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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2008-11-27 Daily Xml
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NATIVE VEGETATION (MISCELLANEOUS) AMENDMENT BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Small Business) (15:34): I move:

That this bill be now read a second time.

I seek leave to have the detailed explanation of the bill insert in Hansard without my reading it.

Leave granted.

In July last year, the initiation of new directions for native vegetation management in South Australia was announced. This Bill is one component of new arrangements that aim to strengthen biodiversity conservation in the State, and at the same time support sustainable development.

Early last year, key interest groups and government agencies (covering conservation, mining, development, farming, natural resources management, local government and tourism interests) were consulted on a draft Bill to amend the Native Vegetation Act 1991 and draft variations to the Native Vegetation Regulations 2003. The same group was consulted on how the administration of the native vegetation legislation might be improved, and specifically its interaction with the Natural Resources Management Act 2004 and the Development Act 1993.

Reflecting on the submissions received, the new directions aim to improve the overall relationship between native vegetation management, natural resources management and industry and will involve changes to both legislation and administrative arrangements. This will be an ongoing process that will involve further consultation.

Already a new Native Vegetation Council has been established which has closer links with natural resources management, including a presiding member common to both the Native Vegetation and NRM Councils. The new Council has moved quickly to focus on the development of policy for native vegetation management across the State. It has done this by delegating decision-making on clearance applications to a sub-committee of the Council. Development of State-wide policies by the Council will facilitate further delegation of decision-making with the aim of reducing red tape and ensuring decisions are made in a more timely manner. For example, local government will be invited to process clearance applications for house sites.

The new arrangements include the development and implementation of processes to better integrate native vegetation into the early stages of the planning cycle to ensure that better and earlier advice is provided to developers.

NRM boards will be provided with the opportunity to develop regionally specific native vegetation management policies, and to work with the Native Vegetation Council and developers to identify strategic areas for achieving offsets for vegetation clearance.

The Department of Water, Land and Biodiversity Conservation has been asked to work towards the development of a standardised assessment process that is more accessible and transparent.

Before discussing the key features of this Bill, I wish to make it clear that the reforms are not intended to alter the central purpose of the Native Vegetation Act 1991, which is to control the clearance of significant native vegetation in this State and to ensure, where clearance occurs to support our economic development, that the loss of biodiversity is offset by a significant environmental benefit.

The continuing health and prosperity of all South Australians depends on the health of our environment, our landscapes and our biodiversity. The effort required to improve and restore the health and resilience of our environment is enormous and will rely on the efforts of South Australians across the State.

The extensive modification of the South Australian agricultural landscape—necessary to support the strong rural base for this State—will not sustain viable populations of many plant and animal species in the limited habitat remaining. With climate change placing more pressure on our native species, we face the risk that SA could lose 30 per cent to 50 per cent of our terrestrial biodiversity over coming decades. The Native Vegetation Act 1991 and the Regulations under the Act are key legislative instruments supporting South Australia’s Strategic Plan 'no species loss' target.

However, innovative changes are needed to connect and accelerate the effort to support biodiversity conservation and to support the 'no species loss' target. The changes initiated for native vegetation management are part of that innovation, and this Bill is one of the building blocks.

The key features of this Bill are to:

increase flexibility in the delivery of significant environmental benefit offsets for vegetation clearance;

add new expertise to the Native Vegetation Council;

make minor modifications to existing powers and penalties to improve the administration of the legislation and to provide better integration with the Natural Resources Management Act 2004.

Significant environmental benefit offsets

The requirement in the Act for the clearance of native vegetation to be offset by a significant environmental benefit is in itself an innovative way to support necessary development for this State whilst also achieving biodiversity conservation objectives.

All remnant native vegetation has value and it is important that the impacts of a proposed development on native vegetation should be avoided or minimised. Even where clearance of native vegetation is exempted from the control provisions of the Act, a proponent must satisfy the Native Vegetation Council that there is no practical alternative that would involve no clearance, or the clearance of less native vegetation, or the clearance of native vegetation that is less significant or that has been degraded to a greater extent than the vegetation proposed to be cleared. Requirements for significant environmental benefit offsets provide a mechanism for redressing impacts that cannot be avoided or minimised.

A number of amendments are proposed in this Bill to provide more flexibility for the delivery of significant environmental benefit offsets, including:

providing for offsets to be delivered where they are most needed, including outside of the region of the original clearance;

providing that the Native Vegetation Council, when considering a proposed significant environmental benefit offset outside the region of the original clearance, must have regard to guidelines prepared and published in accordance with section 25 of the Act;

making it clear that a credit may be registered, against future requirements for offsets, where an offset is delivered that exceeds that which is required to offset the related clearance of native vegetation.

In normal circumstances, the loss of biodiversity associated with clearance of native vegetation should be offset by works on the same property or within the same region that clearance has occurred. However, there may be circumstances where clearance occurs in well represented habitats and a more significant environmental benefit might be achieved by regenerating more significant (less well conserved) native vegetation associations (eg vegetation that provides critical habitat for threatened species) outside the region where the related clearance occurs.

