<< back to archive index Speeches Regarding Bills Date: 24th October 2006 Subject: Speech by The Hon. Dr ARTHUR CHESTERFIELD-EVANS, on theThreatened Species Conservation (Bio-Diversity Banking Bill 2006) From Hansard The Hon. Dr ARTHUR CHESTERFIELD-EVANS: " The Minister, in his second reading speech on 8 June, said there were originally 274,000 hectares of Cumberland Plain woodland; that only 13 per cent, or 35,620 hectares, of this remains, with 2,500 remnants, of which 1,500 are smaller than 4 hectares. Only 80 remnants are large enough to be sustainable in the long run for the majority of fauna and flora. When it comes to development, the important question is: What do you do with these little remnants? And will they all be wiped out, one by one, by various development applications? The argument for concentrating biodiversity conservation efforts on the large remnants is important, but even without conserving the complete range of biodiversity, small remnants can and do preserve particular species. These may not be the most spectacular ones, but they may be lost if their particular local habitat is not preserved. It is even more important to emphasise that the smaller remnants also have social values other than biodiversity. Any changes in regulations must go together with strengthening the urban planning regulations to preserve the urban and social benefits of open spaces for recreation, air purification, playgrounds et cetera. Many diverse interest groups were consulted on the drafting of the bill. They included developers, infrastructure providers, miners, councils, lawyers, economists, environmental consultants, local government and catchment managers. But town planners were not included. The details of the scheme, which we are still waiting for, will be developed with stakeholders and participants. This means that the detail will be in the regulations and will not necessarily be subject to proper public scrutiny. The assessment does not require the preservation of any particular species but concentrates on the biodiversity values of any ecological community. The definition of "biodiversity value" includes the composition, structure and function of ecosystems, and includes, but is not limited to, threatened species, populations and ecological communities, and their habitats. Biodiversity values do not extend to fish or marine vegetation, except to those that are considered animals or plants under section 5A of the Environmental Planning and Assessment Act. Payments to the biocredit owner are guaranteed for a defined minimum period. The biocredit is attached to the title of the land. Is it a permanent asset, or is it a diminishing one? I would like an answer to that question. Developers will use a biobanking assessment methodology to establish the number of credits required to offset the development. They have had to obtain a biobanking statement from the Director General of the Department of Environment and Conservation. The development has to be assessed for endangered species according to parts 4 and 5 of the Environmental Planning and Assessment Act 1979. The following points seem to be raised by the explanatory notes to the amendments. Under division 1, biobanking assessment methodology considers first, management action that will improve biodiversity; second, different classes of biodiversity credits; third, circumstances of biodiversity being maintained or improved; and, fourth, impacts that cannot be offset by biodiversity credits. The question is: Who will determine the relative credits to be assigned to particular biological entities, for example, the golden bell frog, or an orchid that flowers every few years, or a micro-organism that is essential for the growth of gum trees? These questions are difficult to answer. Indeed, some of the biological entities may not even be known so that they can be considered. Division 2 relates to biobanking agreements between the Minister and landowners. These create biodiversity credits and bind the landowner to take, or desist from, certain actions on the land. They are registered on the land title and can be transferred with it in perpetuity. They can be varied only if that would have no negative impact. Management actions under biobanking agreements are exempt from the Environmental Protection and Assessment Act 1979, and biobanking agreements can be enforced by action before the Land and Environment Court. Under division 3, biodiversity credits are created by the director general on application of the owner. In division 4, trading in biodiversity credits is subject to regulations yet to be developed. Part of the price paid for biodiversity credits is to be paid into a Biobanking Trust Fund, which is dealt with under division 7. Under division 5, biodiversity credits may be cancelled by the director general, either for a wrongdoing of the holder, or on the request of the holder. Biodiversity credits can be suspended by the director general for up to two months. One must ask: What is the purpose of this? Can the owner do whatever he or she likes during the suspension of the biodiversity credits? Biodiversity credits can be retired when used as an offset, either voluntarily or by direction. This is somewhat confusing. When the biocredit is sold to offset somebody else's destruction, do the payments from the trust fund continue? If they do not, the work required to maintain biodiversity is unlikely to be continued. When the owner of a biodiversity credit requests cancellation of it, does he or she have to pay for it? And do the payments to the original owner continue? When a property for which a biodiversity credit is cancelled or sold, can the new owner establish a new credit by entering into a contract with the director general? This would be a magic pudding for making money out of dealing in biodiversity credits. I note that Graham Richardson was the first, according to the Sydney Morning Herald of 8 August 2006, to set up as a dealer in biodiversity credits. Far be it for this to make one suspicious. The developer Hardie Holdings has bought bushland areas in anticipation of creating biodiversity credits. Division 6 deals with biobanking statements. Applications must include assessment of impact on biodiversity and a description of the biodiversity credits to be used. This requires the developer to make a biodiversity assessment, and thus does not represent a simplification of the development approval process. The developer must demonstrate that all cost-effective measures are being, or will be, carried out to minimise the impact. The director general can issue a biobanking statement if the development maintains or improves biodiversity. The Minister can direct the director general to issue a biobanking statement for developments that do not improve or maintain biodiversity, if the development is under part 3A of the Environmental Planning and Assessment Act 1979. Biobanking can be modified and revoked, and biobanking statements are valid for two years. Part 3 of the Environmental Planning and Assessment Act concerns major infrastructure and other projects that are approved by the Minister. This provision gives the Minister complete discretion. In division 7, which deals with the Biobanking Trust Fund, the fund is sourced from part of the first sale or transfer of biodiversity credits. The biobank site owner is paid from the fund for the maintenance of biodiversity. The question is: How long does that continue? Does it continue to the original owner after credits are sold or cancelled by the new owner? Are the scheme participants, including brokers, to pay contributions towards fund administration? Division 8 deals with the register for biobanking sites, biobanking credits and biobanking statements. Division 9 deals with appeals to the Land and Environment Court, exempts the Minister, director general and departmental officers from liability, and allows the making of regulations. The reason for the introduction of this bill is to facilitate the development of small pieces of land in a high-value area that so far have been saved from developers. One suspects that the main motivation is to please developers."

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