To whom it may concern,

Nature Conservation Bill 2013, exposure draft

I am writing to provide comment on the Nature Conservation Bill 2013, exposure draft.

The Office of the Commissioner for Sustainability and the Environment has four main objectives; investigation and resolution, monitoring and reporting, engagement and advocacy, and capability. The legislative role of the Office includes the encouragement of decision-making that facilitates ecologically sustainable development and the encouragement of sound environmental practices and procedures to be adopted by the Territory and Territory authorities as a basis for ecologically sustainable development.

These comments address in part some of the issues raised in the exposure draft, however, it also includes information garnered through undertaking complaints, investigations and strategic environmental reporting across the ACT which is pertinent to nature conservation and biodiversity matters including offsets regimes.

Key message

Both within the ACT, and as part of the wider region, the need to protect and enhance our biodiversity is made even more pressing by its increased vulnerability to climate change. 

Budgetary commitments are crucial to ensure the full and effective implementation of this Bill. Sufficient resources will need to be allocated for the research, monitoring, and reporting components of the Bill, coupled with ongoing support and capacity building of the conservation officers to deliver effective compliance and enforcement. The Bill should be implemented in a manner which demonstrably fulfils its objects and achieves net conservation gains.

General Comments:

The Nature Conservation Act 1980, together with the requirements of the Environment Protection and Biodiversity Conservation Act 1999 (Commonwealth) provides the ACT’s key biodiversity legislative framework. Currently the Commonwealth policy on biodiversity offsets supplements the legislation. Provisions within the Planning and Development Act 2007 and the Tree Protection Act 2005 also have significant impact on the management and protection of nature conservation within the ACT.

The NCA is an older piece of legislation, 33 years since its implementation, with many amendments taking place on a somewhat “ad hoc” basis. The part dealing with Offences and Penalties was substantially updates in 2005. This was triggered by Transgrid’s excessive clearing in Namadgai NP.

This current review has taken over nine years, and is delivered to the community as a new Bill, the Nature Conservation Bill 2013, rather than further amendments to the 1980 Act.

In thIs nine year period a range of consultancies, reports, policies and strategies have been delivered as part of this process. With 413 provisions, two schedules, (reviewable decisions and consequential amendments that include 14 pieces of primary and secondary legislation) the Bill is a substantial one. It is envisaged that the writers of many submissions have found it a challenge analysing the differences between the current Act and the new Bill without a marked up copy. In fact, I have been approached by certain stakeholders including community groups and environmental advocates, who have found providing considered and in depth comment on this exposure draft a challenge, given the 6 week consultation time frame.

Key issues

Offsets

In the 2009 report on the ACT Lowland Native Grassland Investigation the previous Commissioner Dr Cooper recommended that: “As part of the current review of the Nature Conservation Act 1980 (ACT), ensure that lowland native grassland, in particular Natural Temperate Grassland, ecosystems are protected by innovative mechanisms such as conservation leases, voluntary agreements, bio-banking and offsets…” 

I too recognise these mechanisms; however see the use of offsets for the purposes of biodiversity conservation as a tool of last resort. A key part of the Bill that remains missing is an explicit ACT biodiversity offset component.

Governance

The independence of the Conservator is key; it appears that previous discussions around the benefits of appointing an independent Conservator with demonstrated expertise in nature conservation has not been taken up. The Bill states that the role of the Conservator must be filled by “...a public servant...” It also states the role of the Conservator will be filled at the decision of the Director-General of the Environment and Sustainable Development Directorate (ESDD), who is also the head of the ACT Planning Authority.

I acknowledge that the scope and functions of the Conservator for Flora and Fauna has been enhanced, and includes a provision to develop and publish guidelines that articulate the processes that will inform Conservator decision making under the Act. The provision requiring the Conservator to monitor the state of nature conservation in the Act is important. Effective monitoring, as part of an adaptive management strategy is crucial.

The replacement of the Flora and Fauna Committee with the Scientific Committee,[1] both expert and independent is important. Their enhanced role includes providing scientific advice to both the Conservator and the Minister.

