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Environment and Communications References Committee
20/08/2019
Australia's faunal extinction crisis

GAMBIAN, Mr Chris, Chief Executive Officer, Nature Conservation Council of New South Wales

GOUGH, Mr Jack, Policy and Research Coordinator, Nature Conservation Council of New South Wales

Committee met at 08:31

CHAIR ( Senator Rice ): I declare open this hearing of the Senate Environment and Communications References Committee's inquiry into Australia's faunal extinction crisis. I begin by acknowledging the traditional owners of the land—the Gadigal people of the Eora nation—on which we meet and pay our respects to elders past, present and emerging. On behalf of the committee I welcome everybody here today. This is a public hearing and a Hansard transcript of the proceedings is being made. The hearing is also being broadcast via the Australian Parliament House website. Before the committee starts taking evidence I remind all witnesses that in giving evidence to the committee they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence to a committee, and such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to a committee. The committee generally prefers evidence to be given in public but, under the Senate's resolutions, witnesses have the right to request to be heard in private session. If a witness objects to answering a question, the witness should state the ground on which the objection is taken, and the committee will determine whether it will insist on an answer, having regard to the ground which is claimed. If the committee determines to insist on an answer, a witness may request that the answer be given in camera. Such a request may of course also be made at any other time.

Welcome. I understand that information on parliamentary privilege and the protection of witnesses and evidence has been provided to you. Thank you very much for your comprehensive submission. I now invite you to make a short opening statement, and at the end of your remarks I'll invite members of the committee to ask you some questions.

Mr Gambian : Thanks very much for the opportunity to give evidence in this incredibly important inquiry. Australia is facing a faunal extinction crisis. We are not alone in facing this challenge, with a recent UN report finding that nearly a million species globally face extinction if we do not fundamentally change our relationship with the natural world. Australia is one of the world's biodiversity hotspots. We are an island continent—geographically isolated, tectonically stable and climatically diverse. About 83 per cent of our mammals, 89 per cent of our reptiles, 90 per cent of our fish and insects and 93 per cent of our amphibians are found nowhere else on Earth. We have a responsibility to protect this rich natural legacy.

In our submission to the committee in September last year we noted that the 2015 New South Wales state of the environment report identified 999 flora and faunal species facing extinction in New South Wales. I'm sad to report that since that time a further 42 species have been identified is threatened in New South Wales. The list of species on the brink in New South Wales includes 60 per cent of our terrestrial mammals, including koalas; 35 per cent of our amphibians; and 31 per cent of our bird species. Habitat destruction and degradation, invasive species and climate change are all having a devastating impact on biodiversity, and it's clear that both state and federal laws are not providing adequate protection for our unique native wildlife. Addressing the extinction crisis will require leadership, significant funding, improved institutional and legal protections, and the combined effort of millions of everyday Australians. It is an issue that must be beyond politics.

The Nature Conservation Council of New South Wales is the state's peak environment organisation. We represent over 150 environmental groups and thousands of supporters across New South Wales. We strongly support significantly increased funding for conservation and habitat restoration. We also add our voice to calls from numerous groups around the country for the establishment of new independent federal institutions to guide and support our efforts to conserve native fauna and their habitats and set science based national standards. We need a national sustainability commission to develop enforceable national regional threat abatement and species-level conservation plans and a national environment protection agency with adequate authority to check compliance and enforce environmental laws. We also support calls for serious action to rapidly reduce our emissions to play our part in addressing climate change. Hopefully, today we can provide the committee with some useful insights into the current situation in New South Wales and issues which we regard as critical for federal involvement and intervention.

I'd like to touch briefly on the situation as regards land clearing in New South Wales. Since European settlement almost 40 per cent of native vegetation in New South Wales has been cleared and what's left is highly degraded. Only nine per cent is in good condition. The 2018 New South Wales state of the environment report found that clearing of native vegetation and the destruction of habitat that is associated with it has been identified as the single greatest threat to biodiversity in New South Wales. In our submission we noted that, although the most recent Commonwealth state of the environment report in 2016 found land-clearing rates in New South Wales were broadly stable, we anticipated the trend to increase after the passage of new laws to allow increased agricultural clearing. Sadly, our predictions have come true. In fact the situation is worse than we expected.

