Comment on the Biodiversity Conservation Bill, the Local Land Services Amendment Bill and Associated Codes of Practice

Transcription

1 Biodiversity Reforms Have Your Say PO Box A290 SYDNEY SOUTH NSW 1232 Comment on the Biodiversity Conservation Bill, the Local Land Services Amendment Bill and Associated Codes of Practice Introduction This submission is written on behalf Friends of the Koala Inc. (FOK), the peak koala conservation organisation in the Northern Rivers region of NSW. Established in 1986 and licensed under sections 120, 132C and 127 of the National Parks and Wildlife Act, 1974 (NPW Act) to rescue, rehabilitate and release sick injured and orphaned koalas in the region since 1989, FOK is an entirely voluntary, grass-roots entity. We aspire to make a key contribution to the State and the nation s biodiversity by ensuring the protection and conservation of the iconic koala and the preservation and extension of koala habitat. Our core business encompasses habitat protection and enhancement; licensed rescue and rehabilitation work with individual koalas; community education; advocacy for policy reform and assistance to relevant research programs. FOK operates a regional Koala Care and Education Centre in East Lismore. We value our identity and the partnerships we have developed to approach our koala conservation work holistically. FOK s members, who are drawn from all walks of life, work at the coal-face of koala conservation. We don t pretend to be environmental scientists or lawyers or land-use planners, or natural resource managers, much less wildlife veterinarians. We have approached the draft biodiversity conservation legislation from the perspective of ordinary people doing our best to ensure for the common good the survival into the foreseeable future of the Koala in our region. Overall FOK is disappointed with the proposed legislation. We were hoping that the change would be a step forward for biodiversity conservation; an opportunity to aim at halting biodiversity loss. Instead the proposed provisions suggest a step forward for development which will result in a further decline of biodiversity, including the koala populations in the Northern Rivers and across the State. We are also disappointed that the Bills have been released with very limited community and agency consultation, within an unduly tight consultation period and without the normal green and white paper process. Exhibition has demonstrated their highly incomplete state. Many fundamental materials such as the Native Vegetation Regulatory Map, associated State Environmental Planning Policy (SEPP) and crucial detail to be included in the Regulations and codes of practice are missing or not complete, impacting on the ability of all stakeholders to understand and provide meaningful comment on the proposed reforms. We have done our best in the limited available time to provide comments specific to each piece of proposed legislation and associated documents which are in the following attachments: - Attachment 1 Biodiversity Conservation Bill 2016 Public Consultation Draft - Attachment 2 Local Land Services Amendment Bill 2016 Public Consultation Draft and Associated Documents (Native Vegetation Regulatory Map and Land Management Codes)

2 Given that we are a licensed provider of wildlife rehabilitation services, our response to the regulations relating to licences is somewhat lengthier than to the other sections on which we have chosen to comment. FOK acknowledges the great outcomes achieved for koalas in partnership with landholders, including farmers. These achievements have been obtained through goodwill and incentives. One of our major concerns is that many of the proposed legislative changes may replace goodwill with anxiety. We reiterate our misgivings with the compressed consultation period and the hotchpotch of thinking which appear to be driving the reforms at the expense of squarely addressing the State s rapidly dwindling biodiversity. FOK truly believes that if this legislation is implemented the future of our iconic koala in the wild will be at high risk of extinction. We urge you to withdraw these proposals and to commit to strengthening laws that will protect our koalas and not leave us to pick up the pieces of poor legislation and poor decision-making. Yours faithfully Lorraine Vass President 27 June 2016

