The New South Wales government has announced major reforms to its biodiversity conservation laws in response to the recent Henry review, including reforming the state’s nature offsets scheme.

The 2023 review, led by Ken Henry, found existing state laws were failing to preserve biodiversity, and was particularly scathing of the biodiversity offset scheme.

NSW Climate Change and Environment Minister Penny Sharpe and Agriculture Minister Tara Moriarty announced Wednesday the government would adopt 49 out of 58 of the Henry review’s recommendations.

“It’s clear we need new approaches, and that additional effort must be directed into proactive landscape-scale biodiversity protection, restoration, and management. We must go beyond the aim of halting loss to one of achieving overall ecosystem gains,” Sharpe said.

“The response sets out our immediate priorities and directions, but this is the start of concerted action, reform, investment.”

Among the amendments to the Biodiversity Conservation Act include requiring the biodiversity scheme to transition to overall ‘net positive’ outcomes, and upfront consideration of biodiversity will be strengthened in planning and development processes, according to the government’s release.

Improvements to the scheme include:

• The introduction of a new statutory standard, requiring proponents to demonstrate how they have genuinely avoided and minimised impacts to biodiversity
• A new public register regarding ‘avoid’ and ‘minimise’ measures for approved developments
• Stronger, clearer guidance to support decision-makers in determining serious and irreversible impacts on biodiversity
• Additional powers to improve the quality and consistency of biodiversity assessment reports
• Removing an option for mining companies to meet a credit obligation through rehabilitating mine site land
• Consider whether a new offsets mechanism is required to meet the Electricity Infrastructure Roadmap

The government’s response document emphasised that it was committed to offsets being a genuine last resort.

“For this reason, the NSW government is committed to supporting transparent, rigorous offsetting and a functioning biodiversity credit market. This will be needed to support clear government priorities for housing, renewable energy, and critical infrastructure,” it said.

It also said it wanted to support a functioning biodiversity credit market, saying it would continue to invest in the Biodiversity Credits Supply Fund and consider more flexibility for small-scale, regional developments.

Non-offsetting reforms included commitments to introduce a NSW Nature Strategy to guide actions to protect, restore, and enhance ecosystems and landscapes, and outlining the governments support for landholders to access emerging natural capital markets, incentivising them to undertake sustainable farming practices, while protecting and restoring their environmental assets.

PROGRESS, BUT NOT ENOUGH

NGO Biodiversity Council welcomed the government’s “substantial progress” in many areas to reform what it said was an ineffective offsets scheme.

“Ensuring offsets are genuinely a measure of last resort and removing discounts for mine-site rehabilitation are important steps,” Biodiversity Council Director James Trezise said in a statement.

“It’s also good to see a commitment to align the Biodiversity Conservation Act with national and international goals and to recognise Aboriginal cultural values and connection to country.”

However, the Council said the announced reforms do not go far enough in key areas, such as curbing high rates of native vegetation clearing.

The government’s response said it would commission the Natural Resources Commission to undertake a review next year into policy options for improving outcomes for areas containing exclusively non-woody vegetation.

However, Trezise said much more was needed to be done to tackle land clearing if the state was to stop the dramatic loss of wildlife.

“Habitat destruction is the primary driver of biodiversity loss in NSW and rates of clearing of intact natural habitats have actually accelerated since the Act was introduced in 2016,” he said.

While the Australian Land Conservation Alliance (ALCA) welcomed many parts of the governments’ response, it noted it did not guarantee the Biodiversity Conservation Act would have ‘primacy’, which would have made it immune from expanding carve-outs in other, non-environmental legislation.

“Enhanced protection conservation covenants are not just an extra insurance policy for our precious biodiversity, they provide a promise for generations to come,” ALCA CEO Jody Gunn said.

“Without enhanced levels of protections, conservation covenants in Australia don’t provide complete protection for nature from highly destructive land uses like mining.”

Ken Henry, who released a statement in his capacity as chair of the Australian Climate and Biodiversity Foundation, said the government’s response to the review showed it “clearly recognises the seriousness of the state of biodiversity loss in NSW and has demonstrated a strong commitment to the restoration of biodiversity”.

He noted the government had chosen not to give the Act primacy, but said it clearly recognised the need for a whole-of-government response to ensure the objectives of the laws were not stymied by other pieces of legislation.

“Importantly, the NSW government recognises that there has to be much greater transparency of outcomes both with respect to high biodiversity value and land clearing,” Henry said.

By Mark Tilly – mark@carbon-pulse.com

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