Speech on biodiversity conservation and land clearing laws

In Parliament | 15.11.16



Second Reading

The Hon. PENNY SHARPE ( 14:59 ): Sometimes one cannot see the forest for the trees. In the case of members of the Baird Government it appears as though they have never met a tree that they did not think could be or should be cut down. Future generations will wonder what we were thinking in this last parliamentary sitting week for 2016 when we considering these bills. At a time when the planet is facing a collapse in biodiversity, the populations of mammals, birds, fish, amphibians and reptiles has shrunk by an average of 58 per cent. At a time when global warming as a result of greenhouse gas emissions is causing climate change that could be irreversible, and at a time when our State of the Environment 2015 report found ongoing biodiversity loss in New South Wales, with more than 1,000 native species listed as threatened—an addition of another 10 species since 2012—we should be doing everything we can to reverse this impact. Yet the bills before us today will do the complete opposite.

The Biodiversity Conservation Bill 2016 and the Local Land Services Amendment Bill 2016 ignore the advice of scientists, including the Government's own expert scientist on biodiversity. These bills ignore the advice of environmentalists who have backed up their contributions with scientific and evidence-based submissions. These bills also ignore the advice of many farmers who believe that this approach takes sustainable farming backwards in New South Wales. In short, these bills have the support of the NSW Farmers Association, The Nationals and pretty much no-one else—not even many members of the Liberal Party. These bills repeal the Threatened Species Conservation Act 1995, the Nature Conservation Trust Act 2001, the provisions relating to animals and plants in the National Parks and Wildlife Act 1975, and the Native Vegetation Act 2003. These laws have protected native wildlife and native vegetation and stopped broadscale land-clearing in this State.

What is being proposed in these bills today will result in significant increases in land clearing and the destruction of precious native vegetation in New South Wales; reduced habitat and weakened protection for native animals, including species under threat of extinction; degraded soil quality and increased erosion, impacting on future food production; reduced water quality and damage to creek and river ecosystems; and increased carbon emissions that significantly contribute to climate change. When only 9 per cent of the State's native vegetation is considered to be in good condition it makes no sense that weakened protections for native vegetation will reverse this trend. When we know that the soils are continuing to deteriorate, with 74 per cent of priority soil units being rated as poor or very poor, and that New South Wales continues to lose much of its precious soil to erosion at the same time as salinity and acidification continue to rise, allowing more clearing of native vegetation is another backward step.

River health continues to deteriorate and 10 of our catchments are rated between poor and extremely poor. We know that coastal, estuarine and marine environments have been extensively cleared, with only one in five retaining more than 90 per cent of the natural, uncleared vegetation. We know that in reports of the United Nations Framework Convention on Climate Change Australia has stated that from 2005 to 2013 land-use emissions dropped by 10 per cent, but that they will increase by 8 per cent from 2013 to 2020. We know that Environmental Economic Consultancy's CO2 modelling indicates that cumulative emissions from tree clearing from 2016 to 2030 are likely to be between 673 million and 826 million tonnes of CO2, based on Queensland's existing laws and New South Wales' proposed laws—the laws that we are debating today. To put this into perspective, those emissions are the equivalent of operating at least three to four Hazelwood coal-fired power plants for this same period. We must do more to protect what is left, not open up more land for clearing. The bills before us today ignore the Government's State of the Environment 2015 report which says:

Clearing is therefore accepted as being the main cause of vegetation change and decline. Clearing of native vegetation, and the associated destruction of habitat has been identified as the process representing the greatest single threat to biodiversity in NSW.

The report also says:

Clearing facilitates land-use change and due to the ongoing nature of the subsequent uses of cleared land it is generally irreversible.

In 1995 no statewide records existed to monitor the extent of clearing in New South Wales. Some estimates thought it to be around 150,000 hectares per year at that time. Clearing rates were excessive and utterly unsustainable. After efforts to introduce regulation and legislation to curb this runaway broadscale land-clearing resulted in deep disagreement with many farmers and landholders, the then Labor Government resolved to negotiate a sustainable set of laws with all relevant stakeholders. The Carr Government acknowledged the need for change and went about negotiating it. There was not, as outrageously characterised by the Minister in his second reading speech, a so-called "divisive and destructive" political narrative created by the Labor Government. That task was carried out by The Nationals then and continued in the years since.

