27 June Biodiversity Reforms - Have Your Say Office of Environment and Heritage PO Box A290 Sydney South NSW 1232

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1 27 June 2016 Biodiversity Reforms - Have Your Say Office of Environment and Heritage PO Box A290 Sydney South NSW 1232 BirdLife Australia Submission regarding proposed New South Wales Biodiversity Reforms Dear Minister, BirdLife Australia is a highly respected science-based conservation organisation representing over 85,000 supporters across the country. BirdLife Australia is the national partner of BirdLife International, the world s largest nature conservation Partnership, with over 13 million supporters. The reform of NSW Environment laws is an opportunity to improve conservation outcomes for biodiversity. With appropriate engagement, BirdLife Australia can contribute expertise to the process of reform. We support the concept of conserving areas of outstanding biodiversity value. Indeed, BirdLife International has been leading the way on this for decades. In Australia we have identified 315 Important Bird and Biodiversity Areas (IBAs) - sites of global significance for the conservation of birds and biodiversity - including 45 in NSW. Many of these IBAs have local community groups with dedicated guardians who regularly monitor the condition of these sites. In the attached we recommend aligning the NSW Government s current thinking about Areas of Outstanding Universal Value (AOBV) with the IUCN Key Biodiversity Area (KBA) Standard, which is designed to harmonise approaches to the identification of globally important sites for biodiversity. It is disappointing that BirdLife has not been directly consulted in the reform process. We have a number of highly regarded, science-based conservation programs in NSW. One of our key programs is the Woodland Birds for Biodiversity project, which has a key focus on the recovery of the Critically Endangered Regent Honeyeater Anthochaera phrygia; a flagship species for the conservation of a suite of threatened and declining woodland birds in south-eastern Australia. The NSW Government s proposed biodiversity legislation and policy package as currently drafted removes many long held environmental protections and

2 represents a serious backward step for environmental law and policy in the State. We believe it will increase the extinction risk for many threatened bird (and other) species. The proposed reforms are not in the public interest; any economic gains are likely to be short lived and at the expense of threatened species and biodiversity in NSW. The proposed changes undermine many years and millions of dollars our supporters have invested in the conservation of birds in NSW. We therefore oppose the draft Biodiversity Conservation Bill 2016 and the draft Local Land Services Amendment Bill 2016 in their current form. We provide 16 recommendations for improving the proposed legislation and look forward to working constructively with your Department so that any reform of biodiversity laws in NSW better protect birds and their habitat. Given our expertise we specifically ask to be actively engaged by the NSW Government on the development of any Biodiversity Assessment Methodology, identification of AOBV, and policy reforms that may significantly affect the protection of birds and their habitat. Genuine public consultation includes listening and understanding. Through the Places You Love Alliance, including a series of community workshops held in NSW, BirdLife Australia has been in conversation with the Australian community about what they want new nature laws to do ( We have convened The Australian Panel of Experts on Environmental Law (APEEL) to evaluate the effective aspects of the present legal protections, and make recommendations for a new generation of laws to address the unprecedented environmental challenges we face now, and in the future (see Meaningful dialogue and real community engagement will lead to biodiversity laws that will be supported by the community and be effective in conserving biodiversity in NSW. Kind regards, Paul Sullivan Chief Executive Officer 2

3 BirdLife Australia Submission Summary Recommendation 1: That the public comment period extended by a period of no less than six months and include genuine engagement of the community in the design of new biodiversity legislation. Recommendation 2: The objects of the Biodiversity Conservation Bill 2016 must include objects and subsequent provisions to: a. prevent the extinction and promote the recovery of threatened species, populations and ecological communities; b. protect critical habitat of threatened species, populations and ecological communities; and c. avoid further species becoming threatened with extinction. Recommendation 3: Prior to the clearing of any vegetation in NSW, sites must be assessed by experienced, independent Ecologists to ensure: a. no sedentary threatened fauna or flora species are killed or destroyed b. threatened species habitat is not removed or destroyed without direct offsets that meet strict criteria (see Recommendation 4: Publically commit to the necessary staff and funding resources for LLS to certify and regulate vegetation management under the proposed reforms. Recommendation 5: That the NSW Government undertake accurate modelling and calculations of the total area of vegetation that is likely to be cleared under the proposed new Local Land Services Amendment Bill 2016, compared to the total areas of the same that can be cleared under the current legislation (Native Vegetation Act 2003 and Threatened Species Conservation Act 1995) and publish it for the NSW public to comment on prior to the end of the submission period. We specifically wish to see: a. an accurate estimate of the all the native vegetation that will be cleared under the new legislation; b. all the pre-1990 vegetation that will likely be cleared; c. all the post-1990 vegetation that will likely be cleared; 3

