Environmental Planning and Assessment Act 1979 No 203
Historical version for 8 July 2002 to 31 July 2002 (accessed 5 July 2020 at 05:27) Current version
Part 5 Division 5
Division 5 Environmental assessment of fishing activities
115G   Definitions
In this Division:
designated fishing activity means a fishing activity to which this Division applies as provided by section 115I.
fish, fishery, fishing activity and share management fishery have the respective meanings given in the Fisheries Management Act 1994.
fisheries approval means a licence, endorsement or permit, of any kind, issued or renewed under the Fisheries Management Act 1994 or the regulations under that Act.
Fisheries Minister means the Minister administering the Fisheries Management Act 1994.
fishery management strategy means a fishery management strategy for a designated fishing activity under Part 1A of the Fisheries Management Act 1994.
fishing regulatory controls means the provisions of the following instruments that regulate, prohibit or authorise fishing activities:
(a)  the Fisheries Management Act 1994 and the regulations under that Act,
(b)  management plans under the Fisheries Management Act 1994,
(c)  fishing closures under section 8 of the Fisheries Management Act 1994,
(d)  fisheries approvals,
(e)  determinations of the TAC Committee under Division 4 of Part 2 of the Fisheries Management Act 1994,
(f)  policies approved by the Fisheries Minister with respect to the administration of the Fisheries Management Act 1994 and the regulations under that Act,
(g)  any relevant environmental planning instrument referred to in section 115R (5),
(h)  Ministerial orders and interim orders made under Subdivision 1A of Division 6 of Part 7A of the Fisheries Management Act 1994.
proponent of a fishing activity means:
(a)  in the case of a share management fishery—the holders of shares in the fishery or, if shares have not yet been issued on a provisional or permanent basis, the persons who are entitled to be allocated shares in the fishery, or
(b)  in the case of any other fishery—the fishers or other persons who carry out, or propose to carry out, the fishing activity.
115H   Principles guiding administration of Division
The administration of this Division is to be guided by the following principles:
(a)  the principles of ecologically sustainable development (as described in section 6 (2) of the Protection of the Environment Administration Act 1991),
(b)  public participation in accordance with this Division,
(c)  environmental impact assessment in accordance with this Division.
115I   Application of Division to designated fishing activities
(1)  This Division applies to designated fishing activities described in Schedule 1A to the Fisheries Management Act 1994.
(2)  This Division extends to the following activities (but only if the activity is such a designated fishing activity):
(a)  the stocking of waters with fish,
(b)  the placing of nets around beaches or other waters to protect the public from sharks,
(c)  the harvesting of marine vegetation.
For that purpose, a reference in this Division to a fishing activity or fishery includes a reference to any such activity.
(3)  This Division does not apply to aquaculture within the meaning of the Fisheries Management Act 1994.
115J   Designated fishing activities to be assessed under this Division
(1)  Environmental assessments of designated fishing activities are to be undertaken in accordance with this Division.
(2)  A draft fishery management strategy is required for a designated fishing activity that is the subject of such an environmental assessment.
Note.
 Section 7E of the Fisheries Management Act 1994 deals with the contents of such a strategy (including the incorporation of the relevant management plan).
(3)  The environmental assessment is to be undertaken on the basis of the activity described in the draft strategy.
(4)  The environmental assessment is to assess the likely cumulative environmental impact of the designated fishing activity carried out by all the proponents as authorised by the applicable fishing regulatory controls described in the draft strategy.
115K   Environmental impact statements to be prepared
(1)  An environmental impact statement in respect of a designated fishing activity must be prepared for the purposes of an environmental assessment under this Division.
(2)  An environmental impact statement is required even if it would not be required under Division 3 if that Division applied to the carrying out of the designated fishing activity.
(3)  An environmental impact statement is to be prepared in accordance with the requirements of Division 3, and the regulations under that Division, relating to the preparation of such statements.
(4)  The Fisheries Minister is to make arrangements for the preparation of an environmental impact statement, including engaging a person to be responsible for the preparation of the statement.
(5)  The Fisheries Minister may, under those arrangements, require the proponents of the designated fishing activity to provide information or carry out investigations for the statement and to contribute to the cost of the preparation of the statement.
(6)  As soon as practicable after an environmental impact statement has been prepared and before public notice is given under section 115L, the Fisheries Minister is to give a copy of the statement to the Director-General.
115L   Publicity and examination of environmental impact statements
(1)  The Fisheries Minister must give public notice of the preparation of an environmental impact statement under this Division and make a copy of the statement available for public inspection in accordance with the requirements for environmental impact statements made by section 113.
