7 - Public Land
Contributor – Rod Griffiths
Last Updated – March 2009
[7.1] Introduction
More than half of the Australian Capital Territory (ACT) has been declared as public land. This includes all of the ACT's reserves that have been set aside for the purpose of environmental conservation, such as Namadgi National Park, Tidbinbilla Nature Reserve and the many units of Canberra Nature Park, such as Black Mountain and Cooleman Ridge.
This chapter discusses how public land is created, how it is then managed and how the general public can participate in these processes. It also discusses those activities prohibited on public land, whether licences and leases can be granted over public land, and native title issues for reserved areas.
At the time of writing the Minister for Planning was responsible for Chapter 10 of the Planning and Development Act 2007 (ACT) (Planning Act), the legislation dealing with public land.
[7.2] Creating public land
Public land is identified in the Territory Plan (TP). As described in [2.4.3] The Territory Plan, the Planning Act requires the TP to establish the land uses and other land policies for all land in the ACT other than land designated under the National Capital Plan.
Public land is identified in the TP based on written recommendations by the Conservator of Flora and Fauna (the conservator) or the custodian of the land to the ACT Planning and Land Authority (ACTPLA). These recommendations are made under s.314 of the Planning Act and must pertain to unleased land. Section 314 also allows the conservator or the custodian to recommend varying the boundaries of an area of public land, or removing the public land designation of an area, or varying the purpose for which it was reserved.
A custodian is defined in s.333 of the Planning Act as 'an administrative unit or other entity with administrative responsibility for land in the ACT that is unleased land, public land or both'. ACTPLA maintains a map (custodianship map) that identifies who has administrative responsibility for land in the ACT.
Public land can only be reserved for specific purposes (s.315). These purposes are:
· a wilderness area
· a national park
· a nature reserve
· a special purpose reserve
· an urban open space
· a cemetery or burial ground
· the protection of water supply
· a lake
· a sport or recreation reserve
· a heritage area.
[7.3] Managing public land
Each of the purposes for which public land can be reserved has attached management objectives, set out in Schedule 3 of the Planning Act.
These objectives are important as they are ranked in order of precedence, so that if an inconsistency arises in their application then objective one takes precedence over objective two, and so on (s.317(4)). For example, in a national park, any attempt to provide opportunities for a recreational activity must be considered in light of the area's primary objective of conserving the natural environment.
The conservator can also specify other management objectives for an area of public land (s.317(2)). Management objectives are disallowable instruments, that is, they must be submitted to the Legislative Assembly, which can then vote to disallow them. Should an inconsistency arise between the application of a management objective set out in Schedule 3 and one specified by the conservator, the former takes precedence.
[7.3.1] Schedule 3 Management Objectives
The Schedule 3 management objectives for each type of public land are as follows:
Wilderness area
1. To conserve the natural environment in a manner ensuring that disturbance to that environment is minimal.
2. To provide for the use of the area (other than by vehicles or other mechanised equipment) for recreation by limited numbers of people, so as to ensure that opportunities for solitude are provided.
National park
1. To conserve the natural environment.
2. To provide for public use of the area for recreation, education and research.
Nature reserve
1. To conserve the natural environment.
2. To provide for public use of the area for recreation, education and research.
Special purpose reserve
1. To provide for public and community use of the area for recreation and education.
Urban open space
1. To provide for public and community use of the area.
2. To develop the area for public and community use.
Cemetery or burial ground
1. To provide for the interment or cremation of human remains and the interment of the ashes of human remains.
Protection of Water Supply
1. To protect existing and future domestic water supply.
2. To conserve the natural environment.
3. To provide for public use of the area for education, research and low-impact recreation.
Lake
1. To prevent and control floods by providing a reservoir to receive flows from rivers, creeks and urban run-offs.
2. To prevent and control pollution of waterways.
3. To provide for public use of the lake for recreation.
4. To provide a habitat for fauna and flora.
Sport or recreation reserve
1. To provide for public and community use of the area for sport and recreation.
Heritage Area
1. To conserve natural and cultural heritage places and objects, including Aboriginal places and objects.
2 To provide for public use of the area for recreation, education and research as appropriate, and having proper regard to natural and cultural values.
