New NSW environmental laws: Blueprints for destruction

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(Image via wilderness.org.au)

'"Modernising and integrating” are code words for allowing more development; cutting red tape, wiping out more species and ensuring the language of the legislation prohibits legal challenges.'

Sue Arnold

MASS DEMONSTRATIONS, legal challenges, social media campaigns, boycotts, lobbying and national campaigns are the tools of the conservation movement. But do they still work?

Aside from the national campaigns opposing Adani's Carmichael mine project by the Australian Conservation Foundation and GetUp!, the only victories these days seem to be when small communities get their act together against local threats.

Court costs are prohibitive. Although public interest lawyers, barristers and senior counsel willing to work pro bono are available, it’s becoming more and more difficult to legally challenge actions by governments.

An alarming lack of awareness and downplaying of the environment nationally by politicians and mainstream media has ensured an uninformed public. Significant changes in legislation and repealing existing environmental laws have played a major role in weakening any protection.

The Baird, now Berejiklian Government, provides the perfect example. In March 2015, the NSW Government pledged $100 million over five years to protect the State’s threatened species, commencing 1 July 2016.    

At the same time, conservation organisations were aware that Baird was planning a devastating repeal of major environmental legislation, making a complete mockery of the $100 million pledge.

As anticipated, on 3 May 2016 the NSW Government released a draft package of land management and biodiversity conservation reforms in response to the Independent Biodiversity Review Panel recommendations.

According to the 'NSW Land Management and Biodiversity Conservation Reforms' report:

'The new legislation aims to integrate and modernise laws governing biodiversity conservation and the management of threatened species. The reforms also aim to introduce more equitable and effective arrangements for managing the clearing of native vegetation in rural areas.'

"Modernising and integrating” are code words for allowing more development; cutting red tape, wiping out more species and ensuring the language of the legislation prohibits legal challenges. The “reforms” are also aimed at ensuring critical issues such as climate change impacts are ignored. 

The package of legislative reforms included:

The draft reform package was on public exhibition for eight weeks to allow stakeholders and the community to have their say. According to the NSW Office of Environment and Heritage (OEH), all submissions would be published on the department’s website.

A total of 7,166 submissions were received.

A summary of the concerns raised by submitters was analysed by the OEH, the NSW Department of Primary Industries and the NSW Department of Planning and the Environment and published on the departmental website. As a participant in one of the meetings held by the Environmental Defenders Office NSW (EDO) lawyers, it is very clear that the key issues of concern have not been raised or addressed in the departmental summary.

Submissions from stakeholders and the community have not been published on the website ensuring that the summary by bureaucrats can’t be questioned.

In November 2016, the NSW Government passed legislation which repealed The Threatened Species Conservation Act l995, sections of the National Parks and Wildlife Service Act l974, Native Vegetation Act 2003Nature Conservation Act 2001 replacing these acts with the Biodiversity Conservation Act 2016 and Local Land Services Amendment Act 2016.

The repeal of these acts was bitterly fought by the environmental movement and the Environmental Defenders Office, who held workshops in many key areas throughout the State. An extraordinary level of opposition, not only from conservation organisations but also the farming community, was unable to prevent the legislation gaining assent by the NSW Parliament in November 2016. Many environmental protections have been stripped away, legal challenges rendered almost impossible as the Government has been particularly careful with the language in new provisions.

Recovery plans, which were required for threatened species under the former Threatened Species Act have been scrubbed, replaced with a 'Saving our Species Program', ensuring conservation projects are discretionary and non-statutory programs with no legal challenges available.   

The public is now being encouraged, on the OEH Sustain. Invest. Protect website, to make submissions on the new legislations’ regulations.    

Have Your Say

Consultation is open for six weeks from 10 May to 21 June 2017.

The following draft regulations and other key products to support the government’s new Biodiversity Conservation Act 2016 and Local Land Services Amendment Act 2016 are on display for six weeks from 10 May until 21 June:

  • Draft Biodiversity Conservation Regulation 2017 and its supporting regulatory impact statement;
  • Draft Local Land Services Amendment Regulation 2017;
  • Draft Environmental Planning and Assessment Amendment (Biodiversity Conservation) Regulation 2017;
  • Explanation of Intended Effect for the State Environmental Planning Policy (Vegetation) 2017;
  • Land Management (Native Vegetation) Code;
  • Biodiversity Assessment Method (BAM);
  • Accreditation Scheme for the Application of the Biodiversity Assessment Method;
  • Draft Sensitive Biodiversity Values Land Map;
  • Serious and irreversible impacts guidance'; and
  • Offsets payment calculator and User Manual.

Fact sheets and submission guides are also provided:

To allow six weeks for submissions on what amounts to massive changes in regulations is unacceptable.

Ecologists and environmental groups say the amount of land in NSW being cleared for crops and pasture is accelerating, with almost two-thirds of the tally in 2012-2013 "unexplained" and possibly illegal.

In its 2013-14 report on the State's native vegetation released last week, the government revealed that 23,000 hectares had been cleared of woody vegetation for the three years to June 2013.

According to the EDO, under the new legislation, NSW will no longer have a ban on the broadscale clearing of native vegetation.

NSW now has over 1,000 threatened species and communities. The EDO asks whether the new approach will do anything to stop the decline.

The EDO engaged with representatives of the Office of Environment and Heritage, Department of Primary Industries and Department of Planning and Environment during targeted stakeholder consultations prior to the public exhibition process. Lawyers raised a number of key concerns and made recommendations in these meetings based on their extensive expertise in NSW environmental law. Unfortunately, none of these fundamental concerns or recommendations have been addressed in the package developed for public consultation.

The Environmental Defenders Office conclude:

'The proposed laws are a retrograde step for NSW biodiversity and land management. While the proposed investment private land conservation is welcome, once this money runs out, we will be left with weak laws that offer no real protection for our unique threatened species and ecological communities and will facilitate ongoing decline in biodiversity. Consequently, we cannot support the proposed package.'

The NSW environmental movement has lost this battle. Unfortunately, so have future generations.

You can follow Sue Arnold on Twitter @koalacrisis and Koala Crisis on Facebook here.

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