ADEQUACY OF NSW ENVIRONMENTAL LAWS

When it comes to reporting breaches of environmental laws, many are reluctant to contact the relevant authorities directly, fearing a lack of confidentiality.

The recommended avenue for reporting such breaches is through the EnviroLine where the operators, despite assurances of confidentiality, then request contact details in case investigating officers require further information.

Local environment groups provide an avenue for those who wish to remain anonymous, which saw one such recent report, alerting us to extensive under-scrubbing of forest north of Grafton.

Under-scrubbing is the process of bulldozing all under-storey vegetation, leaving only larger trees, and in this instance, not only had tens of thousands of native trees, shrubs and other plants been bulldozed, but many of the remaining trees had been damaged in the process. That scarring invariably leads to an early death by fire. The bulldozed vegetation was heaped into windrows some three metres high ready for burning, further damaging and/or killing nearby standing trees.

The cleared area is known to support Koalas, an iconic species that is in serious decline and facing extinction. The State Government is proudly reporting the spending of millions of dollars protecting them, so surely this clearing couldn't possibly be legal.

In this instance the EPA acted promptly, and responded to the complaint within days, explaining the clearing had in fact been approved. While that in itself was hard to believe, the reason given for the destruction was even harder to fathom. That, they informed us, was to enhance grazing potential!

The land in question has very low fertility soils, incapable of growing pasture so, in a good year, might support one bullock to 5 hectares. It seems unlikely therefore, that grazing was the objective, but allowable “thinning” for that purpose provided the justification.

The end result will be the loss of some 90% of the forest's biodiversity, serious erosion potential in the short term, and a guaranteed weed invasion over the longer term.

At a time when we desperately require more trees and forests to sequester carbon, these decisions make no environmental, social or economic sense.

            - John Edwards

This article was originally published in the VOICES FOR THE EARTH column in The Daily Examiner on July 20 ,  2020.

LAND CLEARING LAWS REINSTATED BY NSW GOVERNMENT

The Nature Conservation Council of NSW (NCC) had a short-lived victory in relation to the NSW Government's land clearing regulations last month when the Land and Environment Court found that they were invalid because they had been made unlawfully.  See the CVCC post on the NCC's media release about the court result.

The Environmental Defenders Office (EDO), which ran the case for the NCC, explained that the Minister for Primary Industries made a legal error in the making of the code.  He failed to obtain the concurrence of the Environment Minister, as he was legally required to do, before making the Code.

Commenting on the court decision,  the EDO's Chief Executive Officer David Morris said,"In conceding that they failed to follow due process, the Government gives the strong impression of making laws on the run. This is not simply a matter of incorrect paperwork.  Ecologically sustainable development is not just another box to tick - the Environment Minister has a legal responsibility to protect biodiversity in this state."

Following the court decision - and using the correct procedure this time -  the Government reinstituted the code without amendment.

Although the reinstatement was not unexpected, it was disappointing for the EDO and the NCC as it was done without addressing any of the serious concerns which were raised in the court challenge.

The second ground for the court challenge was that the Ministers for Primary Industry and the Environment did not take into account the legal principles of ecologically sustainable development as they are legally required to do.

This matter was not addressed by the court because, as the Government conceded the first ground, it did not have to answer the second ground for the court challenge.

Whether there is any possibility of a further challenge remains to be seen.

NSW LAND-CLEARING LAWS FOUND TO BE INVALID

The Nature Conservation Council of NSW (NCC) challenged the NSW Government's land-clearing laws in the Land and Environment Court.  Conservationists have been very concerned that these laws, a weakening of the previous state laws, would lead to a dramatic increase in the clearing of native vegetation and catastrophic biodiversity loss.  They also believed that the correct process  in introducing these laws had not been followed.

The NCCs media release on the decision is printed below.

9 March 2018

Court finds NSW Government land-clearing laws invalid

The Land and Environment Court today ruled the NSW Government’s land-clearing laws invalid because they were made unlawfully. 

“The government has bungled the introduction of one of its signature pieces of legislation, and in the process demonstrates its careless disregard for nature in NSW,” Nature Conservation Council CEO Kate Smolski said.

“Today’s ruling is an embarrassing admission of failure by the Berejiklian government and a great victory for the rule of law and the thousands of people who have supported us in taking this action.” 

The Nature Conservation Council, represented by public interest environmental lawyers EDO NSW, launched legal challenge against the government’s land-clearing codes last November. 

NCC had argued through its barristers Jeremy Kirk SC and David Hume the codes were invalid because the Primary Industries Minister failed to obtain concurrence of the Environment Minister before making the codes, as is required by law. The government today has conceded this was indeed the case. 

“It is deeply troubling that the government disregarded the important oversight role of the Environment Minister when making environmental laws, but we are even more concerned about the harmful content of the laws themselves,” Ms Smolski said.

“By the government’s own assessment, they will lead to a spike in clearing of up to 45% and expose threaten wildlife habitat to destruction, including 99% of identified koala habitat on private land.

