28 JUNE NSW Farmers Association Level 6 35 Chandos Street St Leonards NSW 2065

Transcription

1 SUBMISSION TO THE NSW GOVERNMENT DRAFT BIODIVERSITY CONSERVATION BILL 2016 AND LOCAL LAND SERVICES AMENDMENT BILL JUNE 2016 NSW Farmers Association Level 6 35 Chandos Street St Leonards NSW 2065 Ph: (02) Fax: (02) us@nswfarmers.org.au NSW Farmers Association Background The NSW Farmers Association (the Association) is Australia s largest State farmer organisation representing the interests of its farmer members ranging from broad acre, Livestock, wool and grain producers, to more specialised producers in the horticulture, dairy, egg, poultry, pork, oyster and goat industries.

2 Executive Summary The NSW Farmers Association is Australia s largest state farming organisation representing the interests of the majority of commercial farm operations throughout the farming community in NSW. Through its commercial, policy and apolitical lobbying activities it provides a powerful and positive link between farmers, the Government and the general public. Native vegetation reform has been one of the top policy priorities for the Association for the past twenty years. We know, through the experiences of our members, that existing native vegetation laws, currently the Native Vegetation Act 2003, have proved unworkable, not only hindering the NSW Farming community s ability to efficiently produce food and fibre but posing significant obstacles to its ability to achieve solid environmental outcomes. In 2014, the NSW Government appointed an independent expert panel to review laws. The panel put forward 43 considered recommendations for a fairer, more holistic and more strategic approach to native vegetation management in NSW and recognized the role of farmers in contributing to the State s environmental targets. Importantly that panel recommended the removal of the improve or maintain at the site-scale standard of biodiversity management. The NSW Government, in its 2015 pre-election commitment with NSW Farmers, agreed to adopt all 43 of the independent panel s recommendations. On 3 May the NSW Government released a biodiversity reform package which would repeal the Native Vegetation Act 2003 and Threatened Species Conservation Act 1995, replacing them with legislation based on the independent panel s 43 recommendations. The package includes a new Biodiversity Conservation Act and significant amendments to the current Local Land Services Act. Whilst the Government s package goes some way towards remedying the existing legislation and achieving a more balanced approach to the social, environmental and economic considerations that affect land management, there are several very significant outstanding issues that must be addressed. Without addressing these, this reform will not deliver the much needed outcomes outlined in the Independent Panel s report and recommendations. Amendments are necessary to allow farmers to deliver and maximise best practise, sustainable production outcomes in harmony with the environmental outcomes desired by the wider community. The Association held six public forums (held in May/June) in key native vegetation problem areas across the state to collect our member s feedback on the Government s draft legislative reform package. We also ran one of the biggest public awareness campaigns in the history of the 2

3 Association, which was aimed at metropolitan audiences highlighting the problems with the current regime and why our members and the landscape so badly need this reform. One of the major concerns consistently raised by our members is that the proposed scheme is unnecessarily complex. The information displayed on the Government s land management website has caused significant confusion for many members and was an issue frequently raised at our forums. Information is not fully displayed, and the only way to truly understand what the reform embodies, is to read both Bills which is not an optimal way to undertake consultation. For example, a list of the allowable activities with distances is not available on the consultation website. Nor are the full requirements for state protected land and vulnerable land. Some of the information handouts have been poorly worded. For example one states that land not cleared after 1990 will be regulated. This is in contradiction to wording in the draft Act and would, if adopted, leave farmers that have had regrowth occur on land that was cleared as at 1990 worse off than under the current Act. The requirements for set aside areas are also not clear. There are many more examples that our members have told us they have questions about before being able to judge the effectiveness of or support the new rules. This, combined with the lack of available mapping, and no solid commitments to agency resourcing, has resulted in a consultation package that is extremely difficult for farmers to assess. Policy position The reform package goes some way in remedying the existing legislation and achieving a more balanced approach to the social, economic and environmental considerations that impact upon land management. The structure is there to improve upon these outcomes. In short: We welcome the repeal of the Native Vegetation Act and the commitment of an unprecedented $240 million to the private land conservation program; We recognise there appears to be some opportunity for improved agricultural land management in the proposed system; We need the government to commit to making adequate funding available to Local Land Services (LLS) to implement the land management reforms on the ground; However, significant amendments are required before this package could be considered workable for farmers. One clear line in the sand is that the government cannot ask farmers to sign off on this package without access to the maps. It is not acceptable to release a reform package without the maps only the maps allow landholders to understand how the reforms will actually affect them. 3

