Regional Forest Agreements
On 18 June 2008, the Senate referred to the committee an inquiry into
the operation of the Environment Protection and Biodiversity Conservation
Act 1999 (the full terms of reference are in Appendix 1). The Senate agreed
that the committee could table a first report by 18 March 2009 and a final
report on 24 April 2009. This is the final report of the committee.
The committee's first report addressed the bulk of the terms of
reference, however the effectiveness of Regional Forest Agreements in
protecting conservation values is a particularly complex and contentious policy
issue. The committee needed additional time to consider the evidence on this
subject, and to seek further advice from the Department of Agriculture,
Fisheries and Forests (DAFF). The committee is grateful to officials from DAFF
for their responses to the committee's questions.
The origin of Regional Forest Agreements
In 1992, the Commonwealth and state and territory governments jointly released
the National Forest Policy Statement (NFPS). The statement outlines agreed
objectives and policies for the future of both public and private forests in Australia:
To maintain an extensive and permanent forest estate
To manage that estate in an ecologically sustainable manner, and
To develop internationally competitive and ecologically
sustainable forest-based industries that maximise value-adding opportunities
and efficient use of resources.
The NFPS arose as a result of ongoing disagreement between federal and
state governments over forest resource management; conflict between environmentalists
and the forest industry; and a desire by the federal government to implement
its international obligations with regard to nature conservation in Australia.
The introduction of Regional Forest Agreements (RFAs) represented a key
element in the implementation of the NFPS.
The NFPS included agreement to undertake 'comprehensive regional assessments',
the results of which would enable the Commonwealth and the states to 'reach a
single agreement relating to their obligations for forests in a region'.
These agreements would:
accredit the comprehensive regional assessment for the
purpose of evaluating forest resource use impacts of proposed development
projects, provided those developments do not require substantial alteration to
the agreed forest management guidelines for the region.
The introduction of RFAs was one of several strategies intended to
address forest resource conflicts, following earlier attempts such as
'Environmental impact assessment, public inquiries (instituted under both state
and federal legislation), and inquiries by new agencies (such as the
Commonwealth's Resource Assessment Commission)'.
Collectively, the RFAs around Australia provide a blueprint for the management
of forest resources, as well as 'the basis for an internationally competitive
and ecologically sustainable forest products industry'.
To establish a RFA, a state or territory must invite the Commonwealth to
enter into the agreement and that invitation must be accepted. The process for
developing RFAs involved five key steps:
An agreement to defer forestry activities in six million hectares
of Australian forests, allowing them to be assessed for conservation value.
This assessment was made using what were called the JANIS criteria: which are
'national criteria for the conservation of biodiversity, old growth forest and
This interim protection was over-ridden once areas of high conservation value
A scoping agreement between the Commonwealth and relevant state
government to establish the parameters including 'government obligations,
regional objectives and interests, and broad forest uses, as well as the nature
and scope of the forest assessment'.
The scoping agreement for each region also examined the estimated cost of the
agreement process; arrangements for consultation with industry and the public; and
an administrative framework for managing assessments and negotiating the
The conduct of a comprehensive regional assessment (CRA) of forest values using the nationally agreed JANIS criteria.
Each CRA was conducted on a regional basis and sought to detail the
environmental, economic and social values of, as well as community and industry
aspirations for a forest region.
The integration of information from the ecological, economic and
social assessments arising from the CRA process. In most cases, a steering or
management committee comprising state and Commonwealth representatives and in
some instances stakeholders, conducted integrative analysis.
Negotiation between the Commonwealth and relevant state government
to finalise the details of the RFA. Draft agreements were released for public
comment. The final RFA for each region was then signed by the Commonwealth and
The process included the identification and reservation of areas that became
parts of the CAR reserve system.
In practical terms, one of the intentions of RFAs is to enable
forestry activities to be undertaken in a region without the requirement for
environmental impact assessment for every individual action. Thus the EPBC Act
allows for forestry operations subject to a RFA to be exempt from seeking
environmental approval under Part 3 of the Act.
The Regional Forest Agreements Act 2002 gives
legislative effect to certain provisions of the Commonwealth-State RFAs which
had previously not been legally binding.
The Act arose partly in response to legal advice obtained in 1998 by Senator Bob Brown that concluded that the Tasmanian RFA was a statement of intent only and had
no legal effect.
One of the consequences of this legal opinion, if correct, was that the
compensation provisions of RFAs would not be legally enforceable.
Senator Robert Hill explained the government's rationale for the Bill:
Only part three of the Tasmanian and Central Highland RFAs is
expressed to be legally binding. The primary reason for the legislation is to
give effect to some key provisions which are not expressed to be legally
binding...thereby providing greater certainty about the operations of RFAs.
Further government statements at the time indicated that concerns about
the legal enforceability of the compensation provisions were a key motivating
...the Commonwealth has introduced its Regional Forest Agreement
Bill, to ensure that the compensation provisions of RFAs are legally
enforceable against the Commonwealth.
The first RFA, for East Gippsland, was signed between the Commonwealth
and Victorian governments on 3 February 1997.
