Showing posts with label Environmental Defenders Office. Show all posts
Showing posts with label Environmental Defenders Office. Show all posts

Monday 4 March 2024

North East Forest Alliance & Environmental Defenders Office fight on to protect the continued existence of native forests and the biodivsersity they contain

 

Environmental Defenders Office (EDO), March 2024 Newsletter, 29 February 2024:









Hope for NSW forests: Court decision upholds community’s right to challenge native forest logging


In the shadow of claims made by the NSW Forestry Corporation, communities have been led to believe that they have no rights to challenge decisions about industrial logging in NSW native forests or seek action over unlawful conduct when logging destroys hollow-bearing trees and critical habitat for threatened species.


But two recent court decisions have shattered those claims after EDO’s client successfully ran an argument which hasn’t previously been tested in the courts. After 20 years of resistance by the Forestry Corporation, it is now legally recognised that communities with a special interest have the right to hold the state-owned logging agency to account over its forestry operations in native forests.


NSW forests are remarkable for their diverse ecosystems, unique biodiversity and cultural significance. Encompassing semi-arid woodlands to lush rainforests, these globally recognised forests are home to an extraordinary array of plant and animal life, much of which is unique to the region.


Protecting our forests is one of the most important things we can do to manage climate change, preserve our precious biodiversity and prevent further species extinctions. Yet Forestry Corporation NSW logs around 30,000 hectares of state forest every year. Sadly, many of these forests are logged to be turned into low-value products, such as woodchips, that are exported to make cardboard and toilet paper.


Weak laws failing our forests


NSW Forestry Corporation is the state-owned logging agency that undertakes industrial logging in public native forests, including in nationally important koala habitat and areas that are still recovering from the catastrophic impacts of the 2019-20 Black Summer Bushfires. It is entrusted with managing two million hectares of public forests, yet in the past three years alone, Forestry Corporation has been fined 12 times for illegal logging activities. There are 21 investigations still pending. 1


Forestry Corporation operates under bilateral agreements with the Federal Government, called ‘regional forest agreements’, or RFAs, which allow logging to bypass normal federal environmental scrutiny. No other industry benefits from such an allowance. Under the current system of RFAs, threatened species such as the koala, greater glider and gang-gang cockatoo are being driven to extinction and the ecosystems and landscapes that we depend on are being destroyed at an astounding rate.


For some 20 years, Forestry Corporation has asserted that the community cannot seek to challenge its public native forestry operations. On 20 November 2023, the NSW Land and Environment Court rejected that position.


Court decision confirms community right


The EDO represented the North East Forest Alliance (NEFA) in mid-2023 challenging logging approvals in Myrtle and Braemar State Forests. The forests were severely damaged by the ferocious Black Summer Bushfires, which wiped out an estimated 70 per cent of the local koala population.


While NEFA was not ultimately successful, the court confirmed for the first time that the Forestry Act does not prevent persons with a special interest from taking legal action over forestry operations in NSW, including disputing logging approvals.


This is particularly important as NSW laws explicitly attempt to reduce the community’s right to challenge Forestry Corporation conduct regarding industrial native forest logging.


Forestry Corporation also argued that the court cannot judicially review harvest and haul plans because all forestry operations had already been approved by the relevant Ministers in the overarching regulation, the Coastal Integrated Forestry Operations Approval (CIFOA). However, the court again rejected that position and found that such operational plans are open to challenge.


Forest groups fight on after disappointing court decision


Building on the NEFA decision, South East Forest Rescue (SEFR) then took a step further with court action in January 2024. SEFR is seeking an injunction to stop Forestry Corporation from conducting any forestry activities in certain state forests until adequate surveys for greater, yellow-bellied and squirrel gliders have been performed. SEFR is being represented by XD Law.


SEFR argued that Forestry Corporation is breaking the law by not performing adequate surveys for den trees and necessary exclusion zones around den trees are not being implemented. It is the first time in 25 years that the Forestry Corporation has been brought to court by citizens for failure to comply with native forestry regulations, in particular failure to conduct adequate surveys for gliders.


Drawing from the findings in the NEFA decision, her Honour found that persons with a special interest can also seek to enforce the conditions of the CIFOA against Forestry Corporation.


These two decisions mark a significant departure from the status quo of the past 20 years and set important precedent for the community to hold the Forestry Corporation to account over native forest logging.