4 We welcome a code-based approach to lower risk clearing activities, with LLS administration. However, the Codes are overly onerous and complex, and putting a cap on codes is counterproductive. The government should not cap how efficiently or equitably this scheme may be carried out. Critically, there should be no barrier to entry for farmers. The cost of biodiversity assessment should be reflective of the return on investment for farmers, both in terms of assessment for development and assessment to access the offsets trading scheme. The Association holds that the structure of the draft reform package has the potential to create a workable system for farmers, however in practical application, many of the existing problems will severely impede and compromise the effectiveness of the proposed new system if they remain. The opportunity to address those problems is now. This submission addresses those issues and offers options for amendment within the framework of the current proposals. In short, Government needs to demonstrate to farmers that it has addressed the key issues of maps, codes and costs. This is achievable within the framework of the current Bills. This submission does not cover the extensive issues with the current Native Vegetation Act or associated regulations and policies. For detail on the Association s position on the need for reform, and proposals for reform, readers should refer to earlier Association submissions, including our submission to the Independent Biodiversity Review Panel of 2014, including an independent report into the workability of the Native Vegetation Act 2003 for farmers by Evidentiary, and a case study of cluster PVP s also from This information is available on the NSW Farmers website: nswfarmers.org.au. This submission follows the order of regulatory pathways proposed in the NSW Government s reform package- starting with mapping (including the map method statement), allowable activities, self-assessable Codes of Practice (land management Codes), through to LLS planning approval using the Biodiversity Assessment Methodology (BAM). 4

5 Summary of Recommendations Mapping Recommendation 1: Release the landholder maps immediately, for a further consultation phase. Recommendation 2: The Department of Primary Industries and the LLS should take charge of the construction and maintenance of the maps. Recommendation 3: Insert an incorrect mapping exemption into the Local Land Services Act, so that landholders are not further impeded by inaccurate mapping, and consequently are no worse-off than they would be under the current Native Vegetation Act which only affords protection to remnant growth as at Recommendation 4: Include a provision allowing landholders to attest to an earlier re-growth date. Recommendation 5: Where unexplained clearing, the Environment Agency Head should not default to unlawful. Unlawful should only be determined through the findings of a Court. Recommendation 6: Streamline the re-winding of the re-growth date so that the Local Land Services biodiversity officers consider applications for dates prior to Do not use rotational farming practices as it is not an accurate description of the purpose of re-winding the re-growth date. Recommendation 7: Include a service guarantee for the processing of landholder map review requests of 14 days. Map reviews should be at no cost to landholders. Recommendation 8: Grasslands of unknown conservation value should default to category 1 (blue) and incentives should be explored to encourage landholders to allow assessment of those grasslands. Recommendation 9: Provide certainty by clarifying the requirements for the mapping or otherwise management of vulnerable lands. Recommendation 10: Use best practice guidelines for vegetation management on vulnerable lands, equip LLS to advise landholders on best practice. This is in line with the Panel s approach to harness the support of landholders in the conservation effort. Allowable activities Recommendation 11: Include a service guarantee for the increase of allowable activities certificate of 7 days. Recommendation 12: Allowable activities should be allowed on vulnerable lands using best practice guidelines. Best practice guidelines should be used in conjunction with local farming and soil conservation knowledge, and in consultation with LLS officers. Land management codes Recommendation 13: Set aside area ratios need to be commensurate to the low-risk loss of biodiversity, and should be mostly provided for through regional conservation targets, rather than on a site scale. If set-aside ratios are too high, these low-risk activities will be pushed into the LLS and planning systems, creating additional burdens on both the landholder and general resources. The application of set-asides should be flexible across the landscape, for example through regional plans or agreements between a cluster of landholders. 5

