Friends of Grasslands

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

Email: NRS.environment@dcceew.gov.au

Re: Draft National OECM Framework

Friends of Grasslands (FOG) and the Conservation Council ACT Region (Council) are pleased for the opportunity to comment on the above Draft National OECM Framework (Framework).

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.

The Conservation Council ACT Region is the leading environmental advocacy organisation and hub for community groups in Canberra. Our mission is to protect nature and create a safe climate future in the ACT and region.

Together, FOG and the Council have drafted and are advocating the establishment of a Biodiversity Network in the ACT to protect remnants of natural value not included in protected areas^[1]. Our view is best practice conservation depends on protecting and managing all valuable remnants effectively, across all tenures, under a unified legal and management framework.^[2] A recent Committee of Inquiry in the ACT recognised this framework is ready and appropriate for adoption.^[3] We have been hoping the Framework would guide how the Network could be implemented.

Our understanding

FOG understands OECM is meant to provide a framework for applying standards and registering all projects on ‘Conserved Areas’ not in the protected area systems of different nations. Conserved Areas would include land where biodiversity conservation is a secondary purpose but is being achieved anyway, e.g., biodiverse places on non-government lands, and government lands managed in a variety of ways, as water catchments, for defence, or as Travelling Stock Reserves etc.

Concerns with the Framework

FOG and the Conservation Council are extremely disappointed the draft document has been published as a set of simplistic materials and tools without appropriate explanations. It is not possible to understand this program without visibility of the “Implementation and delivery arrangements”.

We wish to raise the following concerns:

1. The Framework confuses the clear intent of OECM with unnecessary categories.
2. It is not clear whether, and if so how, all existing areas managed to the emerging Conserved Area standard will be captured (grand-fathered) without undue bureaucracy.
3. There is little incentive for land managers to register or seek recognition. The Framework should identify provision of management support and even modest financial assistance.
4. Protection: In classifying ‘primary Conserved Areas’, the Framework denigrates the formality of protection to the protected area standard.^[4] We understand the matter the Framework seeks to address is that some land managers do not wish to execute secure covenants intended to endure in perpetuity.^[5] The result is confusing because the Framework simultaneously promotes the making of commitments^[6] and refers to these commitments as long-term.^[7] Two points are relevant:

a.       We note there are existing alternatives to secure in perpetuity conservation covenants. (We recommend against it but) A formal covenant (or similar) could be made that (i) could be revoked at any time and (ii) could be executed to endure for a limited period.

b.       Formality is not the problem. Anything less than appropriate formality is likely to promote half-heartedness in land managers’ commitments and contribute to a high (or higher) attrition rate, i.e., land managers withdrawing their promises (which they will know they can do given the Framework states repeatedly “consent can be withdrawn at any time”^[8]).

It appears what is needed is a form of standardised formal promise (declaration or covenant or ...) to manage (if not protect) Conserved Areas. Refer point 4(a), i.e., alternatives exist, or a new mechanism could be created. No formal mechanism at all would be problematic.

The Framework states “Conserved Areas should be viewed as being of equal value to Protected Areas in terms of the biodiversity outcomes they achieve”.^[9] Even if a land manager’s commitments to manage biodiversity for 25 years are achieved, the assertion fails. Short term achievements are nothing like biodiversity outcomes in perpetuity.

5. The Framework is very confusing about governance issues. At the heart of our concern, only minimal checks are proposed of the intentions of developers and governance authorities with the power to override any land manager’s good intent. The standard that there must be a ‘distinct footprint’ before any Conserved Area is ruled out is an absurdly high bar. Registering or recognising Conserved Areas over places under known existential threat risks Australia’s reputation as a responsible party to the Convention on Biological Diversity (CBD).
6. Achieving biodiversity gains: No support is identified to assist Conserved Area managers maintain biodiversity values. We know flexibility is sought and that more detail may follow, including via the state and territory agencies; however, at present there is too little detail about how this can be achieved. As a result, the purpose of the Framework appears to be no more than to enable Australia to claim it is meeting its protected area target.
7. Defined outcomes: Biodiversity conservation in Australia needs more than recognition that gives marketing opportunities to dedicated land managers. What is needed is effective outcomes to maintain and enhance biodiversity across all land types, urgently, on the ground.
8. Professional credibility of assessors: Who will be the ‘third parties’ responsible to ‘review and approve’ applications for Conserved Area?
9. Transparency and recognition of Conservation Areas: locational information should be available, and the role of landholders recognised.

