FEDERAL COURT OF AUSTRALIA

North East Forest Alliance Inc v Commonwealth of Australia [2024] FCA 5

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    On or before 4:00pm on Wednesday, 31 January 2024, the parties are to indicate to the Court whether they wish to be heard separately on costs.

3.    In the event that agreement between the parties as to the appropriate orders for costs is not reached:

(a)    the parties are to agree a timetable by 4:00pm on Wednesday, 7 February 2024 in which short submissions on, and any evidence with respect to, costs are to be filed and served; and

(b)    subject to further order of the Court, any issue as to costs is to be determined on the papers.

4.    Liberty to apply.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION AND SUMMARY OF CONCLUSIONS

1    On 31 March 2000, the first respondent, the Commonwealth, and the second respondent, the State of New South Wales (NSW or the State), entered into an intergovernmental agreement being the Regional Forest Agreement for North East New South Wales (Upper North East and Lower North East) (the NE RFA). The purpose of the NE RFA included establishing “the framework for the management of the forests of the Upper North East and Lower North East regions”: recital 1A of the NE RFA. The NE RFA provided that it was to remain in force for 20 years from 31 March 2000, unless terminated earlier or extended in accordance with its provisions: clause 6 of the NE RFA. Subsequently, the Commonwealth Parliament enacted the Regional Forest Agreements Act 2002 (Cth) (RFA Act). A primary purpose of the RFA Act is to reinforce the certainty which the NE RFA and other RFAs between the Commonwealth and States were intended to provide for regional forestry management by “giv[ing] effect to certain obligations of the Commonwealth under Regional Forest Agreements”: s 3(a) of the RFA Act.

2    Shortly before the expiry of the 20 year period for the NE RFA, on 28 November 2019 the respondents executed the “Deed of variation in relation to the Regional Forest Agreement for the North East Region” (the Variation Deed). The Variation Deed stated that it “amend[ed] the Regional Forest Agreement on the terms and conditions contained in this deed”: Variation Deed, Preamble B. As described in further detail below, one effect of the Variation Deed was to extend the NE RFA at least by a further 20 years.

3    The applicant, North East Forest Alliance Incorporated, seeks a declaration pursuant to s 39B of the Judiciary Act 1903 (Cth) that the NE RFA as amended by the Variation Deed (the Varied NE RFA) is not a “regional forest agreement” within the meaning of s 4 of the RFA Act. The consequence of so holding would not be that the Varied NE RFA is invalid, as the applicant accepts. Rather, the consequence relevantly would be that neither s 38 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) nor s 6(4) of the RFA Act would apply so as to exempt forestry operations undertaken in accordance with the Varied NE RFA from the approval processes under Part 3 of the EPBC Act.

4    In essence, the applicant contends that the Varied NE RFA is not an RFA for the purposes of the RFA Act because, in amending the NE RFA, regard was not had to an “assessment” of “environmental values” and “principles of ecologically sustainable management” as required by paragraph (a) of the definition of an RFA in s 4 of the RFA Act. This is because, in the applicant’s submission, of the failure in the materials before the Prime Minister, who executed the Variation Deed on behalf of the Commonwealth, to sufficiently evaluate those matters and to do so on the basis of reasonably contemporaneous information.

5    Those submissions are rejected for the reasons which I develop below. First, properly construed, there is no requirement that regard must be had to an assessment before an RFA is amended, including by extending its term, in order that the intergovernmental agreement continue to meet the definition of an RFA. That requirement applies only where the parties enter into an RFA. Secondly and in any event, there is no implicit requirement that an assessment must be sufficiently evaluative and reasonably contemporaneous in order to satisfy the condition in paragraph (a) of the RFA definition. Rather, the question is whether, objectively speaking, regard was had to assessments of the values and principles referred to in paragraph (a) of the definition of an RFA. Thirdly, applying that test, the evidence establishes that the materials before the Prime Minister, and in particular the “Assessment of matters pertaining to renewal of Regional Forest Agreements” (Assessment Report), addressed each of the values and principles referred to in paragraph (a) of the definition of an RFA. That being so and there being no issue that the Prime Minister had regard to the materials attached to the Prime Minister’s brief, the applicant has not established that the Varied NE RFA is no longer an RFA for the purposes of the RFA Act, even if an assessment was required before the RFA was amended. It follows that the application for relief must be dismissed.

6    Finally, it is important to stress that the effect of an RFA is not to leave a regulatory void with respect to the forest regions covered by the NE RFA. Rather, as I explain below, an RFA provides an alternative mechanism by which the objects of the EPBC Act can be achieved by way of an intergovernmental agreement allocating responsibility to a State for regulation of environmental matters of national environmental significance within an agreed framework. As such, the question of whether or not to enter into or vary an intergovernmental agreement of this nature is essentially a political one, the merits of which are matters for the government parties, and not the Courts, to determine.

2.    STANDING

7    The applicant is an incorporated association, whose primary purpose is to protect the public native forests of north east NSW including threatened species and their habitat and old growth forests. Since 1989, it has been actively engaged in activities in pursuit of its objects including:

(1)    conducting forest audits and reporting to the NSW Environment Protection Authority on potential contraventions of the applicable forest laws arising from the audits;

(2)    advocacy in local and State media and public education;

(3)    making submissions in response to State and Commonwealth government public consultation opportunities relating to native forest management and forestry operations in north east NSW;

(4)    preparing and publishing reports concerning native forest management, forestry operations, and threatened species and ecological communities in forests in north east NSW; and

(5)    participation, by invitation, in State and Commonwealth government committees concerning the management and regulation of forests in north east NSW and species that are found therein, including for the purposes of the Comprehensive Regional Assessment.

(Statement of Agreed Facts (SAF) at [1].)

8    It was rightly accepted by the respondents that the applicant has standing to seek declaratory relief and that there is, therefore, a justiciable controversy for the purposes of Chapter III of the Constitution and s 39B of the Judiciary Act 1903 (Cth).

3.    BACKGROUND

9    The relevant facts were largely not in dispute, being the subject of the SAF.

3.1    The National Forest Policy Statement

10    Together with the other regional forest agreements, the NE RFA was a product of the National Forest Policy Statement (NF Policy Statement or NFPS) signed by the Commonwealth and mainland State and Territory governments in 1992. Further, as I shortly explain, one of the objects of the RFA Act is to give effect to certain aspects of the NF Policy Statement. The purpose of the NF Policy Statement was to outline “agreed objectives and policies for the future of Australia’s public and private forests”: NF Policy Statement, p 1.

11    The adoption of the NF Policy Statement was a response to “the task of balancing competing interests of environment/conservation, industry and recreation regarding the use, management and conservation of native forests and forest resources”: Explanatory Memorandum to the Regional Forest Agreement Bill 2002 (Cth) (RFA Bill) p 3. This “had established a climate of uncertainty for investors and contributed to community uncertainty that environmental values were being adequately protected”: ibid. As such, the NF Policy Statement was intended to provide “a framework agreed by Commonwealth and all State Governments for a long-term and lasting resolution of conservation, forest industry and community interests and expectations concerning Australian forests”: ibid (emphasis added).

12    In furtherance of this objective, the NF Policy Statement required the Commonwealth and State or Territory Government to conduct joint comprehensive regional assessments (CRAs) of environmental, heritage, economic and social values relating to forests in certain regions. The essential features of those CRAs were explained as follows in the NF Policy Statement at pp 21–‍22:

The Governments have identified a single, comprehensive regional assessment process whereby the States can invite the Commonwealth to participate in undertaking all assessments necessary to meet Commonwealth and State obligations for forested areas of a region.

Comprehensive regional assessments will involve the collection and evaluation of information on environmental and heritage aspects of forests in the region. The Commonwealth will ensure that its evaluation of information is efficient, avoiding duplication and delays wherever possible and taking into account the analyses of other Commonwealth agencies where appropriate.

13    The CRAs were designed to provide the basis for “enabling the Commonwealth and the States to reach a single agreement relating to their obligations for forests in a region”: NF Policy Statement p 22. Those Commonwealth obligations were limited and said to include:

assessment of national estate values, World Heritage values, Aboriginal heritage values, environmental impacts, and obligations relating to international conventions, including those for protecting endangered species and biological diversity.

14    Subsequently, between 1999 and 2001, NSW and the Commonwealth entered into three RFAs, being the Eden RFA, the Southern RFA and the NE RFA. Those RFAs were executed following CRAs of the Eden, Upper North East, Lower North East, and Southern regions as I explain below. A further seven RFAs were signed between the Commonwealth, Tasmania, Victoria and Western Australia between 1997 and 2001. The purpose of the RFAs was, as the Full Court summarised in Vicforests v Friends of Leadbeater’s Possum Inc [2021] FCAFC 66; (2021) 389 ALR 552 (Leadbeater’s FCAFC) at [29]:

to establish between the Commonwealth and the States a framework for the management and use of native forests. RFAs were intended to provide for the conservation of forests, and the flora and fauna found in them, while allowing for ecologically sustainable management and use of those forests. RFAs were concluded after a process of environmental assessment conducted by the Commonwealth to determine that State forest management systems would provide adequate protection to the environment. This included implementation of a Comprehensive Adequate Representative (CAR) Reserve System, and implementation of ecologically sustainable forest management (ESFM).

3.2    The NE RFA

15    In January 1996, NSW and the Commonwealth entered into a Scoping Agreement for New South Wales Forest Agreements (the Scoping Agreement). By that agreement, the Commonwealth and the State stated their mutual intention “to proceed to the negotiation of Regional Forest Agreements (RFAs) for several regions of New South Wales, and to establish processes and timetables for their completion”. Amongst other things, the Scoping Agreement provided (at clause 23) that:

Both Governments aim to develop RFAs that will operate for up to 20 years. The Commonwealth and New South Wales agree to identify appropriate performance indicators to measure RFA outcomes and to develop monitoring arrangements and to report on those indicators and the performance of each RFA every 5 years. Both Governments also agree prior to the signing of each RFA, to identify exceptional circumstances which could influence those RFA outcomes significantly and which would require a reassessment and amendment of the RFA before its due expiry date.

16    Furthermore, as envisaged by the NF Policy Statement, during 1997 and 1998 the Commonwealth and NSW undertook a comprehensive regional assessment in the Upper North East and Lower North East regions of NSW (the North East Region). The comprehensive regional assessment was summarised in the “North East CRA/RFA Project Summaries” published by the NSW and Commonwealth governments in 1999 and covered biodiversity, old growth, wilderness, endangered species, National Estate values, World Heritage values, Indigenous Heritage, social values, economic values and industry development opportunities in forested areas, and ecologically sustainable management.

17    On 31 March 2000, the Commonwealth and State entered into the NE RFA. The NE RFA established the “framework for the management of the forests of the Upper North East and Lower North East regions”. Recital B to the agreement provides that:

This Agreement is a Regional Forest Agreement … [T]he Agreement;

(a)    identifies areas in the region or regions that the parties believe are required for the purposes of a Comprehensive, Adequate and Representative Reserve System, and provides for the conservation of those areas; and

(b)    provides for the ecologically sustainable management and use of forested areas in the regions; and

(c)    is for the purpose of providing long-term stability of forests and forest industries; and

(d)    has regard to studies and projects carried out in relation to all of the following matters that are relevant to the 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 forested industries;

(iv)    social values (including community needs); and

(v)    principles of Ecologically Sustainable Forest Management.

18    Clause 7 of the Agreement, contained in Part 1, confirmed the parties’ “commitment to the goals, objectives and implementation of the National Forest Policy Statement (NFPS)”. That goal was to be achieved, amongst other things, by “[d]eveloping and implementing Ecologically Sustainable Forrest Management” and “[e]stablishing a Comprehensive, Adequate and Representative (CAR) Reserve System”.

19    The NE RFA referred to a number of additional documents, agreed copies of which were attached to the SAF, namely:

(1)    the Scoping Agreement;

(2)    the assessment process carried out pursuant to Attachment 1 of the Scoping Agreement, being the “Comprehensive Regional Assessment” or “CRA”; and

(3)    the “report by the Joint Australian and New Zealand Environment and Conservation Council (ANZECC) / Ministerial Council on Forestry, Fisheries and Aquaculture (MCFFA) National Forests Policy Statement Implementation Sub-committee titled Nationally Agreed Criteria for the Establishment of a Comprehensive, Adequate and Representative Reserve System for Forests in Australia, published by the Commonwealth of Australia in 1997” (the JANIS Report).

