Schedule 5 authority means a person listed in Schedule 5;
strategic document means —
(a) the river protection strategy; or
(b) a management programme; or
(c) a document approved under section 55;
Trust means the Swan River Trust established by section 16;
unallocated Crown land has the meaning given to that term in the Land Administration Act 1997;
waters includes the riverbed and subsoil normally covered by waters when at the high water mark;
Western Australian Planning Commission means the body established by the Planning and Development Act 2005 section 7.
(2) Deposited plans referred to in this Act are those held by the agency of the Public Service that principally assists in the administration of the Transfer of Land Act 1893.
[Section 3 amended: No. 45 of 2011 s. 144(2)‑(4); No. 6 of 2015 s. 5 and 53; No. 30 of 2018 s. 191; No. 2 of 2023 s. 4.]
4. Crown bound
This Act binds the Crown in right of the State and, so far as the legislative power of the State permits, the Crown in all its other capacities.
5. Objectives of Act and principles to be regarded
(1) The objectives of this Act are —
(a) to provide for the restoration and protection of the development control area and the Riverpark;
(b) to provide for the management of activities that affect the ecological and community benefits and amenity of the development control area and the Riverpark;
(c) to provide for the needs of future generations in relation to the ecological and community benefits and amenity of the development control area and the Riverpark;
(d) to recognise the interests of the Nyungah community and other people in the community with an association with the development control area or the Riverpark and to provide for their participation in the management of those areas and the management of activities affecting the ecological and community benefits and amenity of those areas;
(e) to promote and facilitate the good management of the catchment area to meet the objectives referred to in paragraphs (a) to (d).
(2) In pursuing the objectives of this Act regard should be had to the following principles —
Table
1. Sustainability principles
(1) Sound environmental practices and procedures should be adopted as a basis for sustainability for the benefit of all human beings and the environment today, while considering the environmental, social and economic needs of future generations.
Schedule Sch 5 - Swan and Canning Rivers Management Act 2006 - authority means a person listed in Schedule 5; | Zoe
(2) Environmental, social and economic factors should be considered in decision‑making, with the objective of improving community well‑being and the benefit to future generations.
(3) Environmental practices and procedures should be cost‑effective and in proportion to the significance of the environmental risks and consequences being addressed.
2. Precautionary principle
(1) Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
(2) In the application of the precautionary principle, decision‑making should be guided by —
(a) a careful evaluation to avoid serious or irreversible damage to the environment wherever possible; and
(b) an assessment of the risk‑weighted consequences of the options.
3. Intergenerational equity
The present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations.
4. Biodiversity and ecological integrity
Biodiversity and ecological integrity should be maintained or enhanced as part of the irreplaceable life support systems upon which the earth depends.
5. Shared responsibility
Protection of the environment is a responsibility shared by Government, industry, business, the community and the people of the State.
6. Best practice
When designing policies, systems, procedures or technologies, the best practicable measures available at the time should be used.
7. Continuous improvement
Implementation of natural resource management should aim for continuous improvement and extend beyond compliance with relevant laws and requirements.
8. Accountability and transparency
(1) Members of the community should be given —
(a) access to reliable and relevant information; and
(b) opportunities to participate in policy and programme development.
(2) Decisions should be made in a transparent manner and be made public.
6. Objectives and principles paramount; disputes between CEO and Schedule 5 authority
(1) Persons involved in the administration of this Act, and Schedule 5 authorities, should perform their functions with due regard to the objectives and principles of this Act.
(2) The provisions of any other written law must be construed and applied —
(a) with due regard to the objectives and principles of this Act; and
(b) so that those objectives and principles are paramount,
unless that construction or application would —
(c) be inconsistent with the objects and intentions of that written law; or
(d) substantially interfere with the operation of the provisions of that written law.
(3) Except where the contrary intention is expressed in this Act, the vesting in the CEO or Trust of functions in respect of the development control area and the Riverpark does not limit the functions vested by any written law in any other person in respect of those areas.
(4) If a provision of this Act, other than a provision of Part 5, is in conflict with a power conferred on a Schedule 5 authority by a written law, the Schedule 5 authority and the CEO must endeavour to reach agreement as to which provision will prevail.
(5) If a question, difference or dispute arises, or may arise, between a Schedule 5 authority and the CEO as to the rights, powers or authority of, or the discharge of any duty by, a Schedule 5 authority, or as to their respective functions or interests, on a matter referred to in subsection (4), then —
(a) if the matter relates to the functions of a government department — the Minister charged with the administration of that government department (the Schedule 5 Minister) may consult with the Minister;
(b) if the matter relates to the functions of a statutory authority — the Minister to whom the Governor has committed the Act under which the statutory authority is established or continued (the Schedule 5 Minister) may consult with the Minister.
