Analysis of the Commonwealth Environmental
Protection and Biodiversity Act 1999 in relation
to Western Australian maritime heritage sites
Omeo wreck, Cockburn Sound Photo: P. Baker, WA Maritime Museum
Department of Maritime Archaeology
Western Australian Maritime Museum
Report—Department of Maritime Archaeology, Western Australian
Maritime Museum No. 203
Table of Contents
3.0 Environmental Protection and Biodiversity Conservation Act 1999 and its
role in the protection of national heritage places
Legal status definitions of heritage sites on the Commonwealth Heritage List and
Register of National Estate.
Cockburn Sound shipwrecks listed on Register of National Estate currently under
threat from industrial and development activity.
Relevant sections of the EPBCA as it applies to Commonwealth historic shipwrecks.
Actions and exceptions in relation to matters of national environmental significance.
The Maritime Archaeology Department of the Western Australian Maritime Museum
has long experience in the day-to-day management of Commonwealth historic
shipwreck sites almost entirely on the basis of the Commonwealth Historic
Shipwrecks Act 1976 (HSA).
However the Commonwealth Department of Environment and Heritage has advised
that the Commonwealth Environmental Protection and Biodiversity Protection Act
1999 (EPBCA) also impacts on the way historic Commonwealth maritime heritage
sites are managed in terms of significant environmental and heritage value impacts.
This analysis assesses the role of the EPBCA in terms of significant impacts to
shipwrecks and other maritime heritage sites of national heritage significance. It
concludes that the EPBCA should be applied in cases where there are potentially
significant environmental impacts, which in turn may significantly affect the heritage
values of Western Australian Commonwealth registered heritage sites.
In relation to the proposed Coogee Bay marina development issues on 13 September
2005 Ms Rhonda Smith of the Commonwealth Department of Environment and
Heritage (DEH) suggested to Dr M. McCarthy, Acting Head of Department of
Maritime Archaeology that the WA Maritime Museum should be considering the
Environmental Protection and Biodiversity Conservation Act 1999 (EPBCA) in
relation to the Cockburn Sound wrecks James, Diana and Omeo. Dr M. McCarthy
subsequently requested the following analysis of the relevance and possible
application of the EPBCA to WA maritime sites generally.
This study is intended to provide preliminary internal advice to assess how the
EPBCA can or may be applied to WA maritime heritage sites as suggested by DEH.
3.0 Environmental Protection and Biodiversity Conservation Act 1999 (EPBCA)
and its role in the protection of national heritage places
The EPBCA was brought in to serve as the Commonwealth’s administrative and
enforcement legislation for the protection of ‘Australia’s matters of national
environmental significance’. In accessing the Department of Environment and
Heritage’s website (http://www.deh.gov.au.html) the following text in italics appears
The matters of national environmental significance are:
*World Heritage properties,
*Ramsar wetlands of international importance,
*listed threatened species and communities,
*migratory species protected under international agreements,
*nuclear actions, and
*the Commonwealth marine environment.
The EPBCA also applies to all 13,000 sites listed on the Commonwealth Register of
National Estate, which includes all registered Commonwealth historic shipwrecks.
Any action that is likely to have a significant impact on a World Heritage property or a
national heritage place must be referred to the Commonwealth Environment Minister
for further consideration.
As well as World Heritage listed sites in Australia, national heritage places include
sites on the Commonwealth Heritage List, sites on the National Heritage List of places
of outstanding heritage value, and sites on the Register of National Estate. For the
purposes of the EPBCA, sites nominated for any of the above lists or Register are
included until their legal status is ascertained (see Appendix A).
Commonwealth Heritage List
Western Australian maritime areas on the Commonwealth Heritage list are Mermaid
Reef and Ningaloo Marine Area. Shipwreck sites in these areas are not included in the
extent of nomination, but are covered as Commonwealth historic shipwrecks on the
Register of National Estate and are afforded protection by the EPBCA (see below).
National Heritage List
The National Heritage List includes Indigenous, historic and natural heritage sites of
outstanding significance to the nation.
