21 June 2016 Submission from Edwina Laginestra regarding Draft Biodiversity Conservation Reform package. This is the most regressive proposed

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1 21 June 2016 Submission from Edwina Laginestra regarding Draft Biodiversity Conservation Reform package. This is the most regressive proposed legislation I have encountered in nearly 30 years of environmental review. Although there is broad agreement between government, environmentalists, and land managers that the current legislation needs reform, there is not one scientist that works in environmental management that would support the proposed changes. I have worked at Sydney Water, Sydney Olympic Park and as an environmental consultant in toxicology, water management, land remediation and risk assessment. I have also worked as a lecturer in environmental protection and management at University of Technology, Sydney. I find the changes poorly targeted to biodiversity conservation and more directed to easing constraints for farmers, miners and developers to clear land. I have also noted that the independent panel authors and the Wentworth Group of Concerned Scientists have expressed concern. Firstly the words used and the order of phrases matter. That guides the intent. Both the overview to the proposed Biodiversity reforms ( ) and the Draft legislation provide a copybook study in Orwellian language, stating one thing while meaning the opposite. The first aim stated regarding removing red tape clearly identifies the most important aim. The changes proposed leave no doubt that there will be loss of vegetation and biodiversity. I also strongly doubt that the authors have worked in remediation or stewardship of the environment. They demonstrate limited understanding of how risk-based approaches need to work, stating that a risk based approach used by farmers will provide certainty, when in fact, it is statements of no net loss and oversight that provide certainty. 1. Identified failures of current legislation: The failures identified or perceived in the existing legislation to protect vegetation and biodiversity are not agreed by the government and independent experts. This makes it difficult to identify causes and assign action and monitoring criteria. Scientists have stated the current legislation has reduced land-clearing rates by more than 800% but more could have been done with better funding alignment. Even with the current legislation in place to protect clearing, farmers have been clearing their land 6 times faster than is detected by government (SMH 2016). The recommendations made by independent review included better incentives for farmers to conserve biodiversity, and provide a system for monitoring and reporting the condition of biodiversity. The indicators are about vegetation area and biodiversity health and quantity. However as data regarding the evaluation of effectiveness of current and draft laws is poor, the level of understanding of outcomes of changes is low, although hazard and likelihood of adverse outcomes is high. The failures stated by the government seem to be about perceptions of unfairness and inconsistency. However, the main thrust appears to be to reduce red-tape, remove the standard regarding no net loss and remove monitoring in favour of unproven land maps (which are not provided for urban areas). The indicators for success are not easily found and may be more subjective. However, it seems telling that the website states that clearing has stabilised. Surely this could be seen as a success of current legislation? If the government believes current laws are unfair, stymie innovation and do not provide consistency, their changes in no way address these concerns: they do not address inconsistencies different industries operate under; they allow increased net loss and; increase inconsistency in decision-making: The use of category maps allows more clearing and there are insufficient safeguards to protect local biodiversity. The maps do not provide the fine details required for managing local biodiversity. The use of risk-based approach means more variability as there is limited data the farmers can access, varied methodology and weighting of criteria. More certainty and consistency is provided by a set aim such as no net loss, which does not specify methodology, but still allows for innovation and safety clearing at the same time considering biodiversity needs as a whole. The government states farmers feel there is inconsistency across sectors, and miners and developers can more easily undertake broadscale land clearing, whereas they are constrained by Native

2 Vegetation Act. However, the new laws should aim to bring other sectors up to native Vegetation Act, rather than allowing more broadscale clearing. Land clearing in mining and development has been identified as a major contributing factor to species loss and should be subject to the same levl of maintain and improve. The proposed changes are not supported by scientists or scientific evidence. There are no recorded successful offsets (even with the minimum success criteria of no net loss of biodiversity). Currently most offsets merely preserve current existing conservation areas, meaning there is a net loss of vegetation. There is serious concern some farmers will remove vegetation even if it makes category 2 or 3, as other clearing laws have been exploited by some for personal gain, eg 10/50 laws. The government states the current legislative regime is strongly opposed by the farming community. This is NOT true: The last update of Biodiversity laws were undertaken with input from scientists, farmers and environmental groups. The Farming Lobby s Youth Arm and the rural lobby group AgForce have both opposed the Draft Reform package and called for a consultative process again. The National Farmers Federation is strongly aligned with the National Party and the changes look political rather than based on science. All scientific reviews on shortfalls of the current vegetation protection laws suggest the best actions to reduce the loss of biodiversity include: better incentives and bureaucratic systems for conservation on private land and funding to restore degraded land; improved data collection and sharing; focus on landscape management rather than species management; provide a transparent system for monitoring and reporting the condition of biodiversity and effects of tree clearing. 