3 Attachment 1: Biodiversity Conservation Bill Public Consultation Draft Part 1 - Preliminary S1.1 Name of Act As the proposed Bill stands, its name could well be changed to the Biodiversity Extinction and Conservation Catastrophes Act or perhaps the Selective Biodiversity Conservation Act, but it certainly should not be called a Biodiversity Conservation Act. The name of the Bill implies that this legislation will conserve biodiversity. Regrettably FOK does not believe that the contents of the Bill will achieve this, particularly in combination with the Local Land Services Amendment Bill and the repeal of the Native Vegetation Act. S1.3 Purpose and Objects of Act - Although the purpose of the Bill is to be consistent with the principles of ecologically sustainable development as described in the Protection of the Environment Administration Act 1991, the content of the Bill is largely inconsistent with these principles. If Section 1.3 can be written with an understanding of what it means to truly conserve biodiversity the Biodiversity Conservation Bill would fall into place. As written it is implicit that the conservation of biodiversity is secondary to all other issues. 1.3(a) Conservation of biodiversity at bioregional and State scales is not conserving biodiversity. It is incongruous with conserving biodiversity, which is identified at the landscape scale (ecological communities), species scale, and genetic scale (the genetic diversity contained within ecological communities and species). Furthermore, it is not clear what is intended to be conserved when conserving biodiversity at the bioregional and State scales, i.e. whether conserving one or two populations of a species between Newcastle to Tweed (the North Coast Bioregion) would satisfy the purpose and object under this section, or all populations occurring in National Parks Nature Reserves. While apparently consistent with the Save our Species (SoS) program the point of what it means to conserve a species is missed and will see NSW koala populations continue to decline. 1.3(c) The purpose of improving and sharing knowledge to the end of understanding biodiversity values and effectiveness of conservation actions is supported as an on-going object, however, this object should be undertaken before this Bill is adopted and knowledge incorporated accordingly. If this Bill is adopted without proper consideration to biodiversity values and effectiveness of actions then biodiversity, including the Koala, will continue to decline. The manner in which the purpose of the Bill is to be achieved is of serious concern. These are either generalised statements (e.g. (a), (c), (d), (f), (g), (h), and (i), which have been undertaken for over 10 years) or finance based (e.g. (b), (e), which have also been undertaken for years. These approaches have failed biodiversity. What is needed is to understand individual species requirements and apply knowledge accordingly. In some cases that will require departmental staff (Local Land Services and the Office of Environment & Heritage (OEH)) and Ministers to say No, the impact is unacceptable. S1.5 Biodiversity Values for the Purposes of Act - (a) Vegetation integrity as described in the Bill is of concern for the conservation of koala habitat. A koala really does not care about whether the composition, structure, and

4 function of vegetation has been altered from a near natural state, as long as the right species (food trees with palatable chemical composition) are present, trees for shelter are available, and they are accessible. The NSW State of Environment Report 2015 identified that 61% of NSW is covered in native vegetation, with only 9% in a near-natural state. This raises concern that only 9% of the State will be considered to have biodiversity values under this proposed legislation. (b) The description of habitat suitability is supported. However, it would cover all remaining native vegetation as every species has another species that uses it. No species occurs in isolation, e.g. flying foxes are a major pollinator of koala food trees, seed from that pollination is required for recruitment of replacement food trees, and maintaining genetic diversity. (c) Additional biodiversity values are to be included in the Regulations at some point in the future. A complete set of biodiversity values needs to be included in this Section before a Bill is presented to Parliament for consideration. Guidelines on the application of biodiversity values should be contained within the Regulations. S1.6 Definitions Definitions should be provided for biodiversity (as existing at three levels ecological communities, species and genetics within them) and ecological integrity. Part 2 Protection of Animals and Plants Division 1 and 2 - Offences and Defences Maintaining the offences for picking, harming and damaging habitat are supported. However, the only people who will be committing an offence of harming, picking and damaging habitat are likely to be small scale and unaware landholders. The large number of defences is what is currently facilitating biodiversity declines across the board, and as FOK has observed, declines in koala populations. Many of the defences provide for all the larger scale and cumulative cases of true harming, picking and damaging habitat. These are the actions that require greater control if biodiversity, including koala populations, are to remain viable and persist in the landscape. Until the issues of biodiversity loss are adequately addressed for developments, activities, major projects, electricity power line maintenance, bush fire hazard reduction work, vegetation clearance on agricultural land, plantation operations, and forestry operations, that will be defences under the Act, then our State s biodiversity and koala populations will continue to decline, or become extinct. For example, operating under the Plantations and Reafforestation Code and the Private Native Forestry Code, has had significant impacts on many koala populations and these impacts are largely non-accounted for. These codes require reviewing as a matter of urgency with the conservation of the koala as a priority. S2.9 provides for the development and adoption of Codes of Practices in the Regulations. The devil will be in the detail of any codes developed and the level of protective measures they contain. Detailed codes should be developed, with their prime objective being biodiversity conservation, not to facilitate the loss of biodiversity, for each of the defences identified.