We would welcome consideration of the more detailed concerns and recommendations provided on a range of topics (Attachment 1) and governance matters (Attachment 2).

Recommendations

We recommend against recognising termed revocable commitments as sufficient to count toward Australia’s and the global protected area target. If that is not accepted, and the Framework is introduced, to be effective, it needs to deliver on the following:

1. Inclusion of some form of secure, in-perpetuity protection;
2. Recognition and support for participating land managers including advice and financial assistance to private landholders or lessees;
3. Coordination for strategic management of landscape level threats and opportunities;
4. Priority given to the ecosystems that have suffered the greatest loss and disturbance, in this region being temperate grasslands and grassy woodlands; even inside protected areas, land managers “are facing challenges, particularly in the level and security of resourcing and ensuring that management is effective in achieving conservation objectives”^[10];
5. Clarification that assessors would be adequately trained and apply a consistent approach across all jurisdictions; and
6. Detail about how each state and territory government will implement the Framework to meet the OECM principles.

Follow up

FOG provided a submission to an earlier consultation process. There was then no contact with FOG before the Framework was published. We request involvement in next steps in the development of this program.

Should you seek and further information or clarification, or if you would like to discuss any matter raised within, please contact Matt Whitting via email on matt.whitting@fog.org.au.

Yours sincerely

Attachment 1: questions and concerns on a range of topics

eligibility for recognition

The requirements that must be satisfied to make a site eligible for recognition as a Conserved Area appear, on their face, to be relatively easy to satisfy:

• Given the wide distribution of many listed threatened species recorded in SPRAT as ‘known to occur’ or ‘likely to occur’, almost any site in Australia may be eligible. Most applicants will likely be able to satisfy the minimum biodiversity value criterion^[11] easily.
• Any landholder can easily identify on a mud-map and propose all or part of their land for recognition.^[12]
• The site must have “documented site management arrangements”. There is no coherent minimum standard; indeed, the “level of detail ... will be driven by site-specific circumstances”.
• The documented site management arrangements must list threats. A description is required of how the site’s management “can” mitigate or prevent these threats from damaging the biodiversity values.^[13] However, no commitment is required of any land manager proposing Conserved Area recognition to implement actions that will be effective in mitigating or preventing threats. Only the most basic of checks is required of the intentions of developers and governance authorities with the power to override any land manager’s good intent (see a detailed explanation under the heading governance below).
• Clear “long-term” (minimum 25 years) non-binding intentions can be easily declared.^[14]

Our concern at present is, as it stands, the Framework will not be effective at identifying unsound proposals nor at promoting consistency across jurisdictions.

Recommendation 1.  Provide additional detail, in the Framework, explaining how the third parties responsible to review and approve applications for Conserved Area recognition will distinguish sound (from unsound) proposals.

engaging with risk

On risk, the Framework is not what we anticipated. We understand it goes well beyond recognising existing management that, even though its object is not biodiversity conservation, is already maintaining biodiversity. Limiting Conserved Area recognition to places where effective conservation management practice has been proven would be low risk.

Instead, we understand the Framework opens Conserved Area recognition to any land manager making a non-binding commitment for a minimum period of 25 years. There is a high risk such commitments will be broken, frequently, with consequent negative impacts for Australia’s reputation as a responsible party to the CBD.

Recommendation 2. List and explain, in the Framework, all the strategies that mitigate the risk participating land managers will withdraw consent for their continued management of Conserved Areas for biodiversity conservation ends.

site selection priorities

The Framework states “Areas of particular importance for biodiversity should be prioritised for assessment”^[15] but then states “work is underway” on a prioritisation method.^[16] No explanation is provided suggesting there is any problem with the existing framework, i.e., the inclusion of land within the National Reserve System is based on comprehensiveness, adequacy and representativeness (CAR) according to the Interim Biogeographic Regionalisation for Australia (IBRA) framework.^[17]

We recognise IBRA is only applicable for terrestrial ecosystems and is not fit for purpose for inland waters ecosystems.

