Displaying items by tag: biodiversity conservation

One of the Albanese Government’s promises was to take action to halt the alarming decline in our biodiversity and rewrite the ineffective laws that were highlighted in the Samuel Review into the Environment and Biodiversity Conservation Act. In December 2022 the government announced what was dubbed the Nature Positive Plan with a comprehensive list of actions that are intended to be implemented.

The key part of the plan is to implement national environmental standards that will set the outcomes that the laws are seeking to achieve.

The timing of the introduction of the plan was to carry out consultation in stages and release an exposure draft of the legislation by the end of 2023. We are nowhere near that objective; in April the Minster for the Environment, Tanya Plibersek, announced that legislation will soon be presented to parliament to set up two new agencies:

• Environmental Protection Agency, to act as a national watchdog for nature
• Environmental Information Australia so everyone has access to authoritative data on our environment

But these are the easy parts. The major parts of the plan have been deferred with no time frame.

What use is a watchdog with no standards to enforce? The government appears to have given in to the mining lobby. There are also reports of warnings from the Western Australian Labor government of a backlash in the electorally critical state. This is so frustrating when the need for comprehensive action is so urgent.

The major environment groups that were involved in the consultation process are worried that the process will be drawn out for a long time. The government has made a promise so we must be optimistic that the steps outlined in the Nature Positive Plan will be implemented. But how much more destruction will occur in the meantime?

Currently several coal mine expansions are up for approval that will cause loss of important habitat. An example is the Moolarben mine near Mudgee owned by Yancoal. The expansion application before the NSW government would make the mine one of the largest in Australia. Even according to the mine manager it would destroy 113 ha of critical koala habitat. The company says they will create offsets on their own land. Development assessments should be made in the context of the total cumulative impacts on habitat.

Multiple threats to koala habitat

Koala habitat is under multiple threats from forest logging, mining and urban expansion. The promised Great Koala National Park is one area where logging is continuing. Plus, there is a sustained attempt by the logging industry to ‘redefine’ the borders of the park. Little is known about koala habitat being cleared on freehold land – there is no accurate data or independent assessment required.

Actions that are being taken

Nature repair market

Legislation to roll out a ‘nature repair market’ was passed in March 2024. This legislation aims to facilitate voluntary or philanthropic investment in conservation projects by giving them a definable value with government-backed quality assurance of processes to manage the market for these biodiversity credits.

To make these credits worthy of investment and tradeable, they need a governance framework, measurement systems, certification, registration, contracting, trading, monitoring, reporting, accounting, auditing, and a bureaucracy for administering, consulting and advising on all of it. All this is still in the process of being established. The CSIRO has been engaged to lead a research collaboration to design and pilot an ecological knowledge system for the market.

This all sounds like an offset system that has a bad reputation from the experience of the biodiversity offsets that enable destruction of habitat under the NSW Biodiversity Conservation Act. The Greens made sure the legislation prevented the credits from being used as offsets.

Environment Protection Agency

This authority will be responsible for:

• issuing permits and licenses
• project assessments, decisions and approval conditions
• compliance and enforcement

It would be able to issue stop-work notices, fines and be able to audit businesses to check their compliance with developments approvals. It will also oversee enforcement of other environmental laws such as animal trafficking, recycling and sea dumping.

Environment Information Australia

This agency will:

• provide government and public with authoritative data and information about the environment
• develop an online database to help give business quicker access to data
• publish State of the Environment reporting every two years
• report on progress towards environmental outcomes

There is a plethora of international agreements that relate to the protection of the Earth’s biodiversity. The overarching convention is the Convention on Biological Diversity (CBD) that was signed by 150 government leaders at the 1992 Rio Earth Summit. Examples of other agreements are the Ramsar Convention that aims to protect internationally significant wetlands and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). They don’t all work in isolation thank goodness! There is a Liaison Group of the Biodiversity-related Conventions.

The most recent major strategic plan to address the sad state of global biodiversity was the agreement to adopt the 20 Aichi Biodiversity Targets for 2010–20 period. The meeting was held in Aichi Prefecture in Japan; hence the name.

However, according to an assessment by the United Nations, none of the 2020 Aichi targets were met. At the moment, committing to the Aichi targets is voluntary and results from each party are self-reported to the CBD. Because these agreements are non-binding, the path to translating and implementing targets into national legislation is unclear.