At present there are only 15 sites on the National Heritage List and none of these are
are marine areas, World Heritage listed sites, historic shipwrecks or maritime
Commonwealth historic shipwrecks are included on the National Heritage List
database but only have ‘indicative’ legal status (see Appendix A). This means that
‘data provided to or obtained by the Heritage Division has been entered into the
database. However, a formal nomination has not been made and the Council has not
received the data for assessment. The data in the place does not necessarily represent
the views of the Council or the Minister.’
However Commonwealth historic shipwrecks are listed on the Register of National
Estate and are afforded protection by the EPBCA (see below).
Register of National Estate
All registered Commonwealth historic shipwrecks appear on the Register of National
Estate. The DEH website states that:
Places on the Register are protected under the EPBC Act by the same provisions
that protect Commonwealth heritage places [italics in bold for emphasis]. These
provisions require that actions:
*taken on Commonwealth land which are likely to have a significant impact on
the environment will require the approval of the Minister
*taken outside Commonwealth land which are likely to have a significant impact
on the environment on Commonwealth land, will require the approval of the
*taken by the Australian Government or its agencies which are likely to have a
significant impact on the environment anywhere, will require approval by the
As the definition of 'environment' in the EPBC Act includes the heritage
values of places, these provisions of the Act in the context of their operation,
also provide protection for the values of places on the Register, insofar as these
places are on Commonwealth land or subject to Commonwealth actions [italics
in bold for emphasis].’
World Heritage listed sites
Australia has 15 World Heritage properties including Kakadu, Uluru, the Great Barrier
Reef, the Blue Mountains and Shark Bay in Western Australia. Aboriginal cultural
heritage values are recognized as part of the listings of some World Heritage sites (eg;
Uluru and Kakadu). The only World Heritage site listed solely for its Australian/
European/ World cultural heritage significance (and the only Australian site thus far not
nominated for its natural heritage values) is the Royal Exhibition Building in Carlton
Gardens, Melbourne listed in 2004.
There are no conceptual or juridicial reasons why underwater cultural heritage cannot
be inscribed on the World Heritage List (Jeffery (2004): 115) or be included in extents
of registration for sites of natural or environmental significance. Currently the Sri
Lankan Government is proposing an extension to the Galle Fort listing to include the
foreshore adjacent to Galle Fort and waters of Galle Harbour, including 16 historic
shipwrecks and ten other significant cultural sites (UNESCO (2002): 8; Jeffery (2004):
In terms of maritime heritage sites that fall within the Shark Bay World Heritage area
their values are currently not recognised by the World Heritage listing (UNESCO
(2003): 294). Any maritime heritage sites would have to be added to the extent of
nomination. Significant maritime heritage sites that fall within the Shark Bay World
Heritage Area are the Zuytdorp (1712) shipwreck maritime and terrestrial sites, De
Vlamingh, Hamelin and Hartog exploration plate sites, the French annexation site and
the Perseverant (1841) shipwreck sites. There is clearly a case for these significant
early world/ Indian Ocean/ Australian maritime exploration and wreck sites to be
included in the extent of World Heritage listing as thematically linked components of
the Shark Bay maritime cultural heritage landscape. For the moment any nomination
of these maritime heritage values remains a distant possibility.
An application to cause site interference or disturbance to any Commonwealth
shipwreck, maritime heritage site or its environment in Commonwealth waters would
usually require in the first instance a permit from the Minister under the
Commonwealth Historic Shipwrecks Act 1976 (HSA 1976). If an activity impacting
upon an historic shipwreck has a Commonwealth Historic Shipwrecks Act 1976
permit then it does not require a permit under the EPBC Act, as the Minister has
already approved this action.
However it is clear that for any significant disturbance to the environment likely to
affect the heritage values of a Commonwealth historic shipwrecks listed on the
Register of National Estate and/or in Commonwealth marine waters, a permit under
the EPBCA is required.
