widget_ebulletin_signup at EDO NSW

EDO NSW widget_ebulletin_signup


NSW biodiversity reforms 2016: issue 1 – Land clearing and the rationale for reform

A key rationale for the NSW Government’s biodiversity reform package seems to be that our current vegetation laws are not working. We disagree with this rationale.

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

To understand why we disagree with the Government's rationale, we need first to understand the key law relating to vegetation and land clearing, the Native Vegetation Act 2003.

The current regime
The current Native Vegetation Act was introduced to address systemic failures in managing land clearing. Its predecessors – a state environmental planning policy introduced overnight in 1995 (SEPP 46), followed by the Native Vegetation Conservation Act 1997 – both failed to prevent inappropriate clearing by allowing broad and cumulative exemptions, and poor enforcement. This failure was recognised by the Audit Office of NSW.

The Native Vegetation Act was developed in close consultation with farmers and conservationists in response to failures of previous regulatory regime to prevent inappropriate land clearing.

A key foundation of the current Act is to ‘ban broadscale clearing unless it maintains or improves environmental outcomes.’ The Act is also underpinned by a scientific Environmental Outcomes Assessment Methodology (EOAM) that ensures not just biodiversity, but soil, salinity and water impacts of clearing are scientifically assessed.

The introduction of the Act was also accompanied by a significant investment for private land conservation through property vegetation plans (PVPs). A $430 million package was made available to catchment management authorities (CMAs) to assist farmers in repairing the landscape. A minimum of $120 million was earmarked to help farmers maintain or improve native vegetation for biodiversity, water quality, soil and salinity outcomes for four years following the introduction of the Act.

The public register shows that between 2005 and 2015, over 1,000 PVPs were put in place across NSW. The Act allows farmers to do whatever they like with regrowth vegetation and to undertake routine farming activities without approval. But importantly, it does sometimes ban inappropriate clearing.

Since the Act came into force, land clearing has reduced from up to 21,500 ha per year to 11,000 ha per year. Commentators have recently estimated the Act has directly led to conservation or rehabilitation of 250,000 ha of land.[1]

The current system worked well – until, that is, funding cuts to CMAs after the initial four-year investment caused delays in land clearing approvals and making property vegetation plans.

But this doesn’t mean the current laws are not working,  merely that the system has not been resourced to work effectively. 

The proposed regime – the Draft Local Land Services Amendment Bill
The proposed Local Land Services Amendment Bill would replace the Native Vegetation Act and assessment methodology with:

  • Four new self-assessable codes (for ’management’, ‘efficiency’, ‘equity’ and ‘farm planning’), which allow significant amounts of clearing, even in endangered ecological communities. The codes assume that landholders have ecological expertise to determine their own code-based clearing, and they allow landholders to set aside areas that might be managed or replanted to justify clearing elsewhere on the property.
  • An expanded range of allowable activities.
  • Discretionary clearing approvals administered by Local Land Services (LLS). However, it is likely that a significant amount of clearing will be accomplished under the codes and allowable activity exemptions, without requiring LLS assessment.

A new Land Use Map will determine whether land clearing rules apply. The Map will categorise land as:

  • Category 1 – Blue = Exempt land – No approvals are required for clearing in these areas.
  • Category 2 – Yellow = Regulated land – Landowners can self-assess intended clearing through codes or get LLS approval to clear.
  • Category 3 – Grey = Excluded – Regulated by other laws (relates to areas such as national parks and urban areas). 

Example of new mapping

A mock-up of a land map provided as part of the reforms

We explore implications for urban biodiversity under issue 4 in this series. For land likely to be categorised as blue (exempt), we’re currently analysing whether the mapping process would create an ‘amnesty’, by allowing previously illegally cleared areas that weren’t prosecuted to become blue unregulated areas.

We have concerns about land categorised as regulated (the yellow category). In the draft reforms, there are no clear environmental baselines, aims or targets for land in this category. 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. Significant clearing can be done on these areas under the proposed codes.