One major reason for the lack of progress has been the continuation of subsidies and other incentives potentially harmful to biodiversity. An estimated $500 billion in government subsidies potentially cause environmental harm, according to the UN report.

Progress in establishing protected areas

One area of progress is the target relating to the establishment of protected areas. The objective was that by 2020, at least 17% of terrestrial and inland water, and 10% of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, are conserved. This target has been nearly met with 15% of land and 7% of oceans being protected by 2020.

What happens post 2020?

The countries that signed the CBD have their own COPs (Conference of the Parties) just like the UN Framework Convention on Climate Change. The 15^th meeting is a whole series of meetings with the first held in 2021 to develop a strategic plan post 2020. This meeting was hosted by China from the city of Kunming. Parties to the CBD adopted the Kunming Declaration to keep the political momentum of the negotiations delayed by the COVID-19 pandemic.

The Kunming Declaration recognised that progress has been made in the last decade, under the 2011–20 Strategic Plan for Biodiversity but expressed grave concern that such progress has been insufficient to achieve the Aichi Biodiversity Targets. It acknowledges that:

the unprecedented and interrelated crises of biodiversity loss, climate change, land degradation and desertification, ocean degradation, and pollution, and increasing risks to human health and food security, pose an existential threat to our society, our culture, our prosperity and our planet.

The declaration includes a long list of principles that are being developed into a Post 2020 Global Biodiversity Framework for actions. The framework is built around the recognition that urgent policy action is required to turn around the trend of biodiversity loss. The objective is that the trend should stabilise in the next 10 years (by 2030) and allow for the recovery of natural ecosystems in the following 20 years. The ultimate goal is to achieve the Convention’s vision of ‘living in harmony with nature by 2050’.

The 30 × 30 pledge

The Declaration notes a first step, the pledge by many countries to protect and conserve 30% of land and sea areas through well-connected systems of protected areas and other effective area-based conservation measures by 2030. This known as the 30 × 30 pledge.

More than 100 countries have pledged to adopt this goal including the USA. Joe Biden announced his commitment a week after he became president.

There are lots of other goals in the Kunming Declaration. The details of measures to achieve these goals will be hammered out at COP15 of the UN Convention on Biological Diversity in Montréal, Canada, from 5–17 December 2022.

Australia’s response

The Minister for the Environment, Tanya Plibersek, in releasing the 2021 State of the Environment Report, announced that Australia will aim to exceed the 30 × 30 agreement. This will require additional 50 million hectares of landscape to be protected. This does not need all to be in national parks.

Under the government’s plan 20 places and 110 species will become the focus of conservation efforts selected based on several factors including their uniqueness and risk of extinction. The areas include the forests of Far North Queensland, Kakadu National Park in the Northern Territory and Kangaroo Island in South Australia.

This announcement raises many questions. As the Chief Conservation Officer of the World Wildlife Fund points out, Australia has more than 1,900 listed threatened species. This plan picks 110 winners. It’s unclear how it will help our other ‘non priority’ threatened species such as our endangered greater glider.

Given the powers that the states have over management of protected areas and land clearing, how will the selection of the additional protected areas be determined? Can it be on a bioregional basis that ignores state boundaries. How will the ocean areas be defined – as sanctuary zones?

An article on the NPA NSW website explains the task at hand. The WWF commissioned protected areas spatial analyst Dr Martin Taylor to estimate what it would take to create a truly ecologically representative network of protected and conserved areas as part of the 30% target.

Protected land objectives required for NSW

In NSW, 7.6 million hectares of land occurs in the National Reserve System, equivalent to just 9.6% of the total land area. Moreover, more than 60% of ecosystems have less than 15% of their area protected.

Achieving significant progress towards protecting 30% of NSW would require not just a significant expansion of legal protection, but also revegetation and rewilding of millions of hectares of long-cleared lands in the sheep and wheat belt. This would require significant investment from state and federal governments as well as corporate and philanthropic support through natural capital markets. In some cases creation of new protected areas may be contested by some locals. It is also becoming less realistic as global heating and extreme weather events worsen.

