NSW faces court challenge as Australia tops global charts in natural vandalism
Willow Aliento | 5 July 2018
NSW is fast catching up to Queensland for land clearing, has wiped out 90 per cent of koala habitat on private land and this woeful track record has helped Australia become one of the most destructive land clearing countries on the planet – second in the world for biodiversity loss and in the top 10 globally for emissions from forest clearing. Queensland is now reforming its laws but The Nature Conservation Council is having to take NSW to court to force it to do the same.
The Nature Conservation Council (NCC) is taking the NSW government to court this month over the validity of its land clearing laws. The case comes as data shows that land clearing for agriculture, forestry, mining and other land uses could cancel out all of the emissions abatement procured through the Emissions Reduction Fund in the next three years if the current clearing trajectory continues.
The NCC case is based on documents uncovered by the organisation under the Freedom of Information Act. It will be presented by the Environmental Defenders Office NSW, with the proceedings listed for a directions hearing before the Land and Environment Court on 13 July 2018.
Key to the action is the way NSW changed the laws within hours of the Land and Environment Court invalidating the 2017 Land Management (Native Vegetation) Code 2017 following a previous NCC legal challenge.
“Our client’s decision to again challenge the validity of the code in court was not taken lightly,” EDO NSW chief executive David Morris said.
“It took this decision because of the apparent failure, on the information available, of the Minister for the Environment to lawfully discharge her duty to consider the Code’s impacts to biodiversity.”
The documents received by the NCC appear to show that the minister did not give “proper, genuine and realistic” consideration to the principles of ecologically sustainable development as required by law, as there was not sufficient time and materials available.
That would mean the code was made unlawfully.
“The legal regime makes it clear: the responsibility for ensuring that the code does not have an unacceptable impact on the environment lies with the environment minister. The code is predicted to have significant and far-reaching impacts to biodiversity,” Mr Morris said.
“The role of the environment minister outlined in the law is not one of rubber stamping, nor one of symbolism. Rather, it is the crucial check and balance to ensure the integrity of our state’s unique biodiversity in a changing climate.”
The code allows landholders to carry out significant self-assessed clearing of native vegetation without further approval or environmental assessment, according to NSW EDO information.
The invalidated 2017 code was supposed to be released with maps to show landholders where clearing of native vegetation can or cannot occur, however those maps have not been released, so under the 2018 code, landholders are required to self-assess.
The NSW policy opened up the state to eight million hectares of land clearing, Jessica Panegyres, national nature campaigner for The Wilderness Society, told The Fifth Estate.
This includes 90 per cent of the remaining koala habitat on private land.
This made NSW second behind Queensland for land-clearing in 2017. Unlike Queensland, however, NSW does not collect and publish transparent data on land clearing. The third-worst state for clearing on private land was Western Australia.
Victoria, while lower on that “scoreboard of shame”, still has a logging problem it needs to fix, destroying some of the state’s oldest high conservation value forest areas, Ms Panegyres said.
Australia was currently second in the world for biodiversity loss and in the top 10 globally for emissions from forest clearing, she said.
The irony is that by protecting forests and bushland, the nation could have a “big win for nature and for emissions”.
The only thing that fixes the land clearing questions, she said, was “strong laws”.
Queensland recently passed new and tougher land clearing laws to halt the rampant clearing occurring in the state.
This is the first time the laws have been strengthened since just after the Kyoto Protocol was signed.
Dr Tim Moore, director of Biodiverse Carbon Conservation, told The Fifth Estate an agreement between the federal and Queensland governments to put the brakes on clearing largely enabled Australia to meet its initial Kyoto obligations.
That’s how much of an impact land clearing can have on our emissions.
“We know laws work,” Ms Panegyres said.
For land clearing laws to be really effective, she said there needed to be two mechanisms. First, laws to stop the bulldozing of old and environmentally sensitive areas. Second, there needs to be “support and incentives” for restoring bushland, and systems such as vegetation stewardship payments and carbon payments to landholders.
The current policy settings don’t make sense, she said.
The centrepiece of federal efforts, the Emissions Reduction Fund, had by the end of the seventh auction spent the majority of allocated funding on vegetation projects, purchasing around 125 million tonnes of abatement for about $1.5 billion.
But three years of clearing at the current trajectory will wipe all that abatement out, Ms Panegyres said.
“What we are seeing is complete policy perversity.”
It is not only carbon emissions sequestration and reduction that bushland can deliver. It also provides ecosystem services such as cycling of water and air.
In the Great Barrier Reef catchment, bushland prevents sediment from soil erosion entering the reef area, Ms Panegyres said.
But here’s another example of policy perversity in action. Even though Queensland has passed its new clearing laws, and even though the federal government has done the big song and dance about its $500 million for reef protection, huge areas of bushland in the catchment are slated for clearing.
The Wilderness Society, Nature Conservation Council, WWF and Australian Marine Conservation Society wrote a joint letter to the UNESCO World Heritage Committee last month to coincide with the organisation’s meeting in Bahrain, calling for an urgent investigation into the federal government’s failure to protect the reef from clearing impacts.
Even with the new Queensland clearing laws in place, around 36,000 hectares in the catchment, comprising high conservation value old growth native bushland, has the green light for clearing under legacy “high value agriculture” permits issued by the previous Queensland government and not subsequently revoked.
The permits include one issued to Kingvale for the clearing of almost 2000 hectares of old growth forest on Cape York.
In the letter, the organisations noted that in 2015-16, 158,000ha of bushland was cleared in Great Barrier Reef catchments, however only one clearing proposal was referred to the federal government for assessment under Commonwealth environmental laws.
In total, only five proposals have been referred to the federal government to date, and of those two were approved and the government is also recommending approving the Kingvale clearing plan.
“The Australian Government has acknowledged that it has the power and responsibility to control deforestation in Reef catchments,” the letter said.
“However, the Australian Government is failing to use the Environment Protection and Biodiversity Conservation (EPBC) Act to prevent land clearing in the catchments of the Great Barrier Reef.”
An analysis by WWF found that there have been 7658 locations in Queensland where land clearing was either planned or undertaken where the landholder probably should have sought approval under the EPBC Act.
However, in 99 per cent of cases no federal action has been taken, and over half of that clearing was in the GBR catchment areas.
“The Turnbull Government claims it’s working hard to save the Great Barrier Reef but it’s taking little action on the biggest threats to the Reef – climate change and deforestation – and deforestation adds to climate change,” Wilderness Society national director Lyndon Schneiders said.