NSW biodiversity reforms 2016 – Equity? – EDO NSW

NSW biodiversity reforms 2016: issue 5 – Equity?

The word ‘equity’ has appeared often as the NSW Government has prepared its biodiversity legislative and policy reform package. But how fair are the proposed reforms? We take a look at three key examples.

This is the fifth of six key issues we’ve identified in the reform package. View all six issues here.

‘Equity’ has appeared throughout the long process that has resulted in the legislative and policy reform package currently on public exhibition. Equity was a key theme of the report released by the Independent Biodiversity Legislation Review Panel in 2014.[1] Equity has been used as a key selling point for the new package.

Below we apply three equity tests to the reform package – between farmers and miners, current and future generations, and private and public interests. 

Farmers and miners
Farmers in NSW have rightly pointed out that under the current Native Vegetation Act, their land use can be constrained by the ban on broadscale clearing as applied by the environmental outcomes assessment methodology, while the mine next door seems to be able to clear significant vegetation under different rules.

EDO NSW has consistently argued that the way to create equity in this instance is to apply the same standard to all development. That is, any clearing, be it for farming development, a mine, a public infrastructure project, or a private urban development, should be required to meet the same essential standard – that the clearing must improve or maintain environmental outcomes.

Instead of applying a clear and consistent standard for all land clearing activity, the current reforms simply lower the standards for farmers.

Does this mean the reforms achieve equity with the mine next door? No. The new system still has special rules for major projects. Serious and irreversible environmental impacts can lead to a refusal for small developments, but for major projects such as mining, these are simply additional considerations: they do not prevent the project going ahead.

Major projects – the very projects with the greatest potential impacts on biodiversity – have ‘streamlined’ rules, which may become even more streamlined under recently announced planning reforms. Under the biodiversity reforms, mines can get biodiversity offset credits for rehabilitation undertaken at the end of a project, which may be in as much as 30 years, more than enough time for an endangered species or ecological system to disappear.

Current and future generations
We discussed how the reforms fail to satisfy the ESD principle of ‘intergrenerational equity’ in the second blog in this series.

The proposed reform package has no effective safety net for avoiding ‘serious or irreversible’ environmental damage. Our grandchildren may therefore never enjoy seeing a regent honeyeater or the Warkworth Sands woodland.

A regulatory system that allows more land clearing also has serious carbon implications. If, as seems likely, relaxing clearing controls will result in a significant increase in land clearing, then future generations will need to dedicate greater resources to meeting carbon emission reduction targets to mitigate dangerous climate change. 

Public and private interests
The new regime outlined in the reform package does include open standing provisions for any person to bring proceedings under the legislation. But if you drill down into the detail, it is only landholders who can contest the boundaries specified in the land use map described in the first blog in this series, and many enforcement actions are at the discretion of the Environment Agency Head.

The reform package also requires less information to be placed on public registers compared to current laws – particularly in relation to land clearing. It will therefore be difficult for communities to analyse environmental outcomes and engage in the public interest. 

In this series, we have analysed some of the key issues of the NSW Government’s biodiversity reform package from the point of view of biodiversity conservation and environmental protection. The analysis shows that the reform package removes many of the protections under the current system.

So how could the proposed laws be improved? We turn to this question in the final blog in this series.

Final in this series: Opportunities lost

About the reforms

The NSW Government has released a draft law and policy package that represents a serious retrograde step for biodiversity, as it involves removing many of NSW’s long-held environmental protections.

Public submissions on the reforms close on Tuesday 28 June 2016. Find out how to get involved via the links below.



Support our work

If you would like to help us to continue helping the community to protect the environment through law, you can donate online, become a friend of the EDO, check out our current appeal, or read more about how you can support our work.



[1]  A review of biodiversity legislation in NSW: Final Report