There are now ten Regional Forest Agreements:
East Gippsland Victoria, 1997
Central Highlands Victoria, 1998
Western Australia, 1999
North East Victoria, 1999
Eden New South Wales, 1999
West Victoria, 2000
Gippsland Victoria, 2000
North East New South Wales, 2000 and
Southern New South Wales, 2001.
Variations to a signed RFA can be made and are achieved by mutual
agreement by the Commonwealth and the state. The committee understands that
there have been only two variations, both to the Tasmanian RFA, one in 2001 and
another in 2007.
The RFA Act requires that annual reports and reports on five yearly
reviews of the implementation of RFAs be tabled in parliament by the Commonwealth
Each of the current RFAs contain clauses requiring a performance review for
each five year period of the agreement.
Despite these provisions, the committee understands that only in the Tasmanian
case have these reviews been undertaken.
The Tasmanian RFA has undergone two five-yearly reviews, in 2002 and
The first review of the Tasmanian RFA was undertaken by the Tasmanian Resource
Planning and Development Commission (RPDC) whilst the second was independently
conducted by Mr John Ramsay, who was jointly appointed by the Commonwealth and
The RPDC review report made 30 recommendations 'to ensure continued progress
and improvement, where needed, in implementation of the RFA'.
The second review reported on 'progress against the agreed milestones and
commitments contained in the 1997 Tasmanian Regional Forest Agreement, the 2005
Tasmanian Community Forest Agreement and the recommendations arising from the
first Review conducted by the Tasmanian Resource Planning and Development
Commission in 2002'.
The committee notes that a scoping agreement between the Commonwealth
and New South Wales governments for the first five year review of the three
RFAs in that state was entered into in 2008.
RFAs and the protection of biodiversity and threatened species
According to the Department of Agriculture, Fisheries and Forestry
Regional Forest Agreements (RFAs) safeguard biodiversity,
old-growth forests, wilderness and other natural and cultural values. They
achieve this outcome by setting aside representative areas of forest in conservation
reserves, through the targets outlined in the nationally agreed criteria (JANIS) for a Comprehensive Adequate and Representative (CAR) reserve system and through
sustainable forest management outside of reserves.
The National Association of Forest Industries described the development
of CAR reserves as '[o]ne of the key outcomes of the RFA process'.
NAFI stated that:
This system was developed to ensure that:
there is comprehensive inclusion of flora and fauna species and
there is adequate spatial coverage to ensure the maintenance of
ecological communities including species diversity, viability, interaction and
the reserve system is representative of Australia's ecology to ensure sustainable diversity and species viability.
With specific regard to the Tasmanian RFA (TRFA), the Tasmanian
Government asserted that the two statutory five yearly reviews had confirmed
...the intent of the TRFA in implementing effective
conservation, forest management and forest industry practices continues to be
met. The findings of the Reviews in respect of effective conservation practices
demonstrates that the TRFA protects forest species and forest habitats within
its jurisdiction, where the EPBC does not directly apply. The successful appeal
by Forestry Tasmania to the full Bench of the Federal Court against the
judgement of a lower court has also clarified the validity of the TRFA in
meeting the requirements of the EPBC Act where that Act does not directly
Numerous concerns have been raised about the original RFA process and
about the effectiveness of RFAs in ensuring adequate environmental protection.
RFA consultation processes were sometimes unable to accommodate conservation
groups, and conservation-oriented forest management options were excluded from
consideration in some RFA processes.
Concern was expressed that the RFAs effectively left matters of Commonwealth
environmental concern in the hands of the states,
a criticism that has been reiterated more recently,
including in submissions to this inquiry.
An analysis of the use of scientific information in developing a reserve system
under RFAs concluded that "no RFA to date has applied the criteria of
adequacy and representativeness in a substantial manner".
Criticism of RFAs by scientists and planners was common.
Economist Alan Slee criticised the limited attempts to address non-market
values in the process, however he thought that:
In the process and implementation of RFAs, the Australian
federal and state governments have designed a policy instrument that has the
capacity to enhance both conservation and timber production values in native
forests... [and that] From an economic and social perspective, it is possible to
identify scope for some gains as a result of the implementation of the RFA.
In the current inquiry a number of submitters raised concerns about the
effectiveness of RFAs in conserving biodiversity and protecting threatened
species. A number of state-based conservation groups raised concerns regarding
the effectiveness of RFAs in Western Australia, Victoria and New South Wales.
Forests in Western Australia are managed under the WA Forest Management
Plan 2004-2013, signed into effect by the then WA Minister for the Environment,
Judy Edwards, on 10 December 2003.
The plan establishes Key Performance Indicators (KPIs) for monitoring the
effects of forest management. The implementation of these KPIs is set out in
the 'Protocol for Measuring and Reporting on the Key Performance Indicators of
the Forest Management Plan 2004-2013'. The performance target for KPI number 2
is that 'no species or ecological community will move to a higher category of
threat as a result of management activities'.
Despite this target, the Conservation Council of Western Australia
stated that two forest fauna species, the brush-tailed phascogale (Phascogale
tapoatafa) and brush-tailed bettong, or woylie, (Bettongia penicillata),
have moved to a more threatened category during the operation of the RFA and
FMP. On that basis, the Conservation Council argued 'that the FMP cannot
protect threatened species of fauna and that reliance of the RFA on the FMP for
this purpose is misplaced'.
