Land Management and Biodiversity Conservation
The Secretary Conservation Ecologists Association PO Box 100 SUFFOLK PARK NSW 2481 28th June 2016
SUBMISSION to DRAFT NSW BIODIVERSITY CONSERVATION BILL AND DRAFT LOCAL LAND SERVICES BILLS The Conservation Ecologists Association (CEA) was formed in 1997 by a northern NSW based group of professional ecologists, biologists, and environmental consultants dedicated to securing the most appropriate conservation management of all the North Coast’s natural biodiversity and supporting ecosystems. Members donate their time and expertise. CEA's members have decades of experience and involvement in local government surveys and extensive involvement in natural resource planning and management. The association and its members provide reports and submissions to local, state, and federal government authorities on matters affecting biodiversity conservation. CEA Objectives: 1. To promote / foster the preservation / conservation of the environment for its intrinsic, evolutionary, scientific, and ecological values. 2. To promote the comprehensive scientific study of ecosystems, their constituent flora and fauna, and our shared environment. 3. To promote truly ecologically sustainable management principles and practices. 4. To provide, promote, and review scientifically / ecologically based professional standards in biological surveys, scientific analysis, and management and resource development proposals. 5. To encourage ecologically based management of the environment. 6. To promote the restoration and rehabilitation of natural areas and ecological processes. 7. To liaise with community groups on land‐use and environmental management issues. 8. To advise government and agencies, in matters relating to land‐use and environmental management. 9. To promote a greater understanding of conservation ecology and related concepts. We write to oppose the NSW Government’s proposed new Biodiversity Conservation package, and to support retaining and strengthening existing protections for bushland and wildlife. CEA is concerned that the proposed changes will increase land clearing and carbon pollution, push wildlife closer to the brink of extinction and undermine the sustainability of our farmland.
In NSW our high standard of living depends on our social and economic health and wealth, factors that are intrinsically linked to the health of our environment. The State supports a rich and diverse assemblage of ecosystems, plant and animal communities and their component species, but a high ```````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````` CEA submission to Draft Biodiversity legislation June 2016
1
proportion of these are recognised as subject to varying levels of threat from human activities. Many species have already become extinct and many more are on an extinction trajectory. Yet despite this parlous situation, our environmental health is being placed under an increased level of threat by changes the State government proposes to make to our existing biodiversity legislation. These changes will accelerate the loss of biodiversity across the State and result in the destruction of crucial refuges needed to counter the impacts of climate change. The claims made by the NSW government that the draft Biodiversity Conservation and Local Land Services (Amendment) Bills will conserve biodiversity and adhere to the principles of ecologically sustainable development (ESD) are patently false. This retrograde legislation will remove the existing environmental controls that have protected threatened ecological communities, populations and species over past decades and disregard the precautionary principle, deny intergenerational equity, increase biodiversity loss and render the use of natural resources unsustainable. One of the stated aims of the Bills is to effectively integrate social, economic and environmental considerations to achieve ESD, yet the effects of the legislation, as noted above, indicate that the principles of ESD are not properly understood. For development to be sustainable it must be socially and economically beneficial in the long term, which this legislation appears to ignore. The primary objectives of the draft Biodiversity Conservation Bill should be to stop biodiversity loss, restore degraded habitats and halt threatening processes. The proposed legislation will not achieve these and actually involves removing existing, long‐held protections. The latter should be strengthened and expanded rather than abolished to address increased threats resulting from vegetation clearing and climate change. As a minimum, new legislation should be aiming for no net loss of native vegetation. However, the proposed changes adopt a triage approach to biodiversity