We cannot have this debate without acknowledging that the fights over land use have been tough. I acknowledge the brutal murder of a dedicated public servant, Glen Turner, who sought to do nothing more than the job he was tasked to do under laws made by this Parliament that were designed to protect our environment. I pay tribute to all those public servants who work so hard for all of us, and especially those who have led the efforts that have delivered fundamental change in land management in New South Wales. What worries me more as we have this debate is that The Nationals have not learned that their rhetoric on environmental protection continues to stoke division. We need look no further than the actions of the member for Barwon who actively lobbied for environmental agencies to cease investigations into illegal land clearing and who threatened his ministerial colleagues with riots if they allowed investigations to go ahead. Perhaps what is most disturbing is that under Minister Speakman and Minister Blair these investigations have ceased.

In 2002, during the millennium drought, the Wentworth Group of Concerned Scientists published a document entitled "Blueprint for a Living Continent". Premier Bob Carr then sought advice from the Wentworth Group on resolving the issues and conflicts of land management in the State which led to document entitled "A New Model for Landscape Conservation in New South Wales". The group recommended a change in natural resource management in New South Wales, with a focus on individual property holders, while also looking at the bigger picture—the need for investment in the revegetation of overcleared land. The Government formed the Native Vegetation Reform Implementation Group chaired by Ian Sinclair, former leader of The Nationals, and it included representation from the NSW Farmers Association as well as scientists and environment groups. Unlike the consultation on this legislation, no group felt compelled to abandon negotiations. no member resigned and no scientists wrote articles and commentaries denouncing the Government's plans. No groups felt so aggrieved that they felt they had no choice but to walk out on negotiations, unlike the present situation.

The Labor Government at the time was able to bring all parties together and come to appropriate compromises that had the support of all stakeholders. The Labor Government at the time was careful to craft legislation that struck a balance between land productivity and the protection of the environment, but this Government is now seeking to remove that balance. In fact it will almost remove the side of the equation that protects all of our environment. Let us remember that the then president of the NSW Farmers Association, Mal Peters, called it a great step forward for farmers. This is important because a large part of the false narrative being performed theatrically by The Nationals is that when the laws were introduced farmers were not party to them. For a short history lesson I refer to The Land newspaper report on 11 December 2003, which states in reference to the Native Vegetation Act:

The NSW Farmers Association and key conservation groups have welcomed the legislation.

It quotes comments from Mr Peters that, after intense negotiations with the Government, the final bills were a "dramatic improvement", and that the legislation was "an historic milestone". Those were the words of the president of the NSW Farmers Association after the introduction of the Native Vegetation Act—an Act that The Nationals would have people believe was foisted on farmers and communities. The consultation on the Native Vegetation Act did not end while the bills were going through the Parliament. The Labor Government was big enough, able enough and committed enough to continue to negotiate with stakeholders, making an additional 30 amendments to its own legislation during the passage of the bill after negotiations with those stakeholders. Labor wanted to get the balance right and largely it did.

The introduction of the Native Vegetation Act 2003 was accompanied by a $430 million package that was made available to catchment management authorities to assist farmers to repair the landscape.

A minimum of $120 million of the package was earmarked to assist farmers to protect and replant native vegetation for biodiversity, water quality, soil and salinity outcomes over the following four years. In 2005 a further $37 million package was announced for farmers adversely affected by the reforms, including $15 million for sustainable FarmLink grants, $12 million in exit assistance and $10 million for offset pools. There has been much discussion about ongoing funding for landholders. It is clear that over the long term not enough resources were dedicated for the stewardship of land conserved by landholders. I acknowledge that failure of resourcing openly in this debate. No-one is arguing that landholders should not be paid for the conservation and management of their land for environmental purposes. Caring for our environment is a shared responsibility. However, that fact does not form a reasonable argument that the legislation underpinning the protection of native plants and animals is somehow at fault. It is not.