The New South Wales Office of Environment and Heritage predicted that the new laws would see agricultural clearing jump to about 15,000 hectares per annum by 2017-18 up from an average of 9,000 hectares in recent years, but the latest data shows that in 2017-18 a massive 27,100 hectares of native vegetation was cleared for agriculture—almost double the predicted rate. In the 17 months since the new clearing code was introduced in March 2018, landholders have given notice of 51,000 hectares of clearing and the local land services approved further 288,000 hectares of clearing for agriculture. This is clearly an urgent threat and a clear case for land clearing to be regulated under Commonwealth laws. Where the states are failing to protect our collective heritage, the federal government must step up.

CHAIR: Mr Gough, do you have any comments to add?

Mr Gough : We have an ongoing inquiry in New South Wales into the koala, which is an iconic species that evokes a lot of passion within people and I think is also a flagship species for us. The message that we conveyed to the New South Wales parliamentary committee, which I think applies here and to a lot of species, is that we can't save koalas and our fauna that are in decline unless we save trees—a pretty simple message but one that suggests we are undermining a lot of the other efforts we expend on saving species and on conservation. The New South Wales government, for example, has a program, Saving our Species, that is spending about $20 million per year on species threat abatement, but this gets undermined when we have laws and policies which allow significant clearing to take place and we have things like a native forest logging industry in New South Wales, which has a very small percentage of the overall industry and could be phased out to a purely plantation industry, but we let it go ahead despite the fact that it has numerous habitats which are directly associated with threatened species. For example, in the four year period from 2015 to 2018 a total of 2,546 areas were identified by the New South Wales Office of Environment and Heritage as critical koala habitats or hubs that were cleared in that time.

This can change. The message that we also gave to the committee, which I think is relevant here, is that the Liberals and Nationals have a very proud record of conservation. In New South Wales it was the Liberals and nationals who started the National Parks and Wildlife Service. It was the Liberals and Nationals who started the Environment Protection Authority. There is no reason that it can't be the Liberal and Nationals who have the record of starting a federal environment protection authority, and we would very much encourage the current government to do so, and this committee to recommend that they do so.

CHAIR: I will start with the mind-boggling statistics that you just quoted, Mr Gambian, about the increase in land clearing in New South Wales. You commented that land clearing is recognised as the single greatest threat to the protection of biodiversity. Could you talk us through what led to the change of laws in New South Wales. You talked, Mr Gough, about Liberals and Nationals potentially being able to lead, as they have led in the past, yet we have a government now that seems to be quite determined to loosen controls to enable environmentally devastating land clearing to go on.

Mr Gambian : I'll let Mr Gough go into some of the finer detail but I think there is a story to tell here. There's a risk that this is seen as a partisan issue or a battle between conservation and farms, which, broadly, it is not. The Carr government introduced biodiversity laws that would protect a lot of native bush. Those laws stayed in place pretty happily for quite a long time. It is a small minority in the farming sector, generally big agribusiness, that has advocated for a real watering-down of the land-clearing laws. Overwhelmingly farmers in rural Australia accept the imperative and desirability of maintaining biodiversity. They care deeply about their land. They want to look after it. In many cases in some of our programs we work with those farmers. We're not talking about small mum-and-dad farmers who are the backbone both of rural and regional Australia and of our nation as a whole; we're talking about a small minority of very large businesses that see a short-term economic gain from clearing and fail to see the longer term both conservation and, I would argue, national interest in maintaining biodiversity.

CHAIR: Is there good information about where the clearing is going on and who is carrying it out?

Mr Gambian : I might refer to Mr Gough for some of the specific details. I know he has some of that to hand.

Mr Gough : We've had a lot of issues with accessing information around clearing. We know the information is available on I think a week-to-week basis. It will be well worth talking to the Humane Society later, because they've had a lot to do with some of the data around clearing. The amount of clearing is available on a very regular basis at a very small scale. The Office of Environment and Heritage has access to this data, but it's very difficult to access publicly. When we made our submission to the committee we had data only up to 2015-16 to provide you. Since then we've had a new environment minister in New South Wales, who has released two more years of data and has committed to release the 2018-19 data as soon as that is available. But they haven't agreed to have a more regular release, and they're only providing the data on woody vegetation clearing at a statewide scale. They do have the more localised data. There have been concerns expressed to us around ongoing prosecutions and the provision of that data, which we don't believe are reasonable; the public should be able to have a monitoring role in what is going on across the landscape given it is such a vast area. We do need citizen involvement in that process given the limited resources that the Office of Environment and Heritage has.

