Federal Register of Legislation - Australian Government

Primary content

Proclamations/Other as made
This instrument proclaims the Cod Grounds as a Commonwealth Reserve.
Administered by: Sustainability, Environment, Water, Population and Communities
Exempt from sunsetting by the Legislative Instruments Act 2003 s 54(2) item 15
Registered 27 May 2007
Tabling HistoryDate
Tabled HR29-May-2007
Tabled Senate12-Jun-2007
Date of repeal 17 Nov 2012
Repealed by Environment Protection and Biodiversity Conservation (Commonwealth Marine Reserves) Proclamation 2012

EXPLANATORY STATEMENT

 

 

(Issued by Authority of the Minister for the Environment and Water Resources)

 

Environment Protection and Biodiversity Conservation Act 1999

 

Proclamation to establish the Cod Grounds Commonwealth Marine Reserve

 

Subsection 344(1) of the Environment Protection and Biodiversity Conservation Act 1999 (the Act) provides that the Governor-General may, by Proclamation, declare an area of land or sea to be a Commonwealth reserve. The areas that may be declared include an area of sea in a Commonwealth marine area (as defined in section 24 of the Act).

 

Subsection 346(1) of the Act provides that the Proclamation must give the reserve a name, state the purposes for which the reserve is declared, state the depth of any land or seabed included in the reserve and assign the reserve to an International Union for the Conservation of Nature (IUCN) category.  The IUCN is an international expert body on protected area management and seeks to influence, encourage and assist societies throughout the world to conserve the integrity and diversity of nature and to ensure that any use of natural resources is equitable and ecologically sustainable.

 

The purpose of the Proclamation is to:

  • declare the area in the Tasman Sea known as the ‘Cod Grounds’ as a Commonwealth reserve;
  • specify that the seabed to a depth of 1000 metres is to be included in the reserve; and
  • assign the reserve to the IUCN category of ‘strict nature reserve’.

 

A map showing the location of the Commonwealth marine reserve is at Attachment A.

 

The east coast population of the grey nurse shark (Carcharius taurus) is listed as critically endangered under the Act. The latest scientific advice suggests that on the basis of current trends and realistic assumptions, the east coast population of grey nurse sharks will effectively be extinct (<50 females) in approximately 50 years. The population does not appear to have the capacity to recover unless protected from all human induced mortality.

 

The Recovery Plan for the Grey Nurse Shark in Australia identifies the Cod Grounds as a gathering site critical to the survival of the species. The site comprises three pinnacles, eighteen metres high, thirty metres apart and in water forty metres deep. This provides prime habitat for grey nurse sharks which are often observed in unusually large numbers just above the seabed, in or near the deep sandy-bottomed gutters between the pinnacles. The Cod Grounds also support prey species that are likely to be important to grey nurse sharks including jewfish, tailor, yellowtail kingfish, small sharks, squid and crustaceans.

 


The Cod Grounds also support the highest mean percentage of female sharks compared to all other gathering sites surveyed off the New South Wales coast. Population trends at the site appear to be consistent over time with numbers increasing around May, peaking between June and October and declining around March. As such, it is believed that the site provides conditions important to mating and feeding activities.

 

The pinnacles at the Cod Grounds are a focal point for local recreational and commercial fishing and the presence of grey nurse sharks makes the site an attraction for recreational SCUBA divers. In order to maximise the protection of the grey nurse shark, the Reserve would prohibit all forms of fishing.

 

Subsection 351(1) of the Act requires the Minister for the Environment and Water Resources to consider a report from the Director of National Parks (the Director) on the proposal before the Governor-General makes a Proclamation to declare a park or reserve. Pursuant to subsection 351(2) of the Act, when preparing the report, the Director of National Parks must publish a public notice stating the subject matter to be dealt with by the Proclamation and invite the public to comment on the same.  Under paragraph 351(2)(b), the Director must consider any comments made in response to the invitation for public comment. Subsection 351(5) provides for a period of at least 60 days after the notice is published for public comments to be made. The Director issued a notice on 10 December 2003 inviting comments on the present proposal and specifying 20 February 2004 as the last date for sending comments. 

