking; 

(d) the place of taking; 

(e) the manner of taking; 

(f) the quantity of fauna or flora taken; 

(g) the circumstances of the taking. 

(2) The regulations may restrict or exclude the operation of section 182(3) by reference to any of, or a combination of, the following --  

(a) the fauna disturbed; 

(b) the class of person disturbing the fauna;

(c) the time of disturbance;  

(d) the place of disturbance; 

(e) the manner of disturbance; 

(f) the quantity of fauna disturbed; 

(g) the circumstances of the disturbance.