conservation, acceding to the flawed premise that biodiversity loss is inevitable if our standard of living is to be maintained. This ignores the evidence that sustaining biodiversity is the key to sustaining social and economic health. Loss of biodiversity will result in a reduction in our standard of living and development opportunities. The draft legislation appears to have been prepared far too hastily and without adequate consultation, as the two Bills are incompatible in their objectives and can be expected to contain a raft of loopholes able to be exploited by opportunists. Far from being scientific and rigorous, much of the legislation is based on erroneous and unsupported assumptions that are likely to lead to immediate widespread losses of biodiversity if implemented in its current form. The Conservation Ecologists Association has major concerns in relation to numerous aspects of the legislation, particularly with regard to the abolishing of existing protection measures, the reliance on a flawed biodiversity assessment methodology underpinning controls (or the lack of) on vegetation clearing, and an interpretation of offsetting that corrupts its basic concept. These include:
the likely exponential increase in vegetation clearing resulting from self‐assessable codes being applied by landholders lacking relevant expertise;
```````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````` CEA submission to Draft Biodiversity legislation June 2016
2
the likely loss of high conservation value vegetation due to the reliance on satellite imagery that is unable to detect relevant biodiversity attributes in areas where ground‐truthing is deficient; the lack of a requirement to maintain or improve biodiversity, water quality and soil productivity and reduce salinity; the adoption of an offsetting process that allows the destruction or degradation of a high conservation value plant community, plant or animal population or taxon to be compensated for with almost any remotely similar community, population or taxon anywhere in the State; the likely increased risk of extinction of a threatened species resulting from abolishing protection afforded to individual populations of that species, so that genetic diversity and colonisation potential are reduced or lost; the likely increased loss of biodiversity resulting from allowing wide discretion to consent authorities in applying the results of the Biodiversity Assessment Methodology; the likely increased loss of biodiversity resulting from the lack of clear responsibilities for enforcing compliance with the legislation and the subsequent culture of wilful non‐ compliance such failure produces; the likely loss of vegetation resulting from the inability of Local Land Services to adequately administer the proposed legislation due to deliberate under‐resourcing; the likely loss of vegetation due to the implementation of the legislation being enmeshed in a complex set of codes and regulations that will inevitably contain loopholes able to be exploited by landholders for secondary purposes.
Monitoring, evaluation and reporting are an integral part of the process. Without these actions we cannot assess the level of biodiversity loss. Monitoring of species, their populations and threats is the only way to measure rate of loss and a major step in halting loss. Monitoring of biodiversity is an important part of private land conservation, not just monitoring of biodiversity credit‐generating actions. This key element is missing from the legislation and further evidence of the focus on development rather than conservation generating actions. The proposed legislation and associated changes makes little mention of climate change and the impacts of changing temperature and rainfall patterns on our environment. The ability of native vegetation and fauna to adapt to climate change will be depend greatly on reducing other threats such as land‐clearing, habitat modification and introduced plant and animal species. The proposed legislation must recognise and address the threat of climate change in a meaningful manner. Increasing vegetation loss will directly impact on our renewable targets, which will be a prime economic driver in decades to come. Nature’s wealth has real economic significance. • The draft biodiversity conservation bill is focussed on listed threatened species of vertebrates – this is not a focus on biodiversity and ignores the other 74% of protected faunal species that are not currently listed as threatened. By focussing on listed threatened species the proposed legislation will provide insufficient protection for the majority of species and will almost certainly miss the species that are sliding towards threatened status or are ‘sleeper threatened species’.