Where the objective refers to the 'natural environment' it has the broad meaning of referring to all biological, physical and visual elements of the earth and its atmosphere, whether natural or modified (s.317(6)).
Once an area of public land is declared, it is required to be managed in accordance with the management objectives applicable to that area and any plan of management for that area.
[7.4] Plans of management
Creating an area of public land places a specific management obligation upon the custodian of that land. For each area of public land for which it is responsible, the custodian is required to prepare a draft plan of management as soon as practicable after the reserving of the area in the TP (s.320(2)).
The Planning Act requires that each plan of management provide a description of the area to which it applies and the manner in which the relevant management objectives for that area are to be applied or promoted (s.319).
The Planning Act does not identify who is to use the plans of management but it can be assumed that, as a minimum, the plans of management would provide the strategic framework to guide the actions of the custodian. It has also been argued that plans of management should inform the wider community of the values of the area under management and the mechanisms to be used to preserve those values.
The specific content of plans of management has been an issue of debate in the ACT community over a number of years. Considerable public discussion has ensued over the degree of detail required in a management plan to meet the requirements of s.319. Public submissions have often called for greater detail to be included in plans of management.
The process for preparing a plan of management, and for facilitating public discussion, is described in ss.320 to 332 of the Planning Act.
[7.5] Public participation
The public has opportunities to comment either when a plan of management is being created or when it is being varied. The mechanisms available for the public to comment on plans of management differ depending on whether the plan of management up for comment is deemed to be a preliminary or a final draft (s.323).
Preliminary drafts are part of the background papers to variations to the TP and opportunities for public comment are consistent with those for variations to the TP (see [2.4.5] Varying the Territory Plan).
Final drafts occur where a preliminary draft has not been prepared or, if a preliminary draft has been prepared, the final draft is significantly different to the preliminary draft. The entity preparing a final draft is called the proponent and this can either be the custodian of the land or the conservator. The custodian is responsible for preparing the initial draft plan of management for an area of public land, while the custodian and the conservator can propose draft variations to the plan of management. Draft variations are treated as if they are draft plans of management.
As part of the process of making a final draft plan of management available, the proponent is required to call for written comments on the draft in a public inspection notice published in a daily newspaper. This notice has to include notification of where submissions are to be lodged and must specify a deadline for the submissions of not less than 15 working days from the date of notice. Copies of the final draft plan of management must also be made available for public viewing at places advertised in the notice.
The proponent can revise a final draft plan of management to take into account any written comments raised on the draft plan or to amend any formal errors (s.324).
Once satisfied with the content of the final draft plan of management, the proponent is required to forward it to the minister. However, there is no specified time period for this to occur. When submitting a final draft plan of management to the minister the proponent must also provide a report outlining the issues raised in written submissions on the draft plan; a report on the proponent's consultation on the draft with the public and any other person or authority; and, if ACTPLA or the conservator made comments on the draft plan and these comment were not incorporated, an explanation of why they were not incorporated (s.325).
The minister is required to forward the final draft plan of management and the reports required under s.325 to the appropriate Legislative Assembly committee within five working days of receiving them (s.326).
It is usual for this committee to also call for public comment on the final draft plan either as general comments or on specific aspects of the draft. These written comments can also be supplemented by public hearings at which members of the public, although more usually organisations, may present their submissions and be questioned by the members of the committee. The evidence gathered through this process is considered by the committee when preparing its report to the minister on the final draft plan of management.
The minister has a range of options available upon receipt of a final draft plan of management for approval. Under s.327 of the Planning Act, the minister must:
· approve the final draft plan
or
· refer the final draft plan back to the proponent and make written directions to:
o conduct further specified consultation
o consider any revision suggested by the minister
o revise the draft in a specified manner
o defer, until a specified date or the occurrence of a specified event, the resubmission of the draft to the minister
or
o withdraw the draft in writing.
