Justice Perry ‘s judgement of today in North East Forest Alliance vs The Commonwealth of Australia is that no contemporaneous assessment is required before extending Regional Forest Agreements beyond the originally intended 20 years, noting:
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.
NEFA objected to the Governments extending the North East NSW Regional Forest Agreement in 2018 based on 1997 data, without requiring a new assessment, it is therefore extremely disappointing that after a 5 year legal battle this process of not requiring a contemporaneous assessment has been legally validated, NEFA President Dailan Pugh said.
“This judgement means that it is valid to roll over Regional Forest Agreements (RFAs) forever-more based on data collated in 1997 and politicised outcomes that ignore the science, including the rapidly increasing extinction risk faced by many forest fauna and the accelerating impact of climate heating upon them and forests.
The original North East NSW forest agreement was made unilaterally by NSW in 1998 based on a 1997 assessment, and was only intended to last for 20 years, after which a new assessment was promised. This was adopted for the joint NSW-Commonwealth RFA in 2000.
After the 20 years was up, in 2018 Premier Gladys Berejiklian and Prime Minister Scott Morrison decided that they would not do a new assessment and, without any consideration of climate change, extended the existing RFA indefinitely as a variation.
This decision was strongly objected to in 2018 by then opposition environment spokesperson, Penny Sharpe, who said the science underpinning the RFAs is out of date and incomplete, committing that ALP Labor will not sign off on a rollover of the RFAs until there is a proper, independent, scientific assessment of their outcomes, and the assumptions of the original RFAs are revisited. (3)
“The decision to not require a new assessment put at risk the survival of a multitude of species that have rapidly declined since 1997, including many nationally threatened species that are not adequately protected under NSW’s logging rules and are being significantly impacted” Mr Pugh said.
NEFA have identified that within north-east NSW’s State forests that are currently being logged, or proposed for imminent logging, there are nationally significant populations of over 11 nationally threatened animal species and 13 plant species (1). Of particular concern are the Endangered Koala, Southern Greater Glider, Spotted-tailed Quoll, Hastings River Mouse, Rufous Scrub Bird, and Giant Barred Frog.
We are in the midst of extinction and climate crises, aggravated by the 2019/20 wildfires, rising temperatures and logging, so it is reprehensible that these species are still not receiving the immediate increase in protection Professor Samuel’s review of the RFAs identified as needed back in 2020 (2), said NEFA vice-president Susie Russell.
“It is time for Tanya Plibersek to provide the immediate protection for threatened species identified as required by Professor Samuel in 2020 and for Penny Sharpe to step up and end this sham RFA”, Ms Russell said.
NEFA thanks the Environmental Defenders Office (EDO) for their work in mounting this case, and for the counsel who acted on our behalf: the now Hon Justice Kirk of the NSW Court of Appeal, Claire Roberts and James Johnson.
FOR MEDIA INQUIRIES: contact Dailan Pugh, Susie Russell
(1) Nationally threatened species with significant populations in north-east NSW’s State forests that are currently being logged, or proposed for imminent logging.
- Endangered: Koala, Southern Greater Glider, Spotted-tailed Quoll, Hastings River Mouse, Rufous Scrub Bird, Giant Barred Frog, (plants) White-flowered Wax Plant, Milky Silkpod, Cryptic Forest Twiner, Scrub Turpentine, Native Guava, and Moonee Quassia.
- Vulnerable: Parma Wallaby, Grey-headed Flying-fox, South-eastern Glossy Black-Cockatoo, Sphagnum Frog, Stuttering Frog, (plants) Slender Marsdenia, Bordered Guinea Flower, Slaty Red Gum, Square-fruited Ironbark, Big Nellie Hakea, Trailing Woodruff and Orara Boronia.
(2) The 2020 Samuel’s Review of Regional Forest Agreements, in relation to Matters of National Environmental Significance (MNES) (including threatened species) found “that the environmental considerations under the RFA Act are weaker than those imposed elsewhere for MNES and do not align with the assessment of significant impacts on MNES required by the EPBC Act. …There is also great concern that the controls on logging within forests have not adequately adapted to pressures on the ecosystem such as climate change or bushfire impacts. … The Review considers that Commonwealth oversight of environmental protections under RFAs is insufficient and immediate reform is needed.
(3) The Guardian reported Penny Sharpe on 22 March 2018 https://www.theguardian.com/environment/2018/mar/22/nsw-labor-refuses-to-approve-forestry-agreements-based-on-out-of-date-science
Penny Sharpe, opposition environment spokeswoman, said NSW Labor would not sign off on proposed extensions because the government “knows the science underpinning the RFAs is out of date and incomplete”.
She said: “Importantly, the RFA assessment must include climate change as a consideration. Given the key role of forests for carbon storage, no RFA should be renewed without investigating their impact on climate change.
“Labor has been unequivocal: Labor will not sign off on a rollover of the RFAs until there is a proper, independent, scientific assessment of their outcomes, and the assumptions of the original RFAs are revisited.