Environmental
Defenders Office (EDO),
March 2024 Newsletter,
29 February 2024:
Hope
for NSW forests: Court decision upholds community’s right to
challenge native forest logging
In
the shadow of claims made by the NSW Forestry Corporation,
communities have been led to believe that they have no rights to
challenge decisions about industrial logging in NSW native forests or
seek action over unlawful conduct when logging destroys
hollow-bearing trees and critical habitat for threatened species.
But
two recent court decisions have shattered those claims after EDO’s
client successfully ran an argument which hasn’t previously been
tested in the courts. After 20 years of resistance by the Forestry
Corporation, it is now legally recognised that communities with a
special interest have the right to hold the state-owned logging
agency to account over its forestry operations in native forests.
NSW
forests are remarkable for their diverse ecosystems, unique
biodiversity and cultural significance. Encompassing semi-arid
woodlands to lush rainforests, these globally recognised forests are
home to an extraordinary array of plant and animal life, much of
which is unique to the region.
Protecting
our forests is one of the most important things we can do to manage
climate change, preserve our precious biodiversity and prevent
further species extinctions. Yet Forestry Corporation NSW logs around
30,000 hectares of state forest every year. Sadly, many of these
forests are logged to be turned into low-value products, such as
woodchips, that are exported to make cardboard and toilet paper.
Weak
laws failing our forests
NSW
Forestry Corporation is the state-owned logging agency that
undertakes industrial logging in public native forests, including in
nationally important koala habitat and areas that are still
recovering from the catastrophic impacts of the 2019-20 Black Summer
Bushfires. It is entrusted with managing two million hectares of
public forests, yet in the past three years alone, Forestry
Corporation has been fined 12 times for illegal logging activities.
There are 21 investigations still pending. 1
Forestry
Corporation operates under bilateral agreements with the Federal
Government, called ‘regional forest agreements’, or RFAs, which
allow logging to bypass normal federal environmental scrutiny. No
other industry benefits from such an allowance. Under the current
system of RFAs, threatened species such as the koala, greater glider
and gang-gang cockatoo are being driven to extinction and the
ecosystems and landscapes that we depend on are being destroyed at an
astounding rate.
For
some 20 years, Forestry Corporation has asserted that the community
cannot seek to challenge its public native forestry operations. On 20
November 2023, the NSW Land and Environment Court rejected that
position.
Court
decision confirms community right
The
EDO represented the North East Forest Alliance (NEFA) in mid-2023
challenging logging approvals in Myrtle and Braemar State Forests.
The forests were severely damaged by the ferocious Black Summer
Bushfires, which wiped out an estimated 70 per cent of the local
koala population.
While
NEFA was not ultimately successful, the court confirmed for the first
time that the Forestry Act does not prevent persons with a special
interest from taking legal action over forestry operations in NSW,
including disputing logging approvals.
This
is particularly important as NSW laws explicitly attempt to reduce
the community’s right to challenge Forestry Corporation conduct
regarding industrial native forest logging.
Forestry
Corporation also argued that the court cannot judicially review
harvest and haul plans because all forestry operations had already
been approved by the relevant Ministers in the overarching
regulation, the Coastal Integrated Forestry Operations Approval
(CIFOA). However, the court again rejected that position and found
that such operational plans are open to challenge.
Forest
groups fight on after disappointing court decision
Building
on the NEFA decision, South East Forest Rescue (SEFR) then took a
step further with court action in January 2024. SEFR is seeking an
injunction to stop Forestry Corporation from conducting any forestry
activities in certain state forests until adequate surveys for
greater, yellow-bellied and squirrel gliders have been performed.
SEFR is being represented by XD Law.
SEFR
argued that Forestry Corporation is breaking the law by not
performing adequate surveys for den trees and necessary exclusion
zones around den trees are not being implemented. It is the first
time in 25 years that the Forestry Corporation has been brought to
court by citizens for failure to comply with native forestry
regulations, in particular failure to conduct adequate surveys for
gliders.
Drawing
from the findings in the NEFA decision, her Honour found that persons
with a special interest can also seek to enforce the conditions of
the CIFOA against Forestry Corporation.
These
two decisions mark a significant departure from the status quo of the
past 20 years and set important precedent for the community to hold
the Forestry Corporation to account over native forest logging.
President
of NEFA, Dailan Pugh said regarding NEFAs legal challenge:
“While
NEFA were disappointed that our legal challenge to the logging of
important Koala populations in Braemar and Myrtle State Forests was
not successful, it’s promising that the case did establish that
NEFA have the civil right to enforce NSW’s logging rules, opening a
door to litigation we thought had been shut to us since 1998.”
“We
thank the EDO for the immense effort they put into this case and
creating future opportunities for NEFA, and other groups, to
challenge the culture of complacency around logging fostered by lack
of public accountability.”
1
Register of Crown forestry investigations (nsw.gov.au)
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