Protected and Conserved Areas Policy Section
Department of Climate Change, Energy, the Environment and Water

 

Re. Consultation on draft principles to guide recognition of other effective area-based conservation measures in Australia

Thank you for the opportunity to comment on the draft principles of OECMs.

Friends of Grasslands (FOG) is a community group dedicated to the conservation of natural temperate grassy ecosystems in south-eastern Australia. FOG advocates, educates and advises on matters to do with the conservation of native grassy ecosystems, and carries out surveys and other on-ground work. FOG is based in Canberra and its members include professional scientists, landowners, land managers and interested members of the public.

In the Australian Capital Territory the Conservation Council ACT Region and Friends of Grasslands have developed a proposal for a Biodiversity Network that recognises that off-reserve areas are important for biodiversity and identifies the need to conserve and manage them for their ecological values [1].  Our proposal is available here. We modelled this proposal largely on the OECM classification. The proposal is fully supported by the ACT’s conservation community and is being strongly considered by the ACT Government.  While this proposal was focussed on Territory Land rather than Commonwealth Land within the ACT, the concepts and recommendations hold true for all land with important biodiversity values. Our comments on the consultation paper are, therefore, based on the principles and recommendation of our Biodiversity Network paper.

Summary, specifically in relation to ACT grassy ecosystems with important conservation values

FOG supports the implementation of OECMs, broadly as stated in the discussion paper. We have provided comments below that we believe should be considered further. 

1. In ACT particular protection under OECMs is required for the two critically endangered ecosystems, White Box – Yellow Box – Blakely’s Red Gum Grassy Woodland and Natural Temperate Grassland of the South-eastern Highlands. Both these areas and associated threatened species are at considerable risk of further loss, degradation and fragmentation due to their inadequate conservation, particularly within the urban and peri-urban landscape. Many of these remnants are small, although there is effort being applied to improve connectivity between remnants, including restoration of natural habitat.
2. FOG does not believe that recognition in itself of an area as an OECM will secure important biodiversity values. The States and Territories should be encouraged to introduce protection mechanisms for sites that meet OECM criteria where they cannot become formal protected areas and to provide support in terms of resources and advice to landholders. Conservation Agreements may be appropriate, although we hope that the ACT Government will create a unique land use zone under ACT legislation for OECMs.
3. Facilitation of ecological conservation management across all tenures must be provided to ensure the conservation values of the areas are maintained; again, this does not preclude other land uses.
4. Where community and private land owners or leaseholders are involved in management, opportunities should be given through Commonwealth and state funding programs including NRM to develop work programs and employ advisers to ensure management is coordinated and appropriate.
5. Considerable resources will be required to implement these opportunities on privately held land, so that 'landholders' do not fear that their tenure or income are compromised, but are willing to work towards achieving the aims of the OECMs. This will require education, communication, liaison and resources. 
6. We welcome and support that every effort will be taken to ensure governance by First Nations people, including control of cultural matters and implementation of traditional management practices. We believe remnants containing cultural values should be recognised as OECMs as well as those with biodiversity values.
7. Criteria used to identify areas that would be categorised as OECMs should be developed at the national level so that they are consistent across all jurisdictions.

General comments

General

It is understood OECMs will contribute to global and national 30 by 30 protection targets despite the fact OECMs will provide no formal (legal) protection for biodiversity. It is also understood this is on the basis some biodiversity in the Australian jurisdiction is being, and is likely to continue to be, sustained without the need for formal protection. Based on these understandings, the proposal is broadly supported, although as stated above we believe legal protection should be applied to OECMs where possible.

The adoption of the IUCN-WCPA Task Force on OECMs’ 2019 definition of ‘Governance authority’ (in the Consultation Paper’s Glossary) will not be appropriate without some minor amendment because it assumes there is always only one ‘Governance authority’ in Australia for any ‘Geographically defined area’:

• The assumption does not reflect how land use is managed here; typically, one ‘Governance authority’ controls surface rights, such as a state or territory pastoral board, while another controls sub-surface rights, such as a mines department. In this example, both authorities would be relevant as each could fundamentally affect the continued existence of any OECM.

