Environment Law in the Northern Territory

Classifying the conservation status of animal and plant species

Biodiversity conservation laws in the Northern Territory and at the Commonwealth level both have processes for classifying species according to their conservation status.  The classification that is given to a species affects how decision-makers will consider the impacts on that species, when making decisions. The classification process (often called a “listing” process) enables public participation in defining the types of species that should be protected and how at risk those species are.

Classifying species under the Territory Parks and Wildlife Conservation Act

Under the Territory Parks and Wildlife Conservation Act the Minister for Parks and Wildlife has two legal obligations with regard to classifying species:

  1. to identify the conservation status of each of the species of wildlife in the Northern Territory; and
  2. to classify those species according to their conservation status.[1]

There are different types of classification:

  • The Northern Territory has adopted the IUCN (International Union for the Conservation of Nature) classification system.  The available conservation classifications are:
    • Extinct
    • Extinct in the Wild
    • Critically Endangered
    • Endangered
    • Vulnerable
    • Near threatened
    • Data deficient
    • Least concern
    • Not evaluated

The Flora and Fauna Division of the Department of Land Resource Management website has information about the classification of species in the Northern Territory.  The Department maintains a list of threatened species (which are species that are in the Extinct, Extinct in the Wild, Critically Endangered, Endangered and Vulnerable Categories).  This List is reviewed every 4-5 years, and the most recent review was in 2010-12, resulting in the current List.

  • Threatened wildlife – this means species that are classified under Northern Territory law as Extinct in the Wild, Critically Endangered, Endangered or Vulnerable.  The Minister for Parks and Wildlife has an obligation to identify which type of species classifications are considered to be “threatened wildlife” for the purposes of the Territory Parks and Wildlife Conservation Act.[2]  All species of threatened wildlife, whether identified by classification or species, are automatically classed as protected wildlife (see below).[3]  The penalties for harming threatened wildlife are greater than those for harming protected wildlife.[4]
  • Protected wildlife – this is a classification under the Territory Parks and Wildlife Conservation Act that means all wildlife that is in a Territory park, reserve, sanctuary, wilderness zone or area of essential habitat[5] and any vertebrate that is indigenous to Australia, irrespective of where it lives (i.e. native animals that are vertebrates are classed as protected wildlife and do not need to live in a Territory park to be protected)[6]. Wildlife has a wide meaning and includes:[7]
    1. animals and plants that are indigenous to Australia, on land, in the coastal sea, or the seabed or sub-soil beneath the sea;
    2. migratory animals that periodically or occasionally visit Australia; and
    3. animals introduced by Aboriginals before 1788.

Animals means vertebrates, invertebrates, one-celled living organisms, offspring such as eggs, larvae and pupae, parts of animals including secretions, and chemicals or other extracts from an animal.[8]

Protected wildlife” can only be lawfully treated in certain ways.  There are special legal requirements about taking, interfering with, or killing protected wildlife. [9]  In particular, there are criminal offences for taking or interfering with protected wildlife without legal approval.[10]  For more information, please read our Fact Sheet on Offences for harming, interfering with or killing animals and plants.

Classifying species under the Environment Protection and Biodiversity Conservation Act 1999

The Environment Protection and Biodiversity Conservation Act 1999 also has several different categories for classification of threatened species and communities.  These are:[11]

  • Species that are extinct in the wild[12] – A native species is eligible to be included in the extinct category at a particular time if, at that time, there is no reasonable doubt that the last member of the species has died.[13]  A native species is eligible to be included in the extinct in the wild category at a particular time if, at that time it is known only to survive in cultivation, in captivity or as a naturalised population well outside its past range or it has not been recorded in its known and/or expected habitat, at appropriate seasons, anywhere in its past range, despite exhaustive surveys over a time frame appropriate to its life cycle and form.[14]
  • Critically endangered species[15]– A native species is eligible to be included in the critically endangered category at a particular time if, at that time, it is facing an extremely high risk of extinction in the wild in the immediate future, as determined in accordance with the prescribed criteria.
  • Endangered species[16] – A native species is eligible to be included in the endangered category at a particular time if, at that time it is not critically endangered and it is facing a very high risk of extinction in the wild in the near future
  • Vulnerable species[17] A native species is eligible to be included in the vulnerable category at a particular time if, at that time it is not critically endangered or endangered and it is facing a high risk of extinction in the wild in the medium‑term future, as determined in accordance with the prescribed criteria.
  • Critically endangered communities[18] – An ecological community is eligible to be included in the critically endangered category at a particular time if, at that time, it is facing an extremely high risk of extinction in the wild in the immediate future, as determined in accordance with the prescribed criteria.
  • Endangered communities[19] – An ecological community is eligible to be included in the endangered category at a particular time if, at that time it is not critically endangered; and it is facing a very high risk of extinction in the wild in the near future, as determined in accordance with the prescribed criteria.
  • Listed migratory speciesThese are migratory species that are protected in Australia as a result of Australia’s obligations under international conventions:[20]
    • Japan-Australia Migratory Bird Agreement (JAMBA)
    • China-Australia Migratory Bird Agreement (CAMBA)
    • the Conservation of Migratory Species of Wild Animals – (Bonn Convention)
    • native, migratory species identified in a list established under, or an instrument made under, an international agreement approved by the Minister, such as the Republic of Korea-Australia Migratory Bird Agreement (ROKAMBA).