```````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````` CEA submission to Draft Biodiversity legislation June 2016
3
• We are concerned that the process of alignment of the NSW threatened species list with the Commonwealth list (under the Environment Protection and Biodiversity Conservation Act 1999) is not clear. The process must not result in a reduction of the number of species on the NSW lists or enable any outside influence on the listing process for the State. The draft biodiversity conservation bill, as it stands, seems open to interpretation as to whether a process of alignment with the Commonwealth, and the regular application of IUCN criteria in a review of all threatened species, will result in a major shedding of the current schedules of NSW threatened fauna. This needs to be clarified. If the current schedules are intended to remain largely intact, as they should, then the bill needs revision. • We are extremely concerned that the Minister for the Environment has the ability to override conservation agreements if there is a mining or petroleum licence. Conservation agreements must be in perpetuity and should not be overturned, particularly for developments that are major contributing factors to climate change and biodiversity loss. It is especially disappointing to the hundreds of landholders that have entered into conservation agreements and PVPs protecting vegetation and wildlife that these areas are to be usurped by the government for use as tradable commodities to offset destruction‐for‐profit clearing elsewhere. Biodiversity offset scheme (including the test of significance of impacts) • There is increasing scientific evidence that offsets do not achieve what they set out to do and that they can have unacceptable conservation outcomes both for biodiversity conservation and the public’s perception of conservation action, e.g. the impacts of development are considered acceptable because we can offset. The draft bill allows projects to move from “avoid and minimize” to offsets too readily, while in many instances offsets are encouraged from the start. We believe offsets are often not the most appropriate means for conserving biodiversity and should be a tool of last choice. In addition, this does not follow the ‘no net loss of native vegetation’ principle unless an offset is an area that has been restored from cleared land, is the same plant community type and the same level of maturity as the area to be offset. • Allowing development proponents to pay money to the Biodiversity Conservation Trust, and for their offset obligations to be covered at this point, without ensuring the trust can in fact deliver on like‐for‐like requirements, is a significant problem. There should be strict requirements for like‐for‐ like and the Trust must demonstrate that the offset requirements can be met before the obligation of the proponent is fulfilled. Proponents relying on offsetting must provide resources to manage and monitor and/or audit offsets. The auditing of biodiversity outcomes and finances of any existing offset programs should be a priority to ascertain whether any beneficial outcomes (in both biodiversity conservation or cost‐benefits of this approach) can be achieved. • The Local Land Services should not have discretion to set a lower offset obligation if justified by the social and/or economic benefit of clearing. This weakens the bill in terms of biodiversity conservation. • To say it is acceptable to offset with another species from the same taxonomic rank shows absolutely no understanding of the specialised requirements of many threatened animal species.
```````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````` CEA submission to Draft Biodiversity legislation June 2016
4
• Significant and irreversible impacts are not defined in the legislation, yet these are key to determining how development will impact on threatened species. The consideration of significant and irreversible impacts should be equal across all developments, including state significant projects. It is the larger projects, such as state significant projects, that are likely to have the major impacts. • There is no reference to “Key Threatening Processes” in the Four‐part Test, which are important processes to consider when assessing the potential of developments to impact on the status of a threatened species or population. Yet Key Threatening Processes are listed on p. 177 of the draft bill. An assessment of Key Threatening Processes in relation to proposed developments and activities is a crucial component of the Four‐part Test of Significance. Land clearing • Much of the draft bill’s focus is on remote‐sensed maps, vegetation maps, and a native vegetation regulatory map that categorises the clearing history of the landscape for decisions for future land uses. Maps of Plant Community Types (PCT) and vegetation condition, for the most part, cannot lead to accurate predictions of the presence of faunal species, including threatened species, the structure of fauna communities, and the environmental processes that are acting upon them. Therefore, these regulatory maps are not an adequate surrogate for fauna conservation. Fauna need their own procedures for survey, and decision‐making. We consider this to be a critical failure in the bill. The exemption of all land cleared post‐1990 (1983 for the western region) from controls on clearing is unsupportable on scientific grounds. In northern NSW, recent decades have seen many thousands of hectares planted, regenerated and restored. Some of these areas have sufficient structural and floristic diversity to warrant listing as endangered ecological communities in their own right (e.g. EPBC ‐ Lowland