Our top 10 concerns with the draft Biodiversity Conservation Bill 2016 and Local Land Services Amendment Bill

By EDO NSW Policy and Law Reform Director Rachel Walmsley

13 May 2016

The NSW Government’s proposed biodiversity legislative and policy package removes many of NSW’s long-held environmental protections, and represents a serious backward step for environmental law and policy in New South Wales. Here are EDO NSW's top 10 concerns with the draft Biodiversity Conservation Bill 2016 and Local Land Services Amendment Bill.

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1. Repeal of the Native Vegetation Act and environmental standards that go with it

The Local Land Services Amendment Bill replaces the Native Vegetation Act and its world class Environmental Outcomes Assessment Methodology (EOAM) with self-assessable Codes, exemptions and discretionary clearing. There are no clear environmental baselines, aims or targets. There is no ban on broadscale 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.

2. Heavy reliance on flexible and indirect biodiversity offsets

The proposed scheme is heavily reliant on ‘offsetting’ biodiversity impacts (by managing other areas for biodiversity) rather than preventing the impacts, and adopts the standards of the problematic Major Projects Offsets Policy. The Biodiversity Assessment Methodology (BAM) is therefore significantly weakened, for example, direct ‘like-for-like’ offsetting requirements are relaxed and can be circumvented. The option to pay money in lieu of an actual offset will result in net loss of certain threatened species and communities. Offset areas and set asides may be further offset later on rather than actually protected in perpetuity.

3. Conservation gains aren’t guaranteed in law, but dependent on funding decisions

The proposed regime places almost complete reliance on political, budgetary decisions (which may be short-term) to achieve biodiversity gains, rather than on protections in the Bill to prevent continued biodiversity decline. We strongly support incentives and stewardship payments to rural landholders to conserve and protect environmental values, but funding must be supported by rules and targets that stop valuable biodiversity being cleared in both rural and urban areas.

4. Uncertainty and discretion

While great reliance is placed on a ‘single scientific method’ to inform land-clearing decisions, there is discretion as to whether a consent authority actually has to apply the results. Offset requirements may be discounted based on other subjective considerations. There is even some discretion around “red lights”, i.e., where clearing and development could cause serious and irreversible biodiversity loss. SEPPs, Regulations and variation certificates provide for unnecessary exemptions from standard pathways. This will create uncertainty and loopholes instead of clarity and consistency.

5. Public participation is not mandatory

Decisions and instruments are not invalid even if consultation processes aren’t followed. Public consultation may be based on summary documents, and issues raised in submission may be ‘summarised’ by proponents instead of directly considered by decision-makers. The proposed public register provisions are far less detailed (for example, in terms of providing information about vegetation clearing and set asides).

6. Administration of a complex regime

The logic of repealing three and a half Acts to create one coherent Act and scheme is actually resulting in a carving up of responsibilities into the Local Land Services Act, Environmental Planning & Assessment Act, the new Biodiversity Conservation Act – and associated regulations, SEPPs and Codes. The NSW Government is departing from a key recommendation of the Independent Biodiversity legislation Review Panel – i.e., that land clearing involving a change of use should be assessed under planning laws – and is instead, handing the vast majority of clearing approvals to the Local Land Services which currently do not have the resources or expertise to carry out these functions. Furthermore, how the legislation will be applied will depend on future mapping, which is likely to be problematic and highly contested.

7. Contradictory legislation

On one hand, the Biodiversity Conservation Bill carries over provisions of our current threatened species laws (like listing threatened species and ecological communities by a scientific committee), while at the same time the Local Land Services Bill will increase known threats to those species. The Bills fail to tackle the conflict between reducing the impact of listed key threatening processes to biodiversity, and permitting more land clearing via self-assessed Codes and discretionary development applications. For example, the Biodiversity Conservation Bill lists “loss of hollow bearing trees” as a key threatening process, while at the same time, the Local Land Services Bill allows clearing of paddock trees without approval.

8. Lower environmental standards for ‘Biocertification’ at the landscape scale

The revised Biocertification scheme for large areas of land removes the requirement to ‘maintain or improve environmental outcomes’. Instead, it applies the BAM and imposes a broad discretion to impose conditions. It replaces the current positive test with a negative one - to avoid ‘serious and irreversible’ environmental outcomes as a result of biocertification. Removing the current test contradicts the Bill’s aim to conserve biodiversity and ecological integrity at regional and State scales.

9. Uncertain compliance, enforcement, monitoring and reporting

The NSW Government has been unable to estimate how much landclearing will occur under the new relaxed system – in particular, how much clearing will occur under the new self-assessable codes. The proposed legislation includes updated offences and penalties, but there is no indication who will undertake compliance and enforcement responsibilities. The Biodiversity Conservation Bill’s objects include improving and sharing knowledge (including drawing on local and Aboriginal knowledge) and the Biodiversity Panel’s report hinged on high-quality environmental data, monitoring and reporting. However, the legislation does not set clear requirements for these essential elements so it will be difficult to determine how much biodiversity is being lost under the relaxed rules.

10. Missed opportunities for key reforms

Rewriting our biodiversity laws is a once in a generation opportunity to put in place laws that will actually address the most significant threats to biodiversity. Unfortunately, the proposed legislation does not address necessary and important reforms, for example to address cumulative impacts and climate change impacts of clearing (and potential carbon gain). Instead, the Bill carries over deficiencies of current system for example: exemptions and wide discretion for projects with the biggest impacts (State Significant Development), vulnerable ecological communities are excluded from the definition of threatened species, and mining is still permitted in areas that supposedly offset previous losses and areas of outstanding biodiversity value.

Further analysis will be published on our website shortly and discussed at upcoming seminars and workshops.

The package will be on public exhibition until Tuesday 28 June 2016. During this time community members are able to make submissions. We’ll be running workshops and seminars across NSW in June and providing resources to help communities have their say. If you’re interested in making a submission and getting involved, please sign up to our weekly eBulletin.

Our resources and updates feature on our web page dedicated to the reforms.