Posted on June 29, 2014 by

Review to be conducted over laws protecting threatened species, native vegetation and biodiversity in NSW

The Minister for the Environment has announced a review of the legislative and policy framework for the management of native vegetation, threatened species and other protected flora and fauna.

According to the Minister the “current legislative framework has become fragmented, overly complex and process driven. It creates inconsistent regulatory standards across different sectors and fails to deliver the right incentives for industry and landholders”.

The aims of the review include the establishment of a simpler, streamlined and more effective legislation that will:

• facilitate the conservation of biological diversity
• support sustainable development
• reduce red-tape.

An Independent Panel has been engaged to undertake a comprehensive review of the Native Vegetation Act 2003, Threatened Species Conservation Act 1995 and related biodiversity legislation.

The Panel is made up of two Commissioners from the Productivity Commission, one with credentials as an environmental economist and policy analyst, and one with many years’ experience in natural resource management, as well as a Commissioner from the NSW Resource Commission and an academic with experience in conservation planning.

The Terms of Reference include the panel proposing new legislative arrangements that include (Reference 3):

• the  incorporation of environmental, social and economic considerations (i.e. triple the bottom line) into decision-making frameworks
• options to identify biodiversity priorities given proposed biodiversity conservation objectives
• opportunities to improve regulatory efficiency, removing duplication and adopting proportionate, risk-based approaches to regulation and compliance
• the concept and practice of ‘duty of care’ in relation to native vegetation management in the context of land, water and biodiversity conservation objectives along with measures to promote cost sharing for biodiversity conservation and native vegetation management
• measures to promote upfront clarity and transparency in environmental standards including options for self-regulation
• options for effectively integrating native vegetation management with the protection and maintenance of land and water resources and the conservation of biodiversity
• removing barriers and providing incentives to voluntary private land conservation, and measures to reduce duplication, promote paid stewardship and foster greater collaboration and coordination between government and the community
• appropriate frameworks to abate environmental risks, prevent species extinction and maintain ecological processes
• governance arrangements, statutory concurrence and consultation requirements, and compliance and enforcement provisions.”

Comment

It seems from the terms of reference that the NSW Government is looking at creating a single policy and legislative framework for the regulation of biodiversity (including threatened and protected flora and fauna including native vegetation) where “triple bottom line considerations” will feature prominently.

Self-regulation and a “duty of care” are new and interesting concepts that will be considered in the review.

In terms of the “duty of care” the Review Panel may consider concepts similar to those introduced into the National Parks and Wildlife Act 1974 in 2010 which imposed a duty of care for the protection of aboriginal objects by the creation of strict liability offences accompanied with a “due diligence” defence (see section 86(2)). A person can demonstrate that he or she had acted with due diligence by acting in accordance with a code of practice prescribed by the regulations.

For more information please see the OEH website at http://www.environment.nsw.gov.au/biodiversitylegislation/index.htm