© 2007 Environmental Defender's Office (Ltd) NSW
The information contained in this fact sheet is current as at 25 September 2006.
The main laws that relate to the regulation of forestry operations in NSW are the Forestry Act 1916, the Forestry Regulation 1999 and the Forestry and National Park Estate Act 1998.
Other laws that affect environmental protection in areas affected by logging operations are:
4.2.1. Logging on Crown Timber Lands
Crown-timber lands include State forests, leased Crown land and Crown land sold to private owners over which the government retains the right to take timber[1]. Logging on Crown-timber lands is regulated by the Department of Primary Industries.
The most important laws relating to logging on Crown-timber lands are the Forestry Act, the Forestry Regulation and the Forestry and National Park Estate Act.
It is an offence to clear timber from Crown-timber lands without a licence, or in breach of licence conditions.[3] A person who holds a timber licenceor timber product licence may take timber or products but must pay royalties to the NSW government.[4] Timber licences and timber product licences will usually be granted subject to conditions.[5] The conditions will vary for each licence but there are usually at least four basic conditions for timber licences which outline: the area to which the licence applies, the type of timber covered, the quantity of timber allowed to be cut, and the price of the timber.
Clearing licences allow the holder to destroy trees which have no economic value and allow Crown-timber lands to be cleared for activities like agriculture.[6] Unlike timber and timber product licences, clearing licences can only be issued to leaseholders and owners.[7]
The licences and approvals required for logging operations, and the laws that apply, will depend on whether the area is covered by a forest agreement.
4.2.1.1. Logging on Crown Timber Lands not covered by a Forest Agreement
The following environmental impact assessment and approval process applies to logging on Crown-timber lands that are not covered by a forest agreement.
In deciding whether to grant a licence under the Forestry Act, the Department must consider the environmental impacts of the proposed activity in accordance with the environmental assessment provisions contained in Part 5 of the Environmental Planning and Assessment Act 1979.[8]
If the forestry activity is likely to significantly affect the environment, the person applying for the licence must prepare an environmental impact statement.[9] If the activity is likely to significantly affect a threatened species, a species impact statement must be prepared.[10]
In addition to a licence under the Forestry Act, a person may also require licences to harm threatened flora and fauna, and to cause pollution.
Flora and Fauna Licences
Under the Threatened Species Conservation Act 1995, a licence is required to clear land if threatened species or their habitat are likely to be significantly affected.[11] However, a licence is not required if development consent to clear has already been given. For more information, see Section 5.1.1 – New South Wales Species Protection Law.
Environment Protection Licences
Under the Protection of the Environment Operations Act 1997, an environment protection licence is required for certain logging operations, such as where the logging is to be carried out on land where at least 20% of the land has a slope of 18° or more, or new access or haul roads are to be constructed.[12]
An environment protection licence may also be required if the logging operations are likely to cause water pollution (for example, silt from eroded areas being washed into streams). Causing water pollution without an environmental protection licence is an offence.[13]
Environment protection licences are issued and enforced by the appropriate regulatory authority, which is ordinarily the Department of Environment and Conservation.[14] For more information about environmental protection licences, see Topic 3 – Pollution.
Case Study: South East Forests
Jarasius v Forestry Commission of NSW (1989) 69 LGRA 156
Wendy Jarasius lived in the South-East Forests of New South Wales. She was concerned that the vast south-east Forestry Commission region was being logged without an environmental impact statement having been prepared.
In 1988, with the assistance of the Environmental Defender's Office, she commenced legal action in the Land and Environment Court. The court held that the NSW Forestry Commission had not taken into account or even examined the impact of the proposed logging activities in the South-East Forests. Nor had they prepared and considered an environmental impact statement as required by the Environmental Planning and Assessment Act 1979.
Based on its finding that a substantial breach of the public duty to prepare an environmental impact statement had occurred, the Court ordered the Commission to stop its logging activities until it complied with the requirements of the law, and the community had sufficient opportunity to consider and comment on the environmental effects of the logging operations.
The case placed the practices of the Forestry Commission in the spotlight and demonstrated that regulatory authorities are not above the law.
Case Study: Chaelundi Forest
Corkill v Forestry Commission of New South Wales (1991) 73 LGR 126
From 1989 to 1991, John Corkill of the North East Forest Alliance was involved in a number of court actions to stop the Chaelundi Forest near Dorrigo from being logged.
In August 1991, he applied to the Land and Environment Court for a permanent order to protect the forest on the basis that the Forestry Commission's logging activities were likely to disturb or injure endangered and protected fauna, thus breaching sections 98 and 99 of the National Parks and Wildlife Act 1974.His argument was accepted by the Land and Environment Court.
The Forestry Commission appealed the decision to the Court of Appeal on the basis that sections 98 and 99 of the National Parks and Wildlife Act 1974 did not apply to the Forestry Commission or the logging companies it contracted.
The Court of Appeal held that the National Parks and Wildlife Act 1974 did apply to the Commission and, as the Commission's proposals would have involved taking endangered species, the court declared that logging Chaelundi Forest would breach the Act.