(SAF at [5]–‍[6].)

20    Importantly for reasons I shortly explain, under the heading, “Duration of Agreement”, contained in Part 1, the NE RFA provides that:

5    This Agreement takes effect upon signing by both Parties and, unless earlier terminated in accordance with clauses 112, 113, 114 or 115, will remain in force for 20 years.

6    The process for extending the Agreement for a further period will be determined jointly by the Parties as part of the third five-yearly review.

21    It will be recalled that the Scoping Agreement, at clause 23, also contemplated the development of RFAs that would operate for 20 years.

22    Part 2 of the NE RFA is comprised of clauses 16 to 106 inclusive and deals with a wide range of subject matters including:

(1)    annual reporting for the first five years by the parties on the achievement of milestones given in Attachment 5 (clause 39);

(2)    five yearly reviews (clause 40);

(3)    the parties’ agreement that ecologically sustainable forest management (ESFM) requires a long-term commitment to continuous improvement (clause 44);

(4)    that key elements for achieving ESFM are the establishment of a CAR Reserve System, the development of internationally competitive forest products industries, and “integrated, complementary and strategic forest management systems capable of responding to new information” (clause 44);

(5)    monitoring, reporting and consultative mechanisms (clauses 49–‍51); and

(6)    the management of threatened flora and fauna (clauses 60–‍64), the CAR reserve system (clauses 65–‍72) and indigenous heritage (clauses 92–93).

23    However, clause 16 of Part 2 of the NE RFA provided that the Part was not intended to create legally binding obligations; similarly, the provisions of Part 1, “in so far as they relate to Part 2 are also not binding”: see also Recital B to the NE RFA. In this regard, the Full Court in Bob Brown Foundation Inc v Commonwealth [2021] FCAFC 5; (2021) 283 FCR 225 at [80] held that there was no requirement that an RFA must impose legally enforceable obligations in order to constitute an RFA for the purposes of the RFA Act.

24    As earlier mentioned, clauses 40–43 of the NE RFA establish a mechanism for five yearly reviews of the performance of the Agreement. Specifically, clause 40 of the Agreement relevantly provides:

40    Within each five year period a review of the performance of the Agreement will be undertaken. The purpose of the five-yearly review is to provide an assessment of progress of the Agreement against the established milestones, and will include:

(a)    The extent to which milestones and obligations have been met, including management of the National Estate;

(b)    The results of monitoring of Sustainability Indicators; and

(c)    Invited public comment on the performance of the Agreement.

25    In contrast to Part 2, clause 107 provides that it is the parties’ intention that Part 3 (comprising clauses 107–‍115) creates legally enforceable rights and obligations. Among other provisions, clause 110.1 relevantly provides that the parties agree that:

110.1    If to protect the Environment and Heritage Values in native forests and in connection therewith the protection of:

(a)    CAR Values;

(b)    National Estate Values; or

(c)    World Heritage Values; or

(d)    Wild Rivers

the Commonwealth takes any Action during the period of this Agreement which is inconsistent with any provision of this Agreement and a foreseeable and probable consequence of which is to prevent or substantially limit: [certain uses of land outside the CAR Reserve System, selling or commercial use of Forest Products sourced from land not included within the CAR Reserve System, or constructing on land outside the CAR Reserve System]

…

the Commonwealth will pay compensation to the State in accordance with the remaining provisions of clauses 110.2 to 110.20.

26    Clause 2 defines “CAR Values” to mean the conservation values as described in the JANIS Reserve Criteria for establishing the CAR Reserve System, being criteria which address Biodiversity, Old Growth forest and Wilderness, taking account of reserve design and management and social and economic considerations. “Action” in turn is defined in clause 110.20(a) to relevantly mean the commencement of legislation (including subordinate legislation) and administrative action taken pursuant to or in accordance with legislation.

27    Clauses 110.2 to 110.20 set out the details of the compensation scheme. Specifically, under clause 110.1 the Commonwealth accepted liability to pay compensation for certain future acts, including passing legislation or subordinate legislation, which are inconsistent with the NE RFA: clause 110.20 of the NE RFA. The effect of clause 110.2, in-‍turn, is to extend the remit of debt compensation not only to the State Government, but to private persons as well.

3.3    The NE RFA Variation Deed

28    On 28 November 2018, the Commonwealth and State executed the NE RFA Variation Deed, which amended the NE RFA. Importantly, the recitals to the Variation Deed under the heading “Context”, state that:

This deed is made in the following context:

A.    The parties entered into the Regional Forest Agreement to establish a framework for the management of certain forests.

B.    The parties have agreed to amend the Regional Forest Agreement on the terms and conditions contained in this deed.

C.    Except as amended by this deed, the Regional Forest Agreement continues in full force and effect without amendment.

29    In line with the recitals, clause 3 of the operative provisions headed “Confirmations” provides that the parties confirm and acknowledge that:

a.    this deed varies the Regional Forest Agreement, and does not terminate, discharge, rescind or replace the Regional Forest Agreement.

b.    except as expressly agreed in this deed, its obligations and covenants under, and the provisions of, the Regional Forest Agreement continue and remain in full force and effect;

c.    nothing in this deed:

i.    prejudices or adversely affects any right, power, authority, discretion or remedy which arose under or in connection with the Regional Forest Agreement before the date of this deed; or

ii.    discharges, releases or otherwise affects any liability or obligation which arose under or in connection with the Regional Forest Agreement before the date of this deed; and

d.    notwithstanding anything in this deed, nothing in this deed is intended to make legally binding any obligations in the Regional Forest Agreement that the parties have expressed an intent to be non-binding.

(Emphasis added.)

30    The Varied NE RFA is at annexure 1 to the NE RFA Variation Deed, while a clean copy of the Varied NE RFA is at annexure 2 to the Variation Deed. Clause 5 of the Varied NE RFA provides that the agreement “takes effect on 31 March 2000, and unless earlier terminated in accordance with clauses 112, 113, 114 or 115, will remain in force until 26 August 2039, or until a later date pursuant to clauses 6A and 6B”. Clauses 40–‍43 of Part 2 of the NE RFA creating a non-binding requirement to undertake five yearly reviews are omitted in the Varied RFA. In their stead, clauses 6A and 6B of Part 1 of the Varied RFA provide for the automatic extension of the agreement for a further five years on the “satisfactory completion” of each five-yearly review in accordance with clause 8M. Furthermore, in contrast to the original NE RFA, the requirement to undertake five yearly reviews is no longer included in Part 2 of the agreement which, it will be recalled, states that it is not intended to create legally binding relations. In light of these amendments, the applicant correctly submits that the purported effect of the Variation Deed was to extend the NE RFA at least by a further 20 years, and possibly indefinitely.

31    The Variation Deed was executed on behalf of the Commonwealth by then Commonwealth Prime Minister, the Hon Scott Morrison MP, and then NSW Premier, the Hon Gladys Berejiklian MP. When executing the Variation Deed, the Prime Minister had before him a briefing note entitled “Extension of Eden, North East New South Wales (NSW) and Southern New South Wales Regional Forest Agreements (RFA)” and various attachments (the Prime Minister’s Brief) (Annexure 8 to the SAF). In the briefing note, the Prime Minister was expressly directed to consider the Assessment Report at Attachment E. The purpose of the Assessment Report is explained (at p 12) as follows:

to provide an update on the matters listed in para (a) of the definition of the RFA in order to support the decision by the parties to enter into the proposed renewal of the RFA. This assessment considers the likely applicability of the findings of the CRAs to the proposed term of the renewed RFAs, the current status of the values based on additional information derived from various sources published since the governments entered into the agreement, and the likely impact on those values of the proposed renewal of the NSW RFAs. This document summarises the above consideration by reference to each of the listed matters.

32    With respect to the then proposed Varied NSW RFAs, the Assessment Report (at pp 14–‍15) explained that:

The Australian and NSW governments have committed to:

•    Renewing each of the NSW RFAs for a further term of 20 years

•    establishing a ‘rolling’ life for each Regional Forest Agreement by including a provision to extend its term for a further five years based upon successful completion and implementation of each independent five-yearly review of the Regional Forest Agreement.

…

In renewing the NSW RFAs, the Australian and NSW governments seek to maintain the objectives of the agreement. The governments are also seeking to negotiate a range of other minor improvements to the NSW RFAs to address some of the issues raised by various consultative reviews, consistent with continual improvement.

These improvements include:

•    Streamlined and strengthened review and reporting arrangements

•    Graduated dispute resolution

•    Better handling of forest management complaints

•    Improved communication and consultation between the Australian and NSW governments.

33    The Assessment Report concluded that the extension of the NE RFA and the Eden and Southern NSW RFAs, to 26 August 2039 will enable continued protection and sustainable management of RFA values. Specifically, the Assessment Report found (at p 378) that:

This report has demonstrated that the Australian and NSW governments have, through a comprehensive and diverse range of processes, formally had ongoing regard to the matters listed in para (a) of the definition of ‘RFA’ in the RFA Act relevant to the NSW RFA regions. Given the commitments of both governments to continue implementing the ongoing obligations and commitments of the NSW RFAs, while allowing for the forest management framework and implementation mechanisms to be responsive to new information consistent with adaptive management and continual improvement principles, it could be expected that the management of NSW forests in RFA regions would continue within this framework.

34    The Assessment Report relied among other things upon published data from various sources which postdate the original North East CRA in 1999 and the execution of the NSW RFAs, and are described in the Assessment Report as “the latest available information”: at p 13. These included NSW RFA annual reports, the formal five-yearly reviews of the NSW RFAs undertaken jointly by the Commonwealth and NSW, the (then) most recent joint government response to the latest independent five-yearly review of the NSW RFAs, and the NSW Forest Management Framework: see the Assessment Report at p 16. The Assessment Report also notes that reliance was placed on the Montréal Process Criteria and Indicators as a framework for reporting on and assessing sustainable forest management. The Montréal Process Criteria and Indicators are described later in this judgment.

35    In line with its purposes, however, the Assessment Report further explained (at p 13) that:

It is not a replacement for other reviews that have been done relating to NSW RFAs or which have included the Montréal Process indicators. Rather, it draws on these sources to illuminate the state of the matters and indicators as they have changed over the life of the current NSW RFAs.

36    Thus, it is common ground that no new comprehensive regional assessments were undertaken before the Variation Deed was executed.

4.    THE RFA ACT

37    The RFA Act was enacted in 2002. It was common ground that the RFA Act applied to RFAs already in force when the legislation was enacted, including the NE RFA. It follows that the parties correctly accepted that “in enacting the RFA Act, the Commonwealth proceeded on the basis that each of the existing Regional Forest Agreements … constituted an ‘RFA’ as defined”: Bob Brown Foundation at [72] (the Court).

38    Section 3 of the RFA Act outlines three “main objects of this Act”, namely:

(a)    to give effect to certain obligations under Regional Forest Agreements;

(b)    to give effect to certain aspects of the National Forest Policy Statement;

(c)    to provide for the existence of the Forest and Wood Products Council.

39    These objects need to be understood in context. Specifically, given the conflict and uncertainty with respect to the use of native forests which led to the original NF Policy Statement, the Explanatory Memorandum explained that the RFA Bill was intended to provide “a high degree of certainty for conservation and environmental interest, forests and forest products industry operators, recreational users of forest and the broader community in that significant commitments made under the RFAs will be supported by legislation.” Thus, the Explanatory Memorandum stated that:

Since February 1997, ten Regional Forest Agreements (RFAs) have been concluded between the Commonwealth and the Victorian, Tasmanian, New South Wales and State Governments. As a key feature of the National Forest Policy Statement of 1992, the RFAs have a 20-year life and have delivered:

…

•    20-year certainty in resource supply;

…

•    Participation of local community and stakeholder groups in the assessment of environmental, social and economic values and the development of options for sustainable development of RFA regions.