The Marine Protected Areas and Displaced Fishing Policy introduced by the Government in January 2004 provides for structural adjustment for eligible commercial fishing businesses which may be affected by a Commonwealth reserve declaration.  The Department of the Environment and Water Resources (DEW) has been negotiating an adjustment plan that includes buyout offers for fishing business operators using the proposed Reserve which extended the timing of the declaration process.  Under the structural adjustment plan final offers cannot be made until the terms of fishing permit surrender are finalised with those involved and the New South Wales Department of Primary Industries. This process has been completed.  A Regulatory Impact Statement has been prepared and is included at Attachment B.

 

The Proclamation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Proclamation commenced on the day after the date it was registered on the Federal Register of Legislative Instruments.


Attachment A

 

 

                                                                                                                  


Attachment B

 

REGULATION IMPACT STATEMENT

 

COD GROUNDS COMMONWEALTH MARINE RESERVE

ORR Approval ID 2004/3703

 

Introduction

 

The area known as the ‘Cod Grounds’ lies in Commonwealth waters approximately four nautical miles off the coast of Laurieton, near Port Macquarie in northern New South Wales. The east coast population of grey nurse shark (Carcharius taurus) is listed as critically endangered under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).  The Recovery Plan for the Grey Nurse Shark (Carcharias taurus) in Australia indicates that aggregation sites and sites that support food species for the grey nurse shark are critical to sustaining the population and should be adequately protected in sanctuary zones.  The Recovery Plan also identifies the Cod Grounds as one of two aggregation sites in Commonwealth Waters critical to the survival of the grey nurse shark. The other site - Pimpernel Rock - is protected as Sanctuary Zone that excludes all forms of fishing, as part of the Solitary Islands Marine Reserve. The Cod Grounds is yet to be afforded any level of protection.

 

The Cod Grounds comprises three pinnacles approximately eighteen metres high. The pinnacles are thirty metres apart and are situated in water forty metres deep. This site provides prime habitat for grey nurse sharks, which are often observed in unusually large numbers just above the seabed, in or near the deep sandy-bottomed gutters between the pinnacles. The Cod Grounds supports several preferred grey nurse shark prey species, including jewfish, tailor, yellowtail kingfish, small sharks, squid and crustaceans. The site also supports the highest mean percentage of female sharks compared to all other sites surveyed off the coast of New South Wales. This site is believed to provide conditions important to mating and feeding activities.

 

The need for Regulation Impact Statements has been identified where compliance is required or expected by governments as a result of new or altered laws, regulations or quasi-regulations (such as codes of conduct), which affect business.

 

It is proposed to declare a Commonwealth reserve at the Cod Grounds under s344 of the EPBC Act to protect the grey nurse sharks that aggregate at this site. This would require compliance with a management regime designed to remove from the Reserve, any human activities which may pose a threat to the survival of the sharks.

 

The Problem

 

A range of human activities threatens the survival of the grey nurse shark. The Recovery Plan for the Grey Nurse Shark identifies a number of threats to the species, including commercial fishing, recreational fishing, ecotourism and the aquarium trade. Given that up to 75 sharks have been surveyed at the site at one time (out of an estimated population of 500) and the site contains the highest mean percentage of females compared to all sites surveyed off the NSW coast, protection to the sharks at this site is warranted. This is in addition to the existing legislation which applies to the entire Commonwealth marine area, rather than targeted specifically at the threats to the shark which exist at this particular site.

 

The extent to which each of these threats exists at the Cod Grounds is outlined below.

 

1. Fishing (Commercial and recreational)

Grey nurse sharks are primarily caught by demersal nets, droplines and other line fishing gear (Pollard et al., 1996). Under Part 13 Subdivision B of the EPBC Act it is illegal to take, trade, kill, injure, keep or move a grey nurse shark. However, they continue to be incidentally hooked and are often seen with hook and line trailing from their mouths, while others have been observed entangled in fishing gear (Environment Australia, 1997). NSW survey reports indicate that approximately 6% of grey nurse sharks sighted show signs of having had interactions with fishing gear (Otway and Parker, 2000). Hook wounds to grey nurse sharks can puncture the stomach, pericardial cavity and oesophagus causing infections and death. A hooked shark, upon release, may swim away seemingly unharmed, only to die several days later from internal bleeding or peritonitis. The stress of capture may also cause physiological changes including bradycardia, blood acidosis, hyperglycaemia and muscle rigidity (Environment Australia, 2002).

