List of Threatened Ecological Communities Amendment (EC180) Instrument 2022

The core concept is a “threatened ecological community” under the EPBC Act. The Act defines this broadly: an ecological community is an assemblage of native species that inhabits a particular area in nature. The community need not be composed entirely of identified species; it can include taxa yet to be formally named, as this listing does. The EPBC Act provides for three listing categories: critically endangered, endangered, and vulnerable. This community is listed as “endangered”, which means it is facing a very high risk of extinction in the wild in the near future, as defined by the listing criteria in the EPBC Regulations.

The “Mount Kaputar land snail and slug community” is defined as “An assemblage of native land snail and slug taxa that are characteristic of, or locally significant to, the Mount Kaputar region”. The instrument lists the component taxa both by scientific and common names. Notably, the list includes taxa not yet formally named, designated as Charopidae NE2, NE6, NE11, NE19, and Thersites sp. nov. ‘Kaputar’ and Triboniophorus sp. nov. ‘Kaputar’. This means the definition of the community may be updated as taxonomic science progresses, without requiring a formal amendment of the instrument each time. The instrument states that the scientific names are current at the time of listing and may change over time.

The geographic concept is critical. The community does not exist uniformly across the defined region. It is limited to “suitable environments” meeting three habitat criteria: (1) native vegetation and landscapes at elevations of 1000 metres or more; (2) dry rainforests and vine thickets at elevations of 400 metres or more; and (3) boulder fields and scree slopes at elevations of 400 metres or more. The buffer of 10 kilometres from the Kaputar subregion boundary means that areas outside the bioregion but within that buffer could be included if suitable habitat exists. The outlying occurrence at Hobden Hill National Park is explicitly mentioned. This creates a patchwork of potential habitat that may require on‑ground assessment to determine whether the community is present.

The listing also introduces the concept of “significant impact”. The EPBC Act uses this phrase to trigger the assessment and approval provisions. The instrument does not define it; the Department of Climate Change, Energy, the Environment and Water issues guidelines on determining significant impact for listed ecological communities. For this community, any activity that could remove, degrade, fragment, or disrupt the habitat or the snails and slugs themselves may be deemed significant. This is a threshold concept that will determine whether a referral is required.

The listing directly affects any person or entity undertaking an “action” within the meaning of the EPBC Act that could have a significant impact on the Mount Kaputar land snail and slug community. This includes private landowners, corporations, public authorities, and State government agencies. While the immediate area is largely within Mount Kaputar National Park and Hobden Hill National Park (both owned by the NSW Government), parts of the defined area, including the 10‑kilometre buffer and lower‑elevation dry rainforest and boulder field habitats, may include freehold land, leasehold land, and state forests. Agricultural operations, such as clearing for grazing, crop cultivation, or timber harvesting, could fall within scope if they occur in suitable snail habitat. Mining and exploration activities, including for coal, minerals, and extractive materials, are also affected. The Narrabri region is known for coal and gas extraction; any such project within the defined area that could affect the community would now require EPBC Act assessment.

Developers of infrastructure, including roads, power lines, telecommunications, wind farms, and solar farms, must consider the listing. Local councils approving subdivisions or development applications in the area may need to ensure that their decisions do not involve the Commonwealth in a controlled action unless a referral is made. Environmental consultants and surveying firms will be in demand to assess the presence of the community on proposed project sites.

Conservation groups and individual citizens are indirectly affected because they can use the listing to challenge decisions or seek enforcement. The community is also relevant to researchers and taxonomists studying the snail and slug taxa, as the listing formalises conservation status and may attract research funding.

Commonwealth agencies are affected as managers of their own land (such as Defence properties or communications infrastructure) if within the defined area. The Minister administering the EPBC Act and the Department become responsible for assessing referrals, issuing approvals, and enforcing conditions. The listing also affects the NSW Government through bilateral agreements; under the EPBC Act, the Commonwealth may accredit NSW assessment and approval processes for actions that affect matters of national environmental significance, including listed ecological communities. This listing expands the scope of matters requiring bilateral assessment.