Recommendation 3. Provide further detail, in the Framework, unpacking the need for and what is being sought in a new prioritisation method. In other words, what is wrong–from the federal Environment Department’s view–with the CAR prioritisation under IBRA, why is it unsuitable for prioritising the establishment of Conserved Areas? What is planned to address the problem?

sites under restoration

In our view, most if not all land in Australia is under or needs some degree of rehabilitation or restoration. This is because new threats are emerging and those that exist already are spreading.

We note the starting points for rehabilitation and restoration efforts differ everywhere, across ecosystem types, from different states of degradation and given the different laws in each jurisdiction.

Recommendation 4a. If the following interpretation is true, confirm in the Framework that the ‘third party’ carrying out the ‘review and approval’ of applications for recognition of proposed Conserved Areas will decide all the following, i.e., that the area that has been assessed:

1. is “under ecologically effective restoration”^[18]
2. is “delivering demonstrable biodiversity outcomes”^[19]
3. has “biodiversity values for which a site is important”^[20].

Recommendation 4b. If there are other pathways by which decisions on these matters will be made, identify and explain those other pathways in the Framework.

Recommendation 4c. Confirm, in the Framework, that a restoration site will not be recognised unless and until it has “biodiversity values for which the site is important” (Principle 3).^[21]

why a Conserved Area and not a protected area

The site assessment tool does not ask why, for any area proposed for recognition as a Conserved Area, protected area establishment is not appropriate, supported, achievable or desirable.

Recommendation 5. Include, in the site assessment tool, a question asking the land manager why protected area establishment is not appropriate, supported, achievable or desirable.

site management

We know that, for sites with a primary or secondary management objective of biodiversity conservation, ‘management arrangements’ must be documented. That documentation:

should include, at a minimum, a section on biodiversity conservation that outlines the conservation objectives for the site, biodiversity values, threats, actions to adaptively manage it, monitoring actions, and relevant jurisdictional land management requirements.^[22]

‘Should’ is not acceptable here.

Recommendation 6. Replace the word ‘should’ with ‘must’. Our point relates only to documentation required for sites with a primary or secondary management objective of biodiversity conservation.

Requiring that management arrangements be documented will not, in and of itself, make management arrangements clear. We note ‘management arrangements’ can be documented in a wide range of forms.^[23]

In our view, greater consistency would be achieved if participating land managers were required to use an (or one from a selection of) existing management effectiveness framework to support and enable the robust and routine evaluation and reporting on the state of biodiversity assets in a Conserved Area and on the effectiveness of management action.

Recommendation 7. For sites where ‘management arrangements’ must be documented, provide more detail, sufficient to establish coherent minimum standards for:

1. ‘conservation objectives’, e.g., that they be specific, measurable, achievable, realistic and timebound, e.g., that they include and are supported by threshold limits and cascading sets of corrective actions that are to be implemented if/when limits are exceeded;
2. ‘threats’, e.g., that the identification and treatment of threats includes direct and indirect threats, and that some minimum level of treatment is required (it is not sufficient to merely identify what can be done, some level of action is needed or the commitment to achieving conservation objectives will be hollow);
3. ‘monitoring’ – who will oversee matters like the selection of attributes and surrogates to be monitored, how and at what frequency monitoring will occur, and whether a monitoring system other than that used in a jurisdiction will suffice;
4. ‘management reviews’, including with a view to ‘adaptive management change’ – what will oversight arrangements look like. 

These may not be the only terms that need greater definition.

Recommendation 8. Include in the site assessment tool questions about the land manager’s resources, skills and competencies etc.

The Framework appears to offer no support for land managers nor is there any mention of coordination between Conserved Area and other land managers in any region. Whether the states and territories will provide any (or a consistent) level of support and coordination across tenures remains to be seen.

Recommendation 9. Clarify, in the Framework, to the maximum possible extent, the vision of:

1. how Conserved Area recognition will ‘fit’ with other programs such as those operating for the conservation of biota (including particular species and ecosystems), and those that are pursuing specific natural resource management, catchment, regional or local government strategies at a range of scales and for a range of purposes;
2. whether structured collaboration or coordination mechanisms will be available to those managing Conserved Areas, including to support the strategic management of landscape level threats and opportunities;
3. those managing Conserved Areas can expect any other form of support.

examples of where additional clarity is needed

The Framework states “Management objectives and activities must not be incompatible with biodiversity conservation of the site”.^[24] It cites examples of areas unlikely to receive Conserved Area recognition:

• forests managed exclusively for timber supply;
• agricultural grasslands that are grazed too intensively;
• sites degraded to a point where they are not delivering demonstrable biodiversity outcomes.^[25]

Recommendation 10. Give guidance such as principles to be followed, in the Framework, for establishing the maximum level of:

• timber take from a forest;
• grazing in a grassland;
• degradation of a site

that would be acceptable in a Conserved Area.

