Posted on September 12, 2023 by Katie Mortimer and Fayette Vermeer 13

Findings of the Independent Review of the Biodiversity Conservation Act 2016

On 24 August 2023, an Independent Review of the Biodiversity Conservation Act 2016 (BC Act) was tabled in Parliament (Review) and significantly, found that the BC Act: is not meeting its primary purpose of maintaining a healthy, productive and resilient environment, and is never likely to do so.

A panel of independent experts led by Dr Ken Henry AC conducted the Review (Review Panel). The Review was required by section 14.11 of the BC Act, which obliges the Minister administering the BC Act to review the Act and determine whether its policy objectives remain valid, and its terms appropriate for securing those objectives.

The BC Act’s Objectives are not being achieved 

The Review Panel found that biodiversity across NSW is at risk from a range of environmental disturbances. Dr Henry states in the Review’s foreword that the principal purposes of the BC Act are not being met, and:

Biodiversity is not being conserved at bioregional or State scale. The diversity and quality of ecosystems is not being maintained, nor is their capacity to adapt to change and provide for the needs of future generations being enhanced.

The Review states that since the BC Act commenced, over 379,000 hectares of native vegetation has been cleared in NSW (between 2018 – 2021). Between 2018 – 2021, the average annual rate of clearing of native woody vegetation increased by a third compared to 2009 – 2017. Only 50% of NSW threatened species are expected to survive in 100 years.

The Review finds that the objects of the BC Act are obsolete, having been guided by principles of sustainable development, which the Review Panel consider no longer fit for purpose.

Moving forward the Review Panel recommend that a commitment be made to a ‘nature positive’ vision, meaning the environment is being repaired and regenerated.

Deficiencies in the BC Act’s Operation 

The Review Panel found that the principal operative provisions of the BC Act and their delivery, are deficient due to:

• the BC Act’s objectives lacking primacy, and being undermined by other legislation including Acts related to native vegetation management; land use planning and approvals; and public and private native forestry,
• the effectiveness of the BC Act to restore, conserve and enhance biodiversity is limited; and there is limited data being collected nor a capacity to evaluate if the objects of the BC Act are being met,
• key programs are limited in scope, under-resourced and lack sufficient monitoring, reporting and evaluation,
• key advisory resources such as the Biodiversity Conservation Advisory Panel are underutilised,
• the involvement of Aboriginal people in program design and on-ground implementation is not well developed,
• the regulatory provisions of the BC Act are complex and uncertain, with high compliance costs:
  • the Biodiversity Offsets Scheme provisions have not supported a supply of biodiversity credits sufficient to meet demand,
  • environmental considerations and opportunities for avoidance and minimisation of biodiversity impacts are not considered early enough in the development assessment and approval process,
  • 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,
• stakeholders lack access to transparent data to inform decisions about biodiversity impacts and biodiversity conservation.

Review Panel’s Recommended Changes 

The Review contains 58 recommendations, outlining how the Review Panel consider a ‘nature positive’ vision can be achieved. We have set out below what we consider to be key recommendations.

The Review recommends fundamental reform, including a new ‘legislative architecture’ to deliver nature positive outcomes. The Review Panel’s new architecture is centred around 6 key pillars: 1. Nature positive strategy, 2. Nature positive spatial tools, 3. Nature positive development, 4. Species and ecosystem recovery, 5. Data-informed decision-making, 6. Leveraging private investment.

The Review Panel summarise ‘what they would like to see’, and consider that:

• In order to meet its objects, the BC Act should have primacy over competing pieces of legislation.
• Aboriginal people should be fully involved in the design and implementation of policy and programs designed to conserve and restore biodiversity.
• The Act should proactively address climate change impacts on biodiversity and ecosystems and the cumulative impact of biodiversity loss and loss of ecosystem connectivity.
• The Act should guide and promote investment in conservation and restoration activities, and should position NSW to take advantage of an emerging large-scale global investment in nature
  repair.
• Those affected by the regulatory provisions of the Act should have much greater certainty, face less complexity, and experience lower compliance costs, including through the development of a single spatial tool to clarify regulatory expectations.
• More needs to be done to expand credit supply by assisting landholders to enter Biodiversity Stewardship Agreements and giving greater credit value to restoring sites and protecting connected sites.
• Action should be taken to reduce the demand for credits through giving greater primacy to avoiding and minimising impacts, adjusting thresholds for small development and special
  measures to deal with very large projects to avoid crowding out the credit market.
• The focus of the Act should be shifted from threatened entities to strategic planning and management of biodiversity to ensure nature positive outcomes.
• All citizens should have confidence in the integrity of the programs administered under the Act.
• The government’s response to this review should consider the Australian Government’s reform of national legislation, ensuring alignment and streamlining where this does not impede NSW achieving its biodiversity objectives.