(2)  A copy of the relevant draft fishery management strategy is to accompany any copy of the environmental impact statement that is made available for public inspection in accordance with this section.
(3)  Any person may, during the period specified in the public notice under subsection (1), inspect the environmental impact statement and may, within that period, make representations in writing to the Fisheries Minister with respect to the designated fishing activity to which the statement relates.
(4)  Copies of all such representations received by the Fisheries Minister are to be provided, as soon as practicable, to the Director-General.
(5)  The Director-General may, unless an inquiry has been directed under section 115M:
(a)  examine or cause to be examined in the Department the environmental impact statement and any relevant representations, and
(b)  forward to the Fisheries Minister, as soon as practicable, a report containing the findings of that examination together with any recommendations arising from that examination.
The Director-General must make that report public.
(6)  If the Director-General notifies the Fisheries Minister that the environmental impact statement and representations are to be examined in the Department, the Fisheries Minister must not make a determination under section 115O with respect to the designated fishing activity until the report of the Director-General has been forwarded to the Fisheries Minister.
115M   Public inquiry into designated fishing activity
(1)  The Minister administering this Act may direct an inquiry under section 119 with respect to all or any of the environmental aspects of a designated fishing activity the subject of an environmental impact statement prepared under this Division.
(2)  The Minister administering this Act is to consider the findings and recommendations of the Commission of Inquiry that has conducted the inquiry and forward to the Fisheries Minister a copy of the findings and recommendations (together with any advice on whether there are environmental grounds on which the activity should be permitted, modified or prevented).
(3)  If the Minister administering this Act notifies the Fisheries Minister that an inquiry is to be conducted, the Fisheries Minister must not make a determination under section 115O with respect to the designated fishing activity until the findings and recommendations (and any advice) have been forwarded to the Fisheries Minister.
115N   Special provisions relating to threatened species conservation
(1)  An environmental assessment under this Division of a designated fishing activity is to include an assessment of the effect or likely effect on the following:
(a)  critical habitat,
(b)  threatened species, populations and ecological communities and their habitats.
(2)  An environmental impact statement under this Division must include a species impact statement if the designated fishing activity is to be carried out in critical habitat or is likely to significantly affect threatened species, populations or ecological communities or their habitats.
(2A)  However, despite subsection (2), a species impact statement is not required in relation to threatened species, populations or ecological communities or their habitats, if:
(a)  the designated fishing activity subject to the environmental assessment is an activity authorised by a Ministerial order made under Subdivision 1A of Division 6 of Part 7A of the Fisheries Management Act 1994, and
(b)  the species impact statement prepared under section 221IC of the Fisheries Management Act 1994 in relation to that order includes an assessment of the likely effect of the activity on those threatened species, populations or ecological communities or their habitats.
(3)  The Fisheries Minister, in considering a species impact statement under this Division, must have regard to the terms of any recovery plans or threat abatement plans relating to the area to which the statement applies for the purpose of assessing any effect on a threatened species, population or ecological community, or its habitat.
(4)  The Fisheries Minister must not make a determination under section 115O with respect to a designated fishing activity that is to be carried out in critical habitat or is likely to significantly affect threatened species, populations or ecological communities or their habitats unless the Minister has consulted the Minister administering the Threatened Species Conservation Act 1995. This subsection does not apply if the critical habitat or the threatened species, population or ecological community relate to fish or marine vegetation.
(5)  In consulting under subsection (4), the Minister administering the Threatened Species Conservation Act 1995 must provide the Fisheries Minister with any recommendations made by the Director-General of National Parks and Wildlife concerning the determination with respect to the designated fishing activity. The Fisheries Minister must include any recommendations not accepted by the Fisheries Minister (and the reasons for not accepting them) in the public report of the Fisheries Minister’s determination.
(6)  The Minister administering the Threatened Species Conservation Act 1995 (for the purposes of consultation under subsection (4)) must take into consideration the matters referred to in section 112E of this Act.
Note.
 This section incorporates the relevant obligations under Division 3 with respect to threatened species conservation.
115O   Determination with respect to environmental assessment
(1)  The Fisheries Minister is to make a determination with respect to the designated fishing activity the subject of an environmental impact statement for the purpose of attaining the objects of this Act relating to the protection and the enhancement of the environment and the objects of the Fisheries Management Act 1994.
(2)  When making the determination, the Fisheries Minister is to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the designated fishing activity (including the effect of the activity on the matters referred to in section 111 (2)–(4)).
Note.
 The duty of the Fisheries Minister under this section is in similar terms to the duty imposed on determining authorities by section 111 to consider the environmental impact of activities.