4 d. the total area of NSW-listed Endangered Ecological Communities and Critically Endangered Ecological Communities that will be likely cleared; e. the total area of Environmental Protection & Biodiversity Conservation Act 1999 (Cth) listed Endangered Ecological Communities, Critically Endangered Ecological Communities and matters of national environmental significance that will be cleared (assuming that none of this clearing will be referred to the Commonwealth); f. the total volume of greenhouse emissions caused by the proposed land clearing and a clear explanation of how these emissions will be offset ; g. the NSW Government undertake a formal environmental impact assessment of activities permitted under the biodiversity reform package. Recommendation 6: That the NSW government: a. undertake a formal Commonwealth Referral to assess the impact of all activities permitted under the biodiversity reform package on MNES. b. clearly acknowledge how the proposed reforms will interact with the EPBC Act, including the possibility of inconsistency between what is an offence under the State and Commonwealth legislation. c. provide clear, detailed information to help land managers conserve nationally listed MNES habitat on their properties and avoid clearing that would breach the EPBC Act. Recommendation 7: That the Minister and public authorities (including the Chief Executive) not make decisions that are inconsistent with the provisions of a Biodiversity Conservation Program as was required by s.69 of the Threatened Species Conservation Act Recommendation 8: Undertake an honest and transparent economic analysis of the financial costs and gains of implementing the proposed legislation reforms. Recommendation 9: That the government retain Endangered Populations in the Biodiversity Conservation Bill 2016 Recommendation 10: Improve the process proposed for declaring Areas of Outstanding Biodiversity Value (AOBV) by: 4

5 a. Aligning AOBV thinking with the Key Biodiversity Area standard which is designed to harmonise approaches to the identification of globally important sites for biodiversity. b. Maintaining Critical Habitat as a special category of AOBV Recommendation 11: All proposed exempt wildlife that are native birds are clearly listed and include the rationale and a strong evidence base for listing, as well as transparent plans for assessing the effectiveness of proposed management actions. BirdLife Australia is opposed to wildlife destruction that is inhumane or ill-considered. We refer the NSW Government to our pest bird management policy ( Recommendation 12: Retain current requirements for public consultation and registers. Retain the rights of the people of NSW to challenge Environmental Planning and Biodiversity decisions in the Land and Environment Court. Recommendation 13: The proposed reforms should be based on a hierarchy of controls by where negative impacts are avoided or mitigated. Offset should be a last resort. If offsets are used, do not allow exemptions and discounts from any offset pathways. Vegetation management and clearing assessors must be adequately trained and funded to review and assess all proposed offsets and set asides. The decision making process around assessment of areas of land to be cleared and the proposed offsets should be publically available. See BirdLife Australia s Biodiversity Offset policy Recommendation 14: All threatened bird species should be listed as species credits and not ecosystem credits. It is inappropriate to use habitat surrogates to predict species presence on an offset site. The BAM should be revised to ensure that appropriate species experts (and where they exist, recovery team chairs) are consulted when assessing impacts on threatened species. BirdLife is also able to provide expert advice regarding: a. The list of species credit species and ecosystem credit species b. The minimum survey methods required under the BAM to ensure adequate conservation of threatened bird species. This is particularly important for threatened woodland birds which are underrepresented in the species credit stream. 5

6 c. The use of habitat attributes as a proxy for determining if threatened birds exist in Development and Biocertification sites. d. Ensuring any proposed offsets are proven to contain the bird species they are said to offset. e. Ensuring Offsets schemes deliver biodiversity gains. To do this an offset must increase the value of a site for the species likely to be impacted by development, to a degree equivalent to the values lost. Recommendation 15: Retain the requirement to maintain or improve environmental outcomes. Recommendation 16: Offsets must ensure there is a biodiversity gain. To achieve this an offset must increase the value of a site for the species likely to be impacted by development, to a degree equivalent to the values lost. 6

7 BirdLife Australia Submission Attachment 1. Inadequate Timing for Submission Comment Given the detail in the proposed legislative reform we are concerned by the limited time and resources dedicated to public consultation. Crucial components of the legislative package have yet to be provided, including any associated Regulations, which often provide the nuts and bolts as to the operation of legislation. We wish to see the public comment period extended by a period no less than six months to allow all stakeholders sufficient time to thoroughly examine the detail and implications of the proposed reforms, and to allow them to provide an informed response. Genuine public consultation includes listening and understanding. Meaningful dialogue and real community engagement is more likely to produce biodiversity laws that people will support. Recommendation 1: That the public comment period extended by a period of no less than six months and include genuine engagement of the community in the design of new biodiversity legislation. 2. Purpose and object of the Biodiversity Conservation Bill 2016 BirdLife supports the purpose to conserve biodiversity and ecological integrity at bioregional and State scales found in the Biodiversity Conservation Bill However the objects and subsequent provisions of the Biodiversity Conservation Bill 2016 will not achieve this purpose. BirdLife is concerned by the loss of objects included under section 3 of the Threatened Species Conservation Act 1995 including: (b) to prevent the extinction and promote the recovery of threatened species, populations and ecological communities, and (c) to protect the critical habitat of those threatened species, populations and ecological communities that are endangered, and (d) to eliminate or manage certain processes that threaten the survival or evolutionary development of threatened species, populations and ecological communities, and 7