Completing the transition out of native forest logging could secure an additional two million hectares of public native forests. Transfer of Crown lands, including large areas of travelling stock routes with high conservation values, to NPWS or Indigenous communities for conservation management, would need to be a major contributor to the 30% target. Supporting First Nations to voluntarily declare additional Indigenous Protected Areas could play a key role. Purchases of large pastoral stations in the Western Division could provide land justice for Indigenous communities through handback or co-management, and diversify rural economies as global heating increasingly makes some grazing and farming enterprises sub-economic.

The Biodiversity Conservation Trust’s capacity to support private landholders to establish conservation agreements would need to be greatly expanded – without relying upon perverse offsets – including through innovative partnerships that also deliver carbon outcomes with social, cultural and economic co-benefits.

The Australian government has a framework of strategies and programs for the management of biodiversity. According to the Department of Environment and Energy, Australia’s Biodiversity Conservation Strategy 2010–2030 guides how governments, the community, industry and scientists manage and protect Australia's plants, animals and ecosystems.

The recent review of the strategy is puzzling. A well-defined program seems to have been thrown out the window in its implementation but some parts of it are working well such as the Threatened Species Action program.

The Australian Conservation Foundation and WWF Australia recently released their joint submission on the 2018–19 budget. This revealed that the Australian government has slashed environment spending by one-third since 2013. This cut in spending is one of the reasons for the sorry record in maintaining biodiversity.

State of the Environment reports document the extent of the problem. For example, between 2011 and 2015, there was a 66% increase in the number of critically endangered animals (from 38 in 2011 to 63 in 2015) and a 28% increase in critically endangered plants (112 in 2011; 143 in 2015). By critically endangered, we mean that extinction is a real possibility in the short term for these species. Immediate action is needed if we are to avoid terminating millions of years of independent evolution, as these biological lineages die out.

2010 Biodiversity Strategy

The Australian government first developed a biodiversity strategy in 1996. An update was made in 2010. It is intended to provide a guiding framework for all levels of government to conserve our national biodiversity over the next 20 years.

The document is comprehensive, comprising 100 pages. It provides an overview of the state of Australia’s biodiversity and outlines collective priorities for conservation. The vision of this strategy is that Australia’s biodiversity is healthy and resilient to threats, and valued both in its own right and for its essential contribution to our existence.

The strategy identifies three national priorities for action to help stop the decline in Australia's biodiversity:

• engaging all Australians in biodiversity conservation
• building ecosystem resilience in a changing climate
• getting measurable results

The strategy contains 10 interim quantified national targets for the first five years.

Five Year Review of the Strategy

A review of the first five years of the strategy was released in 2016.

The review report is very critical of the strategy but to my mind the main reason is that not enough effort has gone into its implementation. For example it is criticised for being long and technical but also for providing inadequate guidance for decision makers to determine how best to direct investment for biodiversity conservation. That detail would have made the document much longer and even more technical. There is confusion in the review between the roles of the strategy and the programs to implement action.

New Strategy – How can they be Serious?

On 25 November 2016, Australian, state and territory environment ministers agreed to revise the 2010 strategy taking into account the findings of the five year review.

Called Australia’s Strategy for Nature 2018–2030: Australia’s Biodiversity Conservation Strategy and Action Inventory, the draft revised strategy is open for public comment until 16 March 2018. Click here to make a submission.

In response to the review the government has thrown out the baby with the bath water. The Department of Environment and Energy’s website states:

The strategy has been revised to improve its ability to drive change in biodiversity management priorities, and its alignment with Australia's international biodiversity commitments.

How can that be? The 100 page document has been replaced by one with 17 pages. There is a complete absence of actions, only statements about what could be done.

Vision

The vision of the new draft is that:

Australia’s nature, now and into the future, is healthy and resilient to threats, and valued both in its own right and for its essential contribution to our health, wellbeing, prosperity and quality of life.

Basically unchanged from the previous strategy.

How much information can be contained in a 17 page document that uses up lots of pages in preambles and background?

The goals are simplistic to say the least; that is:

• to connect people with nature
• to care for nature
• to build and share knowledge

The priorities in meeting these goals as described are all text book stuff. They could be applied to any country. There is nothing specific to Australia’s characteristics and biodiversity situation. As usual with the current governments there is no mention of climate change.