The Native Vegetation Act, which was agreed between farmers, government, scientists and environmentalists, prohibited broadscale land clearing unless it could be demonstrated that the clearing would improve or maintain environmental outcomes, usually by landholders offsetting other vegetation on their land. It reduced extensively land clearing approved in New South Wales and saved hundreds of thousands of native animals as well as protecting forest, woodlands and the economic benefits they provide—particularly protection against salinity, drought and erosion. Prior to the Native Vegetation Act, more than 100,000 hectares of land, which is equivalent to half of Sydney's urban area, was being cleared every year. Since then that has dropped to less than 12,000 hectares per year. Importantly, the laws have delivered a 20 per cent reduction in clearing of remnant bushland, saved 116,000 native animals from being killed each year through clearing, and saved more than 400 koalas from a human-caused death every year.

The halt to broadscale land clearing in New South Wales and Queensland is the only reason that Australia has been able to meet its commitments to reduce greenhouse gas emissions under the Kyoto Protocol. The Threatened Species Act and the Native Vegetation Act have played a crucial role in the protection of biodiversity and management of climate change in New South Wales and play a vital role in managing key land-use challenges, such as salinity, soil erosion and water quality—issues that taxpayers and farmers have spent billions trying to manage over many years. The science is in on these laws. They have delivered.

I turn now to examine some the details of the Biodiversity Conservation Bill. However, I put on the record that the Parliament has been given so little notice of these complex and detailed bills that Parliamentary Counsel has not had time to put forward all the amendments that Labor will seek at the Committee stage of the Biodiversity Conservation Bill. Regardless of where one stands on this matter, this is an abrogation of our democratic system and an insult to the role of the Legislative Council as the House of review, if this House cannot deal with amendments sought by members because Parliamentary Counsel is not resourced to do the job that is asked of it.

Currently the Native Vegetation Act provides for the control of the clearing of native vegetation, except in accordance with a development consent granted by the Minister or through a property vegetation plan. This includes controls on clearing remnant native vegetation and protected regrowth vegetation. The current laws permit clearing of native vegetation that is only regrowth, clearing for routine agricultural management activities, and clearing of groundcover that contains less than 50 per cent of an indigenous species of vegetation. There is scope under those laws for certain types of clearing without approval, generally for appropriate farm management and maintenance. Importantly, the current laws prevent land clearing unless it passes a specific test, which is that it improves or maintains environmental outcomes. Property vegetation plans are the key compliance and regulation mechanism to ensure approved native vegetation clearing is in accordance with those environmental principles. There are now more than a thousand property vegetation plans around the State, resulting in more than four million hectares of native vegetation on farmland under improved management.

The bill proposing to replace the Native Vegetation Act intends to replace the system with self-assessed code-based clearing. There are no clear environmental baselines, aims or targets. There is no ban on broadscale clearing, no mandatory soil, water or salinity assessment, and no maintain or improve standard to ensure environmental outcomes. The bill implements flexible and indirect biodiversity offsets as opposed to maintaining existing vegetation. The fundamental change is that the bills drop the current requirement that any offsets are to be undertaken on a like-for-like basis. There is also the option to pay money in lieu of an actual offset. Offset areas may be further offset later on rather than protected in perpetuity. This inevitably will result in a net loss of certain threatened species and communities and allow those with deep pockets to pay money to destroy native vegetation and the habitat it provides. There is a strong consensus that rural landholders should be eligible to receive incentive and stewardship payments to conserve and protect environmental values. The Government has allocated $240 million over the next five years and Labor welcomes this.

