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Federal Court of Australia dismisses historic logging case, January 2024

 

On 10 January 2024 the Federal Court of Australia handed down its judgement in North East Forest Alliance Inc v Commonwealth of Australia [2024] FCA 5.

In part the judgment read:

10 CONCLUSION

1. INTRODUCTION AND SUMMARY OF CONCLUSIONS

1 On 31 March 2000, the first respondent, the Commonwealth, and the second respondent, the State of New South Wales (NSW or the State), entered into an intergovernmental agreement being the Regional Forest Agreement for North East New South Wales (Upper North East and Lower North East) (the NE RFA). The purpose of the NE RFA included establishing “the framework for the management of the forests of the Upper North East and Lower North East regions”: recital 1A of the NE RFA. The NE RFA provided that it was to remain in force for 20 years from 31 March 2000, unless terminated earlier or extended in accordance with its provisions: clause 6 of the NE RFA. Subsequently, the Commonwealth Parliament enacted the Regional Forest Agreements Act 2002 (Cth) (RFA Act). A primary purpose of the RFA Act is to reinforce the certainty which the NE RFA and other RFAs between the Commonwealth and States were intended to provide for regional forestry management by “giv[ing] effect to certain obligations of the Commonwealth under Regional Forest Agreements”: s 3(a) of the RFA Act.

2 Shortly before the expiry of the 20 year period for the NE RFA, on 28 November 2019 the respondents executed the “Deed of variation in relation to the Regional Forest Agreement for the North East Region” (the Variation Deed). The Variation Deed stated that it “amend[ed] the Regional Forest Agreement on the terms and conditions contained in this deed”: Variation Deed, Preamble B. As described in further detail below, one effect of the Variation Deed was to extend the NE RFA at least by a further 20 years.

3 The applicant, North East Forest Alliance Incorporated, seeks a declaration pursuant to s 39B of the Judiciary Act 1903 (Cth) that the NE RFA as amended by the Variation Deed (the Varied NE RFA) is not a “regional forest agreement” within the meaning of s 4 of the RFA Act. The consequence of so holding would not be that the Varied NE RFA is invalid, as the applicant accepts. Rather, the consequence relevantly would be that neither s 38 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) nor s 6(4) of the RFA Act would apply so as to exempt forestry operations undertaken in accordance with the Varied NE RFA from the approval processes under Part 3 of the EPBC Act.

4 In essence, the applicant contends that the Varied NE RFA is not an RFA for the purposes of the RFA Act because, in amending the NE RFA, regard was not had to an “assessment” of “environmental values” and “principles of ecologically sustainable management” as required by paragraph (a) of the definition of an RFA in s 4 of the RFA Act. This is because, in the applicant’s submission, of the failure in the materials before the Prime Minister, who executed the Variation Deed on behalf of the Commonwealth, to sufficiently evaluate those matters and to do so on the basis of reasonably contemporaneous information.

5 Those submissions are rejected for the reasons which I develop below. First, properly construed, there is no requirement that regard must be had to an assessment before an RFA is amended, including by extending its term, in order that the intergovernmental agreement continue to meet the definition of an RFA. That requirement applies only where the parties enter into an RFA. Secondly and in any event, there is no implicit requirement that an assessment must be sufficiently evaluative and reasonably contemporaneous in order to satisfy the condition in paragraph (a) of the RFA definition. Rather, the question is whether, objectively speaking, regard was had to assessments of the values and principles referred to in paragraph (a) of the definition of an RFA. Thirdly, applying that test, the evidence establishes that the materials before the Prime Minister, and in particular the “Assessment of matters pertaining to renewal of Regional Forest Agreements” (Assessment Report), addressed each of the values and principles referred to in paragraph (a) of the definition of an RFA. That being so and there being no issue that the Prime Minister had regard to the materials attached to the Prime Minister’s brief, the applicant has not established that the Varied NE RFA is no longer an RFA for the purposes of the RFA Act, even if an assessment was required before the RFA was amended. It follows that the application for relief must be dismissed.

