Protecting Wilderness and National Parks

11 May legal advice on proposed new National Park law

The Colong Foundation for Wilderness Ltd has sought my advice on the draught National Parks and Wildlife Amendment (Sustainable Tourism) Amendment Bill 2010.  This Bill proposes to amend all but one of the critically important provisions of the National Parks and Wildlife Act" 1974 ("the NPW Act") which control the use of National Parks and other conservation reserves.  In a trifecta of decisions, the New South Wales Court of Appeal has decided that the current lease and licencing powers cannot be used for destructive or damaging purposes which would be contrary to conserving the ecology and landscape of National Parks, or for purposes extraneous to the purpose to which National Parks have been reserved or may be managed.  The Minister has no discretion to approve uses which are contrary to these provisions, and if challenged, the Courts will determine the question of compliance.  In Scharer v State of New South Wales (2001) 53 NSWLR 299:  the Court of Appeal discussed:  

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