Submission to the Joint Select Committee on the

Threatened Species Conservation Amendment

(Biodiversity Banking) Act 2006

8 May 2007

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Joint Select Committee on Threatened Species Conservation Amendment (Biodiversity Banking) Act 2006
Parliament House
Macquarie Street
Sydney NSW 2000

May 2007

Dear Chairperson,

The Environmental Defender’s Office of NSW (EDO) welcomes the opportunity to provide comment to the Joint Select Committee on Threatened Species Conservation Amendment (Biodiversity Banking) Act 2006. The EDO is a community legal centre specializing in public interest environmental law.

The EDO is a member of the Ministerial Reference Group (MRG) on Biobanking, which was established when the legislation was passed in 2006. We have also provided both legal and scientific comment to the Department of Environment and Climate Change (DECC) through a number of Focus Groups, including the Rule Based Assessment Tool, Credit Transactions and Register, and Conservation Agreements and Other Legal Instruments groups.

We refer also to our previous submissions: Submission on “Biobanking- A Biodiversity Offsets and Banking Scheme” Working Paper March 2006, which is available at: http://www.edo.org.au/edonsw/site/policy/biobank060405.php; and Submission on Biodiversity Certification and Banking in Coastal and Growth Areas September 2005, which is available at: http://www.edo.org.au/edonsw/site/policy/biobank050913.php.

Our comments relate to the two key issues for consideration of the Joint Select Committee, pursuant to section 127A(3) and (4) of the Threatened Species Conservation Amendment (Biodiversity Banking) Act 2006:

1. Guidelines for the operation of the Biobanking scheme; and
2. Options for applying the scheme to the clearing of native vegetation (within the

meaning of the NativeVegetation Act 2003).

The EDO, as a member of the MRG, will be providing regular ongoing legal and scientific

input into the establishment and implementation of the BioBanking scheme. In this context,

our comments here are brief, but we would be happy to provide further information to the

Joint Select Committee where required.

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1. Guidelines for the operation of the Biobanking scheme

The Joint Select Committee has invited suggestions on the subject matter that guidelines for

the operation of the two year trial of the BioBanking scheme should cover, as well as any

specific suggestions on the content of the guidelines.

We have identified some key issues that we believe the guidelines should address and have

made some specific suggestions on the content of the guidelines below.

Need to address key scientific uncertainties. The BioBanking scheme involves a number

of scientific uncertainties and risks for biodiversity, including in relation to:

 Measuring biodiversity value – There is scientific uncertainty in terms of how well

biodiversity surrogates such as those used in the assessment methodology represent the

biodiversity value of a site.

 The relative importance of different biodiversity attributes to biodiversity value – There

is scientific uncertainty in relation to the different weights given to the different

biodiversity attributes used to determine the overall biodiversity value of a site (for

example, how important is patch size relative to landscape connectivity or vegetation

condition?).

 Biodiversity outcomes of management actions – The biodiversity benefits of the

management actions used in the assessment methodology are intuitive, but there is

currently little empirical evidence that they will result in an improvement in biodiversity

values to the extent presumed of them.

 Users of the assessment methodology – The assessment methodology involves some

subjective judgments, which means that different users are likely to obtain different

results when applying it to the same site.

It will not be possible to adequately address key scientific uncertainties and risks associated

with the BioBanking scheme in a two year trial. However, the trial provides an opportunity

to consider risks further and establish processes to identify and address risks in the longer

term.

We understand that the Australian Centre of Excellence for Risk Analysis (ACERA) will

soon begin a study that investigates the biodiversity outcomes of management actions and

quantifies the uncertainties and risks associated with using vegetation condition indices as

biodiversity surrogates. This study is likely to be very relevant to the BioBanking scheme.

Need to limit where the trial is applied to. To minimize the risk to biodiversity of the

trial, the guidelines should specify that high conservation value sites are not to be cleared

under the trial. This should include sites containing critical habitat, critically endangered and

endangered ecological communities, and critically endangered and endangered populations.

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Need to apply the trial to areas with high quality ecological information. The

guidelines should require that the trial be applied to areas where high quality ecological

information exists (for example, comprehensive/systematic survey data and biodiversity

strategies/plans). This allows identification of high conservation value sites that should not

be cleared under the trial. Also, it may provide a better indication of the ecological integrity

of the assessment methodology by enabling:

 Comparison of the predictions of the methodology with existing ecological data obtained

by standard methods such as flora and fauna surveys or habitat modelling. For example,

how protective is the methodology of known populations of threatened species

considered to be of local and/or regional significance?

 Assessment of whether the methodology is operating to be consistent with the

objectives of existing biodiversity strategies/plans. For example, does the methodology

allow clearing of vegetation patches identified in a biodiversity plan as being important

to the maintenance of biodiversity at a landscape scale?