Rainforest of Subtropical Australia). Many others support populations of threatened fauna and flora. No consideration will be given to these values under this vegetation categorisation process. Widespread loss of diversity in regenerating communities is a certain outcome. The focus of the native vegetation regulatory map is on woody vegetation – this ignores species, including threatened species, that are found in other habitat types (e.g. grasslands) or that use paddocks. Examples include roosting bats, brown treecreepers, superb parrots, turquoise parrots and the critically endangered regent honeyeater which feeds on the nectar of food tree species in paddocks. • Paddock trees important to wildlife conservation will likely be lost. The presence and condition of hollows in paddock trees cannot be evaluated by remote imaging. Class 2 or class 3 paddock trees cannot be cleared if the clearing of the habitat provided by the paddock trees is listed as a serious and irreversible impact (not yet defined) for a threatened species. But there is no requirement for a landscape assessment of hollow availability, or for the role of hollow‐bearing trees in the movement of animals through the landscape. Paddock trees, which are typically old and contain hollows, may provide the last available hollows in a local landscape, but the current value (and its loss) won’t be known. • The importance of paddock trees as drought food refuges for nectarivorous threatened species may be episodic, but these trees are nevertheless crucial to their long‐term survival. Recognition of habitats as drought refuges for fauna, especially threatened species, usually requires an ecologist ```````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````` CEA submission to Draft Biodiversity legislation June 2016
5
with specialist expertise. A landholder involved in the self‐assessment of the importance of paddock trees may not be aware of their episodic importance as threatened species habitat, especially if the self‐assessment is conducted between peak flowering periods. Has landholder self‐assessment been trialled? A random assessment of landholders and their ability to self‐assess should be undertaken by a reputable and independent organisation and the results published prior to considering this landholder self‐assessment. • For example, tree hollows could be used by a range of cryptic species (such as insectivorous bats) that a landholder may not know are present. Only the extent of native vegetation on a property is assessed, but this could be regrowth with no hollows (no credits are required if there is greater than 70% vegetation cover on a property). It is essential that the condition of this cover is assessed. This is especially the case for the presence of hollow‐bearing trees. • Loss of vegetation impacts not only fauna populations and communities associated with trees but also: reduces dead wood as habitat for many animals; changes water retention of soil; results in the loss of invertebrate biodiversity that is not protected under the current or proposed acts; and further results in the loss of ecosystem functioning of soils, Not all hollow‐bearing trees are the same. Different tree species produce different types of hollows and many species, including threatened species, are selective as to which hollow‐bearing tree they select. The retention of hollow‐bearing species needs to reflect the ecology of the fauna selecting the hollow‐bearing trees by species and location. It also needs to reflect the ecology and growth patterns of the trees. Any suggestion that trees with trunk diameters over 80 cm are the only ones to be considered for protection needs to be removed from the draft bill and associated documents. Hollows relied on as shelter sites by fauna can and do occur in much smaller diameter trees. • It is unclear from the proposal how travelling stock reserves will be managed. These reserves are critically important for biodiversity conservation in agricultural landscapes. Their loss, along with the further loss of habitat, will likely result in significant collapse of biodiversity in central and western regions of NSW. CEA strongly recommends that travelling stock reserves are protected specifically.
The Draft Biodiversity Conservation and Local Land Services bills are a recipe for accelerated biodiversity loss across NSW, particularly regarding:
Repeal of the Native Vegetation Act 2003 and Threatened Species Conservation Act 1995 without providing the same protections enabled by decades of dedicated work by scientists, land managers and legislators is not justified ‐ these are important laws that have led to a significant decrease in land clearing and habitat loss;
Removal of the requirement to ‘maintain or improve biodiversity values’ will lead to a decline in environmental outcomes, soil health, water quality and salinity;
Safeguards for ensuring the protection and survival of threatened species, endangered ecological populations and communities, such as ‘red flag’ areas for environmentally
```````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````` CEA submission to Draft Biodiversity legislation June 2016
6
sensitive areas, have been watered down by the use of broadscale mapping based decisions (Categories), self‐assessment provisions and questionable assessment methodologies;
Expansion of the use of ‘self‐assessable’ codes will allow landholders to clear trees with little oversight and;
Increased use of biodiversity offsets, with variations to ‘like for like’ offsetting and allowing proponents to clear trees in exchange for paying money into a fund are by their very nature, allowing unacceptable net loss of the highest conservation value assets.