8 (e) to ensure that the impact of any action affecting threatened species, populations and ecological communities is properly assessed (f) to encourage the conservation of threatened species, populations and ecological communities by the adoption of measures involving cooperative management. These objects are imperative to stopping the decline of our most vulnerable native birds and BirdLife request that strong objects such as these are included in the Biodiversity Conservation Bill 2016 to prevent further loss of biodiversity. Recommendation 2: The objects of the Biodiversity Conservation Bill 2016 must include objects and subsequent provisions to: a. prevent the extinction and promote the recovery of threatened species, populations and ecological communities; b. protect critical habitat of threatened species, populations and ecological communities; and c. avoid further species becoming threatened with extinction. 3. Repeal of the Biodiversity Protection Standards within the Native Vegetation Act 2003 The reforms propose that the Local Land Services Amendment Bill 2016 will replace the Native Vegetation Act 2003 and the Environmental Outcomes Assessment Methodology (EOAM). The proposed changes appear illinformed, with poorly planned self-assessable Codes and inappropriate exemptions. They permit discretionary clearing. There are no clear environmental baselines, aims or targets. There is no ban on broad scale clearing, no threatened species impact assessment, no mandatory soil, water or salinity assessment, and no maintain-or-improve standard to ensure environmental outcomes, either at the site scale or at the landscape scale. Provisions are less stringent, less evidence-based, less accountable, and are much more likely to result in significant increases in clearing in NSW. Habitat destruction is one of the major drivers of threatened species decline. BirdLife Australia is particularly concerned that the proposed Local Land Services Amendment Bill 2016 does not require assessment for the 8

9 presence of threatened fauna species prior to and during any selfassessable clearing. Our membership and supporter base includes many experienced bird observers and conservationists who are also farmers and land managers. We respect these individuals as responsible stewards of the land they manage for agriculture. However, we are also aware that the majority of land managers would not be able to identify threatened species or threatened species habitat on their land, such as a Critically Endangered Regent Honeyeater or Swift Parrot. Without proper assessment processes there can be no way of ensuring that land managers will not remove essential habitat or kill threatened bird species during the exempt or self-assessable clearing processes. This is of particular concern for birds like the nomadic, Critically Endangered Regent Honeyeater that are known to nest in areas that have been mapped as exempt and self-assessable for clearing. Birds do not discriminate between vegetation that has grown since 1990 or before. If the habitat resources are there, birds will use them. In many areas, post-1990 regrowth vegetation is all that remains, and if viable, will support local populations of threatened bird species. Such populations may be placed at risk of extinction as a result of the proposed Local Land Services Amendment Bill In many instances natural regrowth, with an intact ground layer, comprises some of the most important areas of habitat for many threatened and declining woodland birds. We provide the following case study to illustrate a concerning, yet likely scenario to occur under the proposed reform: After the Local Land Services Amendment Bill 2016 is passed, five pairs of Regent Honeyeaters nest in a small patch of woodland on private property in central NSW. The woodland has been mapped as post-1990 regrowth. During Regent Honeyeater nesting season, that patch is legally cleared by a landowner exercising their rights under the legislative framework. In the process, the landowner unknowingly destroys all five nests killing all five Regent Honeyeater pairs and their chicks. The nearest suitable patch of similar quality vegetation is 60km away. This hypothetical single, legal clearing event would lead to the loss of more than 2.5 per cent of the entire wild population of Regent Honeyeater (currently estimated at wild birds). 9

10 Without appropriate site-based assessment, clearing permitted under the new legislation would help drive threatened bird (and other) species closer to extinction. Recommendation 3: Prior to the clearing of any vegetation in NSW, sites must be assessed by experienced, independent Ecologists to ensure: a. no sedentary threatened fauna or flora species are killed or destroyed b. threatened species habitat is not removed or destroyed without direct offsets that meet strict criteria (see 4. Inadequacy and lack of resources for Local Land Services to provide adequate certification BirdLife Australia are concerned with proposals to assign Local Land Services (LLS) staff to deliver certification of High Impact activities under the Codes. Firstly, there is no clear explanation of what certification or notification involves. Secondly, BirdLife Australia is concerned that the proposed changes will not be adequately resourced. LLSs are currently understaffed and underfunded; they are not able to effectively regulate and certify vegetation management under existing legislation. Furthermore, the high level of botanical and ecological identification skills required to accurately identify endangered ecological communities and other vegetation to be certified is unlikely to be met by the LLS in its current state, unless a there is a significant increase in the number of skilled and qualified field Ecologists, or adequate, professional training of existing staff. BirdLife is concerned the necessary resources will not be made available to the LLS in order for it to undertake its role effectively. Recommendation 4: Publically commit to the necessary staff and funding resources for LLS to certify and regulate vegetation management under the proposed reforms. 10