Cases such as this highlight the complexity of assessing the
conservation status of species, and determining their links to forest
management (and thus to the performance of RFAs).
The lists that form the basis for assessing performance against this KPI
are the Declared Flora, Specially Protected Fauna and Threatened Ecological
Communities lists endorsed by the Minister under the WA Wildlife
Conservation Act 1950.
The KPI relevant to the status of threatened species requires that the movement
of species between protection categories be reported '[a]nnually with the
review of the lists'.
The committee notes that the lists have been updated regularly over the life of
the plan to date.
Both the species mentioned by the Conservation Council of Western
Australia – the brush-tailed phascogale and woylie – are currently listed in
the WA Specially Protected Fauna list.
The brush-tailed phascogale was listed in WA on 1 December 2006,
whilst the woylie had been listed prior to 1996
and was re-listed on the state list as of 5 August 2008. Thus both species have been elevated to a higher category of threat since the commencement of
However, the KPI is not just about species decline: it also states that
the change in status should not be caused by forest management activities. The
Conservation Commission of Western Australia recently released a mid-term audit
of performance under the Forest Management Plan.
That audit collated information from all KPI assessments, including in relation
to the KPI outlined above. That report indicates that, in the case of the
woylie, recent species decline 'is unlikely to be driven by habitat loss or
fragmentation' and therefore is 'not related to management activities'.
In relation to the brush-tailed phascogale, the audit indicates that the causes
of decline are currently unknown, and that a meeting of the Conservation
Commission in November 2008 resolved that there be further investigation 'with
the aim of identifying options for immediate action'.
The committee notes that, in addition to the Conservation Commission
examining options for acting to protect the woylie, the audit itself is also
subject to scrutiny by the Environmental Protection Authority, a statutory authority.
This process will include public consultation on the audit. This process is
currently underway. In these circumstances, it would seem that the Conservation
Council of WA's suggestion 'that the FMP cannot protect threatened species of
fauna and that reliance of the RFA on the FMP for this purpose is misplaced' is
premature. The case does however highlight the importance of understanding the
role of habitat loss in species decline, and it is important that forest
managers are willing to act in the event that species decline is linked to
habitat loss due to forestry.
Forestry operations in Victoria, and specifically in East Gippsland, the
Central Highlands and Yarra Ranges, were variously criticised by some
Threatened species such as the Baw Baw frog (Philoria frosti) and
Leadbeater's possum (Gymnobelideus leadbeateri) were cited as examples
of those at risk from forestry operations conducted under RFAs in Victoria.
The North East Forest Alliance and Northern Inland Environment Council claimed
that forestry operations in New South Wales had failed to protect threatened
species of flora and fauna in that state:
The RFA in north-eastern NSW did not meet the requirements of
a Comprehensive, Adequate and Representative reserve system. A large number of
forest ecosystem and oldgrowth forest targets were not met...Furthermore, the
results of the RFA were inadequate to protect nationally-listed species.
Using the NSW Government's own conservation analysis, targets
and data produced during the Comprehensive Regional Assessment, it is evident
that only one of the 20 nationally-listed forest fauna species met their
conservation targets after the RFA and many nationally-listed flora species
fell dramatically short of their targets. Substantial additional reservation
and conservation action is still required to meet the minimum requirements
identified for these species through the CRA process.
As noted in the first report, the committee received numerous
submissions referring to individual threatened species in Tasmanian and other
forests. Some of these submissions queried whether the management of these
species under RFAs was producing conservation outcomes consistent with the
National Forest Policy Statement objective of maintaining nature conservation
value in forests. One example discussed during the Wielangta court cases,
outlined below, was the Swift Parrot. The committee notes that the government
has recognised this issue. Responding to written questions from the committee,
The Australian Government has...written to the Tasmanian
Government seeking advice on the management of one species, the Swift Parrot,
under the RFA. The Department is currently assessing the advice received.
RFAs and the evolution of conservation information
RFAs were intended to give certainty to biodiversity conservation,
through the CAR reserve system, and certainty of access to forests for
production activities such as logging and woodchip production. However, they
were also intended to take account of changes in the conservation status of
species and ecological communities over time. The National Forest Policy
Statement, to which the Commonwealth and all state and territory governments
are signatories, states:
The objective here is the management of public native forests
so as to retain the full suite of forest values over time.
Forest management agencies will continue to assess forest
areas for the purpose of developing strategic management plans and, where
necessary, operational harvesting plans. As a consequence of these forest
assessments, areas that have important biological, cultural, archaeological,
geological, recreational and landscape values will continue to be set aside and
protected from harvesting operations or managed during operations so as to
safeguard those values.
These government statements indicate that it was originally intended
that the management of forest areas would adapt over time and respond to new
and / or additional information. The parties did not intend for activities in
forest areas to have an adverse effect on threatened native flora and fauna,
and if activities were found to have an adverse effect, then changes to those
activities would be considered.
