Forestry (in: Independent review of the Environment ... · 1rom both the F Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.38(1); and the Regional Forest Agreement

FORESTRyChapter Six

Independent Review of the ENvIRONMENT PROTECTION AND BIODIvERSITy CONSERvATION ACT 1999 104

Chapter 6: Forestry

Chapter 6: Forestry

Key points ■ The operation of Regional Forest Agreements (RFAs) is a highly contentious issue; opinion about the outcomes

and successes of these agreements is polarised. This tension was reflected in public submissions on the interaction of RFAs and the EPBC Act.

■ There is a lack of comparable, accessible information by which to judge the outcomes of RFAs – this results from limited consistent reporting on RFA outcomes or a standard regulatory framework across RFA regions.

■ It is argued that in order for Part 3 of the EPBC Act to continue not to apply to RFA forestry operations there should be greater transparency, compliance with and enforcement of existing processes through:

■ demonstration of the conservation outcomes of RFA operations;

■ greater emphasis on existing RFA review mechanisms;

■ monitoring and auditing processes for RFA operations to demonstrate if they are operating in accordance with the relevant RFA; and

■ default provisions that re-assert the EPBC Act if required reviews are not completed by the due date, or if environmental outcomes are not demonstrated appropriately.

Current provisions of the Act6.1 The assessment and approval provisions of the EPBC Act do not apply to forestry operations that are taken in

accordance with an RFA.1 This is colloquially referred to as the ‘RFA exemption’.

6.2 The Act adopts the meaning of ‘RFA’ provided under the RFA Act.2 To be declared an ‘RFA’ the agreement must satisfy all of the following conditions:

(a) the agreement was entered into having regard to assessments of the following matters that are relevant to the region or regions:

(i) environmental values, including old growth, wilderness, endangered species, national estate values and world heritage values;

(ii) Indigenous heritage values;

(iii) economic values of forested areas and forest industries;

(iv) social values (including community needs);

(v) principles of ecologically sustainable management;

(b) the agreement provides for a comprehensive, adequate and representative reserve system;

(c) the agreement provides for the ecologically sustainable management and use of forested areas in the region or regions;

(d) the agreement is expressed to be for the purpose of providing long-term stability of forests and forest industries;

(e) the agreement is expressed to be a Regional Forest Agreement.3

1 From both the Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.38(1); and the Regional Forest Agreement Act 2002 (Cth) s6(4). The EPBC Act RFA provisions are wholly contained within Division 4 of Part 4 of the Act.

2 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.38(2).3 Regional Forests Agreement Act 2002 (Cth) s.4.

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Chapter 6: Forestry

6.3 The rationale for the EPBC Act’s RFA provisions is recognition ‘that in each RFA region a comprehensive assessment … has been undertaken to address the environmental, economic and social impacts of forestry operations.’4 The RFA Act is the primary legislation which regulates forestry activities and forest practices.

6.4 The application of s.38 of the EPBC Act is not absolute. Part 3 of the EPBC Act still applies to RFA forestry operations that are:

■ in a property included in the World Heritage List; or

■ in a wetland designated under Article 2 of the Ramsar Convention; or

■ incidental to another action the primary purpose of which does not relate to forestry.5

6.5 The EPBC Act was amended in 2006 by inserting s.75(2B) to ensure that in making a controlled action decision in relation to a proposed development, the Minister must not consider any indirect impacts of an RFA forestry operation. For example, the impact of sourcing timber could not be considered when assessing a factory which will use timber from an RFA region. The rationale appears to have been to make it clear that the impact associated with sourcing the timber was already considered by the RFA.

How were the RFAs decided?

6.6 The creation of RFA regions occurred in four distinct stages.6 First, the Commonwealth and individual State governments agreed to enter into an RFA and created scoping documents which contain government obligations, regional objectives and interests, and broad forest uses, as well as the nature and scope of the forest assessment.

6.7 The second step involved an analysis of the values of forest areas using agreed JANIS criteria,7 to establish what would amount to a comprehensive, adequate and representative reserve system (known as a CAR reserve).8

6.8 The third step involved a comprehensive regional assessment (known as a CRA) of the environmental, heritage, social and economic uses and values of RFA forests. The Department of Agriculture, Fisheries and Forestry (DAFF) explains how the comprehensive regional assessment was carried out:

The process used the JANIS criteria to identify the areas of the forest that needed protection, and which parts could be used for commercial purposes. The assessments also determined what the forests meant to the industries and people of each region, including Indigenous Australians. They drew on existing material as well as a wide range of specially commissioned studies and technical reports … series of meetings on the reports for each region enabled community groups and stakeholders to identify issues that needed to be addressed in the RFAs. The consultations involved local government, industry, unions, regional economic development organisations, conservation groups and Aboriginal Land Councils.9

6.9 The final stage involved negotiations between the Commonwealth and individual State governments to finalise each of the agreements.

4 Explanatory Memorandum, Environment Protection and Biodiversity Conservation Bill 1999, para [113].5 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.42.6 Further information on the creation of RFAs is available at: http://www.daff.gov.au/rfa/about/how7 The JANIS criteria are a set of nationally agreed criteria which outline targets for the conservation of ecosystems to make up the CAR reserves. 8 CAR means: including the full range of vegetation communities (comprehensive); ensuring the level of reservation is large enough to maintain

species diversity, as well as community interaction and evolution (adequate); and conserving the diversity within each vegetation community, including genetic diversity (representative).

9 DAFF, RFAs: How? (2009) http://www.daff.gov.au/rfa/about/how at 8 May 2009.


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How are matters protected under the EPBC Act dealt with under RFAs?

6.10 Environmental outcomes are identified and agreed under each RFA. The agreements accredit ecologically sustainable forest management systems. These systems include conservation management prescriptions for forestry operations in production forests and a CAR reserve system on public and private land, for the purpose of ensuring long-term conservation and protection of the values defined by the nationally agreed JANIS criteria.

6.11 RFAs also explicitly identify environmental entities, including national estate, world heritage and priority species in the RFA region. For example, all RFAs list the priority threatened species and ecological communities within the RFA region and specify ways to protect them. These include:

■ protection within the reserve system;

■ protection of key habitats, such as rainforest, heaths and swamps; and

■ development of conservation advice, recovery plans and threat abatement plans.

6.12 Other EPBC Act processes such as conservation advices, threat abatement plans and recovery plans continue to be developed for threatened RFA forest species listed under the EPBC Act, where appropriate and are implemented notwithstanding the existence of an RFA.

Australian Government forest policy

6.13 Australia’s domestic forest policy framework is guided by the 1992 National Forest Policy Statement (NFPS), which sets out agreed principles for the use of Australia’s forests, including the provision of environmental protection and security for industry. The principles of the NFPS are primarily implemented through RFAs, and can be described as follows:

The [NFPS] sets out broad national goals to be pursued at regional levels. It uses a framework that integrates environmental, social and commercial objectives to ensure we obtain a balanced return from all forest uses. This enables the governments to achieve cooperatively their vision for sustainable management of Australia’s forests.