(6) If the Ministers agree after consultation under subsection (5), the Schedule 5 Minister must give the Schedule 5 authority, and the Minister must give the CEO, such directions as result from the consultation and agreement.
(7) If no consultation under subsection (5) is concluded or the Ministers cannot agree as to the matter, the matter may be finally and conclusively determined by the Governor, and effect must be given to the determination.
(8) The Governor may finally and conclusively determine any question, difference or dispute arising or about to arise between a Schedule 5 authority and the CEO as to the rights, powers or authority of, or the discharge of any duty by, a Schedule 5 authority, or as to their respective functions or interests, on a matter referred to in subsection (4) whether or not referred to the Governor under subsection (7) and whether or not the Ministers had purported to agree under subsection (6), and effect must be given to the determination.
(9) Without limiting subsection (4), the regulations may make provision as to the manner and circumstances in which a conflict referred to in subsection (4) must be brought to the notice of the CEO.
(10) The performance of a function by the CEO, the Trust or a Schedule 5 authority cannot be appealed against, reviewed, quashed, challenged, or called in question, before or by any person acting judicially or a court or tribunal on any account or by any means on the ground that the performance of the function does not comply with subsection (1) or (2).
[Section 6 amended: No. 6 of 2015 s. 51 and 53.]
7. Native title rights and interests, how affected by this Act
affect has the meaning given to that term in the NTA section 227;
native title rights and interests has the meaning given to that term in the NTA section 223;
NTA means the Native Title Act 1993 of the Commonwealth.
(2) Nothing done by or under this Act operates to affect any native title rights and interests.
(3) Subsection (2) does not apply to the extent that the effect on those rights and interests is valid by the operation of, or by anything done under, the NTA or another law of this State.
Part 2 — Land and waters to which this Act applies
8. Catchment area defined (Sch. 1)
A reference in this Act to the catchment area is a reference to the land and waters within the area for the time being described in Schedule 1.
9. Riverpark defined (Sch. 1 and 2)
A reference in this Act to the Riverpark is a reference to the land and waters that are —
(a) a part of the catchment area; and
(b) within the area for the time being described in Schedule 2.
[Section 9 amended: No. 6 of 2015 s. 53.]
10. Development control area defined (Sch. 1 and 3)
(1) A reference in this Act to the development control area is a reference to the land and waters that are —
(a) a part of the catchment area; and
(b) within the area for the time being described in Schedule 3.
(2) Land and waters that are within the development control area may overlap, or be the same as, land and waters that are within the Riverpark.
[Section 10 amended: No. 6 of 2015 s. 53.]
11. River reserve defined (Sch. 1 and 4), reserved and vested in Trust
[(1) deleted]
(2) Subject to subsection (9), a reference in this Act to the River reserve is a reference to the land and waters that are —
(a) a part of the catchment area and a part of the Riverpark; and
(b) within the area for the time being described in Schedule 4.
(3) Subject to subsection (9), the land and waters described in Schedule 4 are reserved under the Land Administration Act 1997 Part 4 for the purpose of protection and enhancement of the ecological and community benefits and amenity of the Swan and Canning Rivers.
(4) The purpose of the River reserve must not be amended or cancelled, and the boundary of the River reserve must not be altered, except by an Act or under section 13 or 15.
(5) Subject to subsection (9), any other reservation or vesting of the land and waters described in Schedule 4 under —
(a) the Land Administration Act 1997 Part 4; or
(b) the Marine and Harbours Act 1981 section 9; or
(c) any other written law,
is, by this section, cancelled.
(6) The cancellation under subsection (5) of a reserve as defined in the Land Administration Act 1997 has effect as if it were made under Part 4 of that Act.
(7) Subject to subsection (9), the land and waters described in Schedule 4 are placed under the care, control and management of the Trust and cease to be vested in any other person or under the care, control and management of any other person.
(8A) Despite the Land Administration Act 1997, the placing of the care, control and management of the River reserve with the Trust is only for the purposes of section 23 and does not otherwise limit the functions of the CEO under section 33.
(8) The Registrar of Titles must take any necessary measures to register the reservation and placement of land and waters effected by subsections (3) and (7), and the necessary consequential changes, and for those purposes this section is to be treated as if it were an order under the Land Administration Act 1997 Part 4.