Principle 4.3 ‘Protected area consideration’

Principle 4.3 ensures formal protected area options must have been properly considered first. As such, the first of the following two points would not be onerous. For quality assurance, it is recommended:

• Following the recognition of any site as an OECM, a notification should be published that states why it is not appropriate, achievable or desirable to designate the site as a protected area.
• It would be ideal if each such statement were required to make clear why it would not be appropriate, achievable or desirable for the federal Environment Minister to execute a Conservation Agreement over the OECM site under s.305(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) (Conservation Agreement).

Rationale for the second recommendation against Principle 4.3: 

• Successive federal Environment Ministers have executed very few Conservation Agreements to protect biodiversity in the Australian jurisdiction (see ss.305(1)(a) of the EPBC Act; the short list of these agreements is here).
• Federal Environment Ministers could be executing more Conservation Agreements. The mechanism is flexible while offering the potential to ‘run with the land’ and bind successors in title.
• Were this to occur, Conservation Agreements would be protecting biodiversity in much the same way as state or territory conservation covenants do when the latter are executed and recorded on land title.
• Conservation Agreements could be recorded in or on Torrens Title and related registers, including to draw attention to the existence of the encumbrance (clauses 94-95 of the Nature Repair Market Bill 2023 (Cth) demonstrate it is possible to enable state and territory authorities to include notification of a federal agreement on state or territory register).
• The execution of Conservation Agreements by federal Environment Ministers would overcome numerous instances where landholders, leaseholders and/or state and territory agencies report protection via state or territory conservation covenants is unachievable. This likely includes all cases alluded to in sections 4.3 and 4.5 of the Consultation Paper (where it is suggested “there may be impediments” to the declaration of protected areas and the recognition of OECMs on leasehold land).

Principle 4.4 ‘Geographically defined area’

It is not adequate to require that a part of a larger property to be recognised as an OECM “must be clearly described”:

• For this Principle, wherever an OECM is recognised, the minimum standard must be a clearly identifiable boundary on a scalable map that is published.
• Except for road reserves, for land that is or could be registered under a Torrens system of registration, where only part of a property is to be recognised as an OECM, that portion should be sub-divided first to render it clearly identifiable.

Principle 4.5 ‘Land tenure’

As a guide to decision-making, the Principle related the recognition of OECMs over leasehold land is vague and uncertain, providing no useful guidance for decision-making and offering no prospect of progress toward a resolution of the issue alluded to, i.e., the so called impediments to establishing and recognising protected areas and OECMs, respectively, over leasehold land.

Given environment ministers from all jurisdictions have agreed to work collectively to achieve the national 30 by 30 target, this is an opportunity to explore in greater detail the nature and scale as well as a solution via changes to relevant statutes, regulations and/or policies. One possible solution has already been suggested above, i.e., more Conservation Agreements.

Principle 4.8 ‘Sustained long-term’

When assessing the long-term intention for the management any ‘Geographically defined area’, it should be expected that different rights holders, and different ‘Governance authorities’, will each hold different intentions.

• The management intentions of all relevant rights holders and all relevant ‘Governing authorities’ must be considered in any OECM assessment.

For a site to be recognised as an OECM, an additional requirement is essential:

• No mining department (or other similarly named ‘Governing authority’) has successfully objected to the establishment of a protected area over the site.

The rationale for this second recommendation is of critical importance so it is included here:

• The Executive Summary states “[r]ecognition of an OECM in Australia is intended to:

o   …

o   require presence of important biodiversity values, that are to be maintained in the long-term” (italicisation added).

• Wherever a mining department has successfully objected to the establishment of a protected area over a site, that is a clear indication of the site’s prospectivity and the Governing authority’s intention to permit mining. A successful objection to the establishment of a protected area over a site is every bit as powerful as a zoning arrangement in favour of other forms of development. An option to mine is being actively retained to enable mining of the site in the future.

Principle 4.7 ‘Site management’

Following on directly from the above comment about Principle 4.8, a notion used to explain Principle 4.7, i.e., that there must be “a distinct footprint where incompatible activities may occur” before an area will be excluded from an OECM, is not universally appropriate.

• Wherever a mines department has successfully objected to the establishment of a protected area over a site, it would be offensive to recognise an OECM and count its area as contributing toward meeting Australia’s national 30 x 30 protection target.

Yours sincerely

 

Professor Jamie Pittock
President

21 April 2023

[1] Conservation Council ACT Region and Friends of Grasslands 2022. The Biodiversity Network Paper: a tenure-blind framework for cohesive nature conservation across the ACT. Conservation Council, Canberra ACT.