In November 2017 we launched a legal challenge to the New South Wales Government’s new land clearing codes, on behalf of our client the Nature Conservation Council of NSW (NCC).
The code allowed broadscale land clearing without any checks or balances, where landholders can carry out significant amounts of self-assessed clearing of native vegetation.
Land clearing is a major threat to biodiversity when habitat for many animals and birds is wiped out. It is also a contributor to climate change.
The new code was not supported by science and one of the Government’s own advisors on the Independent Biodiversity Legislation Review Panel, Professor Hugh Possingham, publicly resigned over the terrible effect these laws would have on biodiversity in NSW.
NCC argued that Government Ministers failed to have regard to certain principles of ecologically sustainable development, including the precautionary principle, inter-generational equity and the conservation of biological diversity and ecological integrity, when making, or giving concurrence to the Code.
They also argued that the codes were invalid because the Primary Industries Minister failed to follow due process and get concurrence from the Environment Minister before making them, as required by law.
After three months, the government conceded that the Primary Industries Minister did not get concurrence from the Environment Minister. As a result, the NSW Land & Environment Court made an order declaring that “on and from 24 August 2017, the Land Management (Native Vegetation) Code 2017 has been invalid and of no effect.”
By conceding on the ground of concurrence, the Government did not have to answer the second ground of the challenge in court – that in making the Code, the Ministers did not take into account the legal principles of ecologically sustainable development (ESD) as they are legally required to do.
The case placed a spotlight on the inadequacy of government decision making in respect of the critical issue of land clearing. Devastatingly for our clients, and for nature, the Government decided to remake their original decision, disregarding the overwhelming scientific evidence about the effect the Code would have on native species.
“This is a missed opportunity for the Government to correct laws that scientists, lawyers and the community know will result in large scale destruction of important habitat for our threatened species, including the koala,” EDO CEO David Morris said.
Taking on this case for our client was necessary to ensure accountability and respect for the rule of law. Challenging the failures of Government Ministers to adhere to the laws made by Parliament is an important part of defending democratic principles and the rule of law.