Posted on November 23, 2021 by Stuart Simington and Lachlan Penninkilampi

Significant Reforms to National Parks Management Pass Parliament

After little more than a week since its introduction, the National Parks and Wildlife Amendment Bill 2021 (‘Bill‘) has passed through the NSW Parliament.

The Bill will change the way national parks and other terrestrial protected areas are managed in NSW, including by allowing the Minister to create and deal with carbon sequestration rights as well as new provisions to support the ‘assets of intergenerational significance‘ regime.

Most of the provisions of the Bill will commence on the date of assent. The remainder will commence on 30 June 2022 or earlier if so proclaimed.

We outline the key reforms below.

Management of national parks to generate carbon sequestration rights

The Bill will introduce a new Part to the NPW Act to allow the Minister to create and deal with carbon sequestration rights in relation to land acquired, reserved or dedicated under the NPW Act.

Carbon sequestration rights are property rights defined in the Conveyancing Act 1919 s 87A and are a type of forestry right. They are used to obtain Australian Carbon Credit Units under the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth), which may then be sold, transferred, or surrendered or retired (or kept) as carbon offsets. The Bill proposes its own definition of ‘carbon sequestration right‘ inclusive of the Conveyancing Act 1919 definition for the purposes of the NPW Act.

The new Part will allow the Minister to undertake activities incidental to or in connection with creating and dealing with carbon sequestration rights. These include revegetation, vegetation management, improvements in soil carbon, management of feral animals, fire management, carbon sequestered through land use changes or rehabilitation, and human-induced regeneration. The regulations may prescribe additional such activities.

However, the Minister will be prohibited from exercising functions under this section unless satisfied that so doing is consistent with the objects of the NPW Act. Furthermore, the Minister is prohibited from exercising the functions in relation to land of which a state conservation area trust, regional park trust, or local council has care, control and management unless the Minister has consulted with and considered advice by the relevant governing body.

The purposes of these provisions appear to be to allow the management of national parks to be counted and used to offset carbon emissions in national carbon markets and to add another income stream to the National Parks and Wildlife Fund.

The Minister will be required to review these new provisions to determine whether the policy objectives of the provisions remain valid and whether the terms of the provisions remain appropriate for securing their objectives. That review must be undertaken as soon as possible after two years from commencement and be tabled in each House of Parliament.

The National Parks and Wildlife Service has stated that the creation and trading of carbon sequestration rights will ‘protect and enhance carbon sinks‘ in protected areas. The Minister’s Second Reading Speech confirms that the carbon sequestration reforms proposed by the Bill will be key to the organisation achieving its target of net zero emissions by 2028. (See here for more information.)

Amendments to the ‘assets of intergenerational significance‘ regime

Assets of intergenerational significance, currently provided for by section 188H of the NPW Act, will now be provided for in a new Part 12A.

Declarations of lands as assets of intergenerational significance will require publication in the Government Gazette a map of the land and a statement of the environmental and cultural values of that land: s 153G(2). However, exceptions will apply if the Minister is satisfied that disclosure of information may put the protected area at risk: s 153G(3).

A new section 153H will list various actions in relation to declared land which are taken to be exempt development for the purposes of the Environmental Planning and Assessment Act 1979, including actions carried out under a conservation action plan.

A new section 153I creates an offence (which is also an executive liability offence) for interfering with, damaging, harming or disturbing an environmental or cultural value of declared lands. Various defences are also provided, including the defence that the action was taken for or as part of an Aboriginal cultural practice.

Reduced public exhibition periods of plans of management

Section 73A will be replaced.

The new section will reduce the minimum period during which representations can be made about a draft plan of management for a park to 60 days, excluding the period from 20 December to 10 January. Currently, plans of management must be exhibited for at least 90 days.

Furthermore, section 73B(7) will be amended such that the public exhibition period for an amended or altered plan of management will be taken to be 42 days, reducing the current period by three days.

Other significant changes

Other significant changes which will be made by the Bill are as follows:

  • Revocations of certain dedications and reservations of State forests and Crown lands and reservation of the same as the Gardens of Stone State Conservation Area, part of the Gardens of Stone National Park, and part of the Wollemi National Park (see Part 3 of Schedule 1A).
  • A new corporate non-profit entity, the National Parks and Wildlife Conservation Trust of New South Wales, with the key purpose of taking charitable donations for national parks management from the public (see Part 7).
  • Powers for Aboriginal Land Councils to deal with carbon sequestration rights (see section 71BFA).
  • Use of digital images and data for the enforcement of offences relating to vehicles entering or using a park (see sections 197A and 197B).
  • A regulation-making power with respect to monitoring and reporting on the ecological health of parks (see section 155(2)(ee)).

There are also various house-keeping amendments which will be made to the Act, such as updating administrative references.

The Bill and its amendments and current status can be accessed on the NSW Parliament’s website here.

If you have any comments or questions about this blog post, please leave a comment below or contact Stuart Simington on 02 8235 9704 or Lachlan Penninkilampi on 02 8235 9719.

Note: This blog post was updated on 24 November 2021 to reflect the passage of an amended version of the original Bill through the NSW Parliament.