TERRESTRIAL BIODIVERSITY CONSERVATION AND NATURAL RESOURCE MANAGEMENT TECHNICAL PAPER 3 The principal contributions to this paper were provided by the following Panel Members: : Emeritus Professor David Farrier; Professor Lee Godden; Associate Professor Cameron Holley; Professor Jan McDonald; Professor Paul Martin .About APEEL The Australian Panel of Experts on Environmental Law (APEEL) is comprised of experts with extensive knowledge of, and experience in, environmental law. Its membership includes environmental law practitioners, academics with international standing and a retired judge of the Federal Court. APEEL has developed a blueprint for the next generation of Australian environmental laws with the aim of ensuring a healthy, functioning and resilient environment for generations to come. APEEL’s proposals are for environmental laws that are as transparent, efficient, effective and participatory as possible. A series of technical discussion papers focus on the following themes: 1. The foundations of environmental law 2. Environmental governance 3. Terrestrial biodiversity conservation and natural resources management 4. Marine and coastal issues 5. Climate law 6. Energy regulation 7. The private sector, business law and environmental performance 8. Democracy and the environment The Panel Adjunct Professor Rob Fowler, University of South The Panel acknowledges the expert assistance and Australia – Convenor advice, in its work and deliberations, of: Emeritus Professor David Farrier, University of Wollongong Dr Gerry Bates, University of Sydney Professor Lee Godden, University of Melbourne Emeritus Professor Ben Boer, University of Sydney Professor Neil Gunningham, Australian National Associate Professor Karen Bubna-Litic, University of University South Australia Associate Professor Cameron Holley, University of New The Hon. Bob Debus, AM, former Minister for the South Wales Environment and Attorney-General (NSW), Minister Dr Hanna Jaireth, IUCN World Commission on for Home Affairs (Cth) Environmental Law (private capacity) – Co-Convenor Professor Robert Percival, University of Maryland Dr Bruce Lindsay, Environmental Justice Australia Ms Nicola Rivers, Environmental Justice Australia Professor Jan McDonald, University of Tasmania The Hon. Paul Stein, AM, QC, retired Judge of the Land Professor Zen Makuch, Imperial College London and Environment Court of NSW and Justice of the Professor Paul Martin, University of New England NSW Court of Appeal Professor Jacqueline Peel, University of Melbourne Dr Sarah Waddell, Environmental Law Consultant Professor Benjamin Richardson, University of Tasmania Ms Rachel Walmsley, Environment Defenders Office NSW The Hon. Murray Wilcox, AO QC, former judge Federal Court of Australia Produced and published by the Australian Panel of Experts on Environmental Law, Carlton, Melbourne. Publication date: April 2017. Citation: Australian Panel of Experts on Environmental Law, Terrestrial Biodiversity Conservation and Natural Resources Management (Technical Paper 3, 2017). Acknowledgements: The Panel expresses its gratitude to the many individuals and organisations who helped this project come to fruition. Camilla Taylor and EDO (ACT) volunteers are thanked for their copyediting assistance and Mandy Johnson for the desktop publishing and layout. 2 Terrestrial biodiversity conservation and natural resource management Summary and Recommendations Executive Summary The ongoing ecological harm to Australia’s land, water and air, and the loss of the species that depend on them, is overwhelming our environmental laws. Australia’s large landmass and relatively small population, coupled with historical factors and poor environmental stewardship pose a significant management challenge. Australia has international obligations to ensure biodiversity protection and the sustainability of land, water and air; and to protect places of cultural and environmental significance. Australia can show greater leadership as a biodiversity rich, wealthy country. Australia invests insufficient resources and energy in protection and restoration, due to factors including a lack of information about the condition of the environment and of long-term strategic natural resource planning. Public resources are inevitably limited and so attention must turn to using private sector resources more effectively to create greater national capacity. Fragmentation of governance institutions, laws and efforts, due to many factors, has added to the difficulties of achieving a sustained and coordinated response.1 The problems Australia must deal with involve increasingly complex causes that demand a far more comprehensive and coordinated response in the future than has been demonstrated to date. A multi-pronged approach to biodiversity