Rethinking Biodiversity Conservation: Embracing a Nature-Positive Approach

Globally, we are seeing a rapid change in societal expectations to biodiversity, with a strong movement to protect nature and reverse biodiversity loss. As a result of these changing expectations, we have seen the emergence of the nature positive movement, and globally Governments are now aligning policy with nature positive.

Last week, the NSW Government released the Independent Review of the Biodiversity Conservation Act. The Review found that we continue to see a loss of biodiversity and that the impacts on biodiversity within NSW have increased.

Clearing of native vegetation continues to increase and presents a significant risk to biodiversity. In the four years between 2018 and 2021 over 379,000 hectares of native vegetation was cleared, with 83% of this agricultural clearing. Over this period, clearing rates of native woody vegetation increased by a third compared to 2009-2017.
Feral weed and pest species are increasing and competing with native Australian animals. More than 650 pest animal species have been introduced to Australia, and feral cats and foxes kill an estimated 7 million native animals every day in Australia.
The effects of climate change are being felt. In the 2019-2020 bushfires 5 million hectares of land was burnt.

The Review found that, though well-intentioned, the Act is not achieving its objectives and, in its current form, is not capable of doing so. Given this context, the Report sets out bold ambitions for a review of the Act, recommending a shift in focus to achieve nature positive outcomes. The review notes this will pose significant challenges for the Government in balancing priorities, as well as a substantial change in mindset, policy and program design, and dedicated resourcing.

Key recommendations of the review are outlined below.

In line with global frameworks, the review recommends a move to nature positive. This should include a standard of net gain (c.f. no net loss). This focus on nature positive/net gain should be incorporated into the Biodiversity Offsets Scheme (BOS), with a recommendation for clearing to result in a net gain (e.g., 120% of calculated loss).
Whilst the Act places strong emphasis on the mitigation hierarchy, the Panel recommends further strengthening requirements to avoid and minimise impacts by requiring proponents to clearly and genuinely demonstrate measures to avoid and minimise impacts and for the development of clear guidance on the issue.
The Act should incorporate a more strategic approach to land use planning, compared with the current focus on threatened entities. This can be achieved, in part, through requiring Biodiversity Certification when land is rezoned.
The Review recommends that some activities not currently subject to the operation of the BOS be included. This includes the application of the BOS to activities assessed under Part 5 of the Environmental Planning and Assessment Act 1979 (EP&A Act), such as works by public authorities for water, power, and other infrastructure. However, the Panel did not go as far as recommending the scheme be applied to all clearing associated with agriculture.
The review acknowledges the burden the BOS can be for small local developments and makes recommendations for reducing this burden without compromising the objectives. The Panel recommends that the Department explore ways to adjust (and simplify) the thresholds for entry into the scheme, including removing the test of significance due to inconsistent regulation and application. The Panel also recommends consideration of discretionary powers to switch off the BOS in exceptional circumstances, but at the beginning of the process, not at the end.
The review acknowledges that the option for payment into the Biodiversity Conservation Fund (BCF) may be undermining the development of the credit market. Whilst recommending continued investment in the credit supply fund, the review also recommends that the rules are amended to require proponents to take all reasonable steps to find like-for-like credits before making payment into the BCF. Further, for some credit types, payment into the BCF should not be permitted.
There are currently over 520 different types of ecosystem credits and 1,000 species credit. Unlike carbon, where there is a single tradeable entity, biodiversity is complex. Nonetheless, the review recommends simplification of the like-for-like credit trading rules, without compromising biodiversity outcomes.
To ensure nature positive objectives are achieved, the review recommends a greater focus on ecosystem restoration and connectivity in the BOS. The review suggests that this can be achieved by increased credit yield for restoration of degraded ecosystems or for the protection and conservation of land in strategic biodiversity corridors.
The review recommends an increased focus in private investment in natural capital markets by overcoming barriers and removing obstacles. This could include removing obstacles to landholders establishing multiple credit types on the same land (e.g., biodiversity credits and Australian Carbon Credit Units (ACCUs)).

Many of the recommendations from the Panel aligns with the advisory work EMM has prepared for industry groups and the NSW Government. This is encouraging to see.

However, the independent review does not go as far as to recommend the Act is applied to one of the largest sectors impacting on biodiversity – agriculture. As outlined at the start of this article, agriculture accounts of 83% of the clearing observed between 2018 and 2021. Whilst the sector with the largest impact on biodiversity remains largely outside the operation of the Act we will continue to see significant loss of biodiversity across NSW.

Further, there is a missed opportunity in the area of advanced offsets. Research demonstrates that the sooner an improvement in biodiversity at an offset area occurs when compared to a loss elsewhere, the better outcomes are for biodiversity. The current BOS does not permit advanced offsets – that is encouraging that gains occur before the loss. The rewarding of advanced offsets would not only help improve overall outcomes for biodiversity across NSW but would help improve supply issues currently occurring and outlined in the independent review.

The NSW Government will take this independent review under consideration as they continue the mandated 5-year review of the Act. If adopted, there will be a continued shift in the focus on biodiversity in line with global movements, with a new nature positive approach to biodiversity in NSW likely to result in a need for proponents to undertake early and strategic consideration of biodiversity in their projects. Key questions proponents should understand early include:

What are the biodiversity values across my project area?
How can I incorporate these values into design and demonstrate, from an early stage, how my project has avoided and minimised impacts? This should include consideration of location and siting.
How am I considering my offset requirements and how will I meet them? Are there opportunities to contribute to private land conservation in a strategic manner, protecting key biodiversity corridors or improving degraded land?
Can I achieve co-benefits from my offsets, like carbon credits, engagement with Aboriginal communities and organisations, or strategic conservation, which may make them more viable?
How can this assist in developing the social licence for the project?

As key practitioners operating under the Act and the BOS, EMM’s Ecology team welcome the review of the Act and look forward to the consideration of this independent review by the NSW Government.