6 Recommendation 14: The determinations of endangered ecological communities need to be realistic in that they contain genuine under-storey, mid-storey and upper-story thresholds for the determination of the presence of that community in any given area. Recommendation 15: Where set asides are required; they should be at the baseline ratio of 1:1, and 50 per cent discount ratio for re-vegetation of land and/or rehabilitation of land. This will provide a realistic alternative to entering the planning system for low risk tree clearing activities, and would promote strategic vegetation planting across the regions. Recommendation 16: More clearing without set asides should be permitted (as recommended by the Independent Panel, an exemption for each landholding per year) and where set asides are imposed, they should be reasonable and workable. Recommendation 17: The rate cap on the equity code undermines the equity concept and should not be adopted. Recommendation 18: Set asides should not be in perpetuity they should be time bound. Set asides must NOT be registered on title contractual obligations should be sufficient. Recommendation 19: 100ha minimum on the grazing code should be replaced with LLS certification that thinning is for primary production purposes. Recommendation 20: Landholders in the same region should be encouraged to work together at a landscape scale this would be facilitated by enabling set asides to be located on an alternative landholding without Government approval and rewarded with lower benchmark set aside ratio. Recommendation 21: Include a report on rates of conservation and tree planting under proposed section 60UU alongside estimated rates of clearing. Recommendation 22: purpose of the Codes. Remove the caps on the Code based activities. The caps undermine the LLS Planning Recommendation 23: Reform the BAM offset scheme and calculator so that the biodiversity credit market is fair and efficient and agricultural development can proceed at a realistic cost. The BAM should include the calculation of the existing biodiversity value. Recommendation 24: The Private Native Forestry (PNF) Code of Practice must be administered by LLS. The PNF code must be reviewed so as to consider PNF as an integrated agricultural management activity. Recommendation 25: Include qualifying factors for officers to enter private farm land, including seeking permission from landholders and gaining Agency Head clearance. Remove provisions which remove a person s right to avoid self-incrimination. 6

7 1. Mapping. The Government has advised that the map(s) will not be accessible until January This is well after the legislation is due to be passed. It is simply not acceptable to release a reform package without the maps. Farmers are unable to assess how the new legislation affects them without this detail. The Government must release the maps for a further consultation period before any changes to legislation. This is particularly important because we know that the maps are unlikely to be without problems or inaccuracies. We anticipate that any problems with the maps will create significant upfront resourcing needs. The Association holds that the Department of Primary Industries and LLS should be responsible for making and maintaining the maps, not the OEH. This is because the LLS officers are engaged in an advisory and extension capacity for rural landholders and have a better chance of understanding the impact that the decisions have on landholders and the environment of the community in which it operates. The disconnect between the Office of Environment and Heritage (OEH) and rural landholders has been one of the primary frustrations of the current system. Pursuant to Section 60F of the Local Land Services Amendment Bill 2016 (LLS Act) native vegetation regulatory maps will be prepared by the Environment Agency Head. The maps will categorise land as either category 1, exempt land or category 2 regulated land, that is, where native vegetation clearing is not regulated under the new land management framework and where landowners need to comply with clearing controls prescribed by the LLS Act. The Association understands that at the time of writing, maps are unavailable, although the map method statement is currently on public exhibition. We predict that mapping will have not only implications for farmers legal rights and responsibilities, but may also impact perceived land values. There really is no room for error. Having regard to the critical role of the maps in the proposed biodiversity conservation reform package, it is extremely disappointing that the maps are not available for review at this time. Recommendation 1: Release the landholder maps immediately, for a further consultation phase. Recommendation 2: The Department of Primary Industries and the LLS should take charge of the construction and maintenance of the maps. We understand that the maps are created by compiling satellite imagery of the state, based on best available data for aerial photo and satellite imagery analysis across different timeframes since Having regard to the implications for landowners of their land being categorised as either exempt or regulated land, the accuracy of the maps is critical. Our members have expressed significant doubt about the reliability of this process as well as the time and financial costs which will be incurred by having the maps reviewed. We are also seriously concerned with the ability of the maps to represent otherwise unregulated vegetation/land as it will now be known as un-regulated land. We expect a large number of landholders will now be disadvantaged (more so than the current application of the Native 7

