Environmental Defenders Office (EDO), March 2024 Newsletter, 29 February 2024:
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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)