The proposed regime therefore significantly loosens the environmental checks and balances that exist in the current system: it is less stringent, less evidence-based, less accountable. The new system is therefore likely to result in significant clearing increases in NSW.

The effect of the reforms: increased land clearing
The NSW Government has been unable to estimate how much land clearing will occur under the new, more relaxed system, and in particular 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.

We believe the proposed reforms are likely to lead to a significant increase in land clearing, and consequently a reduction in native vegetation and biodiversity in NSW. No one can perfectly predict the future, but Queensland provides clear evidence of what can happen when clearing laws are relaxed. It has been estimated that there was a huge pulse of 275,000ha of land clearing after Queensland’s land clearing laws were relaxed in 2013-14.[2]  

There is nothing in the proposed NSW reform package to prevent similar clearing occurring here. Farmers may set aside areas for conservation or revegetation, or access an expanded offsets market, but the bottom line is that there will be increased clearing at the site scale.

Next in this series: Offsets and ecologically sustainable development


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.

Links

 


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.

 


Footnotes

[1] Data from Perry, 2016, The NSW government is choosing to undermine native vegetation and biodiversity, The Conversation, and Environment Protection Authority, 2015, State of the Environment Report 2015

[2] Maron et al., 2015, Land clearing in Queensland triples after policy ping pong, The Conversation; and Taylor, 2015, Bushland destruction rapidly increasing in Queensland, WWF


NSW biodiversity reforms 2016: issue 6 – Opportunities lost

Rewriting our biodiversity laws is a once-in-a-generation opportunity to halt our declining biodiversity while maintaining flexibility for landholders to manage their lands effectively.

In this last blog in our series analysing the NSW Government’s proposed biodiversity legislative and policy package, we look at what is missing from the reform package and outline ten recommendations for effective biodiversity laws. View all issues identified in this series here.

From our analysis, if you compare the laws that are being proposed with the laws that are being repealed, the outlook for native vegetation and biodiversity is not good. Clearing will increase. Offsets will expand to facilitate further clearing. Private conservation will flourish in some areas but struggle in others. Threatened species considerations can be traded off, and the new regime will not actually achieve the intended equity.

The reform package almost completely ignores climate change. For example, under the proposed new Biodiversity Assessment Method, there are five sections referring to the need for wind farms to be subject to an additional layer of assessment for biodiversity impacts, but no references at all to climate change. Also, while the Draft Biodiversity Conservation Bill lists ‘anthropogenic climate change’ as a ‘key threatening process’, there is only one brief reference to ‘global warming’, and that’s just to note that its impacts are not assessed under the regime. 

The proposed package carries over a number of deficiencies of current system:

  • There are exemptions and wide discretion for projects with the biggest environmental impacts
  • Vulnerable ecological communities are excluded from the definition of threatened species
  • Mining is still permitted in areas that supposedly offset previous losses and areas of outstanding biodiversity value.
  • Cumulative impacts on biodiversity are not addressed. 

So what should effective biodiversity laws do? 

Our recommendations
EDO NSW will be making a full and detailed submission on the reform package. We have collated a list of ten recommendations for making effective biodiversity laws.

To be effective, biodiversity laws should:

  1. Be designed to prevent extinction.

  2. Apply a ‘maintain or improve’ standard to all development.

  3. Address key threats such as broadscale land clearing of remnant vegetation and climate change.

  4. Establish a NSW Environment Commission or a Biodiversity Commissioner to provide advice and oversight.

  5. Mandate the use of leading practice scientifically robust assessment tools.

  6. Invest in private land conservation (the current reforms do this).

  7. Clearly require comprehensive data, monitoring, reporting on condition and trends (environmental accounts).

  8. Limit indirect offsetting.

  9. Commit to compliance and enforcement.

  10. Properly resource regional natural resource management bodies to work with landholders, have expertise to do assessments and make natural resource management plans that relate to clear targets. 

