In preparation for the Bendigo Meeting of April 18 [see our post below], Environment Groups were supplied with a briefing by the Environment Defenders Office on the various legal obligations governing DSE’s fire management. The document is printed below, slightly edited, for members’ information:
Fire Management on Victorian Public Land and Community Consultation
This document briefly outlines the legislative basis for fire management on public land in Victoria. It has a particular focus on the role of prescribed burning and community consultation. It provides answers to the following questions:
- Who is responsible for fire management on public land in Victoria?
- What is the Code of Practice?
- What are they key requirements of the Code?
- What are the community consultation requirements of the Code?
- What are the DSE’s biodiversity protection requirements?
The purpose of this memo is to help individuals concerned about the environment to understand how the law surrounding fire management, especially prescribed burning, and what place community consultation holds in this process.
Who is responsible for fire management on public land in Victoria?
The Department of Sustainability and Environment (the DSE) is the government body largely responsible for managing fire on Victoria’s public land.
Public land includes National Parks, State Parks, State forests and Crown Reserves.
The DSE is headed by the Secretary of the DSE, who is currently Greg Wilson.
The DSE’s specific responsibilities are set out in the following Acts:
- The Forests Act 1958:
- Section 62(2) states that the Secretary must carry out ‘proper and sufficient work’ for the immediate ‘prevention and suppression of fire’ and for the ‘planned prevention of fire’ in States Forests, National and State Parks, wilderness areas and Crown Reserves.
- Sections 63 to 69 sets out the Secretary’s general powers in relation to fire suppression and prevention. These include powers to order landowners to carry out burning off activities.
- National Parks Act 1975:
- Section 17(2)(b) states that the Secretary shall ensure that ‘appropriate and sufficient measures are taken to protect each national park and State park from injury by fire’ (s17(2)(b)).
The DSE’s fire management responsibilities are balanced by other responsibilities, such as its responsibilities to protect biodiversity, which are set out below.
Other government bodies with a role in fire management are the CFA and local councils. The Forests Act 1958 also sets up a Chief Fire Officer of the DSE (Craig Lapsley), who is responsible for overseeing reform in fire management following the Black Saturday Bushfires.
What is the Code of Practice?
The primary instrument that regulates DSE’s fire management responsibilities is the Code of Practice for Fire Management on Public Land (the Code).
The Code is made under section 31 of the Conservation, Forests and Lands Act 1987, which allows the Minister to make Codes of Practice specifying standards and procedures for the carrying out of any of the objects or purposes of a relevant law. Another example of a Code of Practice made under this section is the Code of Practice for Timber Production which sets out the standards and procedures for logging.
The Code is not legally binding, however in using fire on public land, the Secretary must have regard to the Code (Forests Act, s62A).
The Code was first made in 1995, and then updated in 2006. The 2006 version of the Code is the currently applicable Code.
The Code is currently under review, and an updated Code is expected to be released in June 2012.
What are the key requirements of the Code?
The Code sets out the framework for how DSE is to plan for and deal with fire risks.
The Code sets the minimum standards and guidelines for address the threat of wildfire (under the headings ‘prevention’, ‘preparedness’, ‘response’ and ‘recovery’) – these are set out at Part 4 of the Code.
It also sets out the processes and requirements for:
- Formulating regional and local plans for dealing with fire risks (Part 2).
- Carrying out prescribed burning (Part 3).
- Auditing DSE’s compliance with the Code (Part 5).
The Code requires DSE to plan for fire risks through the preparation of a series of plans:
- DSE must prepare a 10-year Fire Management Plan for each area in Victoria, which must include:
- A Fire Protection Strategy (previously known as Fire Protection Plans) setting out the strategies to be used in each area to address fire risk.
- A Fire Ecology Strategy setting out how fire will be used to address fire risk (such as through prescribed burning).
- Links to local fire planning documents, such as Municipal Fire Management Plans (where they exist).
Despite these requirements, in most areas in Victoria only a Fire Protection Strategy exists.