(9) Nothing in this section applies to —
(a) land which is not Crown land; or
(b) any part of a marine reserve which —
(i) immediately before the commencement of this section, is vested in the Marine Parks and Reserves Authority under the CALM Act; and
(ii) is in the land or waters described in Schedule 4;
or
(c) any part of a nature reserve which —
(i) immediately before the commencement of this section, is vested in the Conservation Commission of Western Australia under the CALM Act; and
(ii) is in the land or waters described in Schedule 4.
[Section 11 amended: No. 6 of 2015 s. 6.]
12. Riverpark shoreline, responsibility for
Minister for Lands means the Minister as defined in the Land Administration Act 1997;
Riverpark shoreline means the area of Crown land in the Riverpark extending from 2 m below the high water mark to 2 m above the high water mark, measured horizontally above the surface of the land and including the surface of any structure built to retain the land;
unmanaged reserve has the meaning given to that term in the Land Administration Act 1997.
(2) Despite any written or other law to the contrary, the Minister for Lands is jointly responsible with the CEO for the care, control and management of any part of the Riverpark shoreline that is unallocated Crown land or an unmanaged reserve and for the maintenance of any wall or other structure on that part of the Riverpark shoreline.
(3) Despite any written or other law to the contrary, a person who has the care, control and management of Crown land in the Riverpark shoreline is jointly responsible with the CEO for the care, control and management of that part of the Riverpark shoreline and for the maintenance of any wall or other structure on that part of the Riverpark shoreline.
(4) The CEO and a person referred to in subsection (2) or (3) may agree to vary the area or structures for which they are jointly responsible under this section so as to include an area or structure that is not in the Riverpark shoreline.
(5) The CEO must not enter into an agreement under subsection (4) except with the prior approval of the Minister.
(6) Nothing in this section affects any covenant, contract or agreement relating to the care, control and management of land on the Riverpark shoreline made between —
(a) the CEO and a person who has the care, control and management of land on the Riverpark shoreline; or
(b) the CEO and another person; or
(c) a person who has the care, control and management of land on the Riverpark shoreline and another person; or
(d) any other persons.
(7) Nothing in this section limits the powers of the Trust under Part 3 Division 2 or the powers of the CEO under Part 4B Division 1.
[Section 12 amended: No. 6 of 2015 s. 7 and 51.]
13. Amending Schedules 1 to 4 by regulations
(1) The regulations may amend Schedule 1, 2, 3 or 4 —
(a) by adding any area to the catchment area, development control area, Riverpark or River reserve;
(b) by excising any area from the catchment area, development control area, Riverpark or River reserve;
(c) by deleting the catchment area, development control area, Riverpark or River reserve and substituting another area for it.
(2) Before regulations are made for the purposes of subsection (1) the Minister must consult with —
(a) the Minister for Planning; and
(b) any other Minister of the Crown that the Minister considers has a relevant interest in the regulations; and
(c) the local government —
(i) of the district in which any proposed new boundary is located; and
(ii) of the district in which the existing boundary that would be amended is located;
and
(d) any other public authority that has the care, control or management of land likely to be added to, excised from, or substituted for, land in the catchment area, development control area, Riverpark or River reserve.
(2A) Subsection (2) does not apply to regulations amending Schedule 2 or 3 if —
(a) an amendment to the Metropolitan Region Scheme (the MRS amendment) has been approved under the Planning and Development Act 2005 Part 4; and
(b) either —
(i) the MRS amendment is made by an Act; or
(ii) public submissions were sought on the MRS amendment before it was approved;
and
(c) the Minister considers that the amendments to Schedule 2 or 3 to be made by the regulations are connected with the MRS amendment.
(3) Land added to, or substituted for land in, the Riverpark or the River reserve must be Crown land.
(4) The addition of an area to, excision of an area from, or substitution of an area for, the River reserve under this section has effect as if the area were added to, excised from, or substituted for, the River reserve under the Land Administration Act 1997 Part 4.
(5) The Registrar of Titles must take any necessary measures to register any change to the reservation and placement of waters in the River reserve effected by a regulation under this section, and the necessary consequential changes, and for those purposes the regulation is to be treated as if it were an order under the Land Administration Act 1997 Part 4.
(6) Regulations referred to in subsection (1) may provide for the substitution of a plan for a plan referred to in Schedule 1, 2, 3 or 4, or for the amendment of an area by reference to a further plan.
(7) Despite any increase in the development control area effected by regulations referred to in subsection (1), any act or thing lawfully undertaken, and not discontinued or abandoned, before the commencement of those regulations in an area that was not in the development control area before that commencement but which is in the development control area after that commencement may be lawfully continued and completed as if those regulations had not come into operation.