8 Vegetation Act 2003) because of the inability to detect both re-growth in regulated areas, as well as non-woody, unregulated land i.e. clear as at 1990 but with an undetectable amount of disturbance since Recommendation 3: Insert an incorrect mapping exemption into the Local Land Services Act, so that landholders are not further impeded by inaccurate mapping, and consequently are no worse-off than they would be under the current Native Vegetation Act which only affords protection to remnant growth as at Category 1: exempt land mapping (proposed section 60G LLS Act) The mechanics that inform the map method statement are found in proposed 60G of the Local Land Services Amendment Bill. This provision states that land will be designated as category 1- exempt land if the Environment Agency Head reasonably believes that: 1) The land was cleared of native vegetation as at 1 January 1990; or 2) The land was lawfully cleared of native vegetation between 1 January 1990 and the commencement of this Part. We are informed by OEH that the 1990 re-growth date continues to be used because that is the date from which the NSW Government holds reliable satellite imagery of the vegetation across the NSW landscape. Given the limitation of the use of 1990 mapping, the Association holds that a straightforward rewind of the re-growth date needs to occur for a more accurate reflection of the re-growth date. This is essentially the function of a re-growth PVP, without the extensive problems presented by the PVP process. It is our understanding that re-winding the re-growth date was never intended to be through the PVP process, and should be a simple administrative process through LLS. Evidence of a truer re-growth date could be in the form of landholder aerial photographs and landholder statutory declarations in order that the Agency Head could be satisfied that the land was cleared of vegetation at an earlier date. Recommendation 4: Include a provision allowing landholders to attest to an earlier re-growth date. 1) The land was lawfully cleared of native vegetation between 1 January 1990 and the commencement of this Part. Unlawfulness can only be established by reference to compliance/enforcement action (to be defined in the regulation), as distinct from clearing that is otherwise unexplained. It is our belief that the findings of a court should be the only method for determining unlawfulness. A warning letter should not constitute compliance action for the purpose of mapping. Where recategorisation can occur as per proposed section 60J (3) (a) to (f) and, in particular, (f), there is unnecessary inconsistency applied by requiring OEH to certify the rotational farming practice between the dates of 1970 to The phrase rotational should be removed as it will not always apply to finding the truer re-growth date- farm rotations occur over longer timeframes than what OEH s mapping can appreciate and in many cases there is land that was farmed and an event such as flooding resulted in land being re-vegetated. These subsequent areas of vegetation have been 8

9 since locked up by native vegetation laws to the cost of the farmer. All re-categorisation of land should be certified through the LLS. Recommendation 5: Where unexplained clearing, the Environment Agency Head should not default to unlawful. Unlawful should only be determined through the findings of a Court. Recommendation 6: Streamline the re-winding of the re-growth date so that the Local Land Services biodiversity officers can consider applications for dates prior to Do not use rotational farming practices as it is not an accurate description of the purpose of re-winding the re-growth date. Recommendation 7: Include a service guarantee for the processing of landholder map review requests of 14 days. Map reviews should be at no cost to landholders. The Association does not agree with the approach outlined in the LLS Amendment Bill in relation to grasslands management. The Independent Panel stated that the management of low conservation value grasslands should be an exempt agricultural activity, management of medium conservation value grasslands should be a code-based agricultural management activity and the management of high conservation value should be identified in a map made by the minister as vegetation that requires consent to be cleared. Unfortunately none of these classifications are presented in the draft reform package. We are informed that this is because OEH s mapping capability does not allow it to classify the vegetation value of a grassland but can only detect disturbance and so disturbance is used as a proxy for conservation value. This is particularly frustrating when considering the noxious weeds that are readily present in grasslands and which, if not effectively managed, have the ability to degrade the conservation value of swathes of vegetation. These are the perverse environmental outcomes created by the Native Vegetation Act 2003 that we expected would be addressed by the reform package. As a result, the default setting for classifying grasslands is effectively of high conservation value until proven low conservation value. The medium value (self assessable code based activity) as described by the panel has not been addressed. Recommendation 8: Grasslands of unknown conservation value should default to category 1 (blue) and incentives should be explored to encourage landholders to allow assessment of those grasslands. In general, it is not clear through the draft reform package, how the mapping of vulnerable lands (including riparian and steep or highly erodible) will be applied to the regulatory mapping process. This is important particularly for farmers in eastern LLS regions. We understand an additional layer of vulnerable land mapping will be created. We predict that this will create an additional layer of uncertainty. Landholders should be provided with best practice guidelines for the management of vegetation on vulnerable lands, and LLS should be able to assist with information about these management activities. 9

10 Recommendation 9: Provide certainty by clarifying the requirements for the mapping or otherwise management of vulnerable lands. Recommendation 10: Use best practice guidelines for vegetation management on vulnerable lands, equip LLS to advise landholders on best practice. This is in line with the Panel s approach to harness the support of landholders in the conservation effort. 10