The Court rejected the Commission's argument that the court's decision would unreasonably limit logging activities. It also found that there is no absolute prohibition on taking or killing endangered species as the Director of National Parks and Wildlife can grant licences to allow this.
In response to the Chaelundi decision in 1990, the Endangered Fauna (Interim Protection) Act was enacted in 1991. This Act has since been replaced with the Threatened Species Conservation Act 1995.
4.2.1.2. Logging on Crown Timber Lands covered by a Forest Agreement
The approval system for logging on Crown-timber lands has been changed significantly by the introduction of the Forestry and National Park Estate Act 1998. This Act sets out a process for the making of forest agreements covering Crown-timber lands, and for a new approval system for forest agreement areas to replace licences previously required under the Forestry Act, as well as flora and fauna licences and environment protection licences.
Note that ‘forest agreements' are different to ‘regional forest agreements'. For more information on regional forest agreements, see Section 4.2.1.6 – Regional Forest Agreements below.
Forest Agreements
A forest agreement may be made over a particular region of the State.[15] The Forestry and National Park Estate Act 1998 contains special provisions with respect to forest agreements over the Eden region, the Lower North East region and the Upper North East region.[16]
A forest agreement is an agreement between:
A forest agreement must address a range of matters, including:
The Ministers may amend or terminate an agreement at any time, but only by joint agreement.[19]
The Ministers must carry out a review of each forest agreement every five years.[20] However, this review is limited to examining the implementation of the forest agreement and the effectiveness of integrated forestry operations approvals[21] (see below).
A report of the review must be tabled before Parliament[22]. In addition, an annual report concerning each forest agreement must be prepared and laid before Parliament[23].
Public Participation
Notice of a proposed forest agreement must be published in statewide and local newspapers.[24] Before a forest agreement is made, the proposed agreement must be placed on public exhibition for at least twenty-eight days.[25]
Any person is entitled to make submissions to the Ministers during the exhibition period.[26] The Ministers must take those submissions into account in making the final agreement.[27] The same process must be followed before a forest agreement is amended or revoked.[28]
The public must also be notified of any review of a forest agreement.[29] Proposed changes to the agreement must be put on public display and any member of the public may make submissions with respect to the proposed changes and to the terms of reference of the review.
Forest agreements, annual reports and the terms of reference for reviews of forest agreements are publicly available from the Department of Natural Resources website: www.dnr.nsw.gov.au.
Integrated Forestry Operations Approvals
Integrated forestry operations approvals (‘integrated approvals') are intended to integrate environmental licences issued under other Acts for forest agreement areas,[30] including:
An integrated approval may be granted subject to conditions, and these conditions may include conditions which would previously have been included on separate licences, such as a flora and fauna licence.[32] In such cases, a separate licence is not required. ]
An integrated approval is granted by the same Ministers who made the forest agreement.[33 These Ministers may also amend, suspend or revoke the approval.[34] An integrated approval may be in force for up to twenty years.[35]
The granting of an integrated approval significantly restricts the operation of other environmental legislation.[36] For example, orders can not be made under the National Parks and Wildlife Act 1974, the Threatened Species Conservation Act 1995,[37] the Environmental Planning and Assessment Act 1979 or the Local Government Act 1993[38] Further, forestry operations cannot be declared to be projects under Part 3A of the Environmental Planning and Assessment Act 1979 during the period that an integrated approval applies to those operations.[39]
Enforcement of Integrated Forest Operations Approvals
If the terms of an otherwise separate licence are included in an integrated forest operations approval, then the government agency which would have granted that licence may prosecute for a breach of such a term.[40]
For example, if an integrated approval contains terms relating to water pollution, and those terms are breached, the Department of Environment and Conservation can prosecute the holder of the approval. In addition, any of the Ministers who granted the approval can bring proceedings in the Land and Environment Court to prevent or remedy the breach of the approval.[41]
Public Participation and Integrated Forest Operations Approvals
The Forestry and National Park Estate Act 1998 drastically reduces the scope for public participation in the enforcement of integrated approvals. A member of the public or community group cannot prosecute for a breach of an integrated approval or bring legal proceedings to prevent or remedy a breach.[42]
As such, the provisions in other Acts that normally allow any person to bring legal proceedings for a breach of that Act or other Acts do not apply to a breach of the Forestry and National Park Estate Act 1998 or a breach of an integrated approval. This makes it extremely difficult for a member of the public to initiate enforcement proceedings relating to logging operations covered by an integrated approval.
As with a forest agreement, the relevant Ministers must review an integrated forest operations approval every five years.[43] The public must be notified of this review and be given an opportunity to make submissions.[44] The relevant Ministers must prepare a report and table it before Parliament.[45]
Integrated forest operations approvals are publicly available from the Department of Primary Industries website: www.forest.nsw.gov.au.
4.2.1.3. Forestry Operations and National Parks
The National Parks and Wildlife Act 1974 protects trees in national parks, historic sites, State recreation reserves and State game reserves. It also prohibits picking various listed native flowers and shrubs without a licence [46].