6 Finally, it is important to stress that the effect of an RFA is not to leave a regulatory void with respect to the forest regions covered by the NE RFA. Rather, as I explain below, an RFA provides an alternative mechanism by which the objects of the EPBC Act can be achieved by way of an intergovernmental agreement allocating responsibility to a State for regulation of environmental matters of national environmental significance within an agreed framework. As such, the question of whether or not to enter into or vary an intergovernmental agreement of this nature is essentially a political one, the merits of which are matters for the government parties, and not the Courts, to determine.

In essence the judgment was stating that legislation, rules and regulations governing New South Wales forestry agreements allow for the Commonwealth and the NSW governments to vary agreements as they see fit, regardless of contemporary environmental realities existing within public and private native forests which potentially place natural biodiversity and vulnerable/threatened wildlife species at risk through depletion of flora and fauna habitat or complete loss of habitat.

The judgment also noted that there are clauses within the North East Forest Agreement (NSRFA) which did not create legally binding obligations on either the state government or NSW Forestry Corporation. That there was no requirement that an RFA must impose legally enforceable obligations in order to constitute an RFA for the purposes of the RFA Act. Indeed, that Commonwealth has the ability to pass legislation or subordinate legislation, which are inconsistent with the NE RFA.

These failures of policy and law meant there was no requirement for new comprehensive regional assessments to be undertaken before a variation deed was executed in relation to the NE RFA which covers the NSW North Coast region from South West Rocks to the NSW-Qld border.

The judgement in North East Forest Alliance Inc v Commonwealth of Australia clearly made no finding in relation to the environmental sustainability of logging operations. A fact that the Environmental Defenders Office noted in its response as solicitor for the appellants, North East Forest Alliance Inc.

This did not stop lobby group Forestry Australia quickly sending out a media release misleadingly trumpeting:

"Our Regional Forest Agreements (RFAs) time and time again have proven to be a successful way of sustainably managing Australia’s forests for all their values, and the Federal Court has confirmed this today."

"What has biodiversity ever done for us? Well for a start, it has provided nearly all the oxygen on the planet. Without oxygen, all animals including us, would be dead within minutes."

 

IMAGE: The Young Naturalist Australia

Environmental activist Lauriston Muirhead writing in The Border Mail, 23 November 2022:

Our numbers alone will not protect us

Biodiversity is the diversity of life found in an ecosystem. The more biodiverse, the more balanced and resilient the ecosystem.

A diverse ecosystem is more resistant to shocks and will last longer.

What has biodiversity ever done for us? Well for a start, it has provided nearly all the oxygen on the planet. Without oxygen, all animals including us, would be dead within minutes.

The oxygen was created by cyanobacteria that were able to live in an early atmosphere without oxygen.

Cyanobacteria still work in green plants using the sun's energy to turn the CO2 animals breathe out, back into oxygen (and carbon to help them grow). This is photosynthesis and all life depends on it. Remember, all our food is either plants or animals that ate plants.

The biodiversity of the planet provides all our food, as well as much of our clothing, building materials and erosion protection.

OK, apart from the air we breathe, the water we drink, the food we eat and shelter, what did biodiversity ever do for us?

Well, there are the medicines. Where would we be without the willow tree that gave us aspirin or the mould that gave us penicillin.

We can now make many drugs synthetically - but without nature's blueprints, we would not have been able to create these and so many other medicines.

Who knows how many more "cures" exist in the plants and animals of the world?

Our tool-making ability has turned our sticks into bulldozers, our stones into bombs and our boomerangs into bomber aircraft. We have the power to hunt not just one animal but entire species to extinction.

If we think our numbers will protect us, just take the example of the passenger pigeon.

In the 19th century, there were more passenger pigeons than people on the planet. By 1914, they had been hunted to extinction.

We are losing species through direct killing and habitat destruction - now exacerbated by human-induced climate change.

If we keep on playing "species roulette", someday, one of the extinction bullets we pick up might have the name Homo sapiens written on it. We must do more to preserve all species in order to preserve our own.

So go forth, and make the world more biodiverse.