Find out how you can have your say about the reforms at our dedicated web page.


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.

Links

 


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.


Housing, housing everywhere but not a DA in sight: the possible consequences of expanding complying development on sensitive coastal environments

By EDO NSW Policy and Law Reform Solicitor Dr Emma Carmody

26 May 2016

Sometimes seemingly separate government reforms can interact in unforeseen ways. Two recent reforms proposed by the NSW Government are a case in point: the expansion of the General Housing Code and the coastal reform package. We need to make sure these reforms work together more effectively so as to minimise impacts on coastal wetlands and littoral (or coastal) rainforests.

Read more

Court to decide if Santos Pilliga CSG facility illegal

A court case that could see a halt to the development and operation of Santos’ CSG water treatment facility near the Pilliga State Forest, an internationally renowned ecosystem near Narrabri in North-West NSW, continues in the Land and Environment Court tomorrow, Tuesday 17 May.

16 May 2016

Read more

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.

Read more

Celebrating our amazing volunteers during International Volunteer Week

Our volunteers are the unsung heroes of our work. We rely greatly on their commitment.

10 May 2016

For International Volunteer Week 2016, we’d like to introduce you to three talented, dedicated and passionate young people who have volunteered their time and skills to help protect the environment. They are just three of the thousands of volunteers who have given their time to help us defend the environment and advance the law over our 31 year history.

Read more

Landmark court case to hold coal mine to account on impacts to Sydney’s drinking water catchment

A court case to protect Sydney’s drinking water catchment from the impacts of mine water discharged from Centennial Coal’s Springvale coal mine commences in the Land and Environment Court today.

9 May 2016

Read more

A serious backwards step for biodiversity laws

By EDO NSW Policy and Law Reform Director Rachel Walmsley

3 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.

Read more

Support us

Our dynamic team of experts helps individuals and communities every day across Australia and the South Pacific. They need us and we need you!

Your tax-deductible support for EDO NSW will help us continue to:

  • Provide vital legal advice and representation to individuals, community groups and large organisations in their efforts to defend our environment
  • Develop and promote improvements to the laws and regulations affecting our environment at a State, national and international level
  • Provide meaningful, accessible legal education to communities, environmental groups and key decision-makers across the country. 

Become a Friend of the EDO with a monthly gift

Friends of the EDO make monthly donations to provide ongoing support for our work.  Become a Friend of the EDO here.

Make a one-off donation by credit card

Donate online here and receive an immediate tax-deductible receipt or download our donation form and post it to us at the address below.

Cheque or money order

Please make payable to 'Environmental Defenders Office Ltd' and post with your details to:

EDO NSW
Level 5, 263 Clarence Street
Sydney NSW 2000

Direct deposit

Donations can be made by direct deposit into our bank acccount:

Account Name: Environmental Defence Fund
BSB: 814-282
Account Number: 3089 2173

Please use your name as the reference and email us your name and address so we can send you a tax-deductible receipt.

 
Make a bequest

A growing number of Australians are leaving legacies and gifts in their wills for charitable organisations. By including EDO NSW in your will, you will be assisting future generations to protect the environment through the law. Read more about making a bequest to EDO NSW.

 
Hold a community fundraising event

Hold a community event or join a fun run like City to Surf and raise funds for EDO NSW – get in touch with us to discuss by emailing us.

 
Workplace giving

Read more about supporting your EDO NSW through workplace giving.

 
EDO NSW's Environmental Defence Fund has Deductible Gift Recipient status. All donations of $2 and over are tax-deductible.


Court to decide if Santos Pilliga CSG facility illegal

Pilliga Court Update 17 May 2016 - People For The Plains hearing re-commences this morning

This case could see a halt to the development and operation of Santos’ CSG water treatment facility near the Pilliga State Forest, an internationally renowned ecosystem near Narrabri in North-West NSW.

5 April 2016

Read more