You asked where this came from. I think there was a philosophical idea of striking a grand bargain, that there would be money provided to farmers to protect land on the one hand and a reduction in some of the red tape around clearing land on the other. We have fundamental concerns about that given what we said earlier in our opening statement about the level of clearing that has already gone on and the level of degradation that has already gone on. But that was their philosophical position.

A similar grand bargain was struck in forestry. Under the New South Wales logging rules, there was going to be no reduction in wood supply and no reduction in environmental values. What we have found in both of those cases is that it has comprehensively favoured one side of the bargain and failed the side which is about environmental values, protecting biodiversity and protecting the landscape. That has been in part about a lack of funding associated with monitoring and enforcement; but there has also been a fundamental move away from prescriptive legislation which says that maintaining and improving biodiversity is fundamental to the way we should be managing the landscape. So in our submission we have encouraged that there should be a role under the EPBC Act and a federal involvement in land clearing—because the government in New South Wales is certainly failing, and I understand there have been similar failures in Queensland.

One thing that has also come out of that data around clearing is that 15,600 of the 27,000 hectares of clearing that occurred in 2017-18 is unexplained. This is clearing that is not authorised under the Local Land Services Act, the previous Native Vegetation Act or any other acts. It has been detected through satellite monitoring but not associated with any approval or exemption. This is very concerning for us. Chris pointed out in his opening statement that we have looked at the data. This has come out only very recently, and Chris provided it to the New South Wales inquiry on Friday last week. I think that is the first time it has been looked at—and we are providing it to you as well. Since the new native vegetation codes that were brought in in New South Wales, which essentially set the rules around clearing, there has been notification of 51,000 hectares of clearing in 17 months and 288,000 hectares of approvals. We don't know if that clearing has taken place. They are basically approvals that have a 15-year lifespan for someone to be able to clear under them. We are getting this data every few months, and it is going up very significantly. So we are also setting ourselves up with a huge backlog of approvals under this current regime, which could mean that, even if there are intervention and changes, some of this clearing will be going on for decades.

CHAIR: In the context of it being the single greatest threat to biodiversity.

Mr Gough : And that is what the New South Wales government have said.

CHAIR: Can I take you back to the unexplained clearing that has been identified. What compliance action is the New South Wales government proposing to take over that?

Mr Gough : The New South Wales government does have compliance levers around this. The concern we have is that they are not using those levers. There has been a lot of national attention given to some of the scandals that have gone on around illegal water take in the Darling River after a Four Corners report there. That illegal take was directly associated with a lack of compliance action and a lack of resourcing for the agencies responsible, but also a clear direction from government not to engage in that compliance and enforcement action. Since that has been exposed, the New South Wales government has done a really commendable job—there are a lot of issues going on in the Barwon-Darling; don't get me wrong—in terms of implementing the Matthews review into water, which was to do with compliance. A big part of that was setting up an independent natural resource access regulator that was well resourced, was given the confidence of government to undertake compliance activities and was given funding and the number of officers to engage. Something like that really needs to happen in this space. The New South Wales Auditor-General just put out a report recently into the implementation of land clearing reforms, which the government calls 'biodiversity reforms'—similar to the 'ecological thinning' we have been talking about in our national parks, a term that we contest. Essentially, there needs to be greater investment in compliance.

The other thing is that the New South Wales government has just decided that they are not going to pursue prosecutions under the old Native Vegetation Act after significant pressure from a small group of farmers in the north-west of New South Wales. As Chris said earlier, it is always just a small group. It is similar with the water story, and it is similar farmers. It is the same area, it is the same farmers, and they have a lot of power, a lot of influence and a lot of engagement. Yes, there are prosecutions, and these are areas that Matt Kean, the New South Wales environment minister, said—don't quote me, but I think he said there was on average 860 hectares of illegal clearing that they were looking at prosecuting. The exact number I will have to get for you. He said it in a radio interview on 2GB. They have done that, but one of the key things we are concerned about is that they are also moving to not enforce a rule which basically says that if you illegally clear an area you can't go and pay your fine and then use that area for cropping or livestock.