5 Division 3 Biodiversity Conservation Licences The only mention of providers of wildlife rehabilitation services is in the context of their accreditation under 2.17 Regulations relating to licences (2.17(f)). Clearly accreditation, whatever that might mean, is in and licencing is out. The Government s own submission guide briefly acknowledges that wildlife carers provide important and specialised care and treatment for injured and sick animals and an important service to the community. It goes on to say The NSW Government is aware that the current approach to regulating wildlife rehabilitation presents many challenges, particularly in relation to standards of service delivery, training, licensing arrangements for new groups and procedures for dispute resolution. It then refers to the Independent Biodiversity Review Panel s recommendation that government should take a more strategic approach which could extend to establishing an accreditation scheme to replace the existing scheme of individual licences and streamline the way wildlife care providers are regulated. Government will design in consultation with all interested parties a new accreditation scheme to provide animal rehabilitation services that are reliable, represent good practice and are cost effective. FOK is certainly in agreement with the importance of the services that wildlife carers provide to Government and the NSW community but we take umbrage at the generalised statement about perceived challenges (to Government we presume). We also question whether the Review Panel totally understood the way in which wildlife rehabilitation is organised in NSW. Independent licences-holders represent only a fraction of the 4,000-odd authorised rehabilitators who are overwhelmingly members of NSW s long-established and reasonably well developed network of voluntary, licensed wildlife rehabilitation groups. Finally, where is the evidence that existing providers do not already deliver services that are reliable, represent good practice and are cost effective? The NSW Government spends virtually nothing on voluntary wildlife rehabilitation, which may well be in part a reflection on the sector s lack of organisation when compared with the achievements of Landcare NSW Incorporated and its highly successful Sustaining Landcare campaign which has secured both the attention (e.g. the NSW Parliamentary Friends of Landcare) and support of Government (e.g. the $15m Landcare Support Program). Our comments though are focussed on the licensed rehabilitation of koalas which are not only an acknowledged iconic species in the SoS program, never mind the world-wide affection it enjoys, but are very complex animals in every aspect. Successful koala recovery is multi-faceted, involving a wide range of stakeholders and partners. The OEH s expectations of licensed koala welfare groups are already quite comprehensive. They include: relieving the suffering of individual animals by providing appropriate medical treatment and care; fostering within the wider community an understanding of koalas and their natural environment; broadening knowledge of koala biology and the threats the species faces; conserving koala populations by successfully returning healthy animals to their natural habitat;