2. The main aim: There is a clear difference between the draft legislation and the recommendation from the independent expert review. The Independent Review of Biodiversity legislation (December 2014) stated the aim should be to minimise future losses of native biodiversity and conserve habitat in good condition. They stated the proposed Act improve conservation and support sustainable development to reduce compliance and administrative burdens. The proposed legislation has turned this around to firstly cut red tape: cut red tape, facilitate ESD and conserve biodiversity. In the review recommendation 41 states the overarching goal should be to maintain a healthy, productive and resilient environment for the greatest wellbeing of the community..consistent with the principles of ecologically sustainable development. The main aim provides intent and direction. The draft Act MUST change its aim to minimise loss of native biodiversity and conserve habitat in good condition. 3. Words are important There is a hierarchy in achieving aims as they do not co-exist comfortably, currently the draft Act stating cutting red tape leaves biodiversity aims as secondary, and therefore vulnerable. Although diversity and sustainable development are not mutually exclusive, they need careful integration. However, this is not achieved by promoting economic indicators over social and environmental indicators. To state that clearance should be allowed in cases of improved agricultural productivity also prioritises economic indicators over biodiversity. It does not seem to include long-term productivity indicators which usually show keeping trees in paddocks reduce heat, maintain groundwater flow, reduce dryland salinity. These are very real costs if they are lost. By implying we should put more trust in farmers, is creating a sense of adversity. Most of our farmers are trustworthy, however there is a large proportion that are not. Laws have always been made to protect the many from the few. Legitimate land clearing has always been allowed. To state otherwise is false.

3 Your reference to following the principles of ESD is in fact not consistent with ESD. Sustainability principles are underpinned by the precautionary principle, polluter pays and inter-generational equity. This draft fails on all three of these counts, no matter how often you refer to sustainability. Finally I have a problem with the term ownership. We should be using stewardship which assists in highlighting we are managing land for others and for the long-term. The draft needs rewriting to ensure terms used indicate priority for biodiversity. 4. Biobanking and payment to a Fund : There are NO documented successful cases of offsets. Basically you are cutting down trees and using existing stock elsewhere to counteract the vegetation loss. But not only is that is stating existing trees, not replantings, will be preserved instead (thus an overall vegetation loss), there are no guarantees the offset will be preserved in perpetuity. There no real world examples of successful cases of replication after destruction of biodiversity (Quetier and Lavorel 2011). Not only is it virtually impossible to replicate a site (due to variations in microclimate and scientific gaps in knowledge about how a successful community is built up), we are losing established species that generally cannot wait for replantings to become old growth that is usable. The only published successful case of offset land was Sydney Olympic Park (The Conversation 2013), with which I was involved. I would dispute that this is offset for the following reasons: I would class it as remediation repair for already damaged land that was not usable and in fact was damaging to health. It provides a good example of companies not paying for damage caused, as the bill was picked up by the taxpayer. Although habitat was recreated for the Green and Golden Bell Frog, this species was surviving in degraded land, and required a lot of research to determine survival requirements. There were plenty of failures where we lost the species and it required 19 times the area they were found in. There was also restoration of wetlands for the JAMBA and CAMBA birds, again which required ongoing research, monitoring and adjustment to original plans. Money that would not be guaranteed under this draft package. What SOP does show is that payment to a fund will not be adequate to remediate and ensure survival, and that prevention is better than cure. Do not destroy anything that you do not have to. There is ample evidence that up-front payments do NOT cover the actual remediation costs. Ever. There is not one case where payment from a proponent was adequate to remediate the site. Paying funds into an account only provides an advantage to the proponents, not society. Offsetting needs to specify no net loss, and same level of diversity is present and can be managed into the future. It should also specify a like for like role. They should also specify that if an offset is considered then transparent discussion regarding what is being lost and what is required to provide or restore the habitat post removal. 5. Self-assessment: Landholders will no longer be the sole party responsible for conservation outcomes and will be able to undertake legitimate land clearing and management activities unhindered. Providing incentives to conserve biodiversity is long overdue. However legitimate land clearing has always been allowed and officers were usually helpful in assisting farmers if they had the time. The problem has been lack of adequate funding. Officers were often on the case of illegally cleared land, which had to be documented carefully. There are major problems with self-assessment: They are not consistent. Consistency is not achieved by individual RA with limited knowledge. It is provided by clearly stated aims such as same state or improved Use of market mechanisms do not work for conservation. Scarcity increases price and it is almost advantageous to reduce diversity so it becomes more valuable.