The most affected group is probably those engaged in land‑use change within the 10‑kilometre buffer or the Kaputar subregion who previously faced no Commonwealth scrutiny. For a farmer clearing a few hectares of dry rainforest for pasture, or a local council undertaking a road upgrade on a boulder field, the listing creates a new obligation to consider a significant impact and, if so, to refer the action for Commonwealth assessment. This imposes compliance costs (surveying, legal advice, application fees, potential delays) that were absent before the listing.

The primary duty created by this listing is the prohibition under the EPBC Act on taking an action that has, will have, or is likely to have a significant impact on a listed ecological community without approval. This duty applies to any person, including corporations. The action must be referred to the Minister for a decision on whether it is a controlled action. If it is, an environmental impact assessment is required, and the Minister may impose conditions or refuse approval.

There is also a duty on Commonwealth agencies to not take an action that contravenes the EPBC Act. For actions on Commonwealth land or actions taken by the Commonwealth, the same referral and approval process applies. Additionally, the listing triggers the “protection of listed ecological communities” provisions that allow the Minister to make conservation orders or enter into conservation agreements.

Rights include the right of a person to refer an action (section 68 of the EPBC Act) and to have the Minister decide within 20 business days whether it is a controlled action. If the Minister decides it is not a controlled action, the action may proceed without further Commonwealth approval. If it is a controlled action, the person has the right to seek reconsideration of that decision under section 78 of the EPBC Act or to appeal to the Administrative Appeals Tribunal for merits review. Third parties, including environmental organisations, have the right to challenge decisions in the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or via constitutional judicial review. They also have standing under section 475 of the EPBC Act to seek injunctions against conduct that breaches the Act.

Rights also exist under the environmental assessment process: the person proposing the action can choose the level of assessment (preliminary documentation, public environment report, environmental impact statement, or public inquiry) subject to Ministerial agreement. There is a right to submit information and respond to departmental requests.

The duty extends beyond the initial action. Conditions of approval must be complied with, and the approval holder must notify the Minister of any breach. The duty to avoid impact also applies to actions that are part of a larger proposal, so a staged development may require a single referral that covers the whole project.

For landholders who do not propose any action, the listing imposes no direct duty; however, they are affected if they later wish to change land use. The listing also does not create a duty to actively manage or restore the community on one’s land, unless a conservation agreement is entered into voluntarily or via a condition of approval for another action.

The EPBC Act provides substantial penalties for knowingly taking an action that has a significant impact on a listed ecological community without approval. For an individual, the maximum criminal penalty is 7 years imprisonment or a fine of up to $126,000 (as at 2022 penalty units) for each contravention, or both. For a corporation, the maximum fine is the greater of $6.3 million for each contravention or three times the value of the benefit obtained from the conduct, or 10% of the corporation’s annual turnover during the preceding 12 months. In addition, civil penalties apply: the Federal Court may order a person to pay a pecuniary penalty of up to $70,000 for an individual or $350,000 for a corporation for each contravention.

The Minister may also issue remediation orders requiring a person to take specified actions to make good any damage to the community. Non‑compliance with a remediation order is itself an offence. The Court may grant injunctions to restrain conduct that would breach the Act, or to compel compliance with conditions of an approval. Enforcement can be initiated by the Minister, the Department, or an “interested person” (which includes environmental organisations with standing under section 475).

For this specific listing, enforcement risk is highest for activities that directly destroy or degrade snail and slug habitat. For example, clearing of dry rainforest at 400m elevation, or removal of boulder fields for road construction, would be obvious targets. However, less obvious activities, such as drain‑cutting that alters moisture regimes or introduction of fire‑prone weeds that change habitat quality, could also attract enforcement if they have a significant impact.

The listing also exposes government agencies to enforcement. A Commonwealth agency that undertakes an action without approval may face the same penalties. The Minister can also issue a conservation order under Part 13 Division 3 of the EPBC Act, which might require the owner of land to cease certain activities, though compensation may be payable.