6 arranging for a deceased koala to undergo necropsy if the cause of death is uncertain; keeping records of koalas that have entered rehabilitation in a manner that will enable their use to identify state-wide trends in koala incidents, identify threatening processes, develop better treatments and to educate rehabilitators. 1 FOK s unlicensed activities which include koala habitat protection and restoration, participation in applied research, contributing to policy reform related to koala recovery and koala advocacy, all add to our capacity to deliver our mission To make a key contribution to Australia s biodiversity by ensuring the conservation of the iconic koala and the preservation and enhancement of koala habitat, particularly in the Northern Rivers Region of New South Wales. It is perhaps indicative of the current licensing regime that we are unaware of the number of groups and independent rehabilitators whose licences include the rescue, rehabilitation and release koalas in NSW. FOK s licence is restricted to koalas, as is the licence of the other three koala-specialised organisations, the Koala Preservation Society Australia Inc., Hunter Koala Preservation Society Inc., and Koalas in Care, Inc.. We are also in contact with several of the branches of the NSW Wildlife Information Rescue & Education Service (WIRES) that actively engage in koala welfare activities. These organisations as well as their individual members have invested hundreds of thousands of dollars and hours in building successful, reputable, respected and engaging koala conservation programs in their local and regional communities. The consultation question that is posed in regard to regulating wildlife rehabilitation providers is, What are the minimum requirements for accrediting a wildlife rehabilitation provider? FOK believes that moving away from a group licence system to an accreditation one is unnecessary and also potentially burdensome on an already unsupported volunteer base. Instead of reducing red tape for the community, accreditation will not only increase it but could potentially discourage volunteer wildlife rehabilitator recruitment. Given the Koala s iconic status and its vulnerability throughout NSW, we believe very strongly that Government must not abrogate any of its remaining responsibility in regard to koala rescue rehabilitation and release. We agree that its approach needs to be strategic and a good place to start, in our view, is for Government to actively facilitate inclusion of koala rehabilitation providers into the Saving Our Species Koala Conservation Project. The work done by the NSW Wildlife Council in partnership with the OEH in recent years to develop the Code of Practice for Injured Sick and Orphaned Protected Fauna (2010) and the Code of Practice for Injured, Sick and Orphaned Koalas (2011) has served to set standards and guidelines which have assisted in raising service delivery. Government now needs to support their review and refinement, including elements of the annual reporting requirements which could and should be modified. 1 Adapted from: (retrieved 16 December 2015) and the Code of practice for injured, sick and orphaned koalas, Office of Environment & Heritage, 2011.

7 Finally, we urge Government to demonstrate in the most practical way possible its acknowledgement of the valuable services provided by koala (and other native wildlife) rehabilitators and that is to invest in the general development of the sector, particularly in professional development and capacity building training. Part 3 - Areas of outstanding biodiversity value We anticipate the likelihood that areas of outstanding biodiversity value will be treated like critical habitat under the Threatened Species Conservation Act 1995 and either not be applied to all the lands that it should or just not be used. The eligibility criteria for declaring areas of outstanding biodiversity value are highly subjective and again the devil will be in the details of the regulations. The consultation notes identify that it is not proposed to declare areas of outstanding biodiversity value where plant activities by commercial growers are carried out. It is not clear whether this applies to crop growing areas and orchards, or whether it is only referring to the cut-flower, nursery and bush regeneration industries. It is also not clear whether this would apply to the entire property where these activities are being undertaken or whether values that contribute to the outstanding biodiversity values of an area will be excluded. Planted windbreaks, particularly around the macadamia orchards which give the Northern Rivers the title of Macadamia Capital of the World, are integral to koala survival in many parts of the region. The consultation notes indicate that declared areas of outstanding biodiversity value will be the priority for investment under the Biodiversity Conservation Investment Strategy. While this sounds reasonable success or failure will be determined by what is included or excluded from the declared areas. It also implies that koalas not occurring in a declared area of outstanding biodiversity value will not be a priority for investment. It is understood that clearing under the Local Land Services Amendment Bill will not be permitted in declared areas of outstanding biodiversity value without the approval of the Minister for Primary Industries. It is these types of outs that lead to subjective and poorly transparent decision-making which has already led to biodiversity declines, including the Koala, across the State. Part 4 Threatened Species and threatened ecological communities Conservation of genetic diversity is a key component of ecologically sustainable development and biodiversity conservation. The removal of endangered populations for species that are listed as vulnerable from the Threatened Species Schedules is of concern. The koala has three populations listed as endangered under the Threatened Species Conservation Act 1995 Pittwater, Hawks Nest-Teagardens and most recently the Tweed Coast which have been removed from the Bill s Threatened Species Schedule. FOK strongly opposes the removal of these endangered populations. We believe that koala recovery in these populations is contingent on the additional weight that the endangered listing gives to the koalas in these areas.

