Native veg case crisis talks with old laws

Hundreds of prosecutions still in wings under old veg laws

The Auditor-General has recommended an overhaul of native vegetation laws saying the current system is not working.

The Auditor-General has recommended an overhaul of native vegetation laws saying the current system is not working.


Marshall vows to look into old cases of native veg breaches


Concerned landowners met in Moree on Wednesday night to hear NSW Agriculture Minister Adam Marshall announce he was working through how to nullify "dated" prosecutions under the old land clearing laws that were still in the pipeline.

The Land understands that more than 100 farmers are facing prosecution over illegal clearing under the previous system before the new native vegetation act came into existence.

Some harsh penalties face people who have cleared land illegally - they can have an area of their farm locked up from 25 to 100 years.

Adam Marshall will contact the Environment Minister to look at ways to stop prosecutions under the old native veg laws for cases that would not be a breach today.

Adam Marshall will contact the Environment Minister to look at ways to stop prosecutions under the old native veg laws for cases that would not be a breach today.

Last Friday the NSW Office of Environment and Heritage (OEH) released state-wide land clearing figures for 2017-18, showing approved land clearing rates for crop, pasture, thinning was 27,100 hectares, up from 20,200ha in 2016-17.

The data was strongly condemned by activist groups and NSW Labor.

Mr Marshall said he would not abide the latest land clearing data being used to demonise the state's hard-working farmers.

"The land clearing referred to in this report was lawful, and if anything, demonstrates NSW farmers are actively managing their land, which is the best thing for biodiversity in this state."

"Our farmers are our best environmental stewards and shoulder responsibility for the majority of land management in this State. I will not stand by and watch as activists and ideologues try to paint our farmers as criminals," Mr Marshall said.

"In late 2017 the NSW Government introduced a new land management framework to ensure laws in the State better balanced environmental and agricultural outcomes.

"These new laws are working and are allowing farmers to actively and responsibly manage their land, while providing them with the flexibility they need to make sensible business decisions.

"Just take a look at the approved vegetation set asides and other activities funded from the Biodiversity Conservation Trust, that farmers are taking up."

Since the new native vegetation code was introduced, about 46,480 hectares of farmland have been cleared, while at the same time there has been 46,872 hectares set aside on farms for biodiversity.

There had also been approval for 294,887 ha of clearing of invasive native species.

Mr Marshall said one of his key priorities was fixing legacy issues related to the repeal of Labor's Native Vegetation Act.

"A considerable number of farmers, particularly in the state's North West, are facing prosecution and compliance action under the old Native Vegetation Act. In many cases, what they did then would now be legal under the much fairer and workable land management framework introduced by this Government," he said.

"I have met with many of these farmers and understand the considerable pain they must be going through, particularly as they simultaneously battle one of the worst droughts in living memory. I am of the firm view that prosecutions should be halted if the actions undertaken by a landholder would now be permissible under the new land management laws."

Mr Marshall promised to meet the Environment Minister Matt Kean to discuss what can be done about the prosecutions for alleged historic offenders who would not have committed an offence under the current legislation.

Meantime, the rocky road to better native vegetation management got bumpier with a state Audit Office report calling for tougher regulation and management laws.

"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," its report stated.

Office of Environment and Heritage figures say more woody vegetation is being cleared for cropping and grazing, up from 9200 hectares in 2013-'14 to 20,200ha in 2016-'17, while unexplained clearing of woody vegetation almost doubled from 5600ha to 10,300ha.

"Despite around 1000 instances of unexplained clearing, over 500 reports to the environmental hotline each year and around 300 investigations in progress at any one time, there are few prosecutions, remediation orders and penalty notices for unlawful clearing," read the report.

The Nature Conservation Council is now calling for immediate suspension of code-based land clearing and another "rigorous independent review". The council described the current legislative process an environmental disaster with wildlife habitat dozed and no oversight, accountability or enforcement.

In fact, those who do the wrong thing are being brought to justice. In April a Garah landholder was fined $350,000 and ordered to remediate 975ha for breaching the Native Vegetation Act after clearing 500ha of Coolibah Black Box Woodland and a Darling River aquatic ecological community over two and half years.

It also found unexplained land clearing could take two years to identify and analyse. In fact, those who do the wrong thing are being brought to justice.

"Just because someone makes a complaint about land clearing doesn't mean it is illegal," says NSW Farmers' Conservation and Resource Management Chair and Tenterfield Shire councillor Bronwyn Petrie.

The debate on native vegetation is confused by data which tells only part of the story.

Like mowing a one acre block on the outskirts of suburbia, every week for a year, does not equate to 52 acres of land clearing. And yet that is how the current laws operate.

It's the same for regrowth, woody weeds, selective harvesting of native timber on private land or the clearing of failed timber plantations that are now being reverted to pasture. All these actions make up the cumulative annual land clearing figure.

"Every time invasive vegetation is removed that comes up as land clearing," says Mrs Petrie.

"There are a lot of people who read that and think new areas of vegetation are being cleared. Meanwhile there are vast areas of invasive native species proliferating in NSW while land managers wait to get sensible options to deal with it."

The new codes, introduced 18 months ago, allow block areas of woody weeds to be removed but this week the Audit Office report recommends nil soil disturbance which means farmers could only clear individual woody stems.

Mrs Petrie says she now worries that the report's recommendations will pressure Local Land Services and Office of Environment and Heritage to rush and prematurely release maps that define exempt and regulated areas.

Already there have been mistakes, like African Love grass being regarded as native pasture - which might prevent a New England grazier from planting winter oats - or even plantation avocados being classed as rainforest. These errors only create greater distrust between farmers and those driving new legislative change.

NSW Farmers Association agrees that there is a need to speed up the process of dealing with the myriad applications to deal with native vegetation. And they support increased satellite monitoring and assessment by LLS and OEH, but not a rushed release of defining maps.

"That's why we asked pre-election for $50m to better resource these new laws," says Mrs Petrie, "to speed up processing applications and compliance procedures.

"However,the last thing we need are inaccurate maps which would paralyze agriculture and distract the LLS and OEH staff."

"We've waited 24 years for better legislation but if work is stopped now while maps are fixed, OEH and LLS would require an army of staff to do that job while the processing of approvals would grind to a halt.

"Until the backlog of applications are dealt with we do not need a diversion of staff and resources with the resulting loss of trust in the process. We don't want the gate shut while we're in the process of building bridges.

"At the moment farmers are starting to trust and engage with the LLS and are looking for productive outcomes."

The need for change in this space has been obvious for some time, with a 2014 review of biodiversity legislation in NSW saying at the time that current laws created a complex system that was difficult for the community to navigate and imposed unnecessary regulatory burdens.

"The current system does not take into account social and economic considerations when determining whether clearing of native vegetation may be carried out for agricultural development.," it read.

"Almost two decades of changes to the native vegetation laws have resulted in a cumbersome and over-regulated system that is process driven.

"The regulatory system for managing native vegetation has led to some significant perverse outcomes. For example, the current way in which the Act is administered does not adequately support rotational farming and management of native grasses and seasonal practices.

"Landholders also maintain that the current arrangements are not sufficiently flexible to deal with clearing isolated paddock trees, which inhibits innovative agricultural techniques and farm productivity."

The new legislation is based on that report's 54 recommendations.

"Farmers are the only ones who can deliver these new environmental outcomes and at the moment that trust between the land holder and the likes of the LLS is coming back," says Mrs Petrie.

"Some people are determined to discredit the new legislation. But we're prepared to give it a go. Farmers need flexibility to reclaim land they couldn't control under the old act."


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