WA Conservation Legislation Amended for Greater Recognition of Aborignal Interests

Monday 29 June 2020 @ 9.14 a.m. | Legal Research

The Conservation and Land Management Amendment Bill 2020 (WA) (the Bill) was introduced into the WA Parliament by Mr R.R. Whitby (Parliamentary Secretary to the Treasurer; Minister for Finance; Aboriginal Affairs; Lands, and; Parliamentary Secretary to the Minister for Environment; Disability Services) on 25 June 2020. The purpose of the Bill was stated to be to amend the Conservation and Land Management Act 1984 (WA) (the CALM Act) to implement Government policy commitments, including the joint vesting of marine parks with traditional owners.

In the second reading speech the Minister states:

". . . A McGowan Labor Government will protect the rights of Traditional Owners to their land and sea Country. We will recognise rights through improved consultation, recognition of indigenous leadership in land management, supporting participation in economic activities on Country, and the joint vesting of marine parks."

Overview of Bill

The key amendments proposed to the CALM Act provide:

  • for the joint vesting of marine reserves with the Conservation and Parks Commission (the CPC) and an Aboriginal body corporate;
  • for the greater recognition of the rights of Aboriginal people by broadening the purpose of marine parks to include the protection and conservation of  value of marine parks to the culture and heritage of Aboriginal people;
  • for the clarification of the extent to which offence and enforcement provisions of the CALM Act may be applied to unallocated Crown land and unmanaged reserve that have been placed with the CEO for management under section 8C;
  • for the correction of designation errors assigned to certain provisions;
  • for the removal of the requirement for permit and licence forms to be prescribed, consistent with regulatory reform principles; and
  • for the replacement of references to "chairman" of the Conservation and Parks Commission with "chairperson".

Details of Key Amendments

Joint Vesting: According to the Minister, the Government has been "aware that traditional owners have long held aspirations to be both joint managers of, and have a formal vesting interest in, their land and sea country". To this end changes were made to the CALM Act in 2015 to enable terrestrial reserves, such as national parks, nature reserves and conservation parks to be jointly vested with the Conservation and Parks Commission and an Aboriginal body corporate. The amendments proposed in the Bill extend the joint vesting provisions to marine parks, marine management areas and marine nature reserves.

In Clause 6 the Bill proposes to amend section 8AA of the CALM Act to enable the joint vesting of waters, lands, or land and waters jointly with a specified Aboriginal body corporate and the CPC. Clause 5 proposes to amend section 7 dealing with lands vested in Commission, to amended section 7(1B) by inserting a new subparagraph (aa) which will specify that this section will not apply to waters, land, or land and waters that are vested under new subsections 8AA(4A) or (5A) (see clause 6). The intention of the amendment is to recognise that this section does not apply to waters, lands or land and waters that become jointly vested between the Commission and an Aboriginal body corporate, pursuant to section 8AA. The term Aboriginal body corporate is defined in section 3 of the CALM Act. 

Conservation Purpose Extended: The Bill proposes to also provide statutory recognition of the fact that the conservation purpose of marine parks includes the protection and conservation of the value of marine parks to the culture and heritage of Aboriginal people. The effect of this is that in special purpose areas—referred to as "special purpose zones" in management plans—the protection and conservation of Aboriginal culture and heritage values will be a conservation purpose in addition to the other purposes referred to in section 13(1) of the CALM Act, which are to be considered when determining incompatible uses. Along with the proposed changes, according to the Minister, "special purpose zones" in marine parks will continue to be identified through the well established consultative marine park planning processes, which require the approval of the Minister for Environment and the concurrence of the Minister for Mines and Petroleum and the Minister for Fisheries.

Management of Section 8C Lands: The Bill also includes proposed amendments that intended to clarify the regulatory framework for the management of section 8C of the CALM Act lands; namely, unallocated crown land and unmanaged reserves. Section 8C provides for unallocated crown land and unmanaged reserves to be managed by the CALM Act CEO, with the CEO’s management functions for the land specified in an order. Crown land remains subject to the provisions of the Land Administration Act 1997 and its regulations. Thus the proposed amendments will clarify that the CALM Act and its regulations will apply only to the extent specified in the section 8C order. Specifically, Part IX of the CALM Act (compliance and enforcement), and the Conservation and Land Management Regulations will apply only to land subject to a section 8C order if the section 8C order specifies that they do. Similarly, a function of the CEO in section 33 of the CALM Act will apply only if it is specified in the section 8C order.

Other Amendments: The Bill also contains proposed amendments that are administrative in nature and intended to update and modernise the CALM Act in accordance with the government’s goal of pursuing legislative reform to reduce red tape and ensure that legislation operates efficiently. These amendments include the removal of the requirement for a permit and licence forms to be prescribed, and other amendments to address miscellaneous minor anomalies and omissions.

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Conservation and Land Management Amendment Bill 2020 (195 of 2020) [WA], explanatory memorandum and 2nd reading speech, available from TimeBase's LawOne Service.

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