 

The Cod Grounds support many target species for both recreational and commercial fishers. These species are also preferred prey species for the grey nurse shark, thus increasing the chance of an interaction between fishing gear and grey nurse sharks at this site.

 

2. Ecotourism

The grey nurse shark has become a big attraction for SCUBA divers; however, poorly managed diving practices may impact on the species. NSW Fisheries with assistance from the Department and the dive industry have developed a Diver Code of Conduct for SCUBA diving with grey nurse sharks (Environment Australia, 2002). Future research is needed to determine whether the presence of divers affects the behaviour of grey nurse sharks (Environment Australia, 2002).

 

Options

To secure protection for grey nurse sharks aggregating at the Cod Grounds, the possible measures for protection available under the EPBC Act are outlined below.

 

Option 1 – Declaration of Cod Grounds Commonwealth Marine Reserve

A Commonwealth reserve can be declared and assigned to an IUCN category, defining how the reserve is to be managed. A management plan would be prepared for the reserve identifying what measures will be taken to protect the Cod Grounds and the resident grey nurse sharks. The plan would specify which activities are prohibited or regulated in the reserve. The declaration and management of a Commonwealth reserve would provide a secure legislative means of protection for the sharks at the Cod Grounds. A Commonwealth reserve would provide a management regime developed in consultation with stakeholders to protect the grey nurse sharks at the Cod Grounds from the impacts of a broad range of uses rather than targeting one or two individuals or activities.

 

Section 351 of the EPBC Act requires that before a Commonwealth reserve can be declared, a Notice Inviting Comments (NIC) must be published specifying, amongst other things, the purpose for which the reserve is to be declared and managed and the IUCN category to which the proposed reserve is to be assigned. A NIC was published on 10 December 2003 announcing that a Commonwealth reserve was proposed within a 1000 metre radius of the pinnacles at the Cod Grounds (see map at Appendix A); that the reserve would be known as the Cod Grounds Commonwealth Marine Reserve; and that the Reserve would be declared and managed with the objective of protecting the grey nurse shark population residing at the site from the key threats identified above. The proposed reserve would be assigned to IUCN category 1a (strict nature reserve), which amongst other things, should be managed to ensure that habitats, ecosystems and native species are preserved in as undisturbed state as possible. Consistent with this principle, all forms of fishing would be prohibited and other activities actively managed.

 

Option 2 – Inclusion of Cod Grounds on register of critical habitat

Habitat identified as critical to the survival of a listed threatened species can be registered as critical habitat. If a person were to knowingly damage the Cod Grounds site they would be guilty of an offence, however, specific actions that pose a threat to the sharks would not be regulated. While this would afford protection to the Cod Grounds site itself, its utility in protecting the grey nurse shark population from a range of potential impacts is limited.

 

Option 3 – Conservation order

Conservation orders are designed to control specific activities rather than protect general areas. A Conservation order is applied to an individual and would only be effective if a particular individual were responsible for impacting in the grey nurse shark population. In the instance of the Cod Grounds, no single user or activity is responsible for impacting on the grey nurse sharks. The objective of protecting the sharks at the Cod Grounds is to secure protection from a variety of potential uses and activities. Therefore, to secure effective protection of the grey nurse sharks at this site, any individual undertaking an activity of potential risk to the sharks would need to be subject to a conservation order. Given the range of potential activities at the Cod Grounds and the high number of users, this is impractical.

 

Option 4 – Conservation zone

A conservation zone provides interim protection for an area while it is being assessed for inclusion in a Commonwealth reserve. Surveys undertaken by NSW Fisheries have already provided compelling evidence that the site provides important habitat for the critically endangered east coast population of grey nurse sharks. Information contained in the Commonwealth Recovery Plan is sufficient to justify that the conservation values of the site are likely to contribute to the recovery of the species. A conservation zone is therefore an unnecessary step and the management measures that would result would only provide temporary protection.