In the example of the development in the area of the Cockburn Sound wrecks, if this
action was authorised prior to the EPBCA or if it is an action authorised under a
relevant Commonwealth approved State management plan, bilateral agreement or
Commonwealth management plan, an application to have the Minister consider the
EPBCA would not proceed any further (unless the activity has enlarged, expanded or
However if the development has not already been authorised under the HSA or
EPBCA, the proponent or developer would have to apply to the Minister for a permit
under either the HSA or the EPBCA if it were to be shown that the nature and
magnitude of an impact were deemed to significantly impact on the heritage values of a
As the Omeo, James and Diana are all historic shipwrecks protected by the
Commonwealth Historic Shipwrecks Act 1976 and registered on the Register of
National Estate (see APPENDIX B), an assessment of the significance of any
environmental impact created by the Coogee Bay development on their heritage values
must be undertaken. The environmental impact of constructing a groyne and removing
or adding sand can be foreseen to have a potentially negative impact on the sites.
While burial is usually seen as a positive measure to aid the long-term preservation of
shipwrecks, if a statement of significance for a shipwreck included recreational or
aesthetic significance (ie: where burial might be considered as a negative impact) or
scientific values requiring stable long-term experimental/ monitoring conditions the
extent of any impact upon these values would have to be assessed.
While a permit application for such activity could be assessed by the Minister under
the HSA it is evident that the Maritime Archaeology Department of the WA Maritime
Museum should refer significant environmental impact activity to DEH for assessment
under the EPBCA. The WA Maritime Museum would still retain an expertise/
advisory capacity to DEH/ Commonwealth Minister but wider significant
environmental impacts (that may be extra-site affecting intra-site values) can be
It actually makes more sense where large-scale environmental disturbance is impacting,
or has the potential to impact, on wrecks to invoke the EPBCA. Another case in
point is that of the James Matthews where nearby industrial activity carried out in
Commonwealth waters by Cockburn Cement is impacting on the site of the James
Matthews. If the existing pre-1999 lawful activity of lime extraction can be said to
have enlarged, expanded or intensified since the creation of the EPBCA in 1999 (eg; by
the introduction of larger dredges or enlarged suction holes in the vicinity of the James
Matthews site) there are firm grounds to have this activity assessed by DEH under the
It is also noted that the penalties for offences under the EPBCA are ten times more
severe than for similar offences under the HSA. For unauthorized or illegal disturbance
to a site under the HSA the penalty is not to exceed 5 years jail or $10,000, or both in
the case of an individual, and not to exceed $50,000 for a body corporate. (HSA 1976
Under the EPBCA the penalties for having a significant impact on the values of a
National Heritage place are up to 5000 Penalty Units for an individual ($50,000) and
50,000 Penalty Units ($500,000) for a corporation. (EPBCA 1999 Section 15B)
1. Any activity that is likely to have a significant negative impact on the
environmental or heritage values of a Commonwealth heritage site or marine
area requires a permit from the Commonwealth Minister for Environment
and Heritage under the EPBCA.
2. All registered Commonwealth historic shipwreck sites and in situ relics
associated with historic ships in Commonwealth waters are covered by the
EPBCA as they are listed on the Register of National Estate.
3. It is evident that the Director (CEO) WA Museum, the Commonwealth
Historic Shipwreck Delegate and Maritime Archaeology Department should
include reference to the EPBCA in any assessment of impacts on the heritage
values of Commonwealth historic shipwreck sites.
4. The WA Museum as the State agency with administrative responsibility for
Commonwealth historic shipwrecks can refer proposals to the
Commonwealth Minister to take action (EPBCA, Chapter 4, Part 7, Division
1. That the EPBCA Act should be applied in cases where there are potentially
significant environmental impacts, that in turn may significantly affect the
heritage values of any Western Australian Commonwealth registered heritage
sites. Referral to DEH for action under the EPBCA is the recommended course
2. That the Coogee Bay development affecting the Omeo, James and Diana
wrecks and Cockburn Cement industrial activity affecting the James Matthews
is assessed for possible referral to DEH under the EPBCA.
