EDO will appear before the Federal Court today in the first legal challenge to a New South Wales Regional Forest Agreement (RFA).
The North East RFA covers logging in the coastal area between Sydney and the Queensland border. It exempts logging in native forests from federal biodiversity law.
Originally signed between the Commonwealth and New South Wales in 2000, it was renewed in 2018 for another 20 years with rolling extensions that could continue indefinitely.
In the summer of 2019-20, devastating bushfires ripped through native forests in the RFA region, including areas of the World Heritage-listed Gondwana Rainforests of Australia.
On behalf of client the North East Forest Alliance (NEFA), EDO will argue that when the North East RFA was renewed, the Commonwealth did not have regard to endangered species, the state of old growth forests or the impacts of climate change, as the EDO will argue it was required to do.
NEFA is asking the Federal Court to declare that the North East RFA does not validly exempt native forest logging from federal biodiversity assessment and approval requirements (EPBC Act).
NEFA is acting to protect native forests, which provide critical habitat for vulnerable and endangered species such as koalas and greater gliders and to ensure that the laws that regulate logging in these forests are up-to-date and fit for purpose. It is the first legal challenge to an RFA in New South Wales.
EDO is grateful for the assistance of Jeremy Kirk SC and Claire Roberts of counsel who are briefed to appear in this matter. James Johnson was also involved in the case’s development.
The livestream for each day of the hearing will be available here.
This link will also be published on the Daily Court List for each day. As advised, the public livestream may broadcast proceedings with a very slight time lag behind real time.
Please note the Court generally prohibits any audio or video recording or photograph of the hearing, and prohibits any public participation or interruption of the hearing.
EDO Chief Executive Officer David Morris said:
“We are challenging the Federal Government over its failure to assess how another 20-plus years of logging, against a background of a changing climate, will impact our forest ecosystems, endangered species and old growth forests.
“The Commonwealth didn’t want to incur the costs of conducting a proper assessment, waving through a 20-year extension of native forest logging without proper scrutiny.
“Under the current system, if a population of koalas is being threatened by a new development, the project needs to be assessed at the Federal level. But if the same population of koalas is being threatened by a logging project, it’s been rubber stamped on the basis of 20-year-old environmental assessments.
“We have known for years that as the climate changes, fires will follow. And yet the North East RFA was renewed without an assessment of how climate change will impact the health and resilience of our native forest ecosystems. Less than 12 months later, fires began ravaging native forests across the region.
“This RFA is a powerful instrument that allows the forestry industry to bypass Federal biodiversity assessments. To be robust, these agreements must be founded on the latest scientific knowledge on climate and the state of our forest ecosystems.”
20-year Extension of Native Forest Logging
Regional Forest Agreements are signed between the Commonwealth and the states, allowing forestry operations to be exempt from assessment and approval under the federal Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC ACT).
There are ten RFAs in force around Australia. The North East RFA is one of three in New South Wales, the others are the Eden RFA and Southern RFA.
Image: NSW Environment Protection Authority
The North East RFA encompasses a huge area spanning from NSW’s Central Coast to Queensland’s Gold Coast. It encompasses critically endangered ecosystems such as Central Hunter Valley eucalypt forest, New England Peppermint Grassy Woodlands, as well as Lowland and Littoral rainforests.
The ecosystems under the agreement include vital habitat for vulnerable and endangered species such as the grey-headed flying fox, the greater glider, the spot-tailed quoll.
In order for an RFA to exempt native forest logging from the usual federal biodiversity assessment and approval requirements, when the Commonwealth enters into an RFA it is legally required to have regard to assessments of environmental values – including endangered species and old growth – and the principles of ecologically sustainable management. EDO will argue for NEFA that when the North East RFA was renewed in 2018, the Commonwealth was required to, but did not assess climate change, endangered species or old growth forests.
In the subsequent 2019-20 bushfire season, the Black Summer bushfires devastated these ecosystems and the species that call them home, changing native forests in these regions beyond recognition.
According to the Natural Resources Commission 2020 report, 2019-2020 Bushfires: Extent of impact on old growth forest2, 28% of the Upper North East section of the North East RFA was fire affected, with over 65% of the forest canopy in that area being either totally or partially burnt. 23% of the Lower North East section of the North East RFA was fire affected, with 52% of the forest canopy in that area being either totally or partially burnt.
On behalf of NEFA, EDO will argue that the lack of crucial assessments before the 2018 renewal means the decision to extend the North East RFA was not made in accordance with the relevant legislation. As a consequence, the Federal Court should find the North East RFA does not lawfully exempt logging in the north east RFA region from federal biodiversity assessment and approval requirements.
This is the first time a NSW RFA has been challenged in court, and, if successful, may have implications for other RFAs in New South Wales, as a well as Victoria, Tasmania and Western Australia.