Species that are listed in one of the above classifications under the Environment Protection and Biodiversity Conservation Act 1999 may be protected under one or more of the biodiversity conservation mechanisms in the Act.  For example, if a certain number of individuals in one or more of the threatened species classifications are likely to significantly impacted[21] by an “action” (projects, developments, an undertaking, an activity or series of events or any alteration to these)[22], environmental assessment and approval under the Act may be required.  Significant Impact Guidelines provide information when a project may have a significant impact on a matter of national environmental significance.  For more information, please read our Fact Sheet on the Commonwealth environmental impact assessment process.

Public participation in the listing process

Under Northern Territory law, the listing process for adding new species to the list or varying the classification of species on the list, requires the Minister to give public notice of the proposed classification of species.  The public notice must invite submissions within 30 days.[23]  Members of the public and environmental groups can propose species to be classified or for existing classifications to be varied.  The Minister is required to make the reasons for classification available to the public. The Administrator of the Northern Territory may only make the classification in writing (after being satisfied that the public process has been followed).[24] The classification is available to the public at the office of the Commission.  Currently the Northern Territory Government reviews the list of threatened species every 4-5 years, with the last review conducted in 2011/2012.   The Department of Land Resource Management website has information about the current approach to the listing and nomination process.

At Commonwealth level the process for nomination, assessment and listing of threatened species undertaken by the Minister for the Environment and Threatened Species Scientific Committee.  The Department of the Environment website has information about the listing and nomination process, summarised below:

  • The Minister for the Environment invites people to nominate species or ecological communities for inclusion in the list of threatened species[25] or communities[26] and provides the nominations to the Threatened Species Scientific Committee.[27]
  • The Threatened Species Scientific Committee prepares a list of species and communities that it thinks should be assessed and gives it to the Minister for the Environment.[28]
  • The Minister for the Environment finalises the list of items that are to be assessed[29]
  • The Threatened Species Scientific Committee invites public comment about the items on the finalised list.[30]
  • The Threatened Species Scientific Committee then assesses the items on the finalised list, and gives the assessments to the Minister for Environment.[31]
  • The Minister for Environment decides whether an item that has been assessed should be included in the list.[32]

[1] s29 and s28 Territory Parks and Wildlife Conservation Act

[2] s30(1) Territory Parks and Wildlife Conservation Act

[3] Regulation 3 Territory Parks and Wildlife Conservation Regulations

[4] Division 8 Offences, Territory Parks and Wildlife Conservation Act

[5] s43(1)(a) Territory Parks and Wildlife Conservation Act

[6] s43(1)(b) Territory Parks and Wildlife Conservation Act

[7] s9(1)  – Definition of wildlife Territory Parks and Wildlife Conservation Act

[8] s9(1) – Definition of animal Territory Parks and Wildlife Conservation Act. Note that the act refers to protistans and progeny.

[9] s45 Territory Parks and Wildlife Conservation Act

[10] s66-67 Territory Parks and Wildlife Conservation Act

[11] s178 Environment Protection and Biodiversity Conservation Act 1999

[12] s18(1) Environment Protection and Biodiversity Conservation Act 1999

[13] s179(1) Environment Protection and Biodiversity Conservation Act 1999

[14] s179(2) Environment Protection and Biodiversity Conservation Act 1999

[15] s18(2) Environment Protection and Biodiversity Conservation Act 1999

[16] s18(3) Environment Protection and Biodiversity Conservation Act 1999

[17] s18(4) Environment Protection and Biodiversity Conservation Act 1999

[18] s18(5) Environment Protection and Biodiversity Conservation Act 1999

[19] s18(6) Environment Protection and Biodiversity Conservation Act 1999

[20] s209 Environment Protection and Biodiversity Conservation Act 1999

[21] See Booth v Bosworth [2001] FCA 1453, [99].

[22] s523 Environment Protection and Biodiversity Conservation Act 1999

[23] s29 Territory Parks and Wildlife Conservation Act

[24] s29 Territory Parks and Wildlife Conservation Act.

[25] s178 Environment Protection and Biodiversity Conservation Act 1999

[26] s181 Environment Protection and Biodiversity Conservation Act 1999

[27] See sections 194E and 194F Environment Protection and Biodiversity Conservation Act 1999

[28] See sections 194G to 194J Environment Protection and Biodiversity Conservation Act 1999

[29] See sections 194K and 194L Environment Protection and Biodiversity Conservation Act 1999

[30] See section 194M Environment Protection and Biodiversity Conservation Act 1999

[31] See sections 194N and 194P Environment Protection and Biodiversity Conservation Act 1999

[32] s194Q Environment Protection and Biodiversity Conservation Act 1999