President of NEFA, Dailan Pugh said regarding NEFAs legal challenge:


While NEFA were disappointed that our legal challenge to the logging of important Koala populations in Braemar and Myrtle State Forests was not successful, it’s promising that the case did establish that NEFA have the civil right to enforce NSW’s logging rules, opening a door to litigation we thought had been shut to us since 1998.”


We thank the EDO for the immense effort they put into this case and creating future opportunities for NEFA, and other groups, to challenge the culture of complacency around logging fostered by lack of public accountability.”


1 Register of Crown forestry investigations (nsw.gov.au)


Sunday 17 December 2023

NSW Knitting Nannas staying the course in the face of burdensome state anti-protest laws

 

The Knitting Nannas are to be admired for their sheer tenacity & commitment to non-violent protest


 

Environmental Defenders Office, News, 13 December 2023:




Supreme Court rules parts of NSW anti-protest laws are unconstitutional



Parts of harsh anti-protest laws passed in NSW last year have been found to be unconstitutional after a legal challenge by two Knitting Nannas protesters who argued they impermissibly burdened the implied freedom of political communication. [1]


Two Knitting Nannas, Helen Kvelde and Dominique Jacobs, took legal action to defend the right to protest in October 2022, after the NSW Government passed new laws following a series of climate-related demonstrations.


On behalf of Helen and Dom, the Environmental Defenders Office launched a constitutional challenge to s 214A of the Crimes Act 1900 that criminalised certain conduct such as remaining “near” any part of a “major facility” (such as Martin Place Station) if that conduct “causes persons attempting to use the major facility to be redirected”, on the basis it impermissibly burdens the implied freedom of political communication.


The Nannas also asked the court to find the amendments to the Roads Regulation 2018 that altered the definition of “major bridge, tunnel or road” under s 144G of the Roads Act 1993 beyond regulation-making power and therefore invalid.


Today, the Supreme Court upheld parts of the constitutional challenge, declaring parts of s 214A of the Crimes Act are invalid because they infringe on the implied freedom of political communication. However, the court found the amendments to the Roads Regulation 2018 valid.


In delivering his reasons Justice Walton said: “Section 214A imposes an unjustified burden on the implied freedom to communicate on governmental and political matters, which is an indispensable incident of the constitutionally prescribed system of government … [this] conclusion concerns the provision of subs 214A (1) (c) (vis-a-vis the partial closure of major facilities) and subs 214A(1)(d) which thereby renders those subsections invalid.”


Helen Kvelde said: “We are happy the court has given some acknowledgement to the democratic right to protest.


“But these laws to me feel like a distraction. As if both Labor and the Liberal Party are trying to get the population angry with protesters instead of angry against politicians for failing to protect us from climate emergency.


“I’m not sure what we can do next, but it doesn’t feel right to just let this go. We need to fight for our democratic right to protest peacefully. I wish people would understand that ultimately these laws could affect anyone – anyone the government of the day does not like.”



REFERENCES


[1] Kvelde v State of New South Wales [2023] NSWSC 1560


Grata Fund supports people and communities to hold powerful government and corporate leaders to account and achieve systemic change through the courts. Grata has provided financial backing to remove the barriers of adverse costs to this important piece of public interest litigation.


Monday 17 October 2022

Environmental Defenders Office filed a legal challenge to NSW Government's draconian anti-protest laws on behalf of two Knitting Nannas members who live in fire and flood affected parts of the NSW far north coast

 

Post at The Saturday Paper, 13 October 2022:








Knitting Nannas unpick anti-protest laws


Two members of the Knitting Nannas will challenge the NSW government’s anti-protest laws in court, as climate activists explore avenues for action with “less punitive” consequences.


What we know:


  • The Environmental Defenders Office will file the legal challenge on behalf of the two activists, who live in fire and flood-affected parts of the NSW far north coast (The Guardian);

  • The two women have concerns about the controversial laws introduced in March that allow fines of $22,000 and two years in prison to punish non-violent protesters;

  • They will argue that making it illegal to protest on major roads, tunnels and “near” prescribed facilities unlawfully impinges on the freedom to protest;

  • When it comes to protest rights … it can be a death by a thousand cuts. We have to fight to preserve that right, ” said David Morris of the Environmental Defenders Office;

  • The legal challenge comes as the union movement pushes NSW Labor to commit to reversing the laws if elected in March (Sydney Criminal Lawyers);…….


