This World Environment Day, it is useful to reflect on Australia’s climate-induced bushfire disaster during the summer of 2019-20. A conservative estimate is that 1.25 billion animals and 100 billion insects died. Climate change contributed to the inferno through drought, extreme temperatures, dry lightning strikes and unique fire weather systems. By the end of January 2020, more than 10 million hectares had been burnt.
However, Australia’s biodiversity was in a precarious state even before the fires. The 2020-1 IUCN Red List ranks Australia sixth in the world for the highest number of threatened species of reptiles; fish; molluscs; other invertebrates; plants; fungi; and protists (a kind of a single-celled organism). It ranks after Madagascar; Ecuador; Mexico; the United States; and Malaysia.
Meanwhile, a new report published by the World Wide Fund for Nature (Australia) (WWF) catalogues the impacts of land clearing on koalas – a cherished national symbol of biodiversity. The report finds that the Australian government has failed to adequately enforce the provisions of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), under which koalas were listed as a vulnerable species in 2012. Since 1999, the destruction of koala habitats has increased. From 2012, 177,411 hectares of known or likely koala habitat has been cleared. Of this destruction, 80 per cent was for livestock pasture in Queensland, while in NSW, forest clearing dominated losses of koala habitat (62 percent).
For New South Wales, it is difficult to reconcile the current deregulatory agenda of the New South Wales government with meaningful conservation measures. The agenda reached a high watermark in 2014 when it appointed an Independent Biodiversity Legislation Review to make recommendations for, amongst other things: outsourcing; budget restraint; and self-regulation. The Panel’s Final Report proposed amendments ‘to deliver on the NSW Government's commitments to cut red tape, facilitate sustainable development and conserve biodiversity.’
The new Biodiversity Conservation Act 2016 (NSW) has a strong emphasis on de-regulation. Previous legal requirements – for example, that broadscale land clearing was prohibited unless it could be shown to maintain or improve environmental outcomes – were removed in favour of self-assessable codes and more flexibility to use biodiversity offsets (conservation actions intended to compensate for loss of biodiversity).
In August 2019, just a few months before the bushfires, the NSW government announced that farmers who had cleared land illegally under the old Native Vegetation Act 2003 (NSW) would be granted amnesty, despite hundreds of prosecutions already having been initiated.
Also last year, a NSW Natural Resources Commission’s report revealed that land clearing had increased 13-fold, and biodiversity is now at risk in 11 out of 13 regions in NSW. As well, the 2019 NSW Audit Office report, Managing Native Vegetation, found ‘the clearing of native vegetation on rural land is not effectively regulated and managed. The processes supporting the regulatory framework are weak and there is no evidence-based assurance that clearing of native vegetation is carried out in accordance with approvals’.
Added to this, some of the NSW government’s immediate responses to the bushfires are deeply troubling. For example, it has agreed to allow inadequately regulated salvage logging in burnt areas to fulfil timber contracts. – and also logging, by the NSW Forestry Corporation, of unburnt forest potentially crucial as a refuge for species that survived the fires.
Furthermore, the new State Environmental Planning Policy (Koala Habitat Protection) 2019 shows some improvements on the old regime but no areas of koala habitat are off-limits to clearing or offsetting, and the policy neglects to mention climate change. This is despite the abovementioned WWF report, stating that the bushfires killed 6,382 koalas in NSW alone up to mid-February.
Looking forward, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) is currently under review. The Australian government has convened the Wildlife and Threatened Species Bushfire Recovery Expert Panel to provide advice on the immediate survival of affected animals, plants and ecological communities after the fires, and the development of a strategy for ensuring their resilience. It has also provided $150 million to prevent extinction and limit the decline of native species. Meanwhile, there is a proposal in NSW that 55,000 hectares of koala habitat currently approved for logging will be converted into a Great Koala National Park.
However, unless the broadscale destruction of native vegetation – the critical habitat of Australia’s biodiversity – is halted, the prospects for its recovery are dim. As the Constitutional Court of Columbia recently said, “biodiversity…being a living entity…[is the] subject of rights…only from an attitude of deep respect and humility with nature…is it possible to enter into relationships [on] fair and equitable terms…”
Professor Rosemary Lyster and Associate Professor Ed Couzens are environmental lawyers and Co-Directors of the Australian Centre for Climate and Environmental Law at the University of Sydney Law School.