IMAGE: Living Links

Help Slow The Rate of Mindless Land Clearing in NSW: there is an open e-Petition on the NSW Parliament website to End Public Native Forest Logging. If you are a NSW resident, please consider signing

 

Logging truck in the Brooman State Forest less than a year after NSW 2019-20 bushfires destroyed more than 80 per cent of the Shoalhaven's bush. IMAGE: The Bush Telegraph, 12 October 2020.

NSW PARLIAMENT, retrieved 25 February 2022:

LEGISLATIVE ASSEMBLY - Signing ePetition - End Public Native Forest Logging

To sign the ePetition, confirm you are a resident of New South Wales and enter your title, first name and last name. Once you click ‘submit’ you will have signed the ePetition and will be re-directed to the Legislative Assembly’s ‘ePetitions open for signature’ page

End Public Native Forest Logging

To the Speaker and Members of the Legislative Assembly,

Public native forest logging is pushing iconic species like the koala, swift parrot and greater glider towards extinction.

The 2019/20 Black Summer bushfires burnt over 5 million hectares of forest and have left them more vulnerable to the impacts of logging. The Natural Resources Commission (NRC) and the Environmental Protection Agency have recommended that in bushfire affected areas logging should cease entirely or face tighter restrictions, as current logging practices may cause irreversible damage to ecosystems and wildlife.

Logging of public native forests is tax-payer subsidised. Forestry Corporation’s Hardwood Division has been operating at a significant loss for the past decade. In 2020/21 it ran at a loss of $20 million, with predictions that it will face losses of $15 million until 2024.

Reports also show our state forests can generate far more income through their protection than from logging, through recreation, tourism and carbon abatement.

The Western Australian and Victorian Governments have already committed to ending this industry and have developed transition plans to support affected workers and businesses.

The petitioners ask the Legislative Assembly to:

1. Develop a plan to transition the native forestry industry to 100% sustainable plantations by 2024.

2. In the interim, place a moratorium on public native forest logging until the regulatory framework reflects the recommendations of the leaked NRC report.

3. Immediately protect high-conservation value forests through gazettal in the National Parks estate.

4. Ban use of native forest materials as biomass fuel.

The petitioner of record is Ms Takesa Frank.

To sign the petition go to https://www.parliament.nsw.gov.au/la/pages/epetition-details.aspx?q=quge-8rdRlyn4PTcuMj_PA

This petition closes on 2 August 2022.

Please consider signing if you are a NSW resident.

And the tale of Rous County Council decision making under new pro-dam majority continues......

Echo, 21 February 2022: 

During last week’s Rous County Council (RCC) meeting, Cr Big Rob spoke of contact he had with Professor Stuart White regarding the proposed Dunoon Dam. 

 Professor White is the Director of the Institute for Sustainable Futures at UTS in Sydney where he leads a team of researchers who create change towards sustainable futures through independent, project-based research. 

 With over twenty years experience in sustainability research, Professor White’s work focuses on achieving sustainability outcomes at least cost for a range of government, industry and community clients across Australia and internationally. 

The Echo spoke to Professor White who made a late video submission to Rous that missed the deadline. A representative of Rous said it was too late to be screened in public access and was ‘forwarded to all Councillors on the morning of the Council meeting for their info’. The rep also mistakingly thought the video was a submission from the Northern Rivers Water Alliance who already had a space in Public Access. 

Rous County Council meeting 

During the meeting Cr Rob did not give Councillors all of the information he received from Professor White. 

At the meeting, Cr Rob said: ‘I circulated an email overnight relating to the experts that have been relied on – Professor Stuart White for example. You know, his position was the cost and when I made inquiries with Professor White, he finally agreed that yes, that dam should be considered. So if you take the cost out of it, then his position [is] all options on the table, the dam must be considered because that is one of the options.’ 

The Echo asked Professor White about his conversation with Cr Rob because Cr Rob’s comments seemed to be at odds with the information Professor White has been giving other interested parties. 

‘I have not spoken to Cr Big Rob,’ said Professor White. ‘I only had email correspondence. 