 Assessment of whether the methodology is operating to be generally consistent with

established conservation planning principles (for example, see Margules and Pressey,

2000; Fischer et al, 2006).1 For example, how protective is the methodology of large

vegetation patches, or habitat corridors, or riparian buffers?

If the trial is applied to areas where high quality ecological information exists, is it possible to

model the outcomes of the methodology for various scenarios?

Need to further test the assessment methodology. We understand the assessment

methodology will be subject to a three month trial prior to commencement of the two year

trial. The methodology is very complex and it is very difficult to get a clear picture of how it

will operate. Also, it is key to the ecological integrity of the BioBanking scheme. As such, the

guidelines should contain requirements for the methodology to be subject to ongoing testing

and refinement during the two year trial, including further testing of the weights given to the

different biodiversity attributes used to determine the overall biodiversity value of a site. We

are unclear how much testing of these weightings has been undertaken to date.

Need to collect ecological and operational data. The guidelines should contain

requirements to collect ecological and operational data at the development and biobank sites.

This will enable continued testing of the assessment methodology against existing ecological

data and provide a picture of how the methodology is operating on the ground. The data to

be collected should include:

 Ecological data on development and biobank sites to enable comparison of the

predictions of the assessment methodology with ecological data obtained by standard

methods such as flora and fauna surveys.

1 C. Margules and R. Pressey (2000) ‘Systematic conservation planning’ Nature 405 243-253; J. Fischer, D.

Lindenmayer, and A. Manning (2006) ‘Biodiversity, ecosystem function and resilience: ten guiding principles

for commodity production landscapes’ Front Ecol Environ 4(2) 80-86

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 The number of development and biobank sites located within areas identified as high

conservation value in existing biodiversity strategies/plans (for example, habitat

corridors, aquatic ecosystems, riparian buffers, late-successional patches, etc).

 The number of development and biobank sites located within known habitat for

threatened species and threatened ecological communities and the conservation status of

these under the TSC Act and the EPBC Act. The trial should provide a picture of

whether some ecological communities are being disproportionately cleared and offset.

 The vegetation types used as offsets for the vegetation types that are approved to be

cleared and their percentage cleared figure within a CMA area. Where threatened

ecological communities are offset, this should be specifically identified. The trial should

provide a picture of the extent to which offsetting is occurring within the same or

different vegetation types.

 The locations of development sites compared to their associated biobank site(s) in terms

of CMA regions and sub-regions. The trial should provide a picture of the distances

between development sites and biobank sites.

 The number of development and biobank sites located within priority areas and the

nature of these priority areas (are they habitat corridors, large vegetation patches, etc?).

Need to test the accuracy of the Threatened Species Profile Database. The assessment

methodology relies heavily on the data in the Threatened Species Profile Database (TSPD)

and the ecological integrity of the BioBanking scheme relies heavily on the accuracy and

comprehensiveness of this data. The guidelines should require that testing be undertaken of

the accuracy and comprehensiveness of the TSPD and should require expert consideration

of long-term processes for filling information gaps. We are unclear as to how much testing

of the TSPD has been undertaken to date.

Need to test the assessment methodology with different users. As identified, the

assessment methodology involves some subjective judgments. The guidelines should require

that the methodology be applied by multiple users with different levels of experience at each

development and biobank site to allow an indication of the biodiversity implications of any

differences in results obtained. We understand a PhD thesis is currently being undertaken on

this issue, under the supervision of staff from the University of Melbourne and DECC. This

study is likely to be relevant to the BioBanking scheme.

Need to determine adequate survey effort. The guidelines should require expert

consideration of what survey effort is adequate in association with the application of the

assessment methodology. We are unclear as to how much consideration has been given to

this issue to date. We understand a PhD thesis is currently being undertaken on the issue of

survey effort for flora, under the supervision of staff from the RMIT University and the

University of Melbourne. This study is likely to be relevant to the BioBanking scheme.

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Need to establish long-term and short-term monitoring sites. The guidelines should

require the establishment of long-term monitoring sites (to operate beyond the two year

trial) and expert consideration of long-term monitoring processes to determine whether

management actions are achieving the biodiversity outcomes presumed of them. The results

of monitoring should be used to refine the methodology where required. The guidelines

should also require consideration of whether the methodology is the most appropriate

method for measuring biodiversity outcomes in the short-term, or whether other methods

are more appropriate. Measuring biodiversity outcomes in the short-term allows an

indication of whether management actions are likely to achieve the outcomes presumed of

them.

Need to guide implementation of management actions. The guidelines should require

expert consideration of, and the development of, implementation guidelines for management

actions, which should include guidance on appropriate timing for implementation. The

guidelines should also require investigation of:

 The costs of management actions. These are likely to be site specific and dependent on

factors such as the need to implement specific management actions for certain

threatened species, level of degradation of the site, accessibility of the site, types of

equipment required, etc.