40    The Explanatory Memorandum explained that the RFA Act would “underpin” the RPAs by:

•    precluding the application of controls under the Export Control Act 1982, and other Commonwealth laws which have the effect of prohibiting or restricting exports of wood from a region where an RFA is in force (supporting the current Export Control Regulations which have removed export controls where RFAs are in place);

•    preventing application of Commonwealth environmental and heritage legislation as they relate to the effect of forestry operations where an RFA, based on comprehensive regional assessments, is in place (reflecting provisions already in the EPBC Act);

•    ensuring that the Commonwealth is bound to the termination and compensation provisions in RFAs and cannot effectively change these provisions in the future without legislative action; and

•    binding future executive governments to consider advice from the Forest and Wood Products Council on the implementation of the Forest and Wood Products Action.

41    Thus, as the Full Court explained in Bob Brown Foundation at [59]:

the purpose of the RFA Bill is to enshrine certain obligations of the Commonwealth: “The benefits of the RFAs flow from stability in forest management, access and use over 20 years. The RFA Bill reinforces those benefits by ensuring that Commonwealth governments will not materially alter the conditions negotiated in the RFAs.”

(Emphasis in the original; quoting the Explanatory Memorandum at p 1.)

42    An “RFA or Regional Forest Agreement” is defined in s 4 of the RFA Act as follows:

"RFA or Regional Forest Agreement" means an agreement that is in force between the Commonwealth and a State in respect of a region or regions, being an agreement that satisfies all 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 forested industries;

(iv)    social values (including community needs); and

(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.

43    The proper construction of paragraph (a) of this definition lies at the heart of this application. It is convenient to refer to paragraph (a) of the definition of an RFA as Condition (a).

44    In turn, an “RFA forestry operation” is defined in s 4 as meaning, relevantly, “forestry operations (as defined by an RFA as in force on 1 September 2001 between the Commonwealth and New South Wales) that are conducted in relation to land in a region covered by the RFA (being land where those operations not prohibited by the RFA)”.

45    Section 6(4) of the RFA Act provides that “Part 3 of the Environment Protection and Biodiversity Conservation Act 1999 does not apply to an RFA forestry operation that is undertaken in accordance with an RFA”. This means (as explained in the Explanatory Memorandum) that approval is not required under the EPBC Act for an RFA forestry operation undertaken in accordance with an RFA: see also s 38(1) of the EPBC Act to the same effect. In other words, the EPBC Act “does not apply to forestry operations in RFA regions, and the way in which the objects of the Act will be met in relation to those operations is to be ascertained by the relevant RFA”: Forestry Tasmania v Brown [2007] FCAFC 186; (2007) 167 FCR 34 at [61] (the Court). As a consequence, the applicant submits that (Applicant’s Written Submissions in Chief (AS) at [25]):

The great practical significance of [an agreement falling within the definition of an RFA in s 4 of the Act] is illustrated by the recent decision in Leadbeater’s FFC, in which the Full Court upheld findings that VicForests had engaged in numerous breaches of Victorian legal requirements, but these did not result in the exemption from EPBC Act requirements falling away (contrary to the primary judge’s finding). The Full Court held that if forestry operations are conducted in the geographic area covered by an RFA, then only State law requirements apply, and the EPBC Act does not.

46    Furthermore, s 6(1) of the RFA Act at the relevant time provided that RFA wood, being wood sourced from a region covered by an RFA, is not “prescribed goods” for the purposes of the Export Control Act 1982 (Cth). The Export Control Act regulated the export of “prescribed goods”. Section 6(2) of the RFA Act exempt RFA wood generally from other export control laws unless that legislation expressly referred to RFA wood.

5.    OVERVIEW OF THE ISSUES

47    In essence, the applicant’s case is that the Variation Deed was not entered into having regard to assessments in relation to climate change, endangered species and old growth values, and ecologically sustainable management as required by Condition (a) of the definition of RFA. As a result, the applicant contends that the Varied NE RFA is not an RFA for the purposes of the RFA Act.

48    At the risk of oversimplification, the issues as they ultimately emerged through the parties’ submissions can be summarised as follows.

(1)    Before an RFA is varied so as to substantially extend its term, are further “assessments” required in order for the agreement to continue to meet Condition (a) of the definition of an RFA in s 4 of the RFA Act?

(2)    If so, in order to satisfy Condition (a) of the RFA definition, what do those assessments require? Specifically, was it necessary when entering into the Variation Deed for regard to be had to assessments of the matters in Condition (a) which were “evaluative, based on the gathering of relevant information, reasonably contemporaneous to the date the relevant decision is made, and addressing risks to the identified environmental values known to be relevant to the region/s in question” (AS at [40])?

(3)    If the answer to issue (2) is “yes”, was Condition (a) of the RFA definition complied with before the Variation Deed was entered into? In particular, in entering into the Variation Deed, was regard had to:

(a)    projected impacts or effects of climate change on old growth, endangered species, world heritage values and wilderness (Ground 1, statement of claim); and/or

(b)    environmental values as regards endangered species and the principles of ecologically sustainable management insofar as the harvesting of native forests envisaged by the Varied NE RFA would impact on endangered species (Ground 2, statement of claim); and/or

(c)    environmental values as regards old growth forests and the principles of ecologically sustainable management insofar as the harvesting of native forests envisaged by the Varied NE RFA would impact upon existing and/or potential future old growth within the North East region (Ground 3, statement of claim);

in a manner which was sufficiently evaluative and reasonably contemporaneous.

(4)    In the event that the applicant is successful in establishing that the NE RFA is not an RFA within the meaning of the RFA Act, is it in the interests of justice to grant declaratory relief?

49    For the reasons that follow, I consider that the first issue must be answered “no”. With respect, the construction for which the applicant contends on this issue is simply not open on the text of the relevant provisions. In those circumstances, the remaining issues do not strictly arise. However, in line with the role of a primary judge, I have considered issues 2 and 3 on the alternative assumption that issue 1 is determined in the applicant’s favour. Given that in my view, the applicant must fail on each of issues 1, 2 and 3, it is unnecessary to consider whether relief should be granted in the exercise of discretion.

6.    RELEVANT PRINCIPLES OF STATUTORY CONSTRUCTION

50    The first and second issues turn on questions of statutory construction. The relevant principles are well-‍established and were not in issue. As McHugh, Gummow, Kirby and Hayne JJ explained in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 335 (at [69]):

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos [(1955) 92 CLR 390 at 397], Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

51    The importance of commencing with the text in its statutory context was also emphasised by Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 in the following passage (at [14]):

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose [citing Project Blue Sky with approval]. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

52    Context “in its widest sense”, as referred to in this passage, includes “such things as the existing state of the law and the mischief which … one may discern the statute was intended to remedy” CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ) (cited with approach in SZTAL at [14]). To have regard to context in this sense, as integral to the process of statutory construction irrespective of whether ambiguity or inconsistency exists in the literal text, accords with the mandate in s 15AA of the Acts Interpretation Act 1901 (Cth) that the interpretation which best gives effect to the legislative purpose must be preferred to any other interpretation: Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 at 235 (Dawson J). As a result, as Dawson J also explained, the approach required by interpretive provisions of this kind “allows a court to consider the purposes of an Act in determining whether there is more than one possible construction” (ibid); see also the discussion in Pearce D, Statutory Interpretation in Australia (9th ed, LexisNexis Butterworths, 2019) at [2.17]–‍[2.20]; Herzfeld P and Prince T, Interpretation (2nd ed, LawBook, 2020) at [7.20]–‍[7.30].

7.    ISSUE 1: WERE FURTHER “ASSESSMENTS” REQUIRED BEFORE EXTENDING THE NE RFA

7.1    Overview of the parties’ submissions

53    The first issue is whether further “assessments” of the specified “matters” in Condition (a) of the RFA definition are required before substantially extending the term of an existing RFA, if that agreement is still to meet the RFA definition. In this regard, it will be recalled that the RFA definition provides that an RFA agreement is an agreement that “satisfies all the following conditions”, including under paragraph (a), that:

(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; …

(v)    principles of ecologically sustainable management…

54    It is common ground that paragraphs (a) to (e) of the definition of an RFA turn upon the existence of objective facts and that they do not require the establishment of a state of satisfaction by a decision-maker. There was also no question of whether the Varied RFA complied with paragraphs (b) to (e) of the definition of an RFA. The constructional issues in dispute pertain to:

(1)    whether it was necessary for the Deed varying the NE RFA to be entered into in compliance with Condition (a) in order that the Varied RFA remain an RFA under the Act; and if so,

(2)    what constitutes an “assessment” for the purposes of Condition (a).

55    Initially the applicant submitted that where, as in this case, there had been a material extension to the term of an RFA under the RFA Act, “then what is at issue is in substance a new RFA. Consideration of entry into such a substantially new RFA requires having regards [sic] to the assessments spelt out in s 4”: AS at [39]. However, in oral submissions, the applicant expressly disavowed any argument that the Varied RFA involved the creation of a substantially new agreement: Transcript (T)20.29–‍31. Rather, in essence the applicant submits that for any substantial extension of an RFA, regard must be had to further “assessments” of the matters specified in Condition (a) of the RFA definition in order that the agreement may remain an RFA for the purposes of the RFA Act.

56    In support of its submission, the applicant relies upon the purpose of the RFA Act. Referring to the various extrinsic materials (as discussed shortly below), the applicant contends that the purpose of the RFA Act was to ensure that RFAs were based on a comprehensive assessment of the particular regions in question. As the applicant submits, “[t]he purpose of these requirements [to perform assessments prior to entry into an RFA] is obvious: to inform consideration of whether the particular RFA should be entered [into]”: AS at [32]. On the applicant’s submission, to allow the Commonwealth to extend an RFA indefinitely based on environmental assessments from the 1990s, without the need for further assessments, would therefore undermine the clear purpose of the RFA Act.

57    The applicant also submits that the respondents’ construction of the Act would elevate form over substance. By way of illustration, the applicant submits that, if an RFA ended and was shortly thereafter replaced by a new RFA, the requirements in s 4 would apply to the entry into the new agreement. By contrast, the applicant observed that on the respondent’s construction, if the form of the change was instead to amend the existing RFA, the requirements in s 4 would not apply. This, in the applicant’s submission, would enable the conditions in paragraph (a) of the statutory definition to be circumvented with the result that historic assessments need never be revisited when extending an RFA. The applicant submits that this is particularly problematic in the context of forest agreements, given that forests “like all parts of the environment, are dynamic parts of nature. They change, for better and for worse”: AS at [34].

58    In the respondents’ construction, however, s 4 of the RFA imposes a requirement for certain assessments to be conducted upon entry only into an RFA. In their submission, the RFA Act imposes no requirement to conduct assessments before agreeing to extend the term of an RFA. In support of this construction, the respondents rely upon the ordinary and natural meaning of Condition (a) imposing a requirement to have regard to specified matters only on “enter[ing] into” an RFA despite the RFA Act expressly contemplating that amendments might be made to an RFA.

7.2    Disposition of Issue 1

59    In my view, the respondents’ construction of s 4 of the RFA Act must be accepted. Properly construed, Condition (a) of the definition of an RFA does not impose any requirement to have regard to new “assessments” of the specified matters relevant to the region(s) in circumstances where an RFA is being amended by way of an extension, substantial or otherwise, to its duration in order that the agreement continue to meet the definition of an RFA.

60    First, in terms of the general approach to construction, I note that this issue focuses on what is described in the legislation as a “definition”. In this regard, it is generally accepted that “a legislative definition should not be framed as a substantive enactment”: Vincentia MC Pharmacy Pty Ltd v Australian Community Pharmacy Authority [2020] FCAFC 163; (2020) 280 FCR 397 at [51] (Perry and Stewart JJ), citing Gibb v Federal Commissioner of Taxation [1966] HCA 74; (1966) 118 CLR 628 at 635 (Barwick CJ, McTiernan and Taylor JJ). However, a statutory definition may, upon its proper construction, impose substantive requirements or criteria. As Pearce explains, “Drafters do occasionally include substantive material in a definition. This is poor drafting and can lead to error in the interpretation of the legislation because of the approach set out in Gibb’s case”: Pearce D, Statutory Interpretation in Australia at [6.14]; see also Herzfeld P and Prince T, Interpretation at [3.10].