11 5. Return of broad scale land clearing and associated biodiversity loss in New South Wales BirdLife Australia is highly concerned at the potential area of land that will likely be cleared under the proposed legislative package. It is likely that thousands of hectares of important threatened bird habitat will be destroyed under the proposed legislative framework. This will increase the likelihood that a large proportion of our threatened bird species will edge further toward extinction. Of particular concern are threatened Woodland and Mallee birds that occur in the areas where the greatest land clearing is expected. Furthermore, the Local Land Services Amendment Bill 2016 is likely to contribute significantly to the following four Key Threatening Processes (listed under the proposed Biodiversity Conservation Bill 2016):. i. Clearing of native vegetation (as defined and described in the final determination of the Scientific Committee to list the key threatening process) ii. Loss of hollow-bearing trees iii. Loss or degradation (or both) of sites used for hill-topping by butterflies iv. Removal of dead wood and dead trees The NSW Government has been unable to estimate how much land clearing will occur under the new relaxed system, in particular, how much clearing will occur under the new self-assessable codes. The NSW government has not disclosed any accurate modelling and calculations of the total area of vegetation that is likely to be cleared under the proposed new Local Land Services Amendment Bill 2016, in comparison with clearing under the current legislation (Native Vegetation Act 2003 and Threatened Species Conservation Act 1995). The NSW Government has ignored a key recommendation of the Independent Biodiversity Legislation Review Panel; that land clearing involving a change of use should be assessed under planning laws. Instead the proposed changes hands the vast majority of clearing approvals to the Local Land Services that currently do not have the resources or expertise to carry out these functions. It is also unclear how the legislation will be applied as it is dependent on future mapping, which may be problematic and highly contested. 11

12 Great reliance is placed on a single scientific method to inform landclearing decisions. It is very concerning that discretion will exist, even for matters that are red flags (i.e. where clearing and development could cause serious and irreversible biodiversity loss). We hold grave concerns about the Set Aside concept, which will cause significant amounts of net loss and could effectively halve the area of Endangered Ecological Communities (EECs) in New South Wales. The proposal blatantly provides consent to remove and degrade EECs to the brink of collapse. Recommendation 5: That the NSW Government undertake accurate modelling and calculations of the total area of vegetation that is likely to be cleared under the proposed new Local Land Services Amendment Bill 2016, compared to the total areas of the same that can be cleared under the current legislation (Native Vegetation Act 2003 and Threatened Species Conservation Act 1995) and publish it for the NSW public to comment on prior to the end of the submission period. We specifically wish to see: a. an accurate estimate of the all the native vegetation that will be cleared under the new legislation; b. all the pre-1990 vegetation that will likely be cleared; c. all the post-1990 vegetation that will likely be cleared; d. the total area of NSW-listed Endangered Ecological Communities and Critically Endangered Ecological Communities that will be likely cleared; e. the total area of Environmental Protection & Biodiversity Conservation Act 1999 (Cth) listed Endangered Ecological Communities, Critically Endangered Ecological Communities and matters of national environmental significance that will be cleared (assuming that none of this clearing will be referred to the Commonwealth); f. the total volume of greenhouse emissions caused by the proposed land clearing and a clear explanation of how these emissions will be offset ; g. the NSW Government undertake a formal environmental impact assessment of activities permitted under the biodiversity reform package. 12

13 6. Contradictory Interactions with other Biodiversity Legislation The draft Biodiversity Conservation Bill 2016 carries over provisions of our current threatened species laws, while the draft Local Land Services Amendment Bill 2016 will increase the known threats to those species. The Bills fail to tackle the conflict between reducing the impact of listed key threatening processes to biodiversity, and permitting more land clearing via self-assessment. For example, the Biodiversity Conservation Bill 2016 lists loss of hollow bearing trees as a key threatening process, while the Local Land Services Amendment Bill 2016 allows clearing of paddock trees without approval. It is apparent that limited consideration has been given for Commonwealth legislation in the development of the Local Land Services Act. Under the proposed Local Land Services Amendment Bill 2016, it is not clear who will take responsibility for any breaches of the Environment Protection & Biodiversity Conservation Act 1999 (Cth) (EPBC Act) that occur while legally clearing vegetation under the self-assessable Codes of the Local Land Services Amendment Bill If a land manager undertakes self-assessed clearing of vegetation under the Local Land Services Act, but in the process destroys habitat for Commonwealth Listed Matters of National Environmental Significance (MNES) such as threatened birds, other fauna, plants or EPBC-listed EECs, BirdLife question who is responsible for this breach? With the extremely high likelihood of MNES being destroyed as a result of the Local Land Services Amendment Bill, the Act itself may be considered as a significant impact and an activity that could cause the loss of thousands of hectares of nationally listed Ecological Communities, and impact on nationally threatened species. Recommendation 6: That the NSW government: a. undertake a formal Commonwealth Referral to assess the impact of all activities permitted under the biodiversity reform package on MNES. b. clearly acknowledge how the proposed reforms will interact with the EPBC Act, including the possibility of inconsistency between what is an offence under the State and Commonwealth legislation. 13