“These laws were made against the advice of the scientific community and against the wishes of the vast majority of the many thousands of people who made submissions.

“It would be completely cynical for the government to immediately remake these laws without first correcting their many flaws and including environmental protections the community wants and the science says we need.

“Premier Berejiklian must act now to prevent further plundering of our forests, woodlands and water supplies by scrapping these laws and making new ones that actually protect the environment.”

Ms Smolski pledged to continue the campaign to overturn weak land-clearing laws.

“As the state’s peak environment organization, we will do everything we can to expose the damage of land clearing and will not stop until we have laws that protect nature,” she said. 

“These laws are a matter of life or death for wildlife. More than 1000 plant and animal species are at risk of extinction in this state, including the koala and 60 per cent of all our native mammals.

“Land clearing is the main threat to many of these animals, and the laws this government introduced unlawfully are pushing them closer to the brink.

“It is regrettable that we had to take the government to court to make it abide by its own laws, but it demonstrates the critical role organisations like ours play in our democracy.”

Note: While the date at the top of this post is listed as 8 March (obviously the date in the US at the moment), it is actually March 9 in Australia.

COURT CHALLENGE OF NSW GOVERNMENT'S LANDCLEARING LEGISLATION

In recent years the NSW Government has made significant changes to native vegetation and biodiversity legislation.   Despite Government assertions that there will still be adequate protection for the natural environment, many scientists and conservationists fear these new laws will result in broadscale rural land clearing and large-scale biodiversity loss.

 

Indeed, land clearing rates in NSW started accelerating even before the changes were passed in August.  This has led to concerns that NSW will see the same type of devastation as has occurred in Queensland where hundreds of thousands of hectares of native vegetation have been destroyed annually (e.g. 395,000 ha in 2015-16).

In an attempt to stem this destruction the Nature Conservation Council of NSW (NCC) has launched a legal challenge to the Government’s land clearing codes in the Land and Environment Court. (The NCC is the peak NSW environment body with more than 160 community organisation members from across the state.)

The NCC is being represented by public interest environmental lawyers Environmental Defenders Office NSW (EDO). 

The challenge is based on two grounds.

The first is the failure by the Minister for Primary Industries to get agreement from the Minister for the Environment before the Code was made, with the implied failure of the Minister for the Environment to act as custodian and guardian of the environment.

The second relates to the failure of both Ministers to have regard for the internationally recognised principles of Environmentally Sustainable Development (ESD), particularly the precautionary principle, the principle of intergenerational equity and the conservation of biological diversity and ecological integrity.

Clearing of native vegetation has been recognised by scientists as a serious problem. It was listed by the NSW Scientific Committee as a Key Threatening Process under the Biodiversity Conservation Act 2016.  However, as EDO Chief Executive Officer David Morris points out, “The Code allows broadscale clearing across NSW in the absence of any assessment of its likely cumulative impact on biodiversity or land or water resources.”

The outcome of this legal action will be of interest to a wide range of community members as well as the NSW Government.

            - Leonie Blain

 This article was originally published in the VOICES FOR THE EARTH column in The Daily Examiner on December 4, 2017. 

NSW BIODIVERSITY REFORMS CRITICISED BY SOME FARMERS

 The NSW Government’s proposed biodiversity reforms have been criticised by conservationists and scientists who fear that the weakening of native vegetation laws will lead to an increase in  widespread land clearing and an acceleration of  native flora and fauna extinctions. 

 

These reforms replace other legislation including the Native Vegetation Act 2003 and the Threatened Species Conservation Act 1995.

They have also been criticised by some farmers for similar reasons.

Towards the end of June Inverell beef farmer Glenn Morris rode his horse across the Harbour Bridge to draw attention to the problems he saw with the new legislation.

He said that soil and vegetation  were not the most popular things to talk about “but if we don’t start getting a culture of respect and love for nature, we’re in big trouble.” 

Echonet recently reported on a statement from a group of farmers calling on the state government to make significant changes to the proposed legislation - the Local Land Services Amendment Bill and the Biodiversity Conservation Bill.

These concerned farmers, including two former Young Farmers of the Year and a former regional director of the NSW Agriculture Department and CEO of Landcare, are urging the government to set bold goals for improving native vegetation and farm sustainability. They  want the new laws to ensure that soil health, salinity and water quality are protected and that there is a significant increase in funds for stewardship and private land conservation.

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Northern Rivers Macadamia farmer Pam Brook is concerned that the proposed legislation will lead to more land clearing rather than regenerating and restoring farmland.  She points to her experience where the reintroduction of rainforest on her property paid big dividends.

“In the early days we used spray for everything,” she said. “One of the things we’ve discovered with the rainforest is that it’s a great source of predator bugs and insects that provide a rich balance for our macadamia orchards.”

Another statement signatory, Alstonville avocado farmer Michael Hogan pointed out, “Any stock and station agent will tell you that a well-treed property will attract a higher price than a cleared farm.”

            - Leonie Blain

 

 This article was originally published in the VOICES FOR THE EARTH column in The Daily Examiner on August 15, 2016.