61    Despite being described as a definition, the so-called definition of an “RFA” in s 4 is an example in point. It plainly has a substantive operation because it prescribes “conditions” (i.e. substantive criteria) with which an agreement must comply in order to be an RFA for the purposes of the RFA Act and thereby attract the prescribed statutory consequences: see, e.g., by analogy, San v Rumble (No 2) [2007] NSWCA 259; (2007) 48 MVR 492 at [52] (Campbell JA, Beazley and Ipp JJA agreeing); ACCC v Yazaki Corporation [2018] FCAFC 73; (2018) 262 FCR 243 at [113]–‍[114] (the Court); and Vincentia at [50]–‍[51]. As in Vincentia, to so construe the definition in issue here best gives effect to the purpose of the RFA Act and does not give rise to the kinds of difficulties which might arise where a so-‍called definition applies potentially to a number of different statutory provisions: see by analogy Rumble at [55]; and Yazaki Corporation at [113]–‍[114] (the Court). Nonetheless, it is convenient, given the location of the “definition” of RFA in s 4 headed “Definition”, to refer to it as such.

62    Secondly, applying the principles explained above, the task of construction must commence and end with a consideration of the statutory text: see also Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39] (the Court). In this case, paragraph (a) of the statutory definition expressly requires that the agreement only be “entered into” having regard to assessments of the matters specified in subparagraphs (i) to (v). In its natural and ordinary meaning, those words are apt only to cover the execution of an RFA; they are not apt to encompass variations or amendments to an existing RFA, including extensions to the term of the intergovernmental agreement. As such, bearing in mind that the text of the provision is the surest guide to its purpose, the evident purpose of paragraph (a) is to require that regard be had to assessments of specified values and principles in order to inform the decision as to whether an intergovernmental agreement intended to be an RFA should be “entered into”.

63    Thirdly, that Parliament intended to distinguish between entering into an RFA and amending an RFA is supported by s 10 of the RFA Act. That section relevantly provides that:

(1)    The Minister must cause a copy of an RFA to be tabled in each House of the Parliament within 15 sitting days of that House after:

(a)    the commencement of this section; or

(b)    the RFA is entered into;

whichever is later.

…

(3)    The Minister must cause a copy of an amendment of an RFA to be tabled in each House of the Parliament within 15 sitting days of that House after:

(a)    the commencement of this section; or

(b)    the amendment is made;

whichever is later

(Emphasis added.)

64    Hence, s 10 distinguishes between “enter[ing] into” an RFA, on the one hand, under s 10(1)(b), and the “mak[ing]” of “an amendment” to an RFA, on the other hand, under s 10(3)(b)). That distinction, in turn, accords with the ordinary meaning of entering into an agreement as distinct from subsequent amendments to that agreement.

65    Furthermore, that Parliament intended the phrase “entered into” an RFA in Condition (a) of the definition of an RFA and in s 10(1) to bear the same meaning is apparent from the relationship between the two provisions. Specifically, once an RFA is “entered into” in accordance with Condition (a), the obligation in s 10(1), as opposed to s 10(3), is triggered. By contrast, where an amendment is made to an agreement, it is the obligation in s 10(3) which is enlivened. That relationship between the conditions for entering an RFA Agreement and the obligation in s 10(1) militates, in my view, a consistent construction of words “entered into" in both provisions. This approach accords with the principles of statutory construction requiring that the meaning of a provision must be determined by reference to the language of the instrument as a whole and on the prima facie basis that its provisions are intended to give effect to harmonious goals: Project Blue Sky at [69]–‍[70]. The applicant’s construction, however, would create a conflict between Condition (a) of the definition of an RFA on the one hand, and the operation of ss 10(1) and (3), on the other hand, despite their obvious interrelationship.

66    Understood in this light, with respect, the applicant asks the Court to “make an insertion which is ‘too big, or too much at variance with the language in fact used by the legislature’”: Taylor v Owners — Strata Plan No 1564 [2014] HCA 9; 253 CLR 531 at [38] (French CJ, Crennan and Bell JJ). As the second respondent submits:

Neither the text nor the context of s 4 of the RFA Act should be construed as providing that [as the applicant submits]:

an RFA that was in force when the RFA Act was enacted ceases to be an RFA for the purposes of the Act after expiry of the original terms of the RFA, unless any agreement that materially extends the term of the RFA (or alternatively extends the term by at least 20 years and potentially in perpetuity) was entered into having regard to assessments of the matters identified in paragraph (a) of the definition that are relevant to the region or regions.

(Second Respondent’s Written Submissions (R2S) at [2].)

67    There is nothing in the text of the RFA Act to suggest that the Parliament intended to impose any requirement for new “assessments” to be undertaken in order for an RFA to remain an RFA for the purposes of the Act where it is proposed to extend the term of the RFA or otherwise to amend it. Had the Parliament intended to impose any such limitations, it would have been a simple matter for it to have so provided expressly.

68    Fourthly, the applicant placed considerable weight on extrinsic materials, and the purpose of the RFA, as supporting its construction. The following two contextual features, in particular, were said to support the applicant’s construction:

(1)    the legislation was enacted with an expectation that assessments would cover a twenty-‍year period only; and

(2)    the legislation was designed to ensure that RFAs were based on comprehensive assessments of the particular regions in question.

69    However, with respect, those extrinsic considerations provide no warrant for departing from the language actually used in the provision.

70    With respect to the first point, it is true that the secondary materials refer to the ordinary duration of RFA Agreements being twenty years. Hence, the Explanatory Memorandum to the RFA Bill described the RFAs as having “a 20-year life”, and they were said to have delivered “20-year certainty in resource supply”: at p 2; see also pp 3 and 6. Those references reflect the original lifespan of the ten RFAs in existence when the RFA Act was enacted, all of which were said to “remain in force for 20 years”: see, e.g., NE RFA clauses 6 and 40.

71    However, those extrinsic materials do not necessarily support the applicant’s construction. As the respondents submit, whilst the NE RFA had an initial lifespan of 20 years, clause 8 of the NE RFA expressly envisaged that the RFA could be amended with the written consent of the parties and, in particular, provided in clause 6 that the parties were to determine the process for extending the agreement for a further period as part of the third five yearly review. While the Eden and Southern RFAs were not in evidence before me, the clear inference from the materials before the Minister, including the Assessment Report, is that each of these RFAs included essentially the same mechanisms for amendments to be made them, including extensions to their term.

72    In line with this, in enacting the RFA Act, the Parliament recognised in s 10(3) of the RFA Act that RFAs could be amended, but did not expressly limit the amendments which could be made (save for certain express limits imposed on the Commonwealth concerning compensation in s 8 of the RFA Act, and also by implication that the amendments could not have the consequence that the amended agreement no longer met the definition of an RFA in s 4 of the RFA Act). In particular, the RFA Act did not make it a condition that an RFA be in force for a specified or maximum duration only; nor did it otherwise exclude amendments to the duration of an RFA. To the contrary, the capacity to extend the agreements is consistent with and promotes the purpose of the RFA Act in reinforcing the long-term certainty which the RFAs were intended to provide for forestry management in the RFA regions as against a historical background of conflict between industry and environmental and conservation interests. The absence of any constraints on the capacity to amend and extend such agreements, therefore, must be taken to manifest the purpose of the Act: Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378 at [25] (French CJ and Hayne J).

73    This is particularly so given that the RFA Act is concerned with attaching certain legal consequences to intergovernmental agreements which may and do contain unenforceable obligations, and are intended to further the broadly expressed objectives stated in paragraphs (b), (c) and (d) of the RFA definition. The balancing of those objectives must occur, furthermore, having regard to the potentially conflicting, broadly expressed values in paragraph (a). In that sense, the RFAs of their nature represent a compromise or balancing of the competing interests of conservation and the environment on the one hand, and “forest and forest products industry operators and their workforces [and] recreational forest users” on the other hand, regarding the use, management and conservation of forests and forest resources: Explanatory Memorandum at 4.

74    Those contextual matters render highly unlikely any implied intention by the Parliament to fetter the means by which the Commonwealth and other federal entities might seek to resolve the potentially conflicting values and interests over time through the negotiation of amendments to existing RFAs. In line with this view, the Full Court in Bob Brown Foundation held at [49] that:

As paras (a) to (e) of the definition of “RFA” indicate, an RFA is concerned with matters of environmental and economic policy. While such matters could be the subject of legally enforceable obligations, they could also be (and perhaps would more readily be) matters of a political nature, often involving compromise between competing policy considerations and interests, not intended to be the subject of adjudication by the courts.

75    Similarly, in endorsing the NF Policy Statement, the Commonwealth, State and Territory governments stated that they committed their respective governments “to implement, as a matter of priority, the policies in it for the benefit of present and future generations of Australians”. However, at the same time they acknowledged that “implementation of policies requiring funding will be subject to budgetary priorities and constraints in individual jurisdictions”.

76    Furthermore, as the Full Court accepted in Bob Brown Foundation at [52], the NF Policy Statement was also cognisant of the likely need to accommodate future changes in forest management and the need for adaptive processes, stating that:

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.

77    In short, therefore, as the Full Court in Bob Brown Foundation at [53] held:

Consideration of the [National Forest Policy Statement] assists with understanding that an RFA, as referred to in the RFA Act, is likely to contain provisions which “essentially depend on matters of principle or policy into which obviously financial and economic considerations must enter” (South Australia v Commonwealth (1962) 108 CLR 130], per Dixon CJ at 147) and that the legislative scheme contemplates the revision and development of codes of practice and management plans as knowledge changes.

78    These contextual considerations lend strong support to the view that the Parliament intended to leave open the possibility that the Commonwealth and State or Territory parties to an RFA could negotiate amendments to existing RFAs, including to extend their duration, without imposing constraints upon that process, save relevantly that an RFA must continue to meet the definition of an RFA. The fact that the RFAs were originally negotiated on the basis that they would endure for a period of 20 years, subject to agreed extensions, affords in my view no basis for inferring that the Parliament intended to fetter the process by which they might be extended.

79    Similar issues affect the applicant’s reliance on the second contextual factor, namely, that the legislation was designed to ensure that RFAs were based on comprehensive assessments of the particular regions in question. As the applicant submits, the purpose of paragraph (a) of the definition of RFA in s 4 is plainly to ensure that a decision of government parties to enter into an RFA is made on an informed basis insofar as the necessary assessments must address the values and principles specified in paragraph (a). However, that does not provide any support for effectively reading into the text a requirement for such assessments to be undertaken again, in whole or in part, where it is proposed materially to extend the duration of an RFA or otherwise to amend it. Instead the implication is that the Parliament left it to the government parties to decide what assessments, if any, might be undertaken before agreeing to amend an RFA.

80    In the fifth place, the applicant contends that the effect of construing the term “entered into” according to its ordinary meaning would be to give precedence to form over substance, because it would open the possibility that the government parties could avoid undertaking new assessments if the form of a change is to extend an existing RFA, rather than entering a new RFA altogether. That submission should not be accepted.

81    It is clear that if an RFA were amended so that it no longer met the conditions in the statutory definition of an RFA, it would no longer constitute an RFA for the purposes of the RFA Act. Approvals for forestry actions impacting on matters of national environmental significance would therefore have to be obtained in accordance with the EPBC Act and relevant export control laws. Furthermore, while it is unnecessary to decide the issue, an argument might be made that the amendments to an RFA are so extensive that, as a matter of substance, the agreement is plainly a new RFA. However, that was not the contention put in this case, and indeed the applicant expressly disavowed the making of that case: T20.29–‍31.

82    Absent these possibilities, however, to recognise a distinction between entering an agreement and varying an agreement for the purposes of s 4 of the RFA Act does not prioritise form over substance but gives effect to Parliament’s clear intention to impose conditions upon the entry into an RFA which it has not seen fit to impose when an RFA is amended.

