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Promoting resilience to climate change in Australian conservation law: the case of biodiversity offsets

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journal contribution
posted on 2023-05-19, 02:02 authored by Janet McDonaldJanet McDonald, Phillipa McCormackPhillipa McCormack, Foerster, A

There is unequivocal evidence that climate change is having direct and widespread effects on species and ecosystems. Current approaches to biodiversity conservation are poorly equipped to respond to these impacts. Existing conservation strategies emphasise the protection and preservation of existing biodiversity values, focusing on the in situ conservation of native threatened plants and animals and the establishment of a protected area system that reserves a proportion of Australia’s intact native ecosystems. Even under current conditions, these strategies have been insufficient to arrest biodiversity decline or to prevent accelerating extinction rates. Future climate change will only exacerbate these inadequacies.

Reform is therefore needed to reverse the current downward trajectory of Australia’s biodiversity conservation laws and provide the tools and mechanisms useful lens through which to reconceptualise conservation laws because it emphasises that human and natural systems are inextricably linked and highly dynamic: change is at the heart of Resilience Thinking. While Resilience scholarship has found its way into the United States’ environmental law and climate adaptation literature, its application to Australian environmental and resources law remains unexplored. This article applies Resilience Thinking to a key component of conservation law practice in Australia – the growing use of biodiversity offsets – as a case study for understanding the shortcomings of existing approaches and for demonstrating the value of a Resilience framing in redesigning conservation law for future climate change.

The argument proceeds in five parts. Following this introduction, Part II outlines the projected impacts of climate change and the ways in which the current legal framework for biodiversity conservation will be challenged by these impacts. Part III then introduces the principles of Resilience Thinking and argues that they provide the most appropriate framework for future biodiversity law reform. The Resilience lens is then applied to the specific case study of biodiversity offsets within conservation law. Offsets are used as a case study for three reasons: their use is growing and is now firmly entrenched within conservation regimes in Australia and many other jurisdictions;5 they illustrate the mismatch between conventional conservation approaches and what is required to address climate change impacts; and they provide an ideal vehicle for exploring the value of Resilience principles to guide reforms. Part IV explains and critiques the theory and practice of offsetting in Australian law. It applies Resilience principles to highlight both the general critiques of offsets and the ways in which climate change exacerbates existing problems or creates new ones. Part V draws on Resilience principles to offer a set of prescriptions for climate-adaptive biodiversity offsetting. While we recognise the multiple problems with the theory and practice of offsets, we take a pragmatic approach that acknowledges the potential for offset programs to inject much needed private funds into biodiversity conservation and allow for productive partnerships between public and private landholders and managers. We seek to explore how a Resilience framing can help improve the practice of offsetting so that it can be used as a strategic conservation tool to support the adaptation of species and ecosystems and to help manage the types of biodiversity conservation trade-offs that will be unavoidable in the future as climate change materialises. We conclude in Part VI that offsets can help promote resilience to climate change impacts. To do so, they should form part of more strategic, multi-sectoral bioregional planning or, at the very least, a coordinated landscape-scale offsets strategy. Reforms to offset practice are also needed in order to operationalise Resilience principles. These include raising the standard for offset performance to achieve net gain or benefit, explicitly planning for climate change impacts, and promoting both the transparency and agility of offset arrangements to respond to change.

History

Publication title

University of New South Wales Law Journal

Volume

39

Issue

4

Pagination

1612-1651

ISSN

0313-0096

Department/School

Faculty of Law

Publisher

Faculty of Law, University of Tasmania

Place of publication

Australia

Rights statement

Copyright 2016 University of New South Wales, Faculty of Law

Repository Status

  • Open

Socio-economic Objectives

Expanding knowledge in law and legal studies

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