Forest law frenzy EDO NSW

Forest law frenzy in NSW

After years of internal government wrangling, there has been a recent frenzy of activity in NSW forestry law and policy. Six things are happening at once.

By Nari Sahukar, Senior Policy and Law Reform Solicitor, EDO NSW 

15 June 2017

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1. Governments propose to renew the Regional Forest Agreements in NSW

In November 2017 the State and Commonwealth governments announced their intention to renew the controversial 20-year Regional Forest Agreements (RFAs). RFAs aim to balance the conservation and exploitation of public native forests and, importantly, replace the need for Commonwealth approvals under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) for logging activities.

Three existing RFAs for logging in NSW will expire between mid-2019 and 2021. Renewed agreements could apply into the 2040s.

2. Review of RFAs’ performance – a decade late, and still not public

It was the week before Christmas when both governments called for input on belated reviews of the RFAs’ performance. A five-yearly independent review was required in 2009. But that review didn’t happen. When the EPBC Act was reviewed the same year, an expert panel labelled this failure as ‘clearly unacceptable’ – and suggested further failures should trigger options to reinstate the EPBC Act. Another five-yearly RFA review was required in 2014. That didn’t happen either. 

When the governments announced last year that the RFAs would be renewed, those crucial reviews had still not been done. Once they began, the timeline for the independent reviewer – to sift through 10 years of data and a 384-page government report, digest public submissions, visit the forests and meet with interested groups – was all too short.

Rolling over the RFAs seemed a foregone conclusion, even without the legally required evidence or analysis that they have actually achieved their aim of ‘Ecologically Sustainable Forest Management’.

Curiously, the NSW Minister for Lands and Forestry recently reported to the Parliament that “…we have finalised the implementation review of the [NSW] Regional Forest Agreements and we are commencing their renewal process”.[1] If this is true, the Government should release the independent reviewer’s report immediately. This will help the community to reach an informed view on the state of public native forestry in NSW. [Update: the independent review report was later released on 26 June 2018.]

3. Consultation on new Regional Forest Agreements – 2020 to 2040?

In late January 2018 the NSW and Commonwealth governments asked for public comment on what any renewed RFAs should look like. You can read our submission here. We expressed our concerns around poor and untimely consultation, ongoing compliance and governance issues and the lack of systemic environmental indicators to measure baselines, results or trends.

We also noted that any future RFA discussions need much more public input, including:

  • a public draft of any proposed RFA (there is no commitment to this as yet)
  • the ongoing review of the Integrated Forestry Operations Approvals (see below)
  • a need to review the 1992 National Forest Policy Statement and principles that underpin the RFAs, and
  • identifying new, robust approaches to climate change under the 2015 Paris Agreement – as Article 5 urges nations to take action to conserve and enhance carbon sinks and reservoirs, including forests.

By seeking comment only after critical decisions had already been made, public trust in the RFA process has been further tarnished. Given the topsy-turvy decision-making, unacceptable delays and no independent evaluation before the renewal decision was taken, it is hardly surprising that many conservation groups boycotted these consultations entirely.

4. A new rulebook proposed for logging in public forests

In May 2018 the NSW Government released a new set of rules for logging in public native forests – the draft Coastal Integrated Forestry Operations Approval. IFOAs spell out how the Regional Forest Agreements apply in practice. If adopted, the Coastal IFOA will replace four existing IFOAs and set the ground rules for logging along the entire NSW coast and tablelands (excluding Wollongong and Greater Sydney).

The draft Coastal IFOA is on six weeks exhibition until 29 June [update: the deadline for submissions will now be Friday 13 July 2018.]  

The existing IFOAs are full of outdated terms and conditions. The EPA has a tough job enforcing these rules when the NSW Forestry Corporation and its contractors fall foul of them. This job is made no easier by the fact that public forestry is the one area of environmental law where the community itself cannot seek enforcement in Court. 

Other laws empower communities to enforce the law – including the Environmental Planning and Assessment Act, Mining Act, Petroleum (Onshore) Act, Local Government Act, Local Land Services Act, Water Management Act and the Biodiversity Conservation Act. These ‘third party enforcement’ rights provide a safety valve for community concern, are a key anti-corruption safeguard and reinforce the rule of law.