4 Stating that clearing will be allowed for efficiency values economic outcomes above conservation. Clearing of paddocks has been shown to remove hollow bearing trees and dead wood these are needed for fauna homes and shelter. Offsets or replanting are inferior as replantings take years to provide the same level of service. Offsets result in net loss. Decision-making using a risk-based approach should follow the precautionary principle: if you don t have the information to reduce uncertainty, then you should not clear the vegetation. Farmers rarely have the amount of information they need to do a risk-assessment. Information required can include impact on water quality, soil function, erosion, air quality, water table flow and function, fauna requirements. They might need to make a call on like for like substitution. As many researchers are finding out what is needed to restore habitat, I am doubtful most farmers would know. Risk assessments need a transparent model, with assumptions and estimations outlined so the methodology can be repeated. This is good practice and can provide valuable information when reviewing systems and finding out what is happening. This will require funding for training and monitoring. There is no reason to totally clear vegetation to get rid of pest species. This is a spurious argument and is not often backed up by scientific evidence. Research about needs of natives vs invasive species usually identifies the best management actions. To clear it all is lazy and can risk serious damage to threatened species. Farmers do not have time to do a proper assessment. As one dryland farmer (Will Bucklin of California) observed when you ve got 500 or 1000 acres you don t have much opportunity to be a good steward of your land. You have to make big decisions in a hurry. Those big decisions affect the health of our country. I also find it surprising that one reason given for farmers to use maps to categorise their land is that they do not have to identify the age of vegetation on their properties themselves to determine if it is regulated. Yet they are now supposed to be capable of doing their own risk assessments. I would guess that an ERA is much more difficult to do than determine whether vegetation on the property is regulated. 6. Maps: The maps are a good start for monitoring and could underpin the Local Land Services Act IF they were used with other techniques. They should not be used alone for any final decisions as, as outlined above, the do not provide good enough information on other risk factors including groundwater, ASS, erosion potential. The method to produce the maps does not make any assessment of the particular type, condition or environmental value of the vegetation. It does not replace site-based assessment that may be required under approval processes. Therefore they can only be used as a first step in risk based approach, alongside the other information needed. Although the draft Act suggests they aim to provide the consistency; 1. A number of scientists have pointed out that they do not closely match fine-scale details needed for some communities. 2. They are not available for urban areas, therefore providing inconsistency in management of different land types. After verification, they could well be used to provide ongoing protection for Category 2 and 3 land. Although they might provide consistency to farmers in that they would not have any further controls to concern themselves with, they do not provide consistency in protection of local biodiversity. The clearance maximum of up to 40m vegetation from linear and fixed point infrastructure provides further inconsistencies between this and other legislation. This is where consideration of connectivity should also come in. These codes and level of clearing create disconnect between communities. 7. Climate change and Corridors: Removal of trees not only affects carbon capture and release but other research has suggested that the only way some species will survive is to move and to do so requires vegetated connections. Deliberately creating wildlife corridors could improve their chances of survival; however connectivity has been lost due to inhospitable practices of humans, including agricultural fields, roads and cities. Ways to improve

