First outing to Commonwealth Parliament for Environmental Justice Australia this morning, with CEO Brendan Sydes appearing before the Senate Environment and Communications Committee Inquiry into Environmental Offsets, which asks whether offsets can be used for environmental destruction. Environmental Justice Australia believes that offsets undermine environmental protection by legitimising the issue of permits for the destruction of biodiversity on the basis of a legal fiction that biodiversity loss can be “offset” when it can’t.

Recently, 140 groups released a statement calling for an end to the concept of biodiversity offsetting.

You can find our submission here.

Here are our opening remarks:

My name is Brendan Sydes. I am a lawyer and the CEO with Environmental Justice Australia, formerly known as the Environment Defenders Office Victoria.

We are a not for profit legal practice. We act as legal advisers for a large range of environment groups, including grassroots community groups and larger conservation organisations. We also undertake advocacy and research and pursue better legal protection for Australia’s places and wildlife under both state and national laws.

Our submission principally relates to the principles and processes of offsetting.

We oppose the use of offsets under the EPBC Act, especially the manner in which they are utilised at the moment.

Many of the submissions before you convincingly make the point that the current offsetting regime is suboptimal in design and in implementation. We go further and say that the whole concept of offsetting is deeply flawed and at odds with a regulatory system that is supposed to protect biodiversity. If used at all, offsets need to be much more tightly managed than at present.

The fact that offsets will almost invariably be available as an option infects the whole process. Refusal is hardly ever contemplated and almost never actually happens – it’s just a process of horse-trading to get to an inevitable yes, bureaucrats do their best to extract something in the way of compensation which, conveniently, allows both the Minister and the proponent to shelter behind claims that the destruction of irreplaceable biodiversity values has been compensated.

An offsets regime allowing offsetting of “acceptable residual impacts” will only be as good as the process for getting to “acceptable residual impacts” – the so called mitigation hierarchy. Currently EPBC Act is inadequate in this regard, with the process only governed by a non-statutory policy.

For offsets to be a credible option under the EPBC Act the Act would need to contain an obligation on the minister to actually protect biodiversity when making approval decisions. This would have to include an early “red flag” option where it could be determined that offsetting was not an acceptable option.

There would then need to be suitable accountability mechanisms in place to ensure that this obligation was delivered – this might include merits review and we say should also include independent oversight in the form of a National Environment Commissioner.

The final point I wish to make just briefly is that all of the concerns you will hear about in the use of offsets under EPBC can be multiplied tenfold when it comes to state based offsetting regimes. Qld, NSW and Victoria are all developing or have implemented offset regimes that depart even further from some of the important principles everyone agrees are essential to a credible offsetting regime. And yet it is these very regimes that the government is currently looking to accredit as approvals regimes under the “one stop shop” policy.

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