SUBMISSION GUIDE NATIVE PLANTS AND ANIMALS. May

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1 SUBMISSION GUIDE NATIVE PLANTS AND ANIMALS May

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3 CONTENTS Protecting threatened species and areas of outstanding biodiversity value 5 Part 1. Threatened plants and animals in the BC Act 5 Part 2. Proposals for consultation in the draft BC Regulation 7 A new framework for managing interactions with plants and animals 10 Part 1. BC Act: A new risk-based approach to regulating wildlife interactions 10 Part 2. Proposals for consultation in the draft BC Regulation and supporting products 11 3

4 This document provides detailed information stakeholders may wish to consider when making a submission on exhibited products, tools and Regulations. Part 1 of this submission guide outlines the new framework for plants and animals established under the Biodiversity Conservation Act This Act was passed by Parliament in late Part 2 of this submission guide outlines the elements of the new framework that will be delivered by the Biodiversity Conservation Regulation. We are seeking comments on these proposals as part of the current public exhibition. 4 SUBMISSION GUIDE: Native Plants and Animals

5 PROTECTING THREATENED SPECIES AND AREAS OF OUTSTANDING BIODIVERSITY VALUE Part 1. Threatened plants and animals in the BC Act The Biodiversity Conservation Act 2016 (BC Act) strengthens the fundamental legal protections for our threatened species and protected native plants and animals, including ensuring threatened species listing provisions better align with international standards. The BC Act legislates the successful Saving our Species program, which delivers a modern approach to threatened species conservation. This is supported by unprecedented investment of $100 million over five years in the Saving our Species program. The BC Act also allows the Minister for the Environment to declare Areas of Outstanding Biodiversity Value (AOBV), an innovative measure which goes beyond the current concept of critical habitat. Listing threatened plants and animals In NSW, almost 1,000 plant and animal species are already listed as at risk of extinction. The NSW Government is investing $100 million over five years in the Saving our Species program, which aims to secure the future in the wild for as many threatened species as possible. The NSW Government is also adopting a modern approach to identifying these threatened plants and animals. This new approach will keep the best elements of the current system while drawing on lessons from around the world. Under the BC Act, threatened plants and animals will continue to be listed according to their risk of extinction. The independent Threatened Species Scientific Committee will be responsible for listing threatened species, ecological communities and key threatening processes using transparent and scientifically based criteria established in the Biodiversity Conservation Regulation. Any person may make a nomination to the Committee. The community will be consulted on all proposals to change the lists. The BC Act updates some threat categories to better align with international standards developed by the International Union for Conservation of Nature (IUCN). IUCN standards are widely recognised as the most comprehensive way to evaluate the conservation status of plant and animal species. The updated approach to listing will support greater consistency with the way that threatened species are assessed and listed in other Australian jurisdictions through a Common Assessment Method. 1 Current threatened species lists under the Threatened Species Conservation Act 1995 (TSC Act) will be carried over to the BC Act. The existing Scientific Committee is responsible for keeping the lists under review and determining whether any changes are necessary. 1 The Common Assessment Method is available on the Australian Government Department of the Environment and Energy website at environment.gov.au/biodiversity/threatened/cam. 5