5 connectivity include rehabilitating forests, planting natural habitats next to "interruptions" such as large agricultural fields, and building overpasses across highways (McGuire JL et al 2016). Any removal of vegetation should consider how species move between communities. Major threatening activities to biodiversity have been identified as land clearing and climate change. Growing pressures of population and economic activity in regions should also be considered, and how to manage invasive species. Each of these must be specifically addressed and managed. Fragmentation will eventually cause the decline of healthy populations and loss of biodiversity. 8. Effects in Urban areas: The draft laws are clearly designed for farmland management, yet aim to treat urban bushland under the same regime while implicitly acknowledging the difference by the lack of some tools, such as the maps. Maps of the urban area should highlight the red flags or no-go zones so development cannot destroy high conservation value land including important remnant parklands or heritage trees. In urban areas only remnants of biodiverse landscapes exist. One could draw the conclusion that any remnant bushland should be category 3. There are patches of remnant urban bushland that do not exist anywhere else. Destruction of these areas means loss, as there are rarely any like for like areas that remain. Offsets could only be limited options at best. Payment to funds is merely a cop-out. Removal of Tree Preservation Orders will mean many large trees (essential for wildlife diversity) will go for spurious safety concerns, as has happened with 10/50 clearing laws. If a tree does need to be removed, then an expert arborist and council officers should be involved. Trees in urban environments are essential for minimising the heat island effect, reducing stormwater runoff, minimising erosion and flood damage. Removal of remnant bushland adversely affects the quality and quantity of our quality of life indicators. Damage to these urban environments means that biodiversity will disappear from certain locales, perhaps even whole suburbs and LGAs and this also has a direct economic effect on local farming enterprises such as bee keeping and community farming, which has been growing in the urban environment. This is not an individual ownership issue but important for the common good and stewardship. We must not remove the statement regarding biodiversity values should be improved or maintained. The same rules need to be applied to all size developments. Larger development should not be exempt as they have the biggest impact and require the most oversight. Conclusion The draft reform package does not address the current weaknesses of the existing Acts. The proposed changes increase inconsistency and increase the risk of broadscale land clearing with associated loss of biodiversity. A risk based approach requires much more information than is available to farmers at the moment and it is much harder to prove and police. Offsets and biobanking do not work. Payment does not assist in conserving biodiversity and it rarely even assists remediation. The transference of decision-making power away from the Minister for the Environment displays the lack of concern for biodiversity conservation and shows the aim is for short-term economic or efficiency issues. Removal of maintain and improve and increase of Ministerial discretion provides less certainty and protection of our biodiversity. The NSW SoE report states landclearing is the biggest single cause of species loss. The changes proposed do not acknowledge the costs of land clearing adequately. Effects of climate change and the changing needs of our flora and fauna are not mentioned. Fragmentation of communities leads to eventual loss of biodiversity and myriad studies show prevention (not clearing) is better than cure (remediation) (Perry 2016, Ying Ping Wang et al 2015). There is limited recognition of potential damage to surface and ground water, soil or air quality, or effects on flooding, dry land salinity, erosion, heat mitigation. These are all serious costs that many farmers are trying to address using different methods of farming. These farmers do not support this regressive legislation.

6 The draft laws need to acknowledge the limitations of the mapping, value the diversity in the area it occurs and guarantee farmers ongoing payment for care, rule out offset schemes and acknowledge the overall social benefit in keeping remnant bushland. The draft overview states The reform package will deliver balanced legislation and positive outcomes for all stakeholders. This could not be further from the truth: the changes value short-term profit for some landowners over the ecological and social benefit of protecting our trees. The science and history indicate this will be a regressive step for biodiversity. References Byron, Craik, Keniry and Possingham, 2014 A review of Biodiversity Legislation in NSW. Final Report Evans and Maron 2013 Can we offset biodiversity losses? The Conversation McGuire JL et al Achieving climate connectivity in a fragmented landscape. PNAS Perry 2016 The NSW Government is Choosing to Undermine Native Vegetation and Biodiversity. The Conversation Quetier and Lavorel 2011 Assessing Ecological Equivalence in Biodiversity Offset Schemes. Biological Conservation Ying-Ping Wang et al Nitrogen and phosphorous limitation reduces the effects of land use change on land carbon uptake or emission. ERL