83    Finally, the NE RFA and other RFAs in place when the RFA Act was enacted form part of the context against which the RFA Act falls to be construed. That is so given, as I have earlier explained, that the purpose of the RFA Act was to give effect to certain obligations of the Commonwealth under the RFAs and to preclude the Commonwealth from terminating an RFA otherwise than “in accordance with the termination provisions of the RFA”: s 7 of the RFA Act. It is therefore significant that, for example, clause 6 of the NE RFA provides that “the process for extending the Agreement for a further period will be determined jointly by the parties as part of the third five-yearly review” (emphasis added). The fact therefore that the RFA Act did not require that any amendment to extend the duration of an RFA have regard to fresh assessments of the kind referred to in Condition (a) in order to continue to be an RFA for the purposes of the RFA Act therefore assumes significance. It can be assumed that the Parliament was aware of these terms, and the possibility that RFAs might be substantially extended, but intentionally chose not to impose limits on the government parties’ ability to make those extensions.

84    For all of these reasons, the applicant’s construction of the RFA Act must be rejected. Given that the applicant’s case depended on its success on this first issue, this conclusion is sufficient to dispose of the application for declaratory relief. The remainder of these reasons address issues 2 and 3 on the alternative basis that the applicant correctly submits that an assessment was required.

8.    ISSUE 2: DOES AN “ASSESSMENT” NEED TO BE EVALUATIVE AND REASONABLY CONTEMPORANEOUS TO SATISFY THE DEFINITION OF AN RFA?

8.1    Overview of the parties’ submissions

85    The applicant contends for “similar reasons” to those advanced with respect to issue one above (AS at [40]), that for an agreement to meet the RFA definition, the assessment of the matters in Condition (a) must be:

evaluative, based on the gathering of relevant information, reasonably contemporaneous to the date the relevant decision is made, and addressing risks to the identified environmental values known to be relevant to the region/s in question. Again, were it otherwise the purpose of the provision – to inform the decision – would not be fulfilled.

In the applicant’s submission, any failure to meet these conditions means that the intergovernmental agreement will not, or, if amended, will not continue to, meet the definition of an RFA for the purposes of the RFA Act.

86    The applicant’s submissions principally rely on the requirement in Condition (a) that, to meet the RFA definition, the parties to the RFA must “hav[e] regard to assessments of the following matters that are relevant to the region or regions” (emphasis added). The applicant contends that “the notion of ‘assessment’ refers to an opinion or evaluation which has measured or evaluated the five matters” in Condition (a) and that this “involves a process of acquiring (measuring) and considering (evaluating) relevant information” (AS at [41]). The applicant further contends that the requirement for reasonable contemporaneity “is implicit in the textual requirement that there are ‘assessments of the following matters that are relevant to the region or regions’” (emphasis added). In this regard, the applicant submits that:

(1)    to be relevant, the information must be directed to the five identified subject matters in Condition (a) of the statutory definition; and

(2)    to be relevant to the regions, they must be reasonably up to date, given that it is in the nature of the five subject matters, such as the state of old growth and wilderness, that they will change over time.

(AS at [42].)

87    The applicant contends that this construction again best aligns with the purpose of the RFA definition, being to ensure that the Commonwealth is able to make an informed decision about changing matters of environmental significance before entering an RFA.

88    On the other hand, whilst accepting that the Commonwealth and the State were required to conduct assessments of the matters in Condition (a) when entering into an agreement for that agreement to fall within the definition of an RFA, the respondents submit that the sufficiency of those assessments is not a matter subject to judicial scrutiny. In the respondents’ submission, neither the text nor context of the RFA Act indicate that Parliament specified any particular content or standard with which assessments of the matters listed in Condition (a) must comply.

8.2    Disposition of Issue 2

89    Applying the principles of statutory construction outlined above, and on the assumption that the applicants’ construction on the first issue is correct contrary to my earlier findings, the applicant’s construction of the RFA definition with respect to issue two must be rejected. In my view, there is no implicit requirement in the text that an assessment must be sufficiently evaluative and contemporaneous in order to satisfy Condition (a) of the RFA definition.

90    Three preliminary points should be made at the outset.

91    First, the question of whether the agreement is an RFA for the purposes of the RFA Act, including whether the matters in Condition (a) are met, is not a question in respect of which the RFA Act has vested a power and/or conferred a duty on a specific officer of the Commonwealth to determine. There is no decision which is the subject of a challenge by way of judicial review. References at various points in the applicant’s submissions to “the relevant decision” are, therefore, with respect misconceived. Rather, as the State submits, the present proceeding (R2S at [20]):

is a challenge to the effectiveness of an intergovernmental agreement by which the Commonwealth intended to disapply certain of its regulatory requirements on the basis of a political judgment that matters of Commonwealth concern are capable of being sufficiently advanced through a forest management framework agreed with the State.

92    Secondly, that notwithstanding, it was not in issue that it is within the jurisdiction of the Court to determine whether an intergovernmental agreement in fact satisfies the conditions in the RFA definition, given that the RFA Act attaches legal consequences to an RFA which meets those conditions, including Condition (a).

93    Thirdly, as the parties accept, in its ordinary meaning the phrase “to assess” means to measure or evaluate. That the word “assessments” in Condition (a) accords with this meaning is also common ground between the parties and rightly so in my view. However, that does not answer the question of whether, as the applicant contends, the legal effectiveness of the RFA under the RFA Act depends upon the quality and sufficiency of the assessments to which regard must be had under Condition (a).

94    In my view, when the question posed by Condition (a) is considered in context, it is clear that the quality and sufficiency of the assessments, as opposed to the fact of assessments on the matters specified by Condition (a), are intended to be matters for political judgment only. That is so for essentially three reasons.

95    First, the context in which an RFA is entered, and particularly the regulatory framework which governs an RFA region, must be appreciated in construing the RFA definition. In this regard, as the Full Court held in Bob Brown Foundation at [60], [t]he purpose of the RFA Act was never to be the sole source, or even the primary source, of measures to protect [State’s] native forests, nor threatened species. … there is a broader suite of protective measures in force in Tasmania”. The same applies with respect to NSW. Thus, within the complex international, national and state regulatory framework applying in NSW with respect to forestry management, the State is the principal regulator with respect to areas subject to an RFA. The State performs that function pursuant to the NSW Forest Management Framework which is comprised of legislation, policy, regulatory instruments, and programs directed to regulating and supporting sustainable forest management in the State. The NSW Forest Management Framework was explained in detail in the Overview of the New South Wales Forest Management Framework August 2018 (NSW Framework Overview) which was attachment J to the Prime Minister’s Brief. Key legislation underpinning the NSW Forest Management Framework included (at the time of entry into the Variation Deed): the Forestry Act 2012 (NSW); the Plantations and Reafforestation Act 1999 (NSW); the Protection of the Environment Operations Act 1997 (NSW); the Environmental Planning and Assessment Act 1979 (NSW); the Local Land Services Act 2013 (NSW); the Biodiversity Conservation Act 2016 (NSW); the National Parks and Wildlife Act 1974 (NSW); and the Heritage Act 1977 (NSW).

96    In turn, as the State submits, several Commonwealth laws, including the EPBC Act, the Export Control Act and the RFA Act, may affect the management of forests in NSW, notably those laws are directed to matters of national environmental significance such as compliance with Australia’s international obligations concerning the environment. They do not purport to provide a comprehensive regulatory framework in relation to forest management or to duplicate the requirements of State law. Thus, for example, s 3 of the EPBC Act provides that in order to achieve the objects of the Act, among other things the Act:

(a)    recognises an appropriate role for the Commonwealth in relation to the environment by focussing on Commonwealth involvement on matters of national environmental significance and on Commonwealth actions and Commonwealth areas; and

(b)    strengthens intergovernmental co-operation, and minimises duplication, through bilateral agreements; and

(c)    provides for the intergovernmental accreditation of environmental assessment and approval processes; and

….

(g)     promotes a partnership approach to environmental protection and biodiversity conservation through:

(i)    bilateral agreements with States and Territories; …

97    In line with these objects, the operative provisions of the EPBC Act require Commonwealth environmental approvals for actions likely to have a significant impact relevantly on matters of national environmental significance (see s 11 and Part 3 of the EPBC Act) save where alternative means have been adopted in pursuit of the objects of the EPBC Act, such as through:

(1)    bilateral agreements between the Commonwealth and a State or Territory (Part 4, Division 1; Part 5); or, more relevantly,

(2)    the entry into a Regional Forest Agreement (Part 4, Division 4).

98    It follows, as the Full Court explained in Forestry Tasmania v Brown [2007] FCAFC 186; (2007) 167 FCR 34 at [61] and as the Explanatory Memorandum accompanying the Environment Protection and Biodiversity Conservation Bill 1999 indicates, that “the way in which the objects of the Act will be met in relation to [forestry operations in RFA regions] is to be ascertained by reference to the relevant RFA.” In other words, an RFA provides an alternative mechanism by which the objects of the EPBC Act can be achieved by way of an intergovernmental agreement allocating responsibility to a State for regulation of environmental matters of Commonwealth concern within an agreed framework. It is important therefore to reiterate that entry into an RFA does not result in a regulatory void with respect to any particular forestry region on matters of national environmental significance.

99    It also follows that neither a bilateral agreement nor an RFA authorise the taking of any specific action that may impact on the environment or exempt any specific actions from being regulated. As such, this proceeding is not akin to an administrative law challenge to an approval authorising a person to perform an action which would be unlawful absent that authorisation in contrast, for example, to the approvals regime in Part 3 of Chapter 2 of the EPBC Act.

100    Secondly, it is against these important contextual considerations that the conditions imposed by the RFA definition fall to be construed. These considerations explain why the requirement in Condition (a) is to have regard to environmental, indigenous heritage, economic and social “values” and “principles” of ecologically sustainable management relevant to the particular region (emphasis added). The potential for conflict between these broadly expressed values and principles—the economic and the environmental in particular—is obvious, and the balancing of them is inevitably political, indicating that the requirement to have regard to the assessments is intended to be “an open-textured one” and policy driven: First Respondent’s Written Submissions (R1S) at [42]. As the Full Court held in Bob Brown Foundation at [49] (and it bears repeating):

As paras (a) to (e) of the definition of “RFA” indicate, an RFA is concerned with matters of environmental and economic policy. While such matters could be the subject of legally enforceable obligations, they could also be (and perhaps would more readily be) matters of a political nature, often involving compromise between competing policy considerations and interests, not intended to be the subject of adjudication by the courts.

101    Thus Condition (a) does not require that environmental impacts be assessed, consistently with the purpose for which the assessments are being undertaken. Nor does it identify any particular requirements with which assessments of the values and principles in subparagraphs (i) to (v) must comply, the content of those assessments (save for requiring that they assess the specified values and principles relevant to the region), or any standard by which the Court could determine the adequacy or sufficiency of the assessments. Yet, as the Commonwealth submits, it was open to the Parliament to have expressly specified the content of the assessments required to meet Condition (a) by reference, for example, to the assessment methodology adopted in the Comprehensive Regional Assessments, if it had intended to impose requirements to that effect; equally it was open to the Commonwealth to have imposed procedures to be followed in the preparation of assessments, such as expert or public consultation, but it elected to impose no such requirements.

102    Further, there is nothing in the text of the RFA Act to suggest that regard must be had to “reasonably contemporaneous” information; nor would that standard readily be implied. For one, the standard would not afford a clear and precise basis on which to determine whether or not an intergovernmental agreement is an RFA for the purposes of the RFA Act (as the Commonwealth submits (R1S at [46])). In addition, there may be circumstances in which non-contemporaneous or historical information may still be “relevant” to the region. For example, it may provide a baseline for an assessment of environmental values. Alternatively, there may be no more recent information available on a particular component of a value or principle, bearing in mind that it is self-evidently not a straightforward matter to obtain comprehensive and up-to-date data on broadly expressed values and principles with respect to vast geographical areas.

103    Thirdly, the applicant’s construction would undermine the purpose of the RFA Act to provide certainty for forestry management in the RFA regions, instead inviting uncertainty as to whether an RFA, in fact, exists. That would be so, even where, in compliance with Conditions (d) and (e) of the RFA definition, the agreement is expressed to be for the purposes of providing long-term stability of forests and forest industries and an RFA, and even where assessments of the five matters in Condition (a) had ostensibly occurred.