As stated in the Government response to the Tree Investigation, “The Curator’s role should focus on street trees and trees on leased land. The Conservator’s role should not be diminished with regard to Greenfield planning, including the retention of current powers with respect to habitat values...”

The consequential amendments as proposed will establish a Tree Curator under the Tree Protection Act 2005 taking over the role of the Conservator with regard to urban trees that are either regulated or registered under the Tree Protection Act 2005 and the Conservator will retain functions with regard to the provision of advice over trees on unleased land and overriding advice with regard to registered trees on unleased land, it is understood that this will still include Greenfield sites.

It will be important to articulate the roles of the Conservator, the Tree Curator and the Chief Planning Executive in managing trees across the ACT landscape.

Monitoring and Reporting by the Conservator and Curator:

Our Investigation into the Canberra Nature Park (nature reserves); Molonglo River Corridor (nature reserves); and Googong Foreshore was delivered in October 2011 with 29 recommendations. Twelve of these being ‘High Priority’, that is likely to have both immediate and long term effects and provide significant advantages in terms of strengthening community awareness and involvement ,improving conditions and the resilience of our nature reserves, better direct and inform the management of nature reserves and strengthen the management framework.

Connectivity was identified as an issue to be addressed in public consultation for the Review of the Nature Conservation Act 1980...” The previous Commissioner had recommended that the Conservators 10 year reporting schedule is based around data which relates to the whole of the ACT Environment, rather than on a case by case development basis. I recommend that data collection which relates to ACT’s ecological connectivity and environment as a whole be conducted. This baseline data will enable decisions to be made which reflect the needs of our environment. Furthermore, having a factual and data-based background to the decision making process would also form an important basis for an adaptative management framework, as well enabling the Conservator to meet the transparency guidelines for the ACT Government. Inclusion of these within the Bill is therefore welcomed.

Compliance, Offences and Penalties

Recommendations from previous Commissioner Complaints and Investigation reports included mending the Nature Conservation Act 1980 to: improve enforcement options; increase penalties; include powers to ensure historical encroachments onto nature reserves are removed at an encroacher’s or user’s expense; and include relevant climate change and connectivity matters.

This Nature Conservation Bill 2013 provides capacity to seek financial assurance, in a similar fashion to the requirement under the EPA as a condition of an environmental authorisation. It is uncertain if this power to take a “bond” and hold it as security for environmental damage and clean up, has been used to date. I support the explicit inclusion of financial assurances to improve effective enforcement.

Again, similar to the Environment Protection Act 1997 section 157 additional court orders are also an important compliance tool, if a person is found guilty of an offence then the court can make a range of additional court orders including that the person take specified action to remedy or mitigate the environmental harm and if appropriate specified action to prevent further environmental harm, or carry out a specified project for restoration or enhancement of the environment in a public place or for the public benefit, another is an ‘adverse publicity order” which requires the convicted defendant to publicise the offence and its consequences, these are important and effective tools especially in changing behaviour and consideration should be given to their inclusion in the Bill.

In conclusion, I repeat my key message that sufficient resources should be allocated for the research, monitoring, compliance and reporting components of the Bill, coupled with ongoing support and capacity building of the conservation officers to deliver effective compliance and enforcement.

With increasing urbanisation and more people living in medium and high density housing, there is a growing risk that people may become alienated from the natural environment and less aware and concerned about protecting its values and the many services it provides.

It is important that resources are committed to maintaining and enhancing our biological resources and nature conservation for our children and our children’s children.

It is encouraging from a non anthropocentric viewpoint to note the evolution of rights for and on behalf of nature per se currently legislated for in New Zealand (rights of rivers) and in Ecuador (Pachamama rights of nature “mother earth”). This is something that I as Commissioner observe with interest.

Thank you for this opportunity to provide comment. Please contact my office on 6207 2626 if you would like to discuss this submission in more detail.

Yours sincerely,

Mr Robert Neil

Commissioner for Sustainability and the Environment

6 January 2014