NSW Landclearing Code invalid
On 9 March, the Land & Environment Court ordered that “on and from 24 August 2017, the Land Management (Native Vegetation) Code 2017 has been invalid and of no effect.” This extraordinary order stemmed from a legal error made by the NSW Minister for Primary Industries, but belies a profound problem with the new biodiversity and land clearing laws and management system in NSW.
Following the Court order, our CEO David Morris stated, “In conceding that they failed to follow due process, the Government gives the strong impression of making laws on the run. This is not simply a matter of incorrect paperwork. Ecologically sustainable development is not just another box to tick – the Environment Minister has a legal responsibility to protect biodiversity in this State.”
Last August, against the advice of expert ecologists, scientists, Landcare farmers, lawyers and community members across the state, the NSW Government commenced a new scheme for regulating clearing of vegetation. EDO NSW brought legal action on behalf of the Nature Conservation Council of NSW to challenge the Code on two grounds. By conceding on the first ground - that the Environment Minister failed to provide agreement on the new code - the Government did not have to answer the second ground of the challenge in Court – that, when making the code, the Ministers did not take into account the principles of ecologically sustainable development (ESD), as legally required.
This would have been particularly awkward for the NSW Government, as it would have had to show how it thought that reintroducing broad-scale land clearing of native vegetation is consistent with the ESD principles, including: the precautionary principle, providing equity for future generations, and ensuring that biological diversity and ecological integrity are a fundamental consideration as required by law.
After filing the case in November 2017, we immediately put the Government on notice that any clearing occurring under the Code could be unlawful, and ‘extreme caution’ should be exercised by any landholder undertaking any potentially unlawful clearing. Contrary to our advice, the Minister for Primary Industries did not communicate this risk to landholders.
Regrettably, the Minister remade the Code without amendment the very same day as the Court declared it invalid. Although not unexpected, it is very disappointing that this was done without addressing any of the serious concerns raised in the legal challenge about a failure to address ESD principles.
We work with many landholders across the state who are amazing stewards of their land and biodiversity and will continue to do so, despite the legal and policy low point that NSW has now hit. Compounding the difficulty for landholders who have been trying to do the right thing under the Code has been the fact that crucial maps to indicate where clearing can occur are still not ready, even though the scheme commenced over six months ago.
The NSW Government has a responsibility to ensure the Code has ecological rigour, transparency, clarity and is consistent with the principles of ESD. Landholders should not have to bear the liability risk for unclear legal requirements.
The proceedings provided an opportunity to properly pause and ensure that any new Code rules are evidence-based, clear and proportionate - essential to ensuring healthy resilient rural landscapes now and into the future. Instead, the Environment Minister again signed off on a Code that allows the broad-scale clearing of the nature and wildlife she is supposed to protect.
Challenging the failures of Government Ministers to adhere to laws made by Parliament is vital to defending democratic principles and the rule of law. We are now scrutinising the new Code.