RFAs were a key element in the National Forest Policy Statement’s approach. They sought a reasonable balance between conserving Australia’s forest estate and its enduring use for economic production and recreation.10

6.14 The NFPS also defines the role of each tier of government in forest management. At the Australian Government level, DAFF has portfolio responsibility for RFAs, including the administration of the RFA Act, while DEWHA has responsibility for matters relating to the EPBC Act. These matters include the oversight of threatened species protection and management of national and world heritage values, occurring throughout Australia, including within RFA regions. As the RFA Act is the primary piece of legislation regulating forest practices, DAFF is involved in the day-to-day management of forestry activities.

10 DAFF, RFAs: Why? (1992) http://www.daff.gov.au/rfa/about/why at 10 May 2009.


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Key points raised in public submissions

Submissions supporting RFAs

6.15 Submissions from forest industry groups11 and the governments of Tasmania and Western Australia12 were supportive of RFAs and their operation. These submissions focused on the quality of Australian forestry practices, the benefits of RFAs and the improvement on the previous system of forestry management.

6.16 They recognised the benefits of RFAs as including:

■ protection for threatened species equal to or greater than that under the EPBC Act (with several submissions citing the findings of the Full Court in the Wielangta case in support of this view);13

■ a landscape approach to forestry management, rather than a coupe-by-coupe approach;

■ providing certainty for forest industries; and

■ providing a flexible management framework, taking into account regionally specific environmental conditions. 14

6.17 These submissions outlined the processes behind the RFAs, including the comprehensive regional assessments, which they suggested took into account the social, economic, environmental, cultural and heritage values of forested areas under RFAs. The comprehensive regional assessment were also promoted on the basis that these assessments involved substantial scientific study and consultation.

6.18 Submissions in favour of RFAs also highlighted the benefits of the CAR reserve system in protecting biodiversity.15

Submissions opposed to RFAs

6.19 Submissions opposed to RFAs generally called for the application of Part 3 of the EPBC Act to RFA forestry operations – that is, the primary position was to remove Division 4 of Part 4 of the EPBC Act.

6.20 Submissions also called for improvements to the content, adaptability and enforceability of the agreements, including:

■ increasing public participation in the ongoing implementation of RFAs;

■ having mandatory adequate enforceable oversight by the Commonwealth;16

■ allowing compliance actions where the Federal Court has found the RFA does not protect species or ecological communities;17

■ allowing assessment and approval where the operations of a forestry action result in net greenhouse gas emissions of greater than 25,000 tonnes per year;18

■ mandating stronger requirements for systematic review of RFA operations;

■ making RFAs protect and conserve newly listed species, or take into account new information about a species as it arises;19 and

■ mandating stronger requirements to consider environmental impacts.

11 Submission 133: National Association of Forest Industry; and Submission 038: Australian Forest Growers.12 Submission 200: Government of Tasmania; and Submission 201: Government of Western Australia.13 The Wielangta case and appeal are reported at Brown v Forestry Tasmania (No 4) [2006] FCA 1729; and Forestry Tasmania v Brown [2007] FCAFC

186. The forest issue is continuing to polarise opinion with both sides of the debate having opposing views from the two decisions.14 Submission 133: National Association of Forest Industries; and Submission 038: Australian Forest Growers.15 Submission 200: Government of Tasmania.16 Submission 194: Australian Conservation Foundation.17 Submission 153: The Wilderness Society.18 Submission 153: The Wilderness Society.19 Submission 179: International Fund for Animal Welfare.


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6.21 Submissions indicated that RFAs should have processes that are equal to or better than EPBC Act processes.

6.22 Community and environment groups generally submited that RFAs are failing to protect species and are permitting the destruction of critical habitat – with several submissions citing the findings of Justice Marshall at first instance in the Wielangta case as proof of this point.20 Several submissions (namely Still Wild Still Threatened,21 the North-East Bioregional Network22 and Ourimbah Precinct Community23) provided detailed examples of forestry operations, which they believed to be having negative environmental outcomes.

6.23 There was also specific criticism of:

■ the inability of third party challenges to RFA actions;24 and

■ the inability of third parties (i.e. parties that are not the Australian Government or a State government) to evaluate the success of RFAs.

6.24 Submissions also highlighted the importance of forests as carbon sinks and sources of habitat, and noted that RFAs do not take climate change into account.25

6.25 Other criticisms going to the content of the agreements included:

■ failure to consider water use,26 changes to logging practices (including the increase in the practice of thinnings),27 community well-being,28 climate change impacts on CAR reserves (i.e. will the reserves continue to be comprehensive, adequate and representative if there is a change in climate) and greenhouse gas emissions from clearing old growth forests;29 and

■ criticism of the science behind the original agreements—claims that it was politicised.30

6.26 Submissions were also critical of the operation and administration of RFAs, including:

■ failure by the Commonwealth to assess whether forestry activities carried out in an RFA region are actually complying with the RFA;31

■ the limitation of s.75(2B) in disallowing consideration of the indirect impacts of RFA forestry actions resulting from the approval of a project;32

■ failure to establish recovery programs and be proactive in recovery efforts in RFA regions;33

■ failure to regularly and rigorously review the RFAs in accordance with best practice; and

■ insufficient power for the Commonwealth to monitor and audit compliance with RFAs (coupled with concerns that the system of self-regulation is not working).

6.27 It was argued that the special treatment of RFAs under the EPBC Act should be suspended if the agreements are not effectively implemented and the conservation benefits are not being realised. It was also suggested that the Commonwealth should have a power to intervene where information comes to light that there is a real threat to an endangered species, or world or national heritage values.

20 See e.g. Submission 153: The Wilderness Society; and Submission 162: The Green Institute.21 Submission 115: Still Wild Still Threatened.22 Submission 030: North East Bioregional Network.23 Submission 147: Ourimbah Precinct Community. 24 Public consultation - Ms Margaret Blakers, The Green Institute, pers. comm. (Canberra, 12 May 2009).25 Submission 153: The Wilderness Society.26 Submission 015: Ms Estelle Ross. 27 Submission 051: Healesville Environment Watch.28 Submission 138: Mr Kerin Booth.29 Submission 138: Mr Kerin Booth.30 Submission 202: Lawyers for Forests; and Submission 115: Still Wild Still Threatened.31 Submission 192: Mr Tom Baxter.32 Submission 192: Mr Tom Baxter.33 Submission 202: Lawyers for Forests.


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senate inquiry into the operation of the ePBc act

6.28 The Senate Committee dedicated its second report to the effectiveness of RFAs in protecting conservation values.

6.29 The Committee did not hand down a consensus report. The majority report was supportive of RFAs as a vehicle for reducing conflicts over forest resources and advancing knowledge of forest ecosystems. The Committee indicated that it does not support the abolition of RFAs, nor does it support the full application of the EPBC Act to RFA operations.