There is no specific penalty provision in this instrument; the penalties flow from the EPBC Act itself. The listing simply triggers that framework. For legal practitioners, advising clients on the potential for criminal liability requires careful assessment of knowledge and intent. The EPBC Act provides for strict liability for some elements of offences, but the core elements relating to “significant impact” still require proof of knowledge or recklessness.

The listing operates within the broader framework of the EPBC Act, which is a Commonwealth law that generally does not replace State laws but can add an additional approval requirement if a matter of national environmental significance is involved. For the Mount Kaputar region, the relevant State laws include:

• NSW Biodiversity Conservation Act 2016: This Act prohibits the clearing of native vegetation unless it is permitted under a biodiversity conservation scheme or development consent. The EPBC listing may overlap with State‑listed threatened species and ecological communities. Where a proposed action affects both a State‑listed community and the EPBC‑listed community, the proponent must comply with both regimes. Bilateral agreements under the EPBC Act may streamline this: the Commonwealth may accredit the NSW assessment process for matters of national environmental significance. However, the EPBC Act still retains ultimate control; the Minister may not rely on accredited processes for certain actions or may impose additional conditions.

• NSW Environmental Planning and Assessment Act 1979: This Act requires development consent for most land‑use changes. The relevant local council (likely Narrabri Shire Council or Tenterfield Shire Council) must consider environmental impacts. The EPBC listing does not change State planning law, but if a development application is lodged, the council may have to consider whether the action also requires EPBC referral. In practice, councils often impose conditions requiring the proponent to obtain Commonwealth approval before commencing.

• National Parks and Wildlife Act 1974 (NSW): Mount Kaputar National Park and Hobden Hill National Park are reserved under this Act. Activities within these parks are already heavily controlled by the NSW National Parks and Wildlife Service. The EPBC listing adds an additional layer, requiring Commonwealth approval for any action that could significantly impact the snail and slug community, even within the national park. For example, construction of walking tracks or fire breaks may now require EPBC referral.

• Native Title Act 1993 (Cth): If the area includes land subject to native title, the EPBC listing does not extinguish native title but may affect the process of future acts. The requirement for EPBC approval could interact with the right to negotiate and the requirement to obtain indigenous land use agreements.

• Water Act 2007 (Cth): If an activity involves a water resource that impacts the snail and slug habitat, the Water Act may also apply. The EPBC listing is more specific to the community itself.

The instrument does not directly amend any other law. However, its interaction with State laws means that proponents cannot simply assume that a State approval is sufficient. The listing may also influence the application of the Environmental Offsets Policy under the EPBC Act. If an action is approved with conditions requiring environmental offsets, those offsets must be directed toward compensating for the loss of the ecological community’s habitat.

This instrument is itself an amendment to the list of threatened ecological communities under section 181 of the EPBC Act. It was made by the Minister on 26 September 2022 and registered under the Legislation Act 2003 shortly thereafter. It has not been amended, varied, or revoked. The instrument does not amend any previous listing; it is a wholly new addition to the list.

The list of threatened ecological communities under the EPBC Act has been amended many times since its inception in 1999. This particular amendment (designated EC180) is one of a series. No further amendments to this listing have been made, and the instrument remains current. There is no sunset clause; the listing continues until the Minister decides to transfer it to another category (e.g., vulnerable or critically endangered) or remove it from the list.

The instrument itself has no separate provision for review, but the EPBC Act provides for reconsideration of the list at any time. The Minister may, on the Minister’s own initiative or upon receiving a scientific nomination, decide to amend the list again. Interested persons may nominate the community for a different category or for removal, but such a nomination must be supported by scientific evidence.

It is also possible that taxonomic revisions will lead to changes in the list of component species, but the instrument itself would not need to be amended for that; the instrument states that the scientific names are current at the time of listing and may change over time. So if a taxon is renamed or split, the definition of the community remains tied to the biological entities originally listed, not the names. This is an important nuance for legal interpretation.