6 Areas of outstanding biodiversity value (AOBVs) The BC Act gives the Minister for the Environment the power to declare AOBVs, which meet strict criteria to be set out in the draft BC Regulation. AOBVs are areas that contain irreplaceable biodiversity values that are important to the whole of NSW, Australia or globally. AOBVs may include sites that are critical for reducing the risk of species extinction, conserving species diversity, ecological integrity, maintaining landscape connectivity or supporting migratory species as well as for education and scientific research. The AOBV concept covers a broader range of biodiversity values than the critical habitat concept under the existing TSC Act by applying to biodiversity values beyond just threatened species and ecological communities. The process for declaring an AOBV is set out in the BC Act, which includes a requirement for the Office of Environment and Heritage to consult the community on any recommendations to declare an area as an AOBV. AOBVs will be a priority for investment in private land conservation, and impacts from development and other activities must be carefully assessed. Under the BC Act, it is an offence to damage an AOBV, unless you have specific authorisation to do so (for example, through a development consent). The BC Act requires that the Biodiversity Assessment Method must be applied to any development proposal located on land that has been declared an AOBV. You can find out more about the Biodiversity Assessment Method in the submission guide on Ecologically Sustainable Development. AOBVs are excluded from the land management framework set out in the Local Land Services Amendment Act This means clearing under the land management code is not permitted on land that has been declared an AOBV. You can find out more about the land management framework in the submission guide and fact sheet on Land Management. The existing areas of critical habitat declared under the TSC Act will become AOBVs when the BC Act commences. When an AOBV is declared, the BC Act provides that the Minister for the Environment will take reasonable steps to enter into a private land conservation agreement with the owner of the land (section 3.4(1)(b)). This allows the landowner to access ongoing support in exchange for conserving special biodiversity on their land. Private land conservation agreements are voluntary and the landowner may choose not to pursue this option. 6 SUBMISSION GUIDE: Native Plants and Animals

7 Part 2. Proposals for consultation in the draft BC Regulation The draft BC Regulation provides additional detail to support the framework for listing threatened species and ecological communities in the BC Act. You can have your say on these proposals by making a submission during the exhibition period. Listing criteria The draft BC Regulation updates the existing listing criteria in the Threatened Species Conservation Regulation 2010 (TSC Regulation) to align with IUCN standards and the Common Assessment Method. Key changes relate to measures of: quantitative analysis of extinction probability (of a species) or collapse (of an ecological community) environmental degradation of an ecological community disruption of biotic processes or interactions of an ecological community. Populations are defined as a subset of species under the BC Act. They have previously been listed separately in NSW. The BC Act introduces this change to align with the Common Assessment Method. This means the draft BC Regulation does not provide separate listing criteria for populations. However, the draft BC Regulation does set out that a population can be listed under a threatened species list if: the species to which the population belongs is not separately listed as a threatened species, and in the opinion of the Scientific Committee, the population is observed, estimated, inferred or projected to be of significant conservation value based on its role in the conservation of the species or a number of species. To support transition to the new legislation, the existing list of endangered populations (from the TSC Act) will be carried over to the BC Act. The Threatened Species Scientific Committee will keep the list under review and determine whether any changes are necessary. Areas of Outstanding Biodiversity Value (AOBVs) AOBV criteria Under the BC Act, land is only eligible to be declared an AOBV if, in the opinion of the Minister for the Environment, it: is of importance at a state, national or global scale and it makes a significant contribution to the persistence of one or more of the following: 1. multiple species or at least one threatened species or ecological community 2. irreplaceable biological distinctiveness 3. ecological processes or ecological integrity 4. outstanding ecological value for education or scientific research. The draft BC Regulation provides additional detail on how to assess if an area meets the eligibility requirements of the BC Act. The criteria in the draft BC Regulation are designed to identify the most valuable sites for biodiversity conservation in NSW, with a focus on sites with highly distinctive biodiversity or features critical to the future of biodiversity in NSW (for example, unique components of genetic diversity that enable species to adapt to changing environments). The criteria should be read in the context of the BC Act. That is a proposed AOBV must meet the requirements of the BC Act (around the importance and contribution of the site) and the criteria in the draft BC Regulation. The proposed criteria in the draft BC Regulation draw on international best practice identified by the IUCN in its Standard for the Identification of Key Biodiversity Areas. 7