6.30 The majority report had one recommendation:

The committee notes that the Minister for the Environment has formally asked the Independent Review of the EPBC Act to consider the findings and recommendations of this inquiry (see letter 13 March 2009). Accordingly the committee recommends that the Independent Review consider the findings in this report and recommend proposals for reform that would ensure that RFAs, in respect of matters within the scope of Part 3 of the EPBC Act, deliver environmental protection outcomes, appeal rights, and enforcement mechanisms no weaker than if the EPBC Act directly applied.34

6.31 The Committee also detailed a range of issues with RFA practices that needed to be addressed, including:

■ limited public acceptance;

■ doubts about the environmental outcomes;

■ concerns over the transparency and accountability;

■ concerns that there is limited public awareness of the conservation practices;

■ concerns that the five-year reviews are not being completed;

■ concerns that harm to threatened species may be consistent with an RFA, and that this is a lesser level of protection than is afforded by the EPBC Act; and

■ concerns about the complaint mechanisms available.

6.32 The Committee indicated that it also supports improvement in the current avenues for consultation, accountability and legal challenge.

6.33 The dissenting report from Coalition Senators strongly opposed the majority’s recommendation, but were supportive of the continuation of RFAs.35

6.34 The Australian Greens recommended that consideration be given to ‘the repeal of the exemption as the simplest and most equitable way of ensuring RFA forestry operations receive adequate environmental protection.’36

34 The Senate Standing Committee on Environment, Communications and the Arts, The operation of the Environment Protection and Biodiversity Conservation Act 1999: Second report (2009) http://www.aph.gov.au/senate/committee/eca_ctte/epbc_act/report/report.pdf at 6 May 2009, Recommendation 1.

35 Senate Committee Second Report, Coalition Senators’ Dissenting Report.36 Senate Committee Second Report, Additional comments from the Australian Greens.


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Analysis of the Wielangta decision

6.35 The Senate Committee provides a summary and analysis of the Wielangta court decisions (Brown v Forestry Tasmania). The review supports the Committee’s views on these cases. As the Wielangta decisions were discussed in a large number of submissions with varied interpretations of their meaning, selections of the Senate Committee’s report are extracted in considerable detail below for clarification:

On 19 December 2006, Marshall J handed down his judgment in the case of Senator Bob Brown v Forestry Tasmania.37 The case involved an application by Senator Brown made under s 475 of the EPBC Act concerning alleged contraventions of s 18(3) of the Act by Forestry Tasmania:

Senator Brown has alleged that Forestry Tasmania’s forestry operations and proposed forestry operations in the Wielangta State forest are prohibited in the absence of approval by the relevant Commonwealth Minister. It is said that this is because the forestry operations have had or will have a significant impact on three threatened species. Those species are the Tasmanian wedge-tailed eagle, the broad-toothed stag beetle and the swift parrot.38

Senator Brown also sought an injunction to prevent Forestry Tasmania from undertaking any forestry operations, or any activities in connection with forestry operations, in the Wielangta State forest.

In summary, Marshall J found that:

■ Forestry operations, and proposed forestry operations, of Forestry Tasmania in the Wielangta area would be likely to have a significant impact on the three species identified.

■ The Regional Forest Agreement (RFA) between the Commonwealth and the State of Tasmania was an RFA within the terms of the Regional Forest Agreements Act 2002; and

■ That Forestry Tasmania did not have an exemption from relevant provisions of the EPBC Act by virtue of the exemption provisions in s.38 of the EPBC Act and s.6(4) of the RFA Act. This was because Marshall J formed the view that the forestry operations in the Wielangta forest would be, and had been, conducted otherwise than in accordance with the RFA.39

6.36 Marshall J’s ruling had the effect of requiring forestry operations in an area covered by an RFA to be conducted in accordance with the relevant RFA otherwise those activities were unlawful.40 Conducting forestry operations in accordance with an RFA included the protection of threatened species, where this was a condition of the RFA.

6.37 Forestry Tasmania appealed to the full bench of the Federal Court against the Court’s declarations.

6.38 On 30 November 2007, the Full Court of the Federal Court handed down its judgment on appeal of Forestry Tasmania v Brown.41 It overturned Justice Marshall’s decision.

6.39 The Full Court stated that the central issue on appeal was whether s.38 of the EPBC Act exempted Forestry Tasmania’s operations from the provisions of Part 3 of the EPBC Act and s.6(4) of the RFA Act. In order to address this issue, the Full Court examined and considered the EPBC Act, the Tasmanian RFA, the CAR reserve system and the RFA Act.42

6.40 In contrast to the initial Federal Court decision, Sundberg, Finkelstein and Dowsett JJ determined that clause 68 of the Tasmanian RFA did not require the State to protect the three threatened species. In their view, clause 68 ‘does not involve an enquiry into whether CAR effectively protects the species. Rather it is the establishment and maintenance of the CAR reserves that constitute the protection’.43

37 Brown v Forestry Tasmania (No 4) [2006] FCA 1729.38 Brown v Forestry Tasmania (No 4) [2006] FCA 1729 Summary, p. 2.39 Brown v Forestry Tasmania (No 4) [2006] FCA 1729 Summary, p. 3.40 Larissa Waters ‘Brown v Forestry Tasmania (No 4) [2006] FCA 1729 (19 December 2006) – Federal Court finds logging unlawful’, summer 2006

National Environmental Law Review, pp. 25–30.41 Forestry Tasmania v Brown [2007] FCAFC 186.42 Forestry Tasmania v Brown [2007] FCAFC 186.43 Forestry Tasmania v Brown [2007] FCAFC 186.


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6.41 Sundberg, Finkelstein and Dowsett JJ believed it was unnecessary to consider all of the agreed issues originally examined by Marshall J. The Full Court was critical of Marshall J for, in their opinion, unnecessarily examining the agreed issues in extensive detail.

6.42 The committee notes that in reaching its judgment, the Full Court did not rely on a variation to the Tasmanian RFA which was agreed by the then Prime Minister, the Hon John Howard MP, and the Hon Paul Lennon MP, the then Premier of Tasmania, on 23 February 2007.44 The variation to the RFA was a new clause 68 whereby the Commonwealth and State of Tasmania agreed that the CAR reserves and management prescriptions provided for by the Tasmania RFA protected rare and threatened species and forest communities.45

6.43 Subsequent to the Full Court’s decision, Senator Brown appealed to the High Court of Australia.46

6.44 On 23 May 2008, the High Court considered an application for special leave to appeal brought by Senator Brown. Senator Brown sought to appeal the decision of the Full Court of the Federal Court, and specifically two issues, ‘one concerning the proper construction of a particular regional forestry agreement and the other concerning the powers of the Full court of the Federal Court of Australia in hearing an appeal against the grant of a permanent injunction. The High Court refused to grant special leave to appeal on the basis that:

In 2007 the 1997 agreement was varied and a new clause 68 agreed. The new clause provided that, “The Parties agree that the CAR Reserve System, established in accordance with this Agreement, and the application of management strategies and management prescriptions developed under Tasmania’s Forest Management Systems, protect rare and threatened fauna and flora species and Forest Communities”.