(3)  The Fisheries Minister is to consider:
(a)  the environmental impact statement and the representations duly received by the Fisheries Minister with respect to the designated fishing activity to which the statement relates, and
(b)  any report on the statement and recommendations of the Director-General that are forwarded to the Fisheries Minister under section 115L, and
(c)  any findings and recommendations of a Commission of Inquiry and advice of the Minister administering this Act that are forwarded to the Fisheries Minister under section 115M, and
(d)  the matters required to be considered under section 115N relating to threatened species conservation.
(4)  The Fisheries Minister may make any of the following determinations:
(a)  a determination to permit the designated fishing activity to be carried out,
(b)  a determination to permit the designated fishing activity to be carried out subject to such modifications as will in the Fisheries Minister’s opinion eliminate or reduce the detrimental effect of the activity on the environment,
(c)  a determination to prevent the carrying out of the designated fishing activity or any part of the activity.
The Fisheries Minister must make the determination public as soon as practicable after it is made.
Note.
 This subsection is in similar terms to section 112 (4) with respect to the actions of a determining authority once it has obtained and considered an environmental impact statement on an activity that is likely to significantly affect the environment. Section 7F of the Fisheries Management Act 1994 requires the Fisheries Minister to revise the relevant draft fishery management strategy (and publish the approved strategy) so as to reflect the result of the determination.
(5)  If the approval of the Minister administering this Act is required under section 115P for a determination under this section, the Fisheries Minister is to make a preliminary determination before seeking approval under that section. A determination is not made under this section until a final determination is made in accordance with section 115P.
(6)  When giving effect to a determination, the Fisheries Minister is to comply with the applicable provisions of the Fisheries Management Act 1994 and the regulations under that Act.
(7)  A determination under this section does not prevent the imposition from time to time of new fishing regulatory controls applicable to a designated fishing activity, or changes from time to time to those controls.
Note.
 See also section 115R (3) which only excludes a fishing approval from the requirement for individual environmental assessment under this Part if it is issued or renewed in accordance with the determination of the environmental assessment under this section.
115P   Approval of Minister administering this Act required for designated fishing activity where Fisheries Minister is or is declared to be proponent
(1)  This section applies to:
(a)  any designated fishing activity of which the Fisheries Minister is the proponent, and
(b)  any other designated fishing activity in respect of which the Fisheries Minister is declared to be the proponent by the Minister administering this Act by order published in the Gazette:
(i)  with the approval of the Fisheries Minister, or
(ii)  if there is a dispute between the Minister administering this Act and the Fisheries Minister, with the approval of the Premier.
(2)  The Fisheries Minister is not to make a final determination under section 115O with respect to a designated fishing activity to which this section applies without the approval of the Minister administering this Act. If the approval is subject to conditions, the final determination must accord with those conditions.
(3)  Division 4 applies (with any necessary modifications) to an approval of the Minister administering this Act required under this section in the same way as it applies to an approval of that Minister required under that Division.
115Q   Re-assessment of designated fishing activity
(1)  A further environmental assessment of a designated fishing activity is to be undertaken under this Division if:
(a)  a review of the relevant fishery management strategy is indicated by the strategy because the specified performance indicators are not being met, and
(b)  the review results in proposed changes to the strategy, and
(c)  the proposed changes to fishing regulatory controls are likely, in the opinion of the Fisheries Minister, to significantly affect the environment (including threatened species, populations or ecological communities or their habitats).
(2)  A further environmental assessment may be limited to an assessment that relates to the proposed changes to fishing regulatory controls.
115R   Application of other provisions of this Act
(1)  The provisions of this Part (other than this Division) do not apply to or in respect of a designated fishing activity.
(2)  Despite subsection (1), those provisions apply to a designated fishing activity if the Fisheries Minister has not made a determination with respect to the activity under this Division before:
(a)  1 July 2003, except as provided by paragraph (b), or
(b)  a later date prescribed by the regulations for the purposes of that fishing activity.
In that case, those provisions cease to apply if the determination is made after that date.
(3)  Despite subsection (1), those provisions apply to a fisheries approval that relates to a designated fishing activity if:
(a)  until a determination is made by the Fisheries Minister with respect to the activity under section 115O—the fisheries approval does not authorise commercial fishing activities and is granted or renewed for a period exceeding 12 months, or
(b)  after such a determination is made—the fisheries approval is not granted or renewed in accordance with the determination.
(4)  A designated fishing activity cannot be made subject to a requirement for development consent under Part 4.
(5)  An environmental planning instrument cannot prohibit or otherwise regulate a designated fishing activity (or any part of such an activity) unless the Fisheries Minister has approved those provisions before the instrument is made.