Environmental Protection and Biodiversity Conservation Act 1999, Commonwealth
Government of Australia, Act No. 91 of 1999 as amended, incorporating amendments
up to Act No. 88 of 2003, Australian Government Printer, Canberra.
Historic Shipwrecks Act 1976 , Commonwealth Government of Australia, Act No.
190 as amended, prepared 24 May 2001 taking into account amendments up to Act
No. 15 of 2001, Australian Government Printer, Canberra.
Kenderdine, S., 1995, Shipwrecks 1656-1942: A guide to historic wreck sites of Perth,
Department of Maritime Archaeology, Western Australian Maritime Museum,
Jeffery, B., April 2004, World War II underwater cultural heritage sites in Truk
Lagoon: considering a case for world heritage listing, The International Journal for
Nautical Archaeology, Vol. 33 No. 1, 106-121.
UNESCO, December 2002, Periodic reporting exercise on the application of the World
Heritage convention, Section II State of conservation of specific world heritage
properties, Old town of Galle and its fortifications, Archaeological Survey Department
and Central Cultural Fund, Colombo, Sri Lanka.
UNESCO, 2003, State of conservation of the world heritage properties in the Asia
Pacific region: Summaries of Periodic Reports 2003 by property, Section II
Shark Bay, Western Australia, Environment Australia and Department of
Conservation and Land Management (Western Australia).
Department of Environment and Heritage (DEH) website:
http://www.deh.gov.au/epbc/policy/administrative/index.html accessed 13/9/05
http://www.deh.gov.au/epbc/about/heritage.html accessed 13/9/05
http://www.deh.gov.au/heritage/publications/factsheets/fact16.html accessed 14/9/05
http://www.deh.gov.au/heritage/commonwealth/index.html accessed 13/9/05
http://www.deh.gov.au/heritage/ahdb/legalstatus.html accessed 14/9/05
Legal status definitions of heritage sites on the Commonwealth Heritage List
and Register of National Estate
(Source: http://www.deh.gov.au/heritage/ahdb/legalstatus.html accessed 14/9/05)
Commonwealth Heritage List
Data provided to or obtained by the Heritage Division has been entered into the
database. However, a formal nomination has not been made and the Council has not
received the data for assessment.
The data in the place does not necessarily represent the views of the Council or the
The Minister's delegate has received a nomination on the approved form and carried
out an initial assessment on data adequacy. The nomination either will be or has been
referred to the Council for assessment.
The data will generally be that provided by the nominator, but will be updated during
The significance or values attributed to the place are the views of the nominator and
not necessarily those of either the Council or the Minister.
The Minister has been satisfied that the place has one or more Commonwealth
Heritage values and that any one or more of those values is under threat. He or she has
by instrument published in the Gazette, included the place in the Commonwealth
Heritage List. Such places are subsequently referred to the Council for assessment.
The Council has completed the assessment of the place referred to it by the Minister.
The Council has sent an assessment to the Minister and the Minister has entered the
place in the Commonwealth Heritage List. He or she does this by instrument
published in the Gazette.
Within listed place — any values given in record for listed place
This place is within the larger area entered in the Commonwealth Heritage List. Whilst
the place has not been specifically assessed, it may have heritage values. Such values
may be identified in the record for the encompassing area.
Place not included
The Council has sent an assessment to the Minister and the Minister has decided not
to include the place in the Commonwealth Heritage List. This decision will appear on
the Internet with the reasons for the decision.
Either the Minister
* has removed the place from the CHL as the place is no longer in a
Commonwealth area or, if the place is outside the Australian jurisdiction, the place is
no longer owned or leased by the Commonwealth or a Commonwealth Agency; or
* has removed the place because he or she is satisfied that the place no longer has
any Commonwealth Heritage values; or
* has decided that it is necessary to do so in the interests of Australia's defence
The place has been destroyed before being assessed or listed.
At some stage in the assessment process, but prior to listing, the place ceases to be in
a Commonwealth area, or, if outside the Australian jurisdiction, is no longer owned or
leased by the Commonwealth.