In conclusion, CEA consider the proposed legislation unworkable in its current form and likely to result in irreversible damage to NSW’s biodiversity values at a time when we should be striving to reverse species declines and minimise damage to our greatest asset, our environment. We call on the government to withdraw the Draft Biodiversity Conservation Act and Local Land Services Amendment Act, and commit to laws which will genuinely improve outcomes for nature. Yours sincerely
Secretary Conservation Ecologists Association
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7
SUBMISSION to DRAFT NSW BIODIVERSITY CONSERVATION BILL AND DRAFT LOCAL LAND SERVICES BILLS The Conservation Ecologists Association (CEA) was formed in 1997 by a northern NSW based group of professional ecologists, biologists, and environmental consultants dedicated to securing the most appropriate conservation management of all the North Coast’s natural biodiversity and supporting ecosystems. Members donate their time and expertise. CEA's members have decades of experience and involvement in local government surveys and extensive involvement in natural resource planning and management. The association and its members provide reports and submissions to local, state, and federal government authorities on matters affecting biodiversity conservation. CEA Objectives: 1. To promote / foster the preservation / conservation of the environment for its intrinsic, evolutionary, scientific, and ecological values. 2. To promote the comprehensive scientific study of ecosystems, their constituent flora and fauna, and our shared environment. 3. To promote truly ecologically sustainable management principles and practices. 4. To provide, promote, and review scientifically / ecologically based professional standards in biological surveys, scientific analysis, and management and resource development proposals. 5. To encourage ecologically based management of the environment. 6. To promote the restoration and rehabilitation of natural areas and ecological processes. 7. To liaise with community groups on land‐use and environmental management issues. 8. To advise government and agencies, in matters relating to land‐use and environmental management. 9. To promote a greater understanding of conservation ecology and related concepts. We write to oppose the NSW Government’s proposed new Biodiversity Conservation package, and to support retaining and strengthening existing protections for bushland and wildlife. CEA is concerned that the proposed changes will increase land clearing and carbon pollution, push wildlife closer to the brink of extinction and undermine the sustainability of our farmland.
In NSW our high standard of living depends on our social and economic health and wealth, factors that are intrinsically linked to the health of our environment. The State supports a rich and diverse assemblage of ecosystems, plant and animal communities and their component species, but a high ```````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````` CEA submission to Draft Biodiversity legislation June 2016
1
proportion of these are recognised as subject to varying levels of threat from human activities. Many species have already become extinct and many more are on an extinction trajectory. Yet despite this parlous situation, our environmental health is being placed under an increased level of threat by changes the State government proposes to make to our existing biodiversity legislation. These changes will accelerate the loss of biodiversity across the State and result in the destruction of crucial refuges needed to counter the impacts of climate change. The claims made by the NSW government that the draft Biodiversity Conservation and Local Land Services (Amendment) Bills will conserve biodiversity and adhere to the principles of ecologically sustainable development (ESD) are patently false. This retrograde legislation will remove the existing environmental controls that have protected threatened ecological communities, populations and species over past decades and disregard the precautionary principle, deny intergenerational equity, increase biodiversity loss and render the use of natural resources unsustainable. One of the stated aims of the Bills is to effectively integrate social, economic and environmental considerations to achieve ESD, yet the effects of the legislation, as noted above, indicate that the principles of ESD are not properly understood. For development to be sustainable it must be socially and economically beneficial in the long term, which this legislation appears to ignore. The primary objectives of the draft Biodiversity Conservation Bill should be to stop biodiversity loss, restore degraded habitats and halt threatening processes. The proposed legislation will not achieve these and actually involves removing existing, long‐held protections. The latter should be strengthened and expanded rather than abolished to address increased