Environmental Defenders Office spokesperson announcing legal challenge on 13.10.22, accompanied by Knitting Nannas Helen Kvelde and Dominique Jacobs. IMAGE: @jatremain





‘For these two women protest became an essential form of political expression to sound the alarm about the impacts of climate change. “Our communities have felt terrified, angry and stressed. Protest can transform those overwhelming feelings into change and action,” Dominique said. “We will ask the Court to find that aspects of these new laws are unconstitutional. Australians like us shouldn’t have to risk imprisonment or bankruptcy to participate in our democracy, and the Government should not be taking away our democratic freedoms.”’ [Environmental Defenders Office, October 2022]



Wednesday 5 October 2022

NSW Environment Protection Agency (EPA) releases its draft Climate Policy and Action Plan



Environmental Defenders Office, 30 September 2022:


First ever NSW plan for climate action released after landmark win by bushfire survivors


One year after the landmark win by Bushfire Survivors for Climate Action in the NSW Land and Environment Court, NSW’s environmental regulator has released a draft of their first climate policy and action plan.


The Court found last August that the NSW Environment Protection Agency (EPA) has a legal duty to take serious action on greenhouse gas emissions and climate change – the first time that an Australian court has ordered a government to take meaningful action on climate change.


EDO’s case on behalf of our client, Bushfire Survivors for Climate Action (BSCA), argued that the EPA has a duty to develop policies, objectives and guidelines to regulate greenhouse gas emissions and protect communities from the impacts of climate change. BSCA spokesperson Fiona Lee, who lost her home in the Black Summer fires almost three years ago, said that this draft plan is an important step in answering that call.


After the worst bushfire season on record in 2019/20, BSCA decided to use the law to ensure the authority tasked with protecting people and the environment does so effectively,” Ms Lee said.


Bushfire survivors like me have already endured the devastating effect of climate change on our lives, homes, jobs and security and we know that extreme weather events like these will only increase in intensity and frequency as global temperatures increase. We need drastic emissions reductions this decade to keep our communities safe from further climate dangers.


We’re pleased that the EPA has released this draft climate change policy and public consultation period. We look forward to getting across the details and preparing our submission in response.


We also look forward to continuing to work closely with NSW Minister for Environment and Heritage, James Griffin, and the new EPA chief executive, Tony Chappel, to ensure this process delivers real impact in reducing emissions.”


Elaine Johnson, EDO’s Legal Strategy Director said: “This is a significant day for the Bushfire Survivors for Climate Action after their historic win last year, when the court found the NSW EPA was required to act on climate.


We see the release of this draft policy as an important first step – but the devil will be in the details.


We have analysed the draft policy and action plan and we are working with our clients, partners and the community to ensure we end up with an effective climate plan which delivers real results, and fast. Ahead of our webinar, we will be publishing our analysis and submission guide on key issues to support and strengthen the policy and action plan.


This is our last chance to get it right. Climate change has already begun. How much worse it gets depends on how quickly we can drive emissions towards zero.


The Court has made it clear that it’s the EPA’s job to protect Australians from greenhouse gases and climate change – there is no more time to lose.”


Have your say

The draft plan will be open for public submissions until 3 November 2022, and is an opportunity to ensure the EPA implements robust measures, safeguarding Australians and the environment we live in.


Join our community briefing webinar on Thursday 6 October, 6pm-7:30pm to hear independent expert legal analysis of the EPA’s draft Climate Policy and Action Plan. This webinar will be useful for anyone intending to make a submission. Register here.


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NSW EPA Draft Climate Change Policy document is at

https://hdp-au-prod-app-nswepa-yoursay-files.s3.ap-southeast-2.amazonaws.com/5316/6253/3253/EPA_Climate_Change_Policy.pdf


NSW EPA Draft Climate Change Action Plan 2022-2025 document is at

https://hdp-au-prod-app-nswepa-yoursay-files.s3.ap-southeast-2.amazonaws.com/8816/6253/3292/Climate_Change_Action_Plan_2022-25.pdf


Wednesday 13 October 2021

The Nature Conservation Council of New South Wales has commenced a world-first legal action to protect rivers and wetlands. Challenging the Border Rivers Water Sharing Plan in the Land & Environment Court, naming Water Minister Melinda Pavey & Treasurer Matthew Kean in his position as Environment Minister as respondents


Environmental Defenders Office, 6 October 2021:


A plan for sharing water in the northern Murray-Darling Basin is being challenged in court over climate change, in an Australian and world legal first.


