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Vegetation laws are bad for farmers and the environment

Mick Keogh - Friday, September 19, 2014

A bad law remains a bad law, irrespective of the passage of time or the variety of different reasons trotted out for its retention.

Such is the case for the NSW Native Vegetation Act, legislation which has a lineage which can be traced back to State Environmental Planning Policy 46, introduced surreptitiously overnight on 10th August 1995 by then NSW Premier Bob Carr. Without any warning, this regulation and later legislation decimated the property values of farmers in many regions of NSW, created a cumbersome and tangled web of productivity-sapping regulations, and tasked an ill-equipped bureaucracy with making decisions that even Solomon in all his wisdom would have found impossible.
The fact that this and related legislation have been subject to almost constant review, revisions and public inquiries over the past almost twenty years, and that despite the incessant tinkering this legislation is again the subject of a major review, simply reinforces the fact that it is fundamentally flawed.

Put simply, the legislation effectively decrees that any area of farm land that had native trees growing on it as of January 1, 1990 (or 1983 for western NSW) cannot be used for productive agricultural purposes because those trees cannot be removed without government approval.

To put this in an urban perspective, it would be equivalent to a law which decreed that the area of land available for housing in Sydney was frozen on 1 January, 1990, and no new housing or land development could occur, irrespective of changes in the population or other factors.

It would be equivalent to such a law, except that clearing trees for urban development or mining is possible under the legislation, and it is only the clearing of trees for agricultural purposes that is effectively banned.

There are two fundamental reasons that this is a bad law. The first is that the law and associated legislation aims to achieve what is largely a ‘public good’ by imposing a regulatory and financial cost on the private owners of farm land in NSW. The second is that it creates a large perverse incentive for all farm land owners in NSW to take action to limit or remove biodiversity or threatened species and their habitat, which is the exact opposite of the stated intentions of the legislation.

The stated objectives of NSW Native Vegetation legislation are to help conserve biodiversity, to protect native vegetation of high conservation value, to help prevent salinity and land degradation, to improve the condition of existing native vegetation and to encourage land revegetation and rehabilitation. Of these, only the prevention of salinity and land degradation are what might be termed ‘private benefits’ for the owner of the land, and landholders obligations in relation to these issues are already covered under the NSW Soil Conservation Act. 

Of course the other unmentioned public benefit arising from the NSW Native Vegetation Act, in combination with a greenhouse emission accounting rule negotiated by the Australian Government as part of the Kyoto Protocol, is a substantial reduction in greenhouse emissions for the state and the nation. In fact were it not for the reduction in national greenhouse emissions associated with bans on vegetation clearing on farm land, Australia would have considerably exceeded its Kyoto Protocol greenhouse emission commitment.

Hence the overwhelming benefits associated with the NSW Native Vegetation Act are benefits enjoyed by the entire community. But these are achieved by imposing a cost on landholders that the Australian Government Bureau of Agricultural and Resource Economics and Sciences (ABARES) estimated to be over $1 billion in 2006, and which has increased since that time. Perhaps not surprisingly, an inquiry by the Productivity Commission in 2004, ABARES research in 2006, and more recently a Senate Inquiry concluded in 2012 all heavily criticised the legislation and its inequitable impact on affected landholders.

The second major failing of the legislation is that it actually discourages landholders from taking action to help achieve its stated objectives. This is because there is only one possible outcome for landholders who identify threatened native plants or animals on their land, or who have areas of native vegetation on their farm that has high biodiversity values. If they advise authorities of the existence of these, their ability to make use of that land for productive purposes in the future will be removed or severely regulated, and they will suffer an economic loss. Consequently, the many landholders who are quite happy to maintain or improve the biodiversity and other environmental values of their land have an incentive to “shoot, shovel and shut up”, the exact opposite of what the legislation seeks to achieve.

There are a range of different ways for Governments to achieve better environmental outcomes by working co-operatively with farmers and leveraging their already high conservation ethic. Ultimately, however, these must involve the provision of financial incentives for landholders who provide a significant public benefit, and must also recognise the reality that both farming and the environment change over time, and legislation needs to be responsive to those changes.

Of course, any proposal to change the Native Vegetation legislation triggers a raucous critical response from environmental advocates, who immediately initiate massive scare campaigns claiming that every tree in the state will be bulldozed, which could not be further from the truth. 

Over 100 million hectares of Australian farmland (20%) has been converted into conservation reserves over the past forty years. However, despite major improvements in land management and biodiversity outcomes, the view of experts is that more needs to be done, and biodiversity conservation on private land will be a critical part of that effort.

Farmers have shouldered much of the cost associated with this, but it is unfair and unrealistic to assume that the world’s least-subsidised farmers can continue to carry this burden unassisted, in order to achieve a benefit for the entire community. A different approach is needed, and the current review of legislation including the NSW Native Vegetation Act provides an opportunity to finally get this right after twenty long years.
Anonymous commented on 19-Sep-2014 01:48 PM
Excellent article. One issue which needs more coverage is refutation of the oft repeated assumption that broad scale clearing causes "soil degradation ,salinity and erosion" and promotion of the fact that current farming methods are improving soils.
angus atkinson commented on 20-Sep-2014 08:27 AM
This article articulates the major reasons why we need to reform the various native vegetation legislation. It was very interesting the perverse outcome the acts has had in relation to native vegetation conservation. I completely agree with Mick's comment regarding working with farmers.
Great too see a balanced article

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