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Berejiklian Government's destructive path protected by the law

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Gladys Berejiklian remains committed to environmental destruction despite public protest (Image by Dan Jensen)

Legal challenges against the continuing elimination of koalas and destruction of Indigenous land by the Berejiklian Government are prohibited, writes Sue Arnold.

ALARMING EVIDENCE demonstrating the determination of the Berejiklian Government to wipe out koalas in NSW is becoming impossible to ignore.

The latest indication is the approval given by the fallaciously named Independent Planning Commission (IPC) for the Brandy Hill Quarry at Port Stephens to almost double its output, allowing the loss of more than 50 hectares of koala habitat. 

The proposal, known as the Brandy Hill Quarry Expansion Project, will extend the extraction area from 19.5 hectares to 74.5 hectares, increasing production from 700,000 tons to 1.5 million tons per annum. Given the increase in tonnage, the proposal has been designated a State Significant Development, reducing legal options by the public. 

The Port Stephens koala population has dwindled from 800 to an estimated 150 in 2016 as a result of three major bushfires, vehicle strikes, dog attacks and chlamydia. The former NSW Threatened Species Scientific Committee made a preliminary determination that Port Stephens’ koalas should be upgraded to endangered status.

However, the new committee established by Berejiklian when the Biodiversity Conservation Act replaced the Threatened Species Act, rejected the recommendation and denied any further protection.

The increase in noise from blasting, heavy vehicle traffic and dust will have a similar impact on wildlife as many species experienced with the Ballina Pacific Highway Upgrade. Feed trees were covered in dust ensuring that leaf dependent species were unable to feed or obtain their moisture needs.

Once again, offsets are used by the Government’s playbook to “compensate” for the irreplaceable damage to habitat.

The Biodiversity Conservation Division (BCD) of the Department of Planning, Industry and Environment (DPIE) considered that ‘the proposed biodiversity offsets would adequately compensate for the proposed vegetation clearing and associated impacts on threatened fauna’.

According to the IPC:

‘The required ecosystem and species credits can be readily obtained on the biodiversity credit market through existing Biobanking sites located near the project or payment into the Biodiversity Conservation Fund. Overall, the Department and BCD considers the impacts of the Project on biodiversity... are acceptable.’

In fact, they are not acceptable. The project and the approval by the IPC are yet another example of the Berejiklian Government approving developments in koala habitat in isolation to the rest of the state. No regard is given to cumulative impacts. The IPC has completely ignored the considerations set out by the Department relevant to State Significant Developments (SSD). 

SSD applications are assessed by the Department and the following are considered when assessing SSD applications:

  • existing strategic plans and policies (including state, regional and local);
  • feedback and comments from the relevant local council(s);
  • specialised and technical input and advice received from federal and state government agencies;
  • public submissions received during the exhibition; and
  • the public interest.

The Department’s assessment and recommendation are set out in its Environmental Assessment Report. The recommendation (including either conditions of consent or reasons for refusal) is referred to the minister or his delegate for determination.

The Department ignored the NSW Koala Strategy with its primary recommendation to protect koala habitat. Bushfire mortality and loss of habitat have been ignored. Logging impacts were also ignored.

In a media release by the Government on 7 May 2018, the premier unveiled the strategy commenting:

The NSW Government’s Koala Strategy – the biggest commitment by any state government to secure koalas in the wild – will provide more natural habitat for koalas, tackle diseases, improve research and fix roadkill hotspots.

 

“Koalas are a national treasure. This strategy will ensure there are far more of them in the wild,” Ms Berejiklian said.

 

“This unprecedented action is the first part of a long-term investment by the NSW Liberal and Nationals Government that will guarantee koalas have a very bright future in this state.”

These sentiments can be taken with a large grain of salt. Logging continues in unburned forests on the mid and far north coasts, forests which are remaining primary habitat for koalas.

Given the Department of Planning’s own recently released research demonstrating 25 per cent of koala habitat in NSW was burned in the catastrophic bushfires, the Government’s failures are bordering on criminal.