CHAIR: There is no requirement to revegetate it or—

Mr Gough : No. There is a provision for that, but they have just stated recently that they are not going to enforce that provision. And those landholders are essentially more concerned about that than the fines. They could have been facing million-dollar fines. What they are really concerned about is that because they have illegally cleared an area they now won't be able to use it going forward, which is reasonable.

Senator URQUHART: Is that 15,000 hectares all one area or is it spread across—

Mr Gough : This is the woody vegetation clearing data that comes out. We have been getting it two to three years after it is available. This is for 2017-18. We got that recently. As part of that data when it came out, they looked at agricultural crop pasture and thinning in 2017-18—which areas they could identify that were associated with an approval and which areas were not associated with an approval. They found that 15,600 of the 26,900 hectares—I don't know why there is a difference of 200—could not be associated with any approval or exemption.

Senator URQUHART: You talked earlier about statewide data being released and you said it is not broken down. So you are not able to identify where that is?

Mr Gough : It is broken down by local government area, but obviously a lot of the local government areas in regional areas are quite large. The areas it is mainly associated with are the north-west—the Moree area but also down around the Nyngan area. Something I am very concerned about—and I have expressed this to the New South Wales government—is that I think there is an emerging issue of clearing going on in the lower Murray and lower Darling area around Wentworth and Mildura that seems to be coming out in that data as well. I'm not quite sure why that has happened. I think there is a confluence of factors, one of them being that the New South Wales government has scrapped the Western Lands Act, which has been around since I think 1901. It said that 45 per cent of our state is far-west land—fragile land that needs to be managed collectively. There was a huge amount of overstocking in the late 1800s as part of their Native Vegetation Act. In bringing this all together, they just happened to scrap that act. That got rid of the Western Lands Commissioner, who used to have a big role in this. The other thing is that there seems to be a lot of conversion of leased land in that area to cropping land. And a lot of water licences are being traded downstream to that area, which is why a lot of the dairy farmers in Victoria are getting quite annoyed under the water market there. There seems to be a lot of clearing going on in the area. I am not quite clear why.

CHAIR: I would like you to reflect upon the interaction between federal laws and state laws. What is going on is happening under the state laws, but how effective or ineffective do you think the EPBC Act has been? What would you like to see in terms of beefing up federal laws, if necessary, to account for the weaknesses of the existing state laws?

Mr Gough : I'm not putting myself forward as an expert on the federal laws here. I guess we can say that there is a strong case that the New South Wales laws aren't working. In New South Wales we are certainly clearing at an increased rate and seeing deforestation at an alarming rate. We think the federal government has a responsibility to protect our Commonwealth, which is our natural heritage, and there should be a greater involvement of federal laws, especially with regard to clearing.

One thing we did point out in our submission is that the clearing of critically endangered communities and federally listed species requires EPBC Act approval. One of the concerns is that, in the liberalisation of land-clearing laws in New South Wales, there will potentially be a lot of clearing going on in areas where these species are facing extinction and are protected under federal laws. There is a reliance on the New South Wales government to find those instances. So that, for us, beefs up the reason for there being some sort of federal EPA to be able to engage with some of those particular issues. And certainly we support a stronger EPBC Act, but I'm not an expert in that area and I know you will be talking to some people who are.

Senator URQUHART: You talked about invasive species earlier. Can you give me a picture of the species we are talking about there. Obviously land clearing is a major issue, but there are the invasive species as well.

Mr Gough : There are four key issues threatening the species that have been identified: land clearing, invasive species, climate change and fire. Invasive species are an increasing problem. There are two sides to invasive species. There are the existing pests that we have. That involves weeds, which are spreading at a significant rate and affect, obviously, ecological communities but also particular fauna—as this is a fauna focused inquiry—that rely on some of those ecological communities. There's also a significant issue around feral animals. These are existing threats. In New South Wales we don't have very good data on the extent of deer populations. The latest data we're relying on goes back to 2016 and is based on guesstimates basically from the DPI, but we know that it's a serious expanding problem and one that is causing very real devastation to a lot of ecological communities. We know that cats, foxes and dogs are all important predators of native species.