‘My position on the Dunoon Dam is clear and I’ve been public about it: it is too expensive, too risky, not useful for the purpose it is intended for, and not needed within the planning horizon. This is before considering the environmental and Aboriginal heritage risks.’ 

Time to rule out dam 

Professor White said that this does not mean the Dunoon Dam, or any supply option should not be considered and investigated alongside other options. ‘It is just that under any reasonable analysis it would be rejected. The proponents have already had a chance to make their case, at great public expense, and my view is that this case has not been made, so it is now reasonable to rule the Dunoon Dam option out.’ 

‘My understanding of the decision by Rous last year was to reject it primarily due to the Aboriginal heritage considerations, which are of course very important and remain very important.’ 

The Echo does not know if any Rous Councillors saw this submission before they voted 6 to 2 to put the dam back on the table.  [my yellow highlighting]

BACKGROUND

NORTH COAST VOICES, FRIDAY, 18 FEBRUARY 2022 

Rous County Council and that Dunoon Dam proposal now risen from the dead

Rous County Council and that Dunoon Dam proposal now risen from the dead

 

In 2014 Rous County Council (RCC) adopted its Future Water Strategy which recommended detailed investigations to assess the suitability of increased use of groundwater as a new water source, and if groundwater was not suitable, investigate complementary options such as water reuse and desalination.

After completion of this investigation Rous produced the original Future Water Project 2060 which did not prioritise groundwater use, reuse of already available water or building a desalination plant/s.

Instead it chose another option – the 50 gigalitre Dunoon Dam, with the concept design indicating an initial capital cost of approx. $220 million.

“In considering options for the future, Rous County Council conducted extensive assessments to weigh up environment, social and economic impacts. The result of these assessments indicate the Dunoon Dam is the preferred long-term water supply option when compared to demand management and water conservation, groundwater sources and water re-use”.

It is worth noting that the proposed Dunoon Dam would be the second dam on Rocky Creek thus further fragmenting this watercourse. The first water storage is Rocky Creek Dam which will continue to operate if the Dunoon Dam was built. Rocky Creek Dam does not have an outlet structure so it does not provide releases for downstream flows. [NSW Department of Planning, Industry and Environment, 2020]

By 2020 this incredibly flawed second dam plan still relied on the widely discredited ‘offset’ scheme as a workaround for the widespread level of environmental destruction, significant biodiversity & species local population loss and, for the drowning of land sacred to the Widjabul Wia-bal People and the desecration of highly significant cultural sites.

Rous authorized preliminary investigation of the Dunoon Dam project in mid-2020 allocating a $100,000 operating budget.

However, the Widjabul Wia-bal, local residents in Lismore Shire and many people in the three other shires within Rous County Council (Byron, Ballina & Richmond Valley) remained concerned with Rous’ choice – the Future Water Project 2060 Public Exhibition Outcomes revealed that 90% of the 1,298 submissions received by 9 September 2020 expressed concerns about the Dunoon Dam proposal.

In March 2021 Rous was reconsidering its earlier Dunoon Dam decision and by 21 July it had voted 5 to 3 to remove the Dunoon Dam from its Future Water Project 2060. At that time a second public exhibition from 1 April to 24 May 2021, this time of the revised Future Water Project 2060, was put in place which resulted in an RCC digital file of supporting submissions 1,754 pages long and confirmed that voiced public opinion was still against building the Dunoon Dam.

By 16 December 2021 Rous County Council had authorised “the General Manager to cease all work on the Dunoon Dam and provide a report on the orderly exit from Dunoon Dam as an option in the future water project, including revocation of zoning entitlements and disposal of land held for the purpose of the proposed Dunoon Dam”.

There the matter should have rested, but after the December 2021 local government elections there was a changing of the guard at Rous Water and six of the eight current sitting RCC councillors are pro-dam.

This led to the unedifying sight on 16 February 2022, of Rous County Council by a vote of 6 to 2 vote reinserting the Dunoon Dam proposal into the revised Future Water Project 2060. No genuine forewarning of what that first RCC meeting of 2022 would contain, no prior consultation with Widjabul Wia-ba elders on the Item 12.1 motion, no community consultation.