The difficulty with the legislation is that it guts the rules and targets that stop valuable biodiversity being cleared in return for those payments. This new system is supposed to be governed by a single scientific method called the Biodiversity Assessment Method, or BAM, and an agreed set of maps. We note during this debate that none of those is finalised; nor is there consensus about how they will be finalised and how the maps will operate. In addition to this, within this bill there is also further discretion as to whether the consent authority—whether that is the Minister, the Local Land Services, the Office of Environment and Heritage, or Planning—have to apply the results of some of those tests anyway. Offset requirements can be discounted, based on the subject of considerations. There is even some discretion around red lights; that is to say, when clearing and development could cause serious and irreversible biodiversity loss. State environmental planning policies [SEPPs], regulations and variation certificates provide for additional exemptions. A truck could be driven through some of the exemptions that are in the bill.

The public consultation requirements in this bill are welcome but again are undermined by a number of get-out-of-jail-free clauses. Decisions and instruments are not invalid even if the consultation processes are not followed. Public consultation can be based on summary documents. Issues raised in submissions may be summarised by proponents instead of directly considered by the decision-makers. Despite the overblown rhetoric of the Minister, the bill will not reduce red tape. The initial sensible logic of repealing three and a half Acts to create one coherent Act was something that Labor was willing to agree to and wanted to see succeed. Labor is not arguing in this debate for a status quo in relation to what is there; Labor is arguing for strong environmental protections and an easier system for landholders and others to understand. That is not what is being delivered by this bill.

The scheme will result in the carving up of responsibilities into a number of different Acts—the Local Land Services Act, the Environmental Planning and Assessment Act, and the new Biodiversity Conservation Act. It is also being carved up into regulations, SEPPs and codes. The New South Wales Government is departing from a key recommendation of the Independent Biodiversity Legislation Review Panel, which is that land clearing involving a change of use should be assessed under planning laws, and is instead handing the vast majority of clearing approvals to the Local Land Services, which currently do not have the resources or the expertise to carry out those functions. My colleague the Hon. Mick Veitch will have much more to say about this in his contribution to the debate.

These two bills also are contradictory. The Biodiversity Conservation Bill carries over provisions of current threatened species laws, such as listing threatened species and ecological communities by the Scientific Committee, but the Local Land Services Amendment Bill will increase 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 by self-assessable codes and discretionary development applications. Biocertification should be an important process to address biodiversity loss, yet the proposed 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.

The bills will deliver weak and uncertain compliance, enforcement, monitoring and reporting. If ever there was an argument for those being strong, it is exactly through what the House is being asked to examine today. Many of the issues that Labor raises in relation to these bills could be better dealt with if we were confident that attention would be given to compliance, monitoring and reporting. However, that does not exist in these bills. The New South Wales 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. How can members of this House legislate properly, knowing exactly what we know in relation to the parlous state of our environment and our need to care for it, if we cannot even estimate how much land clearing will occur under the current system? Surely members of this House should be very worried about that. The proposed legislation includes updated offences and penalties.

The objects of the Biodiversity Conservation Bill include improving and sharing knowledge, including drawing on local and Aboriginal knowledge and the Independent Biodiversity Legislation Review Panel's report hinged on high-quality data monitoring and reporting. However, the legislation does not set clear requirements for these essential elements, so it will be difficult to determine how much biodiversity is being lost under the weakened rules.

Finally, the bill does not address cumulative impacts or take sufficient account of the impact that land clearing has on greenhouse gas emissions. It does not address cumulative impacts and climate change impacts of clearing. If we are serious about trying to tackle climate change, then the impact of land clearing has on greenhouse gas emissions needs to be included. We note that climate change provisions appear in the bill, and we welcome the rectification of a large omission from the initial draft, but the current provisions are not enough. We contend that the bill does not seriously consider this matter. The bill weakens so many environmental protections—as just one example, the bill removes the legislative licensing system for protecting native wildlife. The Government tells us that there has been no change in relation to climate change and to trust it as this matter will be dealt with in the regulations. Members on this side of the Chamber do not trust the Government and we do not trust the Minister because time and again we have found the Government untrustworthy when it comes to protecting our environment.

The Hon. Mick Veitch: Like the people of Orange.

