ian's latest speeches in parliament

Threatened Species Conservation Amendment (Biodiversity Certification) Bill 2010

2^nd Reading Speech

I rise on behalf of the Greens to debate the Threatened Species Conservation Amendment (Biodiversity Certification) Bill 2010. I can indicate that the Greens oppose the Threatened Species Conservation Amendment (Biodiversity Certification) Bill 2010. The Greens are opposed to this Bill for a number of reasons. Foremost the Bill does not represent a conservation strategy and framework with sufficient integrity to secure protection of biodiversity in NSW. Our country’s record on flora and fauna conservation is poor. Australia has one of the worst mammal extinction rates in the world, with 22 mammals becoming extinct over the past 200 years. Almost 40 per cent of mammal extinctions globally in the last 200 years have occurred in Australia. Australia is not pulling its weight in terms of supporting the key objectives and obligations of the Convention on Biological Diversity.

Only this week we have seen how our endangered ecological communities and threatened species can be further pushed towards extinction by a scheme that is undeniably malleable and ineffective in protecting biodiversity. I am referring to the proposal by the Hills Shire Council to clear 10 ha of critically endangered Cumberland Plain woodland and endangered shale transition forest and offset this loss with a biobanking agreement. Under the 2006 Environmental Assessment of Withers Rd, Kellyville site the red flag rule of the Biobanking methodology would prevent the Council for offsetting the 10 ha through biobanking. More recently Hills Shire Council have had subsequent ecological assessments of the Withers Road site which downplayed the presence of endangered flora and fauna and ignored the high conmservation value of the area. One could suggest that the aim of subsequent ecologist reports has been to downplay the ecological significance of the site to prevent the triggering of red flag provisions of the biobanking methodology.

DECCW’s internal desire to actually use the biobanking scheme, which has only secured one biobank over last 2 years and the ecologist shopping of Hills Shire Council has blinded everyone to the fact that we should not clear managable, high conservation value endangered ecological communities. It is an attempt to circumvent the red flag provisions of the methodology and demonstrates the absolute necessity of red flag provisions to be clearly spelt out in legislation. I call on those Members who support this Bill and the Minister to reflect on this clear example of how biobanking and biodiversity certification is being manipulated, leaving NSW with a net loss in biodiversity. People should also consider how this could easily happen in other local areas such as the Tweed Shire where certain proponents are committed to the clearing of endangered ecological communities.  

We are currently grappling with challenging policy decisions in relation to population growth, urban development and environmental management. Urban development in Sydney’s northwest and southwest growth centres highlights the contestation between these conflicting policy objectives. Late last year DECCW released the draft NSW and National Cumberland Plain Recovery Plan. The draft recovery plan recognises the need to protect endangered ecological communities and threatened species in western Sydney, yet proposes an approach that does not deliver the requisite level of certainty in conservation protection. In conjunction with DECCW’s draft Cumberland Plain Recovery Plan and Growth Centres Biodiversity Offset Program, urban development in the growth centres is currently undergoing Strategic Assessment pursuant to the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 to assess the potential impact of urban development on matters of national environmental significance.  

Biodiversity certification could potentially apply all across NSW. Prior to this Bill there were moves to certify Albury and Wagga Wagga Local Environmental Plans (LEP). Excluding the biodiversity certification of the Native Vegetation Reform Package, the only environmental planning instrument to receive biodiversity certification is the State Environmental Planning Policy (Sydney Region Growth Centres) 2006. The first biodiversity certification of an EPI in NSW resulted in a Land and Environment Court challenge by True Conservation Association Inc. The challenge of the then Minister’s biodiversity certification of the Growth Centres SEPP was defeated by the Threatened Species Conservation Amendment (Special Provisions) Bill 2008 which validated the biodiversity certification without it meeting the statutory test of maintaining or improving biodiversity values. Importantly, the Greens, Rev Gordon Moyes and the Opposition opposed that Bill because it was asking the Parliament to validate a decision by a Minister that did not satisfy the statutory test. To this day the biodiversity certification package does not improve or maintain biodiversity values.

