Comments on NSW Biodiversity Conservation Bill 2016 and Local Land Services Amendment Bill 2016

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1 Date Comments on NSW Biodiversity Conservation Bill 2016 and Local Land Services If you have any queries regarding this submission please contact Larry O Loughlin Executive Director on or director@conservationcouncil.org.au. The Conservation Council ACT region is the peak non-government environment organisation for the Canberra Region, and has been the community s voice for the environment in the Canberra region since We represent the interests of community conservation organisations in the region as well as the broader environmental interests of all the citizens of the ACT. Our mission is to achieve an ecologically sustainable and zero net carbon society through advocacy, education, research and engagement with community, the private sector and government. The Conservation Council is active in a number of campaign areas currently including: Biodiversity Conservation protecting our unique ecological communities and the Bush Capital Climate Change a regional, national and global challenge Planning the right things in the right places Transport connecting people and places Waste being efficient through closed-loop systems Water smart use of a scarce resource Governance for a Smarter, Sustainable Canberra 1. Overview The Conservation Council ACT Region welcomes the opportunity to comment on the NSW Biodiversity Conservation Bill 2016 and Local Land Services Amendment Bill The Conservation Council is based in the ACT which is surrounded by NSW. What happens to the environment in the surrounding areas of NSW potentially impacts on the environment in the ACT, particularly with regard to biodiversity. CONSERVATION COUNCIL ACT REGION GPO BOX 544 CANBERRA ACT /26 BARRY DRIVE CANBERRA ACT PHONE: info@conservationcouncil.org.au

2 There are processes that mean we have to think beyond borders when trying to conserve and enhance biodiversity. These include habitat destruction which puts additional pressures on our remaining natural areas in order that there are adequate conditions available and also climate change which requires, among other things, that there is biological connectivity to allow for ongoing natural adaptation for flora and fauna to take account of climatic changes. The Conservation Council, as a peak organisation, includes many member groups involved with environmental issues which traverse the border between the ACT and NSW including the Canberra Ornithological Group, the Friends of Grasslands and the National Parks Association, among many others. We are concerned that NSW needs to continue to protect its biodiversity in order that the biodiversity of the ACT is not also impacted. Given the potential impact of the NSW legislative changes on the environment beyond NSW there should be more consideration given to further consultation with all affected parties and regions, including the ACT Recommendation 1. : Public consultation period be extended to allow appropriate time for responses and further negotiations will all affected regions 2. Objectives of Bills past and present There seems to be potential contradiction or inconsistency between the Objects of Biodiversity Conservation Bill 2016 and Local Land Services and neither provide for biodiversity and environmental protection to anywhere near the extent of the current Native Vegetation Act 2003 or the Threatened Species Conservation Act The Objects of the Biodiversity Conservation Bill 2016 are at 1.3 Purpose and objects of Act include (a) to conserve biodiversity and ecological integrity at bioregional and State scales whereas the objects of the Local Land Services Act 2013 as amended by Local Land Services include: (e) to ensure the proper management of natural resources consistent with the principles of ecologically sustainable development (described in section 6 (2) of the Protection of the Environment Administration Act 1991), to ensure the proper management of natural resources in the social, economic and environmental interests of the State. These two objects do not say the same thing and potentially this inconsistency will establish future legislative conflict. In order to adequate address biodiversity conservation and to avoid conflict the Local Land Services Act 2013 should directly include an object to protect and enhance biodiversity. 2

3 Recommendation 2. : Amend the Local Land Services Act 2013 to include an object to protect and enhance biodiversity The objects of the Native Vegetation Act provide for far better protection of biodiversity and would be lost if the Act is repealed so they should be taken up with the NSW Biodiversity Conservation Bill 2016 and the amendments to the Local Land Services Act The Native Vegetation Act objects are: (a) to provide for, encourage and promote the management of native vegetation on a regional basis in the social, economic and environmental interests of the State, and (b) to prevent broadscale clearing unless it improves or maintains environmental outcomes, and (c) to protect native vegetation of high conservation value having regard to its contribution to such matters as water quality, biodiversity, or the prevention of salinity or land degradation, and (d) to improve the condition of existing native vegetation, particularly where it has high conservation value, and (e) to encourage the revegetation of land, and the rehabilitation of land, with appropriate native vegetation, in accordance with the principles of ecologically sustainable development. Recommendation 3. : Incorporate the intent of the objects of objects of the Native Vegetation Act for better protection of biodiversity in the NSW Biodiversity Conservation Bill 2016 and the amendments to the Local Land Services Act Reliance on base data which is not at required standard The NSW Biodiversity Conservation Bill 2016 proposes a heavy reliance on data that is not at a required standard for the significance of the decisions to be taken under the Act in future years. Recommendation 4. : Introduction and implementation of the Acts be delayed until the standard of data is at a level for the significance of the decisions to be taken under the Act Among other things it is unclear how the data will pick up under-recognised but important habitats such as grasslands and grassy woodlands and sparse trees. Given that these areas can be difficult to identify and even more difficult to recover the precautionary principle should apply and all grasslands should be regarded as Category 1 unless proven otherwise. 3