Acting on behalf of the Nature Conservation Council of NSW, EDO lawyers will head to the NSW Land and Environment Court to challenge the validity of the Border Rivers Water Sharing Plan (WSP), arguing that the NSW Government failed to properly consider future climate change when making the plan.


The Border River catchment sits along the NSW/Queensland border and includes the Macintyre and Severn Rivers. The catchment is home to endangered species such as the eel-tailed catfish, Australian painted snipe and curlew sandpiper.


Both the NSW Water Minister Melinda Pavey, who approved the WSP and the NSW Treasurer Matt Kean, who as Environment Minister provided concurrence, are named as respondents in the Class 4 Judicial Review proceedings.....


Chris Gambian, CEO of the NSW Nature Conservation Council said:


If we fail to keep our rivers alive as a first priority, it doesn’t really matter what our second priority is. We will have lost the fight.


Climate change is not some abstract phenomenon that may occur in the distant future. River communities in NSW are bearing the brunt of that change every day, right now.


Just 18 months ago, many towns in western NSW were entirely dependent of bores or truck deliveries for their water supplies.


It is not just prudent for governments to factor in the impacts of climate change. It is a legal requirement that we are seeking to uphold by taking this action.”


EDO Managing Lawyer Dr Emma Carmody said:


Our client alleges that under their own laws, NSW Government Ministers are required to properly consider climate change, including future climate change, when drawing up a water sharing plan. By relying on historical climate data for the catchment, we argue that they have failed to do this, including in relation to the calculation of the catchment-wide limit on extractions from the river.”


The alleged unlawfulness arises not only due to the impacts of this failure on the Border Rivers itself, but on surrounding floodplains and downstream rivers and communities, notably the Barwon-Darling/Barka River, which receives some of its flows from the Border Rivers catchment.”


Our client will further argue that the rights of children and future generations to enjoy and benefit from healthy, functioning river systems requires the Minister to properly consider climate change and its impacts on water availability and quality and to devise a water sharing plan that reflects the likelihood of a hotter, drier future.”


Our client also alleges that setting drought reserves for basic landholder rights on the basis of lowest inflows up to July 2009 is unlawful, not only because it excludes the most recent and severe drought on record, but future climate change.”


There is ample evidence which indicates that the rivers and floodplains of the northern Murray-Darling Basin are over-extracted. This is now being exacerbated by climate change, which is making it hotter and drier. We can’t afford to make decisions about our precious water resources which ignore this reality. Indeed, our client alleges that the law requires it.”


Our client will ask the court to find that the Border Rivers Water Sharing Plan is invalid and must be replaced by a lawful plan.”


If this case is successful, it will likely mean that future Water Sharing Plans will have to take climate change into account, in particular in relation to the setting of catchment-wide extraction limits and environmental flow rules. This could mean more water for fragile ecosystems across the Murray-Darling Basin and in turn healthier river systems and greater water security for downstream communities. Our children and future generations deserve to enjoy and benefit from a healthy, functioning river system.”


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https://youtu.be/q6Fgkb0at0o


It is worth noting that Brett Walker QC, who acted as Commissioner during the twelve month long South Australian Royal Commission into the Murray Darling Basin Plan, has agreed to represent the Conservation Council of NSW.


It is also be noted that on 26 August 2021 the NSW Land and Environment Court in Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92 ordered: The Environment Protection Authority, in accordance with s 9(1)(a) of the Protection of the Environment Administration Act 1991 (NSW), is to develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change. Neither the Minister for Energy and the Environment Matthew Kean or the EPA appealed this judgment.



How to help the Conservation Council of New South Wales fund this legal challenge of the validity of the Border Rivers Water Sharing Plan (WSP):



BRIEF BACKGROUND ON WATER LICENCING AND WATER BUYBACKS IN THE MURRAY DARLING BASIN


https://youtu.be/rsdGZZSaUXw

 

Friday 6 March 2020

Environmental Defenders Office analysis of the new planning policy for koalas in NSW finds legal safeguards flawed


Koalas are found in the Northern Rivers region of New South Wales and are particularly vulnerable following the devastating 2019-20 bushfire season.