- DSE must also prepare annual Fire Operations Plan setting out how the strategies in FMPs will be implemented in the next 1 to 3 years.
The Fire Protection Strategies divide areas into four different fire management zones. The different zones relate to how important each area is to be protected from wildfire, and the mechanisms available to do so (such as prescribed burning):
- Two of the zones are focused on protection from fire: Asset Protection Zone and Strategic Wildfire Management Zone.
- Two of the zones are more focused on protecting ecological values: Ecological Management Zone, Prescribed Burning Exclusion Zone.
The location and timing of prescribed burning should be set out in the plans set out above.
In addition, the Code requires that all burns must be the subject of an approved Burn Plan. Prescribed burning must be carried out in accordance with the Burn Plan and its conditions.
The Code requires DSE to regularly audit its own compliance with the Code.
DSE must carry out one audit per year on a specific theme. In addition, it must carry out a comprehensive independent audit once every five years.
What are the community consultation requirements of the Code?
The Code places particular emphasis on the importance of community consultation in fire management, particularly in the planning stage.
The Code states that fire management must be planned and conducted in partnership with the general Victorian community, in accordance with the ‘Community Partnership Principles’.
The Community Partnership Principles are:
- Community members to be appropriately involved at the local, regional and State level.
- Processes to be open and accessible to people of different backgrounds and cultures (especially Indigenous communities).
- To be transport and accountable with appropriate reporting back to the community.
- Local community knowledge and information to be actively sought, respectfully managed, and used to inform decision-making, where appropriate.
- Recognises that fire management outcomes are maximized when public and private landholders work cooperatively.
The Code sets out general principles that are to guide the preparation of the plans set out above. In particular, one of the principles states that:
“community and stakeholder contributions to be actively sought for all fire management planning activities to inform decision making to the maximum extent practicable.”
When preparing Fire Management Plans, the Code requires that:
- The DSE must involve public and private land managers and specialists in accordance with the community partnership principles.
- The DSE must prepare a community consultation plan in accordance with known local concerns and the principles of community partnership.
- The DSE must make Draft Fire Management Plan available for public comment for 8 weeks before it is finalized, and the DSE must consider and respond to community comments, in accordance with the Community Partnership Principles.
When preparing Fire Operations Plans, the Code requires that:
- The forward planning schedules and maps for prescribed burning and new works must be made available for public inspection.
- If DSE wishes to undertake prescribed burning outside that set out in the Fire Operations Plans, these should be performed following consultation with relevant specialists and the general community.
The Code sets out the following principles which are to guide the planning and carrying out of prescribed burning:
- Prescribed burning to achieve stated land management objectives will be thoroughly planned, follow safe working practices, be controlled and the outcomes will be monitored and recorded.
- The DSE will work with communities to facilitate understanding of the role of fire as a management tool in the Victorian environment.
- Prescribed burning activities and processes are to be planned in partnership with communities.
The Code does not set out any specific consultation process that DSE must follow in the preparation of Burn Plans (which set out where prescribed burning will take place).
The Code sets out some requirements for notification when prescribed burning is to be carried out.
What are the Department’s Biodiversity Protection Requirements?
In carrying out its fire management activities, DSE must also comply with the following biodiversity protection requirements:
- Any environmental controls in the Code of Practice for Timber Production.
- The Flora and Fauna Guarantee Act 1988 (the FFG Act):
- The FFG Act contains the objective of ensuring that Victoria’s native flora and fauna can survive, flourish and retain their potential for evolutionary development (section 4). The FFG requires the Secretary to administer the Act ‘in such as a way as to promote the flora and fauna conservation and management objectives’. DSE must also be administered so as to have regard to the objectives.
- The Environment Protection and Biodiversity Conservation Act 1999:
- Fire management must be consistent with the Commonwealth EPBC Act. The EPBC Act requires that any action that will have a significant impact on a ‘matter of national environmental significance’ cannot proceed unless it has been approved by the Federal Environment Minister. The matters of national environmental significance protected by the EPBC Act include threatened species listed under the Act, and National Heritage places (like the Alpine National Parks).