Register of the National Estate
Data provided to or obtained by the Australian Heritage Council or the former
Australian Heritage Commission has been entered into the database and the place is at
some stage in the assessment process. A decision on whether the place should be
entered in the Register has not been made.
The former Australian Heritage Commission has assessed the values of this place and
decided that it should be entered in the Register. The place had not reached the Interim
List stage by 1 January 2004 when the Commission was abolished.
The place was in the Interim List at 1 January 2004 when the Australian Heritage
Commission was abolished. The place had been publicly proposed for entry in the
Register. Such places will need to undergo the application of the new procedures in
the Australian Heritage Council Act 2003, if they are to be entered in the Register.
The place is in the Register of the National Estate. Although some places may be
legally registered because they are within a larger registered area they may not
necessarily possess intrinsic significance.
Removed from Register
The place has been removed from the Register
The place has been destroyed before being assessed or listed.
The Australian Heritage Council or the former Australian Heritage Commission has
assessed the place and found that it does not warrant entry in the Register in its own
The place has another record in the database.
Identified through state processes
The place is entered in a state/territory heritage register. The Australian Heritage
Commission had formally recognised the standards of historic assessment of the
relevant state or territory heritage body and acknowledged that the place has National
Estate historic values.
Cockburn Sound shipwrecks listed on Register of National Estate currently
under threat from industrial and development activity
The James’ legal status is registered on the Register of National Estate (listed
Place ID: 10440
Place File No: 5/12/007/0019
The statement of significance for the James states that:
Technical and scientific
Analysis of the design of the carronade from the James wrecksite may help in
understanding the manufacturing processes of these ordinances. Conservation of the
James’s carronade has resulted in new methods of treating salt-impregnated iron
artifacts. The in-situ analysis of the third remaining gun can also provide useful
information. (Kenderdine: 94)
The Omeo’s legal status is registered on the Register of National Estate (listed
Place ID: 10435
Place File No: 5/12/007/0014
The statement of significance for the Omeo states that:
The vessel had a noteable association with the Overland Telegraph.
Through the examination of the wreck site information on the construction of the iron
plate clinker hull and rare hybrid rig type, the jackass barque can be obtained. Ship’s
fittings that remain could also give evidence in the development of shipbuilding
The site has been the subject of a conservation assessment and has the potential to
yield data on the deterioration and preservation of iron hulls situated in intertidal
zones subject to surge and tidal movement, and particularly at the air-water interface.
The Diana’s legal status is registered on the Register of National Estate (listed
Place ID: 10430
Place File No: 5/12/007/0009
Vessel wrecked on 16 July 1878, after parting mooring cables during a storm. Good
example of typical three masted schooner employed in coastal trade. (Register of
James Matthews shipwreck
The James Matthews legal status is registered on the Register of National Estate
Place ID: 10429
Place File No: 5/12/007/0008
Statement of Significance:
Following the stipulation of the 1831 Bill presented to the British Parliament, all
slaving vessels were broken up following their capture. The site of the James
Matthews is of historical significance as the unique remains of a vessel involved in the
slave trade. It is the only known slaver to have survived [NB: this statement is
ambiguous as the shipwreck Schah (1837) in Victoria was also a captured slaver so
this statement needs to be updated to state ‘only known slaver to have survived as a
shipwreck with relatively intact hull remains’]. It was carrying a cargo of goods for
the development of the De Burgh property near Moore River. The vessel’s contents
are of significance in as much as they reflect the types of goods imported by the early
colonists. Also, the wrecksite represents the hazards associated with the approaches
to the Port of Fremantle and the use of Owen anchorage, especially during adverse
The hull timbers of the James Matthews are in a good state of preservation. Vessels
built for the slave trade needed to meet special constructional requirements, such as
shallow draft, fine lines for speed, and various internal fittings for the containment of
slaves. Existing plans of slave ships are extremely scarce and the James Matthews’
hull offers the only detailed source of information on this type of vessel [NB: the
wrecksite of the Schah is badly broken up and therefore this statement remains true].