Environmental Defenders Office (EDO), 20 February 2020:


NSW planning policy for koalas falls short of the legal safeguards needed to protect the iconic animals and their habitats. 

By Cerin Loane, Senior Policy and Law Reform Solicitor, and Rachel Walmsley, Policy and Law Reform Director, Sydney 

A new NSW SEPP – State Environmental Planning Policy (Koala Habitat Protection) 2019 – is due to commence on 1 March 2020. With koala numbers having been in decline in NSW over the past two decades, a revised Koala SEPP had been highly anticipated as an opportunity to bolster legal protections for koalas. Frustratingly, the finalised Koala SEPP does little more than tinker around the edges. The fact remains that NSW laws fall far short of providing tangible protection for koalas. And with koala populations and their habitats significantly impacted by the summer’s devastating bushfires, it’s going to take more than just a few revisions to provide our koalas and their habitats the real legal protection they need.

The status of koalas in NSW 

Koalas are currently listed as a vulnerable threatened species in NSW, meaning there is a high risk of extinction in the medium-term.[1] Additionally, individual populations at Hawks Nest and Tea Gardens on the lower north coast, between the Tweed and Brunswick Rivers east of the Pacific Highway in the Northern Rivers area and within the Pittwater Local Government Area in northern Sydney are listed as endangered populations.[2

Accurately estimating koala numbers is difficult. Despite regulations, policies and community initiatives, overall koala numbers in NSW are in decline. In 2016, the NSW Chief Scientist relied on the figures of Adams-Hoskings et.al. in estimating approximately 36,000 koalas in NSW, representing a 26% decline over the past three koala generations (15-21 years).[3] We note however that other reports suggest koala numbers are even lower than this.[4

These estimates were made before the catastrophic bushfire events of this summer, which have been devastating for koalas, with estimates showing that more than 24% of all koala habitats in eastern NSW are within fire-affected areas.[5] Many people are asking how our environmental laws can help conserve and restore vulnerable wildlife at this time – this is something that EDO continues to look at as we start to move forward from the events of this summer (see our response to Australia’s climate emergency). 

A new state environmental planning policy is one legal tool intended to help koalas, but on our analysis the SEPP will remain largely ineffective in addressing the exacerbated threats currently facing them. It took just weeks for almost a quarter of koala habitat in NSW to be burnt in the bushfires, while it has taken the NSW Government 10 years to simply update the list of relevant koala habitat trees in the SEPP. The need for enforceable and effective laws is now more urgent than ever. 

Key changes to the NSW Koala SEPP[6

On 1 March 2020, NSW State Environmental Planning Policy No 44 – Koala Habitat Protection (SEPP 44)[7], which has been in place since 1995, will be repealed and replaced by a new State Environmental Planning Policy (Koala Habitat Protection) 2019 (new Koala SEPP).[8] SEPP 44 will continue to apply to development applications made, but not finally determined, before 1 March 2020.[9

SEPP 44 aims to protect koalas and their habitat, but its settings are weak and not targeted at the type or scale of projects with highest impact. Additionally, the problematic definitions of core koala habitat and potential koala habitat are adopted by other legislation (including the Local Land Services Act 2013 (LLS Act) and the Biodiversity Conservation Act 2016 (BC Act)), where they are used as a benchmark for triggering processes and regulation relating to land clearing and development assessment.[10

EDO has been calling for changes to SEPP 44 for the best part of a decade. In December 2010, EDO wrote to the Government on behalf of Friends of the Koala noting that SEPP 44 ‘is in urgent need of reform’.[11] In 2016, the Government announced a review of SEPP 44.[12] EDO made a submission on the Review of the Koala SEPP outlining our key concerns with its operation and making recommendations for improvement.[13] It wasn’t until fires began burning across the state late last year that the Government announced the release of the new Koala SEPP, just days before Christmas.

