Dailan Pugh, North East Forest Alliance, July 2021
When spotlighting down the Liberation Fire Trail in Chaelundi State Forest in late 1989 we were astounded by the multitude of white eyes shining in the trees. The North East Forest Alliance’s (NEFA’s) oldgrowth surveys had found the highest density of Greater Gliders known. This forest’s astounding abundance of animals led a judge to later describe it as “a veritable forest dependent zoo, probably unparalleled in south-eastern Australia”.
NEFA blockaded Chaelundi twice, in 1990 and 1991. The second started in April 1991, though it wasn’t until the 23 July that the Government had the political will to force their way through. It took 10 days for the police to clear the road and close the forest – people then camped in the adjacent national park and continued their protests. 230 people were arrested.
On both occasions it was legal actions taken by John Corkill on NEFA’s behalf that were successful in stopping the Forestry Corporation in its tracks. The ultimate success of our campaign is that the contested 7,000 ha is now part of the Guy Fawkes River National Park, though Chaelundi is of far greater political import.
In 1990 Chaelundi was the catalyst that forced the NSW Government to place 180,000 ha of oldgrowth forests under moratoria while Environmental Impact Statements (EISs) were prepared. Most of this oldgrowth is now in national parks. In 1991 Chaelundi led to the adoption of NSW’s first threatened species legislation – the Endangered Fauna (Interim Protection) Act – against the Government’s wishes. Most astounding were Chaelundi’s political ramifications, causing one National Party forest minister to be demoted, one Liberal member to turn independent, one National Party planning Minister to be found to have acted illegally, and a Liberal Premier and a Liberal environment minister to resign following corruption findings.
Ironically, outcomes included that the Endangered Fauna (Interim Protection) Act was generally not applied to the Forestry Commission, and the Forestry Commission’s $15 million EIS program collapsed in disgrace under sustained attack from NEFA.
2021 marks 30 years since the police broke through NEFA’s blockade. This article chronicles Chaelundi’s role in the turbulent events of that time.
NEFA first became aware of the importance of Chaelundi in 1989 when undertaking fauna surveys of eight oldgrowth forests we were proposing to run court cases on to require Environmental Impact Statements (EISs) before logging could proceed. Our first court case over Mount Royal in Christmas 1989 was successful in stopping roading and logging.
In the lead up to the March 1990 Federal Election, NEFA and the Rainforest Information Centre ran a “Vote for the Forests” campaign. At the same time it was found that the Liberation Fire Trail was being reconstructed into Broadmeadows Road in preparation for logging the Chaelundi oldgrowth, in part of the Guy Fawkes Wilderness. We established a blockade on 8 March, with 13 people arrested on 13 March.
We immediately initiated legal proceedings, with John Corkill as the plaintiff, and obtained an injunction on roading and logging in 7,000 ha of Chaelundi State Forest until an Environmental Impact Statement (EIS) was prepared in accordance with the Environmental Planning and Assessment Act 1979 (EP&A Act).
This was the second court case in NEFA’s oldgrowth campaign. with threats of many more to follow, and the NSW parliament unwilling to exempt forestry from the EP&A Act, the State Government was
left with no alternative, and on 24 June 1990 Premier Greiner launched 'Meeting the Environmental Challenge: A Forestry Strategy', which was an undertaking to prepare EISs for some 180,000 ha of oldgrowth forest that would be protected in the interim. Greiner stated:
"...it is important to examine these forests and their values in considerable detail, evaluate the options for land use, and determine those areas where logging can be undertaken using sensitive management practices in order to lessen and ameliorate the environmental impact.".
In July 1990 the then Minister for Natural Resources, and member for Clarence, Ian Causley, lost his portfolio and was demoted because of “the controversy surrounding his strong support for logging” (Sydney Morning Herald 24/7/1990).
Three compartments in Chaelundi were targeted for a quick EIS which was released on 2 November 1990. On 27 March 1991 the Forestry Commission NSW approved their own EIS and announced logging would start in the Chaelundi compartments. Unfortunately, despite its manifest flaws, our barrister’s advice was that a challenge to the adequacy of the EIS was unlikely to succeed. On 1 April 1991 NEFA began its second Chaelundi blockade. On 17 April the Chaelundi People's Wilderness Park was declared 'open'. The Forest Products Association claimed that “Dorrigo will die” if the logging didn’t proceed (Coffs Harbour Advocate 18/4/1991).