The Hon. PENNY SHARPE: Like the people of Orange, correct. Labor will be moving a series of amendments at the Committee stage to try to ameliorate our concerns and to put back in place the protections that are being lost. These amendments are not negotiable for Labor. I again place on record that Labor would have liked to have pursued many more amendments but the time frame for the passage of the legislation has been tight and there have not been sufficient resources for the Parliamentary Counsel to draft further amendments. It is not simply the Labor Opposition who believes there are significant problems with the bills. Until recently, these bills had the support of precisely no-one. As it stands now, the Government has one solitary stakeholder group, who we now know received a lot of what the Minister calls "targeted consultation". This group supports this bill: NSW Farmers Association.

The job of the NSW Farmers Association is to represent the interests of its members. Labor has no quibble with its position on these bills; it is doing its job. What we do have a problem with is that the Government is only listening to one stakeholder group. The Minister described the consultation process that has preceded this bill. Many organisations, scientists and individuals have expressed their strong views about conserving and improving our environment and the need to preserve habitat, protect species from extinction and protect the landscape. It is clear that the Government has largely ignored them. I will briefly run through the views of some of the stakeholders to whom the Government chose not to listen. By the Government's own report on the submissions received, these views represent the vast majority of the response to the draft bills. The Opposition has a copy of the letter sent by the Wentworth Group of Concerned Scientists, who warned:

These retrograde changes risk returning NSW to an era of unsustainable environmental damage by reinstating broadscale land clearing, resulting in more degraded land, more damage to river systems, increased carbon emissions and the loss of habitat critical to the survival of threatened species.

In a submission the group stated:

This [current] system [under the Native Vegetation Act], designed by farmers and scientists working together, shows just how effective laws can be in securing the long-term protection of NSW's natural assets while also promoting sustainable agricultural enterprises.

Professor Hugh Possingham, an expert panellist on the Independent Biodiversity Legislation Review Panel for the Government, and a world-renowned conservation biologist, resigned from the expert committee stating that his advice was being ignored and the codes that have been inserted will lead to broadscale land clearing. Mr Possingham wrote to the Premier. I seek leave to incorporate that letter into Hansard.

Leave granted.

Sunday, 30 October 2016

Dear Mr Baird, Premier of NSW,

I was a member of the four person Independent Biodiversity Legislation Review Panel chaired by Neil Byron that reported to your government on December 18 2014. Since then I have been providing ongoing advice to your government.

A few weeks ago it became clear to me that my advice was being ignored, and as a consequence I resigned my position on the panel and as an advisor. More importantly, the principles of the original panel report that your government endorsed, were not being followed.

The review panel charted a path forward for NSW biodiversity legislation reform that would be win-win—a win for land managers in terms of providing flexibility in farm operation and a win for biodiversity and the environment. The panel report is built on several principles: providing flexibility for land managers through risk-based and proportionate legislation, equity for farmers relative to other land-users, maintaining or increasing the quality and extent of native vegetation in every region, and using the mitigation hierarchy and biodiversity offsetting as mechanisms to deliver win-win outcomes. A key intent of the report is that broad scale land-clearing would only be possible through the biodiversity offsetting process. Biodiversity offsetting, by definition, means no net decrease in the quality and quantity of native vegetation.

Your government agreed to adopt and implement all the recommendations of our review panel. Despite that, your government has introduced components to the legislation that are not consistent with the review panel's recommendations. In particular there are a series of "codes", such as "the equity code", that will enable broad-scale clearing of 100s of hectares of native vegetation on individual farms without offsetting. These codes are not consistent with biodiversity offsetting. Codes in native vegetation legislation are normally intended to facilitate minor clearing to make farming profitable—for example, clearing for fences and buildings. These should amount to the odd hectare here and there, not hundreds of hectares of clearing which leads to the degradation of soil, water and biodiversity.

I ask your government to change the legislation so that it both delivers no-net loss of native vegetation at a regional scale and facilitates increased agricultural productivity. Such a suite of legislative changes has been outlined by the Wentworth Group, of which I am a member.