Reflecting on offences in 2011, the Land and Environment Court found the Forestry Corporation showed ‘a pattern of continuing disobedience… or at the very least, a cavalier attitude to compliance’.

Added to this, until recently the penalty notices that the EPA could issue for forestry breaches without going to Court were often pitifully low.

Why are the rules in IFOAs important? Because they’re supposed to ‘integrate’ safeguards for streams, soils and threatened forest species like koalas, owls, quolls and gliders. They’re meant to protect the habitat of plants and animals so that biodiverse forest ecosystems can continue to thrive.

We’re now reviewing the details of the Coastal IFOA to make a submission.

The key challenge for IFOAs is the NSW Government’s policy position that, in addition to maintaining environmental standards, they must also deliver ‘no net loss in wood supply’. Four years of internal government wrangling suggests these two objectives are fundamentally incompatible.

To break the stalemate, the Natural Resources Commission (NRC) was asked to advise on how the twin objectives could be met.  In 2016 the NRC recommended a set of revised environmental standards for the Coastal IFOA, but advised that these standards were still likely to reduce wood supply. It found the two objectives ‘are not mutually achievable’. Given these difficulties, the NRC recommended the Government rethink its policy position and explore alternative options and trade-offs. If objectives did not change, the NRC outlined a number of controversial logging options that could meet wood supply targets.

While the NSW Government accepted the NRC’s proposed environmental standards for the Coastal IFOA, it rejected the invitation to review its two policy objectives and the various wood supply options proposed.

5. Proposal to remap Old Growth Forest with new technology in 2019

Instead, the Government directed the NRC to look into another controversial way to meet any wood supply shortfall: to remap Old Growth Forest to see if it’s been mistakenly classified.

The NSW Office of Environment Heritage investigated 13 pilot sites of mapped North Coast Old Growth and in March 2018 the NRC delivered its second review. The results were staggering. According to the NRC, the pilot investigation revealed that Old Growth mapping was on average 78% inaccurate.

Remapping would mean that forests previously set aside as Old Growth could be made available for logging, if necessary, to make up any shortfall in wood supply due to updated environmental standards. The NRC recognised the social and environmental significance of this option and suggested a range of caveats on remapping to protect environmental values.

The Government has already announced it will support the remapping proposal, but says it will consult later on how that should be done.

6. Amendments to laws for public and private (on-farm) forestry 

Finally, the NSW Government has introduced a Bill to reform how logging is regulated on public forests and private lands.

The Forestry Legislation Amendment Bill 2018 amends the high-level framework for Forestry Corporation logging on public land. This framework is to deliver Ecologically Sustainable Forest Management under the Forestry Act 2012, with detailed rules set out in the IFOAs.

The Bill also shifts Private Native Forestry regulation from the Forestry Act to the Local Land Services Act 2013. This reflects recent orders that put Local Land Services and the Minister for Lands and Forestry in charge of issuing Private Native Forestry licences to landholders, instead of the EPA.

Existing IFOA conditions, and the Private Native Forestry Codes of Practice and licences, will be carried over until the IFOAs and Codes are reviewed.

Finally, the Bill updates and improves the monitoring and enforcement powers of the EPA for both private and public forestry. However, it continues to exclude the community from bringing enforcement proceedings in relation to public forestry.

The EDO made 20 recommendations to improve the Bill in our submission to a rapid parliamentary inquiry. You can read these here. After considering options for greater transparency and public input, the Inquiry recommended the Bill be debated in Parliament.

Conclusion

How these six interlocking forestry reforms play out will shape the future of NSW forests for decades to come and determine whether Ecologically Sustainable Forest Management is rhetoric or reality. They also impel the NSW Government to fully spell out the costs and consequences of its policy objective to maintain wood supply.

Next steps

You can comment on the draft IFOA until 29 June 2018  [update: the deadline will now be Friday 13 July 2018.] The Government’s consultation page includes a summary, factsheets and expert reports (including on threatened species). Briefing notes are available elsewhere from industry and conservation groups.

Links to government resources:

[1] Second reading speech, Forestry Legislation Amendment Bill 2018, 16 May 2018