It has long been recognised that an appellate court exercising powers of the kind given to the Full Court of the Federal Court as to which...may have regard, in considering whether to allow an appeal against the grant of a permanent injunction, to facts and circumstances occurring after the initial grant...That being so, having regard to the terms of the substituted clause 68 of the relevant regional forestry agreement, an appeal to this Court against the decision of the Full Court to dissolve the injunction that had been granted at first instance would enjoy insufficient prospects of success to warrant a grant of special leave to appeal.

6.45 The amendment made to clause 68 of the Tasmanian RFA was agreed by then Prime Minister the Hon John Howard and the Tasmanian Premier at the time, the Hon Paul Lennon on 23 February 2007.47 The amendment removed the original clause 68 which stated:

The State agrees to protect the Priority Species listed in Attachment 2 (Part A) through the CAR Reserve System or by applying relevant management prescriptions and replaced it with an agreement between the state and Commonwealth that the CAR reserve system and management strategies protected rare and threatened species.48

44 Senate Committee Report, Submission 65 (Mr Tom Baxter), p. 7; DAFF, Tasmanian Regional Forest Agreement (2009) http://www.daffa.gov.au/rfa/regions/tasmania/rfa at 20 March 2009.

45 DAFF, Tasmanian Regional Forest Agreement (2009) http://www.daffa.gov.au/rfa/regions/tasmania/rfa at 20 March 2009.46 High Court of Australia, Brown v Forestry Tasmania [2008] HCATrans 202 http://www.austlii.edu.au/au/other/HCATrans/2008/202.htmlat 20

March 2009.47 DAFF, Variation to the Tasmanian RFA (2007) http://www.daff.gov.au/__data/assets/pdf_file/0015/156003/variation-tas-rfa.pdf at 1 April 2009.48 DAFF, Tasmania RFA (1997) http://www.daffa.gov.au/__data/assets/pdf_file/0003/49278/tas_rfa.pdf at 1 April 2009; DAFF, Variation to the

Tasmanian RFA (2007) http://www.daff.gov.au/__data/assets/pdf_file/0015/156003/variation-tas-rfa.pdf at 1 April 2009.


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interpretation of the wielangta cases

6.46 It is apparent to the Committee that the Full Court’s judgment has been interpreted differently by those who oppose and those who support the use of RFAs as they currently operate. Critics of RFAs, such as Lawyers for Forests, have argued that the cases demonstrated the weakness of the EPBC Act. The cases were consistently cited as an example where an RFA had failed to protect the environment and conserve biodiversity:

The cases bring to light the deficiencies both of the EPBC Act and the limits of protections for species and habitat afforded under RFAs. Justice Marshall based his interpretation of section 38 in light of the objects of the EPBC Act, in particular its objectives to “promote the conservation of biodiversity”, provide for the protection of “matters of national environmental significance” and to “assist in the co-operative implementation of Australia’s international environmental responsibilities”...By providing for RFA exclusions under section 38, the EPBC is failing to implement these key objectives...Consequently, a large portion of Australia’s existing biodiversity, including listed threatened species, is not subject to protections and procedures afforded under the EPBC Act.49

6.47 Because the Full Court’s did not revisit Justice Marshall’s findings of fact, they remain valid:

...Justice Marshall [conducted]... a detailed examination of whether in fact the Tasmanian regional forestry agreement and forest management systems in place in Tasmania were adequate to protect three important listed species. The findings of fact made in that case were that the Tasmanian RFA and forest management systems did not adequately protect those three listed species.

Despite that decision being overturned by the full court of the Federal Court, those findings of fact still remain. Those findings of fact were made after a lengthy court case and detailed analysis and submissions by the parties.50

6.48 Representatives of the forestry industry claimed that the Wielangta cases ‘affirmed that the Regional Forest Agreements provide adequate protection for forest species and habitats in accordance with the provisions of the EPBC Act’.51 Timber Communities Australia suggested that:

The Wielangta case provides a thorough examination of the effectiveness of the EPBC Act in ensuring that endangered species are protected during forestry operations...The Wielangta case also confirms that the strict provisions of the RFAs provide protection of threatened and endangered species.52

6.49 These, with respect, do not appear to be fair representations of the legal situation. The committee notes that the Full Court did not determine that the Tasmanian RFA provided adequate protection of threatened species. On the contrary, the court commented, in relation to clause 68 of the RFA:

The question is whether cl 68 does require the State to [in fact] protect the species... In our view it does not. Clause 68 does not involve an enquiry into whether CAR effectively protects the species. Rather it is the establishment and maintenance of the CAR reserves that constitute the protection.

The verbiage of cl 68 supports this view. The State does not agree “to protect the priority species listed in Attachment 2 (Part A)”. It agrees to protect them “through the CAR Reserve System”.53

6.50 By providing for a CAR reserve system, the Tasmanian government had fulfilled its obligations under the RFA to protect threatened species. It was for this reason that an analyst of the judgment summarised the situation as being:

that, in areas covered by the RFA, it is presumed that the protective mechanisms envisaged by the RFA protect the relevant species, even in circumstances where they do not.54

49 Professor Lee Godden, Senate Inquiry submission 92, p.8.50 Mr Andrew Walker, Lawyers for Forests, Committee Hansard, 8 December 2008, p.26, Senate Committee Report.51 Mr Allan Hansard, Chief Executive Officer, National Association of Forest Industries, Committee Hansard, 18 February 2009, p.9, Senate

Committee Report.52 Senate Committee Report, Submission 7 (Timber Communities Australia), p.5.53 Forestry Tasmania v Brown [2007] FCAFC 186.54 Shashi Sivayoganathan ‘Forestry Tasmania v Brown: Biodiversity Protection – An Empty Promise?’, Spring 2007 National Environmental Law

Review pp. 21-42, referenced in the Senate Committee Report.


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Discussion of RFAs and the EPBC Act6.51 It is important to note that the Senate Committee’s majority final report recognised that evaluating the

effectiveness of RFAs is a particularly complex and contentious policy issue. Additionally, the report indicated that reform of the framework surrounding RFAs should not be undertaken lightly.

6.52 The ambit of this review extends to the operation of the EPBC Act, and the extent to which it is achieving its objects. It will therefore consider RFAs to the extent that they interact with the EPBC Act but will not be reviewing the RFA Act.

acceptance of the interaction between rfas and the ePBc act

6.53 The Senate Committee’s second report clearly recognises ‘that some stakeholders have never accepted the Regional Forest Agreements process, and remain concerned that the agreements do not deliver adequate environmental protection’.55

6.54 In 2008, the united Nations Educational, Scientific and Cultural Organisation’s (uNESCO) World Heritage Committee, at the request of several Tasmanian non-governmental organisations (NGOs) visited Tasmania and reported on the protections afforded to the Tasmanian World Heritage Area including in relation to potential impacts from RFA forestry activities. They consulted heavily with relevant parties and concluded that:

the stakeholders are fractious, suspicious of each other and seldom if ever meet to resolve differing points of views. Existing mechanisms of advisory bodies and consultative processes are viewed with suspicion and are shunned.56

6.55 It is noted that the uNESCO report only commented on the Tasmanian situation, and may not be representative of RFA stakeholder relationships in other jurisdictions.