 

Option 5 – Status quo

Existing legislation applies to the entire Commonwealth marine area and is not targeted at the particular threats to the sharks at the Cod Grounds site.

 


Impact analysis

Option 1 – Declaration of Cod Grounds Commonwealth Marine Reserve (IUCN category 1a)

An IUCN category 1a reserve would be declared and managed to ensure that habitats, ecosystems and native species necessary for the protection of the grey nurse shark are preserved in as undisturbed state as possible. Under this option, impacts on potential current and potential activities would be as follows:

 

1.      Commercial fishing

If a Commonwealth reserve assigned to IUCN category 1a is declared at the Cod Grounds, all forms of fishing would be prohibited within the reserve. In consultation with local fishing industry representatives, the Ocean Trap and Line Management Advisory Committee (NSW Fisheries) and the Australian Fisheries Management Authority (AFMA), six owner-operators of fishing businesses were identified who fished the Cod Grounds regularly and were dependent on them for a significant proportion of their income. Up to a further eight owner-operators fished the Cod Grounds for a small proportion (less than 10%) of their income. It is likely that these individuals, to varying degrees, would be impacted by the declaration of a Commonwealth Reserve. If this option were adopted, the Department of the Environment and Water Resources would work with the affected individuals to minimise the extent of the impact as far as
possible. In January 2004 the Australian Government announced a policy on Displaced Fishing and MPAs. The policy provides a framework within which specific structural adjustment programs for fishers and those dependant on fishing, can be developed if required. The Bureau of Rural Sciences conducted an assessment of the socio-economic impacts that the Cod Grounds Commonwealth Marine Reserve will have on commercial fishers and associated businesses. This assessment has been used to develop a structural adjustment program for the 6 fishers that regularly fished the Cod Grounds at the time of the December 2003 announcement of the intention to implement a marine reserve. The Department, with the assistance of NSW Fisheries, has implemented a process to buy-out the amount of effort that will be displaced by the declaration.  The Department has estimated that the buyout of five fishing businesses with a history of fishing the Cod Grounds would remove sufficient fishing effort.  The Department has negotiated the removal of five fishing businesses and is considering a sixth licence holder with history to ensure that there is no net gain in fishing effort with declaration of the marine reserve.  The Department has estimated the cost of the licence buy-out to be $1.25 million with an additional cost of up to $600,000 to assist local fishing cooperatives to adjust to the reduced throughput.

 

2.      Recreational fishing

If an IUCN category 1a reserve is declared at the Cod Grounds, all forms of fishing will be prohibited. The Cod Grounds is a well-known recreational fishing site and is often visited by local and non-local fishers. A small number of charter operators also operate within the Cod Grounds. Although recreational fishers would be disappointed at the closure of the Cod Grounds to fishing, the impact on recreational fishers and related businesses such as tackle shops is unlikely to be severe as fishing can continue in surrounding areas.

 


3.      Ecotourism

One commercial SCUBA business operates out of Laurieton and utilises between ten and fifteen sites in the local area. Dive groups visit the Cod Grounds up to eight times a month (which averages out annually at two visits per week). Trips out to the Cod Grounds are limited to one per day and the number of divers in each group is limited to a maximum of 13 by the carrying capacity of the vessel. Weather, currents and tourism demand influence the operator’s ability to visit this site. If an IUCN category 1a reserve is declared at the Cod Grounds, the potential impacts on SCUBA diving range from:

-         continued to access to the Cod Grounds under permit and strict permit conditions governing the interactions with the sharks (eg. temporal closures, restrictions on the number of visits, compulsory adherence to the Code of Conduct); to

-         prohibition of diving within the reserve.

 

4. Minerals exploration and development

Mineral exploration and development could not be conducted in accordance with the objectives of a category 1a reserve designed to protect the grey nurse sharks, and would therefore be prohibited. There is currently no indication of potential prospectivity for mineral extraction at this site.

 

Option 2 – Inclusion of Cod Grounds on register of critical habitat

Registering the Cod Grounds as critical habitat is unlikely to impact on any users of the reserve as any activity that did not harm the site itself would not be restricted. However, implementing this option would not adequately protect the grey nurse sharks.