Whilst the RFA Act itself does not outline circumstances a result of
which an RFA can be amended or dissolved, 'The Commonwealth Position on
Regional Forest Agreements' discusses 'exceptional and unforeseen
The way exceptional and unforeseen circumstances are handled
will be agreed to by the Commonwealth and the State concerned and may vary
according to the circumstances. Among the possibilities are revising management
practices, plans or conditions, renegotiating a specific part of the regional
forest agreement, and undertaking an impact-specific assessment...The following
are examples of exceptional and unforeseen circumstances that could be handled
through amendments to the management plans and practices, or through
initiatives outside the regional forest agreement process, rather than a
revision of an entire regional forest agreement:
The committee wrote to DAFF seeking further information on how new information
about threatened species or ecological communities in areas subject to RFAs is
taken into account after an RFA is signed. The Department gave examples from
Western Australia where practices or variations were introduced for 'improved
protection of threatened species and communities', including:
Refinement and application of Fauna Distribution Information
System in coupe planning and prescribed fire planning. The tactics that follow
through this systematic approach have on occasions led to variations in coupe
shape, timing of access or felling operations (e.g. to minimize disturbance to
adjacent quokka populations in the unharvested informal reserves).
The introduction of fauna habitat zones in State forest (a WA
Forest Management Plan initiative). One of the criteria used in the
finalization of boundaries is to incorporate known occurrences of threatened or
vulnerable fauna within these zones. To date the location of 42 zones have been
Specific Fire Management Guidelines have been developed to guide
the application of fire for specific ecosystems (granite outcrops, tingle
forest) and species (Noisy scrub bird, quokka, tammar, western ringtail possum,
honey possum, mallee fowl, geocrinia frogs, sunset frog).
Climate change is one area in which conservation information is
continuing to evolve. Many submissions gave evidence about the role native
forests play in carbon storage and climate change mitigation. The Ad Hoc
Technical Expert Group on Biodiversity and Climate Change, established under
the Biodiversity Convention concluded that
Maintaining natural ecosystems (including their genetic and
species diversity) is essential to meet the ultimate objective of the UNFCCC
because of their role in the global carbon cycle and because of the wide range
of ecosystem services they provide that are essential for human well-being.
Regional Forest Agreements did not anticipate climate change, either
from the perspective of carbon storage and emissions mitigation or the impacts
of changing climate on biodiversity and water conservation needs.
The committee did not examine this issue in detail. In its first report,
the committee was supportive of addressing climate change in the Act, but noted
that this will require careful consideration, particularly in the context of international
agreements and other policy initiatives such as the Carbon Pollution Reduction
Species conservation under RFAs: the Wielangta cases
Central to much of the debate amongst stakeholders regarding RFAs was a
series of three court cases commenced in 2005, and concluded in 2008, initiated
by Senator Bob Brown and relating to Tasmanian forests covered by the Tasmanian
RFA. While there have been a number of court cases relating to the EPBC Act, these
particular cases have been critical to consideration of how matters of national
environmental significance are protected under RFAs. The committee believed it
was important to examine these court cases in detail, as they provide a
practical example of the issues and complexities involved in RFAs.
In 2005, Senator Bob Brown 'applied to the Federal Court of Australia
for an injunction to stop Forestry Tasmania from logging Wielangta Forest on Tasmania's east coast'.
Numerous submissions to the committee debated the implications of this series
of court cases. Some submitters suggested amendments to the EPBC Act in light
of the courts' decisions.
The first case: Federal Court
On 19 December 2006, Marshall J handed down his judgement in the case of
Senator Bob Brown vs. Forestry Tasmania.
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
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.
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.
Issues to be considered in the
The parties asked that the Court examine an agreed list of issues. The
list that was considered by the Court included the following:
Whether forestry operations in [logging coupes] WT017E and WT019D
and proposed forestry operations in coupes other than WT017E and WT019D were actions
for the purposes of the EPBC Act;
Whether the RFA was an RFA within the terms of the RFA Act;
Whether the respondent had an exemption from Part 9 of the EPBC
Act by virtue of section 38 of the EPBC Act and section 6(4) of the RFA Act;
Whether forestry operations in the Wielangta forest area would be
or had been carried out in accordance with the RFA by reference to clause 68;
The likely extent of forestry operations in the Wielangta area
beyond August 2008;
The extent to which the broad-toothed stag beetle, Tasmanian
wedge-tailed eagle and swift parrot were present or likely to be present in the
Wielangta forest area;
What part of the Wielangta forest would be, or was likely to be,
subject to forestry operations by the respondent in the next approximately 15
Whether forestry operations and proposed forestry operations in
the Wielangta forest were likely, having regard to the endangered status of the
three species and all other threats to the three species, have a significant
impact on the three species.
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.
Judgement against each of the
Whether forestry operations in the
Wielangta area are actions for the purposes of the EPBC Act
Senator Brown contended that Forestry Tasmania's operations in coupes
WT017E and WT019D constituted the taking of an action under s 18(3) of the EPBC
WT017E and WT019D were those coupes where forestry operations had been
or were being undertaken at the time of the court case. Gunns Ltd had been
granted government authorisation to harvest timber in these coupes. Harvesting
of coupe 17E was completed in August 2005, whilst harvesting of 19D was
scheduled for completion on 30 June 2006. Harvesting of 19D was, however,
interrupted by the court proceedings.