In a short time I will make the contents of this letter publicly available. I am free to discuss this letter any time, working hours or otherwise, on +61 434 079 061.

Professor Hugh Possingham DPhil (Oxon) FAA FNAS (USA)

Member of the Wentworth Group of Concerned Scientists

Cc: Minister Speakman, Minister Blair, Minister Stokes

It is a pretty big indictment of these bills that the Government's own expert basically has withdrawn from the process. Professor Possingham took his role very seriously and his participation was criticised by some environment groups.

The World Wildlife Fund found that the loosening of land-clearing controls in New South Wales could leave more than one-third of the State's woodlands exposed to bulldozers, including prime koala habitat. We talk a lot about koalas in this place because of the current parlous state of our koala habitat. If we continue to clear land, thus leading to a further loss of habitat for koalas on top of other climate change challenges this species faces, koalas will be extinct in New South Wales by 2055. This legislation will not help them. The Royal Zoological Society of NSW has warned that removing the licence to kill native animals will cause the neglect of three-quarters of protected fauna in New South Wales and "will almost certainly miss the species that are sliding towards threatened status". A group of more than 650 farmers across New South Wales have run a counter campaign to that of the NSW Farmers Association. They are reported to have said:

As farmers, land managers and food suppliers, we are alarmed at the Baird Government's proposed changes to land management laws. The changes will lead to wide scale land clearing and land management practices that have no place in modern farming.

The Nature Conservation Council has said:

The fact that the reform package contradicts science, facilitates increased land clearing, fails to protect environmentally sensitive areas and does not adequately address climate change impacts is in direct contradiction to the principles of ecologically sustainable development (ESD), in particular the principles of inter-generational equity and conservation of biological diversity and ecological integrity.

Rather than repealing outright the (NVA) laws that provide important protection for our native vegetation, soils and water, we suggest that there should be increased efforts in properly implementing the laws, including increased funding for private land conservation under the existing laws and increased capacity for LLS to develop and approve PVPs.

The Australian Museum Research Institute of the Australian Museum said:

AMRI strongly suggests reconsideration on the lifting of controls on land clearing on the basis that land clearing as a primary, scientifically well-documented long term threat to biodiversity in NSW.

BirdLife Australia said:

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.

The Colong Foundation for Wilderness said:

This new legislation increases the pressure on wilderness by fragmenting corridors between these areas that are so essential for the more than 1,000 threatened native animal and plant species that are currently facing extinction in NSW. The proposed legislation will also enable clearing of NPWS identified wilderness that is in private hands, such as at Timbarra, Macleay Gorges and Cataract to name three areas with a significant component of wilderness.

The Ecological Consultants Association of NSW had this to say:

The ECA strongly believes that the draft Biodiversity Conservation Bill 2016 is regressive and will not protect or slow the rate of biodiversity loss in NSW. Rather it will create a pathway for biodiversity decline.

The Environmental Defenders Office New South Wales said:

Our conclusion is that 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 Wilderness Society said:

The proposed reforms are too reliant on incentives to conserve biodiversity, with significantly weakened regulation. Previous experience in Australia has shown that incentive approaches must be mixed with government regulation to maintain a minimum level of biodiversity, and that uptake of incentive schemes is limited to people already undertaking conservation actions, limiting their usefulness in stopping broad-scale vegetation loss.

I have read onto the record only a selection of the many submissions to these bills, but we should heed their advice and the many wise words in them. There is consensus about the concerns in these submissions. Unfortunately, those concerns have not been heard by the Government.

Today the Liberal-Nationals Government is intent on delivering something that almost no-one supports. Fundamentally these laws will increased broadscale land-clearing, lead to further extinctions of native animals and drive up greenhouse gas emissions. These laws are a capitulation on environmental protection. Dead rivers, erosion, salinity and further extinctions of our plants and animals should not be accept lightly, yet that is what these bills ask us to do. Future generations need us to take action now, not make it easier to undermine the ecological systems we all depend on. Labor opposes these bills.

HANSARD - NSW Legislative Council, 15 November 2016