 

Option 3 – Conservation order

If conservation orders were implemented any individual undertaking an activity deemed to be a potential threat to the grey nurse sharks would have their activities restricted or prohibited. 

 

Option 4 – Conservation zone

A conservation zone could be proclaimed while the Cod Grounds were being assessed for inclusion as a possible Commonwealth reserve. All potential threats to the shark would be removed from the Cod Grounds until such time as a Commonwealth reserve was declared or the conservation order was revoked. The impacts would therefore be the same as those associated with Option 1 (Commonwealth reserve). This is an interim measure and would not provide the long-term protection necessary for the species to recover.

 

Option 5 – Status quo

Under Part 13 Subdivision B of the EPBC Act it is illegal to take, trade, kill, injure, keep or move a grey nurse shark. However, they continue to be incidentally hooked and are often seen with hook and line trailing from their mouths, while others have been observed entangled in fishing gear (Environment Australia, 1997). NSW survey reports indicate that approximately 6% of grey nurse sharks sighted show signs of having had interactions with fishing gear (Otway and Parker, 2000). Adopting no further management regime at the Cod Grounds would not impact fishing activities. It is highly likely, however, that the population of grey nurse sharks would continue to decline unless there is a total prohibition of those activities that pose a threat to the species at this site.

 

Consultation

In March 2003 a Discussion Paper was released inviting people to comment on how the sharks at the Cod Grounds should be protected. The Discussion Paper outlined the available options for protection that are discussed above and invited people to suggest further options. One hundred and eighty-five submissions were received in response to the Discussion Paper.

 

Following analysis of these submissions, a Notice Inviting Comment on the proposed Cod Grounds Commonwealth Marine Reserve provided for a further period of 60 days to allow comments on the proposal. Seventy-four submissions were received in response to the Notice Inviting Comment.

 

With respect to each of the identified threats, analysis of the submissions received in response to the Discussion Paper and the Notice Inviting Comment revealed the following key issues:

 

1. Fishing (Commercial and recreational)

a)      Conservation groups requested that the Cod Grounds be declared an IUCN category 1a reserve and that all fishing be prohibited within a 1500 metre radius.

b)      Commercial fishers acknowledge that some forms of fishing pose a significant threat the grey nurse sharks and proposed some restriction on fishing method, such as prohibition of stainless steel hooks and wire traces, which remain permanently lodged in the mouth of the shark.

c)      Recreational fishers regularly fish the Cod Grounds and proposed that all forms of fishing other than surface trolling with an artificial lure should be prohibited.

d)      Spearfishers do not regularly use the Cod Grounds, but believe that spearing does not pose a threat to the grey nurse and should not be prohibited.

e)      If commercial fishers that currently utilise the Cod Grounds are displaced from the site, some form of structural adjustment assistance should be offered to them.

f)       The NSW Government has implemented regulation in areas of grey nurse shark critical habitat in State waters. These regulations allow some forms of fishing and prohibit or restrict others. Compliance and enforcement under these regulations is impractical and have subsequently proven to be ineffective at protecting the grey nurse shark from incidental capture or hook injuries. NSW will review its regulations with a view to prohibit all forms of fishing in areas of grey nurse shark critical habitat.

 

2. Ecotourism

a)      SCUBA divers believe that diving should be allowed to continue in accordance with strict conditions to ensure potential impacts on the grey nurse sharks are minimised.

b)      SCUBA divers play an important role in monitoring the species.

c)      Fishers believe that it is inequitable to prohibit fishing but allow diving to continue.

 

Conclusion and recommended option

Given the critically endangered status of the grey nurse shark and the importance of the Cod Grounds site to its prospects of survival on the east coast of Australia, threats to the grey nurse should be removed from the vicinity of the Cod Grounds. To ensure that subsequent management is equitable and effective, it is important that compliance and enforcement is practicable. This must be facilitated by simple prescriptions that are readily understood and easily complied with by users of the area and are able to be effectively policed by enforcement agencies.

 

The Director recommends that the Cod Grounds Marine Reserve, assigned to IUCN category 1a (strict nature reserve) be declared within the circumference of a circle of radius 1000 metres the centre of which is at 152°54’ 37”E, 31°40’52”S. 

