Damning Findings from Review of Biodiversity Conservation Act

The findings from the 5-year statutory review of the Biodiversity Conservation Act 2016 (NSW) (BC Act) are in, and it doesn't make for happy reading.

Pursuant to section 14.11(1) of the BC Act, the Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.

The short answer from this statutory review is that they do not. Lead Independent Reviewer Dr. Ken Henry AC states that "it is clear to the Review Panel that the operative provisions of the Act are incapable of supporting its objectives".

The Review Panel finds the 'diversity and quality of ecosystems is not being maintained' and 'the objects of the BC Act are already obsolete.'

The purpose of the Act (section 1.3) is to maintain a healthy, productive, and resilient environment for the greatest well-being of the community, now and into the future, consistent with the principles of ecologically sustainable development.

One of the challenges here is that for some interest groups, there is no such thing as 'ecologically sustainable development.' Even the Review concludes that the principles of sustainable development 'are no longer fit for purpose'.

The counter-argument we hear from clients is that potential projects become mired in red and green tape, caught up in the confusion of Biodiversity Offset Payment Calculations, biodiversity credits, and stewardship agreements, among myriad others.

The Review Panel finds the regulatory provisions of the BC Act are complex and uncertain, with high compliance costs. There is criticism that the integrity of the Biodiversity Offsets Scheme is being compromised by payments being made into the Biodiversity Conservation Fund, rather than credits being sourced directly.

Traditional farming practices are coming under greater pressure; so too are irrigated cropping, native timber harvesting, private native forestry, and pest and weed control.

The Review Panel concludes that the BC Act's objectives lack primacy, being undermined by a range of other legislation - the key targets are the Forestry Act 2012 and the Local Land Services Act 2013.

The complexity and confusion are only added to by a layer of Commonwealth legislation, including the Environment Protection and Biodiversity Conservation Act 1999 (Cth). A 2020 review of that Act found it was duplicative, inefficient, and costly for the environment, business, and the community.

The question is how to unscramble the legislative egg, particularly against the backdrop of a national housing crisis that requires an increased supply of housing, increased development, urban sprawl, and the potential for further habitat loss.

This review promotes the notion of a 'Nature Positive Strategy' seeking not only the protection and restoration of biodiversity but improvements over time, 'preserving opportunities for future generations'.

What might this mean for the development of renewable projects like wind and solar farms?

The world of development is complicated enough - in seeking to improve biodiversity outcomes by giving the BC Act primacy over other pieces of legislation, there is the very real risk that the pathway toward a project determination will only become more confusing, costly, and uncertain

For further information please contact:

Matthew Cole
Phone: +61 2 9777 8371
Email: mxc@swaab.com.au

Stuart Bocking

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.