To date 35.7 ha of native vegetation has been cleared in the growth centres, with approximately 18 ha being Cumberland Plain Woodland. I’d draw Member’s attention to the first NSW Biodiversity Offset Program Report that outlines the fund’s first acquisition to offset native vegetation clearing in the Growth Centres. According to the report the Commonwealth Government and NSW Government jointly purchased 181 ha site at Cranebrook. The report states; 

“The property has been purchased for $17.5 million, with two-thirds of this amount coming from an Australian Government Caring for our Country grant. The grant honors a pre-election commitment by the Australian Government to spend up to $15 million to create a new conservation corridor for Western Sydney.”

We should note two things here. First, the land was going to be protected under as business as usual scenario meaning there is no additionality to the conservation measure. It is also questionable whether this land could have been used for urban development considering historical uses of the land. This is a clear example of rebranding a planned conservation action as a biodiversity offset. Secondly, the Commonwealth Government provided the majority of funding not the Biodiversity Offset Fund. The Biodiversity Fund only provides approximately 16% of acquisition funding which does not account for the need to offset 35.7 hectares of native vegetation clearing. 

Before I turn to substantive elements of the Bill I want to try to dig to the heart of why the Department of Environment, Climate Change and Water and the NSW Government believe biodiversity certification will improve the current deficiencies in our threatened species legislation. The NSW Government argues that the current system of species impact statements for specific, individual sites is like a death by thousand cuts for biodiversity in NSW. The justification for this statement is that in the majority of instances ecologists rarely find species impact when they assess a site subject to a development application. Or in other words, the ecologists are paid their fee by the proponent and in most instances report no specific impact on threatened species by development of individual site. Alternatively, an ecological assessment might come to the finding that any ‘remnant’ native vegetation and species are not of a size and composition that are ‘manageable’ in an urban environment through the long term.   

Even if we accept the Government and Opposition’s critique of individual site species impact assessment, is biodiversity certification the answer? Are there more effective reforms available to us? If the Government is concerned about the integrity of ecologist reports it could adopt an ecological consultant accreditation scheme similar to what it operates for contaminated land auditors or biobanking assessors. I have personally asked the Minister to consider establishing an accreditation scheme for all environmental and ecological consultants writing environmental assessments (EA) and species impact statements (SIS) in NSW. This is a simple reform that will improve environmental and species impact assessment in NSW.     

Secondly, we could alter the methodology and assessment criteria for species impact assessments and statements. Ecologists could shift their assessment methodology and focus to one that assesses ecological communities and fauna species within a broader landscape system. They could have an expanded mandate to evaluate ecosystem composition, function and structure across multiple land tenures. The assessment could contextualise an individual sites contribution to overall ecosystem composition and structure.

These are just some of ways in which we could amend the ‘death by thousand cuts’ approach to biodiversity management without resorting to the use of biodiversity certification. However, I would suggest that biodiversity certification is about more than remedying the alleged limitations of site-by-site species impact assessment. There is another dimension to the implementation of biodiversity certification. I would speculate that the creation of biobanking and biodiversity certification represents DECCW’s ‘absolute dissatisfaction’ with the environmental management of EP & A Act Part 3A project assessment. Project assessment and enforcement of conditions of consent by the Department of Planning has systematically slipped well below community expectations and concepts of ecological sustainable development. Their underperformance has and continues to compromise the long-term prosperity of this State. As a government department the lack of policy maturity leaves the department incapable of balancing the real challenges of our age. Their planning and development principles are dominated by project economics and proponent profit margins. Strategic planning for this State has been hijacked by departmental philosophies that went out of date three decades ago.