 The capacity of landholders to implement management actions in terms of physical

capacity (person hours) and the need for technical advice and equipment. For example,

what level of technical advice will be required to effectively implement fire management?

 Whether all management actions should always be applied at all sites. Are management

actions applicable to all threatened species habitat or are some actions likely to be

detrimental to some threatened species?

Need to show how impacts of development have been minimized. A key aspect of the

BioBanking scheme is the requirement under s 127ZK (3) and 127 of the TSC Act for

developers to implement on-site measures to minimize the impact of developments on

biodiversity values in the first instance. The guidelines should require that information is

collected for each development site showing how this requirement has been met.

Transparency and accountability. The guidelines should identify mechanisms to ensure

that the trial is transparent to allow the community to undertake objective and independent

analysis. The guidelines should require that reporting on the results of the trial be undertaken

and be made publicly available.

Legal status of the guidelines. The guidelines should provide a clear note on their legal

status and clarification of whether they provide guidance only or must be strictly complied

with.

2. Options for applying the scheme to the clearing of native vegetation (within

the meaning of the Native Vegetation Act 2003)

Section 127ZJ currently provides:

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127ZJ Development for which biobanking is available

For the purposes of this Part, development for which biobanking is available means any

development (whether or not development that is a project to which Part 3A of the

Environmental Planning and Assessment Act 1979 applies, development that requires

development consent under Part 4 of that Act or development that is an activity to which

Part 5 of that Act applies) other than the following:

(a) any clearing of native vegetation that must not be carried out except in accordance with a

development consent granted in accordance with the Native Vegetation Act 2003 or a property

vegetation plan under that Act,

(b) development declared by the regulations to be development in respect of which

biobanking is not available.

Note. A biobanking statement may be issued in respect of any development that is

development for which biobanking is available. However, participation in the scheme is

voluntary (that is, it is not necessary to obtain a biobanking statement in respect of the

development). If a statement is obtained, the proponent of the development obtains the

benefit of the statement (as set out in sections 127ZO and 127ZP). The conditions of the

statement will be incorporated into the conditions of the d evelopment consent or approval

for the activity given under the Environmental Planning and Assessment Act 1979.

The EDO supports the exclusion of clearing under the Native Vegetation Act 2003 from the

biobanking scheme as per section 127ZJ(a).

The EDO believes in establishing an equitable system that does not favour urban developers

over rural landholders. The latter are subject to significant land use constraints since the

commencement of the Native Vegetation Act 2003, and it is appropriate that developers be

similarly constrained, especially in light of the significant biodiversity impacts of urban

development. It is necessary therefore, to ensure that the biobanking scheme is as rigorous if

not more rigorous than the assessment and offset scheme under the Native Vegetation Act

2003.

At this stage, making biobanking credits available to rural landholders to offset native

vegetation clearing has the potential to seriously undermine the native vegetation regulatory

regime agreed between stakeholders over 3 years of negotiation.

There are a number of key differences and reasons to support the exclusion at this stage:

 Biobanking is a new and untested regime. It is unclear whether it will achieve a

maintenance or improvement in biodiversity values.

 Biobanking has been developed to address biodiversity impacts of predominantly urban

and coastal development. The native vegetation regime deals with rural clearing, which

may involve a different range of impacts (for example, grazing compared with

infrastructure development).

 The biobanking scheme is voluntary as indicated in the legislative note above. The native

vegetation regime is mandatory.

 The assessment methodology for biobanking and the methodology developed to assess

vegetation clearing are different and have been developed for different purposes. The

native vegetation assessment involves a more holistic assessment of soil, water and

salinity, in addition to biodiversity. This means for example, that the PVP Developer tool

contains ‘red lights’ in riparian zones which function to promote both biodiversity

protection and water quality. It would be inappropriate to provide landholders with an

option to choose a less rigorous assessment tool in order to avoid assessing all elements

of clearing impacts. This would undermine the ‘maintain or improve test’ in the Native

Vegetation Act 2003.

As noted by the NSW Farmers Association during negotiations on the Bill (26th September

2006), PVP offsets must be found on the same property. Biobanking does not have an

equivalent requirement.

We understand that the NSW Farmers Association proposal to delete section 127ZJ(a) of

the TSC Act, and amend clause 26 of the Native Vegetation Regulation 2006 to provide that

the purchase of biobanking credits may deem clearing under the Native Vegetation Act 2003 to

maintain or improve environmental outcomes. The EDO does not support this proposal.

We do however support measures to encourage landholders to generate biodiversity credits.

The DECC should assist landholders who wish to inquire about creating biobanking sites on

their properties and thus generate additional farm income.

Thank you again for the opportunity to make this submission. Should you have any queries,

please do not hesitate to contact us on 02 9262 6989.

Yours sincerely,

Environmental Defender’s Office

Tom Holden Jeff Smith

Scientific Director CEO

End Notes