8 Proposed criteria: An area makes a significant contribution to the persistence of multiple species or at least one threatened species or ecological community if: a. it provides resilience under periods of environmental stress that is important for their continued existence, or b. it sustains adaptive capacity or evolutionary potential, because it contains high levels of unique components of genetic diversity that will enable species to adapt to changing environments or it functions as an important ecological or evolutionary refuge able to sustain viable populations of species at risk due to climate change, or other environmental stressors, or c. it supports migration or dispersal of plants and animals currently or in the future, that will contribute significantly to the persistence of species at risk, or d. it is habitat critical for the survival of a threatened species. An area makes a significant contribution to the persistence of irreplaceable biological distinctiveness if: a. it has a very high structural, functional or compositional diversity, or b. it is an essential site for the persistence of evolutionarily or ecologically distinctive species or endemic species or ecological communities, or c. it is an essential site for the persistence of two or more threatened species or ecological communities in any combination. An area makes a significant contribution to the persistence of ecological processes or ecological integrity if: a. it has ecological integrity, being an area that is: i. an outstanding, relatively intact example of a functioning ecosystem type, or if a fully intact ecosystem does not remain, then the best remaining example of that ecosystem type that contributes to maintaining the persistence of biodiversity and ecological integrity ii. the most intact remaining site of a species occurrence that provides habitat requirements vital to the conservation of a species, or iii. the last known remaining site of a species occurrence, or b. it is a primary contributor to the continuation of essential ecological processes or c. it is an essential site for a significant proportion of the population of a species during one or more key life history stages or processes. An area makes a significant contribution to the persistence of outstanding ecological value for education or scientific research if it contains established infrastructure or data related to longterm ecological research monitoring programs that establish an irreplaceable historical baseline, being the best site anywhere in NSW for long term research on particular species or ecological communities or ecological processes. The draft BC Regulation provides that the Chief Executive of OEH can develop guidelines, in consultation with the Secretary of the Department of Planning and Environment, to support interpretation and application of the criteria. 8 SUBMISSION GUIDE: Native Plants and Animals

9 AOBV DECLARATIONS Under the BC Act, a notice must be published online when an AOBV is declared. The draft BC Regulation requires the notice to provide reasons demonstrating how it meets the requirements in the BC Act and draft BC Regulation, and an indicative map showing the spatial extent of the AOBV. The draft BC Regulation allows both the Minister for the Environment and Chief Executive of OEH to restrict access to certain information where it is in the public interest to do so. This is consistent with current arrangements for critical habitats. For example, the location of wild stands of the Wollemi Pine has not been disclosed in order to protect them from threats like disease which could be carried by visitors to the site. RETAINING OFFENCES FOR EXISTING CRITICAL HABITATS The draft BC Regulation re-creates the existing offences in Parts 3 and 4 of the TSC Regulation which apply specifically to the Little Penguin and Wollemi Pine declared critical habitats. For example, it will continue to be an offence to take a companion animal into the Little Penguin critical habitat. The offences which specifically apply to the Little Penguin and Wollemi Pine critical habitats will not apply to other AOBVs when the BC Act commences. As noted above, under the BC Act it will be an offence to damage an AOBV, unless you have specific authorisation to do so. 9

10 A NEW FRAMEWORK FOR MANAGING INTERACTIONS WITH PLANTS AND ANIMALS Part 1. BC Act: A new risk-based approach to regulating wildlife interactions The NSW Government is committed to protecting native animals and plants. The BC Act establishes a new risk-based approach to managing wildlife interactions. This will deliver more efficient and effective regulation of our interactions with native animals and plants. To date, regulation has mostly been achieved through a complex licensing system that has managed low and high-risk wildlife interactions in the same way, without differentiating between individual and commercial wildlife uses. The BC Act establishes a new framework which will allow government to focus resources on compliance and enforcement of higher risk activities. The new approach will also have a greater focus on education, particularly in response to emerging new issues in wildlife interactions. The new approach adopts a tiered, risk-based framework that includes: exempt activities (low risk) activities that comply with a code of practice (moderate risk) licensed activities (high risk). The level of risk is based on the likely impacts on populations of native animals and plants, animal welfare, and human health and safety. The BC Act establishes a range of offences related to wildlife, including harming animals, picking certain plants and dealing in plants and animals. To avoid committing an offence, any wildlife activity that is not an exempt activity or covered by a code of practice will require a biodiversity conservation licence under the BC Act, unless a defence applies. Defences include where an act was for emergency firefighting or was authorised by a private land conservation agreement. Biodiversity conservation licences will be used to manage harm to wildlife, animal welfare and human health and safety. Higher risk activities that will continue to be licensed include activities that will significantly impact threatened species, pet shops selling native wildlife, trading in native plants, keeping higher risk reptiles and the commercial kangaroo harvest. It is an offence to contravene a condition of a licence. 10 SUBMISSION GUIDE: Native Plants and Animals