6.56 Submissions to this review also expressed highly polarised points of view on the effectiveness of RFAs. On the one hand, forest industry groups and State governments suggested that ‘RFAs provide effective protection of forest species and forest habitats in accordance with the sentiments of the EPBC Act.’57 Conversely, environmental NGOs were opposed to RFAs on the basis that the ‘agreements are not effectively implemented and do not deliver actual conservation outcomes in terms of protecting and restoring populations of threatened species.’58 Regardless of the veracity of either claim, it is clear that there is a schism of opinion on the extent to which RFAs protect matters of National Environmental Significance (NES).

criticisms of rfas

Quality of the original agreements

6.57 Strong representations were made by both sides of the RFA debate over the adequacy of the original RFA processes. It is interesting to note that most focus on the Tasmanian RFA rather than RFAs in general.

6.58 The National Association of Forest Industries (NAFI) submitted that the comprehensive regional assessments underpinning RFAs ‘use a science-based methodology to determine forest allocation for different uses and forest management strategies, and are the result of substantial scientific study, consultation and negotiation covering a diverse range of interests.’59

6.59 NAFI also highlighted the success of the CAR reserve system in reserving ‘60% of the existing distribution of each forest type if vulnerable, 60% of existing old growth forest, 90% or more of high quality wilderness forests, and all remaining occurrences of rare and endangered forest ecosystems’. 60

55 Senate Committee Second Report, para [1.102].56 The World Heritage Committee, Tasmanian Wilderness (Australia) Report of reactive monitoring mission, July 2008, p.5.57 Submission 133: National Association of Forest Industries, p.16.58 Submission 179: International Fund for Animal Welfare, p.11.59 Submission 133: National Association of Forest Industries, p.3.60 Submission 133: National Association of Forest Industries, p.6.


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6.60 NAFI further submitted that these targets were exceeded under many of the RFAs.61 In its submission the Government of Tasmania highlighted the additional area reserved under the 2005 Tasmanian Community Forestry Agreement.62

6.61 In contrast, Lawyers for Forests criticised the comprehensive regional assessment process as merely a ‘desktop’ assessment, and argue that the basis of the assessments – the JANIS criteria – are not valid or were incorrectly applied in the first place.63

6.62 Still Wild Still Threatened contended that:

The reservation of old growth forest – particularly stands of mixed forest – was one of the most contested outcomes to emerge from the Tasmanian RFA, with a number of critics claiming that the representative nature of the reserved areas was compromised through inconsistencies in mapping and definitional semantics.64

6.63 Still Wild Still Threatened also submitted that the science of the agreements was ‘overwhelmed by political interference’.65 Similarly, the International Fund for Animal Welfare suggest that ‘serious flaws in the information and scientific process underpinning the RFAs undertaken to date have been identified.’66

Environmental outcomes of RFAs

6.64 Many submissions maintained that RFAs fail to protect matters of NES. Some submitters provided detailed case studies of issues associated with RFA forestry operations, for example the logging of old growth forests for woodchips67 or alleged biodiversity decline in the Ourimbah State Forest following logging.68 These submissions did not clearly show that forestry operations under RFAs were resulting in negative environmental outcomes for matters of NES.

6.65 The Senate Committee’s report provides some evidence about the environmental outcomes of RFAs, but it did not reach any clear conclusions regarding these outcomes. In exploring a case study of the operation of the Western Australia RFA and the protection afforded to brush-tailed phascogale (Phascogale tapoatafa) and brush-tailed bettong (Bettongia penicillata), the Committee indicated ‘that there is significant complexity in assessing the conservation status of species, and linking this to forest management (and thus to the performance of RFAs)’.69 This is because species decline may be linked to extrinsic impacts that do not relate to the forest management practices, or there is simply not enough data to support such a conclusion.

6.66 The inability to judge the outcomes of RFAs is a concern. In the absence of information to verify that RFAs are achieving good environmental outcomes it is unsurprising that submissions opposed the agreements so vehemently.

6.67 Submissions relied on the Wielangta decision (Brown v Forestry Tasmania)70 as evidence that RFAs are having negative outcomes for biodiversity. This review relies on the Senate Inquiry’s analysis of this decision, which is extracted above.

61 Submission 133: National Association of Forest Industries, p.6.62 Submission 200: Government of Tasmania.63 Submission 202: Lawyers for Forests.64 Submission 115: Still Wild Still Threatened, p.2.65 Submission 115: Still Wild Still Threatened, p.2.66 Submission 179: International Fund for Animal Welfare, 11 – citing Jan McDonald ‘Regional Forest (Dis)agreements: The RFA Process and

Sustainable Forest Management’ (1999) 11 Bond Law Review, p.295; Jill Redwood ‘Sweet RFA’ (2001) 26 Alternative Law Journal, p.255.67 Submission 115: Still Wild Still Threatened.68 Submission 147: Ourimbah Precinct Council.69 Senate Committee Second Report, para [1.23].70 Brown v Forestry Tasmania (No 4) [2006] FCA 1729.


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6.68 It is also noted that in forming a decision on the significance of the impact of the forestry operation in the Wielangta decision, Marshall J at first instance considered the action in conjunction with other impacts on the species, such as electrocution by powerlines, injury by fencing, car accidents and wind farm accidents. Marshall J held that:

‘the present and likely future forestry activities of Forestry Tasmania in Wielangta will, in the context of the Act, have a significant impact on the eagle, notwithstanding the presence of other impacts which may be even more significant’.71

6.69 Another noteworthy point is that while the Full Federal Court decided as a matter of law that it was sufficient that the Tasmanian RFA put in place a CAR reserve system, rather than a system that actually protects threatened species, it is important to recognise that the decision of the Court turned on the particular wording of the Tasmanian RFA. The applicability of this decision to other RFAs will depend on how they have been drafted.

6.70 The World Heritage Committee, invited to Tasmania by environmental NGOs, reported that:

the area managed under the [Tasmanian Wilderness World Heritage Area] management plan provides a good representation of well-managed tall eucalyptus forest and there is similar forest outside the property which is also well-managed, but for both conservation and development objectives. The threats to these forests from production forestry activities are well managed.72

6.71 Similarly, Australia’s State of the Forests Report (2008) produced by the Bureau of Rural Sciences found that:

the legal framework for achieving the conservation and sustainable management of forests was strengthened during the period (2003-2008) through the continued implementation of regional forest agreements and new measures governing vegetation clearing and the allocation of water to land uses such as forestry. In most jurisdictions, codes of forest practice or other instruments underwent continuous improvement during the period and were applied to a wide range of activities that cause disturbances in forests.73

6.72 Once again, however, neither report provided any detailed empirical evidence on the implementation of RFAs and the extent to which the environmental objectives which these agreements are being achieved.