Here are three quotes to give an idea of the lack of specifics:

Objective 3. Increase understanding of the value of nature

Australians understanding of the value of nature, and its role in health and wellbeing can be improved through increasing children’s learning about nature, encouraging organisations and businesses to report their performance against environmental measures, or using environmental accounts to more clearly demonstrate the value of nature.

Objective 8. Use and develop natural resources in an ecologically sustainable way

… Sustainable use and management of natural resources can be achieved through strategic planning and trade-offs between use and protection …

Objective 10. Increase knowledge about nature to make better decisions

There are opportunities to target research to reduce gaps in knowledge and improve management strategies, to support development and implementation of innovative tools and techniques, and to build connections between the environmental disciplines and social sciences …

Is there any Action Guidance?

The draft strategy devotes one whole page to the proposed actions but there is no proposed action. The proposal is for governments to develop an ‘action inventory’, a giant database that will illustrate efforts that ‘contribute to the strategy’s goal and objectives’. The content of this one page then goes on to suggest what information might be included and who might find the inventory useful:

It is a concept for testing and discussion. The online capabilities, content and timelines for an action inventory are yet to be finalised and will be informed by this consultation process.

Threatened Species Action

The biodiversity document is puzzling when there are examples of successful action. In 2015 the government launched a threatened species strategy and promised to make it a priority. The year one report card showed that 21 of the 26 objectives in that report were achieved. The targets and actions were clearly defined and included tackling feral cats and fox-baiting programs. Certain species were identified for action to improve their population numbers and habitat. This contrasts with the overall biodiversity strategy that should be focused on actions that reduce the risks of more species becoming threatened such as land clearing and increasing the reserve system.

The government doesn’t seem to know what to do about our loss of biodiversity or are they just totally disinterested?

One of the major concerns about the NSW government’s biodiversity laws is the fundamental flaws in the Biodiversity Offsets Scheme, which will lead to the widespread clearing of remnant bushland in the Greater Sydney area, in return for developers' cash payments – see STEP Matters Issue 191. The application of these payments is unlikely to make up for the biodiversity that is lost. Several groups are so concerned that they have written a joint open letter to the premier. It is not only environment groups involved. Others are the Heart Foundation, the Institute of Landscape Architects and the National Trust.

The letter (see below) calls for action from the government to make the rhetoric a reality that the legislation will improve biodiversity within Sydney. Members of the general public are invited to sign the letter.

Dear Premier

With Sydney’s population projected to grow to 6.4 million by 2036 and the worsening climate change-related urban heat island effect, we write to urge you to ensure that adequate levels of green space are provided to all Sydney-siders and Sydney’s unique bushland and wildlife is protected.

Sydney-siders highly value access to a range of formal and informal green spaces – trees, bushland, parks and sporting fields. This is borne out in previous public surveys and the strong community reaction whenever public green space is sold-off or alienated for development.

Extensive research, both in Australia and overseas, clearly shows that the environmental, social, spiritual and economic benefits of green spaces are irrefutable. Green spaces cool our city, reduce energy costs, increase property values, promote healthy lifestyles, improve air and water quality, reduce net carbon emissions, prevent stormwater runoff and provide important wildlife habitat.

Sydney's green spaces also play a key role in the health of Sydney's iconic blue spaces. For example, the revitalisation and resilience of Greater Sydney's six major river systems – Hacking, Georges, Cooks, Parramatta, Nepean and Hawkesbury, as well as Botany Bay and Sydney Harbour depends on the health and connectivity of the surrounding vegetation.

Despite these benefits, current NSW government policy and legislation is failing to protect Sydney’s green spaces as these are actively being depleted by clearing and alienation for grey urban and industrial infrastructure development. The Total Environment Centre’s SOS Green Spaces map highlights over 70 green spaces currently at risk of destruction. This includes peri-urban areas undergoing rapid development and the impacts of major transport infrastructure projects such as the South East Light Rail and WestConnex. This deteriorating situation must be addressed as a matter of urgency.

A Plan for Growing Sydney Direction 3.2 aims 'to create a network of interlinked, multipurpose open and green spaces across Sydney' also known as the Green Grid. This concept is also supported by the work of the Greater Sydney Commission. However, specific actions, policies, legislative changes and funding are required to shift this concept from rhetoric to reality.