Not only have local communities been sidelined by the Department of Planning, other government departments such as DECCW also find their advice to DOP and the Minister for Planning falls on deaf ears. DECCW and the Minister for the Environment administer the majority of legislation that is considered in Part 3A assessments and Director General requirements. Unfortunately, the advice of DECCW is not adequately integrated into project approval or general development design. Kings Forest in the Tweed Shire is a perfect case study of the inter-departmental dynamic that exists between the Department of Planning and the Department of Environment, Climate Change and Water.   

Biodiversity certification represents, on a political level, an attempt by DECCW to claw back turf from the Department of Planning. The problem is that in ‘competing’ with the Part 3A planning process for regulatory use and relevance it compromises its substance and process. Why would a major project proponent seek a local council or Planning Minister to use biodiversity certification agreements or process if Part 3A was cheaper and easier for the proponent? It is due to this competition of regulatory pathways that biodiversity certification remains undeniably compromised in its bid to protect biodiversity.      

Turning to the substantive provisions of the Bill, biodiversity certification is described as a mechanism to manage flora and fauna at a landscape scale without requiring species impact statements or biodiversity assessments under the Environmental Planning and Assessment Act. The Bill allows planning authorities such as local councils or the Minister for Planning to make an application for land to receive biodiversity certification. The Minister for Environment cannot confer biodiversity certification unless the applicant planning authority has produced a biodiversity certification strategy. The purpose of the biodiversity certification strategy is to require the applicant to set out how it would achieve maintenance or improvement in biodiversity values. The planning authority applicant will be required to outline the conservation measures, as contained in proposed Section 126L, that will satisfy the statutory test. To many this brave new front in conservation sounds Monty Python-esque.

One of the notable differences between the existing regime of biodiversity certification under Part 7, Division 5 of the Act and the regime proposed in this Bill is the cessation of certifying environmental planning instruments (EPIs) such as SEPPs and LEP. The Bill instead provides for the biodiversity certification of land of any size, composition and zoning. The move away from certifying EPIs is in part based on the technical difficulty of multiple EPIs applying to one block of land. For example a particular development within the northwest and southwest growth centres may not be assessable under the Growth Centres SEPP and therefore not technically covered by the biodiversity certification assigned to the SEPP by NSW Parliament. If a development within the growth centres is assessed pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 or the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 such developments would still need to undertake a species impact statement as those SEPPs don’t have biodiversity certification although the land geographically falls within the growth centres.

I would suggest that there is an additional dimension to the Government and Department’s desire to move away from biodiversity certification of environmental planning instruments. I am sceptical as to whether biodiversity certification of an LEP would have provided any conservation management benefits. When landcare groups and catchment management authorities talk about landscape scale ecosystem management, the scale of management would more likely focus on a particular resource system that crosses several boundaries. The concept of landscape scale biodiversity management inherent in biodiversity certification of EPIs substantially expands this more traditional understanding. The scale is substantially more expansive. It is questionable whether managing biodiversity at a local government area scale is possible. Considering that biodiversity certification is already a step into the unknown and that quantifying biodiversity is so far from an exact science, I would suggest the concept of certifying a LEP is not realistic pragmatically or scientifically.

Currently Section 126G of the Act requires the Minister to be satisfied that biodiversity certification will lead to the overall improvement or maintenance of biodiversity values. In evaluating whether biodiversity certification achieved the statutory test the Minister would have to consider principles of ecologically sustainable development, the most efficient and effective use of available resources for the conservation of threatened species, populations, the objects of the Act and the likely social and economic consequences of implementation of the EPI.  Proposed section 126P in framing the statutory test requires the Minister to form the opinion that biodiversity certification ensures that the overall effect is to improve or maintain biodiversity values. While not having an argument about semantics I think there is a difference between ‘biocertification leading to maintenance and improvement of biodiversity values’ and ‘biocertification having an overall effect of improving and maintaining biodiversity values’. The Total Environment Centre and the Environmental Defenders’ Office has suggested that the change in terminology has occurred to facilitate an increased reliance on financial contributions and offsetting.   While I agree with that statement I would also add that it is a further dilution of scheme integrity that is already struggling to demonstrate its ability to protect biodiversity.

