NSW Government’s Biodiversity Reform Package - Implications for Mining

The NSW Government has released a proposed reforms to the State’s biodiversity legislation.  It proposes to bring together the Native Vegetation Act, Threatened Species Conservation Act, parts of the National Parks and Wildlife Act into one Biodiversity Conservation Act (along with some amendments to the Local Land Services Act.  The regulations are not on exhibition.


The reforms bring about very significant changes for rural landholders.  The changes for State Significant Development are less momentous as the scheme for offsetting for SSD largely reflects the Major Projects Offsets Policy (MPOP) that was introduced on 2014.


The NSWMC Biodiversity Working Group is preparing a submission which is due on 28 June 2016.



The Government are saying that they want to introduce the legislation this year.  There are a number of products that make up the reform package that require the legislation to be created and will a statutory consultation period, such as the Biodiversity Assessment Methodology (BAM).  This will add time to the reforms being fully operational.


Until the legislation is introduced the MPOP and Framework for Biodiversity Assessment (FBA) will continue to apply to State Significant Developments (SSD).


State Significant Development Approvals and Offsetting 

Major elements of reform to assessment and offsetting for SSD projects are set out below.


Assessment Process



Offsets Payment Calculator

The offsets payment calculator will be a much more complex model than previously discussed.  It will provide a specific price for each individual credit type. This is different from the model which is being proposed for the Upper Hunter Strategic assessment which proposes only two prices, one for ecosystem credits and one for species credits species.


The model to calculate the price considers both the traded price of credits (where enough data is available) as well as a costs model (considers the management cost and the opportunity cost of the land).


The price will include a 7% administration fee which is not a surprise.  It will also include a “risk loading” to mitigate against the risk that the price will not be enough to meet the actual costs incurred by the trust.  It is difficult to see how this is justified given that the data that the price is based (for management costs) on is already discounted and the discount rate should reflect risk.


Variation rules

Where it can be demonstrated that a like for like offset cannot be found the following variation rules apply::


Where a person can demonstrate that they have not been able to find a ‘like for like’ offset a varied offset may be used. It is proposed that the variation rules allow:

impacts on vegetation must be offset with vegetation that is from the same vegetation formation (not constrained by locality) and is:

Listing of species

The listing process will be largely unchanged with the NSW Scientific Committee continuing to assess and determine listing.

The following changes are proposed:

There may be a future change to the assessment method as the States, Territories and Commonwealth have produced a common assessment method.