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Contents (1995 - 101)
Threatened Species Conservation Act 1995 No 101
Repealed version for 18 August 2017 to 24 August 2017 (accessed 17 December 2017 at 15:00)
Part 3
Part 3 Critical habitat of endangered species, populations and ecological communities and critically endangered species and ecological communities
Introductory note.
 This Part makes the Chief Executive responsible for identifying (where this is possible) habitat that is critical to the survival of endangered species, populations and ecological communities, or critically endangered species and ecological communities (that is, those species, populations and ecological communities listed for the time being in Schedule 1 or 1A) and for recommending to the Minister that the habitat so identified be declared critical habitat. The Chief Executive must consult with the Scientific Committee before preparing a recommendation and must have regard to any advice given by the Scientific Committee concerning identification of critical habitat.
Division 1 describes the process by which critical habitat is identified by the Chief Executive and declared by the Minister and makes provision for public participation in that process.
Division 2 deals with the preparation, publication and other dissemination of maps of critical habitat, and the maintenance of a register of critical habitat by the Chief Executive.
An offence relating to the damaging of critical habitat is contained in the National Parks and Wildlife Act 1974. That Act also makes it an offence for a person to damage the habitat of a threatened species, population or ecological community.
Division 1 Identification and declaration of critical habitat
37   Habitat eligible to be declared to be critical habitat
(1)  The whole or any part or parts of the area or areas of land comprising the habitat of an endangered species, population or ecological community or critically endangered species or ecological community that is critical to the survival of the species, population or ecological community is eligible to be declared under this Part to be the critical habitat of the species, population or ecological community.
(2)  The regulations may provide that a specified habitat, or habitat of a specified kind, may, or may not, be declared to be critical habitat for the purposes of this Part.
38   Chief Executive responsible for identifying critical habitat
The Chief Executive is responsible for identifying (where this is possible) the area or areas of land comprising the critical habitat of each endangered species, population and ecological community or critically endangered species or ecological community.
39   Chief Executive to consult with Scientific Committee
The Chief Executive must:
(a)  consult with the Scientific Committee before preparing a recommendation for the identification of an area or areas of land comprising critical habitat for the purposes of this Act, and
(b)  have regard to its advice in preparing any recommendation for that purpose.
40   Preparation of recommendation for identification of critical habitat
(1)  After considering the Scientific Committee’s advice, the Chief Executive must, if the Chief Executive considers that it is possible to identify the critical habitat of an endangered species, population or ecological community or critically endangered species or ecological community, prepare a recommendation for identification of the area or areas of land comprising the critical habitat of that species, population or ecological community.
(2)  In so doing, the Chief Executive must consider the likely social and economic consequences of the making of the recommendation in the manner proposed.
41   Publication of recommendation
(1)  After preparing a recommendation for identification of the area or areas of land comprising the critical habitat of an endangered species, population or ecological community or critically endangered species or ecological community, the Chief Executive must:
(a)  give a copy of it to the Scientific Committee, and
(b)  give notice of the recommendation to all persons known by the Chief Executive, following the making of reasonable searches and inquiries, to be affected by the recommendation, being:
(i)  landholders (including public authorities who are landholders), and
(ii)  other public authorities known to the Chief Executive to exercise relevant functions in relation to the land, and
(iii)  if the land is subject to a mortgage, charge or positive covenant—the mortgagee, chargee or person entitled to the benefit of the covenant, and
(iv)  holders of leases and other interests granted by the Crown, and
(c)  publish notice of the recommendation in a newspaper circulating generally throughout the State and, if the recommendation is likely to affect a particular area or areas (other than the State as a whole), in a newspaper circulating generally in that area or areas, and
(d)  publish notice of the recommendation in the Gazette.
(2)  The notice must:
(a)  state that the recommendation has been prepared, and
(b)  specify the address of the place at which copies of the recommendation may be inspected, and
(c)  invite persons to make written submissions to the Chief Executive about the recommendation, and
(d)  specify the address of the place to which submissions about the recommendation may be forwarded and the date by which submissions must be made.
42   Consideration of submissions by Chief Executive
(1)  The Chief Executive must consider all written submissions received by the Chief Executive on or before the date specified in the notice.
(2)  The Chief Executive may amend the recommendation to take account of any of those submissions or any advice given by the Scientific Committee.
43   Chief Executive to refer recommendation to Minister
After considering the submissions and making amendments (if any) to the recommendation, the Chief Executive:
(a)  must forward the recommendation, identifying the area or areas of land comprising the critical habitat of the endangered species, population or ecological community or critically endangered species or ecological community concerned, to the Minister, and
(b)  must also provide the Minister with a summary of any advice given by the Scientific Committee concerning the matter and of all submissions received about the recommendation, and details of any amendments made to the recommendation by the Chief Executive to take account of that advice or those submissions.
44   Consideration of recommendation by Minister
(1)  On receiving a recommendation from the Chief Executive, the Minister must consider the recommendation and have regard to the following:
(a)  the likely social and economic consequences of a declaration of critical habitat in the manner indicated in the recommendation,
(b)  without limiting paragraph (a), the likely consequences of a declaration of critical habitat in the manner indicated in the recommendation for landholders of, or other persons having an interest in, or on lawful uses of, the land,
(c)  the advice of the Scientific Committee concerning the matter,
(d)  any submissions made about the recommendation and, in particular, any submissions received from public authorities exercising relevant functions in relation to the land.
(2)  In so doing, the Minister must also consider whether, consistent with the principles of ecologically sustainable development, the recommendation might be amended to avoid or lessen any adverse consequences of the making of a declaration of critical habitat.