These are fraught matters. If consistency is to be achieved across jurisdictions, silence is not an option.

transparency

If the Framework is to result in effective conservation, site assessments should be reviewed by not just a third party, they should be published and public comment invited.

Recommendation 11. Explain, in the Framework, why it is considered unnecessary to invite public comment on applications for recognition of Conserved Areas.

The Framework proposes that any land manager will be able to request that all details about the location “or other sensitive information” about any recognised Conserved Area will be able to be hidden from the public^[26].

Despite the claim made in the Framework that the approach is consistent with CAPAD standards, in most jurisdictions, data about the location of public and private protected areas is published in CAPAD.^[27]

Recommendation 12a. Include, in the Framework, appropriate limits on the discretion of decision-makers to hide from view details about the location “or other sensitive information” about any recognised Conserved Area.

From the draft Framework, it looks unlikely state and territory governments will register details of Conserved Areas on land titles in the cadastre. This point should be clear. In our view, Conserved Areas should be recorded on land titles.

Recommendation 12b. Clarify, in the Framework, whether recognised Conserved Areas will be noted on land titles.

The draft Framework states “Details of why a site lost its recognition could be retained for consideration, future learning and potential Conserved Area improvements.”^[28] Where an entity withdraws its consent to the continuation of a Conserved Area, the reason(s) for that withdrawal must be retained and published.

Recommendation 13. Include, in the Framework, a requirement that the reason(s) given by any entity withdrawing consent for ongoing management of any Conserved Area be recorded and published.

confusing statements

This statement is a problem: “While there is no requirement for legal protection, Conserved Areas provide opportunities to protect natural areas and mitigate risks from human activities”.^[29] Conserved Areas do not protect anything.

Recommendation 14. In and through the Framework, either enact a degree of protection for Conserved Areas (preferred) or avoid suggesting they are protected.

‘Conserved Areas’ as a brand

FOG has no issue with entities declaring intentions to manage sites to achieve good biodiversity conservation outcomes. Whether these intentions relate to all, or portions of, the land managed by these entities, the commitments are welcome.

If entities do manage biodiverse places effectively for the period of their commitments, as a brand Australia’s ‘Conserved Areas’ will enhance the nation’s reputation as a responsible party to the CBD.

Recommendation 15. Ensure:

• land managers’ commitments and intentions are clear and genuine

-   Evidence an entity has managed a biodiverse area effectively in the past is a good indicator of the future. However, as noted in the section titled engaging with risk, the Framework accepts high risk by encouraging commitments from land managers in all sorts of situations.

-   To address the risks to the brand posed by disingenuous claims, FOG recommends the reason given by any entity for withdrawing consent for ongoing management of any Conserved Area should be recorded and published.

• ‘management arrangements’ are clear and effective
• the commitments and intentions of land managers are realised

-   As the ‘governance’ section below shows, it is not enough to state that “there must be ... no land use zoning on the site that is incompatible with biodiversity conservation”. Land use zoning is easily changed. Threats can exist despite land use zoning.

-   Recognising Conserved Areas based on incomplete information collection and thoughtful consideration of governance threats may help Australia achieve its protected area target, but over time the ‘Conserved Area’ brand will be irreparably devalued as these existential threats are realised.

Attachment 2: Governance matters

The treatment of governance matters in the Framework is of particular concern.

Critically, only minimal checks are proposed of the intentions of developers and governance authorities with the power to override any land manager’s good intent.

In detail

The Framework blurs the distinction between governance and management. For example, the tool suggests the governance authority could be the “landholder” or anyone “managing on behalf of the landholder”^[30]. This is not governance, it is management. Even where land is held in freehold, there is a governing authority, e.g., a local council imposing a requirement on a land manager to control a weed.

This blurring of roles is part of a much bigger problem, i.e., the site assessment tool does not require a proper assessment of governance arrangements. The information sought via the tool will identify and establish only the most basic of information about governance arrangements, i.e., the governing authority’s/ies’ name(s), ABN(s) and “the legal basis for decision-making authority”^[31].