Such decisions should not be taken lightly and it is necessary that the Native Vegetation Council be satisfied that, where an offset for native vegetation clearance is proposed in another region of the State (from that where the clearance occurs), it will result in a more significant environmental benefit than works that might be taken in the region where the clearance occurs.

The consultation package for the Bill included draft guiding principles for the operation of the out-of-region offsets. The guidelines clarify that the offset mechanism is limited to avoid the potential for critical habitat to be offset with habitat that is already well conserved. Section 25 of the Act will be amended to require that the Native Vegetation Council prepare guidelines in relation to out-of-region offsets. The guidelines distributed as part of the Bill's consultation process, inclusive of suggestions for amendment as a result of that process, will be forwarded to the Native Vegetation Council for its consideration.

Offset credits

The Native Vegetation Council has a policy of recognising conservation works previously undertaken when considering offset requirements. Consistent with this, the Council has supported, and sometimes encouraged, a landholder to undertake offset works that exceed requirements. Reasons may include:

conservation outcomes being delivered before they are needed to offset clearance;

maximising conservation outcomes—eg feral animal control can only be effective if applied over a larger area;

minimising impacts—eg a requirement to fence a small offset area within a larger area may result in more clearance.

The provisions in the Bill make it clear that the value of a 'credited offset' is determined at the time it is extinguished (i.e. when it is used to offset clearance).

Membership of the Native Vegetation Council

The Bill changes the membership of the Native Vegetation Council. That change replaces the Commonwealth Minister for the Environment’s nominee with a person who has expertise in planning or development nominated by the Minister responsible for administering the Native Vegetation Act 1991.

The Commonwealth Minister for the Environment has decided not to continue to nominate a representative to the Council. With the change in emphasis for the Council to developing policy, it is appropriate that this position be designated to provide appropriate expertise in planning or development that results in the clearance of native vegetation. A person from the mining sector (currently mining developments are resulting in the most extensive clearance of native vegetation) or with expertise in industrial or urban development or general planning is likely to have the requisite experience. The Minister is provided with appropriate flexibility in nominating a suitable person for appointment.

The inclusion of a member with expertise in these areas on the Native Vegetation Council is sought in a number of recent submissions on the review of the Act.

Miscellaneous amendments

The Bill includes other miscellaneous amendments that:

make minor modifications to existing powers and penalties to improve administration of the legislation and to provide better integration with the NRM legislation;

provide that a breach of a heritage agreement is a breach of the Act to correct an inadvertent omission resulting from changes made in 2002;

clarify that the Act applies to that part of the City of Mitcham consisting of the suburbs of Belair, Bellevue Heights, Blackwood, Coromandel Valley, Craigburn Farm, Eden Hills, Glenalta and Hawthorndene, which will support efforts to protect Grey Box and other native species valued by residents in these areas.

The Bill also makes a related amendment to Schedule 1 of the Heritage Places Act 1993 to include certain early Native Vegetation Heritage Agreements and Monarto Aesthetic Heritage Agreements in the agreements that are dealt with by the transitional provisions in that schedule. These agreements were entered into under the South Australian Heritage Act 1978 by the then Minister in his capacity as Trustee of the State Heritage. These agreements become, by force of this amendment, heritage agreements under the Native Vegetation Act 1991, allowing them to be managed appropriately under the Act.

Conclusion

The new directions for native vegetation management in South Australia, announced during 2007 and supported by the amendments included in this Bill will strengthen biodiversity conservation in the State, while improving flexibility for business and promoting economic development that will contribute to attaining sustainability and losing no species.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Native Vegetation Act 1991

4—Amendment of section 3—Interpretation

This clause makes consequential amendments to the definitions of certain terms used in the Act.

5—Amendment of section 4—Application of Act

This clause inserts new subsection (2a) into section 4 of the Act, setting out the parts of the City of Mitcham to which the Act applies (being the suburbs of Belair, Bellevue Heights, Blackwood, Coromandel Valley, Craigburn Farm, Eden Hills, Glenalta and Hawthorndene).

The clause also makes consequential amendments to the section to reflect the inclusion of new subsection (2ab).

6—Amendment of section 7—Establishment of the Council

This clause inserts a new subsection (3) into section 7 of the Act. The new subsection provides that the Native Vegetation Council is subject to the general direction and control of the Minister, but prevents the Minister from directing the Council in respect to advice or recommendation that the Council might give or make, or in relation to a particular application that is being assessed by, or that is to be, or has been, assessed by, the Council.

7—Amendment of section 8—Membership of the Council

This clause deletes paragraph (f) of section 8(1) of the Act (which states that 1 member of the Council must be nominated by the Commonwealth Minister for the Environment) and substitutes a new paragraph (f) that provides that 1 member must be a person with extensive knowledge of, and experience in, planning or development nominated by the Minister.