The community scrambled to respond. So on the day RCC did hear objections to Item 12.1 from Hugh Nicholson, a previous Chair of Rous Country Council and Friends of the Koala representative Ros Irwin.

A young Widjabul Wia-ba woman, Skye Roberts, addressed the councillors as a “custodian” of the land. She spoke with conviction, determination and, clearly informed all present that: the proposed dam was sited within the large tract of land between three ancient mountains and that land was “sacred land” to all the Widjabul Wia-ba; this included Channon Gorge, the waters that ran through it and the wider dam site; the stone burial mounds which would be submerged by dam waters were part of the circle of cultural connection between land and people; men’s places & women’s places were on land to be flooded; and that land connects to living culture.

The message she carried for her grandmother and mother fell on predominately deaf ears and it was ‘ugly Australia’ which voted the dam back into future planning on that Wednesday in February.

Rous County Council already has before it the Ainsworth Heritage “Dunoon Dam: Preliminary Cultural Heritage Impact Assessment for Rous Water, May 2013” which can be read in digital form or downloaded from:

https://issuu.com/jwtpublishing/docs/ainsworth-heritage-preliminary-cultural-heritage-i.

It also has before it the SMEC “Dunoon Dam Terrestrial Ecology Impact Assessment, Prepared for Rous Water November 2011”. An assessment of which can be found at:

https://waternorthernrivers.org/ecological-impact/

For a brief summary of some of the technical flaws in the Dunoon Dam preliminary investigation:

Dunoon Dam: 4 Risks & Considerations by Water Expert Professor Stuart White - Feb 2022

 

Rous County Council's authoritarian members will ride forth at 9:30 am this morning armed with what can only be described as an anti-democracy revenge motion

Channon Gorge, site of proposed Dunoon Dam.
Photo David Lowe.
Image: Echo, 10 December 2020

It took a long hard campaign on the part of the Widjabul Wia-bal People and the people of Lismore to protect the area known as Channon Gorge and the river which runs though it - rich in cultural heritage as important today as it was thousands of years ago, high in environment values and biodiversity.

However, even when Rous County Council voted to take the proposed Dunoon Dam out of future planning in late 2020, it was obvious that the 'build it it and enough water will fall from the sky' brigade, along with those who appear to take umbrage at the thought of any Aboriginal landscapes escaping destruction, would be returning for another chance to submerge the Channon Gorge.

So the struggle continues and the Widjabul Wia-bal People are not backing down when it comes to protecting the land their ancestors also protected. On 11 February 2022, at their invitation, two members of the NSW Legislative Council met with their representatives at Channon Gorge.

Water Northern Rivers, retrieved from the website 15 February 2022:

Water Northern Rivers Alliance¹

Our region is at a critical point

The current challenge for the Rous region (Ballina, Byron, Lismore and Richmond Valley council areas) is to create a drought-resilient water system without destroying cultural heritage and irreplaceable ecology.

In the face of climate change and projected population growth, the Northern Rivers has become an important testing ground for modern water supply options.

Rous County Council’s revised Integrated Water Catchment Management Plan (revised IWCM 2021) meets the challenge. It is investigating and moving forward with diverse options, instead of the White Elephant Dunoon Dam.

Recent council elections resulted in a new Rous County Councillors being appointed. The new make is predominantly pro-dam, so the time ahead is crucial.

Channon Gorge
Photo David Lowe
Image: Echo, 17 December 2020

Echo, 14 February 2022:

Just when we thought we’d seen the last of the Dunoon Dam, over a year after it was scrapped in 2020, a Rous councillor is moving a motion to put it back on the table.

The 2021 LGA elections saw the Dunoon Dam used as a platform for swaying votes on December 4, often the choice of ‘toilet water’ or the dam the only possibilities offered by candidates.

Now that this term of local government has begun, Ballina, Lismore and Richmond Valley Council have seen pro-dam councillors elected to the Rous Country Council which is made up of eight councillors – two from each of the constituent councils of Ballina, Byron, Lismore and Richmond Valley.