14 c. provide clear, detailed information to help land managers conserve nationally listed MNES habitat on their properties and avoid clearing that would breach the EPBC Act. 7. Jeopardising investment of limited available conservation resources The proposed reforms are heavily reliant on political, budgetary decisions (which may be short-term) to achieve biodiversity gains, rather than legislative and regulatory mechanisms to prevent continued biodiversity decline. We strongly support incentives and stewardship payments to rural landholders to conserve and protect environmental values, but funding must be supported by regulatory requirements and targets that stop valuable biodiversity being cleared in both rural and urban areas. This includes the habitat of our declining threatened birds. BirdLife Australia believes that the most cost effective way to conserve birds is to ensure extensive clearing does not occur. It makes no sense to allow landholders to clear extensive areas of unassessed native vegetation, threatened fauna and flora habitat, whilst (at the same time) expending large amounts of taxpayer and philanthropist money to try and repair the environmental damage caused by legal clearing. The proposed reforms jeopardise the investment by government, nongovernment organisations, communities and philanthropists alike on threatened species recovery (including donations from our supporters). When considering the decades of time and effort spent on species recovery projects, it is concerning that a change in legislation will reverse the gains made under such projects. What may be considered a quick economic gain from permitting landholders to clear more land, may end up increased financial burden when the NSW taxpayers and NGOs have to cover the costs to repair and restore what has been lost to land clearing. Recommendation 7: That the Minister and public authorities (including the Chief Executive) not make decisions that are inconsistent with the provisions of a Biodiversity Conservation Program as was required by s.69 of the Threatened Species Conservation Act

15 8. Increased administration cost and lack of clear economic gains for NSW We anticipate that the proposed reforms will increase government (and taxpayer) administration costs. It is illogical to repeal provisions found in four Acts to create one coherent Act and scheme because it will result in a carving up administration responsibilities into three new or amended Acts, as well as associated regulations, State Environment Planning Policies (SEPPs) and Codes. The proposed reforms include updated offences and penalties, but it is not clear who will be responsible for compliance and enforcement. We request a clear illustration of the process involved at regulating the proposed reforms. This will ensure: a. any new legislation is being regulated properly; b. the NSW Government is able to put a dollar value on the money saved for the taxpayer; c. the NSW Government is able to put an accurate dollar value on the revenue generated from the operation of the proposed reforms. We request to see a clear economic analysis of the financial costs and gains of implementing the proposed legislation reforms. Recommendation 8: Undertake an honest and transparent economic analysis of the financial costs and gains of implementing the proposed legislation reforms. 9. Degradation of species conservation status It appears that the protection of Endangered Populations will no longer exist as part of the proposed Biodiversity Conservation Bill BirdLife Australia questions what will happen to the status of any currently listed Endangered Populations and how these special, conservation-significant populations will be protected if the legislation is passed? Recommendation 9: That the government retain Endangered Populations in the Biodiversity Conservation Bill Areas of Outstanding Biodiversity Value BirdLife Australia supports the concept of conserving areas of outstanding biodiversity. Indeed BirdLife International has been leading the way on this 15

16 for decades. In Australia we have identified 315 sites of global significance for the conservation of birds and biodiversity, including 45 sites in NSW. Many of these Important Bird and Biodiversity Areas (IBA) already have committed local community groups with dedicated Guardians, who regularly monitor the condition of these sites. Recently, the International Union for the Conservation of Nature (IUCN) Council approved and endorsed the Global Standard for the Identification of Key Biodiversity Areas. The Key Biodiversity Area (KBA) standard will be launched at the World Conservation Congress in September The Standard is designed to be used by national constituencies to identify sites contributing significantly to the global persistence of biodiversity. The aim of the KBA Standard is to harmonise existing approaches to the identification of globally important sites for biodiversity. KBAs are designed to support the strategic expansion of protected-area networks by governments and civil society working toward achievement of the UN Convention on Biological Diversity (CBD) Aichi Biodiversity Targets (in particular Target 11 and 12), and serve to inform the description or identification of sites under international conventions. The NSW Government has an opportunity to demonstrate leadership in Australia by being the first State to adopt this approach to conservation planning. Under the current proposal, we understand that Areas of Outstanding Biodiversity Value (AOBV) will replace Critical Habitat. However we recommend retention of Critical Habitat as subset (or special category) of AOBVs or KBAs, given the communities familiarity with the concept, as well as the importance given to habitat critical to the survival of species under national legislation. Recommendation 10: Improve the process for declaring AOBV by: a. Aligning AOBV thinking with the Key Biodiversity Area standard which is designed to harmonise approaches to the identification of globally important sites for biodiversity. b. Maintaining Critical Habitat as a special category of AOBV 16

