Opinion

From the ground up: regulating NSW soils for the challenges of tomorrow

‘The red soil of Australia in a freshly ploughed field’. Image Joe Gough, sourced via Shutterstock, stock photo ID: 1365970.

In New South Wales, it is common knowledge that 100% of the state is currently in drought and this is unlikely to change any time soon as a drier and warmer end to the year is expected for most of the state. Yet, perhaps what is less well known is that the averaged total pan evaporation (effected by air temperature, cloudiness and wind speed) across eastern Australia has been the highest on record for the majority of January to August 2018. This was reflected in the August soil moisture data showing that for most of NSW, the soil moisture was either very much below average or the lowest on record.

Considering the value of soil, that last statistic should be of most concern. The importance of healthy soil is well recognised, for example, the Hon. David Littleproud MP has said “[s]oil is as important as air and water to farm productivity” and “[h]ealthy soils are key to achieving the ambitious target of growing agriculture to a $100 billion industry by 2030”. The NSW State of the Environment Report 2015 also stated that “healthy soils provide the essential ecosystem services and the primary productivity supporting natural ecosystems and the economic prosperity of the state” (Environment Protection Authority, 2015, p. ix).

As soils are acknowledged as being crucial to the natural environment and the economic systems that rely on it, the regulatory landscape in NSW for such an important asset is a difficult one to understand. The Soil Conservation Act 1938 (NSW) is the governing legislation and was implemented to protect soil resources and mitigate erosion. While not mandated by its statute, the Soil Act has never undergone a full review and amendments that have been made to it over time are more cosmetic rather than substantive. Furthermore, policy documents dedicated to soil are in short supply. In 1987 the NSW Soils Policy was released, was apparently reviewed sometime in 2010 and put out for public consultation but this review document is no longer publicly available. Yet the State of the Environment Report 2015 (the most recent version) only refers to two policy instruments that impact soil management. One is the State Environment Planning Policy (Rural Lands) 2008, whose only reference to soil is once and requires a consent authority to ensure that adequate provision is made for erosion issues when approving a development. The second is to the Policy for Sustainable Agriculture in NSW which is no longer publicly available.

However, it should be noted that the Local Strategic Plans for each of the 11 Local Land Services refer to improving soil health and condition, but these document do not go into the level of detail of the Catchment Action Plans (the predecessors to the Local Strategic Plans made by the now disbanded Catchment Management Authorities) about how this can be achieved. There is also a ‘National Soil Research, Development and Extension Strategy,’ but this is focussed on soil research that meets the needs of farmers and primary producers.

Why can’t there be a modern, future-focused soil management regulatory environment?

The Soil Act was innovative for its era. Globally, it was preceded only by the Soil Conservation Act of the United States which was passed 3 years prior and was the beginning of more direct environmental regulation on NSW landowners (Jones, 2018). For example, the Soil Act allowed the government to create ‘projects’ for the purpose of soil conservation or erosion mitigation. This occurred in 1965 where projects were created to improve the soil health of entire valleys, usually by an agreement between the government and landowners (Webb, Kelly & Dougherty, 2015).

However, the Soil Act regime appears to be affected by the trend for smaller government, decentralisation and outsourcing of resources and the focus on education and technical assistance rather than intervention and partnerships between government and landowners. Regulatory tools such as a soil conservation notice, a directive by government to take an action (or not take an action) for the purposes of soil conservation or land protection are longer used. Further, numerous other pieces of legislation, such as the Protection of the Environment Operations Act 1997 (NSW) refer to soil incidentally, but this has the effect of diluting the value of the Soil Act.

This may well be the most appropriate approach, but we don’t know what could be done better because there has never been a review of the Soil Act and there has not been a new, published NSW Soil Policy in 32 years. Considering the recognition of the critical importance of soil to a healthy agricultural industry and a healthy environment by landowners, politicians, industry and scientists, it is unclear why this hasn’t occurred. For example, recognising the increasing climatic extremes impacting NSW, the Soil Act could incorporate a focus on increasing resilience of the soil which could result in government (via the various Local Land Services regions) proactively seeking and entering into agreements with landowners to improve the resilience of soil. This would also recognise that just as soil health can decrease, it can also be increased. A legislative focus on resilience of the soil would also integrate well with 2 of Local Land Services statewide goals being “biosecure, profitable, productive and sustainable primary industries” and “healthy, diverse and connected natural environments” (Local Land Services 2016, p.11).

Importantly, this critique is not to denigrate the work of existing entities such as Local Land Services, Landcare, the Soil Conservation Service or the National Soil Network. Neither does it suggest that landowners necessarily need to be told by government how best to manage their land. Yet, the value of effective legislation and policy shouldn’t be overlooked or dismissed. Our understanding of just how critical healthy soil is to healthy agricultural industries and a healthy environment has only grown since 1938, that knowledge should be used to see how the Soil Act can be improved, or at the very least to create a current soil policy for NSW. Just as the Soil Act in 1938 was innovative for its time, we should be able to review it to see whether it can be improved to meet the challenges of tomorrow.

References

Bureau of Meteorology. (2018).  Drought, Canberra (viewed 30 September 2018). Access here.
Jones, J. (2018). ‘Emergence of the Soil Conservation Act 1938 (NSW): The origins of a co-operative and voluntary regulatory approach to Landcare on private land 1884–1938.’ Environmental and Planning Law Journal,  35(1), 5-25.
Littleproud, D. (2018). Healthy soils to grow Australian farm sector (media release, 28 March 2018). Depart of Agriculture and Water Resources, Canberra (viewed 30 September 2018). Access here.
Local Land Services. (2016). Local Land Services State Strategic Plan. New South Wales Government (viewed 30 September 2018). Access here.
NSW Environment Protection Agency. (2015). NSW State of the Environment 2015, Sydney (viewed 30 September 2018). Access here.
Webb, A., Kelly, G., & Dougherty, W. (2015). ‘Soil governance in the agricultural landscapes of New South Wales, Australia.’ International Journal of Rural Law and Policy, 1, 24-40.

Legislation

Local Land Services Act 2013 (NSW).
Soil Conservation Act 1938 (NSW).
Protection of the Environment Operations Act 1997 (NSW).


Andrew Kimbell is a solicitor at Kingfisher Law, an agribusiness, water and environment practice. Following an undergraduate degree in environmental science and law, Andrew is currently undertaking a Master of Environmental Law, allowing him to further develop his knowledge and pursue his interests in this fascinating area.

This blog post is a part of the SEI’s Student Blog Series, which features original content by Honours, Masters and PhD students at the University of Sydney who are undertaking research on environmental issues and topics. If you are a current postgraduate student at the University of Sydney who would like to participate in the series, click here for details.