6.73 It is clear that the RFAs intend to protect environmental values – it is a core element of their objective to manage forests for multiple uses. It is less clear how the achievement of this objective on the ground can be measured, assured and enforced.

6.74 There is a widespread lack of confidence among those environmental NGOs who have provided input to this review that, at least in some jurisdictions, good practices are being implemented. Without judging the veracity of this view, sound management requires systems to build public confidence in management practices.

6.75 The Australian Greens recommend ‘the repeal of the exemption as the simplest and most equitable way of ensuring RFA forestry operations receive adequate environmental protection.’74 Lawyers for Forests submit that it would be difficult to make the improvements recommended by the majority Senate Committee’s report while the RFAs remain on foot. Repealing the special treatment of RFAs would result in a blanket application of the EPBC Act to forestry activities. The majority report indicates that this would create uncertainty for the forest industry and also result in a return to conflict in forest resource management.

6.76 At the very least, some improvements need to be made to ensure that RFAs are properly implemented, and where they are not, the protections of the EPBC Act need to be applied. Stronger mechanisms that oblige managers and proponents to demonstrate compliance, coupled with provisions for re-evoking the EPBC Act should land managers fail these tests, could achieve adequate environmental protection while avoiding the most serious adverse economic and social consequences.

71 Brown v Forestry Tasmania (No 4) [2006] FCA 1729, para [102] (per Marshall J).72 The World Heritage Committee, Tasmanian Wilderness (Australia) Report of reactive monitoring mission, July 2008, p.23.73 Bureau of Rural Sciences, State of the Forests Report (2008), p.xii.74 Senate Committee Second Report, Additional comments from the Australian Greens, p.35.


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compliance and enforcement

6.77 There are two central issues with compliance and enforcement of RFAs. The first is the compliance of the parties undertaking RFA forestry actions and the second is the Commonwealth’s capacity to enforce the terms of the agreement. Increasing the capacity for compliance and enforcement may improve acceptance of RFA forestry operations and their interaction with the EPBC Act.

Parties undertaking RFA forestry actions

6.78 Submissions to this review noted that Part 3 of the EPBC Act does not apply to forestry operations that are taken in accordance with an RFA. It was therefore considered vital that there be monitoring and audit of forestry operations’ compliance with the relevant RFA and that compliance and enforcement action is taken in cases where there has been a breach of the agreement and approval under the EPBC Act is required.

6.79 As a party to the RFAs, the Australian Government position is one of working with the States to ensure the provisions and intent of the RFAs are met. DEWHA and DAFF have a process for investigating specific forest operations which are alleged to be in breach of an RFA. DAFF is the lead agency responsible for administering the RFA Act and undertaking such assessments. DEWHA is responsible for undertaking any compliance or enforcement action under the EPBC Act.

6.80 The Senate Committee’s report considered the mechanisms by which possible breaches of RFAs could be identified and addressed. The report noted that there was a mechanism in place, that there had been 14 complaints, and that none of these have been upheld. The report was unsure whether stakeholders were aware of these complaint mechanisms.75

6.81 However, the majority of compliance and enforcement actions with regard to forestry operations are undertaken by State governments. For example, the independent auditor of forestry operations in Tasmania, the Forest Practices Authority, recorded 93 complaints in 2006-07 and 124 complaints in 2007-08. Of these complaints approximately 60% resulted in some form of compliance action (issuing of notices for corrective action, formal warnings, imposition of penalties or resolution by courts). 76

6.82 The Tasmanian example shows that there are a range of compliance activities undertaken at a State level. This division of compliance responsibilities (between the Commonwealth and the States) has been criticised by Tom Baxter, who suggests that the Commonwealth relies too heavily on State authorities to enforce RFAs.77

6.83 There is a need for the Commonwealth to take a more active role in monitoring, auditing and enforcement of RFAs. This may require an expansion of the Commonwealth’s powers in this respect, for example, the Act could confer power on the Minister to ‘turn off’ Division 4 of Part 4 of the Act for forestry operations found not to be complying with an RFA, thereby re-evoking the potential application of Part 3 of the Act. Further resources should also be dedicated to monitoring, audit and enforcement action under the EPBC Act generally.

Enforcing RFAs

6.84 Submissions indicated concerns that State governments may not be fulfilling their obligations under the RFAs, or that the obligations set out in the agreements are meaningless.

6.85 The Senate Committee’s report quoted correspondence with DAFF, which stated that there are no requirements within the RFAs imposing a legally enforceable obligation upon the States to ensure the protection of species or ecological communities listed under the EPBC Act.78 DAFF further commented that there would be no legal consequences if an RFA operation caused a species to become extinct, provided the actions were taken in accordance with the RFA.79

75 Senate Committee Second Report, paras [1.86-1.87].76 Tasmanian Forest Practice Authority, annual report 2007-08 http://www.fpa.tas.gov.au/fileadmin/user_upload/PDFs/General/FPA_07-08_

annual_report.pdfat 10 April 2009.77 Submission 192: Mr Tom Baxter.78 Senate Committee Second Report, para.1.98.79 Senate Committee Second Report, para.1.100.


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6.86 Enforcement of the provisions of the RFAs is difficult, as parts of the agreements are explicitly deemed not to be legally binding. For example, the only legally binding sections in the Tasmanian RFA are Part 1 (which sets out definitional issues, the duration of the agreement and dispute resolution mechanism) and Part 3 (which specifies the requisite Environmental Management System, the agreement to conduct RFA reviews, the requirement for compensation in the event that the Commonwealth breaches the agreement, methods for updating species lists, financial assistance from the Commonwealth and methods for termination). Part 2, which contains the majority of protections for matters of NES, is not legally binding.80

6.87 As such, the options for Commonwealth enforcement of the agreement are limited to the dispute resolution provisions which allow for mediation or termination of the agreement. DEWHA has been advised by the Australian Government Solicitor that the dispute resolution mechanisms of the RFA must be used in the first instance.81

6.88 This is not sufficient. The Commonwealth should have greater capacity to protect matters of NES under RFAs, or to ensure requisite protection is being provided.

6.89 Lawyers for Forests argued for a more interventionist role for the Commonwealth. They observed that previous Commonwealth intervention to stop logging in the Lemonthyme82 and Daintree Forests83 would, in retrospect, be widely supported by the public at large.

Options for greater oversight

6.90 Given the continuing strength of public sentiment regarding the protection of environmental values in RFA regions and the associated calls for the removal of s.38 of the EPBC Act (as evinced by submissions), coupled with a policy imperative noted above to ensure the implementation and accountability of RFAs, there are sound reasons for strengthening the Australian Government’s audit role in ensuring on-ground forestry activities are consistent with the intent of RFAs and opportunities to apply compliance and enforcement mechanisms where they are not.

6.91 The intent in proposing such options is to strengthen on-ground adherence to the policy intent of the RFAs (as opposed to increasing opportunities for the application of the EPBC Act) and to enhance the mechanisms available for the objective measurement and comparability of on-ground conservation outcomes achieved in RFA regions.