It comes back to what we said at the start, which is that there does need to be a federal injection of funding across this whole space. It should be considered in the same way that we consider critical infrastructure. This is our ecological heritage. It's the natural heritage of all Australians, and at the moment we are putting very small amounts of funding into dealing with it. Whether it's invasive species, whether it's restoration of landscapes or whether it's purchasing areas to be off limits to clearing, there is a responsibility for us to put significant funding into it. Of course if we do what we're doing now, which is putting a small amount of funding into it and allowing a large amount of ecological destruction at the same time, then we're going to exacerbate these problems.

The second side that I'll quickly jump to on invasive species is the area around preventing new threats coming in. There's been a lot of attention on the issue of invasive ants—fire ants—recently. I know there's been some federal and state cooperation in that space, which is good. But there's an aphorism, which is: no-one cares about biosecurity until everyone cares about biosecurity. I think it's really important for us to consider this. It was really good to see Sussan Ley say that she's going to make it a priority, and we'd very much encourage her to make it a priority for the environment. It's one of the three key threats we face. It involves updated, improved federal biosecurity laws to ensure that we don't bring new pests into the state and into the country.

Senator URQUHART: The reason I asked about the invasive species was this committee has a feral deer, pig and goat inquiry at the moment as well, so I'm interested for that as well. But the other issue is: does your organisation have any interaction with the Threatened Species Commissioner?

Mr Gough : Not personally. The Nature Conservation Council is a council that sits on top of a lot of others. So, there's an Invasive Species Council, which is a member group of ours. I used to work for the NSW Farmers' Association before and certainly had interactions then, but not since. It's a few years ago.

Senator FAWCETT: On page 4 of your submission you note that the EPBC Act doesn't provide absolute protection. Could you expand a bit more for the committee what you mean by 'absolute protection'.

Mr Gough : As we said, we've got a biodiversity crisis on our hands, so we believe that there need to be laws in place which make it absolutely clear that, where something has been identified through a scientific process as threatened and on the road to extinction, we have a responsibility to protect it. That requires laws which specifically provide that protection in law and that say that, if there is habitat relevant to that species, it should not be destroyed. That's the position. As I said, I'm not an expert on that. I'd recommend asking some of those questions directly to the—

Senator FAWCETT: Can I just take you then to some writings from NSW Farmers around both the state and federal laws. They highlight some cases where, for example, farmers who had isolated trees in paddocks were, prohibited under the old New South Wales laws from cutting them down but under the new laws are able to cut isolated trees down as long as they replant at a ratio of eight to one. This has increased the efficiency of the use of the land and where it's irrigated—they're often able to use centre pivots, for example—so, in net, there are more trees and there is a more efficient use of water and land. Would you support that kind of flexibility as opposed to saying there should be an absolute ban on cutting things down?

Mr Gough : Sorry, to be clear, we don't have a position on an absolute ban on all cutting down. We do have a position which is that there needs to be very strong protections and very clear processes that have to be gone through to find out what the value of those areas are, and if they are important ecological assets for threatened species then, no, they shouldn't be cut down. We do know that isolated paddock trees have an important biodiversity benefit. I have spoken to a few people who were involved—and, to be clear, I wasn't directly involved when a lot of these laws were being introduced—and one thing that wasn't flagged by the Office of Environment and Heritage and a lot of groups as being of significant concern under the new act was the clearing of isolated trees. But the data that's coming out now is showing that pasture expansion clearing is one of the biggest parts of the clearing that's currently going on, which is something that I think requires some investigation. Some of the approvals that have been issued—there have been 17,000 hectares of total clearing to take out isolated paddock trees.

Your question was about whether the planting of eight saplings, which may or may not survive—and, to be honest, may or may not got get planted; we know from a lot of satellite imagery of some of these areas over recent years that often the work doesn't get done and there isn't the enforcement—replaces the ecological value of one 100-year-old paddock tree with, in some cases, significant hollows, the removal of which has been recognised federally as a key threatening process. I think the answer is no it doesn't. But the key thing for us has been that, if we care about protecting threatened species, ecologists should be involved in that process. If our aim is to make sure that we don't see a huge loss of biodiversity, if we don't want to see koalas going extinct on our watch in New South Wales—and we know that clearing is the main threat—then there need to be significant protections. There's been a lot of clearing going on in New South Wales. We don't have a lack of cleared landscapes to be able to farm on.