Not wanting adverse publicity from a confrontation, the Government waited until after its snap election on 25 May 1991. The election resulted in a hung Parliament, with 46 Labor members, 32 Liberal, 17 Nationals and 4 independents (John Hatton, Dr Peter MacDonald, Clover Moore and Tony Windsor). Windsor locked himself into supporting Greiner who was thereby able to form a minority coalition government, with the Speaker able to exercise a casting vote.
On 19 July NEFA asked NSW Environment Minister Tim Moore to place an Interim Protection Order under the National Parks and Wildlife Act 1974 (NPW Act) over the 3 compartments in Chaelundi. On 26 July the NPWS “recommended in the strongest terms” that he impose an IPO because of the areas “outstanding natural and scientific significance of regional and national importance” (Sydney Morning Herald 24/8/1991). On 6 August Tim Moore recommended to Cabinet that there be a six month protection order, though this was rejected.
NEFA also requested the Heritage Council to make an Interim Conservation Order to stop works under s.136 of the Heritage Act for Chaelundi SF. On 26 July 1991 the Minister for Planning, Robert Webster, acting on the advice of the Heritage Council that the act did not apply to natural areas, refused the request. On 1 August John Corkill lodged a legal challenge on NEFA’s behalf, arguing that the Minister had rejected the application without due consideration of Chaelundi’s merits.
By the time the Forestry Commission had gathered the courage and the police to move in at dawn on 23 July, NEFA had established a series of blockades consisting of tripods (three crossed poles) with people precariously perched on top, bipods (two crossed poles attached by a pole to the top of an adjacent tripod), monopod (a tall pole supported by guy ropes) with a person precariously perched on an unstable platform on top, concrete pipes (stockpiled for road building) dug into the road with people chained inside, people buried in roads chained to the underneath of cars, and various other defences.
Over the next 10 days in a war of attrition blockades were systematically demolished during the day, and rebuilt at night. Forty to sixty police took part in Operation Tallowwood. Overall 230 people were arrested. Protectors demonstrated “a good deal of humour”, with the police commenting “They are non-violent. They are not the most co-operative people but then they are not here to be co- operative” (Sydney Morning Herald 26/7/1991). The police were generally professional, though some were antagonistic, and their use of extremely painful wrist locks to get people off tripods amounted to torture.
On 1 August the blockaders were exhausted, the last of their defences were demolished and the forest was declared a closed prohibited area “in the interests of public safety” (Northern Star 2/8/91). People retreated to camps in the Guy Fawkes River NP, both adjacent to the logging area and in a nearby campground. Environment Minister Tim Moore refused requests from the Forestry Minister to close the national park to exclude protestors. Actions and arrests continued both within the logging area and on the access roads.
At the same time they were breaking through our last defences our barrister, Tim Robertson, advised us that we had legal prospects on fauna grounds. On 9 August John Corkill, on behalf of NEFA, launched a legal challenge on the grounds that the logging would inevitably include the 'taking or killing' of listed endangered and protected fauna and therefore required a licence under sections 98 & 99 of the National Parks and Wildlife Act 1974. We sought an injunction to stop the logging, though the Forestry Commission agreed to stop until an expedited case could be heard. The trial ran for 12 days from 20 August until 5 September. We engaged a variety of experts and collated voluminous supporting documents from the Forestry Commission’s own files to establish that logging would significantly affect 23 listed endangered and protected fauna species. The Forestry Commission fought the case largely on technical legal grounds and argued that the Act did not bind the Crown.
On 25 September Justice Stein handed down his judgement that the FCNSW was in breach of National Parks & Wildlife Act as they did not have a licence, finding that roading and logging would take or kill 23 endangered and protected species, concluding:
"The high species diversity of arboreal marsupials and the presence of numerous significant species listed in Schedule 12 of the NPW Act makes it a veritable forest dependent zoo, probably unparalleled in south-eastern Australia. Every species of forest dependent marsupial is present. It contains prime or critical habitat for numerous species of endangered fauna or "faunal hot spots". Special pleading for individual areas as exhibiting particular value relating to flora or fauna is not uncommon. However, the evidence before me is overwhelming that this portion of forest is significantly unique in Australia for its natural wildlife values."
The Government lodged its appeal to Justice Stein’s ruling on 1 October. There was a concerted Government and industry scare campaign, with Premier Greiner claiming (Daily Examiner 2/10/91) that licencing was unworkable and the decision “would affect almost every facet of Government activity including private recreational activities in national parks, state forest and on Crown land” and “activities ranging from mining to the construction of public housing and schools and educational activities in State forests”.