Key Recommendations 

Recommendations that we consider to be key relate to ‘nature positive development’.

Net Positive Biodiversity Outcomes 

Recommendations 11 and 12 of the Review move away from the concept of ‘no net loss’ set out in the current Biodiversity Assessment Method, and seek changes to the BC Act and Biodiversity Offsets Scheme that would deliver net positive biodiversity outcomes, and require credit obligations for development and clearing to be 120% of calculated biodiversity loss.

Recommendation 26 seeks that the Minister for the Environment have sole discretion to discount biodiversity credit requirements. Presently all consent authorities have that ability, if they consider a reduction justified having regard to the environmental, social and economic impacts of the proposed development: s7.13(4), which is evidently a broad discretion.

Changes to Serious and Irreversible Impacts 

Recommendations 13 – 15 suggest that the Minister for the Environment be given a call-in power in respect of proposals the Minister considers would give rise to a serious and irreversible impact (SAII). For major projects, the Review recommends the Minister have a concurrence role to determine whether the SAII should be approved.

The Review Panel recommend that reasons be published if there is a decision to approve SAII, and a statutory register of those decisions maintained.

Changes to the Assessment of ‘Local Development’

Interestingly, recommendation 16 of the Review suggests the removal of ‘the test of significance pathway’, which we understand to be the test in section 7.3 of the BC Act, on the basis it results in the inconsistent regulation of impacts. The replacement for this test is not clear in the Review.

In recommendation 16, the Review Panel also recommend exploration of how the Biodiversity Values Map thresholds be adjusted to ‘better balance’ regulatory burdens on small developments, with ‘appropriate outcomes for biodiversity’, and an ability for the Minister for the Environment to switch off the Biodiversity Offsets Scheme (BOS)  for local development in exceptional circumstances.

The Application of the Biodiversity Offsets Scheme 

Recommendation 17 of the Review recommends consent authorities have a clear power to retrospectively apply the BOS to a development application if there has been pre-emptive clearing. Whilst this approach is recognised in existing case law applying the BC Act, it would make the position clear.

Recommendation 18 seeks to extend the application of the BOS to Part 5 activities, if the activity has impacts relating to the Biodiversity Values Map.

Clarity as to the Avoidance of Impacts 

Recommendations 22 – 24 seek:

• the BC Act be amended to require a standard of genuine and demonstrable steps to avoid and minimise impacts,
• the provision of clearer guidance on the requirements to avoid and minimise impacts to biodiversity from development, and
• a requirement that steps taken to avoid and minimise impacts be included in conditions of development consent and published.

In this regard, we have previously blogged on the poor appreciation of the primacy of avoidance of impacts on biodiversity values and the discretion that is left with consent authorities as to what constitutes proper avoidance.

‘No-go’ Areas 

Recommendation 25 seeks avoided land be recorded in a statutory register and identified as a ‘no-go’ area. These areas could not be developed or cleared, and the Review Panel suggests they be identified based on the scientific criteria presently used to declare Areas of Outstanding Biodiversity Value. The intention is to provide upfront certainty as to the areas where development cannot occur.

A Requirement for Biodiversity Certification 

Recommendation 20 seeks that the BC Act require biodiversity certification when land is rezoned, for development where expected impacts will trigger the area clearing thresholds (in clause 7.2 of the Biodiversity Conservation Regulation 2017) or land identified in the Biodiversity Values Map.

The Intersection of the BC Act with other Acts: Legislative Reform

Finally, recommendations 55 – 58 of the Review consider how the BC Act interacts with other legislation, and recommend legislative reform to align relevant acts with the nature positive outcome recommended in the Review.

Next Steps 

The Department of Planning and Environment state that the NSW Government will now consider the Review in consultation with key stakeholders, together with the statutory review of the native vegetation provisions of the Local Land Services Act 2013, and develop a whole of government response.

We will post further on steps that are taken as a result of the Review.

You can read the Review here: Final Report – Independent Review of the Biodiversity Conservation Act 2016

If you wish to discuss this post please contact Katie Mortimer on 8235 9716 or Fayette Vermeer on 8235 9730.