8 Part 5 Investment Strategy and Private Land Conservation Agreements We would support the development of a transparent Investment Strategy, however, it is likely that much of the incentive funding will be consumed in staffing the Biodiversity Conservation Trust rather than on the ground, with the remainder providing tokenistic payments to landholders. The process could also appear to be compromised with some overlap of funding provided by developers as offsets, passed to the Trust. Part 6 Biodiversity Offsets Scheme The current methodologies and schemes associated with offsetting have led to a decline in biodiversity. Allowing the impacts of inappropriate developments to be offset are going to continue the decline of biodiversity. Developments such as Kings Forest in Tweed Shire and Section 10 of the Woolgoolga to Ballina Pacific Highway Upgrade in Ballina Shire are allowed through the offsets schemes. These developments will lead to the extinction of koala populations in those areas. No amount of offsetting will change the reality for those koalas whose habitat will be destroyed. The proposed offset scheme under the Bill is weakening the conservation of biodiversity outcomes to a level that will see biodiversity decline at a greater rate that is currently being experienced. The ability to vary like for like offsets will be allowed. If declines are to be slowed or halted then an alternative offset scheme is required. As a minimum like for like must be maintained if biodiversity declines are to be prevented. There must be no net loss of biodiversity as a result of a development or activity. Again the details will be in the regulations. It also appears that there is no timeframe for the Biodiversity Conservation Trust to achieve the offsets. Therefore, it could be more than 5 years before the impacts of a development are offset. The time lag for between biodiversity loss and its offset must occur together, i.e. habitat cannot be lost until appropriate compensatory habitat (offset) is provided. Our understanding is that the Roads and Maritime Services is still trying to acquire offset habitat for the Long-nosed Potoroo at Tugun. This is an unacceptable outcome and demonstrates the failings of such schemes. Offsets schemes lead to cumulative impacts to many species and decisions are made on a case by case basis without consideration to where the persistence thresholds for each species occur. Rob Stokes, Minister for Planning, admitted that it was one development that pushed the Pittwater koalas in his electorate over the edge, and that they did not know that would be the one. If using offsets there must be some tangible point before the threshold is reached that enables a departmental staff and Ministers to say no to developments considered likely to push a population of a threatened species to the point of no return. Fauna species that have relatively fixed home ranges, such as the Koala, are the ones that will suffer the most under offsets schemes, particularly the one proposed in the Bill, which aims to copy the Major Projects Offset Policy. If a koalas habitat is lost through vegetation clearance then the koalas using that area are impacted and retaining some habitat (often suboptimal), planting trees (that take years before use), and acquiring habitat nowhere near their home range will be detrimental to the survival of koala populations. Details of serious and irreversible impacts are to be provided for in the Regulations. It is of concern that a species or ecological community has to reach the point of an impact being of

9 serious and irreversible before it triggers warranted consideration. This does not imply that this is the point where a developer will be told no. The time available has not allowed for detailed consideration of the Biodiversity Assessment Method (BAM). Our main point of concern is the discretionary and subjective powers for the outcomes of the BAM to be ignored. The whole purpose of introducing the BAM is to have a transparent process. Transparency is defeated when decisions can be made without basis.