104    That construction would be particularly antithetical to the purpose of promoting certainty for those persons conducting forestry and industry-based operations in RFA regions. In the event the assessments in respect of the purported RFA was not sufficiently contemporaneous and evaluative, those persons would potentially be unknowingly subject to statutory obligations under Part 3 of the EPBC Act notwithstanding the existence of an apparent RFA. The question of the existence or non-existence of an RFA would depend upon the sufficiency of the process by which the assessments to the intergovernmental agreement had been undertaken, which (unlike environmental impacts of particular actions) are not matters within the knowledge or control of those in the industry. Indeed, the fact that Conditions (d) and (e) require that an intergovernmental agreement state that it is for the purpose of providing long term stability and an RFA strongly suggests that the Parliament intended that industry participants should be entitled to conduct their affairs on the basis that the agreement is an RFA without being required to delve into the sufficiency of the process whereby the agreement was reached.

105    In short, in my view these considerations militate that, while as a matter of fact regard must be had to assessments of certain “values” and “principles” when entering into an intergovernmental agreement in order to meet Condition (a), the quality and sufficiency of those assessments are matters for political judgment. Rather, the Court’s role is limited to determining whether, objectively speaking, regard was had to assessments of the values and principles referred to in Condition (a) of the definition of an RFA.

9.    ISSUE 3: THE APPLICANT’S COMPLAINTS ABOUT THE ASSESSMENTS

9.1    The issues

106    With respect to issue three, the applicant alleges that any assessments which occurred before the execution of the NE RFA Variation Deed were deficient in three respects, as a consequence of which they were not properly “assessments” for the purposes of Condition (a) of the definition of an RFA, namely, that:

(1)    there was no assessment of the likely impacts of climate change on environmental values in the regions conducted ahead of entry into the Varied RFA notwithstanding that the Commonwealth knew that climate change had already had a significant impact on Australia’s natural environment and “with continued warming, the impacts of climate change will compound existing threats to forest ecosystems including: habitat loss and degradation, invasive species, diseases and pathogen is, changes to fire regimes and drought” as agreed in the SAF at [14](i) (ground one);

(2)    the Assessment Report before the Prime Minister did not evaluate the potential impacts of the Varied NE RFA on endangered species and ecological communities, or contain or evaluate reasonably contemporaneous information about these matters (ground two); and

(3)    no contemporaneous measurement or evaluation of old growth and/or the principles of environmental sustainable management (ESM) in relation to old growth was carried out and, in particular, the Assessment Report failed to evaluate contemporaneous data about the existence, location and status of growth areas, instead relying on data from the CRA process, on an assumption that there has been no change in that data (ground three).

107    In my view, the evidence establishes that the Assessment Report and accompanying materials attached to the Prime Minister’s Brief addressed each of the values and principles referred to in Condition (a) of the definition of an RFA. That being so and there being no issue that the Prime Minister had regard to the Assessment Report, the applicant has not established that Condition (a) was not met.

108    Before explaining why I have reached this conclusion, three preliminary matters should be addressed.

109    First, I have already rejected the applicant’s contention that, in entering in the Variation Deed to vary the NE RFA, it was necessary for regard to be had to assessments of the matters referred to above which were “evaluative, based on the gathering of relevant information, reasonably contemporaneous to the date the relevant decision is made, and addressing risks to the identified environmental values known to be relevant to the region/s in question”. For the reasons given in relation to issue 2, the question for the Court is not to assess the sufficiency of the assessments. Rather, the question is whether, objectively speaking, regard was had to assessments of the values and principles relevant to the regions. My consideration of issue 3 therefore proceeds on the basis that this approach is correct, assuming that it was necessary in the first place for regard to be had to an assessment for the purposes of Condition (a) before entering into the Variation Deed.

110    Secondly, it was not in issue that the Prime Minister had regard to the Assessment Report at Attachment E to the Prime Minister’s Brief, as directed in the Brief. This was noted by the Prime Minister in accepting the recommendations to agree to the proposed variations to the NSW RFAs. The Brief also recommended that the Prime Minister “consider additional information” before making decisions on the variations to the NSW RFAs, including the NE RFA. Leaving aside material subject to legal professional privilege, this additional information comprised a summary of the joint public consultation process (Attachment H), the NSW Framework Overview discussed earlier at issue two, the independent review of the report on progress on the implementation of the NSW RFAs for the second and third five-yearly reviews 2004-2014 (Attachment K) (being the most recent reviews), and the joint Commonwealth and NSW response to the independent review (Attachment L). It can be assumed (and neither party submitted otherwise) that the recommendation that the Prime Minister also consider this material was accepted by him. Amongst other things, that is because the Prime Minister “noted” the recommendation that he review the decision-making requirements and advice outlined in and attached to the Prime Minister’s Brief. The focus of the applicant’s challenge was therefore upon the contents of the Assessment Report itself.

111    Thirdly, as earlier explained in issue two, the Assessment Report relied among other things upon published data from various sources including the NSW RFA annual reports, the five-yearly reviews of the NSW RFAs, the joint government response to the latest independent five-yearly review of the NSW RFAs, and the NSW Forest Management Framework.

9.2    Ground 1: Climate change

112    As ultimately argued in written and oral submissions, the applicant alleges first that the assessments to which regard was had in executing the Variation Deed did not amount to assessments of:

(1)    “environmental values”, because they do not contain a reasonably contemporaneous assessment of the projected impacts of climate change on those values; or

(2)    the “principles of ecologically sustainable management”, because they do not contain an assessment of the impacts of climate change on forests and species listed under the EPBC Act in the North East region.

113    With respect to the first ground, the short point is that no expert evidence was led on the basis of which the Court could make an assessment of whether the information was out of date or not relevant by reason of not being reasonably contemporaneous. It follows therefore that the first ground has not been established, quite apart therefore from the fact that no requirement of reasonable contemporaneity can be implied into Condition (a) in any case.

114    Further and in any event, the parties agreed that the Commonwealth was aware of, and had published material recognising, Australia’s weather and climate were changing in response to a warming global climate system and that this was projected to continue with serious adverse environmental impacts. In particular, materials published by the Commonwealth before the execution of the NE RFA Variation Deed recognised that:

a.    temperatures will remain high for many centuries;

b.    climate change is one of the greatest pressures faced by the Australian environment, and that it interacts with other pressures, resulting in cumulative impacts and amplifying other threats;

c.    climate change had already had a significant impact on the natural environment in Australia, including on flora and fauna, fire regimes, and ecosystem structure;

d.    if warming in Australia continues to increase, the impacts of climate change are likely to worsen.

(SAF at [15]; see also SAF at [13], [14] and [16].)

115    The NF Policy Statement acknowledges “the need, identified in the National Greenhouse Response Strategy, to manage forests so as to maintain or increase their ‘carbon sink’ capacity and to minimise the emission of greenhouse gases from forest activities”: at p 8. The JANIS Report (at p 9) also accepted the need for flexibility to allow for changes to the CAR reserve system in response to changes in knowledge and biota through climate change.

116    Condition (a) of the definition of an RFA does not refer to climate change; nor is climate change apt to be described as a “value” or a “principle”. Rather, climate change is more appropriately described as a phenomenon that (as described in the Statement of Claim) has certain impacts or effects. Accordingly, the question is not whether climate change itself was the subject of assessments, or whether specific matters relating to climate change were assessed (cf AS at [54]–[61]). To hold otherwise would elevate climate change to the status of a matter listed in Condition (a) of the definition of an RFA. Rather, the question is whether, objectively speaking, the materials to which regard was had before entry into the Variation Deed contained assessments relevant to the Upper North East and Lower North East regions of (relevantly) “environmental values” and “principles of ecologically sustainable management”.

117    It is plain on the evidence that that question must be answered “yes”.

118    First, under the heading “Method”, the Assessment Report (at p 16) explains that:

Underpinning the NFPS, the RFA Act, and the RFAs themselves are the principles of ecologically sustainable forest management (ESFM). These principles can be directly mapped to the criteria established in the Montréal Process. The Montréal Process indicators relating to these principles are used in a range of RFA and other reporting, and are used in this document as measures to demonstrate the accumulated changes over time to relevant NSW RFA matters.

The relationship between the Montréal Process indicators, RFAs, CRAs and this assessment of Matters is shown in Figure 0.1.

This Assessment of Matters uses published data from various sources which also report using Montréal Process Indicators, such as NSW RFA annual reports and reviews, NSW Forest Agreement annual reports and national State of the Forests reporting. This provides consistency over time to compare the relative measures.

119    I interpose that the Assessment Report noted that the Commonwealth, as a signatory to the Montréal Process, also reports under Montréal Process obligations: at p 27.

120    The Report then explained the mapping of the Montréal Process criteria against the principles of ecologically sustainable forest management (ESFM) by identifying those principles of ESFM which were relevant to assessing each of the Montréal Process criteria as follows:

Table 0.1 Comparison of Montréal Process Criteria with the principles of Ecologically Sustainable Forest Management used in NSW RFAs

121    Table 0.2 (pp 18–26) then identified the relationship between the individual indicators under the Montréal Process on the one hand, and the RFA matters for consideration in the RFA Act, on the other hand. That is, the Assessment Report maps each Montréal Process Indicator against each of the five matters listed in Condition (a). The Assessment Report relevantly explained that where possible, the report “provides indicator information at discrete points over the life of the current NSW RFAs at an RFA regional level”. Thus for example, with respect to relevant matters in paras 4(a)(i) (environmental values) and (v) (principles of ESM) of the definition of an RFA, Table 0.2 explained that the applicable Montréal Process Indicators included (under the heading “1.1 Ecosystem diversity”): 1.1a area of forest by forest type and tenure; 1.1b area of forest by growth stage; 1.1c area of forest in protected area categories; and 1.1d fragmentation of forest cover.

122    In addition, also under the subject of Method, the Assessment Report explained that:

Linkages to other Processes

A number of processes have produced complementary information aimed at reporting on sustainable management of forest ecosystems. These include the reporting against Montréal Process Criteria and Indicators such as Australia’s State of the Forests reporting, and Australian and New South Wales State of the Environment reporting, and NSW reports such as the former Department of Environment and Climate Change’s State of the Parks Report and the former Forest NSW’s Social, Environmental and Economic Report.

In a separate process New South Wales also reports on NSW Forest Agreements and Integrated Forestry Operations Approvals as required by the Forestry and National Park Estate Act 1998 (NSW). The review of Forest Agreement/Integrated Forestry Operations Approvals includes consideration of the ESFM criteria and indicators specified in each NSW Forest Agreement, being identical to the sustainability indicators referred to in the NSW RFAs.

…

Montréal Process Implementation Group for Australia (MIG) indicators

Under the RFAs, reporting against criteria and indicators is carried out in accordance with A Framework of Regional (Sub-national) Level Criteria and Indicators of Sustainable Forest Management in Australia, developed by the Montréal Process Implementation Group for Australia (MIG). The 1998 indicators current at the signing of the NSW RFAs were updated in 2007 in Australia’s Sustainable Forest Management Framework of Criteria & Indicators 2007 – Policy Guideline. This provided the seven criteria and 44 indicators currently in use. Mapping of these to the international criteria is shown in Appendix 1.

123    In short, the principles of ESFM were directly mapped to the criteria established in the Montréal Process. The Montréal Process indicators relating to these principles (which are used in a range of RFA and other reporting) were used in the Assessment Report “to demonstrate the accumulated changes over time to relevant NSW RFA matters” in line with the stated purpose of the Assessment Report: at p 16. That framework thus establishes the methodology under which each of the matters in Condition (a) were assessed upon execution of the NE RFA Variation Deed.

124    Secondly, the remainder of the Assessment Report applies this Method by addressing seriatum each of the values and principles identified in Condition (a) and relevant Montréal Process indicators, before summarising its conclusions with respect to each value and principle (at pp 372–378). For example, in the context of assessing environmental values, the report addressed all the matters specified in Condition (a)(i) of the RFA definition, including old growth. That assessment occurred by, amongst other things, applying the Montréal Process indicator 1.1b (area of forest by growth stage), drawing on the original documentation produced as part of the CRA process and subsequent reports including State of the Forest Reports, State of the Environment reports, the independent five-yearly reviews of the NSW RFAs and other relevant data (at pp 28–60). With respect to old growth specifically, those assessments resulted in the conclusion (at p 189) that:

Old growth values were one of the criteria used to establish the CAR reserve system under the NSW RFAs. Of the 2.54 million hectares of old-growth forest identified as part of the CRA process in the three NSW RFA regions, a total of 1.1 million hectares (45 per cent) was already protected under formal reservation (the NPWS (NPWS) estate) before the NSW RFAs were signed.