11 Part 2. Proposals for consultation in the draft BC Regulation and supporting products The draft BC Regulation provides further details to support the new legislative framework for wildlife management, including details regarding licensing, codes of practice, offences and defences, and marine mammal interactions. You can have your say on these proposals by making a submission during the exhibition period. Licensing There will be a range of activities that will be licensed under the BC Act. The Act provides flexibility for licences to be issued with different types of conditions. This means the licence conditions can be tailored to the activity. The draft BC Regulation does not prescribe classes of licences. This ensures there is flexibility to tailor licences to respond to emerging issues. Licensing provisions The draft BC Regulation introduces new eligibility criteria for applicants seeking a biodiversity conservation licence under the BC Act. This will ensure applicants have the appropriate qualifications, skills, reputation and ability to undertake licenced activities. The draft BC Regulation also introduces a series of assessment considerations for the Chief Executive of OEH when assessing a licence application, ensuring a transparent and rigorous approach. Licence fee provisions The draft BC Regulation will prescribe a standard licence application fee. The Chief Executive of OEH will have the power to set additional fees in circumstances where the cost of assessing applications exceeds the standard fee. Fees may also be waived or reduced in appropriate circumstances (e.g. reduced fees for pensioner animal keeper licences and waived fees for property owners mitigating crop damage caused by native animals). The standard licence fee amount will be determined following a review of existing fees, in consultation with relevant stakeholders. Information about applicable fees, including the methodology for determining additional fees, and fee waivers and discounts, will be published on the OEH website to ensure transparency for applicants. 11

12 What will happen to existing licences? Licences granted under existing legislation will become biodiversity conservation licences under the BC Act, and will remain valid until they expire. Applications that have not been determined before the BC Act commences will be assessed under the BC Act. OEH will notify existing licence holders and licence applicants if they no longer need a licence under the new risk based framework. CODES OF PRACTICE RELATING TO ANIMALS AND PLANTS Under the BC Act, moderate-risk activities can be carried out in accordance with requirements set out in an enforceable code of practice. These activities do not need a licence or assessment but will need to be carried out following the requirements outlined in the relevant code of practice. There may be record keeping requirements in a code of practice. The draft BC Regulation establishes that a code may provide a defence to an act that would otherwise be a wildlife offence under Part 2 Division 1 of the BC Act or any offence in the BC Regulation made under that Division. The code may limit the offences for which it provides a defence. The draft BC Regulation also provides that a code will be made by the Minister and will be published on the NSW legislation website. Initial targeted consultation on proposed codes of practice that may be adopted under the BC Act has been undertaken. Codes of practice that are proposed for adoption will be publicly exhibited before coming into effect, in accordance with the public consultation requirements of the BC Act. Permitted activities The draft BC Regulation provides that some acts are allowed to be carried out, either by being excluded from an offence or by being a defence for certain BC Act offences. The proposed regulatory provisions are based on existing arrangements under the National Parks and Wildlife Act 1974 (NPW Act) and the National Parks and Wildlife Regulation For example, the draft BC Regulation incorporates existing provisions relating to the exemption of keeping and trading 41 species of common pet birds (e.g. common parrot and budgerigars). The BC Act establishes defences to the various offences related to threatened and protected native plants and animals. The draft BC Regulation proposes some additional defences such as: harming snakes where they pose a clear risk to a person or property harming certain over-abundant birds in certain areas of NSW and for certain purposes (such as to mitigate damage to commercial crops) picking grown or cultivated protected plants on private land with the appropriate consent emergency response operations in respect of marine mammals by authorised officers under the BC Act or by individuals administering other relevant legislation possessing distressed animals in order to protect them in situations where the animal is unable to fend for itself (the defence would only apply if OEH has been notified and any directions that are provided followed) buying, selling or dealing in plants obtained from persons authorised to grow and sell the plants by a licence under the BC Act import or export of protected plants if relevant requirements under the BC Act or legislation in other jurisdictions are met»» possessing retail meat and other products where lawfully obtained under the BC Act e.g. kangaroo meat harvested in accordance the NSW Kangaroo Management Program. 12 SUBMISSION GUIDE: Native Plants and Animals

