The 2016 NSW biodiversity reforms: 6 things you need to know - EDO NSW

The 2016 NSW biodiversity reforms: 6 things you need to know

By EDO NSW Policy and Law Reform Director Rachel Walmsley

9 June 2016

You may have heard that the NSW Government has proposed a legislative and policy package that removes many of NSW’s long-held environmental protections. If you are having trouble navigating the many reform documents, EDO NSW has identified six key issues you should know about.

These reforms propose significant and complex changes to laws and policies designed to regulate land clearing and protect our biodiversity. The Government has put 25 documents – around 657 pages – on public exhibition.

If you don’t have the time or inclination to trawl through all these complicated documents, but are wondering what the reforms may mean for the NSW environment, EDO NSW has summarised six key issues you may like to know about, in addition to our top 10 concerns with the reforms published on 13 May 2016. Read online below, or download details of all 6 issues as a PDF.

Check out our 6 issues below and find out how you can get involved

1. Land clearing and the rationale for reform

The NSW government has said the reform package is needed because our current vegetation and land clearing laws are not working.

We disagree. The current regime, based on the Native Vegetation Act 2003 and the scientific methodology that underpins it, has reduced land clearing, while also giving farmers and landholders freedom to clear land that is not environmentally sensitive.

The current system worked well – until funding cuts caused delays in land clearing approvals. But this doesn’t mean the current laws are ineffective, merely that the system has not been resourced to work effectively.

2. Offsets and ecologically sustainable development

According to the information on public exhibition, a key goal of the new laws is to ‘facilitate’ ecologically sustainable development (ESD), and the primary way of doing this is by expanding the biodiversity offset market (ie, the biodiversity impacts of clearing can be offset by managing vegetation elsewhere).

Our analysis suggests that the proposed reforms do not satisfy all the principles of ecologically sustainable development:

The precautionary principle: The proposed regime has no effective safety net for avoiding ‘serious or irreversible’ damage.

Inter-generational equity: Given that the proposed regime can allow local extinctions and irreversible impacts, it is unlikely to achieve equity for future generations.

Conservation of biological diversity and ecological integrity: The proposed regime does not treat biodiversity conservation as a fundamental consideration, as required under ESD.

Improved valuation, pricing and incentive mechanisms: The proposed market-based offset scheme has unclear goals and does not effectively value ecosystem services and biodiversity – both necessary foundations for a well-functioning market mechanism. Also, the model on which the offset mechanism is based is arguably the weakest one available.

3. Private land conservation and funding

The reform package comes with a funding commitment for $240 million over five years to support private land conservation, with $70 million each subsequent year depending on performance reviews. Funds would be administered by a new Biodiversity Conservation Trust guided by a Biodiversity Conservation Investment Strategy.

We strongly support incentives for environmental stewardship and payments for landholders to manage land for conservation, and welcome the proposed investment. However, we are concerned that the system proposed relies too heavily on government funding, which can be subject to short-term imperatives – rather than on long-term protections enshrined in law.

4. Saving our species

We know that biodiversity in NSW is on the decline. Will the proposed reform package do anything to stop this decline? When you examine the overall reform package, it appears not.

The proposed regime has no effective safety net for avoiding ‘serious or irreversible’ damage. And while the proposed Biodiversity Conservation Bill retains many of the threatened species provisions of current laws, such as listing threatened species, the proposed Local Land Services Bill increases known threats to those species. These two key parts of the package are therefore in conflict.

There is also scant information about how clearing of native vegetation will be assessed and regulated in urban areas. The increased use of biodiversity offsetting is likely to allow more clearing to take place in urban areas, even those close to important or sensitive native ecosystems.

5. Equity?

The word ‘equity’ has appeared often during this reform process. But how fair are the proposed reforms? We explore three examples.

Miners and farmers: NSW Farmers have pointed out that their broadscale land clearing is currently restrained under Native Vegetation Act, while the mine next door can clear significant vegetation under different rules. We have consistently argued that a way to create equity in this case is to apply the same standard to all development - that development must maintain or improve environmental outcomes. The proposed system does not apply this crucial standard.

Current and future generations: The proposed reform package has no effective safety net for avoiding ‘serious or irreversible’ environmental damage. Also, we predict that the proposed system will lead to more land clearing, with carbon implications: future generations will need to dedicate greater resources to meeting carbon emission reduction targets to mitigate dangerous climate change.

Private and public interest: Under the proposed reforms, there will be less information 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.

6. Recommendations for effective biodiversity laws

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. EDO NSW has come up with ten recommendations for making our biodiversity laws effective.

To be effective, biodiversity laws should:

  1. Be designed to prevent extinction.

  2. Apply a ‘maintain or improve environmental outcomes’ 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 over the longer term.

  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.

Read more »


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



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