On 11 February 2022, the Australian Minister for the Environment announced that the status of the koala would be upgraded from vulnerable to endangered under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act)..

Snapshot

  • On 11 February 2022, the Minister announced that the koala will be listed as "endangered" under the EPBC Act which means new projects will be subject to the upgraded listing, with more stringent assessment, approval and offset requirements imposed.
  • Projects that have already had a determination as to whether they are a "controlled action" for the EPBC Act, or that have been approved or meet the existing use requirements of the EPBC Act will not have approvals decisions impacted by the change in the listing status of the koala.
  • The Federal Minister has also announced that she will seek agreement from Queensland, New South Wales and the Australian Capital Territory on the National Recovery Plan for the koala which will impact projects that have already commenced the assessment process under the EPBC Act, if it is agreed.

Change in listing status

Koala populations of Queensland, New South Wales and the Australian Capital Territory have been listed as "vulnerable" since 2 May 2012.

As part of the response to the bushfires in 2020, the Minister requested that the Threatened Species Scientific Committee consider the status of the koala, and the Minister has now announced that the status of the koala populations of Queensland, New South Wales and the Australian Capital Territory will be upgraded to endangered.

Despite being listed since 2012, a National Recovery Plan has never been in place for the koala. As part of the listing announcement, the Minister has also announced that she is seeking agreement from Queensland, New South Wales and the Australian Capital Territory on a National Recovery Plan for the koala, which went through a public consultation process in 2021.

How does the changed listing impact existing projects?

Under s.158A of EPBC Act, a change in the listing status of a species that occurs after the Minister has decided if an action is a controlled action or not:

  • does not impact the original "controlled action" decision; and
  • must be disregarded in making any further approval process decision (e.g. the decision whether to approve).

The changed listing will not impact:

  • existing approved projects (including a decision to revoke, vary or add to conditions);
  • projects that have been determined to be "not a controlled action"; or
  • projects that meet the requirements of the EPBC Act for prior authorisations or continuations of existing lawful uses.

Any changes or modifications to projects that are undergoing assessment or that have been approved will need to carefully consider any impact of the change in the listing status.

How does the changed listing impact new projects?

The upgraded listing will impact on new projects at various stages of the EPBC Act assessment process, in particular:

  • The referral stage – where the Minister determines whether or not the project should be subject to assessment under the EPBC Act and the assessment approach that must be taken;
  • The assessment stage – in determining the extent and significance of impact; and
  • The decision stage – in determining whether a proposed action should be approved and the conditions that attach to any approval (including clearing extents and offsets).

What is the impact of a National Recovery Plan?

When making a decision as to whether to approve an action under the EPBC Act, the Minister must not act inconsistently with a recovery plan.

Unlike for the listing event, there are no provisions in the EPBC Act that protect an existing process from a new recovery plan, if listed threatened species and communities are identified as a controlling provision.

The EPBC Act referral guidelines for the vulnerable koala state that the guidelines will be updated once a National Recovery Plan has been completed. We anticipate the Federal Minister to provide more guidance on reforming the guidelines in due course as discussions progress to agree the National Recovery Plan.

Strategic assessments that are underway in any of Queensland, New South Wales or the Australian Capital Territory may also be impacted if the new National Recovery Plan is agreed.

Any future approvals bilateral agreements cannot be entered into unless the Federal Minister is satisfied that any provision of the agreement related to a listed threatened species or community is not inconsistent with any recovery plan for the species.

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