Legal challenge to NSW Regional Forest Agreement (RFA)

The Federal Court has today handed down its decision about the validity of agreements that allow native forests to be logged in NSW. The Court examined the validity of Regional Forest Agreements (RFA), that were first made in 2000 and extended for 20 years in 2018, that exempt native forest logging from complying with federal biodiversity assessment and approval laws.

The decision is that the technical requirements for extending the RFA were met but the Court was unable to assess the evidence of the impact caused by native forest logging and that such matters are wholly political.

Environmental Defenders Office (EDO) acting as lawyers for North East Forest Alliance (NEFA) appeared before the Federal Court in March 2022 in the first legal challenge to a New South Wales Regional Forest Agreement (RFA). The full judgement by the Federal Court is here.

EDO argued that when the North East RFA was renewed in 2018 for another 20 years with rolling extensions that could continue indefinitely, the Commonwealth did not assess climate change, endangered species or old growth forests as required to so.

It is the first legal challenge to an RFA in New South Wales. If successful, this case would have had implications for other RFAs in NSW, VIC, TAS and WA. This was the last opportunity to test these RFA agreements for at least another two decades.

EDO Chief Executive Officer David Morris said: 

“We are challenging the Federal Government over its failure to assess how another 20-plus years of logging, against a background of a changing climate, will impact our forest ecosystems, endangered species and old growth forests. 

“The Commonwealth didn’t want to incur the costs of conducting a proper assessment, waving through a 20-year extension of native forest logging without proper scrutiny. 

EDO Chief Executive Officer David Morris said

What are Regional Forest Agreements?

Regional Forest Agreements are signed between the Commonwealth and the states, allowing forestry operations to be exempt from assessment and approval under the federal Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC ACT).   

There are ten RFAs in force around Australia. The North East RFA is one of three in New South Wales, the others are the Eden RFA and Southern RFA. 

The North East RFA covers logging in a huge area spanning from NSW’s Central Coast to Queensland’s Gold Coast. It encompasses critically endangered ecosystems such as Central Hunter Valley eucalypt forest, New England Peppermint Grassy Woodlands, as well as Lowland and Littoral rainforests. 

The North East RFA exempts logging in native forests from federal biodiversity law.

Regional Forest Agreements NSW Image: NSW Environment Protection Authority

In order for an RFA to exempt native forest logging from the usual federal biodiversity assessment and approval requirements, when the Commonwealth enters into an RFA it is legally required to have regard to assessments of environmental values – including endangered species and old growth – and the principles of ecologically sustainable management.

In the subsequent 2019-20 bushfire season, the Black Summer bushfires devastated these ecosystems and the species that call them home, changing native forests in these regions beyond recognition. 

According to the Natural Resources Commission 2020 report, 2019-2020 Bushfires Extent of impact on old growth forest, 28% of the Upper North East section of the North East RFA was fire affected, with over 65% of the forest canopy in that area being either totally or partially burnt.

23% of the Lower North East section of the North East RFA was fire affected, with 52% of the forest canopy in that area being either totally or partially burnt.  

Awaiting decision on first ever legal challenge to NSW Forest Logging Agreement

On behalf of NEFA, EDO argued that the lack of crucial assessments before the 2018 renewal means the decision to extend the North East RFA was not made in accordance with the relevant legislation.

As a consequence, the Federal Court should find the North East RFA does not lawfully exempt logging in the north east RFA region from federal biodiversity assessment and approval requirements.  

This is the first time a NSW RFA has been challenged in court, and, if successful, may have implications for other RFAs in New South Wales, as a well as Victoria, Tasmania and Western Australia. 

EDO argued that when the North East RFA was renewed, the Commonwealth did not have regard to endangered species, the state of old growth forests or the impacts of climate change, as the EDO argued it was required to do.  

NEFA is asking the Federal Court to declare that the North East RFA does not validly exempt native forest logging from federal biodiversity assessment and approval requirements (EPBC Act).  

NEFA is acting to protect native forests, which provide critical habitat for vulnerable and endangered species such as koalas and greater gliders and to ensure that the laws that regulate logging in these forests are up-to-date and fit for purpose. It is the first legal challenge to an RFA in New South Wales.

EDO Chief Executive Officer David Morris said:

“Under the current system, if a population of koalas is being threatened by a new development, the project needs to be assessed at the Federal level. But if the same population of koalas is being threatened by a logging project, it’s been rubber stamped on the basis of 20-year-old environmental assessments. 

“We have known for years that as the climate changes, fires will follow. And yet the North East RFA was renewed without an assessment of how climate change will impact the health and resilience of our native forest ecosystems. Less than 12 months later, fires began ravaging native forests across the region. 

“This RFA is a powerful instrument that allows the forestry industry to bypass Federal biodiversity assessments. To be robust, these agreements must be founded on the latest scientific knowledge on climate and the state of our forest ecosystems.”

EDO Chief Executive Officer David Morris said

As at 25 May 2023, EDO is waiting the court’s decision.

EDO has done considerable work on this issue.