In terms of legislative history, the EPBC Act was amended in 2013 to strengthen the listing process, but this instrument is made under the current version. The instrument does not cite any earlier amendments to the list; it is a standalone amendment.

To date, there is no reported litigation specifically concerning the Mount Kaputar land snail and slug community or the EC180 amendment instrument. The listing is relatively recent (2022), and the regulatory process for actions affecting the community may not yet have reached the courts. However, the potential for litigation arises from several angles:

1. Challenges to the validity of the listing: Under section 75 of the Judiciary Act 1903 (Cth), a person could seek judicial review of the Minister’s decision to include the community in the list. Grounds might include that the Minister did not properly apply the scientific criteria, that the community was not accurately described, or that there was procedural unfairness in not giving affected landowners notice. However, the EPBC Act provides broad discretion to the Minister in listing, and courts have generally been deferential. No such challenge has been recorded.

2. Challenges to referral decisions: When a person refers an action, the Minister decides whether it is a controlled action. This decision can be reviewed by the Administrative Appeals Tribunal (AAT) on the merits, or by the Federal Court on judicial review. For example, a proponent might argue that the Minister erred in finding that an action is likely to have a significant impact on the community, while an environmental group might argue that the Minister erred in finding no significant impact. No such decisions have been reported for this community.

3. Enforcement actions: The Minister or an interested person could seek an injunction to prevent an action that would harm the community, or seek a remediation order. No reported cases involve this community.

4. Criminal prosecutions: No prosecutions have been brought under the EPBC Act for impacts on this community.

5. State court interactions: If an action subject to EPBC approval also requires State approval, litigation in State courts may involve the EPBC listing as a relevant consideration. However, the listing itself has not been the subject of any reported State case.

For lawyers advising clients, the absence of litigation means there is no judicial guidance on what constitutes a “significant impact” for this particular community. The Department’s significant impact guidelines for ecological communities will be the primary reference, but they are not binding and may be challenged. The risk of litigation from third parties is real, given the high profile of the Kaputar pink slug as a charismatic invertebrate.

Overall, the litigation history is short, but the potential for future litigation is significant if the Department or a proponent makes a decision that appears to underestimate the community’s vulnerability.

Several aspects of this instrument are likely to catch practitioners off guard if not read carefully.

First, the community is not confined to the Kaputar subregion boundary. The instrument includes “areas where suitable environments occur within ten kilometres from the boundary of the Kaputar subregion.” This creates a buffer zone that may extend into areas that are not obviously part of the Nandewar bioregion. The boundary of the subregion is defined by the Interim Biogeographic Regionalisation for Australia (IBRA) version 7, but the buffer means that a property just outside the bioregion line could still be captured if it contains suitable habitat. This imposes an extra requirement for any proposed action within 10 km of that boundary to at least consider whether snail and slug habitat exists.

Second, the instrument does not require the presence of all listed taxa; it is an “assemblage” that is “characteristic of, or locally significant to, the Mount Kaputar region”. This means that even a site containing only a subset of the taxa, or even a single taxon that is locally significant, could be part of the community. The term “locally significant” is undefined and may lead to disputes. For instance, the presence of the Kaputar pink slug alone in a boulder field could be considered locally significant and therefore part of the community, even if other named snails are absent.

Third, the inclusion of taxa “yet to be formally named” introduces uncertainty about what exactly constitutes the community. The Charopidae NE2, NE6, NE11, NE19 are placeholders in museum collections; they have not been formally described. It is possible that a given site contains a Charopid snail that is not yet recognised as one of these designated placeholders but is morphologically similar. The listing potentially captures those if they are part of the same “assemblage” - but it is unclear how that can be determined in practice. Surveyors may need to collect and send specimens to taxonomic experts for identification, increasing cost and time.

