Legal challenge to land clearing laws
THE Nature Conservation Council of NSW is bringing a court action to challenge the validity of the Native Vegetation Code 2017, which enables private landholders to carry out large-scale clearing of native vegetation without approval or environmental assessment.
Represented by the Environmental Defenders Office, the NCC challenge says there was a failure by the Minister for Primary Industries to get agreement from the Minister for the Environment before the Code was made.
The EDO claims there was an implied failure of the Minister for the Environment to act as custodian and guardian of the environment.
It also states that both ministers failed to have regard for the internationally recognised legal principles of environmentally sustainable development, “particularly the precautionary principle of intergenerational equity and the conservation of biological diversity and ecological integrity”.
“This challenge is being brought to uphold the rule of law,” said David Morris, head of the State EDO.
Mr Morris said with the legislation of 2016, the government specified that the environment minister must have an active role but the failure to get concurrence for this code and its release before the publication of Native Vegetation Regulatory Maps suggests it was created in a rushed manner.
“Consequently, land clearing has been left to the discretion of individual landholders and it looks as though the Minister for the Environment has been just a rubber stamp. Ministerial involvement in the making of delegated legislation must be in accordance with the law.
“Consideration of the legal principles of environmentally sustainable development is a fundamental requirement for the making of a code like this and evidence suggests this has not occurred.”
A spokesperson for the Minister for Primary Industries, Niall Blair, said: “The code forms an integral part of the government’s biodiversity reforms, which have been subject to extensive consultation, and balances the rights of landholders with environmental concerns.
“The code was prepared in response to the review by the Independent Biodiversity Legislation Review Panel.
“The matter is now before the Land and Environment Court and it is not appropriate to comment further at this stage.”