On 2 October, at the request of Environment Minister Tim Moore, the NSW Governor made a new Regulation under the NP&W Act exempting all public authorities and persons from the endangered and protected fauna provisions of the NPW Act, except the three Chaelundi compartments. The regulation became a political issue as parliament considered whether to disallow it.
Amid the furore, on 2 October 1991 Terry Metherell resigned from the Liberal Party live on the ABC's 7.30 Report, without having given his colleagues notice, stating "This government has lost its way. The Premier seems unable to reach out and take the community into his confidence. He offers no clear vision that will lift the people in this time of deep recession". Greiner’s parliamentary majority was further eroded with Metherell becoming an independent member of the Legislative Assembly.
The court losses kept growing, on November 1 the NSW Court of Appeal upheld Justice Stein’s Chaelundi ruling. In another embarrassment to the Government, on November 25 1991 Justice Stein of the Land and Environment Court ruled that due process had not been followed, and the
Planning Minister, Robert Webster, The Chairman and whole Heritage Council of NSW had acted unlawfully in rejecting NEFA’s application for an Interim Conservation Order by following a government ‘policy’ to not apply the Act’s provisions to ‘natural heritage’ instead of implementing the legislation faithfully, as the law required.
Tim Moore’s regulation was seen as a step too far by most parliamentarians. With politicians asking for an alternative, John Corkill drafted the Endangered Fauna (Interim Protection) Bill (EF(IP) Bill) 1991, and incorporated amendments suggested by NEFA lawyers Robertson and Woolf and EDO solicitor James Johnson. The opposition, led by Bob Carr, agreed to support it.
On 5 December the Regulation Review Committee found that the Environment Minister did not give notice of the regulation, did not undertake a regulation impact statement, and did not consult with affected interests and industry groups. Shadow Environment Minister Pam Allan also introduced the EF(IP) Bill into Parliament. To add to Greiner’s woes on 11 December 1991 the election of a Liberal (Bob Graham) for The Entrance was voided by the Court of Disputed Returns.
The Regulation and the EF(IP) Bill were debated over several days in both Houses before the Regulation was disallowed on 10 December and the first endangered species law in NSW was enacted by the 50th Parliament, against the will of the minority Greiner Government, on 12 December 1991.
The Government and loggers continued to claim the sky was falling and launched an all-out attack against the EF(IP) Act. On 18 February 1992 the Forest Products Association claimed that 94 jobs had already been lost as a result of the EF(IP) Act, with a further 302 jobs to be lost within 2 months. When I followed up on their claims none could be verified – they just made them up. Not to be dissuaded, by 24 February 1992 the multiplier effect was gaining momentum and claimed job losses had skyrocketed to 6,000.
The Forestry Commission and other National Party controlled Government departments were, in many instances, going out of their way to frustrate the EF(IP) Act. Forestry Minister Garry West issued a press release (28 February 1992) in which he notes that the Soil Conservation branch is telling people to contact the NPWS for such activities as "removing woody weeds, camphor laurels, bitou bush or other similar noxious weeds" and "gully filling". Meanwhile the Forestry Commission told people they must obtain a licence from the NPWS for activities such as hunting feral goats, spraying weeds, camping, orienteering, car rallies, horse riding and picking greenery. There was a concerted Government campaign to discredit the Act and waste NPWS staff's time.
Under pressure, the NPWS issued licences to the Forestry Commission in February 1992 as part of a mass temporary licensing operation for the whole of NSW under section 120 of the National Parks and Wildlife Act 1974. These licences were issued on a management area basis in response to the concerted attack on the EF(IP) Act and prior to its provisions coming into full force. The licences were only meant to last 120 days as a temporary measure to give the Forestry Commission time to prepare Fauna Impact Statements as required by the EF(IP) Act.
This did not stop the outcry as the industry and Government seized the opportunity to push for more concessions for the loggers.
When the government lost The Entrance by-election to a Labor candidate on 18 January 1992, they became extremely concerned by their tenuous position. Metherell had expressed his interest in one of the directorships at the new Environmental Protection Authority. In February the Government began considering offering Metherell an EPA job, and in March the Environment Minister Tim Moore and Premier Greiner had discussions with Metherell. Metherell's decision to accept the position would create the need for him to resign his parliamentary seat, which the Liberal Party was confident of winning in a by-election. From the time of these meetings until Metherell's resignation, Metherell reconciled with his former party.