Marshall J ruled, despite Forestry Tasmania's arguments to the contrary,
that the forestry operations in coupes 17E and 19D of the Wielangta forest and
proposed forestry operations in coupes other than these constituted an action
for the purposes of the EPBC Act. However, Marshall J added '[i]f that view is
wrong, at least there is no dispute that the forestry operations in coupes 17E
and 19D are an "action" for the purposes of the EPBC Act'.
Whether the Tasmanian RFA is an RFA
within the terms of the RFA Act
The applicant claimed that the Tasmanian RFA was not an RFA within the
meaning of the RFA Act because it did not provide for a comprehensive, adequate
and representative reserve system nor ecologically sustainable management and
use of forested areas in the region.
Much of the deliberation on this issue focussed on the meaning of
'provides for' and whether an RFA must 'provide for' or 'provide' a
comprehensive, adequate and representative (CAR) reserve system. Marshall J accepted that 'provides for' means to plan or make arrangements for, and thus the RFA
must plan for or make arrangements for a CAR reserve system as opposed to
actually establishing a CAR reserve system.
On the matter of whether the Tasmanian RFA planned for or made
arrangements for a CAR reserve system and was therefore an RFA within the terms
of the RFA Act, Marshall J found:
The provision of a CAR reserve system does not mean that
legally enforceable rights to the creation of such a system must be available.
That may be the case if there was an obligation to 'provide' a CAR Reserve System, but that is not the obligation contained in the RFA Act.
Thus, the judge concluded that the RFA 'is an RFA within the
terms of the RFA Act'.
Whether Forestry Tasmania has an
exemption from Part 9 of the EPBC Act
The Court ruled that, so long as its forestry operations were conducted
in accordance with the Tasmanian RFA, Forestry Tasmania did have an exemption
from Part 3 and / or Part 9 of the EPBC Act by virtue of section 38 of the EPBC
Act and section 6(4) of the RFA Act.
Whether the forestry operations in
Wielangta have been conducted in accordance with the RFA
Because the Court found that the EPBC Act exemption existed only so long
as forestry operations were undertaken in accordance with the RFA, much then
hinged on the question of whether the operations under discussion in this case
were indeed compliant with the RFA. Central to this debate was clause 68 of the
Tasmanian RFA. Clause 68 provides that 'The State agrees to protect the
Priority Species...through the CAR Reserve System or by applying relevant
Senator Brown submitted that "in accordance with an RFA"
should be construed strictly. He argued that "agrees to protect" means
that the respondent must "deliver protection of" and not merely
"agrees to try and protect".
He argued that 'the RFA must provide real, practical protection to threatened
species' in order to comply with clauses 68, 70 and 96 of the Tasmanian RFA.
Having heard detailed evidence regarding the three threatened species
(see also below), the Court found that the State of Tasmania had failed to
protect any of the three species through the CAR reserve system or by applying
relevant management prescriptions, and was unlikely to do so in future.
As a result, Justice Marshall concluded that:
Forestry operations in the Wielangta forest area have not
been carried out in accordance with the RFA be reference to cl 68. I am not
confident that they will be carried out in accordance with the RFA by reference
to cl 68 in the future. Consequently, s 38 of the EPBC Act does not exempt
Forestry Tasmania's forestry operations in Wielangta from the provisions of Pt
3 of that Act. The same applies with respect to s 6(4) of the RFA Act.
It followed that the Court ultimately found that Forestry Tasmania was
not exempt from Part 3 and / or Part 9 of the EPBC Act.
The likely extent of forestry
operations in the Wielangta area beyond August 2008
The Court determined that activities which fall within the term
'forestry operations' for consideration in the proceeding were:
Management of trees prior to harvesting;
Harvesting of forest products;
Related land clearing;
Regeneration (including burning);
Transport operations; and
As to the likely extent of forestry operations in the Wielangta forest
beyond August 2008, Marshall J determined, based on the past conduct and future
planning of Forestry Tasmania, that forestry operations were likely to continue
to 2013 and possibly beyond.
Extent to which the stag beetle,
wedge-tailed eagle and swift parrot are present or likely to be present in the
During examination of this issue, the Court heard extensively from
experts on behalf of both the applicant and respondent. It concluded that all
of the three species were present or likely to be present in the Wielangta
Parts of Wielangta forest subject
to forestry operations in the next 15 years
The Court found it was difficult to ascertain what parts of Wielangta forest
would be definitely subject to forestry operations in the next 15 years.
Nevertheless, the judgement identified 15 coupes in the Wielangta area that
were likely to be subject to forestry operations up to 2013.
Significant impact of forestry
operations on the three species identified
This issue was the most extensively debated matter in the case. Both
the applicant and respondent produced numerous experts to support their
respective positions. Having weighed the evidence, the court determined that each
of the three species were likely to be significantly impacted by forestry
operations in the Wielangta forest, having regard for both the threatened
species' status and other threats facing each of the species.