13 Additional offences As noted above, the BC Act establishes a range of offences. These include harming threatened and protected animals, picking threatened and protected plants, dealing in threatened and protected plants and animals and breaching a biodiversity conservation licence condition. The draft BC Regulation proposes some additional offences such as: failing to register a person or premises as required by a licence or code failing to keep or produce records, when required failing to follow tagging requirements for deceased animals. Penalty notice offences and amounts The draft BC Regulation prescribes penalty notice amounts for wildlife offences. These provide a strong and modern approach to regulation. The offences will consistently differentiate conduct by individuals and corporations. For example, the penalty notice amount for damaging the habitat of a threatened species or ecological community is $16,500 for corporations and $3,300 for individuals, compared to $3,000 for corporations and $1,500 for individuals under equivalent provisions in the NPW Act. Marine mammal protections The BC Act also enables the BC Regulation to provide for the protection, care or preservation of marine mammals including prohibiting or regulating approaching or interfering with marine mammals. The draft BC Regulation sets out provisions to help protect marine mammals including the approach distances for any aircraft, vessels, unmanned aerial vehicles (e.g. drones) and other human interactions with marine mammals. These provisions have been carried over from the NPW Regulation, with some minor updates to provide greater clarity. Consideration was also given to approach distances in other jurisdictions. The draft BC Regulation prescribes the penalty notice amount for offences related to marine mammals: $6600 for a corporation ($16,500 if offences occur during the course of commercial operations) and $1320 for an individual ($3300 for commercial operations). Management plans The draft BC Regulation includes provisions for establishing management plans where a commercial activity has the potential to adversely affect the conservation of a protected animal or plant, or a plant or animal that is threatened or part of a threatened ecological community. The draft BC Regulation also proposes that the Chief Executive of OEH may adopt any existing management plans under other legislation for the purposes of the BC Act. A licence may require a person to comply with a management plan. These provisions are based on existing provisions for protected plants in the NPW Act. 13

14 Ongoing consultation opportunities CODES OF PRACTICE AND LICENCES Initial targeted consultation on potential wildlife codes of practice and proposed changes to existing wildlife licence classes and conditions has been undertaken with stakeholders. Codes of practice that are developed will be publicly exhibited before coming into effect, in accordance with the BC Act. OEH also intends to undertake public consultation on proposed changes to existing wildlife licence classes and conditions and proposals for licensing fees. ACCREDITATION SCHEME FOR WILDLIFE REHABILITATION PROVIDERS Wildlife carers provide important and specialised care and treatment for injured and sick animals and an important service to the community. OEH will work with wildlife rehabilitation providers through a separate consultation process in early 2018 to develop a new wildlife carer accreditation scheme for providers. It is likely the accreditation scheme will commence in late EDUCATION ON THE NEW FRAMEWORK Education to increase community knowledge and understanding of NSW s unique native plants and animals will help ensure compliance with the wildlife management framework. A community education program will be developed to improve the public s knowledge and understanding of wildlife conservation and protection and the impacts of human-wildlife interactions. 14 SUBMISSION GUIDE: Native Plants and Animals

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