conservation and natural resource management (NRM) law reform is needed. Real reform will be costly, and some initiatives will encounter opposition, but more effective environmental law is essential to the long-term viability of ecological systems, agricultural production, and community amenity and wellbeing. Meeting the challenges requires the commitment of the Commonwealth and state governments to implement an effective mix of land use and other environmental forms of regulation, economic incentives, and voluntary instruments. Part 2 of this Technical Paper recommends a more strategic approach to the core problems. Specific recommendations include: GOVERNANCE FRAGMENTATION 3.1 The Commonwealth should ensure integrated resource governance, by undertaking landscape-scale planning at appropriate bioregional scales and establishing nationally coordinated frameworks for the implementation of bioregional plans. This will require a consistent hierarchy of rules, roles and responsibilities.2 THE NATIONAL RESERVE SYSTEM 3.2 The Commonwealth should ensure completion of the National Reserve System (NRS), to provide legal protection for the full range of ecosystems within bioregions and subregions.3 Related steps are needed to safeguard climate refugia and ensure connectivity across the landscape. 1 In relation to systemic challenges for rural biodiversity protection see Paul Martin and Jacqueline Williams ‘Next Generation Rural Natural Resource Governance: a Careful Diagnosis’ in V Mauerhofer (ed) Legal Aspects of Sustainable Development: Horizontal and Sectorial Policy Issues (Springer Publishers, 2015) 607. 2 Note that Australian Panel of Experts on Environmental Law, Environmental Governance (Technical Paper 2, 2017) elaborates on the specific means by which the Commonwealth could implement this recommendation. 3 Much of the necessary additions to the NRS will need to be made by the states, however the Commonwealth can play a significant role in securing state action through financial assistance and targeted disincentives (see Australian Panel of Experts on Environmental Law, Environmental Governance (Technical Paper 2, 2017)). Terrestrial biodiversity conservation and natural resource management 3 MONITORING, EVALUATION AND IMPROVEMENT 3.3 The Commonwealth should perform enhanced environmental monitoring, evaluation and reporting tasks. This requires a strategic approach to determining what data is needed for effective decision-making, who should be responsible for providing and collecting it, how frequently it should be collected, how it should be made available and used, and who should pay for this intelligence.4 DEVELOPMENT APPROVAL5 3.4 A governance system is required at the Commonwealth and state levels which is more adaptive to environmental change. This will require outcome objectives for the state of environmental resources, quantitative and measurable thresholds, and legal tools to implement stronger protections if systems or species are at risk of exceeding these thresholds.6 NOTE: A comprehensive approach to landscape-scale planning (Recommendation 3.1) could also help overcome the deficiencies of fragmented project-specific development approval processes that do not address cumulative impacts. IMPLEMENTATION 3.5 Stronger safeguards are needed to ensure the integrity of implementation of legal and administrative protections for the environment. These should include independent performance review, with clear reporting to the public, incorporated into Commonwealth and state legislation. OTHER RECOMMENDATIONS In addition to these legal recommendations, two other issues should be addressed to ensure effective and fair governance: more reliable and adequate funding of sustainability investments and a stronger role for indigenous communities in biodiversity conservation and natural resources management. 3.6 The Commonwealth should work with the states and the private sector to develop an effective fiscal model for natural resource governance. This should ensure that the costs of environmental stewardship can be met over the long term, and are borne equitably across the community. 3.7 The Commonwealth and state governments should make a clear commitment to ensure effective consultation with, and the active participation of, Aboriginal and Torres Strait Islander peoples in environmental protection measures, cultural heritage and natural resource management (NRM). This commitment requires support for robust and culturally appropriate governance for Indigenous Protected Areas (IPAs), co-managed areas and Aboriginal and Torres Strait Islander peoples’ land and waters and respect for the principle of free, prior and informed consent in regard to Aboriginal and Torres Strait Islander land and waters.7 4 See Australian