On 12 February 2022, the Federal Environment Minister listed the koala (Phascolarctos cinereus) as 'endangered' under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) in Queensland, NSW and the Australian Capital Territory.
Since 2 May 2012, koala populations in Queensland, NSW and the Australian Capital Territory were classified as 'vulnerable' under the EPBC Act, meaning that koalas in these states are now one step closer to extinction. The increased degree of endangerment has arisen from a culmination of threats facing koalas over several years, including habitat loss, climate-driven weather events, disease and the 2019/2020 bushfires.
In this article, we outline the ramifications of this listing and its implications on future projects in these three states and territories.
Existing federal policy documents are now out of date
Australia's national list of threatened species is regularly updated to ensure the management of species that are threatened. Following this listing event, the 'EPBC Act referral guidelines for the vulnerable koala'and associated policy documents are no longer current since these documents are associated with the 'vulnerable' classification. The out of date documents are:
- EPBC Act referral guidelines for the vulnerable koala
- Koala referral guidelines map
- Koala habitat context map
- Fact sheet – Koala referral guidelines, offsets and existing projects.
The Minister has published an updated conservation advice which reflects the uplisting of the koala to endangered and must consider this conservation advice when making decisions under the EPBC Act which affect koala populations.
Relevant state and territory threatened species lists likely to be soon updated
We expect that NSW, Queensland and the Australian Capital Territory are likely to also uplist the koala from vulnerable to endangered under their separate listing processes (under the Biodiversity Conservation Act 2016 (NSW), Nature Conservation Act 1992(Qld) and Nature Conservation Act 2014 (ACT) respectively).
The different states and territory could also utilise the Department of Agriculture, Water and the Environment's (Department) Common Assessment Method to upgrade the koala's conservation status to 'endangered' from 'vulnerable'. The Common Assessment Method aims to ensure consistency of species endangerment categories across different jurisdictions across Australia.
New koala recovery plan soon to be released
While the classification to 'endangered' does not currently create any legal obligations, the Department is soon to seek the relevant states' approval for a National Recovery Plan.
Recovery plans must provide for the research and management actions necessary to stop the decline of, and support the recovery of, listed threatened species or threatened ecological communities concerned so that its chances of long-term survival in nature are maximised (see section 270(1) of the EPBC Act).
Before making a recovery plan for a listed threatened species or listed threatened ecological community, the Minister must:
- consult with the appropriate Minister for each state and territory in which the species or ecological community occurs
- consider advice from the Threatened Species Scientific Committee
- invite the public to comment on the proposed plan
- consider all comments received.
In 2021, the Department undertook public consultation on a draft koala recovery plan. The recovery plan will outline habitats critical to the survival of the species. Once the National Recovery Plan is in place, the Minister must not act inconsistently with the National Recovery Plan in deciding whether to approve an action under the EPBC Act.
Existing EPBC Act approvals and projects under assessment unaffected by the change
The endangered listing does not impact projects approved before 12 February 2022, or projects that are currently under assessment under the EPBC Act. According to section 158A of the EPBC Act, when a listed threatened species or a listed threatened ecological community becomes listed in another category representing a higher degree of endangerment, approvals made before the listing are not affected.
Implications for future projects
At this time, proponents are encouraged to have a pre-referral meeting with the Department to understand their obligations under the EPBC Act (see referral guidelines here). The Department advises that its 'Significant Impact Guidelines' may still be considered to assess whether a project will significantly impact koala populations.
We expect that listing koalas as 'endangered' could result in greater scrutiny of development applications (including a longer development assessment process) and a closer examination of environmental offsetting obligations and mitigation measures.
Proponents of new projects will need to carefully consider the implications of the endangered listing on sites that do not have approvals in place.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.
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