It is true more than one governing authority can exist; this can contribute to making consideration of governance arrangements complex. The site assessment tool provides no information for land managers to explain how multiple governance authorities might interact.

Consider first the only governance situation mentioned in the Framework, where there is a single governing authority. In distinguishing Conserved Area types the Framework explains a Conserved Area might be beneficial where a land manager cannot establish a protected area over pastoral leasehold land ... because of “lease requirements”.^[32] Let’s be clear:

• It is not “lease requirements” in some vacuum that prevent the execution of conservation covenants over pastoral leasehold land, it is the relevant governance authorities exercising power vested in them by statutes.
• Pastoral lease authorities or boards etc exist in several states and territories. Typically, these authorities are opposed to–or at best not in full support of–conservation organisations purchasing pastoral leases and managing them for conservation. 
• These boards allow conservation organisations to carry out their activities while simultaneously limiting their capacity to realise their long term goals. In some cases, lease conditions require that stock is run on the leased area even if that is not what the conservation organisation wants.
• For conservation organisations, the inability to secure long-term tenure consistent with conservation-oriented management goals is a serious problem. Absent secure tenure, each such land manager’s capacity to carry out their long term intent is tenuous at best. If conservation organisations cease to be allowed to do what they do, their activity will be, in every likelihood, temporary. 

In Australia’s Strategy for the National Reserve System 2009–2030, governance is equated with ownership and discussed in the context of places already recognised as protected areas in one of four protected area types, i.e., public reserves, Indigenous Protected Areas, private protected areas and shared management reserves^[33]. That discussion–cited in the Framework^[34]–is limited to that protected area context. It is a poor reference for considering governance outside protected areas, for places where for conservation purposes there is no security of tenure. As the example above about the governance of pastoral lease areas shows, governance is not the same as ownership.

Governance is fundamental, so not scrutinising it properly is unacceptable. Governance is: “who decides what the objectives are, what to do to pursue them and with what means; how those decisions are taken; who holds power, authority and responsibility; who is (or should be) held accountable.”^[35]

In ‘Governance for the conservation of nature’, Borrini-Feyerabend & Hill explain:

OECMs would include first and foremost areas well conserved and reasonably expected to remain so in the long term that are not recognised, nationally or internationally, as protected areas.^[36]

The remainder of this section focuses on the italicised words, in particular the term ‘reasonably expected’.

The most serious of governance issues would be a governing authority authorising the destruction of a Conserved Area recognised after information was made available publicly about the threat, i.e., either no-one understood the threat during the site’s assessment, or the threat was ignored. 

Existential threats to biodiversity arise all the time where developers propose projects like roads, railways, pipelines, powerlines, mines and hydrocarbon extraction; such projects would invariably be in direct conflict with any land manager’s declared intention for any Conserved Area.

Limited only by the need to obtain an environmental approval (and we all know those approvals are rarely refused), governing authorities such as state planning or mines departments use powers vested in them by statutes to authorise these projects all the time, including where they are overriding land managers and other governance authorities intent on protecting biodiversity.

There is no question in the site assessment tool asking the land manager proposing Conserved Area recognition if they are aware of any facts or matters that may result in developments beyond their control. The only reference to any uncontrollable threat relates to the threat posed by climate change.

Rather than ask questions about and confront the possibility of known existential threats, the Framework adopts what appears to a strategy of wilful ignorance, restricting the potential for considering these threats with an absurdly high bar:

If there is a distinct footprint where incompatible activities may occur, that area may be excluded from the Conserved Area.^[37]

A ‘distinct footprint’ is understood to mean a proponent has prepared and submitted a development proposal to a relevant regulator, identifying a specific development footprint.

Some proponents begin consulting long before identifying development on a ‘distinct footprint’; in these situations, many times the location of the proposed development can be inferred.

Elsewhere, there can be clear evidence a proposal exists over a defined broad area long before consultation begins, e.g., transport and energy corridors are shown on plans, and resource exploration permits are granted over what might later be proposed as a Conserved Area.

Where information exists demonstrating real (and not remote) possibilities that any proposed Conserved Area will be under existential threat in the short to medium term, regardless of ‘management arrangements’ proposed by a land manager, that area should not be recognised as a Conserved Area.

The tool should also ask questions about land managers’ prior dealings with governing authorities.

Footnotes