By mid-2001, after all three NSW RFAs came into effect, a total of 1.9 million hectares (78 per cent) of the old-growth forest identified in the CRA process was protected under the CAR reserve system (which includes Formal Reserves, Informal Reserves, and Regional Prescriptions for forest management on public land). By mid-2016 a total of 2.0 million hectares (80 per cent) of the identified old-growth forest is protected under the CAR Reserve system.

The renewed NSW RFAs will continue to protect old growth values in both the CAR reserve system and through ecologically sustainable forest management in State forests through the NSW Forest Management Framework. The draft NSW IFOA [integrated forestry operations approval] explicitly states that forestry operations are prohibited from all old growth forests in RFA regions.

(See also the overall conclusion on environmental values at p 189–193 and 373–372.)

125    Those conclusions, based on an extensive consideration of relevant information, satisfy the requirement that there be an “assessments of” environmental values relevant to the region or regions.

126    Thirdly, in any event, there was no failure to consider climate change insofar as climate change mitigation was concerned. For example, in the context of addressing principles of ecologically sustainable management, the Assessment Report made several findings with respect to Montréal Process indicator 5.1a, entitled “Contribution of forest ecosystems and forest industries to the global greenhouse gas balance”. Under that heading, the Assessment Report found among other things that “Carbon dynamics in forest ecosystems are affected by the impacts of climate change” and accepted that plantations “contribute significantly to the global greenhouse balance via additional carbon sequestration, especially if planted in previously cleared lands”: at p 363. It also found that “[t]he carbon dynamics of HWPs [harvested wood products] in NSW has been the focus of a number of studies that have significantly improved knowledge of the role wood products in NSW play in climate change mitigation efforts” (at pp 363–364). However, the Assessment Report found that:

There is insufficient, systematic data available that can be used to estimate the total contribution of forest ecosystems and forest industries in the RFA regions and NSW as a whole to the global greenhouse balance consistently since 1999. However, FCNSW has made publicly available estimates of carbon sequestered both in native forests and plantations under their management for a number of recent years (e.g. FCNSW 2018). It is important to note that a significant proportion of forests under management for production are in fact not available for harvest, due to a range of factors (e.g. presence of threatened species, aboriginal values, proximity to riparian zones, rainforest areas). For example, in the latest FCNSW annual report (2016-17), of the 2 million hectares of forests managed by FCNSW, 946,150 hectares (or 47.3% of the total) was deemed as unavailable for harvest due to the reasons given above.

127    Nor was the need for climate change adaptation overlooked. Significantly, in its conclusion on ESFM under the heading “Apply best available knowledge and adaptive management processes”, the Assessment Report (at p 370) found that:

The draft NSW RFA renewal documents include new clauses relating to climate change. Through these variations the Australian and NSW governments recognise the need to manage forests to maintain or enhance the contribution of all elements of the forest estate to the effective management of carbon within the carbon cycle. The governments also acknowledge that climate change adaptation needs to be integrated into forest management to build resilience and manage climate risks, and meet the objectives of ESFM.

(Emphasis added.)

128    As such, the Assessment Report recognised the relevance of climate change mitigation and adaptation to assessing the values and principles to which regard must be had under Condition (a) and acknowledged that NSW and the Commonwealth accepted the need to integrate climate change adaptation into forest management. As to the last of these points, the Independent review of the report on progress with the implementation of the New South Wales Regional Forest Agreements for the second and third five-yearly review 2004 – 2014 (2018) (the 2018 Independent Review) at p 20, which was the then most recent independent five yearly review, recommended that:

Climate change and risk

The RFAs and the Report make a passing mention of climate change and the associated risks. Predicted hotter and drier conditions for NSW are likely to affect all values in both State forest and conservation reserves. This is likely to increase pressure on ecological sustainability, with damage compounding when the forest is disturbed. A key risk is the potential for more frequent high intensity bushfires over large areas.

Recommendation – The Parties ensure future RFAs fully consider the risks associated with climate change and agencies plan, monitor and report on changes made to forest management practice to adapt to the changing environment.

(Emphasis in the original.)

129    In their joint response to the 2018 Independent Review, the Commonwealth and NSW agreed that the proposed variations to the NE RFA “include[d] commitments to consider and respond to the risks associated with climate change”: Joint Australian and New South Wales Government response to the Independent review of the report on progress with the implementation of the New South Wales Regional Forest Agreements for the second and third five-yearly reviews 2004-2014 (2018) (the 2018 Joint Response) at p 11. That response then details several measures to advance the “integration of climate change adaptation and mitigation into biodiversity conservation measures and the management of the forest state across NSW”. The 2018 Independent Review and the 2018 Joint Response were considered by the Assessment Report and were also before the Prime Minister.

130    Significantly, the Commonwealth and NSW’s agreement as to the need to consider and respond to climate change is embodied in clause 44 of the Varied RFA, providing that:

The Parties agree that ESFM is an objective which requires a long term commitment to continual improvement and that the key elements for achieving it are:

…

(c)    An integrated, complementary and strategic Forest Management Framework capable of responding to new information, including climate change risks and adaptation responses.

(See also clauses 48(g)(i) and 48(i) of the varied NE RFA.)

131    Thus, by clause 72B, the State agreed “to manage its Forests in accordance with the NFPS objectives and policies as they relate to climate change, adaptation and carbon.” Further, by clause 72C, the parties expressly acknowledged that:

(a)    climate change is driving more extreme weather events that will impact on Forest Management, including Biodiversity and Listed Species and Communities, resource availability, and risk management for projected increases in frequency and magnitude of hazards including fire, floods, storms, sea level rise and heatwaves;

(b)    integrating climate change adaptation into Forest Management is required to build resilience and manage climate risks and meet the objectives of ESFM; and

(c)    the need to manage Forests to maintain or enhance the contribution of all elements of the Forest Estate to the effective management of carbon within the carbon cycle.

132    Thus, notwithstanding the complaint by the applicant that the Assessment Report did not include an analysis of the impacts of climate change with reference to listed forests and species, the Assessment Report recognised the relevance of climate change mitigation and adaptation to the assessment of values and made findings relevant to the proposed Varied RFAs with respect to those issues. Further, the Varied RFA itself acknowledged the impact of climate change on biodiversity, and listed species and communities, and noted that State’s agreement to manage its forests having regard to the impact that climate change is having on forest management.

133    It follows that the evidence establishes that before entry into the Varied NE RFA, in the context of considering environmental values and the principles of ESM, regard was had to the impacts of climate change as was ultimately reflected in the terms of the Varied RFA itself. As I have explained, the sufficiency of those assessments do not fall to be considered. Nor was expert evidence led by which the sufficiency of the assessment could, in any event, be assessed. The Court’s task is to examine whether those assessments in fact occurred. On the evidence, it was plain they did.

9.3    Ground 2: Endangered species

134    The applicant’s second ground is that the relevant assessments did not have regard to “endangered species” (being one of the environmental values listed in the RFA definition), or the principles of ESM insofar as those principles concerned endangered species.

135    In this regard, Part 2 of the Varied NE RFA inserted a number of new provisions with respect to endangered species as follows:

Listed Species and Communities, including threatened flora and fauna

26E     New South Wales will use best endeavours to ensure that the Forest Management Framework provides for the protection of Listed Species and Communities.

26F     The Parties, recognising that priorities can change in light of new information, will continue to consult on the priorities for:

(a)     Listed Species and Communities, Forest Ecosystems, and Threatening Processes (further information at Attachment 3);

(b)     the preparation of all Statutory Conservation Planning Documents relevant to this Agreement; and

(c)     research on Listed Species and Communities, Forest Ecosystems, and Threatening Processes.

26G     New South Wales will use best endeavours to ensure that any new or altered elements of the Forest Management Framework are developed and implemented over the term of the Agreement for Listed Species and Communities to:

(a)     provide for the maintenance of the relevant species;

(b)     have a sound scientific basis;

(c)     give consideration to relevant determinations made by the New South Wales Threatened Species Scientific Committee or Fisheries Scientific Committee;

(d)     be consistent with relevant Statutory Conservation Planning Documents; and

(e)     take note of public comment.

26H     New South Wales will use best endeavours to ensure that the State’s Statutory Conservation Planning Documents and Regulatory Instruments that include management actions, prescriptions or protections for Listed Species and Communities in accordance with the Forest Management Framework, will:

(a)     be maintained, implemented and updated on an as needs basis to provide ongoing protection for Listed Species and Communities; and

(b)     be made publicly accessible.

136    The applicant advances ground 2 on the basis that the Assessment Report to which regard was had in entering the Varied RFA did not contain a “reasonably contemporaneous” assessment of:

(1)    how or where endangered species and ecological communities listed under the EPBC Act were distributed across the North East region;

(2)    areas of potential and/or significant habitat for listed flora and fauna in the North East region;

(3)    the conservation needs of listed flora and fauna species, and ecological communities; and

(4)    the likely impacts of harvesting operations that would be permissible under a varied NE RFA on listed flora and fauna species, and ecological communities.

(AS at [73].)

137    However, as was the case with respect to ground 1, no expert evidence was led on the basis of which the Court could assess whether the information relied upon in the Assessment Report was out of date or not relevant by reason of not being “reasonably contemporaneous”. For example, it is not demonstrated that the historical information was no longer relevant to an assessment of environmental values or that there was more recent data available with respect to endangered species than that which was considered. In short, quite apart from the difficulties in implying any such requirement, the allegation rises, with respect, no higher than the level of bare assertion.

138    The applicant also challenges the sufficiency of the Assessment Report to meet Condition (a)(i) (environmental values, including endangered species) and (v) (principles of ESM) of the RFA definition on the basis that it fails to engage in a sufficient evaluation of data. Rather in the applicant’s submission, the Assessment Report:

purports to ‘assess’ endangered species and ecological communities … by simply tallying and tabulating the total number of threatened EPBC listed species and ecological communities that were known or likely to occur in the NSW RFA regions, categorising them into a small number of high level groups (e.g., “flora”, “fauna”). The report identifies whether the identified species/communities had conservation advices and/or recovery plans (or both). That tells nothing of their status at a point in time, nor of their actual or predicted trajectory. The report then reproduces three maps: two showing the modelled potential coincidence of all EPBC listed flora and fauna species across the NSW RFA regions respectively, the third showing the modelled potential coincidence of all listed ecological communities. All three aggregate the data, simply counting the number of species or ecological communities in a particular location, and how many species or communities exist across all locations. They rely on data from 2011. They do not tell a meaningful story about any species at all, let alone as at 2018.

The Assessment Report lacks basic details such as whether the status of species known to occur within the North East region is documented as improving, deteriorating, stable or unknown. The Assessment Report simply refers to the conservation advices and/or recovery plans and contains no evaluation or analysis of them (nor any indication that such analysis had been undertaken in preparing the report).

The Assessment Report does not contain any evaluation of the potential impacts of a further NE RFA on species and communities known to occur in the North East region, or even on endangered species and ecological communities generally (including the likely future impacts of the threatening agents and processes identified above and their interplay with forestry operations).

(Court Book references omitted.)

139    The Assessment Report is also criticised on the basis that the data is incomplete, referring to examples where the Assessment Report acknowledges the lack of available data, and that the section of the Assessment Report on endangered species comprises only 17 pages, and is not limited to information relevant to the NE Region: Applicant’s Written Submissions in Reply at [21]; AS at [70].

140    The applicant accepts that relevant assessments contained consideration of the level of protection provided for by the NSW Forest Management Framework. However, in the applicant’s submissions, those assessments are not adequate to have assessed “endangered species” for the purposes of the RFA Act. Rather, the applicant contends that what was required was “an assessment of species and communities” relevant to the region, and not an assessment “of a regulatory framework”: AS at [72] (emphasis added).