threats resulting from vegetation clearing and climate change. As a minimum, new legislation should be aiming for no net loss of native vegetation. However, the proposed changes adopt a triage approach to biodiversity conservation, acceding to the flawed premise that biodiversity loss is inevitable if our standard of living is to be maintained. This ignores the evidence that sustaining biodiversity is the key to sustaining social and economic health. Loss of biodiversity will result in a reduction in our standard of living and development opportunities. The draft legislation appears to have been prepared far too hastily and without adequate consultation, as the two Bills are incompatible in their objectives and can be expected to contain a raft of loopholes able to be exploited by opportunists. Far from being scientific and rigorous, much of the legislation is based on erroneous and unsupported assumptions that are likely to lead to immediate widespread losses of biodiversity if implemented in its current form. The Conservation Ecologists Association has major concerns in relation to numerous aspects of the legislation, particularly with regard to the abolishing of existing protection measures, the reliance on a flawed biodiversity assessment methodology underpinning controls (or the lack of) on vegetation clearing, and an interpretation of offsetting that corrupts its basic concept. These include:
the likely exponential increase in vegetation clearing resulting from self‐assessable codes being applied by landholders lacking relevant expertise;
```````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````` CEA submission to Draft Biodiversity legislation June 2016
2
the likely loss of high conservation value vegetation due to the reliance on satellite imagery that is unable to detect relevant biodiversity attributes in areas where ground‐truthing is deficient; the lack of a requirement to maintain or improve biodiversity, water quality and soil productivity and reduce salinity; the adoption of an offsetting process that allows the destruction or degradation of a high conservation value plant community, plant or animal population or taxon to be compensated for with almost any remotely similar community, population or taxon anywhere in the State; the likely increased risk of extinction of a threatened species resulting from abolishing protection afforded to individual populations of that species, so that genetic diversity and colonisation potential are reduced or lost; the likely increased loss of biodiversity resulting from allowing wide discretion to consent authorities in applying the results of the Biodiversity Assessment Methodology; the likely increased loss of biodiversity resulting from the lack of clear responsibilities for enforcing compliance with the legislation and the subsequent culture of wilful non‐ compliance such failure produces; the likely loss of vegetation resulting from the inability of Local Land Services to adequately administer the proposed legislation due to deliberate under‐resourcing; the likely loss of vegetation due to the implementation of the legislation being enmeshed in a complex set of codes and regulations that will inevitably contain loopholes able to be exploited by landholders for secondary purposes.
Monitoring, evaluation and reporting are an integral part of the process. Without these actions we cannot assess the level of biodiversity loss. Monitoring of species, their populations and threats is the only way to measure rate of loss and a major step in halting loss. Monitoring of biodiversity is an important part of private land conservation, not just monitoring of biodiversity credit‐generating actions. This key element is missing from the legislation and further evidence of the focus on development rather than conservation generating actions. The proposed legislation and associated changes makes little mention of climate change and the impacts of changing temperature and rainfall patterns on our environment. The ability of native vegetation and fauna to adapt to climate change will be depend greatly on reducing other threats such as land‐clearing, habitat modification and introduced plant and animal species. The proposed legislation must recognise and address the threat of climate change in a meaningful manner. Increasing vegetation loss will directly impact on our renewable targets, which will be a prime economic driver in decades to come. Nature’s wealth has real economic significance. • The draft biodiversity conservation bill is focussed on listed threatened species of vertebrates – this is not a focus on biodiversity and ignores the other 74% of protected faunal species that are not currently listed as threatened. By focussing on listed threatened species the proposed legislation will provide insufficient protection for the majority of species and will almost certainly miss the species that are sliding towards threatened status or are ‘sleeper threatened species’.