As key stakeholders representing a wide range of interests and expertise about urban green spaces, we urge you to:

• Assign responsibility for planning, implementing and monitoring Sydney’s green spaces to an independent body with the mandate, skills, funding and resources to achieve a comprehensive network of formal and informal green spaces designed to maximise benefits to Sydney-siders and protect Sydney's unique bushland and wildlife in the long-term.
• Prevent the clearing of bushland in the Greater Sydney area unless strict like-for-like offsets can be located and protected in perpetuity within the close vicinity of the bushland being cleared (note: under the government’s current draft Biodiversity Conservation Regulation 2017, the proposed Biodiversity Offsets Scheme will lead to widespread clearing of Sydney’s remnant bushland, including threatened species habitat, particularly in Western Sydney).
• Prevent the alienation of community and Crown land, as well as removal of the tree canopy, from Sydney’s green space network.

Sydney's green spaces are a vital component of its liveability and resilience as a city. Your positive action in protecting and enhancing our green spaces would strengthen your leadership in Australia’s much-loved and admired iconic first city, for current and future generations.

We, the sixteen signatories to this open letter look forward to an opportunity to discuss this important issue further with you.

Over the past 200 years NSW has lost almost half of its bushland through land clearing and only 9% of what is left is in good condition. Clearing of native vegetation and habitat modification are the greatest threats to the survival of the majority of species on the threatened list.

The biodiversity laws that the government passed in late-2016 place a great deal of emphasis on offsetting as a means of allowing development to occur. The theory is that biodiversity lost when clearing for a development can be replaced by providing for restoration or protection of biodiversity in another place.

The Nature Conservation Council recently published a report on the operation of NSW’s biodiversity offset schemes, called Paradise Lost: The Weakening and Widening of NSW Biodiversity Offsetting Schemes, 2005–16. This article outlines the key findings of the report.

As you can tell from the title, the principles of offsetting have been severely compromised. We can expect worse to come under the new laws.

Concept of Biodiversity Offsetting

Biodiversity offsetting has been in use in NSW since 2005 under various pieces of legislation.

One example is the money that was paid by NSW Transport Infrastructure Development Corporation to compensate for the loss of 0.33 ha of Blue Gum High Forest when the railway station at Hornsby was expanded. The money was used to help purchase land to expand the area of protection of Blue Gum High Forest next to Dalrymple-Hay Nature Reserve.

We have written before about the theoretical difficulties of using offset schemes to compensate for lost vegetation and habitat loss and the measures that should be taken to counteract these difficulties.

The basic principles that should be observed are given below.

Offsets hierarchy

Offsets should only be used after appropriate avoidance and minimisation measures have been taken according to the mitigation hierarchy. A biodiversity offset is a commitment to compensate for significant residual adverse impacts.

No net loss

A biodiversity offset should be designed and implemented to achieve measurable conservation outcomes that can reasonably be expected to result in no net loss and preferably a net gain of biodiversity.

Some areas should be off limits – red flags

There are situations where residual impacts cannot be fully compensated for by a biodiversity offset because of the irreplaceability or vulnerability of the biodiversity affected.

Consider whether restoration is possible

Biodiversity offsetting assumes ecosystems and habitats can be re-created. This is often not the case, particularly if offset sites have been highly degraded and lost essential characteristics. In Australia, a number of studies have shown revegetated areas rarely resemble the ecosystem it was intended they would replicate.

Timing mismatch

It takes some time for species to establish a viable population in a new habitat. Offsetting should allow for a phased-in approach to prevent the total loss of species that are already threatened. The loss of hollow-bearing trees is a particular example.

Stakeholder participation

In areas affected by the project and by the biodiversity offset, the effective participation of stakeholders should be ensured in decision-making about biodiversity offsets. All stages including their evaluation, selection, design, implementation, monitoring and communication of results to the public should be undertaken in a transparent and timely manner.

Long-term management

The design and implementation of a biodiversity offset should be based on an adaptive management approach, incorporating monitoring and evaluation, with the objective of securing outcomes that last in perpetuity.