11 2. Allowable activities The Association welcomes the streamlining and simplification of the allowable activities (currently known as Routine Agricultural Management Activities RAMAs) in that there will be one measure prescribed for fixed point and linear infrastructure in the different regions and for small holdings. Our members do have queries behind the science or reasoning of the distances prescribed because distances that are required to clear for rural infrastructure do not necessarily change just because of the location or size of the landholding. We therefore welcome the ability for the landholder to apply to the LLS for an increase where further distance is required or where that landholder adjoins a different zone. However, we request that the increase in distance be notified to LLS, rather than through a certificate. For any certificates required to be issued we request a service guarantee to processing those requests of seven days. Recommendation 11: Include a service guarantee for the increase of allowable activities certificate of 7 days. However, the Association is concerned with the limitations imposed on vulnerable lands including riparian lands and steep/highly erodible lands. No fixed-point infrastructure allowable is prescribed in the Bill for vulnerable lands, despite this currently being allowed. We understand that a Code is intended to be developed and the current Native Vegetation Act 2003 application will remain until the development of that Code. Recommendation 12: Allowable activities should be allowed on vulnerable lands using best practice guidelines. Best practice guidelines should be used in conjunction with local farming and soil conservation knowledge, and in consultation with LLS officers. 11

12 3. Land management Codes The Association welcomes a code-based approach to lower risk clearing activities, with LLS administration. However, there is significant scope for simplification of the Codes; they are overly and unnecessarily complex. Set aside areas The Association supports the Independent Panels recommendations that some activities are low risk and should be able to be undertaken by farmers without the need to seek approval. The Independent Panel stated that that potential biodiversity loss through self-assessable Codes would need to be accounted for in regional conservation targets on a bio-regional or regional scale. The shift in focus (from site-scale to regional scale) is a main thrust of the Independent Panel Review Report and unfortunately this has not been addressed in the draft package. This has resulted in unclear regional conservation targets and, unfortunately, placed the burden back on the individual landholder. Instead of a regional scale we are now faced with unrealistic and unworkable codes containing high set-aside ratios and demanding legal requirements for the future management of offset areas. All of these requirements will be at the sole cost of the landholder into the future. Therefore, set-asides should not be the focus of offsetting the code-based activity; instead regional conservation efforts through the $240 million in new funding should be. Where set-asides are required, they should be on a 1:1 basis. Set-asides are currently proposed to run with the land in perpetuity. The legal requirements of this approach are so-far unclear, and we understand that the management of current set asides through the Native Vegetation Regulation 2013 areas varies across different LLS areas. Our members are finding it difficult to provide comments on a process that contains crucial missing elements. Without this information we are unable to make a comment on the reasonableness of the set-aside ratios themselves. We recognise the need to balance and account for the loss of biodiversity as a result of Code-based activities. This biodiversity loss should mostly be accounted for through regional conservation efforts and use of the $240 million in new funding, and not once again at the cost of individual landholders. Recommendation 13: Set aside area ratios need to be commensurate to the low-risk loss of biodiversity, and should be mostly provided for through regional conservation targets, rather than on a site scale. If set-aside ratios are too high, these low-risk activities will be pushed into the LLS and planning systems, creating additional burdens on both the landholder and general resources. The application of set-asides should be flexible across the landscape, for example through regional plans or agreements between a cluster of landholders. Where an Endangered Ecological Community is assumed present by the current listings process, it is essential that the presence of this community is ground-truthed using the most realistic and practical means possible. It is not acceptable that areas are deemed EEC, where the characteristics of that ecological community are not in fact present. We need a definition that uses 12