The lack of integrity is compounded by the refusal to expose the Ministerial discretion to judicial review. In that other place the Member for Pittwater rightly highlighted this element of the Bill on behalf of the Opposition. Like so many Bills before this House we are seeing a concentration of executive power without judicial recourse. In the context of a Opposition Leader who unabatedly bemoans Labor ministerial incompetence and calls for an early election I would have thought the Opposition would actually stand up in this place and reject the centralisation of executive power. Yet time and time again the Opposition happily support removing judicial oversight of executive power. One minute they slam Labor Ministers for incompetence and stupidity, the next they increase the Ministerial powers to make decisions affecting communities across NSW. Truly amazing stuff!!   

Proposed Section 126L outlines the accepted measures that would constitute a conservation measure forming part of a biodiversity certification strategy. These proposed conservation measures should be evaluated in conjunction with Chapter 7 of the draft biodiversity certification methodology. In order to demonstrate that biodiversity certification is actually improving or maintaining biodiversity values, all conservation measures would logically need to be additional to what is achieved under the status quo or business as usual. Otherwise we are simply rebadging land. If conservation measures are not additional to the status quo we will be automatically sustaining a loss of biodiversity values and contravening the statutory requirement of maintaining or improving biodiversity values. When we look at some of the measures listed under proposed Section 126L, namely paragraph (a), (c), (d), (k) and (l) it is questionable whether these measures should be considered additional or have the required security and longevity required of conservation measures offsetting the permanent destruction of biodiversity. For example, how is the continuation of development control plan (DCP) that limits or prohibits development a measure that maintains or improves biodiversity if it is in place regardless of offsetting. It’s all ‘chop’ and no ‘swap’. Furthermore, paragraph (o) leaves the door wide open for the Minister to define any other measures or activities as conservation measures. Supporting the inclusion of this paragraph is simply giving licence for executive excesses to undermine conservation management.  

Not only are these alleged conservation measures deficient in terms of demonstrating no real concept of additionally essential to achieving the statutory test, they also lack a distinct element of security. Property Vegetation Plans, voluntary Conservation Agreements under the National Parks and Wildlife Act and biobanking agreements are generally attached to the title of the property and act as a positive or restrictive covenant. Varying or removing these agreements or instruments is difficult thereby securing the integrity of the offset. Local councils can simply repeal or amend a DCP or a plan of management. The Government will point out that the different conservation measures are weighted in the methodology and that this accounts for the lack of security of outcomes achieved by a DCP. For example, the conservation measures are divided into 3 categories; planning scheme conservation measures, permanently managed conservation measures and permanently managed and funded conservation measures. Each category has a discount rating or weighting. The Greens cannot support a Bill that allows the permanent destruction of ecological communities and threatened species on the basis that a local council has provided temporary protection of the natural environment through a planning instrument. The use of planning based conservation measures is not sufficient to achieve permanent improvement or maintenance of biodiversity values. 

The draft biodiversity certification assessment methodology at Chapter 7.3 – and what wonderful new green bureaucratic speak we have developed in this Bill I should note - further contravenes the principle of additionality with the idea that only legally required management actions performed under existing conservation agreements such as a VCA or are existing conservation obligation. For example, if I voluntarily agree with the Minister to establish a VCA over my residence in perpetuity and registered on title then I have already agreed to protect that landscape. Any attempt to use an existing conservation measure, voluntarily assumed or otherwise for offsetting is double dipping. The fact that I may or may not contract with the Minister to undertake specific management actions are in some ways irrelevant. As the Minister would be aware over 250 people in NSW have voluntarily agreed to VCAs and undertake management actions to preserve biodiversity on their property. To define what an existing conservation obligation is based upon a demarcation between voluntary and legal obligations is simply fictitious. 