10 Attachment 2: Local Land Services Amendment Bill 2016 Public Consultation Draft and Associated Documents (Native Vegetation Regulatory Map and Land Management Codes) Overall, the Local Land Services Amendment Bill 2016 appears to be a weakening of the native vegetation clearance laws and any weakening of legislation that will increase the risk of extinction to koalas is not supported by FOK. Landholders should be encouraged to retain trees as part of sustainable land management not encouraged to remove them. The majority of landholders that FOK works with are supportive of protecting koala habitat and additional planting of koala food trees. However, clearing of important habitat for koalas can occur when a new landholder takes over and clears trees that previous landholders have left, oftentimes unaware that it is or was koala habitat, or when the land-use changes from grazing to cropping. There is much more work to be undertaken in raising awareness and onground actions. To this end the private land conservation incentives are supported. The use of offsets, through setting aside some vegetation to offset clearing is supported as long as that vegetation has the ability (carrying capacity) to support animals already living there and those that will be displaced as a result of the clearing. While FOK supports all replacement planting of koala food trees, it is a concern that habitat may not be available in those areas for 5-18 years, depending on the species being replaced. We are not clear whether the existing Routine Agricultural Management Activity (RAMA)s will be applied to the LLS Amendment Bill and Regulations and whether they will apply to both Category 1 and 2 mapped areas. How the RAMAs will be incorporated must be made clearer. Maps Our understanding is that maps will only be made available to landholders and not be publically available. Without access to the maps it is difficult to comment on the effectiveness of this approach in conserving biodiversity and reducing land clearing. In the interests of transparency and accountability, the maps should be publicly available. Land Management Codes of Practice We are particularly concerned with the apparent lack of regard for the value of regrowth, paddock trees and small remnants, which are critical to the persistence of koala populations living in highly fragmented landscapes. For example, in some areas of Lismore and Richmond Valley koalas are completely dependent on trees that would be allowed to be cleared without any notification or with notification, but without any opportunity to prevent that clearing before it happens. Tree species (e.g. Forest Red Gum, Swamp Mahogany) are used for feeding by koalas when the tree reaches about 10 cm or more diameter at breast height (DBH). Allowing clearing of koala food trees up to 80cm DBH will impact on local koala populations; even more so if the clearance involves a tree to which a koala has a particular attachment. FOK has observed koalas returning to cleared trees, disoriented, confused and stressed, with some dying within a week of losing their favourite tree(s) and some taking six months before dying. In one case when about a hectare of trees were cleared the seven koalas dependent on that patch all died within six months.

11 Although Eucalyptus trees are long lived they require replacement trees of all ages to maintain the population over time. Allowing trees <1990 and less than 80cm DBH to be cleared without regulation is removing the next generations of habitat for when these trees die or fall-blown over. Looking 50 years into the future, trees that were 26 years old in 2016 will be 76 years old. A 76 year old eucalypt is well on the way to developing hollows, and providing a great food resource for more than one koala. Koala food trees on the floodplain in the Northern Rivers include Forest Red Gum and Swamp Mahogany. These species often occur as scattered plants across the landscape and are components of some of the threatened floodplain ecological communities. While FOK understands why trees may want to be cleared for the ease of land management, there are some places where they are just too important. Koalas also use native and exotic paddock trees (e.g. Acacia species, Sandpaper Figs, Brushbox, Camphor Laurel), for sheltering and protection. A koala is at most risk when it is on the ground. FOK has had several koalas come into care as a result of having to travel across paddocks to get to favourite food trees and being bailed up and trampled by cattle. In every case the koala has been either killed or required euthanasia. FOK supports any measures that provide incentives for landholders to retain and plant koala food trees in critical areas for supporting the viability of koala populations. Additionally, the effect of tree clearing for Private Native Forestry has been recorded in Ballina Shire, where an area of high koala activity was subsequently thinned. The site was first surveyed by Dr Steve Phillips, who conducted a Koala Habitat & Population Assessment for Ballina Shire Council during He again surveyed the site during 2015 when undertaking the Ballina Koala Population Study for the Roads and Maritime Service. On the latter occasion Dr Phillips found the site to be an area of low activity with far fewer koalas. The numbers for the study area suggests some or all of the displaced koalas did not survive. It is possible that they died as a result of the tree clearing itself (injuries), stress, starvation seeking new trees, or were vulnerable to dog attack searching for new habitat. In making these laws that are so generic, it is important to understand the biology and requirements of each of the species and ensure that they are provided for. This is critical for species such as the koala with specific habitat requirements, individual home ranges, and complex population dynamics. Species such as the Koala that are so habitat specific will be impacted by the proposed codes. We recommend development of a specific code for the Koala that addresses some of the issues raised and encourages and supports landholders to retain and enhance their koala habitat.