17 11. Exempt Wildlife Management BirdLife is concerned by the inclusion of protected native birds on the list of exempt wildlife (e.g. Purple Swamphens). BirdLife Australia is opposed to wildlife destruction that is inhumane or ill-considered. It is not apparent to us that lethal control of such species is necessary or effective in reducing or avoiding economic loss associated with crop damage etc. Furthermore we are concerned that the people involved in lethally controlling these native birds will not be able to adequately distinguish between exempt and protected or threatened wildlife. Recommendation 11: All proposed exempt wildlife that are native birds are clearly listed and include the rationale and a strong evidence base for listing, as well as transparent plans for assessing the effectiveness of proposed management actions. BirdLife Australia is opposed to wildlife destruction that is inhumane or ill-considered. We refer the NSW Government to our pest bird management policy ( When pest species are managed, there should be an obligation to record the following minimum information: geographic extent and numbers of the population/s to be controlled; type, scale and severity of impact; relevant ecological information on the population/s to be controlled; methods of control to reduce the impact; parties responsible for the controls; number/s of animals to be controlled, over what time period; tolerable thresholds of impacts; and planning approach to be followed. The effectiveness of the management action (both changes in the targeted species population and their impact) should be thoroughly evaluated, as well as any positive and negative impacts on non-target species and the environment where the control actions take place. Licensing and regulation are useful tools in managing populations of pest species. Detailed record keeping is essential for assessing the impact of management actions. Any proposed lethal control of birds should be conducted in the presence of personel skilled in bird identification to ensure correct identification of target species and avoid misidentification. 17

18 12. Public participation concerns BirdLife is alarmed by the degradation of public participation at all levels of the proposed reforms. It is concerning that unilateral power will be exercised by the Agency Head and, in some cases, the Minister for final decisions that were previously decided with extensive public consultation. It is important that due diligence and extensive, transparent consultation processes are maintained. We are concerned that public comment will only ever be considered in summary documents, and that issues raised in formal submissions may be simply summarised and reproduced by the proponents instead of directly considered by decision-makers. The proposed public register provisions are far less detailed than under the Native Vegetation Act 2003 and Threatened Species Conservation Act 1995, particularly in terms of providing information about vegetation clearing and set asides. The proposed reforms and Biodiversity Offsets scheme appear to remove most of the rights for the people of NSW to challenge environmental decisions and development approvals in the Land and Environment Court. Recommendation 12: Retain current requirements for public consultation and registers. Retain the rights of the people of NSW to challenge Environmental Planning and Biodiversity decisions in the Land and Environment Court. 13. Concerns Over Inadequate Biodiversity Offsets for Rural Vegetation Clearing (under proposed Local Land Services Amendment Bill 2016) Under the proposed reforms, offset requirements may be discounted on the basis of subjective considerations. SEPPs, Regulations and variation certificates provide for unnecessary exemptions from standard pathways. This will create uncertainty and loopholes instead of clarity and consistency. BirdLife wish to engage directly to assist in determining the scientific method for determining which areas can be legally cleared and under what premise under the proposed reforms. Whilst BirdLife Australia maintains that offsets are rarely an appropriate response to proposed biodiversity or native vegetation loss. The task of reversing these losses is urgent, the imperative to avoid (rather than offset) such losses is paramount, and the technical complexities of delivering full and valid offsets are often 18

19 prohibitive. We have a detailed policy that is likely to assist the NSW Government (see Policy.pdf) We are strongly opposed to any unassessed land clearing and vegetation loss. Unassessed clearing causes long term or permanent loss of irreplaceable bird habitat. So called set asides created by short term token conservation stints (i.e. temporarily relaxing paddocks from overgrazing), direct-seeding or planting-out grazed paddocks are inadequate offsets for most of our threatened birds and their specific habitat needs. For example, it takes decades for vegetation to mature to a stage where some species can utilise it. Research has shown that it takes a minimum 20 years for Eucalyptus trees to effectively provide foraging habitat for Regent Honeyeaters. Habitat for woodland birds takes the form of complex structure comprised of different layers of vegetation strata; tree hollows, ground litter, fallen logs etc. Simply setting aside an area and revegetating it does not provide any compensation or replacement value for the loss of extant habitat. Habitat takes decades to restore and only hours to destroy. We are concerned at the complete inadequacy and uncertainty as to how impacts from clearing on rural land can be mitigated or offset, even without applying the no-net loss principal and accepting there will undoubtedly be net loss with land clearing. It is not clear who will assess the so-called set asides and offsets for land managers who remove State and Commonwealth Listed EEC such as Box- Gum Woodland. Nor is it clear how land managers and the (presumably LLS) assessors abilities in ecological community identification and flora identification will be determined and proven adequate enough to identify whether a patch of bush or scrub is an EEC or not. As discussed in our earlier point, it not clear how the proposed reforms will interact with Commonwealth listed EECs or other MNES. With the lack of resourcing and funding for sufficient numbers of adequately trained, vegetation and land clearing management and assessment professionals in the LLS and OEH at present, we are concerned that the NSW Government will not be able to adequately resource the administration of land clearing by the LLS under the proposed reforms. lt is important that public experts, non-government organisations and other relevant stakeholders have access to the decision making process around assessment of areas of rural land to be cleared under the proposed reforms, and the proposed offsets. At the very least, the proposed reforms 19