```````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````` CEA submission to Draft Biodiversity legislation June 2016
3
• We are concerned that the process of alignment of the NSW threatened species list with the Commonwealth list (under the Environment Protection and Biodiversity Conservation Act 1999) is not clear. The process must not result in a reduction of the number of species on the NSW lists or enable any outside influence on the listing process for the State. The draft biodiversity conservation bill, as it stands, seems open to interpretation as to whether a process of alignment with the Commonwealth, and the regular application of IUCN criteria in a review of all threatened species, will result in a major shedding of the current schedules of NSW threatened fauna. This needs to be clarified. If the current schedules are intended to remain largely intact, as they should, then the bill needs revision. • We are extremely concerned that the Minister for the Environment has the ability to override conservation agreements if there is a mining or petroleum licence. Conservation agreements must be in perpetuity and should not be overturned, particularly for developments that are major contributing factors to climate change and biodiversity loss. It is especially disappointing to the hundreds of landholders that have entered into conservation agreements and PVPs protecting vegetation and wildlife that these areas are to be usurped by the government for use as tradable commodities to offset destruction‐for‐profit clearing elsewhere. Biodiversity offset scheme (including the test of significance of impacts) • There is increasing scientific evidence that offsets do not achieve what they set out to do and that they can have unacceptable conservation outcomes both for biodiversity conservation and the public’s perception of conservation action, e.g. the impacts of development are considered acceptable because we can offset. The draft bill allows projects to move from “avoid and minimize” to offsets too readily, while in many instances offsets are encouraged from the start. We believe offsets are often not the most appropriate means for conserving biodiversity and should be a tool of last choice. In addition, this does not follow the ‘no net loss of native vegetation’ principle unless an offset is an area that has been restored from cleared land, is the same plant community type and the same level of maturity as the area to be offset. • Allowing development proponents to pay money to the Biodiversity Conservation Trust, and for their offset obligations to be covered at this point, without ensuring the trust can in fact deliver on like‐for‐like requirements, is a significant problem. There should be strict requirements for like‐for‐ like and the Trust must demonstrate that the offset requirements can be met before the obligation of the proponent is fulfilled. Proponents relying on offsetting must provide resources to manage and monitor and/or audit offsets. The auditing of biodiversity outcomes and finances of any existing offset programs should be a priority to ascertain whether any beneficial outcomes (in both biodiversity conservation or cost‐benefits of this approach) can be achieved. • The Local Land Services should not have discretion to set a lower offset obligation if justified by the social and/or economic benefit of clearing. This weakens the bill in terms of biodiversity conservation. • To say it is acceptable to offset with another species from the same taxonomic rank shows absolutely no understanding of the specialised requirements of many threatened animal species.
```````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````` CEA submission to Draft Biodiversity legislation June 2016
4
• Significant and irreversible impacts are not defined in the legislation, yet these are key to determining how development will impact on threatened species. The consideration of significant and irreversible impacts should be equal across all developments, including state significant projects. It is the larger projects, such as state significant projects, that are likely to have the major impacts. • There is no reference to “Key Threatening Processes” in the Four‐part Test, which are important processes to consider when assessing the potential of developments to impact on the status of a threatened species or population. Yet Key Threatening Processes are listed on p. 177 of the draft bill. An assessment of Key Threatening Processes in relation to proposed developments and activities is a crucial component of the Four‐part Test of Significance. Land clearing • Much of the draft bill’s focus is on remote‐sensed maps, vegetation maps, and a native vegetation regulatory map that categorises the clearing history of the landscape for decisions for future land uses. Maps of Plant Community Types (PCT) and vegetation condition, for the most part, cannot lead to accurate predictions of the presence of faunal species, including threatened species, the structure of fauna communities, and the environmental processes that are acting upon them. Therefore, these regulatory maps are not an adequate surrogate for fauna conservation. Fauna need their own procedures for survey, and decision‐making. We consider this to be a critical failure in the bill. The exemption of all land cleared post‐1990 (1983 for the western region) from controls on clearing is unsupportable on scientific grounds. In northern NSW, recent decades have seen many thousands of hectares planted, regenerated and restored. Some of these areas have sufficient structural and floristic diversity to warrant listing as endangered ecological communities in their own right (e.g. EPBC ‐ Lowland Rainforest of Subtropical Australia). Many others support populations of threatened fauna and flora. No consideration will be given to these values under this vegetation categorisation process. Widespread loss of diversity in regenerating communities is a certain outcome. The focus of the native vegetation regulatory map is on woody vegetation – this