 

Implementation and review

If a Commonwealth reserve is declared at the Cod Grounds a management plan will be developed for the reserve in consultation with stakeholders. The declaration process and the process for making a management plan are at Appendix B.

 

 


Appendix A

 

 


Appendix B

 

Declaration process

The process leading to the declaration of a Commonwealth reserve under the EPBC Act is:

 

1. The Director of National Parks publishes a notice inviting the public to comment on the proposal to declare a Commonwealth reserve over the area, allowing a minimum period of 60 days for comments. The notice includes a statement of the proposed name of the reserve, the proposed boundaries of the reserve and any zones within the reserve, the purpose for which the reserve is to be declared, the IUCN category that the reserve (and any zones) will be assigned to, and the purposes for which it is intended to manage and use the reserve. The Director published the notice for the Cod Grounds on 10 December 2003.

 

2. Any native title holders, registered native title claimants and native title representative bodies for the area are notified of the proposed declaration, and given an opportunity to comment, in accordance with the requirements of the Native Title Act 1993.

 

3. The Director of National Parks provides the Minister for the Environment and Heritage with a report on the Commonwealth reserve proposal. The report must include any comments received and the Director’s views on the comments.

 

4. If necessary a Regulation Impact Statement examining any impacts that declaration of the proposed Commonwealth reserve would have on business is prepared and provided to the Office of Regulation Review.

 

5. The Minister for the Environment and Heritage considers the report from the Director of National Parks.

 

6. The Minister decides not to proceed

OR

The Minister is satisfied a reserve should be established and the Governor-General is advised accordingly.

 

7. The Governor-General makes a Proclamation declaring the area to be a Commonwealth reserve. The Proclamation: names the reserve; states the purposes for which it is declared; states the depth of any seabed included in the reserve; and, assigns the reserve to an IUCN category.

 

8. The Proclamation is registered on the Federal Register of Legislative Instruments and tabled in both Houses of the Australian Parliament.
Process for making a management plan

 

1. The Director of National Parks publishes a notice inviting the public to comment on the proposal to prepare a draft management plan within a minimum period of 30 days.

 

2. The Director of National Parks prepares the draft management plan.

 

3. The Director of National Parks publishes a notice inviting the public to comment on the draft management plan within a minimum period of 30 days. Any native title holders, registered native title claimants and native title representative bodies for the area are also notified and given an opportunity to comment, in accordance with the requirements of the Native Title Act 1993. The Director of National Parks considers any comments and may alter the plan accordingly.

 

4. The Director of National Parks gives the draft management plan to the Minister for the Environment and Heritage, with the comments on the draft plan and the views of the Director on those comments.

 

5. If necessary a Regulation Impact statement examining any impacts the management plan would have on business is prepared and provided to the Office of Regulation Review.

 

6. The Minister considers the draft management plan and the Director’s views and when satisfied approves it.

 

7. The Plan is registered on the Federal Register of Legislative Instruments.

 

8. Management plans must be tabled in the Commonwealth Parliament and may be disallowed by either the House of Representatives or the Senate. A notice of motion to disallow a management plan must be introduced within 15 sitting days. The plan then comes into operation for a period of 10 years.
References

 

Environment Australia. 1997. Report to the Minister – Public Nomination to the Endangered Species Protection Act 1992: Great White Shark and Grey Nurse Shark – recommended by the Endangered Species Scientific Subcommittee in the Threatened Species and Communities Section, Environment Australia, Canberra.

 

Environment Australia. 2002. Recovery Plan for the Grey Nurse Shark (Caracharias taurus) in Australia. Environment Australia. Canberra.

 

Pollard, D.A., Lincoln Smith, M.P., and Smith, A.K. 1996. The biology and conservation status of the Grey Nurse Shark (Caracharias taurus Rafinesque 1810) in New South Wales, Australia. Aquatic Conservation: Marine and Freshwater Ecosystems 6:1-20.

 

Otway, N.M. and Parker, P.C. 2000. The biology, ecology, distribution, abundance and identification of marine protected areas for the conservation of threatened Grey Nurse Sharks in south east Australia waters. NSW Fisheries Office of Conservation, Port Stephens, New South Wales, Australia.