With the swearing-in of this term’s representatives, councils chose Councillors Sharon Cadwallader and Rod Bruem for Ballina, Councillors Michael Lyon and Sarah Ndiaye for Byron, Councillors Andrew Gordon and Big Rob for Lismore and Councillors Robert Mustow and Sandra Humphrys for Richmond Valley.

Ballina’s new Mayor Sharon Cadwallader has been nothing if not desperate to see the dam approved and has gone to extraordinary lengths to see it become a reality.

Ms Cadwallader has been voted on to Rous and she joins at least five other dam supporters on the Council.

Apart from the Byron representation, this group of Councillors have been clear about their support of the dam….

One of the results of this gaggle of duly elected environmental vandals gaining what appears to be a strong foothold on Rous County Council, is the motion set out below authored by a Lismore City councillor with the legal name of Big Rob.^{2, 3} And I have a strong suspicion that this particular motion was not presented (for formal agreement) to a full sitting of councillors on Lismore City Council – the particular local government Cr, Big Rob is legally obliged to represent at Rous County Council meetings.

Rous County Council, Ordinary meeting business paper, Wednesday, 16 February 2022:

Notice of Motion

Council Meeting 16 February 2022

Subject: Dunoon Dam

I hereby move:

That Council:

1. Adopt Revision 7 of the Integrated Water Cycle Management (IWCM) Strategy (Attachment 1) and update Revision 7 of the IWCM to reflect the inclusion of Dunoon dam investigations as part of the Future Water Project 2060

2. Approve the completion of detailed cultural heritage and biodiversity assessments associated with the proposed Dunoon dam in consultation with relevant Traditional Custodians.

3. Defer implementing the resolution associated with the proposed Dunoon dam, resolved by Council at its meeting of 16 December 2020 (resolution [61/20] Item 2), until after Stage 3 options have been determined (Attachment 2)

4. Utilise existing budget allocations for Dunoon dam land management to progress the actions in Item 2.

Signed: Councillor Big Rob

Date: 19 January 2022

The meeting at which this motion will be considered today can be accessed by the wider New South Wales & Northern Rivers general public:

Rous County Council meeting 16 February 2022
Public access, 9.30am – 10.00am: Zoom link.
Council meeting from 10.00am: Zoom link.

A public meeting is being held before the start of Rous County Council proceedings:

NOTE:

1. Water Northern Rivers, retrieved 15 February 2022, excerpts:

Ecological impacts of Dunoon Dam site – cannot be offset

• Internationally significant ecological remnants are our responsibility

• Only 1% of our region’s Big Scrub rainforest remains. 6.7% is in the proposed dam site & would be destroyed or fragmented.

• These rainforests are part of the Endangered Ecological Community Lowland Rainforest of the NSW North Coast and Sydney Basin Bioregions.

• Water Gums and Grey Myrtles in The Channon Gorge are the largest on record.

• Loss of flora species is cumulative, relentless and ultimately terminal. 

• 52 ha of critical koala habitat and corridors would be destroyed.

• Extinction already seriously threatens multiple species including the iconic platypus.

Why Dunoon Dam would NOT HELP with DROUGHT RESILIENCE

• A second dam would only receive water from the catchment above Rocky Creek Dam when it overspills. But Rocky Creek Dam currently has no provision for overflow and is full only 30% of the time, so a new dam may take years to fill. (Rous does not measure water flows over the spillway).

• Dunoon Dam is 3.5 x the size of Rocky Creek Dam, but has half the catchment size.

• In drought, when overall rainfall decreases, the runoff decreases even more drastically.

• Dunoon Dam’s relatively catchment would deliver very little in a drought.

• Multi-year droughts, predicted with climate change, mean that after a 4.5 year drought we’d have TWO empty dams.  

2. Big Rob Archives – The Echo at https://www.echo.net.au/tag/big-rob/

3. Cr. Big Rob Archives – The Echo at https://www.echo.net.au/tag/cr-big-rob/