Any breaches or non-compliance by the Forestry Corporation are immune from legal challenges.

Aboriginal communities with native title are unable to protect their country as evidenced by the stoush at Nambucca Forest on the mid-north coast.

The Indigenous Justice Network is acting on behalf of Sandy Greenwood, a Gumbaynggirr Traditional Owner, regarding the logging of Nambucca State Forest. Logging is causing untold irreparable damage to significant Aboriginal sites.

The Gumbaynggirr had not been consulted as is required under Regulation 57(f) of the National Parks and Wildlife Regulations 2019 and thereby breaching ss 86(1) and/or (2) of the National Parks and Wildlife Act 1976.

However, the Forestry Act prohibits legal challenges with no provisions for standing. This provision effectively rules out any legal challenges by native title holders raising questions of racial discrimination and extinguishing of Indigenous rights.

Forestry Corp representatives say that once they have approval, that approval overrides any restraints including consultation and due diligence.

Only the EPA and National Parks and Wildlife Service can bring an action against the corporation. There are no legal provisions which allow the public to force these agencies to act.

The Sun Herald revealed on 18 July that the Forestry Corporation felled giant trees in Wild Cattle Creek Forest illegally.

In this instance, EPA Executive Director Carmen Dwyer said:

“These two old, giant trees have provided significant habitat and biodiversity value and are irreplaceable. These are serious allegations and strong action is required to prevent any further harm to giant or other protected trees which help maintain biodiversity and provide habitat for threatened species like koalas.”

Apparently, the EPA is either unaware of the significant ongoing logging of protected trees providing habitat for koalas or refuses to act. The giant tree debacle is the first time the EPA has issued a stop-work order under laws that came into effect in 2018. This particular order only applies to regulations protecting giant trees (trees with a diameter of more than 140 centimetres).

An audit is urgently needed into the $45 million allocated by the Government to fund the NSW Koala Strategy. Taxpayers’ money needs accountability.

The aforementioned 2018 media release stated:

‘The centrepiece of the NSW Koala Strategy is setting aside large swathes of land where koalas can thrive and new habitats can be created.’

At the launch of the NSW Koala Strategy, former Environment Minister Gabrielle Upton said:

It is absolutely vital that we protect land where koalas currently live — and secure land where new koala colonies may exist in the future. Initially, 24,538 hectares of state forest will be set aside for koalas — with more to come.

 

This includes 4,096 hectares of state forest with koala habitat on the mid-north coast that will be transferred to the national parks estate.

 

A further 20,442 hectares of state forest with koala habitat will be set aside and managed as koala reserves. This includes state forests on the far north coast and in the Upper Hunter, Central Coast, Hawkesbury and Southern Highlands.

The 2018 media release added:

‘The NSW Government will commit $45 million for this strategy. This includes funding for further acquisitions of land that will be set aside for koala habitat.’

In spite of questions to the Government by IA, it has not been possible to obtain any evidence that these commitments have been made.

In an IA email discussion with Professor Frank Carrick, one of Australia's leading experts on koalas, he indicated key questions which the Government needs to answer.  

They are:

  • How many hectares of koala habitat have been permanently lost as a result of development and logging in the last 12 months?
  • Were any of the claimed hectares of forest set aside for koalas burned in the 2019/2020 bushfires?
  • If so, is there connectivity with other areas where koalas survived the fires and feasibly will be able to repopulate areas where the fires may have caused local extinction?

Professor Carrick sums up the situation for koalas and wildlife, relevant to all states as well as the Federal Government:

‘It’s really distressing to see the abandonment of science and objective data as the basis for rational and effective wildlife conservation.’

Meantime, Gladys Berejiklian ignores public protest. Her Coalition Government’s policies of extinction are supported by propaganda, legal provisions preventing any challenges and unaccounted funds. She is determined to continue wiping out koalas and evaluating projects in isolation to the struggling and environment catastrophe, with no accountability in sight.

So much for our democracy.

Sue Arnold is an IA columnist and freelance investigative journalist. You can follow Sue on Twitter @koalacrisis.

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