4 Recommendation 5. : Apply the precautionary principle such that all grasslands are regarded as Category 1 unless proven otherwise 4. Could amend existing Acts rather than repeal e.g. Native Vegetation Act 2003 It is not clear why new legislation should be developed rather than amendment of existing legislation such as the Native Vegetation Act 2003 which helped NSW develop leading biodiversity conservation measures. It would seem that many of the aims of the new legislation could have been met through reform of the existing Act. Recommendation 6. : Consider amendment and reform of the Native Vegetation Act 2003 rather than its repeal 5. Limited public access into future processes including limited appeal rights Some processes are not yet outlined so difficult to comment e.g. no regulations, no guidelines, only one code. It is important that there be open and adequate public access and consultation at all stages of the implementation of the legislation and these measures should be enhanced, not reduced. Recommendation 7. : Amend the Bill in order that there is open and adequate public access and consultation at all stages of implementation of the legislation 6. Covenanted lands can be changed to offsets; conservation agreements can be cancelled The establishment of covenants can be undertaken by landowners for a variety of reasons and their wishes should be respected, not over-ridden by legislation. It is especially important that covenants can be converted to biodiversity offsets. In many circumstances people choose to set covenants to provide for additional nature conservation, not to allow for destruction in other areas to be offset against their own properties. Recommendation 8. : Amend the legislation to ensure that Covenanted lands can NOT be changed to offsets and that conservation agreements can NOT be cancelled 4

5 7. Biodiversity offsets In addition to issues outlined above there are several further concerns regarding the use of and dependence on offsets in the legislation. These include: Already created offsets have no security Offsetting on offsets should not be allowed Like-for-like offsets no longer required; offsets not even required in same region Cash in lieu offsets not acceptable: does not necessarily result in on-ground work Information is not publicly available: among other things allows for defence of ignorance when damage occurs Recommendation 9. : If offsets are to occur they should only be established where this is a guaranteed net gain in biodiversity outcomes 8. Inconsistencies with Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) and inconsistencies with agreement between Australian and NSW Governments on implementation of EPBC Act Although the EPBC Act is not strong legislation it does set out some requirements for NSW which are not specifically addressed in the legislation. It is also not clear how the legislation sits under the MOU between the Commonwealth and New South Wales on implementation of the EPBC e.g. New South Wales will not act inconsistently with relevant Commonwealth EPBC Act statutory guidelines, plans and policies in its decision-making MOU between the Commonwealth and New South Wales p3 Recommendation 10.: Amend the legislation to provide for recognition of EPBC requirements and arrangements including statutory guidelines, plans and policies 9. Funding decisions impact resourcing for implementation It is not clear that there have been enough resources available to properly manage, monitor, assess to deliver the existing biodiversity conservation framework. Indeed, it could be argued that inadequate resourcing to implement with appropriate staffing and program funding and this has undermined existing legislation and allowed a case to develop to justify new legislation. 5

6 However, the new legislation will also require resources and these should be identified and budgeted to give the government the wherewithal to implement the new framework. Recommendation 11.: Provide adequate resourcing to implement including appropriate staffing and program funding to implement any biodiversity conservation legislation 10. Assessment process The previous assessment process under NSW legislation was workable and reasonably thorough and tested over time in a range of circumstances. It is not clear that the new processes proposed are superior, in fact it seems the code has no assessment of threatened species. Recommendation 12.: Adopt the workable assessment process as under existing NSW legislation and include the code for assessment of threatened species 11. Administrative aspects not clear monitoring, data, reporting The proposed legislation does not provide for adequate clarity on how biodiversity will be monitored and how data is reported. This is important not just for good biodiversity outcomes but also for developing and maintaining trust in the NSW legislative framework for biodiversity conservation. Recommendation 10. : Amend the legislation to provide for adequate clarity on how biodiversity will be monitored and how data is reported This becomes an important factor when taking up the community s ability to participate in citizen science where volunteer efforts assist governments in the delivery of broad objectives. Citizen science also provides for data and monitoring which might not otherwise have existed so it is also important in this regard. Recommendation 11. : Amend the legislation to provide for strong recognition for the role of citizen science 6