The NSW government has been undertaking a major review of the biodiversity legislation in response to farmers’ complaints about the fairness and processes of the current land clearing laws. This has involved the appointment of an independent review panel whose report was released in December 2014. The report covered a lot more than rural land clearing laws and proposed a major revamp of the biodiversity protection provisions.

STEP Matters Issue 183 explained some of the concerns about the recommendations of the report, particularly the:

• use of self-assessment
• watering down of biodiversity offset standards
• reliance on private land conservation
• adequacy of provisions and resources to assess and monitor vegetation clearing

The recommendations, if adopted, would seriously undermine protections that currently limit development that is likely to lead to loss of biodiversity in rural and urban areas.

Prior to the 2015 election the NSW government promised to implement all recommendations of the report. Conservation groups have been calling on the general public to express their concerns to their local MPs in the hope that the actual legislation would recognise the issues raised but to no avail. The usual response was a standard email full of statements about the glorious improvement in biodiversity that was going to occur and made no acknowledgement of the concerns.

The Office of Environment and Heritage (OEH) set out to consult with key stakeholder groups such as the NPA and NCC on the drafting of the legislation. The process was such a sham that the groups withdrew from the process in February 2016. The groups issued this joint statement about the withdrawal:

We have provided detailed analysis and constructive feedback to help develop a conservation law that addresses the increasing threats to wildlife, soils and climate, but it is now clear that the government is on a course to pursue development at high environmental cost.

Direct talks with the relevant ministers also seem to have fallen on deaf ears.

On 6 May the draft legislation was released. The closing date for submissions was 28 June.

Application to Urban Areas and Tree Preservation Orders are still Unclear

Some aspects of the application of the legislation to urban areas are not yet clear. A new State Environmental Planning Policy and Development Control Plan for urban areas are yet to be released for consultation that will define the clearing controls and consent requirements. In fact it is not clear what consultation will occur.

Of particular concern is the proposal to replace individual council Tree Preservation Orders (TPOs) with a SEPP to apply to all urban areas. TPOs are an effective tool for protecting urban trees and their associated biodiversity, amenity, heritage, shade and heat reduction values. TPOs need to take into account differences in the characteristics of urban areas such as topography, existing canopy cover and proximity to bushland.

No clear justification for the proposed replacement of TPOs with a SEPP and the purported benefits of this approach has been provided. The Final Report from the Independent Biodiversity Legislation Review Panel does not address TPOs at all.

Response to Draft Legislation

A major campaign (Stand Up for Nature) was launched by a coalition of conservation groups to inform the public urging us to contact politicians to express opposition and ask for the legislation to be withdrawn. The campaign has been very successful. Over 5,400 submissions have been made opposing the legislation.

On top of this response, just last week a group of over 400 scientists released a declaration expressing concern about the current and likely future rate of deforestation and loss of habitat and its impact on threatened species.

The government wants to pass the legislation in October. They appear to be determined to ignore expert opinion. Future generations will face the consequences. Pressure needs to be maintained on the premier to modify the draft legislation.

Government Statements are Pure Spin

Here are three examples of the disconnect between the government’s statements on the OEH website about the reforms and the likely outcomes according to assessments by the Environmental Defenders Office (EDO), conservation groups and STEP.

Read EDO’s comprehensive analysis.

1.  OEH statement on ecologically sustainable development (ESD)

The biodiversity reforms will facilitate ESD in NSW. The introduction of a new biodiversity offsets scheme, including the new Biodiversity Conservation Trust and an expanded biodiversity certification program will, for the first time, deliver a transparent, consistent and certain approach to biodiversity assessment and offsetting in NSW.

Comment

ESD is a basic objective of the current planning legislation. Its application in the past has led to genuine offsetting decisions such as the provision of funding for preservation of Blue Gum High Forest land in Browns Forest, St Ives to offset BGHF cleared for railway expansion in Hornsby.

Under this heading the OEH identifies the flawed biodiversity offset system as the means of facilitating ESD. The idea seems to be that merely making statements about ESD will make it happen. How can biodiversity be maintained or improved when a developer will be able to pay money into a fund if suitable vegetation for offsetting is not available.

The proposed reforms ignore the principles of ESD; they do not take a precautionary approach; they do not treat biodiversity conservation as a fundamental consideration in decision-making; and they are very unlikely to achieve intergenerational equity.

2.  OEH statement that reforms will enhance biodiversity conservation on private land

Comment

The proposed regime places almost complete reliance on political, budgetary decisions (which may be short-term) to achieve biodiversity gains, rather than on protections to prevent continued biodiversity decline.

Who knows whether private landowners will be given sufficient long-term support to carry out conservation on their land?

Programs like the Saving our Species will fund measures to restore habitat for identified threatened species. But at the same time land clearing will be allowed that will destroy habitat for a lot more species. It is much more expensive to restore habitat than to preserve it in the first place.

3.  OEH statement that the reforms will set and achieve clear biodiversity objectives

• The objects of the draft Bill emphasise conserving biodiversity and ecological integrity at bioregional and state scales and facilitating ecologically sustainable development.
• The draft Bill objects for improving and sharing knowledge about biodiversity, ecosystem services and conservation actions will be achieved through an environmental monitoring, assessment and reporting program to be established by OEH.

The reform package will deliver balanced legislation and positive outcomes for all stakeholders. Landholders will no longer be the sole party responsible for conservation outcomes and will be able to undertake legitimate land clearing and management activities unhindered. The environment will benefit from significant new investment focused on priority threatened species and priority conservation areas.

Comment

As the EDO points out:

There are no clear environmental baselines, aims or targets. There is no ban on broad-scale clearing, no mandatory soil, water and salinity assessment, and no ‘maintain-or-improve’ standard to ensure environmental outcomes – either at the site scale or at the landscape scale. Provisions are less stringent, less evidence-based, less accountable, and are likely to result in significant clearing increases in NSW.

The government has made no attempt to quantify the extra amount of land clearing that is likely to occur.