A further opportunity for public participation will arise if the minister refers the final draft plan of management back to the conservator for further consultation under s.327.
When the minister has approved the plan of management, it is tabled in the Legislative Assembly where it is subject to disallowance. The public may then lobby Assembly members prior to the vote on that matter. Technical variations, that is, variations to correct such matters as errors or changes in titles, which do not go through a full public consultation process, are also disallowable instruments.
There is no time frame for completion of the plan of management process imposed within the legislation. Implemented plans of management are to be reviewed, at least once every ten years. Should the custodian, at any stage, believe that the plan of management is no longer appropriate for the land, then a draft variation to the plan must be prepared (s.332).
[7.6] Opportunities for public involvement
As well as participating in the development of the plan of management for a reserved area, the public have a number of 'hands on' options for the ongoing management of public areas.
Parkcare, Landcare and 'Friends of…' groups are often linked to specific reserves. These provide members of the public with access to others with similar goals and provide opportunities to assist with on-ground conservation of specific reserved areas.
The ACT also has a wide range of other community groups with a conservation focus. The National Parks Association of the ACT has a specific interest in the management of the ACT's reserved areas. Friends of Grasslands and the Canberra Ornithologist Group are specific interest groups that have shown significant attention to reserve management in the ACT.
The Conservation Council ACT Region is the peak non-government umbrella conservation organisation in the ACT. Its membership is comprised of around thirty ACT and regional conservation groups. The Conservation Council has been particularly active in the lobbying of the ACT's politicians and bureaucrats to ensure the best possible outcomes for the ACT's environment.
Another opportunity for hands on participation can be found through the many projects managed by Conservation Volunteers Australia.
There are always opportunities to undertake a wide variety of volunteer activities with the above organisations and many of the ACT's other conservation groups (see ACT Environmental Law Handbook Contacts).
[7.7] Activities prohibited on public land
The office of the Conservator of Flora and Fauna is established under s.7 of the Nature Conservation Act 1980 (ACT). Part 8 of that Act gives the conservator certain powers in respect of reserved areas, that is, areas of public land reserved as a wilderness area, national park or nature reserve.
The conservator is able to restrict or prohibit access to reserve areas, including unleased special purpose reserves. This can be to all or part of a reserved area and can be limited to certain people or classes of people. This power to restrict or prohibit access can only be exercised where the conservator has reasonable cause to believe that public safety would be endangered or that management of the area would be interfered with. Notice of the restriction or prohibition of access must be published in a newspaper circulating in the ACT and be displayed at all entrances to the area affected (s.63).
The conservator is also able to erect signs in reserved areas. Such signs should be at or near the entrances to the reserved area or part of the reserved area, and can contain directions and requirements that must be observed by users of the area concerned. Signs can also provide warnings to people entering the area concerned (s.65).
A whole range of activities is prohibited in reserved areas, without written permission from the conservator (s.67). These include:
· driving or parking a motor vehicle except on a road or track which is not barred by a gate or barrier, and on any other part of a reserved area identified as an area in which driving or parking of a motor vehicle is allowed
· mooring vessels except in designated areas
· camping in a part of the reserved area where camping is prohibited
· erecting a building, booth, stall, post, sign or other structure—this activity is totally prohibited in wilderness areas
· supplying goods or services—this activity is also totally prohibited in wilderness areas
· planting a plant
· dumping garden waste, soil or landscaping material containing plant material capable of propagating
· carrying firearms, spears, spear guns, bow and arrows, or any other device or substance capable of being used to capture animals
· damaging or destroying natural or constructed structures or features
· damaging or destroying a site or removing an object of historical, archaeological, palaeontological or geological interest
· taking pest plants or animals, other than native animals or guide dogs by a blind person, into a reserved area.
Where a person commits a prohibited activity in a reserve area, the Nature Conservation Act has maximum penalties prescribed in it. The penalties are denominated in 'penalty units' and, for an individual, a penalty unit is equivalent to $110 and, for a corporation, $550. Penalties range from a maximum of five penalty units for the bringing of a domestic pet into a reserve area up to a maximum of 2,000 penalty units and/or five years imprisonment for the clearing of native vegetation in a reserved area.