ignores species, including threatened species, that are found in other habitat types (e.g. grasslands) or that use paddocks. Examples include roosting bats, brown treecreepers, superb parrots, turquoise parrots and the critically endangered regent honeyeater which feeds on the nectar of food tree species in paddocks. • Paddock trees important to wildlife conservation will likely be lost. The presence and condition of hollows in paddock trees cannot be evaluated by remote imaging. Class 2 or class 3 paddock trees cannot be cleared if the clearing of the habitat provided by the paddock trees is listed as a serious and irreversible impact (not yet defined) for a threatened species. But there is no requirement for a landscape assessment of hollow availability, or for the role of hollow‐bearing trees in the movement of animals through the landscape. Paddock trees, which are typically old and contain hollows, may provide the last available hollows in a local landscape, but the current value (and its loss) won’t be known. • The importance of paddock trees as drought food refuges for nectarivorous threatened species may be episodic, but these trees are nevertheless crucial to their long‐term survival. Recognition of habitats as drought refuges for fauna, especially threatened species, usually requires an ecologist ```````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````` CEA submission to Draft Biodiversity legislation June 2016
5
with specialist expertise. A landholder involved in the self‐assessment of the importance of paddock trees may not be aware of their episodic importance as threatened species habitat, especially if the self‐assessment is conducted between peak flowering periods. Has landholder self‐assessment been trialled? A random assessment of landholders and their ability to self‐assess should be undertaken by a reputable and independent organisation and the results published prior to considering this landholder self‐assessment. • For example, tree hollows could be used by a range of cryptic species (such as insectivorous bats) that a landholder may not know are present. Only the extent of native vegetation on a property is assessed, but this could be regrowth with no hollows (no credits are required if there is greater than 70% vegetation cover on a property). It is essential that the condition of this cover is assessed. This is especially the case for the presence of hollow‐bearing trees. • Loss of vegetation impacts not only fauna populations and communities associated with trees but also: reduces dead wood as habitat for many animals; changes water retention of soil; results in the loss of invertebrate biodiversity that is not protected under the current or proposed acts; and further results in the loss of ecosystem functioning of soils, Not all hollow‐bearing trees are the same. Different tree species produce different types of hollows and many species, including threatened species, are selective as to which hollow‐bearing tree they select. The retention of hollow‐bearing species needs to reflect the ecology of the fauna selecting the hollow‐bearing trees by species and location. It also needs to reflect the ecology and growth patterns of the trees. Any suggestion that trees with trunk diameters over 80 cm are the only ones to be considered for protection needs to be removed from the draft bill and associated documents. Hollows relied on as shelter sites by fauna can and do occur in much smaller diameter trees. • It is unclear from the proposal how travelling stock reserves will be managed. These reserves are critically important for biodiversity conservation in agricultural landscapes. Their loss, along with the further loss of habitat, will likely result in significant collapse of biodiversity in central and western regions of NSW. CEA strongly recommends that travelling stock reserves are protected specifically.
The Draft Biodiversity Conservation and Local Land Services bills are a recipe for accelerated biodiversity loss across NSW, particularly regarding:
Repeal of the Native Vegetation Act 2003 and Threatened Species Conservation Act 1995 without providing the same protections enabled by decades of dedicated work by scientists, land managers and legislators is not justified ‐ these are important laws that have led to a significant decrease in land clearing and habitat loss;
Removal of the requirement to ‘maintain or improve biodiversity values’ will lead to a decline in environmental outcomes, soil health, water quality and salinity;
Safeguards for ensuring the protection and survival of threatened species, endangered ecological populations and communities, such as ‘red flag’ areas for environmentally
```````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````` CEA submission to Draft Biodiversity legislation June 2016
6
sensitive areas, have been watered down by the use of broadscale mapping based decisions (Categories), self‐assessment provisions and questionable assessment methodologies;
Expansion of the use of ‘self‐assessable’ codes will allow landholders to clear trees with little oversight and;
Increased use of biodiversity offsets, with variations to ‘like for like’ offsetting and allowing proponents to clear trees in exchange for paying money into a fund are by their very nature, allowing unacceptable net loss of the highest conservation value assets.
In conclusion, CEA consider the proposed legislation unworkable in its current form and likely to result in irreversible damage to NSW’s biodiversity values at a time when we should be striving to reverse species declines and minimise damage to our greatest asset, our environment. We call on the government to withdraw the Draft Biodiversity Conservation Act and Local Land Services Amendment Act, and commit to laws which will genuinely improve outcomes for nature. Yours sincerely
Secretary Conservation Ecologists Association
```````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````````` CEA submission to Draft Biodiversity legislation June 2016
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