Effect of the decision
The court made two declarations:
- The appellant's forestry operations in coupes WT017E and WT019D
in the Wielangta state forest, and its likely future forestry operations in
other coupes in Wielangta, are likely to have a significant impact on the
broad-toothed stag beetle, the Tasmanian wedge-tailed eagle and the swift
- The forestry operations undertaken by the appellant have not been
undertaken in accordance with the Tasmanian RFA.
The court then ordered an injunction that, '[p]ending the grant of any
approval under Part 3 of the Environment Protection and Biodiversity
Conservation Act 1999 (Cth) (the Act) or further order, the appellant [Forestry
Tasmania] was restrained from undertaking in Wielangta any "forestry
operations" as defined in s 40(2) of the Act'.
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. Conducting forestry operations in accordance with an RFA included the
protection of threatened species, where this was a condition of the RFA.
In addition, conservation groups believed an important outcome of the
case was the recognition by Marshall J that 'significant impact' did not mean
that the action in question must have the primary impact on the species but
that 'significant impact' could be cumulative.
Forestry Tasmania appealed to the full bench of the Federal Court
against the Court's declarations.
The second case: Federal Court appeal
On 30 November 2007, the Full Court of the Federal Court handed down its
judgement on appeal of Forestry Tasmania v Brown.
It overturned Justice Marshall's decision. Sundberg, Finkelstein and Dowsett JJ
The appeal be allowed.
The orders of the primary judge be
set aside, and in lieu thereof it be ordered:
The application be dismissed
The parties bear their own costs
of the proceedings at first instance.
The respondent's notice of
contention be dismissed.
The respondent pay the
appellant's costs of appeal and notice of contention.
Judgement in detail
The Full Court stated that the central issue on appeal was whether
section 38 of the EPBC Act exempted Forestry Tasmania's operations from the
provisions of Part 3 of the EPBC Act and section 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.
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'.
The Full Court found that Forestry Tasmania's activities in the
Wielangta were exempt under the EPBC Act. Furthermore, Sundberg, Finkelstein
and Dowsett JJ concluded that the EPBC Act did not apply to forestry operations
in RFA regions and that the way in which the objects of the EPBC Act would be
met with respect to forestry operations should be ascertained by referring to
the relevant RFA.
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.
The Full Court stated:
Our conclusion on s 38 of the Act makes it unnecessary to
examine the grounds of appeal disputing the primary judge's findings about the
degree of protection provided by CAR to the three species. This aspect of the
case at first instance occupied most of the 33 sitting days, together with views.
In the events that happened, a great deal of time and much expense has been
devoted to investigating matters that have turned out not be determinative of
any relevant issues...If there was any issue at all that was appropriate for
preliminary determination, it was that turning on s 38. Instead many
far-ranging issues were, in our view, wastefully explored.
Courts have frequently stressed the caution that must be
taken in deciding whether to determine separate questions and issues lest this
course leads to increased cost and delay. No caution was on display in this
The committee notes that in reaching its judgement, 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.
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
Subsequent to the Full Court's decision, Senator Brown appealed to the
High Court of Australia.
The third case: the High Court refuses a special leave application
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
The High Court refused to grant special leave to appeal on the basis
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.
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.
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
and replaced it with an agreement between the state and
Commonwealth that the CAR reserve system and management strategies protected
rare and threatened species.
The variation to clause 68 was made shortly after the first case heard
by Marshall J and prior to the appeal before the Full Court. Some witnesses
...the (then) Tasmanian Premier Paul Lennon and PM John Howard signed into effect a variation to the Tasmanian RFA in
order to circumvent the trial judgment in the Wielangta case.
This Tasmanian RFA variation...overrode the Federal Court trial
judgment which had found that such protection was not and would not occur in
Wielangta (let alone elsewhere in Tasmania).
This RFA variation, without public consultation nor
independent scientific assessment, in the face of the trial judge’s finding of
fact to the contrary, and overriding court orders before the hearing of an
appeal, effectively gutted through the stroke of the Premier and Prime
Ministerial pens the requirement to actually ‘protect’ nationally listed
Interpretation of the Wielangta cases
It is apparent to the committee that the Full Court's judgement 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.
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
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
This position was confirmed during the hearing of Senator Brown's seeking
special leave to appeal, when Justice Kirby was speaking to a representative of
Kirby: You did not succeed in the Full Court or this Court on
the lengthy argument on the facts that you contended before Justice Marshall.
You lost on that.
O'Bryan: Yes, that is true.
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
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.
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
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”. 
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 judgement 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.
The future of RFAs
The long-term objections of some environmental organisations to RFAs
intensified in the wake of the Wielangta judgements. It was suggested to the
committee by a number of submitters that sections of the Act exempting RFA
logging activities from assessment be removed so as to 'place the forestry
industry on a level playing field with other industries which must obtain EPBC
approval before significantly impacting Commonwealth listed threatened species'.
Mr Tom Baxter stated:
In my view, the best way to protect nationally listed
threatened species would be to delete EPBC Act ss 38-41. The EPBC Act contains
plenty of mechanisms through which the Commonwealth could then assess such
impacts of forestry operations in a place such as Tasmania and issue
approval(s) as appropriate, subject to suitable conditions, eg to protect
nationally listed species.