Fourth, the habitat definitions are broad and overlapping. “Native vegetation and landscapes at higher elevations of 1000 metres or more” is very broad: it could include eucalypt forest, shrubland, tussock grassland, and even rock outcrops. The “dry rainforests and vine thickets at elevations of 400 metres or more” could occur as small patches. “Boulder fields and scree slopes” are scattered. This means that virtually any action in the elevated parts of the Kaputar region could be argued to affect the community, even if the action is in a cleared paddock, because the community might occur in nearby patches. The significant impact test then depends on the indirect effects (e.g., runoff, weed invasion, altered fire regime) on those patches.

Fifth, the instrument states that scientific names “may change over time”. This means that a future taxonomic revision could cause confusion. A species that is currently known as Cralopa kaputarensis might be split into two species, one of which is not part of the original community. Does the community definition update automatically? The instrument says the names are current “at the time of listing” - this suggests that the original names are fixed, but if a taxon is later reclassified, the community could be interpreted as including the new species if it is the same biological entity. This is a lawyer’s headache.

Sixth, the listing has no grandfathering provisions. Any action that was lawful before the listing, such as a continuing use (e.g., existing grazing), may continue without needing approval, but “new” actions or changes to existing use may be captured. For example, if a farmer has been clearing a few trees each year, the continuation of that pattern may be considered a new action if it commences after the listing or if there is a change in method. The EPBC Act includes section 43A which exempts actions that were lawful before the introduction of a new matter of national environmental significance, but only if the action is substantially the same and there was no significant new impact. The distinction is often litigated.

For any person or organisation proposing to undertake an action within the defined geographic area (the Kaputar subregion, 10‑km buffer, and Hobden Hill National Park), the first step is to assess whether the action could have a significant impact on the Mount Kaputar land snail and slug community. This requires determining whether suitable habitat (high‑elevation native vegetation, dry rainforest/vine thicket, or boulder fields) is present on the site. If the site has no such habitat, the risk of a significant impact is low, but the buffer and indirect effects must still be considered. It is prudent to engage an environmental consultant with expertise in land snail and slug identification to conduct a targeted survey. The survey should follow Departmental guidelines for survey of listed ecological communities.

If suitable habitat is present, or if there is any doubt, the safest course is to refer the action to the Department under section 68 of the EPBC Act. The referral must describe the action, its location, the values present, and the likely impacts. The Department will then decide, within 20 business days, whether the action is a controlled action. If it is decided that it is not a controlled action, the action may proceed without further Commonwealth approval. If it is a controlled action, the proponent must undergo an environmental impact assessment. The level of assessment can be negotiated: preliminary documentation is the most common for smaller projects, while an environmental impact statement is required for very large or controversial projects.

The proponent may seek to avoid referral altogether by designing the action to avoid any significant impact. For example, siting infrastructure away from boulder fields, avoiding dry rainforest patches, and ensuring that run‑off does not alter moisture regimes. However, the risk of later enforcement or third‑party legal action if the impact expectation is wrong is high. It is risky to self‑assess as having no significant impact without consulting the Department.

The proponent should also check whether the action involves other matters of national environmental significance (e.g., threatened species, water resources, national heritage) because those may require separate referral.

If approval is obtained with conditions, strict compliance is essential. Conditions may include ongoing monitoring of snail and slug populations, weed control, fire management, and environmental offsets. Offsets must be located within the same region and provide a net gain for the community.

For landholders who do not propose any action, no active compliance steps are required, but they should be aware that the listing may affect insurance, valuation, and future development potential. If they are approached by the Department for a conservation agreement, they should seek legal advice before entering into it.

Government agencies should integrate the listing into their environmental risk management systems. For actions on Commonwealth land, the agency must refer any action that could impact the community.

Finally, legal practitioners should note that the listing creates a new environmental duty for directors and officers of corporations. The EPBC Act imposes liability on persons involved in the decision to take an action that contravenes the Act. Directors and managers should ensure that corporate risk assessments include the potential presence of this community. Ignorance of the listing is not a defence; the instrument is published on the Federal Register of Legislation and is deemed to be known.