20 should allow for experts from outside the LLS and OEH to review proposals for land to be cleared along with any offsets proposed for this clearing, particularly of EECs. Recommendation 13: The proposed reforms should be based on a hierarchy of controls by where negative impacts are avoided or mitigated. Offset should be a last resort. If offsets are used, do not allow exemptions and discounts from any offset pathways. Vegetation management and clearing assessors must be adequately trained and funded to review and assess all proposed offsets and set asides. The decision making process around assessment of areas of land to be cleared and the proposed offsets should be publically available. See BirdLife Australia s Biodiversity Offset policy BirdLife Australia s Analysis of the Proposed Biodiversity Assessment Methodology (BAM) BirdLife are concerned at how the proposed Biodiversity Assessment Methodology (BAM) is heavily reliant on offsetting biodiversity impacts (by managing other areas for biodiversity) rather than preventing the impacts. We note that the current 7-Part test Assessment of Impact Significance will be weakened to a shorter 4-part test. We believe this is inadequate. We are concerned at how the BAM adopts the standards of the problematic Major Projects Offsets Policy (the former Framework for Biodiversity Assessment). The BAM is therefore significantly weakened from the current BioBanking Methodology (BBAM). We do not support any offset-based impact mitigation methodology. However if offsets are applied, we do not support methodology that does not require like-for-like offsetting requirements. The proposed BAM is more relaxed and can be circumvented by offsetting with different species. The option to pay money in lieu of an actual offset (ie indirect offsets) will likely result in net loss of certain threatened species and communities. We are concerned with the offset scheme and believe it is inadequate. We do not support it in its proposed form. However, given the opportunity to comment we raise several points regarding the proposed BAM. There is a noticeable lack of commitment in the proposed methodology. We provide the following comments specific to the BAM and address our main concerns according to the section each issue occurs within: 20

21 Section 6.2 Species that can and cannot be predicted by habitat surrogates (ecosystem credits) Threatened bird species cannot be reliably predicted to occur in an area based solely on habitat surrogates. For example, at present under the Vegetation Information System (VIS) and BioNet Threatened Species Profile Database, many of the grassy and shrubby woodland Plant Community Types (PCT) in Western Sydney and the Hunter region are listed as habitat surrogates that predict presence of a large list of threatened woodland birds, yet in many cases BirdLife data indicates that (most of those species are now extinct in those areas. At a minimum the BAM should be revised to ensure that appropriate species experts (and where they exist, recovery team chairs) are consulted when assessing impacts on threatened bird species. Such experts should have proven experience in bird survey and assessment in order to conduct active surveys for all threatened bird species on all offset sites using, as a minimum, the OEH Threatened Biodiversity Survey and Assessment: Guidelines for Developments and Activities - November Where Commonwealth listed species are concerned, the Commonwealth Survey guidelines for Australia s threatened birds Guidelines for detecting birds listed as threatened under the Environment Protection and Biodiversity Conservation Act 1999, should be utilised. We do not support the use of habitat surrogates to assume presence, or offset impacts to threatened bird species (i.e. ecosystem credits) in a proposed offset site. This may lead to the conservation of areas where the subject ecosystem credit bird species are not present in the offset site. For example, most Cumberland Plain remnants in Western Sydney no longer support ecosystem credit threatened woodland birds, yet these remnants can be used to offset impacts to other woodland remnants where those species are known to occur. This loophole in the BAM must be addressed. The use of habitat surrogates to determine the presence of a threatened bird species on an impact site may be appropriate in some circumstances, as this is taking the precautionary principal in favour of the environment. However habitat surrogates should never be used to assume presence of threatened birds on an offset site as this is too uncertain and likely to provide false conservation outcomes. We strongly believe that all threatened bird species should be listed as species credits and not ecosystem credits. Birds are indicators of biodiversity and ecosystem health. Owing to their sensitive habitat requirements birds cannot be assumed present at a location by the 21