The comparative analysis of artifacts from the site with other colonial collections of
cargo goods, ship’s fittings and personal items could provide a reinterpretation of
early settlement through examination of the origin, nature, value, quantity and quality
of material. (Kenderdine: 105)
‘Only known relatively intact remains of a vessel used as a slaver in the Atlantic.
Originally a French built snow brig Portugese slaver, owned by Francisco Felis da
Souza. Captured in 1837, with 433 slaves aboard, near Dominica. Usually slavers
were destroyed but this was re-registered. It left London in 1841 for Fremantle with a
cargo of slates, farm implements and general cargo.’ (Australian Heritage Database)
Some of the relevant sections of the EPBCA that apply to Commonwealth heritage
sites, including registered Commonwealth historic shipwrecks are:
Chapter 2 – Protecting the environment
Part 3: Requirements for environmental approvals
Division 1 Requirements relating to matters of national environmental
Subdivision 1 National environmental significance
Subdivision AA National heritage
15B Requirements for approval
25A Actions to be taken covered by Division
Part 4 Cases in which environmental approvals are not needed
Division 2 – Actions covered by Ministerial declarations
34BA Decisions relating to National Heritage places
43A Actions with prior authorization
43B Actions which are lawful continuations of use of land
Chapter 4 – Environmental assessments and approvals
Part 6 Environmental assessments and approvals
Part 7 Deciding whether approval of actions is needed
Division 1 Referral of proposals to take action
69 State or territory may refer proposal to Minister
Part 9 Approvals, timelines etc
Actions and exceptions in relation to matters of national environmental
According to the Department of Environment and Heritage website:
‘Under the Environment Protection and Biodiversity Conservation Act 1999 (the Act),
an action will require approval from the Environment Minister if:
* the action has, will have, or is likely to have a significant impact on a matter of
national environmental significance; and
* the action is not subject to one of the exceptions identified below.
In order to decide whether an action is likely to have a significant impact, it is
necessary to take into account the nature and magnitude of potential impacts.
In determining the nature and magnitude of an action's impact, it is important to
consider matters such as:
* all on-site and off-site impacts,
* all direct and indirect impacts,
* the frequency and duration of the action,
* the total impact which can be attributed to that action over the entire geographic area
affected, and over time,
* the sensitivity of the receiving environment, and
* the degree of confidence with which the impacts of the action are known and
The Act provides that the Minister must, in deciding whether an action is likely to have
a significant impact on a matter of national environmental significance, take account of
the precautionary principle. Accordingly, the fact that there is a lack of scientific
certainty about the potential impacts of an action will not itself justify a decision that the
action is not likely to have a significant impact on a matter of national environmental
The Act provides that in deciding whether the action is a controlled action, the Minister
must not consider any beneficial impacts that the action has, will have or is likely to
have. Therefore, activities, which will have only beneficial impacts, will not be captured
by the Act.
An action does not require approval from the Environment Minister under the Act if:
• the action is approved under, and taken in accordance with, a State
management plan that is accredited by the Commonwealth for the purposes of
a bilateral agreement (see section 46 of the Act), or
• the action is approved under, and taken in accordance with, a
Commonwealth management plan that is accredited by the Environment
Minister for the purposes of a Ministerial declaration (see section 33 of the
• the action is a forestry operation taken in a Regional Forest Agreement region
(see Part 4, Division 2 of the Act), or
• the action is taken in the Great Barrier Reef Marine Park and is authorised
by certain instruments issued under the Great Barrier Marine Park Act 1975
(see section 43 of the Act), or
• the action has been authorised by a Government decision on which the
Minister's advice has been sought (see section 160 of the Act).
In addition, an approval is not required for an action if:
• the action was authorised by the Commonwealth, a State or a Territory
prior to the EPBC Act commencing (16 July 2000), and
• at the time the EPBC Act commences, no further authorisation is
required to allow the action to be lawfully taken.
Finally, the EPBC Act provides that approval is not required for an action that is a
lawful continuation of a use of land, sea or seabed that was occurring immediately
before the commencement of the Act. (This exception does not apply to an enlargement,
intensification or expansion of an existing use.)’