The Greiner Government and timber industry used the contrived crisis over the EF(IP) Act to get the ill-conceived Timber Industry (Interim Protection) Act (TI(IP) Act) through parliament in March 1992, with Metherell’s support. Threatened species were used as a smokescreen to obtain the Forestry Commisson’s long-sought exemption from having to do environmental assessments before they logged. The Act had nothing to do with threatened species.
The TI(IP) Act required EISs to be prepared for whole Forestry Commission Management Areas, made the Minister for Planning the determining authority, and prevented the Environment Minister from making stop work orders. The 1990 oldgrowth moratorium areas and nominated wilderness areas were not allowed to be logged until the EISs were prepared (NEFA hurriedly nominated an extensive western addition to the Washpool Wilderness days before). The catch was that all areas outside the moratorium areas could be logged and cleared in the interim without EISs, irrespective of how environmentally significant such areas were. It may have taken over a decade, and caused immense damage to their reputation, but the Forestry Commission had finally got what they wanted – exemption of most of their activities from the EP&A Act.
Metherell’s resignation as a Member of Parliament and his subsequent appointment to the EPA were announced at a joint press conference on 11 April 1992. Liberals won the seat at the May by- election.
Metherell’s appointment and his change of heart on the TI(IP) Act generated widespread controversy. The Legislative Assembly referred the matter of Metherell's appointment to the Independent Commission Against Corruption (ICAC). Metherell stood down pending the inquiry. Green Left Weekly (20 May 1992) reported:
The most damaging allegation so far has been Dr Metherell's claim that Greiner "improperly" approached him about the job application on March 9 during a phone discussion lobbying for the government's logging legislation. Metherell said that Greiner had told him that his support for the government's bill would be "useful" in resolving the other matter they had been discussing. Metherell says he took this to mean his interest in the EPA job.
ICAC conducted its inquiry in mid to late May 1992, and released their report in late June. It considered that Greiner and Moore’s conduct amounted to a deal which ‘involved exchanging a Government job for a parliamentary seat’ (ICAC 1992), which was found to be corrupt.
The four Independent MPs whom Greiner relied upon to form a government made it clear that they would no longer support the government if he continued in office. Accordingly, Greiner resigned, and was succeeded by John Fahey. Greiner and Moore appealed ICAC’s findings to the NSW Supreme Court, which found in a 2:1 majority that ICAC’s commissioner had not applied objective, legally recognised standards when reaching his conclusions but rather his own ‘personal and subjective opinion’. By then Premier Greiner and the Environment Minister, Tim Moore, had already resigned. Metherell never took up the offered job.
In 1992 State Forests were beginning to release their EIS’s. They were full of errors, omissions and misinformation, with the intent to allow logging as usual. NEFA put in lengthy submissions identifying their flaws and were successful in getting the first one for Mount Royal refused by the Department of Planning. The next 2 for Wingham and Glen Innes were approved with numerous conditions.
In 1993 we announced we were mounting a legal challenge to stop the Dorrigo EIS (covering Chaelundi) being determined, though before we could commence our case the Forestry Commission hastily withdrew the EIS after the Department of Planning had already signed a letter to their Minister stating it should be refused. After that the thoroughly discredited EIS process was abandoned. It is ironic that Chaelundi never did have an EIS approved for it, aside from the mini 3 compartment EIS, and caused the abandonment of the $15 million EIS process it initiated.
The “temporary” Section 120 licences were colloquially called “lollypop licences” by the NPWS’s Threatened Species Unit, as they kept on being extended and effectively lasted until Threatened Species Licenses were issued in 1997 under the Threatened Species Conservation Act 1995 (which replaced the EF(IP) Act). The only Fauna Impact Statement determined under the EF(IP) Act in northern NSW was for the Wingham area. Despite all the hysteria, the Forestry Commission ended up being subject to the NPW Act 1974 licencing system, and it is astounding that the EF(IP) Act, which was introduced with the primary intent to protect threatened species from the Forestry Commission, never applied to most of their activities.
By any measure, NEFA’s campaign to protect Chaelundi had immense environmental and political ramifications. Most importantly, most of the disputed 7,000 hectares subject to NEFA’s campaign was protected as the Guy Fawkes River National Park in 1998, though it wasn’t until 2003 that we managed to add the remaining 2 compartments subject to the 1991 blockade protected as part of the Icon Decision.