Under the National Parks and Wildlife Act 1974, the Minister for the Environment, on the recommendation of the Director-General of the Department of Environment and Conservation, has the power to issue an interim protection order for an area of natural, scientific or cultural significance which is not currently within a national park or conservation reserve, but is being considered for such protection [47]. An interim protection order can prevent logging operations in such an area for up to two years or until the area is fully assessed and declared as a protected area [48].
These orders can require the preservation, protection and maintenance of an area of land, its fauna, plants, threatened species, and any relic or place [49].
Long-term protection is only possible through the dedication or reservation of the land as a national park or other form of conservation reserve under the National Parks and Wildlife Act 1974. For more information, see Section 5.2.1 – New South Wales Protected Areas Law.
4.2.1.4. Forestry Operations on Private Land
Removal of native vegetation from private land is generally regulated by the Native Vegetation Act 2003. However, clearing that consists of plantation operations on an authorised plantation under the Plantations and Reafforestation Act 1999 is exempt from the provisions of the Native Vegetation Act 2003.[50]
The Plantations and Reafforestation (Code) Regulation 2001 (the Code) sets out detailed requirements for plantation operations, including standards relating to the protection of soil, water, biodiversity and cultural heritage.
The Plantations and Reafforestation Act 1999 provides for plantation approvals by the Department of Natural Resources. Where authorisation is granted, the local council must be notified in writing within forty days of the decision.[51]
Under the Act, plantation operations are divided into three categories:
It is an offence to carry out, or permit the carrying out of, plantation operations on a plantation or proposed plantation without authorisation, if those operations require authorisation.[55]
The Minister may commence proceedings in the Land and Environment Court for an order to restrain or remedy a breach, or threatened breach, of the Plantations and Reafforestation Act 1999.[56] The Minister may also issue a stop work order to restrain a breach, order remedial work to be carried out on an authorised plantation[57], or order investigations into the level of compliance[58].
Proceedings for criminal offences must be brought by, or with the approval of, the Minister, within two years of the alleged breach.
The Minister must maintain a public register of all applications for authorisation, and all authorised plantations. The register is available for public inspection, free of charge and must also be made available on the internet.[60] A profile of plantation authorisations since December 2001 is available at www.dlwc.nsw.gov.au/vegetation/plantations.shtml
The Plantations and Reafforestation Act 1999 is subject to review as soon as possible once the Act has been in operation for five years.[61] The Code is subject to review at least every five years, with a requirement for public consultation where significant changes are proposed.
Landowners can take steps to prevent future logging operations on their land by entering into a voluntary conservation agreement. For more information, see Section 5.2.3 – Conservation on Private Land.
4.2.1.5. Commonwealth Environmental Approvals
Under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act),an approval from the Commonwealth Minister for the Environment is required for any activity that will have a significant impact on certain ‘matters of national environmental significance', including nationally listed threatened species[63].
If proposed logging operations fall within this category, the logging company must ordinarily obtain an approval under the EPBC Act. Failure to obtain an approval in such a situation is an offence and may result in an injunction preventing the logging from proceeding, or heavy fines, or both. For more information see Topic 2.2 – Commonwealth Environmental Assessment Law.
It is important to note, however, that an approval may not be required to carry out logging in forests covered by a Regional Forest Agreement.[64]
4.2.1.6. Regional Forest Agreements
A regional forest agreement is an agreement between a State or Territory and the federal government which sets out, amongst other things, which forests should be reserved for conservation purposes and which are available for logging.
The regional forest agreement process arose out of the 1992 National Forest Policy Statement. One of the purposes of the National Forest Policy Statement was to establish a comprehensive, adequate and representative national forest reserve system. Under the policy, the States, Territories and federal government agreed to undertake ‘comprehensive regional assessments' of forest regions. The information obtained via this assessment process was to inform the negotiation of regional forest agreements for each forest region.
There is no provision for public participation in the preparation of regional forest agreements.
A regional forest agreement is different to a forest agreement made under the Forestry and National Park Estate Act 1998. However, the assessment processes for regional forest agreements and forest agreements overlap to a large degree.
In New South Wales, regional forest agreements and forest agreements cover the same forestry areas. In addition, the concepts of regional forest assessment and integrated forestry operations approvals contained in the Forestry and National Park Estate Act 1998 have been accepted as a means of implementing the National Forest Policy Statement.
Regional forest agreements have fairly limited legal effect in New South Wales. Although the agreements set out which areas of a region are to be logged and which are to be reserved, the relevant approval system under the Forestry Act 1916 or the Forestry and National Park Estate Act 1998 must still be followed.
There are, however, two significant legal effects of a regional forest agreement. Firstly, logging areas covered by regional forest agreements are exempt from the requirement to obtain approvals under the Environment Protection and Biodiversity Conservation Act 1999 [65]. Secondly, a federal woodchip export licence is not required to export woodchips sourced from forests covered by a regional forest agreement.[66]
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