8—Amendment of section 9—Conditions of office

This clause inserts new paragraph (e) into section 9(2) of the Act, which allows the Governor to remove a member of the Council for breaching, or not complying, with a condition of his or her appointment.

9—Amendment of section 12—Validity of acts of the Council

This clause repeals redundant subsections (2) and (3) from section 12 of the Act, as the immunity etc provided by those subsections is now dealt with under the Public Sector Management Act 1995.

10—Repeal of section 13

This clause repeals redundant section 13, as matters related to conflict of interest etc addressed by the section are now dealt with under the Public Sector Management Act 1995.

11—Amendment of section 14—Functions of the Council

This clause substitutes a new subsection (2) into section 14, requiring the Council, when performing a function or exercising a power under the Act to take into account and seek to further the objects of the Act and the relevant principles of clearance of native vegetation, and also to take into account relevant NRM plans. The new subsection also requires that, in any event, the Council must not act in a manner that is seriously at variance with the principles of clearance of native vegetation.

12—Amendment of section 21—The Fund

The clause inserts a new paragraph (cc) into subsection (3) of section 21 (which sets out what the fund consists of) to include amounts paid into the Fund in accordance with any provision made by the regulations.

The clause substitutes a new subsection (6) (which sets out how certain money in the Fund must be used) so that money may now be used to preserve etc existing native vegetation in the region where the relevant land is located.

The clause inserts a new subsection (6a), which enables the Council to use money of a kind referred to in subsection (6) to be used to establish etc native vegetation in a region of the State other than the region where the relevant land is located if the Council is satisfied that the environmental benefit to be achieved in the other region will outweigh the value of achieving a significant environmental benefit within the region where the relevant land is located, the native vegetation satisfies certain criteria and the establishment etc of the native vegetation is carried out in accordance with relevant guidelines adopted under section 25 of the Act.

The clause also inserts new subsections (6b) and (6c) which set out procedural matters related to the operation of new subsection (6a).

The clause also amends the definition of relevant land in subsection (7) to include (if new subsection (3)(cc) applies) land on which the native vegetation that is relevant to the operation of the particular regulation was grown or was situated.

13—Amendment of section 25—Guidelines for the application of assistance and the management of native vegetation

This clause amends section 25 of the Act, adding the establishment etc of native vegetation under section 21(6a), and any other matter required by the regulations, to the list of matters the Council must prepare guidelines for.

The clause also inserts a new paragraph (ab) to subsection (2), requiring the Council to submit draft guidelines prepared by the Council to the Minister for comment.

14—Amendment of section 26—Offence of clearing native vegetation contrary to this Part

This clause increases the expiation fee for an offence under subsection (1) or (2) of section 26 to a fine of $750, up from $500.

15—Amendment of section 28—Application for consent

This clause makes consequential amendments to section 28 of the Act.

16—Insertion of section 28A

This clause inserts a new section 28A into the Act. The new clause enables a person, acting in accordance with a consent to clear native vegetation, to receive credit for environmental benefits achieved by the person that exceed the value of the minimum benefit needed to offset the loss of the cleared vegetation, provided the Council is satisfied that the additional benefit is of a significant value. The clause also sets out procedural matters in relation to such credits, including that a determination of the Council for the purposes of the section cannot be the subject of an appeal under Part 5A of the Act.

17—Repeal of section 31

This clause repeals redundant section 31 of the Act (the substance of which is now effected by the definition of breach in section 4 of the Act, as amended by this measure).

18—Amendment of section 33B—Powers of authorised officers

This clause repeals subsections (4), (5) and (6) of section 33B of the Act in order to make the section consistent with the Natural Resources Management Act 2004.

19—Amendment of section 33D—Provisions relating to seizure

This clause amends subsection (2) of section 33D of the Act to increase the prescribed period relevant to the section, making the section consistent with the Natural Resources Management Act 2004.

20—Amendment of section 35—Proceedings for an offence

This clause amends subsection (1) of section 35 of the Act to increase the time within which proceedings for an offence under the Act may be commenced to 5 years, up from the current 4 years (or 6 years in exceptional circumstances). This provides consistency with similar provisions in the Natural Resources Management Act 2004.

21—Amendment of section 41—Regulations

This clause amends the regulation making power in section 41 of the Act to increase the maximum expiation fee under the regulations to $750, to enable the regulations to provide for certain amounts of money to be paid into the Fund and to enable the regulations to create offences with fines of up to $10,000 and make evidentiary provisions in relation to those offences.

Schedule 1—Related amendment

1—Amendment of Schedule 1—Transitional provisions

This schedule amends Schedule 1 of the Heritage Places Act 1993 to include certain Native Vegetation Heritage Agreements and Monarto Aesthetic Heritage Agreements in the agreements that are dealt with by the transitional provisions in that schedule. These agreements become, by force of this clause, heritage agreements under the Native Vegetation Act 1991.

Debate adjourned on motion of Hon. D.W. Ridgway.

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