Considering the draft biodiversity certification assessment methodology more broadly, there are a number of problematic elements to implementing this document. I do acknowledge that any methodology or metric applied to calculate biodiversity value will continue to evolve. Proposed Division 5 creates a process for the establishment, publication and amendment of the methodology. In relation to proposed section 126S the failure to codify red flag provisions in the Bill demonstrates that the most basic level of conservation protection consistent with the objects of the Act is not achievable under this regime. Red flag rules have been applied in the Biobanking Methodology and have not changed in the last two years so there is no justification for not including the red flag provisions in the Bill. Also of considerable concern is the use of a minor variation clause in proposed section 126Q, which is similar to minor variation clauses the Native Vegetation Act and regulations. Paragraph (c) will allow and applicant and Minister to circumvent the consistent enforcement and application of the methodology if the project economics won’t look good for the applicant. If the Government insists minor variation provisions are necessary, all divergences from the methodology must be supported by publicly available expert evidence and assessment.        

Proposed Division 6 establishes mechanisms for the Minister to confer, extend or review biodiversity certification. There are a number of concerning provisions within this Division but I only want to highlight the worst. Monitoring and auditing of conservation measures         on a regular basis is fundamental to ensuring continued compliance with statutory tests. Proposed section 126ZC only requires a full review of biodiversity certification after 15 years. This is simply too long a time frame for strategic review of biodiversity certifications especially in the context of metrics for measuring biodiversity evolving rapidly. 5 years would be more appropriate.   

Proposed Division 7 outlines the enforcement powers of the Minister in relation to the compliance with proposed conservation measures. Once biodiversity certification is determined proposed conservation measures become approved measures. I think it is helpful to compare enforcement powers in Division 7 of the Bill with the enforcement powers in sections 127L, 127N and 127O because it highlights the ‘absolute’ inconsistency and double standards of the Department. In Division 7 of the Bill the Minister has the sole discretion to determine recompense to remedy non-compliance. The Minister can only recover costs of covering the relevant approved measures and there are no third party standing rights to enforce compliance. In stark contrast, any person can seek compliance under a biobanking agreement from the Land and Environment Court (s127L(1)). Under Section 127L the court has the power to impose damages for breach of a biobanking agreement and in assessing damages can consider any detriment to the public interest arising from the breach and any financial benefit derived from or sought by committing the breach. Under section 127N the Minister can seek orders to enter a biobanker’s land and remedy any breach or even go as far as seek compulsory acquisition under section 127O. The gapping divergence in approaches to compliance and enforcement can be explained by the simple fact that the Government is not committed to maintaining integrity of conservation outcomes.                  

Proposed Division 8 sets out the range of agreements the Minister can enter into to facilitate the procedural and practical element of biodiversity certification. In particular biodiversity certification agreements will be used to secure conservation measures necessary to achieve biodiversity certification. In many cases these agreements will be registered on title of land. Unfortunately, there is no provision for publication of biodiversity certification agreements or conservation measure agreements even though DECCW has built a web portal for registration of biobanking agreements.  Proposed Section 126ZW states that planning approvals or development consents obtained under Part 3A, 4 or 5 prior to suspension or revocation remain unaffected by suspension or revocation of biodiversity certification. What is the status of development consent after biodiversity certification is withdrawn? Proposed Section 126ZZ removes any legal recourse for breaches of procedural requirements in the Bill. In other words all the safeguards that are built into scheme’s governance to ensure fair, transparent and accountable processes are not worth the paper they are written on. It speaks volumes about the commitment to this concept of biodiversity certification. It is a scheme perfectly suited to a (Environment Minister still carrying his planning stripes).     

Overall the provisions in the Bill allow for a level of flexibility and discretion in managing our biodiversity that is not acceptable nationally or internationally. The recent UN Global Biodiversity Outlook highlighted that at the current rate of biodiversity loss there will be a severe reduction of many essential ecosystem services critical to human societies. This Bill does not arrest biodiversity loss in this State and as such the Greens oppose the Bill.