45   Consultation between Ministers
If a submission from a public authority indicates that a recommendation is likely to affect the exercise of functions by the public authority, the Minister is to consult with the responsible Minister for the public authority concerning the recommendation before making a decision about the recommendation.
46   Minister may return recommendation to Chief Executive for amendment
(1)  If the Minister thinks that a recommendation should be amended in some respect, the Minister may request the Chief Executive to amend the recommendation.
(2)  On receiving such a request, the Chief Executive must:
(a)  amend the recommendation in the manner requested by the Minister, and
(b)  return the recommendation, as so amended, to the Minister.
47   Declaration of critical habitat by Minister
(1)  The Minister may:
(a)  approve a recommendation, without amendment or with any amendments that the Minister considers appropriate, or
(b)  refuse a recommendation (on the basis of one or more of the factors referred to in section 44 (1) or otherwise), or
(c)  refer it back to the Chief Executive for further consideration.
(2)  Despite the other provisions of this Division, the Minister must approve or refuse a recommendation within 6 months after the date specified in the notice referred to in section 41 (2) as the date by which submissions about the recommendation must be made.
(3)  If the Minister approves of a recommendation, with or without amendments, the Minister may, by notification published in the Gazette, declare the area or areas of land identified in the recommendation (with any appropriate amendment) and described in the notification to be the critical habitat of the endangered species, population or ecological community or critically endangered species or ecological community concerned.
(4)  Section 53 (2) applies to the publication of a map of the critical habitat.
48   Publication of declaration of critical habitat
As soon as practicable after the declaration of critical habitat by the Minister, the Chief Executive must:
(a)  give notice of the declaration to all persons known by the Chief Executive, following the making of reasonable searches and inquiries, to be affected by the declaration, being:
(i)  landholders (including public authorities who are landholders), and
(ii)  other public authorities known by the Chief Executive to exercise relevant functions in relation to the land, in particular, the Valuer-General, and
(iii)  if the land is subject to a mortgage, charge or positive covenant—the mortgagee, chargee or person entitled to the benefit of the covenant, and
(b)  publish notice of the declaration in a newspaper circulating generally throughout the State and, if the declaration is likely to affect a particular area or areas (other than the State as a whole), in a newspaper circulating generally in that area or areas, and
(c)  publish notice of the declaration in the Gazette.
49   Amendment or revocation of declaration of critical habitat
(1)  The Minister may amend or revoke a declaration of critical habitat by a further notification published in the Gazette. However, the Minister must not amend or revoke a declaration unless the Minister has obtained from, and considered, the advice of the Chief Executive.
(2)  Before providing advice about a proposed amendment or revocation, the Chief Executive must:
(a)  consult the Scientific Committee concerning the proposed amendment or revocation and have regard to its advice, and
(b)  give and publish notice of the proposed amendment or revocation as if it were a recommendation referred to in section 41, and consider all written submissions concerning the proposed amendment or revocation that are received on or before the date specified in the notice.
(3)  If a declaration is amended or revoked by the Minister, the Chief Executive must:
(a)  give notice of the amendment or revocation to:
(i)  those persons who were given notice of the making of the declaration and who retain the requisite interest in the land, and
(ii)  any other person known by the Chief Executive, following the making of reasonable searches and inquiries, to have become a landholder, public authority exercising relevant functions in relation to the land, mortgagee, chargee or person entitled to the benefit of a positive covenant in the land after notice of the making of the declaration was given, and
(b)  publish notice of the amendment or revocation in the Gazette.
(4)  A notice under subsection (3) must give the reasons for the amendment or revocation of the declaration.
50   Public authorities to have regard to critical habitat
A public authority must, on and after publication of a declaration of critical habitat, have regard to the existence of critical habitat:
(a)  in relation to use of land that it owns or controls that is within or contains critical habitat, or
(b)  in exercising its functions in relation to land that is within or contains critical habitat.
51   Regulations may prohibit certain actions on critical habitat
The regulations may prohibit or regulate, for the purposes of this Act, the carrying out of specified actions, or actions of a specified class or description, on specified critical habitat.
52   Effect of failure to comply with procedural requirements
A declaration of critical habitat is not open to challenge because of a failure to comply with the procedural requirements of this Division after the declaration has been published in the Gazette.
Division 2 Maps and register of critical habitat
53   Map of critical habitat to be prepared and published
(1)  Before the publication of a declaration, or an amendment of a declaration, of critical habitat, the Chief Executive must arrange for the preparation of a map that shows the location of the critical habitat proposed to be declared or amended.
(2)  A copy of the map is to be published in the Gazette on the publication of the declaration of the critical habitat.
54   Maps of critical habitat to be served
The Chief Executive must serve a copy of a map of critical habitat on the following:
(a)  the Secretary of the Department of Industry, Skills and Regional Development,
(b)  the Secretary of the Department of Planning and Environment,
(c)  each council within whose area the whole or part of the critical habitat is located,
(d)  landholders of land on which critical habitat is located (including public authorities who are landholders),
(e)  holders of leases and other interests granted by the Crown,
(f)  other public authorities known by the Chief Executive to exercise relevant functions in relation to the land.
55   Chief Executive to keep register of critical habitat
(1)  The Chief Executive must keep a register containing copies of declarations of critical habitat as in force from time to time, and maps of the critical habitat that are published in the Gazette, and must make that register available to public authorities.
(2)  The register is to be open for public inspection, without charge, during ordinary business hours, and copies of or extracts from the register are to be made available to the public on request, on payment of the fee fixed by the Chief Executive.