Case Studies

There are five types of offsets schemes operating in NSW. The performance of each of these schemes was examined through the lens of eight case studies:

• Namoi catchment property vegetation management plans – approval for land clearing under the Native Vegetation Act
• Kellyville in northwest Sydney – creation of credits under the BioBanking scheme
• Wagga Wagga local environment plan – biodiversity certification for strategic planning
• Albury local environment plan – biodiversity certification for strategic planning
• Huntlee development in Hunter Valley – Office of Environment and Heritage principles for biodiversity offsetting
• Boggabri and Maules Creek coal mines – development consent – Office of Environment and Heritage principles for biodiversity offsetting
• Warkworth mine extension – Office of Environment and Heritage principles for biodiversity offsetting
• Mt Owen mine expansion – NSW biodiversity offsets policy for major projects

The report provides a detailed description of the features of each case study and compares them with the expected standards. The criteria for the analysis were:

• be a last resort after avoidance and mitigation (including appropriate ‘red flags’)
• deliver biodiversity equivalence (like-for-like)
• provide security and achieve benefits in perpetuity
• deliver a net gain in biodiversity
• be additional to conservation measures already in place
• be enforceable, resourced and well-managed
• be subject to a rigorous monitoring and evaluation framework
• be open and transparent

 It was demonstrated that biodiversity offsetting is failing to deliver the environmental outcomes promised. No case studies resulted in outcomes deemed ‘good’ and the outcomes were:

• ‘disastrous’ in one study (Boggabri/Maules Creek)
• ‘poor’ in five studies (Warkworth, Mount Owen, Huntlee, Albury, Kellyville)
• ‘adequate’ in two studies (Namoi, Wagga Wagga)

For more details read the report.

Comparison of Offset Schemes

The report considers that a scheme should have the following features:

• excludes discounting of offset credits
• excludes supplementary measures
• excludes mine rehabilitation
• clear standard for environmental outcomes
• does not allow payment in lieu of offsets
• red flags
• impacts on water quality and soil are taken into account
• like-for-like offsetting

The case studies demonstrate the features of the five biodiversity offset schemes in operation. It was found that the later models contained fewer best-practice principles and standards than the earlier ones:

• only the first offsets scheme (the Environmental Outcomes Assessment Methodology under the Native Vegetation Act) contained all eight features
• the Biodiversity Offsets Policy for Major Projects introduced by the Baird government in 2014 contained only one of the eight features

Overall, biodiversity offsetting schemes have failed to deliver the promised outcomes and they have become weaker as standards have slipped.

Draft Biodiversity Offset Scheme is Even Worse

The latest Draft Biodiversity Offset Scheme (BOS) and the Biodiversity Assessment Methodology (BAM) that will be used to determine offsetting does not include any of the features described above.

The BAM is a metric-based tool that allows biodiversity impacts and improvements to be assessed and quantified in terms of ecosystem credits and species credits, collectively known as biodiversity credits that will need to be offset.

The proponent can choose to between three methods of meeting their offset obligation:

• buying credits for a suitable site under the offset rules from the market, or they can establish a Biodiversity Stewardship Agreement on their own land and retire the credits generated
• make a payment to the Biodiversity Conservation Trust that will source the offsets
• paying for conservation actions as approved by the consent authority

Key points for submissions

The key points on the features that should be in the offsetting legislation and the changes that are needed are listed below.

1. Discounting of biodiversity credits should not be permitted

The government proposes introducing ‘discounting’ that will allow offset credit requirements to be ‘discounted’ based on claimed social and economic benefits. Economic prioritisation policies are likely to contribute to the incremental and permanent loss of significant biodiversity in NSW, and undermine the credibility of the policy.

2. Supplementary measures should not be included

The BOS allows the use of ‘biodiversity conservation actions’ that may include research or surveys into the biodiversity under threat. This is not a genuine offset. The Scientific Committee stated in a report on this idea that this:

… is clearly a case of developers being able to buy themselves out of any obligation to protect biodiversity in any meaningful way.
NSW Scientific Committee (2014) Submission on the Draft NSW Biodiversity Offsets Policy for Major Projects

3. Allowance of mine rehabilitation

Numerous critics have questioned whether degraded mine sites can be effectively restored and in any case mine site rehabilitation should be an obligation of the mining company. Recently, developers have been permitted to use mine rehabilitation sites to generate biodiversity offset credits. The government proposes continuing this practice under the draft BOS.