22 presence of other indicators or habitat surrogates. Therefore their presence on an offset site must be determined through adequate targeted survey and this can only be achieved if all bird species are listed as species credits. Recommendation 14: All threatened bird species should be listed as species credits and not ecosystem credits. It is inappropriate to use habitat surrogates to predict species presence on an offset site. The BAM should be revised to ensure that appropriate species experts (and where they exist, recovery team chairs) are consulted when assessing impacts on threatened species. BirdLife is also able to provide expert advice regarding: a. The list of species credit species and ecosystem credit species b. The minimum survey methods required under the BAM to ensure adequate conservation of threatened bird species. This is particularly important for threatened woodland birds which are underrepresented in the species credit stream. c. The use of habitat attributes as a proxy for determining if threatened birds exist in Development and Biocertification sites. d. Ensuring any proposed offsets are proven to contain the bird species they are said to offset. e. Ensuring Offsets schemes deliver biodiversity gains. To do this an offset must increase the value of a site for the species likely to be impacted by development, to a degree equivalent to the values lost. With regards to which states a candidate species is a species that is considered to have suitable habitat on the site after completing Step 2. An assessor must establish whether each candidate species is present on the subject land, or is likely to use the suitable habitat on the subject land, by either: (a) assuming it is present (development sites or land proposed to be biodiversity certified only), or (b) undertaking a threatened species survey in accordance with Section 6.8, or (c) obtaining an expert report in accordance with Subsection 0. 22

23 BirdLife submits that most proponents will likely default to obtaining an expert report (option c). It is not clear exactly who constitutes an expert and who will be allocated to review such expert reports. Further, opens with The offsetting rules are established in the (Biodiversity Conservation) BC regulation. However, the regulation has not yet been made available for comment. We would request that BirdLife be included in developing the regulation, particularly where birds are concerned. In relation to , which states The like for like offset rules allow credits to be matched with any PCT associated with the same threatened ecological community. This rule allows vegetation representing the same threatened ecological community to be used as a like for like offset, regardless of other vegetation classifications provided by vegetation class or formation. While substitution may theoretically offset impacts to EEC s and their associated floristic assemblages, it is not adequate to offset fauna, particularly threatened birds, owing to their specific microhabitat requirements. BirdLife asks that all threatened birds are assigned as species credits or at the very least, that BirdLife is involved in a review of the ecosystem and species credits, to ensure birds have been represented adequately. Regarding There should not be any variation rules to species credit and ecosystem credit offsets. A proposed offset site for ecosystem credits should be found within the same IBRA subregion, rather than anywhere in NSW. Fauna and bird assemblages vary greatly within their range, particularly between IBRA subregions (which is a coarse level of biodiversity grouping). Regarding We are opposed to the proposal that A required species credit must be offset with a species credit created for the same species, except where the required species credit is for a species for which a biodiversity conservation measure may also be used with, or in preference to the retirement of species credits. Species should only be offset with the same (or higher) number of credits for the same species. For example, Brown Treecreeper species credits should only be offset with Brown Treecreeper credits. Furthermore, BirdLife requests that appropriate species experts (including where they exist, recovery team chairs) be informed of all situations where Subsection (see below) applies to a bird species in order to provide comment and provide input into appropriate biodiversity conservation measures. 23

24 Species for which a biodiversity conservation measure may also be used with, or in preference to species credits are identified by the Minister for the Environment. This is because the species are either:(a) a species that is managed under the data deficient management stream of the Saving our Species program, or (b) a species which is assessed to have threats beyond the control of management at a biodiversity stewardship site. Finally, It is inappropriate to offset a species credit with an ecosystem credit (offsetting the known presence of a species on an impact site, with the presumed presence of another species on the offset site) is not appropriate. This is irrespective of whether the ecosystem credit is in the same IBRA Subregion, and is in the same order. The variation offset rules allow PCTs to be matched with other PCTs that are both within the same or higher threat status group and within the same vegetation formation. The proposed variation rules do not restrict the location of the offset. This would mean that where the consent authority approves a variation, the matching credits may be generated anywhere in NSW. The revised Biocertification scheme for large areas of land removes the requirement to maintain or improve environmental outcomes. Instead, it applies the BAM and imposes a broad discretion to impose conditions. It replaces the current positive test with a negative one to avoid serious and irreversible environmental outcomes as a result of Biocertification. Removing the current test contradicts the proposed Biodiversity Conservation Bill 2016 aim to conserve biodiversity and ecological integrity at regional and State scales. Recommendation 15: Retain the requirement to maintain or improve environmental outcomes. Recommendation 16: Offsets must ensure there is a biodiversity gain. To achieve this, an offset must increase the value of a site for the species likely to be impacted by development, to a degree equivalent to the values lost. The equivalence of gain and loss is not evident in the current approach. See BirdLife Australia s Biodiversity Offset policy 24