13 reasonable percentage thresholds for the community s characteristics at the under, mid and top storey of the ecology, so that EECs are only deemed EECs when they are actually present. Recommendation 14: The determinations of endangered ecological communities need to be realistic in that they contain genuine under-storey, mid-storey and upperstory thresholds for the determination of the presence of that community in any given area. The Association does not support using different management types to determine the different set aside areas. Farmers are required to undertake pest and weed control for listed species by law. Equating intensive management to a lesser set aside requirement appears to reward landholders who have not maintained a healthy standard of vegetation on a particular site (i.e. by not controlling feral species). There should be incentives for the rehabilitation of land. This could come in the form of a 50% discount on set-aside areas where a landholder can rehabilitate parts of land. This would have the opportunity to provide for genuine and measurable biodiversity outcomes for the regions. Recommendation 15: Where set asides are required; they should be at the baseline ratio of 1:1, and 50 per cent discount ratio for re-vegetation of land and/or rehabilitation of land. This will provide a realistic alternative to entering the planning system for low risk tree clearing activities, and would promote strategic vegetation planting across the regions. Recommendation 16: More clearing without set asides should be permitted (as recommended by the Independent Panel, an exemption for each landholding per year) and where set asides are imposed, they should be reasonable and workable. Recommendation 17: The rate cap on the equity code undermines the equity concept and should not be adopted. Recommendation 18: Set asides should not be in perpetuity they should be time bound. Set asides must NOT be registered on title contractual obligations should be sufficient. Recommendation 19: 100ha minimum on the grazing code should be replaced with LLS certification that thinning is for primary production purposes. Regional Planning and offsetting The codes proposal retains an option to discharge a set-aside requirement on an alternative landholding where the alternative set-aside would be strategically important however this requires approval and, presumably a requirement to show strategic importance. Regional based plans should be encouraged and where they adopt recognised principles of good biodiversity conservation in terms of connectivity, retaining habitat and migratory corridors and riparian areas, those regions should be allocated a lesser ration of set aside in recognition of enhanced biodiversity conservation. Recommendation 20: Landholders in the same region should be encouraged to work together at a landscape scale this would be facilitated by enabling set asides 13

14 to be located on an alternative landholding without Government approval and rewarded with lower benchmark set aside ratio. We note the that LLS is to publically report, on an annual basis, its estimate of the overall rate of clearing of native vegetation in regulated rural areas. Equally important is the ongoing (not just paid) conservation efforts, the rates of conservation converted into an agreement, and the regeneration and re-vegetation efforts in the state. These should be included in the annual report. Caps on codes Recommendation 21: Include a report on rates of conservation and tree planting under proposed section 60UU alongside estimated rates of clearing. The 2 per cent cap on the efficiency code and the 25 per cent cap on the equity Code undermine the purpose and intent of the Self-assessable Codes. The efficiency Code is designed to create both productivity and environmental efficiencies, and there should be no limits on the amount of efficiency gains. The equity Code is designed to address the inequity of the current system transferring the costs of conservation onto farmers, and yet there are high set-aside requirements contained in these Codes, with no explanation of the equitable distribution of social, economic and environmental gains or losses. A cap on equity is not equity. A cap on equity also creates a perverse incentive to clear within the prescribed time frame. Natural speed limits occur due to the price and opportunity of land development. Furthermore, administratively it would be extremely difficult for LLS officers and landholders alike to track. For example, where an overall vegetation amount is altered by one code, how this would affect the overall limit and the application of the other Codes, over a number of years, is not clear. Recommendation 22: Remove the caps on the Code based activities. The caps undermine the purpose of the Codes. 14

15 4. LLS Planning Approval Whilst those farmers with development opportunities on their farm will welcome the ability to consider those opportunities, the mechanics of the proposed reform mean that it will be essentially impossible for the average farmer to make a sound business decision to enter into this market. Cost estimates to run the BAM on one property are as high as $80, ,000 per property. This cost does not include any required offset obligations. This is likely to be a barrier to entry for low return industries like agriculture. Landholders will not be able to make informed decisions about whether to offer their vegetation as an offset (i.e. run the BAM to generate credits) without knowing the cost of applying the BAM and the price generated credits will fetch in the market. Landholders will not be able to judge whether to offer vegetation in good condition into the private land conservation estate without knowing what government will pay for its conservation. Supply and demand of credits- BAM use of offset multiplier- impacts on cost of development BAM costs should be capped and should be proportionate to the anticipated return on investment (i.e. some capacity to pay measure should be taken into account). An estimate of the number of credits generated and the price they may be sold for in the market should be accessible to assist landholder decision making. The Association was provided the opportunity to view hypothetical BAM applications in both the offset and conservation sense. It was clear that the amount required to discharge offset obligations far exceeds the credits generated by conserving the same area. This is completely unacceptable. Government should pay landholders the same sum to keep vegetation as landholder would be required to pay to clear it. Therefore the same number of credits will be generated from improving the vegetation integrity of a common vegetation type as will be generated from improving the integrity of a highly threatened vegetation type. Conversely, the number of credits required to offset the decline in vegetation integrity of a highly threatened vegetation status will be several times more than the number of credits generated at an offset site where the vegetation integrity of the same vegetation type is improved by the same magnitude. This is because an offset multiplier responsive to sensitivity and threat status is used in the credits required formula. This will result in both an increase in the demand for, and a reduction in the supply of, credits. Offset rules The offset rules require like-for-like credits to be sought in the first instance. This limits access to the variation rules and imposes unnecessary constraints on the non-like-for-like credits that may be retired to discharge a credit retirement obligation. This will have the effect of creating numerous discrete credit markets by limiting the range of credit types that a proponent may retire. This will inflate the cost of credits and thereby increase the cost of development. Flexibility should be built into the offsets scheme to ensure that development, including agricultural development, can proceed at a reasonable cost. Generating credits 15

