Key findings

The Biodiversity Act has only been in operation for about five years, but the Report nevertheless raises serious concerns about its effectiveness in achieving its purpose. Some of the Report's most significant findings indicate that:

• The Biodiversity Act is not meeting its primary purpose of maintaining a healthy, productive and resilient environment and is never likely to do so. The operative provisions of the Biodiversity Act are also said to be incapable of supporting the legislation's objectives.
• The principles of ecologically sustainable development (ESD) which underpin the Biodiversity Act are dated and no longer fit for purpose. The Report instead advocates for a commitment to a nature positive approach for the benefit of future generations.
• There are 954 threatened species and 111 threatened ecological communities currently listed under the Biodiversity Act. According to the Report, only 50% of the threatened species are expected to survive the next 100 years.
• There is a need to recognise the intrinsic relationship between biodiversity and Aboriginal culture, and embed Aboriginal participation across all levels of the framework – advisory, decision-making, implementation, and delivery.

In light of these findings, the Report makes 58 recommendations with the overarching aim to establish "nature positive architecture" and address the apparent shortfalls of the Biodiversity Act. These recommendations include the following:

• Statutory objectives – amending the objects of the Biodiversity Act to expressly enshrine the concept of a nature positive approach to biodiversity and achieving nature positive outcomes, in alignment with the goals of the Kunming-Montreal Global Biodiversity Framework agreed at the UN Biodiversity Conference in December 2022 (COP15) under the Convention on Biological Diversity. The Report defines nature positive as meaning "our environment is being repaired and regenerated" and involves halting and reversing biodiversity loss and ecosystem collapse, restoring nature, and introducing a standard of net gain in biodiversity. The Report also foreshadows the need for integration and alignment across other legislation affecting land use planning across NSW.
• Climate change – reforms to address climate change impacts including the cumulative impacts of biodiversity loss and loss of ecosystem connectivity.
• Investment – reforms to guide and promote investment in conservation and restoration activities that position NSW to take advantage of an emerging large-scale global investment in nature repair.
• Eligible land types – allowing biodiversity credits to be created for all land types where land of high biodiversity value is preserved from development. This could enable land claimed and returned under the Aboriginal Land Rights Act 1983 (NSW) (ALR Act) or land reserved under the National Parks and Wildlife Act 1974 (NSW) to be eligible to generate biodiversity credits and incentivise increased uptake of conservation and restoration.
• Assessment and approval – reforming the pathways of development assessment in terms of applying the Biodiversity Offsets Scheme to various types of development. The Report recommends that the NSW Minister for the Environment be given various call-in powers with respect to prospective developments, including determining whether major projects that may have a serious and irreversible impact on biodiversity should be approved.

Looking forward

To achieve the vision outlined in the Report, we expect amendments would be required to legislation (in addition to the Biodiversity Act), including to the Environmental Planning and Assessment Act 1979 (NSW), the ALR Act, and the Local Land Services Act 2013 (NSW).

The findings and recommendations of the Report, if adopted by the NSW Government, may also have significant implications for proposed greenfield developments in NSW. That is, with major infrastructure and energy projects still required to be developed as part of the energy transition and to achieve NSW's greenhouse gas emissions reduction goals, the proposed reforms may impose more stringent requirements on those developments to avoid, mitigate, or offset (in a way that achieves net gain) potential impacts on biodiversity.

The Report was commissioned in the context of widespread criticism of the requirement for biodiversity offsets as a condition of approval for developments in NSW. Similar criticism has also been levelled at the Federal Government's proposed Nature Repair Market Bill 2023 (NRM Bill), which could permit the use of biodiversity certificates under the Nature Repair Market framework as offsets under various planning regimes. The Senate Standing Committee on Environment and Communications (the Committee) is currently deliberating over the NRM Bill following a public inquiry process. We anticipate that the Report may be given some weight as part of the Committee's findings which are expected in November 2023.

The Report's suggestion that the framing of planning and environmental laws to achieve ESD no longer reflects contemporary understandings of biodiversity conservation appears to be based, at least in part, on the intensifying impacts of climate change and biodiversity decline worldwide. At its highest, our view is that this sentiment and the focus on nature positivity may signal a revised direction for planning and environmental laws in NSW, which would represent continued progress in law and consistency with the position adopted by the Commonwealth Department of Climate Change, Energy, the Environment and Water.²

We will monitor the NSW Government's response to the Report and any subsequent legal developments.

1 Independent Review of the EPBC Act – Final Report, October 2020, Professor Graeme Samuel AC.

2 Nature Positive Plan: better for the environment, better for business, December 2022, Department of Climate Change, Energy, the Environment and Water.