Biodiversity Conservation Regulation

June 30, 2017

Biodiversity Conservation Regulation and supporting documents
The NSW Minerals Council (NSWMC) has made a submission on the draft Biodiversity Conservation Regulation and supporting documents which were released for public consultation until 21 June 2017.  The Biodiversity Conservation Act 2016 is to due to commence on 25 August 2017.
The NSW Biodiversity Conservation Reforms should be a once in a generation opportunity to implement a robust reform, bringing an end to the constant churn of methodologies and approaches to the assessment of offsetting of the impacts on biodiversity.
Instead the reforms are being rushed through, without all of the completed products being available for review. It is unacceptable that the Government has allowed these products, which are the last step in a long reform process to be placed on public exhibition without being completed. Incomplete documents include:
  • Ancillary Offset Rules - this document is not available. The biodiversity credits that can be generated by rehabilitation of mine sites will be driven by this product. The Office of Environment and Heritage has not commenced drafting that section of the Ancillary Offset Rules
  • Biodiversity Conservation Regulation 2016 - The savings and transitional provisions are not included and it is not clear whether these provisions will be provided for consultation. The information provided to date about the proposed provisions does not include any information about the legal mechanism for the Upper Hunter Strategic Assessment (UHSA). 
  • Biodiversity Assessment Method (BAM) - data which underpins the BAM is incomplete. Some key components that will drive offsets are missing.
Key issues
NSWMC have received legal, ecological and economic advice on the consultation products. The following are key issues:
  • High offset ratios - An analysis of case studies using real mining projects has shown that the BAM will drive consistently high offset ratios that are not reasonable and will be damaging to development in NSW.
  • The Offsets Fund Calculator will fail - Testing has been undertaken on the calculator. Despite revisions to the calculator, it continues to be modelled on only the BioBanking trades, driving high credit prices. These prices are much higher than the cost that mining proponents are currently paying by securing and managing offsets. It will not be a competitive viable alternative for the mining industry and may have impacts on other industries and could significantly increases the costs of both major projects and local development, and as a result drive up the price of housing.  In order to be successful the calculator must generate appropriate prices from the beginning. 
  • Rules to value mine site rehabilitation are not provided - Capacity for ecological mine site rehabilitation to generate biodiversity credits is unknown.
  • Biodiversity conservation actions will not be funded  - The reforms allows for measures to meet an offset obligation in addition to securing land. However these measures will be valued using the Offsets Fund Calculator, giving no incentive to undertake BCAs, and making these measures uncompetitive and unlikely to be funded.
  • Serious and irreversible impacts will be at the discretion of the consent authority - While the Government will provide guidance about what will be a “serious and irreversible” impact, that guidance will not be exhaustive and the consent authority will be able to apply the principles set out in the Regulation to determine that there are serious and irreversible impacts. There is no guidance about what will amount to additional measures. 
  • The Government will double dip on financial assurance for mine owned offsets – Mine offsets will unnecessarily require both a biodiversity bond and payment of all management costs upfront.
  • It is not clear if the variation rules apply to EPBC Act listed entities - If the variation rules do not apply this could result in the Commonwealth seeking additional assessment.
There is nothing to be gained by rushing this reform to meet arbitrary deadlines, and the Government should take the rest of 2017 to ensure that the products are as robust as possible before commencing the operation of the Biodiversity Conservation Act 2016.  Additional time should be taken for all of the products to be completed and exhibited and for comments to be received and properly considered. The Government needs to undertake a proper analysis of the costs and benefits of key components of the reforms and to reassess the approach to the offsets fund calculator with a view to ensuring it provides a viable option for offsetting.
To read our submission click here

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