The New South Wales government in Australia introduced a bill to reform the biodiversity offsets scheme to its Parliament on Thursday, requiring developers to take measures to prioritise avoiding environmental harm.

The bill proposes legislating for developers to prioritise avoiding harm to biodiversity before minimising or offsetting.

Developers may have to “first take all reasonable measures to avoid the impacts of the action on biodiversity values”, before attempting to minimise, then turning to offsetting, the bill said.

The region’s biodiversity law has a “framework” for avoiding, minimising, and offsetting – but it does not explicitly refer to a hierarchy, said Katie Mortimer, partner at Lindsay Taylor Lawyers, in a comment article.

The changes follow a 2023 review that found existing state laws were failing to preserve biodiversity, and was particularly scathing of the biodiversity offset scheme. Last month, the government said it would adopt 49 out of 58 of the review’s recommendations.

GENUINE MEASURES

The bill proposed developers take “all reasonable measures” to avoid or mitigate their impacts, Mortimer said.

“If the act is amended as proposed, no doubt dispute will arise as to what truly is ‘all reasonable measures’ in particular circumstances, having regard to the context of a site and application,” she said.

The bill also followed through with a promise from the government to require developers to report on the “genuine measures” they have taken to avoid and mitigate impacts, she said.

NET POSITIVE

The biodiversity offsets scheme could transition to “net positive” impacts on nature, in a switch from the current approach of “no net loss”, the bill proposed.

An opening objective in the bill is to “provide that the biodiversity offsets scheme will transition to net positive biodiversity outcomes”.

Mortimer said: “The bill does not propose a definition of ‘net positive’ be inserted … but the term is generally understood as meaning that the environment is being repaired and regenerated, rather than the current approach … of ‘no net loss’.”

The UK’s biodiversity net gain scheme for offsetting developer impacts has required developers plan to improve biodiversity by 10% using a statutory metric since February.

Several initiatives have been launched to define what ‘nature positive’ is in various contexts, as business, government, and civil society have struggled so far to align on its meaning.

In May, the Nature Positive Initiative partnered with consultants EY and The Biodiversity Consultancy to establish metrics tailored to ‘nature positive’ claims.

The partnership launch came after nearly 30 organisations banded together under the Nature Positive Initiative in September, seeking to better define the term.

By Thomas Cox – t.cox@carbon-pulse.com

*Read Carbon Pulse’s article on the government’s commitments to reforms, published last month*