Senator FAWCETT: On page 5 you talk about the establishment of institutions that operate independently of government that get to set their own standards and then enforce the standards with compliance. That's at odds with the concept of a democracy where laws are made by elected representatives of the people through a democratic process. Is that what you mean—that you want a body that's not accountable to the public? For example, in what we've just been talking about in relation to isolated trees, you'd have a group who perhaps share your views who would get to set the laws without any engagement with or recourse for other stakeholders who might be concerned about efficient water use or efficient use of land, and take it outside the democratic processes. Is that what you're actually calling for here?

Mr Gough : Senator Fawcett, there are a lot of independent institutions already that operate federally and at a state level—

Senator FAWCETT: But they don't make law. They often make recommendations to government, they might enforce laws that are set by government, or they might be compliance bodies, but they don't independently make law and enforce law.

Mr Gough : But they often do have powers to create policies that have regulatory effect. That happens all over the place within government. We have those processes. The key thing for us is science. We recommend that the government should set the policy and legal position which protects our biodiversity and our native fauna, and then we should have experts deciding what is needed to protect that fauna. Our elected representatives, just like our different bureaucrats and staff, aren't always the absolute experts. They tend to be good policymakers, which is different to making some of these more specific decisions around threat abatement plans and that sort of thing.

In terms of the enforcement of laws, we already have an independent authority in New South Wales. It has a board that reports to the minister, but the independent environmental protection authority reports to its board. I think it's entirely appropriate to have an independent agency overseeing the enforcement of our national laws, which of course would be set by the government.

Mr Gambian : I might just jump in on that as well, Senator, if that's okay. The concept of having a federal counterpart to the existing state EPAs is not a novel idea. It's not something that's been dreamt up by the conservation movement. The federal parliament has established any number of statutory bodies that have a policymaking role and that have an enforcement role. This is not some sort of crazy radicalism from the environment movement; this is a very mainstream idea. To suggest that it's somehow antidemocratic to refer powers to a statutory body is, I think, pretty wrong.

Senator FAWCETT: Given the time, I'll leave that there, but we might have to agree to disagree on some aspects.

Mr Gambian : I'm sure we can.

CHAIR: Senator Smith, in the few minutes we've got left.

Senator Marielle SMITH: Thankyou, I'll be quick. I appreciate you're New South Wales focused in your work, but I was just wondering if you're aware of other jurisdictions in Australia which are taking a better approach to land clearing that you'd like to see New South Wales emulate?

Mr Gough : I don't feel that I have the expertise to talk on that, sorry.

Senator Marielle SMITH: It's not a problem. I just thought you might be aware of those practices.

Mr Gough : If there's time, I did want to table one thing for the committee. The Total Environment Centre have done some work, which they asked us to present directly, around the EPBC biobank conditions for koala habitat that's been ignored for an area in South Western Sydney that's been cleared by Lendlease. TEC wanted to present this as a very strong example of where not having a federal environmental protection agency means that the federal laws are being undermined. They've written a paper, which I can table. But in essence what's happened is that the clearing of core koala habitat there required an EPBC approval. The EPBC approval was granted on the condition that 151 koala species biodiversity credits were retired from an Appin West offset site, a specific site. The statement of reasons for that approval specifically said that the Noorumba bush reserve could not be used for those species offsets because it provided no additionality, as it's already an existing bush reserve. They have just found out that the New South Wales Department of Planning and Environment has gazetted the biodiversity stewardship agreement, and the retirement of credits under the agreement included 151 koala species credit from the Noorumba bush reserve. It's a very good example and a very recent example—and an example directly related to this committee—that the Total Environment Centre has of where the EPBC Act is being undermined by not having a federal agency to enforce it, and relying on a state based agency. If I could, I'd like to give that one to you.

CHAIR: If you could table that, that would be great. It certainly goes to the whole issue of the problem of offsets, which we've covered in previous hearings. Yes, it's extremely problematic. Thank you very much, Mr Gambian and Mr Gough, for your evidence today. It's been really helpful to the committee.