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The new world of biobanking
as a compulsory mechanism
for mining related offsets –
the good, the bad and the
ugly!
Samantha Daly
Partner
25 September 2015
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Biobanking – what is it?
■ ‘BioBanking enables 'biodiversity credits' to be generated by landowners who
commit to enhance and protect biodiversity values on their land through a
biobanking agreement. These credits can then be sold, generating funds for the
management of the site. Credits can be used to counterbalance (or offset) the
impacts on biodiversity values that are likely to occur as a result of
development. The credits can also be sold to those seeking to invest in
conservation outcomes, including philanthropic organisations and
government.’ [OEH website]
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Biobanking scheme
■ Commenced in 2008 as voluntary scheme
■ Provisions in the Threatened Species Conservation Act: Part 7A (Biodiversity Banking)
■ Biobank sites and Biobanking agreements
□ farmers
□ rural landholders
□ philanthropy/ environmental groups
■ Biobanking statements
□ developers
■ Biobanking assessment methodology – impact of development site and gain at biobank site
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Biobanking scheme
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Why biobanking?
■ Measurable – offset requirements known upfront
■ Consistent – rule-based approach
■ Secure – offset created by biobank site
■ Transparent – public register
■ Strategic – locate offsets on large parcels of land
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The old…
■ Voluntary scheme for major projects BUT
■ Part 3A EPA Act:
□ the Minister for Planning could require that biodiversity credits were purchased
and retired as a condition of project approvals to offset the impacts of the project.
They could also require compliance with a biobanking statement that had been
obtained voluntarily.
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Biobank sites
■ July 2014 – 10 biobanking statements
■ September 2014 - 31 biobank sites
■ Whitehaven
□ biobanking agreement
□ June 2012
□ 1495 hectares
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Biobanking review
■ Commenced 10 May 2012
■ Report - September 2014
■ No legislative changes – part of broader review of biodiversity legislation
■ Recommendations included:
□ adaptive management through monitoring and evaluation programs
□ increased emphasis on avoid, minimise, offset hierarchy
□ proposed biodiversity offsets fund – help overcome barriers to participation
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The new…
■ Biodiversity Offsets Policy for Major Projects, October 2014
■ Framework for Biodiversity Assessment
■ Conditions of consent – secure offsets by way of biobanking agreement
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Biodiversity offsets policy for Major Projects
■ Principles:
□ avoid, minimise, offset
□ offset requirements should be based on a reliable and transparent assessment of
losses and gains
□ Like-for-like or if not possible, similar or higher conservation priority
□ offsets to be additional to other legal requirements (however carbon credits ok)
□ offsets must be enduring, enforceable and auditable
□ supplementary measures may be used in place of offsets (eg biodiversity research
and survey programs)
■ Accepted by Cth for assessment purposes under the Bilateral Assessment
Agreement
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Options for fulfiling offset requirements
□ purchase credits and then retire credits (remove from market)
□ establish and manage own biobank site
□ rehabilitation of mine sites
– upfront credits
– further credits
□ supplementary measures
□ offsets fund
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How it works
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How it works
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Framework for Biodiversity Assessment
■ Closely aligned with the BioBanking Assessment Methodology 2014 (BBAM)
■ Species credits and ecosystem credits
■ Matters that require further consideration
□ severe enough to prevent project from going ahead (eg impacts on critically
endangered species and ecological communities)
□ further consideration by the consent authority warranted
□ thresholds in FBA – more work will be done of threshold impacts
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The good
■ Consistency and standardisation in offsetting practices
■ Greater certainty for developers/miners in offset requirements
■ Certainty in funding for biobank site owners
■ Landholders can sell credits in market to mining companies and developers
of major projects
■ The offsets fund – maybe?
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The bad
■ Red-flag decisions
■ Uncertainty in pricing of credits
■ Security of offsets
■ Complex, slow and costly scheme
■ Issues with retro-fitting scheme to biobank sites owned and managed by mining company – need for flexibility (e.g. Total Fund Deposit provisions)
■ Integration with planning approval requirements
■ Lack of sites/credits, no market!
■ Rates
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The ugly
■ FBA outcomes – > $80M in offset costs for one mining development
■ Underlying data
■ OEH resources
■ Disincentive to mine/invest
■ Transitional arrangements
■ Fund
□ not yet available
□ how will it work?
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Contact
Samantha Daly
Partner
T +61 9 270 8633
Disclaimer: This presentation covers legal and technical issues in a general way. It is not designed to express opinions on
specific cases. This presentation is intended for information purposes only and should not be regarded as legal advice. Further
advice should be obtained before taking action on any issue dealt with in this presentation.
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