4. Clear standards

The Biodiversity Conservation Act requires that the biodiversity assessment method should adopt a standard that result in no net loss but the draft BAM does not have a clear objective to protect biodiversity.

5. No payment in lieu

The draft BOS would allow proponents to discharge offset requirements simply by paying money into Biodiversity Conservation Trust. The development could proceed without certainty that the required offset is possible.

6. Red flags

The BOS does include some restrictions on proposals that cause ‘serious and irreversible impacts’ (SAII) but the criteria for defining SAII are too weak. It includes only the most endangered and restricted area species and ecological communities. In the case of major projects the SAII risks can be ignored. The net effect will be that EECs and endangered species not listed in the list of SAIIs, e.g. STIF and Duffys Forest, could be cleared without offset requirements if the land area is below the clearing thresholds. A council’s discretionary DCP would be the only protection.

7. Other impacts on water and soil

Other impacts should be considered in the BAM. The assessment methodology covers only a limited range of biodiversity values such as vegetation integrity and habitat suitability but not soil health and water quality and availability.

8. Like-for-like principle

The like-for-like principle that offsets should replace the values being lost is undermined in several aspects. For example:

• Offsets can be found from a radius of 100 km. It will be easier and cheaper to find offsets outside urban areas undermining preservation of biodiversity and threatened species and EECs such as STIF. The loss of existing geographic distribution if sites in urban areas are lost will undermine species resilience and long term adaptation to climate change.
• Offsets can be used for species across similar vegetation classes or between species. This even applies to threatened species; a koala can be swapped for a wallaby.

Conclusion

The government is proceeding with this model despite warnings expressed by leading scientists, lawyers and conservationists. The government basically has ignored the advice of the experts because it is wants to deliver development at any cost. Implementing the BOS will in fact add extinction pressures to the very species and ecological communities it is supposed to protect by facilitating the more rapid and widespread destruction of threatened species habitat across NSW.

Please Send a Submission

Closing date: Wednesday 21 June. Lodge online or post to Land Management and Biodiversity Conservation Reforms, Office of Environment and Heritage, PO Box A290, Sydney South, NSW 1232.

In May the NSW government released regulations and codes that provide some of the detail on how the biodiversity legislation will operate in practice. But it is not complete so there is still a lot of uncertainty. The call for submissions is an opportunity to express a view on what should be in the areas that are missing as well as the available drafts.

There is a large volume of information to digest. The most useful one is the Submission Guide: Ecological Sustainable Development.

Consistent with STEP’s interests we focus on the aspects that relate to the management and preservation of urban bushland. Refer to our article on the issues regarding the Biodiversity Offsets Scheme.

The major areas that are missing are the Vegetation State Environment Planning Policy (Vegetation SEPP) and some of the maps that will underpin the decision-making process. This is most unsatisfactory! The legislation is due to come into force on 25 August. It is an abuse of due process to be conducting consultation on incomplete information.

The Vegetation SEPP will regulate clearing of vegetation in urban areas and environmental conservation/management zones where clearing does not otherwise require development consent under the main planning act, the Environmental Planning and Assessment Act. So the zones that are covered include E2, E3 and E4 zones.

The major concern is the inclusion of E2 zones in the clearing provisions. This zone is for areas with high ecological, scientific, cultural or aesthetic values outside national parks and nature reserves. The zone provides the highest level of protection, management and restoration for such lands whilst allowing uses compatible with those values.

E3 (environmental management) and E4 (environmental living) zones accommodate low-impact residential development but contain, or are near, bushland so have particular environmental or risk factors.

So why is the Vegetation SEPP regulating clearing on E-zone land, in particular E2 land? Clearing should not be allowed except for bushfire safety and other protection reasons.

Examples of land that could come under the new regulations are near the Blue Gum High Forest area in Dalrymple Hay Reserve and the area between Berowra Heights and Cowan near the Great North Walk. Most people assume the latter is national park but much of the natural scenery enjoyed by walkers is zoned E2, E3 and even RE1 (public recreation) and would have little protection under the proposed SEPP. Some E2 land is protected by being a BioBanking site or part of a conservation agreement, but not all.