6.92 It is also important that any compliance and enforcement mechanisms are transparent, open to public scrutiny and adaptable enough to apply to parallel and future schemes governing forestry-related activities (such as land clearance and forestry activities recognised in the CPRS).

6.93 Possible options for increasing Commonwealth oversight of compliance with RFAs include:

■ establishing an independent expert-based RFA Scientific Committee – which may possibly be a subcommittee of the Threatened Species Scientific Committee – to:

■ assess whether forestry operations are compliant with relevant RFAs (in order to maintain eligibility for the application of s.38 to the operation), where reported;

■ undertake all RFA five-year reviews and provide reports to the Commonwealth and State governments;

■ make recommendations to Commonwealth and State governments on the extension/next generation of RFAs; and

■ initiate audits of matters of NES in RFA regions.

80 A copy of the Tasmanian RFA is available at: DAFF, Tasmanian RFA http://www.daff.gov.au/__data/assets/pdf_file/0003/49278/tas_rfa.pdf at 20 May 2009.

81 Letter from Australian Government Solicitor to Department of Environment and Heritage, 25 March 2004.82 Richardson v Forestry Commission (Tasmania) (1988) 164 CLR 261.83 Queensland v Commonwealth Minister for Resources (1988) 86 ALR 519.


Chapter 6: Forestry

■ establishing provisions which allow the Environment Minister to declare that a forestry operation is not being undertaken in accordance with the relevant RFA – similar to a stop work order. Alternatively, there could be provision for the requirement of a joint declaration from the Environment and Forestry Ministers.

■ insert provisions into the EPBC Act which ensure that Division 4 of Part 4 does not apply to forestry operations that are either: conducted under an incomplete or lapsed RFA - that is, an RFA to which Parties have not achieved milestones; or which has not undergone five-year reviews in accordance with the timeframe specified in that RFA. under this option, consideration would need to be given as to whether the lapsed or incomplete RFA would be void, or under what circumstances the assessment and approval provisions of the EPBC Act could again no longer apply.

6.94 This review will explore these and other options in greater depth.

adaptive management and rfas

6.95 Submissions were concerned that RFAs do not provide a system which is adaptive to new information, in particular the listing of newly threatened species or the identification of new habitat for existing species. Similarly, Lawyers for Forests submit that ‘RFAs do not impose any requirement for either the Commonwealth or State Governments to add to the list of CAR reserves if a particular forest merits protection’, and that RFAs can only be updated through political interference.84

6.96 Adaptive management has been described as:

a hybrid of scientific research and resource management, adaptive management blends methods of investigation and discovery with deliberate manipulations of managed systems. Through observation and evaluation of the ways that human interventions affect managed systems, new knowledge is gleaned about system interactions and productive capacities. This new knowledge is then applied to future decisions in a cycle of continuous improvement of policies and field practices…

Adaptive management is a systematic process for continually improving management policies and practices by learning from the outcomes of operational programs. It’s most effective form—‘active’ adaptive management—employs management programs that are designed to experimentally compare selected policies or practices, by evaluating alternative hypotheses about the system being managed.85

6.97 The key characteristics of adaptive management include:

■ acknowledgement of uncertainty about what policy or practice is ‘best’ for the particular management issue;

■ thoughtful selection of the policies or practices to be applied;

■ careful implementation of a plan of action designed to reveal the critical knowledge;

■ monitoring of key response indicators;

■ analysis of the outcome in consideration of the original objectives; and

■ incorporation of the results into future decisions.86

6.98 Another concern raised in submissions was that RFAs do not take climate change into account in either the consideration of the comprehensiveness, adequacy or representation of the CAR reserves, nor the values of forests as carbon sinks.87

84 Submission 202: Lawyers for Forests, p11.85 J. Brian Nyberg ‘Statistics and the Practice of Adaptive Management’, in vera Sit and Brenda Taylor (eds), Statistical Methods for Adaptive

Management Studies (1998), pp.1-2.86 J. Brian Nyberg ‘Statistics and the Practice of Adaptive Management’, in vera Sit and Brenda Taylor (eds), Statistical Methods for Adaptive

Management Studies (1998), pp.1-2.87 Public consultation - Ms Margaret Blakers, The Green Institute, pers. comm. (Canberra, 12 May 2009).


Chapter 6: Forestry

6.99 It is noted that the NFPS calls for adaptive management principles to be applied to forest management:

Managing Australia’s forests in a sustainable manner calls for policies, by both governments and landowners, that can be adapted to accommodate change. Pressures for change may result from new information about forest ecology and community attitudes, new management strategies and techniques (such as those that incorporate land care and integrated catchment management principles), and new commercial and non-commercial opportunities for forest use. These pressures may affect the forests themselves.88

6.100 Demonstration of how adaptive management principles are implemented in forest practices systems, involving public notification and involvement in changes to management regimes, would likely increase public confidence in RFA forestry operations and their interactions with the EPBC Act. A comparative example occurs under the united States National Environment Protection Act 1969 (uS), which requires public notification and comment on all upcoming forest management activities, including timber production and road construction undertaken by Federal agencies.

6.101 The Senate Committee’s report explored the capacity of RFAs to take into account new information about the conservation status of species and to change forest management practices accordingly. In their additional comments to the Senate Committee’s report, the Australian Greens stated that if ‘the RFA regime is to remain in place, the Australian Greens recommend an urgent review of the status, protection and management of all priority species and communities listed in RFAs’.89

6.102 The capacity of RFAs to list and protect new species depends on the content of the relevant RFA. The Tasmanian RFA maintains a list of priority species. These are species included in Appendix 2 to the RFA, listed in the schedule of the Endangered Species Protection Act 1992 (Cth) (now replaced by the EPBC Act) or the Threatened Species Protection Act 1995 (Tas). The list of Priority Species is therefore amenable to change.

6.103 While there is capacity for adaptive management in forestry management plans made under RFAs, there is no consistent process for regular public input, nor is there an enforceable mechanism to promote it or assess its effectiveness. For example, the Tasmanian RFA commits parties to a ‘long term commitment to continuous improvement’,90 but this falls within the unenforceable Part 2 of the agreement.

review of rfas

6.104 Each RFA details a requirement for review of the agreement every five years. These reviews generally require consideration of public comments, measure of outcomes against Sustainability Indicators (which are agreed in the individual RFA), and consideration of the extent to which milestones and obligations have been met. There has been some criticism that the RFA reviews focus overly on the administrative processes of the RFA and not on the environmental outcomes.

6.105 The processes and requirements for each five-year review vary between RFAs. The Tasmanian RFA specifies the method and timeframes required for each review. The NSW and victorian RFAs specifically note that the reviews will result in minor modifications, rather than a renegotiation of the agreement. Agreements also tend to ensure that the RFA review requirement is sufficient for reporting under any state legislation to allow for streamlining of processes.