Despite recommendations that the Government consult on the text of a draft SEPP and any relevant guidelines or supporting material following its 2016 review, the final SEPP was made without any additional consultation; but it does address a number of stakeholder concerns. Most significantly, it updates the definition of ‘core koala habitat’ and removes the problematic concept of ‘potential koala habitat’, instead relying on mapping (a new Koala Development Application Map and new Site Investigation areas for Koala Plans of Management Map) to initially identify koala habitat. However, certain legal mechanisms still apply only to core koala habitat.[14

The new SEPP also updates the list of feed tree species in Schedule 2, used to help identify koala habitat, from 10 species to 123 species, categorised into 9 distinct regions. Other key changes include: 
  • Removing the requirement for site specific plans of management (in instances where a comprehensive Koala Plan of Management is not in place), instead requiring decision-makers to take into account new standard requirements in a Koala Habitat Protection Guideline. Concerningly, the Guidelines have not yet been seen, there are no formal requirements for developing the Guidelines (e.g. no requirements for community consultation or peer review) and the standards within the Guidelines are not mandatory – the new Koala SEPP requires only that they be taken into account. 
  • Moving provisions relating to how local environment plans and other planning instruments should give effect to protection to koalas from the SEPP to a new Ministerial planning direction (which is yet to be made).
Ongoing concerns 

There are also a number of key concerns that have not been addressed by the new Koala SEPP. For example: 
  • No areas of koala habitat are off-limits to clearing or offsetting – NSW laws do not prohibit the clearing of koala habitat. Despite declining koala numbers and the devastation caused by this summer’s fires, NSW laws still allow koala habitat to be cleared with approval. The new Koala SEPP simply requires decision-makers to ensure development approvals are consistent with koala plans of management (PoMs) or, if a PoM is not in place, that the (yet-to be-made) Guidelines are taken into account. If our laws are to truly protect koalas and their habitats then the approval process must not allow important koala habitat to be offset or cleared in exchange for money, in the way that the NSW Biodiversity Assessment Method does. Rather, all development that has serious or irreversible impacts on koala habitat must be refused. 
  • The requirement for councils to prepare Comprehensive Koala PoMs remains voluntary – Due to the slow uptake by councils (only 5 comprehensive PoMs have been finalised since SEPP 44 commenced in 1995),[15] EDO has previously recommended that the preparation of comprehensive koala PoMs (CKPoMs) be mandatory (i.e. the SEPP require that draft CKPoMs be prepared and exhibited within a particular timeframe). 
  • The new Koala SEPP still only applies to limited types of development – As was the case with SEPP 44, the new Koala SEPP still only applies to council-approved development. This means that the new Koala SEPP does not apply to the wide range of development and activities that can impact on koala habitat, including complying development, major projects (State significant development and State significant infrastructure), Part 5 activities (e.g. activities undertaken by public authorities) and land clearing activities requiring approval under the LLS Act. 
  • The 1 hectare requirement has not been removed – The arbitrary threshold of 1ha for triggering SEPP 44 has been carried over to the new Koala SEPP. Excluding sites below 1ha from the Koala SEPP leaves small koala habitat areas, particularly koala habitat in urban areas, without adequate protection. The 1 hectare requirement also contributes to cumulative impacts and can reduce connectivity across the landscape by allowing small patches to be cleared. 
  • Climate change considerations have been overlooked – The review of SEPP 44 provided an opportunity to incorporate requirements to identify and protect habitat and corridors that will support koalas’ resilience to more extreme heat and natural disasters, even if there is no koala population in those areas now, however there is nothing in the new Koala SEPP that specifically addresses climate change. 
  • Monitoring and compliance requirements have not improved – There are no new requirements relating to monitoring, review, reporting and compliance in the new Koala SEPP. 
The future for NSW koalas 

The new Koala SEPP highlights the overarching deficiencies in NSW laws to provide genuine protections for wildlife and nature. The way our laws are designed, very little is off limits to development or activities such as urban development, mining, and agriculture. While environmental laws provide processes for assessing environmental impacts, at the end of the day weak offsetting laws and discretionary decision-making powers allow destructive activities to go ahead to the detriment of our wildlife and natural resources. Contradictory policy settings in NSW laws mean that laws aimed at conserving biodiversity and maintaining the diversity and quality of ecosystems (such as the BC Act) are undermined by other legislation that facilitates forestry, agricultural activities and developments (such as the LLS Act, Forestry Act 2012 (Forestry Act) and Environmental Planning and Assessment Act 1979 (EP&A Act)). 

Many of the recent initiatives by the NSW Government to address koala conservation have focused mainly on funding and policy, without substantial legislative or regulatory reform to increase legal protections for koala populations and habitat. The new Koala SEPP is no exception. While some improvements have been made, particularly in relation to the definition of core koala habitat, overall many concerns remain and the Koala SEPP is unlikely to result in improved outcomes for koalas. 