Removal of the exemptions for RFAs under the Act would require forestry
operations to be assessed and approved via EPBC processes. NAFI argued that this would have serious implications:
If the EPBC Act were to apply in addition to the RFAs, a
situation of conflicting and resource intensive policy and regulatory
duplication would arise. The EPBC Act guidelines would lead to the impost of
added and unnecessary regulation without any additional environmental benefit.
The added burden would significantly effect the operations of
the forestry sector...Increased compliance costs associated with meeting
duplicative regulations would decrease the competitiveness of the sector and
would undermine the integrity and effectiveness of the RFAs.
Further, NAFI made reference to the conflict which gave rise to RFAs and
expressed concern that removal of RFAs would return Australia to those natural
resource management conflicts:
...the RFAs came about in a certain way, and the reason why
they have stuck, is that there has been a long history of conflict which led to
many instances of blockades around this parliament and conflict in regional
committees – and so the NFPS was born.
Importantly, and why it has held together, is that there was
an upfront, transparent process prior to signing off on regional forest
agreements. Hundreds of millions of dollars of taxpayers' money was invested in
those processes in the 1990s. People have forgotten all this.
They suggested that undoing the RFAs would increase
conflict, and produce poorer environmental outcomes:
What is really being proposed here takes us back to the
process that existed before the RFAs and before the EPBC Act where,
unfortunately, every coupe that was to be logged for woodchip exports had to go
through this very arduous process of assessment. It created tremendous angst
for all parties concerned. It created a situation where there was very low
investment in the forest industries because of the way it was done. It created
a situation where you did not have good environmental outcomes because you were
looking on a coupe-by-coupe basis, rather than looking – as you should in
relation to environmental management – at the full regional picture. One of the
reasons why the national policy statement was set up and the regional forest
agreements were set up was to overcome this type of process. So I would be very
concerned if a proposal were to be put forward to go back to those days.
The committee acknowledges NAFI's concerns. The kind of uncertainty and
conflict seen prior to the introduction of RFAs would not be beneficial to any
of the stakeholders interested in forest conservation and management. The
committee also notes that there are mechanisms by which possible breaches of
RFAs can be identified and addressed.
DAFF provided to the committee information about complaints investigated
since 2007. There have been 14 complaints in Tasmania, NSW and Victoria,
comprising seven complaints relating to forestry activities the investigation
of which has been completed; six which are currently being investigated; and
one which turned out not to be related to forestry operations. Of the seven
completed investigations, in all cases forestry management prescriptions were
found to be in place consistent with the RFA, and none required changes to
forestry practices, remediation action or prosecution.
No complaints were received in respect of Western Australia.
While there is a mechanism for addressing complaints which is being
utilised, the committee did not examine its operation in detail, and does not
know whether stakeholders are aware of it. For example, a complaints mechanism
is not identified on the DAFF webpages about RFAs. However, DAFF also pointed
out that '[i]t is important to note that complaints are usually also made to
relevant State authorities, who may have taken action prior to Commonwealth
raising an issue'.
The committee did not seek information from the states to verify this.
The committee recognises there will be different interpretations of the
fact that no complaints have been upheld. Supporters of the RFAs will suggest
that this demonstrates good forest management practices are being adhered to.
Detractors will point to the Wielangta court cases and argue that consistency
of forestry practices with an RFA does not indicate environmental protection,
and that the complaints process may thus be of limited use.
While there are existing mechanisms within the RFAs to improve forest
management and deal with possible breaches, the administration of forests under
RFAs could still be improved upon.
The committee believes it is important not to undermine the progress
made under RFAs with regard to the streamlining of assessments and approvals. The
committee was provided with a number of proposals that attempted to improve the
operation of the Act with regard to forestry operations without seeking to
remove RFAs. This section outlines those proposals.
Mr Michael Stokes offered a proposal whereby the Act would be amended to
require the Minister to consider whether forestry operations will be conducted
in accordance with the relevant RFA before exempting the activity.
Professor Lee Godden recommended to the committee that a review be
undertaken of s 38 of the Act with the intention of removing the exemptions for
RFAs for environmental impact assessment. Professor Godden explained that
bringing an action, such as forestry activity, under the scope of the EPBC Act
would not necessarily bring a halt to those activities but rather would afford
'an opportunity to assess the activity; arguably taking into account cumulative
impacts and adaptive management principles'.
Professor Godden was critical of '[t]he relatively weak obligations to
protect species imposed under the RFA structure that favour the development and
logging operations', and recommended the 'adoption of mandatory status for RFA
"obligations" in conformity with intergenerational equity and biodiversity
conservation principles', as well as 'an enhanced, public review and
consultancy regime for RFAs'.
Another alternative proposal was offered by The Wilderness Society
(TWS). TWS recommended that, should the exemption from assessment and approval
under the EPBC Act remain for forestry operations covered by an RFA, then
additions should be made to the 'Limits on application' in s 42 of the Act. TWS
suggested the following points be added to the list of exceptions from exemptions
granted under an RFA:
The subject of a Federal Court finding that the RFA and the
operation itself does not protect listed threatened species, communities or
migratory species; or
Part of RFA forestry operations where the gross carbon emissions
from any company, contractor or commercial entity's operation exceeds 25 000
tonnes per year.
