A recipe for regulatory failure?

Rachel Walmsley
Policy & Law Reform Director, Environmental Defenders Office NSW

Just before Christmas last year, the NSW parliament passed legislation to repeal our Threatened Species Conservation Act, Native Vegetation Act, Nature Conservation Trust Act and parts of the National Parks and Wildlife Act. In place of the repealed laws, a new Biodiversity Conservation Act and an amended Local Land Services Act will now govern how biodiversity and native vegetation are managed in NSW.

The new laws passed despite significant concerns raised in the vast majority of over 7,000 public submissions on the proposals. EDO NSW has consistently raised a number of key concerns and made recommendations based on our extensive expertise in NSW environmental law. Key areas of concern include: the expanded use of biodiversity offsets, removal of a legal requirement to “maintain or improve” native vegetation, and the proposed use of self-assessable codes to ‘de-regulate’ clearing native vegetation. Unfortunately these fundamental concerns and recommendations were not addressed in the legislation that was passed in 2016.

To implement the new laws, a number of different supporting tools and instruments are needed before the new regime can commence. Public consultation closed in June on a range of proposals including: three draft regulations, a self-assessable code for clearing native vegetation, a biodiversity assessment method, an accreditation scheme for assessors, technical mapping, an offsets calculator, and other guidance material – for example, on serious and irreversible impacts.[i] Again, the community was in the position of having to get across hundreds of pages of technical documents in 6 weeks. And notwithstanding the amount of information put on exhibition, key details were still missing. For example, the maps that are supposed to underpin the whole regulatory regime are not finalised and until they are, it will be left to landholders to decide whether their land is regulated or unregulated. Despite this, new laws governing biodiversity and native vegetation in NSW are due to commence on August 25th.

So now that we have seen more (but not all) detail on how the new regime will work, what is the prognosis for biodiversity in NSW?

At the time of writing, the final regulations have not been made public and information gaps remain. However, from what has been made available, the potentially positive aspects of the new laws include:

  • A funded private land conservation program (distinct from the offsets market);
  • Some criteria for Areas of Outstanding Biodiversity Value (the new and expanded version of ‘critical habitat’);
  • A new category of ‘sensitive regulated land’ that includes environmentally significant or sensitive areas – the key benefit of this new category on the regulatory map is that code-based clearing cannot occur in these areas;
  • An accreditation scheme and code of conduct for ecological consultants and assessors;
  • Compliance tools and a biodiversity monitoring program;
  • And regarding wildlife interactions, there are some new provisions that attempt to fill regulatory gaps (for example regarding dugongs, drones etc).

Unfortunately however, the biodiversity outcomes that may be achieved through funding of private land conservation, and better mapping of sensitive environmental areas etc, may not be enough to save the proposed regime from regulatory failure. Conservation gains still aren’t guaranteed by clear protections in law, but are dependent on funding decisions.

Many of the regulatory details indicate a stronger focus on getting an offsets market up and running rather than on an actual goal to conserve and recover our unique biodiversity. There is very heavy reliance on flexible and indirect biodiversity offsets, including the new option to pay money into a fund in lieu of finding an ecologically relevant offset.  While there may be a single assessment method, it includes weaker offset standards (for example, not requiring like for like offsets) and a woefully inadequate definition of ‘no net loss’. Details of the new Vegetation State Environmental Planning Policy that will cover certain urban clearing activities have not been made public, and there are weakened standards for biocertification. In rural areas, the repeal of the rigorous “maintain or improve environmental outcomes” standard, and the shift from property vegetation planning and approvals to self-assessable clearing under codes, will allow increased clearing at the local level. There is significant discretion given to the array of decision-makers implementing the new regime (decision-makers include Office of Environment and Heritage, Department of Primary Industries, Local Land Services, the new Native Vegetation Panel, Local Councils, and self-assessment decisions made by landholders themselves).

While the new legal architecture cannot be changed without another amendment bill, our recent submission on the regulatory details made over 200 recommendations to insert some protections, procedural safeguards and transparency into the subordinate instruments.[ii] We strongly recommended that the scheme should not commence until all key instruments have been exhibited, discussed, strengthened and finalised; and until there has been sufficient time for assessors to be trained and accredited, Local Land Services staff to conduct outreach for landholders, and the crucial mapping to be completed, accurate and comprehensive. However, even if all 200 recommendations were adopted, the prognosis for biodiversity is not good due to the flaws in the legislation itself.

In NSW, we now have over 1,000 species listed as threatened, and an ever-increasing intensity of cumulative threats. There is a greater need than ever for strengthened biodiversity and native vegetation laws.[iii] Extinction is forever and so the risk of regulatory failure is too high to commence a weak and incomplete regime.


References

[i] For more information, see: https://www.landmanagement.nsw.gov.au/

[ii] For more information, see: http://www.edonsw.org.au/biodiversity_legislation_review

[iii] See: “Missed opportunity to strengthen biodiversity laws” Nature NSW, Volume 59, No 1 Autumn 2015, p16-17.