Until our laws are strengthened to truly limit or prohibit the destruction of koala habitat, koala populations and their habitat will continue to be at risk and koala numbers will continue to decline in NSW, possibly to the point of local extinction. 

Footnotes 

[1] Biodiversity Conservation Act 2016, s 4.4(3) 

[2] See www.environment.nsw.gov.au/threatenedSpeciesApp/profile.aspx?id=20300; www.environment.nsw.gov.au/threatenedSpeciesApp/profile.aspx?id=10615 and www.environment.nsw.gov.au/threatenedSpeciesApp/profile.aspx?id=10614 

[3] NSW Chief Scientist & Engineer, Report of the Independent Review into the Decline of Koala Populations in Key Areas of NSW, December 2016 above no 6, citing Adams-Hosking, C, McBride, M.F, Baxter, G, Burgman, M, de Villiers, D, Kavanagh, R, Lawler, I, Lunney, D, Melzer, A, Menkhorst, P, Molsher, R, et al. (2016). Use of expert knowledge to elicit population trends for the koala (Phascolarctos cinereus). Diversity and Distributions, 22(3), 249-262. doi: 10.1111/ddi.12400 

[4] See, for example, Paull, D., Pugh, D., Sweeney, O., Taylor, M.,Woosnam, O. and Hawes, W. Koala habitat conservation plan. An action plan for legislative change and the identification of priority koala habitat necessary to protect and enhance koala habitat and populations in New South Wales and Queensland (2019), published by WWF-Australia, Sydney, which estimates koala numbers to be in the range of 15,000 to 25,000 animals. In 2018, the Australian Koala Foundations estimates koala numbers in NSW to be between 11,555 and 16,130 animals, see www.savethekoala.com/our-work/bobs-map-%E2%80%93-koala-populations-then-and-now 

[5] See Department of Planning, Industry and Environment, Understanding the impact of the 2019-20 fires, https://www.environment.nsw.gov.au/topics/parks-reserves-and-protected-areas/fire/park-recovery-and-rehabilitation/recovering-from-2019-20-fires/understanding-the-impact-of-the-2019-20-fires 

[6] See https://www.planning.nsw.gov.au/Policy-and-Legislation/Environment-and-Heritage/Koala-Habitat-Protection-SEPP 

[7] See https://www.legislation.nsw.gov.au/#/view/EPI/1995/5 (Note – This link is unlikely to work after 1 March 2020, however the former SEPP will be able to be found on the NSW legislation website under repealed EPIs (environmental planning instruments)) 

[8] See https://www.legislation.nsw.gov.au/#/view/EPI/2019/658 

[9] State Environmental Planning Policy (Koala Habitat Protection) 2019, section 15 

[10] As noted earlier in our submission, for example, for the purpose of the land management regime under Part 5A of the Local Land Services Act 2013, category 2-sensitive regulated land (on which clearing is more strictly regulated) is to include ‘core koala habitat’.

[11] EDO NSW Submission on State Environmental Planning Policy No 44 – Koala Habitat, December 2010, available at https://d3n8a8pro7vhmx.cloudfront.net/edonsw/pages/3547/attachments/original/1485908888/Attachment_A_-_2010_EDONSW_SEPP_44_Submission_for_FOK.pdf?1485908888 

[12] See https://www.planning.nsw.gov.au/Policy-and-Legislation/State-Environmental-Planning-Policies-Review/Draft-koala-habitat-protection-SEPP 

[13] See https://d3n8a8pro7vhmx.cloudfront.net/edonsw/pages/3547/attachments/original/1485908884/170131_Koala_SEPP_44_Review_Submission_-_FINAL_to_DPE.pdf?1485908884 

[14] For example, under clause 9 of State Environmental Planning Policy (Koala Habitat Protection) 2019, which applies to development on land for which no PoM is in place, the Guidelines will not apply if a suitably qualified and experienced person provides information that the land is not core koala habitat. 

[15] There are only approved plans for five council areas, and a further nine Councils who have drafted or undertaken koala habitat studies See https://www.environment.nsw.gov.au/topics/animals-and-plants/native-animals/native-animal-facts/koala/koala-conservation

IF NORTH COAST VOICES READERS WOULD LIKE TO MAKE A MODEST DONATION TO THE ENVIRONMENTAL DEFENDERS OFFICE THEY CAN DO SO AT: 

https://www.edo.org.au/help-us-become-a-formidable-force-for-justice/