6.106 Additionally, some of the RFAs require annual reviews and reports. For example, the Western Australian, New South Wales and Tasmanian RFAs required annual reporting for the first five years on established milestones and agreed undertakings (thereafter considered in the five-year reviews).

6.107 The failure to complete many of these reviews on time has aroused concern. Tasmania is the only state to have conducted five-year reviews to schedule. At the time of writing, NSW has a review underway—the first five-year reviews of its three RFAs (three to five years overdue). No announcements have been made regarding the first review of the victorian RFAs (three to seven years overdue) or the WA RFA (five years overdue) and the timing for these remains unclear. The nature of the RFA agreements, as indicated above, does not presently allow the Commonwealth to enforce the requirement for five-year reviews.

88 DAFF, National Forest Policy Statement (1992) http://www.daffa.gov.au/rfa/publications/nfp-statement at 10 May 2009.89 Senate Committee Second Report, additional comments by Australian Greens. 90 DAFF, Tasmanian Regional Forest Agreement (2007) http://www.daffa.gov.au/rfa/regions/tasmania/rfa at 20 March 2009, para [62].


Chapter 6: Forestry

6.108 Lawyers for Forests were particularly critical of the management of the victorian RFA. They submitted that there have been no annual RFA reports prepared for victoria since 2002, and they indicate that required action statements for threatened forest species have not been produced.91

6.109 An additional concern about the review mechanisms is that the process for reviews is disparate, reducing the capacity for comparison of progress and outcomes between States. The level of consultation is unclear. This may have implications for the breadth of analysis that is possible during reviews.

6.110 While each five-year review to date has included opportunity for public comment and independent recommendations to governments, there remains a perception that the RFAs contain limited opportunities for ongoing public input or third party review. Expediting overdue five-year reviews, broadening their terms of reference and allowing greater expert and public participation may assist in addressing this perception. There is also a need to ensure that these reviews are regularly undertaken and that any findings are implemented in a timely manner.

6.111 Several possibilities exist to ensure that RFAs are reviewed properly, including:

■ allowing the Environment Minister to call in a comprehensive regional assessment or a strategic assessment of an RFA region, where:

■ five-year reviews have not been undertaken; or

■ the Minister declares that one or more operations are not in accordance with the RFA and is having a significant impact on a matter of NES; or

■ the Minister declares that one or more operations are likely to have a significant impact on matters of NES.

■ an amendment of the RFA Act 2002 to require that:

■ reviews of all comprehensive regional assessments; or

■ strategic assessment of identified NES matters

be a component of the next and following five-year reviews in all RFA regions, in order for Part 3 of the EPBC Act to continue not to apply.

6.112 Such assessments could be guided by an EPBC policy statement which sets a benchmark or definition of unacceptable significant impacts by RFA forestry operations and could ensure that RFAs are updated with the best available scientific evidence. This would be consistent with the NFPS which envisaged that regional forest agreements ‘may also specify the levels and types of disturbance that are acceptable for a particular forest so as not to adversely effect national estate and other conservation values of that forest’.92

ways forward

6.113 This review is inclined to agree with the Senate Committee’s finding that:

Regional Forest Agreements have been a step forward in attempts to manage conflict over forest use in Australia, and have been a vehicle for advancing both knowledge of Australia’s forest ecosystems, and management strategies for those forests.93

6.114 However, submissions to this review have raised real doubts about whether positive environmental outcomes are being achieved under RFAs. To this end, this review agrees with the Senate Committee’s finding that there is a need to improve the transparency and accountability of forestry operations under RFAs and thus better assess the implementation of environmental protection under RFAs, consistent with the objects of the EPBC Act.

6.115 RFA requirements for conservation actions in production forests need to be monitored, measured and reported on in a timely and accessible way. The Commonwealth should also retain a power to ‘turn off’ Division 4 of Part 4 of the EPBC Act in cases where there has been non-compliance with an RFA.

91 Submission 202: Lawyers for Forests.92 DAFF, National Forest Policy Statement (1992) http://www.daffa.gov.au/rfa/publications/nfp-statement at 10 May 2009, para [4.3].93 Senate Committee Second Report, para [1.101].


Chapter 6: Forestry

6.116 This chapter has also suggested other approaches for improving the transparency and operation of RFAs. These include:

■ increasing independent scientific oversight;

■ allowing greater Commonwealth oversight and capacity for compliance and enforcement; and

■ enforcing the existing requirement of RFA reviews and strengthening performance audit arrangements.

6.117 Another option for improving the accountability of RFA forestry operations may be increasing opportunities for public comments. This could involve:

■ establishing a system for public notification of new forestry operations occurring under Forest Management Plans and requiring a period for public comment on the nature and extent of new operations, similar to referrals under the EPBC Act. The State regulator would ideally show that these comments had been taken into account when finalising the plan;

■ strengthening the requirement to seek public comments as part of reviews of RFAs. The reviewer would ideally demonstrate how any comments had been taken into account when making any recommendations;

■ establishing a formal system where members of the public could provide new information about matters of NES to the State regulator, such as if the extent or breeding sites of a species was greater than found on existing maps. This could then place a requirement on the State regulator to undertake adaptive management practices, as outlined above; and

■ as noted above, strengthening opportunities for third party notification of breaches of an RFA.

6.118 Strengthening public input and consultation would help the RFAs meet the vision of the NFPS that ‘forest management is effective and responsive to the community’.94 It would also inform the requirement for continuous improvement.

Re-negotiating RFAs

6.119 Each RFA will sunset after 20 years. The agreements then need to be re-negotiated, although this may take place before the end of the 20-year period. Most RFAs contain provisions for re-negotiation to be considered as part of the third five-year review process. While the original agreements were based on a comprehensive regional assessment, it is not clear whether new agreements will rely on the old assessment or require a new round of assessments, consultation and negotiation. Considering that many of the comprehensive regional assessments were undertaken before the EPBC Act was in force, that there have been subsequent additions of matters of NES (such as heritage), and that there is a greater understanding of the implications of climate change and other pressures and threats, it is reasonable to suggest that new assessments take place.

6.120 If the justification for Part 3 not applying to RFA forestry operations is that the RFAs provide for a valid alternative accreditation process and/or already effectively manage forest values based on the comprehensive regional assessments, then the RFAs will need to provide better information to demonstrate that effective conservation outcomes for protected matters are being achieved and improve methods of monitoring, assessing and enforcing these conservation outcomes.

6.121 While the RFAs are currently intended to achieve conservation outcomes, the Commonwealth does not have monitoring, compliance and enforcement mechanisms in place to determine if the RFAs are achieving these objectives; this in turn may have implications for how well the objects of the EPBC Act are being achieved in RFA regions.

94 DAFF, National Forest Policy Statement (1992) http://www.daffa.gov.au/rfa/publications/nfp-statement at 10 May 2009, p.3.

Documents

Forestry (in: Independent review of the Environment ... · 1rom both the F Environment Protection and Biodiversity Conservation Act 1999 (Cth) s.38(1); and the Regional Forest Agreement