On 17 July 2024, the NSW Government released its NSW Plan for Nature, in response to Ken Henry AC's statutory reviews of the Biodiversity Conservation Act 2016 (BC Act) and the native vegetation provisions of the Local Land Services Act 2013 (LLS Act).
The Plan relates to three key election commitments: to reform the biodiversity offsets scheme, to stop excess land clearing and to strengthen environmental protections. The Plan has a renewed focus on legislation becoming “nature positive” ie. repairing and regenerating the environment and moving away from traditional sustainability approaches, which sought only to minimise negative impacts by slowing or stabilising the rate of biodiversity loss.
Creating a “nature positive architecture” for NSW
In Part A of the Plan, the NSW Government agrees that the BC Act is not meeting its primary purpose, which is to maintain a healthy and resilient environment, now and into the future. Substantial amendments to the BC Act will be required to put NSW on a nature positive path. The NSW Government proposes to retain the concept of Ecologically Sustainable Development (ESD) but modernise it as a key sustainability objective across relevant NSW legislation. To address the issue of primacy raised in the Henry review, the NSW Government is committed to identifying opportunities to improve biodiversity outcomes under other relevant laws but is not proposing that the BC Act take primacy over all other law.
While the Plan sets out the immediate priorities and directions of the NSW Government, they have recognised as just the starting point of concerted action, reform and investment for environmental protection in NSW. An independent review by the Natural Resources Commission will be undertaken in 2025 to provide Government with additional advice and options to further protect and restore biodiversity in regional landscapes and enhance value and support for landholders. The Plan outlines the following six key pillars of reform.
Pillar 1: Nature Positive Strategy
A “NSW Nature Strategy” will be prepared, published and enshrined in the BC Act, which will guide public and private investment to protect, connect and restore ecosystems and landscapes across the State. The strategy will set goals and targets for conservation and restoration including landscape restoration, species recovery and addressing threats to nature and articulate NSW contributions towards national targets and commitments.
Pillar 2: Nature Positive Spatial Tools
Areas of high biodiversity value will be identified and mapped based on defined criteria and robust shared data, to aid decision making bodies on areas where biodiversity impacts should be avoided. The Government is not going so far as a “no-go” zone map but will incorporate details into strategic planning processes that will inform land-use and development decision-making.
Pillar 3: Nature Positive Development
Numerous reforms are being proposed to balance the completing needs of development and improving biodiversity outcomes. For example, the NSW Government state they will consider whether a new offsets mechanism is required specifically to meet the urgency of the Electricity Infrastructure Roadmap while closing the door for mining proponents meet a credit obligation through a commitment to ecological mine site rehabilitation.
The BC Act will be amended to require 'net positive' outcomes, surpassing the "no net loss" standard. The BC Act will also include new powers to allow directions to be issued to accredited assessors to improve the quality and consistency of biodiversity assessment reports. A new statutory standard will be introduced, requiring proponents to demonstrate how they have genuinely avoided and minimised impacts to biodiversity, with a focus on avoiding impacts on entities at risk of a serious and irreversible impact.
The NSW Government will continue to support a functioning biodiversity credit market and invest in the Biodiversity Credits Supply Fund. They will also consider practical changes to geographic constraints for trading ecosystem credits and categorisation of offset trading groups, but only where this will not compromise biodiversity outcomes.
The Biodiversity Offsets Scheme will have new statutory registers to track approved offset obligations and when they are met, and provide transparency for serious and irreversible impact decisions. Scheme entry thresholds will exclude small, low-impact developments under the State Environmental Planning Policy (Biodiversity and Conservation) 2021.
Digital systems will be introduced to improve the collection, release and integration of data including via the NSW Planning Portal.
Pillar 4: Species and Ecosystem Recovery
A coordinated approach with the NSW Threatened Species Scientific Committee to taken to commit to the objective of no new extinctions and restoration of threatened species and ecosystems.
Private land conservation initiatives will also be amended to provide stronger conservation agreements that protect sites of high biodiversity value from incompatible land uses, and better recognise and protect Aboriginal cultural values and traditional ecological knowledge.
Pillar 5: Data Informed Decision Making
Securing comprehensive, scientifically robust and up-to-date biodiversity data and reporting will be undertaken to improve forecasting of future biodiversity condition based on projected climate change, threats and pressures, and proposed actions and interventions.
A natural capital accounting framework will also be developed to provide aggregated data on stocks and flows of natural capital, which may inform government decision-making, support nature-based markets and monitor outcomes over time.
Pillar 6: Leveraging Private Investment
High-quality natural capital programs will be implemented to modernise incentives for landholders and reduce investment barriers. Existing programs like Landcare and the Biodiversity Conservation Trust will be advanced, along with new incentives.
Regional and property-scale natural capital accounting and investment frameworks will be piloted to monitor environmental conditions and guide future investments. These changes will encourage private entities to improve their environmental credentials and reduce financial risk.
The NSW Government will work with the Commonwealth Government on the national Nature Repair Market and carbon market, aligning NSW programs with national schemes.
Approval pathways for major natural capital investments, such as blue carbon and landscape restoration, will be reconsidered to streamline and fast-track restoration efforts.
Part B of the Plan also includes aims to improve the LLS Act by better incentivising landholders to protect, enhance, and restore native vegetation and supported in accessing emerging natural capital markets. To do this, the Plan:
- focuses on better managing environmental risks, reducing unallocated clearing, supporting and incentivising landholders to value and protect native vegetation, and improving transparency and awareness of the Land Management Framework; and
- makes amendments to the Land Management (Native Vegetation) Code 2018 to:
- enhance environmental protections by reducing areas approved for clearing and increasing protected native vegetation through set-asides,
- reinstating caps on land clearing, and
- addressing unallocated clearing by finalising the Native Vegetation Regulatory Map and improving regulation of ground cover-dominant landscapes.
Partnership with Aboriginal Communities
The BC Act Review and the LLS Act Review highlighted the importance of consulting and supporting Aboriginal people to deliver effective and inclusive environmental outcomes. This recommendation has been reflected in the Plan, through a commitment to:
- explore options to address biodiversity-related constraints and opportunities for land returned under the NSW Aboriginal Land Rights Act 1983, and
- undertake tailored engagement with Aboriginal organisations, communities and people to ensure their views, knowledge, values and interests underpin the development and implementation of the proposed government actions. Whilst details of the tailored engagement have not been released, it is anticipated to commence in the second half of 2024.
Disclosing nature-related risks and opportunities
Interestingly, the Plan commits to developing methods to identify and disclose nature-related risks and impacts within NSW Government including piloting a new biodiversity reporting framework to enable agency impacts to be transparently reported and identification any unrealised conservation opportunities across portfolios. Such sentiments are similar to the approach adopted in the voluntary Taskforce for Nature-Related Financial Disclosures which is intended to provide a common framework for companies to quantify business impacts of biodiversity loss but also opportunities.