The lighting of fires, or the depositing of rubbish or litter, in places or receptacles other than those approved by the conservator, are also prohibited under the Nature Conservation Act (s.66).
Specific prohibitions apply in wilderness areas (s.70) that prohibit excavation without a licence, or the establishment of a road or track, or the use of a motor vehicle except on a road or vehicular track in existence at the time of the declaration of the wilderness area. Such actions can attract a maximum penalty of 50 penalty units. These prohibitions can be overruled by the requirements of the Emergencies Act 2004 (ACT) which deal with the protecting of life or property, or the controlling, extinguishing or preventing the spread of a fire.
The Nature Conservation Act also contains provisions prohibiting the clearing of native vegetation and the damaging of land in reserved areas (Divisions 8.2 and 8.3).
Applications can be made to the ACT Civil and Administrative Tribunal to review a decision of the conservator restricting or prohibiting access to a reserved area or to not grant permission for any activity in a reserved area requiring written approval (see [12.8.4] Tribunal review of a decision).
In addition, the ACT government can make regulations to set fees for entry to a reserved area which may impact on the extent of public access (s.140).
[7.8] Licences and leases over public land
A lease can be granted over any area of public land except for wilderness areas. However, for a lease to be granted where public land is involved the approval of the conservator is required. See [2.2] Leasehold system for a brief discussion of the leasehold system.
Licences can be granted for entities to carry out activities that would otherwise be prohibited on the public land. Under the Planning Act, ACTPLA can grant a licence to occupy or use public land, but only if the conservator agrees in writing to the granting of the licence (s.303). The Planning Act gives the grazing of livestock on unleased territory land as an example of a prohibited activity that could be granted a licence.
The Nature Conservation Act allows the conservator to grant licences for prohibited activities. Where a licence is granted allowing the clearing of native vegetation or the damaging of land in a reserved area, the licence may also contain a requirement for the area to be returned as close as possible to its condition prior to this action occurring. However, this rehabilitation requirement is probably unlikely for licences that allow utilities to maintain vegetation clearances around their assets.
[7.9] Reserved areas and native title
The ACT government has recognised the links that members of local Aboriginal groups have with the ACT, with particular emphasis on the area now within Namadgi National Park. As part of this recognition, on 30 April 2001, the ACT government announced that it had signed an agreement with a number of Aboriginal groups, offering these groups a Namadgi Special Aboriginal Lease.
The Namadgi Special Aboriginal Lease provides those Aboriginal groups, party to the above agreement, with:
· a right to participate in the management of Namadgi National Park
· acknowledgment as people with an historical association with the area
· a right to be consulted on specific regional indigenous cultural issues
· a right to be consulted on the development of new legislation or amendments to existing legislation that will impact on Namadgi National Park.
The Namadgi Special Aboriginal Lease is not a lease or licence over Namadgi National Park as defined in the Planning Act but is an agreement about how Namadgi National Park is to be managed. The park remains open to the public and the special lease does not alter the conservation values enshrined for the area under the Planning Act.
The ACT government has stated that the Namadgi Special Aboriginal Lease is not an agreement about native title but seeks to show a spirit of reconciliation.
As part of the arrangements for the agreement, an Interim Namadgi Advisory Board was set up in 2001, comprising ten members, five Indigenous persons and five non-indigenous persons. The role of the interim board was to provide advice to the conservator on:
· the redrafting of Namadgi National Park's plan of management—the revised plan of management is expected to be released soon
· decisions concerning Namadgi under s.67 of the Nature Conservation Act 1980 which relates to prohibited activities in reserve areas
· issues relating to the management and protection of Namadgi.
The Interim Namadgi Advisory Board has not met in over two years but has not been formally disbanded. A Legislative Assembly Standing Committee enquiry into the draft plan of management for Namadgi recommended in May 2008 that if the Interim Board was disbanded then a permanent joint board should be established for the park.