16 The BAM, as currently drafted, makes the number of ecosystem credits generated at an offset site proportionate to the anticipated gain in vegetation integrity if a conservation agreement is in place, with reference to the assumed future vegetation integrity if no agreement is in place. A very small assumed rate of annual decline in vegetation attributes and growth forms enables a small number of credits to be generated from maintaining vegetation integrity (referred to as averted loss); but the vast majority of credits will be generated from improving integrity. This will prevent landholders whose vegetation is in good condition from participating in the supply side of the credit market. It will also create a perverse incentive to let the condition of vegetation deteriorate, which will have negative impacts on biodiversity. Recommendation 23: Reform the BAM offset scheme and calculator so that the biodiversity credit market is fair and efficient and agricultural development can proceed at a realistic cost. The BAM should include the calculation of the existing biodiversity value. Private land conservation agreements We welcome the funding for private land conservation; however, it is likely that considerably more funding should be provided to ensure that all landholders who deliver biodiversity benefits on behalf of the community are paid. In all cases, payments must at least reflect the opportunity cost of the highest value agricultural use of the land. Landholders should incur no upfront costs to participate in biodiversity conservation on private land any upfront costs should be met by government. The Independent Panel recommended a review of regulatory arrangements for timber harvesting on private land as part of a separate process that does not regulate the harvesting of native timber on private land as a form of land use change and considers options for regulating sustainable forestry operations based on their scale and intensity rather than tenure, including options for permitting lowintensity operations on private land without the need for approval and a focus on outcomes rather than process. The panel also recommended a consideration of a range of options for improving the environmental performance of haulage and harvest contractors operating on private and public land, including licensing and minimum standards. Recommendation 24: The Private Native Forestry (PNF) Code of Practice must be administered by LLS. The PNF code must be reviewed so as to consider PNF as an integrated agricultural management activity. Investigation Powers Despite a clear theme of the Independent Panel s report being that an improved relationship of trust is needed between farmers and the environment, Part 12 Investigation Powers included in the Draft Biodiversity Conservation Bill go above and beyond current investigation powers of the Native Vegetation Act. They essentially will result in landholders being guilty until proven innocent. We respect the need for government to manage and have oversight into species management on private farm land however these provisions remove a person s right to avoid self incrimination (by providing mechanism where landholders are compelled to furnish information and records, provide personal information, and so forth) which is a fundamental aspect our legal system, and allow entry 16

17 of officers onto private farm land at any reasonable time. Officers should have to seek permission from landholders to enter private farm land. There at least needs to be qualifying factors for the entry to private farm land (reasonable reason to believe there is a serious and imminent threat to the environment, for example) and a process by which officers would need clearance by the Agency Head to enter that land. These provisions have serious bio-security and liability implications. Recommendation 25: Include qualifying factors for officers to enter private farm land, including seeking permission from landholders and gaining Agency Head clearance. Remove provisions which remove a person s right to avoid self-incrimination. 17

18 5. Conclusion Whilst the NSW Government s proposed package goes some way towards remedying the existing legislation and achieving a more balanced approach to the social, environmental and economic considerations that affect land management, NSW Farmers are unable to support the package as it stands. Without addressing the key issues of maps, codes and costs as outlined above, this reform will not deliver the much needed outcomes of the Independent Panel s report and recommendations, and there is a real risk that the flaws of the current system will remain. Amendments are necessary to allow farmers to deliver and maximise best practise, sustainable production outcomes in harmony with the environmental outcomes desired by the wider community. 18