Whilst Mr Tom Baxter recommended in the first instance that the
sections of the Act relevant to RFAs be removed entirely, he also suggested
that, at a minimum, s 75(2B) be deleted.
Section 75(2B) was inserted into the Act in 2006 and has the effect of
preventing the Minister from considering adverse impacts of any RFA forestry
operation or a forestry operation in an RFA region.
Deletion of s 75(2B) would mean that adverse impacts of forestry operations
could once again be considered by the Minister in determining whether an action
was a controlled action.
All of the above proposals seek to increase the scrutiny of forestry operations
conducted under RFAs, either by limiting the exemptions available to forestry
operations conducted under an RFA or requiring forestry operations to be
assessed, to some extent, to determine whether those actions are compliant with
the terms of the relevant RFA and / or the requirements of the EPBC Act more
Reform of the framework surrounding Regional Forest Agreements should not
be undertaken lightly. These are complex, carefully crafted and long-term
agreements that have been associated with significant reforms to forest
practices, structural adjustment in the timber industry, and increases in the
size of the conservation estate. Accordingly, the committee sought further
information about how the RFAs were operating, and how some of the issues raised
by submitters were handled in the existing system.
The committee asked DAFF to explain what existing legal obligations face
forest managers in the event that newly-listed threatened species are found
within RFA areas. DAFF advised that:
With the exception of the Tasmanian RFA, there are no
obligations within the RFAs imposing a legally enforceable obligation upon the
states to ensure the protection of species or ecological communities listed in
the EPBC Act. However, in all the RFAs, the parties agree that specified State
and Commonwealth legislation and other measures, such as the establishment of
CAR reserves, will provide for the protection of rare or threatened flora and
fauna species and ecological communities.
The situation in Tasmania is similar.
The committee also asked DAFF to clarify the Commonwealth minister's
powers, in the event that new information is made available to the minister
about any matter of national environmental significance. DAFF indicated:
The Minister for Agriculture, Fisheries and Forestry can
consult with the State and, with the State’s agreement, vary the agreement to
address any new information. The agreements recognise the need to continue
consulting about priorities in the light of new information. In the event the
State fails to agree, there is no mechanism under the RFA for the Minister to
take the matter forward.
The committee also sought advice on how Australia's
international obligations under the UN Convention on Biological Diversity were
being met in regard to endangered species. DAFF indicated that '[i]n all RFAs
the parties agree that specified State and Commonwealth legislation and other
measures will provide for the protection of threatened species'.
The committee also asked DAFF what the consequences would be for RFA
parties of possible extinctions within RFA regions. The committee was advised
there would be no legal consequences, provided the forestry activity 'meets all
relevant regulatory and legislative requirements, and is undertaken in
accordance with an RFA'.
The committee's view
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. However the current inquiry has highlighted
continued impediments to further progress.
The committee recognises that some stakeholders have never accepted the
Regional Forest Agreements processes, and remain concerned that the agreements
do not deliver adequate environmental protection, both for threatened species
and for threatened ecological communities. Doubts about environmental outcomes
under RFAs continue to be raised by environmental organisations, by some
ecologists and other experts, and in one case outlined above, by the Federal Court.
The committee believes that it is crucial to building public confidence
in the RFAs that the Agreements are transparent. It is also vital that RFA
requirements for conservation actions in production forests are clearly
understood and are measured and reported on in a timely and accessible way.
The committee is concerned that neither transparency nor accountability may
be adequately being delivered as the system currently stands. Five-yearly
reports that were required in the RFA agreements are not being completed. The
Wielangta case has demonstrated that actions that stand to risk harm to listed
threatened species may be consistent with an RFA. This has raised concerns
about whether the RFAs afford a lesser level of protection than that offered in
other circumstances by the EPBC Act. While there are complaint systems in
place, the criteria against which complaints are evaluated may lead
stakeholders to doubt the utility of the process. The fact that no complaints
have been received recently by the Australian government regarding the West
Australian RFA, despite the issues raised directly with this committee in
respect of that jurisdiction, underlines this possibility. It is not clear
whether new information about the conservation status and needs of rare species
within RFA areas is being given sufficient weight through conservation actions.
The committee at this stage does not support the abolition of Regional
Forest Agreements, nor at this stage does it support the blanket application of
EPBC Act processes to activities currently exempted by virtue of the RFAs and
the relevant provisions of the RFA and EPBC Acts. The committee does however
believe that the current avenues for consultation, accountability and legal
challenge may be able to be improved. Proposals were put to the committee, by
Professor Godden, Mr Baxter and others, that may have merit. The committee was
unable fully to test these ideas. Both the inter-governmental agreements and
the law in respect to RFAs are complex and not easily understood. The committee
believes the time has come to examine carefully whether there may be
opportunities to improve both the agreements, and public confidence in them,
through careful reforms, particularly to ensure the standards of environmental
protection sought through the EPBC Act are realised within those areas covered
The committee notes that the Minister for 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.
Senator Anne McEwen
Navigation: Previous Page | Contents | Next Page