Sensitive Biodiversity Values Land

There are certain areas, regardless of land area, that will require a biodiversity assessment (and offsetting if clearing is approved) if they are mapped in a Sensitive Biodiversity Values Lands map. The definition of areas included is very restricted.

Comment for submissions

The final map is not available and we understand many parts of NSW have not been properly assessed yet.

The resolution of the draft map on the website is too low to identify particular sites.

Areas that don’t meet the definition and should be included are endangered ecological communities (e.g. Sydney Turpentine Ironbark Forest and Duffys Forest EECs), buffer zones around EECs and areas of critical habitat, e.g. Ku-ring-gai Flying Fox Reserve.

Will it be possible to nominate areas for inclusion? Local land managers should be able to have a say on what is Sensitive Biodiversity Values Land.

There is a real danger that clearing of EECs such as STIF could rapidly turn it into critically endangered. A council’s discretionary DCP would be the only protection. It takes some time for a change in classification of vegetation communities to be finalised. In the meantime will they be cleared beyond hope of recovery?

Clearing Provisions

The clearing provisions are determined by categories of development.

Development consent required

Development consent is required (under the Environmental Planning and Assessment Act) for larger developments and infrastructure.

The Biodiversity Assessment Method (BAM) applies to clearing and the flawed offset provisions will apply.

Development consent NOT required

When development consent is NOT required, e.g. clearing of undeveloped land, the Biodiversity Offset Scheme (BOS) thresholds apply as prescribed below:

The thresholds are high.

For clearing above the threshold the BOS applies and approval will be determined by the Native Vegetation Panel. A biodiversity offset obligation will be imposed. Local councils could be given authority to do this assessment. We don’t know who will be appointed to the Native Vegetation Panel.

Clearing below the threshold will be regulated under the local council’s Development Control Plan (DCP) through a permit system. This will be the most likely situation in urban areas,

There is currently wide variation in the standards of DCPs, for example in relation to individual trees. Ku-ring-gai requires a permit for clearing of most native trees and vegetation and non-native trees while Hornsby only controls clearing of locally endemic native trees or trees in heritage zones. It is possible that the government will impose standard clauses in DCPs. Indeed would these be desirable if a high standard is applied?

Comment for submissions

It is essential that the objectives of clause 5.9 of the standard LEP are carried over to DCPs under the new scheme that is ‘to preserve the amenity of the area, including biodiversity values, through the preservation of trees and other vegetation’.

Submissions should explain desirable standards for the DCP regulations. One area that has not been covered is how the DCP clearing codes will fit in with the need for wildlife corridors and the Greater Sydney Commission’s guidelines for the Green Grid and minimum tree canopy cover.

Other Impacts of Clearing Regulations

A major issue with the local regulation of clearing is that there will be no monitoring of loss of vegetation communities and assessment of cumulative impacts. There needs to be a database of regional clearing approvals.

There is uncertainty about the legal status of DCP regulations and the ability to prosecute if breaches occur.

Areas of western Sydney that will be subject to the greatest amount of new development need as much protection as possible of native vegetation and habitat. The Cumberland Plain Woodland has already had large areas cleared. The allowable clearing and the use of offsets under the proposed regulations will further reduce the area of remaining native vegetation and habitat.

Conclusion

Given the limited areas of bushland in urban areas, it is inevitable that there will be more losses of irreplaceable biodiversity. The offsets provisions do not adequately factor in the scarcity of suitable offsets in urban areas (see article below). The rules must be amended to ensure maximum protection of native vegetation in urban and E zones, particularly areas containing threatened species.

Please Send a Submission

Closing date: Wednesday 21 June. Lodge online or post to Land Management and Biodiversity Conservation Reforms, Office of Environment and Heritage, PO Box A290, Sydney South, NSW 1232.

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.

In STEP Matters, Issue 183, p4 (Concern about Changes to Biodiversity Laws) we explained the reasons for concerns about the NSW Government’s plans to rewrite the biodiversity laws. The new legislation is due to be released in March 2016 and the indications are that protections will be significantly weakened.

The NSW Government is currently considering legislation to implement the recommendations of the Independent Biodiversity Legislation Review Panel contained in their report released in December 2014.

This information came from an article written by Margery Street for Blandfordia, the newsletter of the North Shore Group of the Australian Plants Society.