(8) Without limiting subsection (7), regulations referred to in subsection (1) may make further provisions of a transitional nature that are expedient to be made in respect of an amendment to Schedule 1, 2, 3 or 4 under subsection (1).
[Section 13 amended: No. 2 of 2023 s. 5.]
14. Boundaries of catchment area etc., proving
(1) In any proceedings —
(a) a plan purporting to be a copy of a plan referred to in Schedule 1, 2, 3 or 4 or section 13(6) showing the boundaries or any boundary of the catchment area, development control area, Riverpark or River reserve; or
(b) a notice published under section 15(3) of the location of a boundary of the catchment area, development control area, Riverpark or River reserve,
is evidence of those boundaries or that boundary.
(2) A person may not assert the invalidity of a plan referred to in Schedule 1, 2, 3 or 4 or section 13(6) on the ground of error, misdescription, irregularity or uncertainty if the error, misdescription, irregularity or uncertainty did not in fact mislead the person in a material way.
15. Boundaries of catchment area etc., resolving questions as to
(1) If any question arises as to the boundary of the catchment area, development control area, Riverpark, River reserve, or Riverpark shoreline, the Trust, after giving the persons interested in the resolution of the question the opportunity to make submissions to it, must refer the question to the Minister with its opinion.
(2) The Minister must submit the matter, together with the Trust’s opinion, to the Governor for decision as to what is, or is to be treated as, the boundary of the catchment area, development control area, Riverpark, River reserve, or Riverpark shoreline, and the Governor’s decision is final.
(3) If any part of the boundary of the catchment area, development control area, Riverpark, River reserve or Riverpark shoreline is determined by the Governor under subsection (2) —
(a) the boundary of the catchment area, development control area, Riverpark, River reserve, or Riverpark shoreline is to be taken to be the boundary determined by the Governor; and
(b) the Minister must cause —
(i) the location of that boundary to be notified in the Gazette; and
(ii) a copy of the notice to be kept with the plans referred to in Schedule 1, 2, 3 or 4, whichever is relevant.
(4) If, as a result of a determination by the Governor under subsection (2), the boundary of the River reserve is changed, the Registrar of Titles must take any necessary measures to register any change to the reservation and placement of waters in the River reserve, and the necessary consequential changes, and for those purposes the determination is to be treated as if it were an order under the Land Administration Act 1997 Part 4.
Part 3 — Swan River Trust
Division 1 — Establishment and management
16. Trust established and nature of
(1) A body called the Swan River Trust is established.
(2) The Trust is a body corporate with perpetual succession.
(3) Proceedings may be taken by or against the Trust in its corporate name.
17. Trust is agent of Crown etc.
The Trust is an agent of the Crown and has the status, immunities and privileges of the Crown.
18. Board of management of Trust
(1) The Trust is to have a board of management.
(2) The board is the governing body of the Trust.
(3) The board, in the name of the Trust, is to perform the functions of the Trust under this Act or any other written law.
19. Board, membership of
(1) The members of the board are —
(a) 6 members appointed by the Minister, none of whom is an elected member of the council of a local government; and
(b) the person holding or acting in the office of chief executive officer of the department principally assisting in the administration of the Planning and Development Act 2005, or a nominee of the chief executive officer approved by the Minister; and
(c) a person appointed by the Minister whose name is included in a panel of 3 names submitted to the Minister by the Western Australian Local Government Association.
(2) As far as is practicable, the membership of the board must comprise persons who between them have knowledge of, and experience in, the fields of conservation, natural resource management, recreation, tourism, planning, development, matters of interest to the rural community and matters of interest to the Nyungah community.
(3) The Minister must designate one of the members appointed under subsection (1)(a) as chairman of the board.
(4) Before appointing a member under subsection (1)(a) the Minister must publish in a newspaper circulating throughout the State a notice calling for expressions of interest in appointment to the board.
(5) The Minister must consider expressions of interest lodged in accordance with the notice but may appoint a person as a member of the board whether or not the person has lodged an expression of interest.
(6) Where the submission of a panel of names is required for the purposes of subsection (1)(c), the submission must be made to the Minister, in writing signed on behalf of the Western Australian Local Government Association, within such reasonable time after the receipt by it of a notice from the Minister that such submission is required as is specified in the notice.
(7) If the submission has not been made in accordance with subsection (6) within the time specified under that subsection the Minister may nominate an elected member of the council of a local government to be a member of the board in place of the person provided for by subsection (1)(c).
20. Board, constitution and proceedings of (Sch. 6)