141    So to frame the issue, however, is immediately to misstate the condition imposed by paragraph (a) of the definition of an RFA and impermissibly to invite the Court to embark upon a review of the merits of the Assessment Report. Rather, at the risk of repetition, what is required is an assessment of “values” and “principles” to which regard must be had in entering an RFA which involves a fundamentally political decision, namely, whether to enter into an intergovernmental agreement displacing the approvals processes under the EPBC Act for certain actions impacting on matters of Commonwealth concern. Accordingly, the core issue for the government parties in entering into an RFA is whether those matters otherwise subject of EPBC regulation are capable of being sufficiently advanced or addressed through a forest management framework agreed with the State. It is in the context of addressing those considerations that an assessment of the various values and principles specified in Condition (a) of the RFA definition is required, including, relevantly, with respect to endangered species. That precisely such an assessment was made is clear from the Assessment Report, as I now explain and accords with the Assessment Report’s statement at the outset of its purpose. That assessment in turn was supplemented by the further detail provided by the State in the NSW Framework Overview at attachment J to the Prime Minister’s Brief.

142    The Assessment Report considers “endangered species values” under the broader heading “Environmental Values”. It approaches that assessment by considering first the means by which the EPBC Act protects Australia’s native species and ecological communities, namely, by providing for (p 71):

•    identification and listing of threatened species and ecological communities

•    development of conservation advice and, where appropriate, recovery plans for listed species and ecological communities

•    development of a register of critical habitat identification

•    recognition of key threatening processes

•    development of threat abatement plans where appropriate.

143    Further, the Assessment Report notes that, once listed, a threatened species of ecological community is recognised as a matter of national environmental significance and must be considered in the EPBC Act’s assessment and approval processes, unless exempted from those processes under s 38 of the EPBC Act (at pp 71–72).

144    The Assessment Report then considers how NSW threatened species and communities were historically, and are now, managed, identifying the following key components of the current scheme under NSW law as follows (at pp 73–74).

(1)    Since 2017, all current NSW threatened species are listed under the Biodiversity Conservation Act 2016 (NSW) (BC Act).

(2)    The BC Act establishes the NSW Biodiversity Conservation Program which consists of:

(a)    strategies to achieve the objectives of the Program in relation to each threatened species and threatened ecological community;

(b)    a framework to guide the setting of priorities for implementing the strategies;

(c)    a process for monitoring and reporting on the overall outcomes and effectiveness of the Program.

(3)    The assessment of extinction risk to species and of key threatening processes is undertaken by the NSW Threatened Species Scientific Committee established under the BC Act as an independent committee of scientists appointed by the Minister for the Environment. That Committee assesses which threatened species, populations of a species, and ecological communities, should be listed and their risk of extinction, and which threats should be listed as key threatening processes. It does this by using the common assessment method and applies at the “national scale”, i.e., such that all occurrences of the species within Australia are considered in the assessment.

145    Importantly, the Assessment Report finds at p 74 that:

Consistent with the BC Program and threat abatement plans under the Saving our Species program, the IFOAs [integrated forestry operations approvals] for public lands and Private Native Forestry Codes of Practice (NSW) (PNF Codes) for private lands contain measures designed to mitigate the impact of forestry operations on threatened species and threatened ecological species.

Threatened ecological communities, as listed by the NSW Threatened Species Scientific Committee are not available for timber harvesting as the National Parks and Wildlife Act 1974 (NSW) prohibits the picking or harming of all threatened ecological communities. The current IOFAs do not authorise any forestry operations in threatened ecological communities. As such, the threatened ecological communities mapped by the EPA continue to be unavailable for timber production. Most of these threatened ecological communities have been unavailable for harvesting for over a decade.

(Emphasis added.)

146    Contrary therefore to the submission at AS [69], it cannot be said that the Assessment Report lacks any information as to the sufficiency of the State system to protect listed species and communities.

147    Having then assessed the protection afforded to threatened species, threatened ecological species and threatened ecological communities by State law, plans, codes and approvals, the Assessment Report considers Indicator 1.2b of the Montréal Process, entitled “The status of forest dwelling species at risk of not maintaining viable breeding populations, as determined by legislation or scientific assessment”. Overall for the three NSW RFA regions, the Assessment Report finds (at p 76) that as of April 2018, there were 412 EPBC Act listed threatened fauna and flora species known or likely to occur within those regions. The Assessment Report then identifies the categories of critically endangered, endangered, and vulnerable flora and fauna assessed by the CRA separately for each RFA region and as recorded as at April 2018, finding (at p 78) with respect to the NE RFA that:

The North East CRA assessed more than 109 threatened flora and 144 fauna species. Fauna included the barking owl(Ninox connivens), masked owl (Tyto novaehollandiae), southern barred frog (Mixophyes balbus), and yellow bellied glider (Petaurus australis). Flora included the hairy quandong (Elaeocarpus williamsianus) and species of green hood orchid. Under the RFA, these species are protected within the CAR reserve system and through prescriptions.

As at April 2018, there were 302 listed fauna and flora species recorded within the North East RFA regions, of which 69.5% are flora species and 30.5% are fauna species (Table 1.11). Since the signing of North East RFA on 31 March 2000, 59 species have been added to threatened species list under the EPBC Act.

148    Significantly, the Assessment Report finds (at pp 79 and 83) respectively that:

Status of Listed Species recovery plans and conservation advice

Of the 412 listed threatened species known or likely to occur within the NSW RFA regions (Appendix 2), 410 have either a conservation advice, recovery plan or both to assist in species recovery (Table 1.12). National plans are being finalised for the grey-headed flying fox (Pteropus poliocephalus) and the long-nosed potoroo (Potorous longipes) (found in all three NSW RFA regions). The eight non-threatened listed migratory birds do not require a conservation advice or recovery plan.

…

Status of Listed Communities recovery plans and conservation advice

Of the 28 EPBC listed threatened ecological communities within NSW RFA regions (Appendix 2), all have either a conservation advice, recovery plan or both in place to assist in recovery. The Commonwealth Minister for the Environment has determined that for 12 listed communities with conservation advices, recovery plans are also required

149    Critically, as I have explained, the Assessment Report must be considered in light of the purpose that those assessments were intended to serve. In examining whether conservation advices or recovery plans are provided for listed species and communities in the NE RFA regions, the Assessment Report was assessing whether the State system provided at least an equivalent level of protection as would be available under Commonwealth legislation. That assessment was clearly relevant to the question of whether the Varied RFA satisfied environmental values, including for endangered species. That is because, as I have outlined above, the primary consequence of entry into the RFA was to displace the approvals processes for certain actions under the EPBC Act, in favour of a State regulatory framework. In that context, it is entirely logical and relevant for the assessment of endangered species to focus on the adequacy of the State regulatory framework to manage that concern. No criticism can be made of the Assessment Report, therefore, for so doing. The question of precisely what those conservation advices or recovery plans might appropriately contain from time to time were matters which the RFA and Varied RFA, once executed, intended be dealt with under State law and programs, and by State institutions, in accordance with the agreed framework in the RFA and in order to avoid duplication.

150    The Assessment Report examines various case studies under each of these headings and concludes (at p 189) with respect to endangered species values that:

The NSW RFAs address the conservation of endangered species through a system of conservation reserves and the management of habitat in areas outside the reserve system, including through a series of management prescriptions in harvest areas. Endangered species are further protected under the BC Act (following repeal of the TSC Act in 2017), Fisheries Management Act 1994 (NSW) (FM Act) and provisions in the IFOAs.

There are currently 412 threatened species and 8 non-threatened migratory birds listed under the EPBC Act that are known or likely to occur within the NSW RFA regions. Almost all listed species (99.5%) have a conservation advice and/or recovery plan to assist recovery. There are also 28 EPBC Act listed threatened ecological communities in the NSW RFA regions. All have conservation advices, recovery plans or both in place to assist in management and recovery. Since the signing of the first NSW RFA (Eden - 26 August 1999), 81 additional species in NSW have been listed as threatened under national legislation. Table 1.8 shows figures by NSW RFA region.

The renewed NSW RFAs will continue to provide for the protection of endangered species through the CAR reserve system and the NSW Forest Management Framework incorporating adaptive management and continual improvement. Research on endangered species will continue to be an important part of the adaptive management of forests in NSW RFA regions. Proposed research priorities to be listed in the renewed NSW RFAs include Matters of National Environmental Significance (which includes endangered species), forest ecology and the effectiveness of management prescriptions. Results of this research will be incorporated into management responses for a range of environmental values and will likely benefit the management of threatened species into the future.

The NSW IFOAs for public lands and PNF Codes for private lands contain measures designed to mitigate the impact of forestry operations on threatened species and threatened ecological communities. Threatened ecological communities, as listed by the NSW Threatened Species Scientific Committee, are not available for timber harvesting as the NPW Act prohibits the picking or harming of all threatened ecological communities. The current IFOAs do not authorise any forestry operations in threatened ecological communities.

The renewed RFAs will require that Matters of National Environmental Significance are reported on in each five yearly review. The proposed rolling extension mechanism in the renewed NSW RFAs creates an incentive for the continual improvement and adaptive management of endangered species values in NSW RFA regions.

151    Similarly, in assessing the principles of ESM, the Assessment Report concluded (at pp 369–370) that:

3)    Ensure legislation, policies, institutional framework, codes, standards and practices related to forest management require and provide incentives for ecologically sustainable management of the native forest estate

A robust NSW legal and institutional framework is currently in place that is supported by a range of Acts, Regulations, and policy mechanisms of relevant NSW agencies. NSW FMF is consistent with the requirements of the [NF Policy Statement] and ensures there is a strong regulatory and institutional approach. The EPA [Environment Protection Authority (NSW)] monitors [Forestry Corporation of NSW’s] native forestry operations to ensure they comply with the conditions in the IFOAs. The EPA reports annually on the compliance results and undertakes regular proactive audits which aim to identify good and poor forestry practices. In addition, the EPA conducts investigations when non-compliances are identified,

152    In short, this analysis reveals that the Assessment Report addressed precisely the issues to which Condition (a)(i) and (v) were directed being an assessment of “environmental values… including endangered species” and “principles of ecologically sustainable management”. It found in effect that the State law met those values in providing a robust legal and institutional framework by a suite of measures, including conservation advices and/or recovery plans to assist in management and recovery of threatened ecological communities, measures to mitigate the impact of forestry operations on threatened species and threatened ecological communities, and a prohibition on forestry operations in threatened ecological communities. As the Commonwealth submits, in so doing, the Assessment Report “provided a baseline for the Commonwealth and NSW to determine whether and how the NE RFA was to be varied in respect of its provisions dealing with endangered species”: R1S at [62]. The Assessment Report further found that the proposed rolling extension mechanism based on five yearly reviews would incentivise the continued improvement and adaptive management of those values in the NSW RFA regions. No more was required by Condition (a)(i) and (v) in order to provide assessments to which regard must be had in considering whether to agree to the Variation Deed, on the assumption that it was necessary to comply with Condition (a) before agreeing to the Variation Deed. Indeed, in light of the purpose of the RFA Act, conducting an assessment in that manner was, as I have found, both logical and relevant.

9.4    Ground 3: Old growth

9.4.1    The issue and the applicant’s submissions

153    The RFA definition requires an RFA to be entered into having regard, amongst other things to “environmental values, including old growth” (and that assessment must, as I have outlined, be relevant to the region). The term “old growth” is not defined in the RFA Act. The NF Policy Statement relevantly defines “Old-growth forest” as a “forest that is ecologically mature and has been subjected to negligible unnatural disturbance such as logging, roading and clearing”. That definition substantially mirrors that adopted in the NE RFA, which has consistently defined “old growth forest” by reference to the definition in the JANIS Report. The JANIS Report, in-turn, provides that “Old-growth forest is ecologically mature forest where the effects of disturbances are now negligible”: at p 14. All the parties accepted, rightly, that these are appropriate definitions of the term “old growth”, as used in the RFA Act.

154    The JANIS Report also recognised the “high value” which old growth forest can have for biodiversity such as by providing tree hollows, as well as its aesthetic and cultural values: at p 15. Specifically, the JANIS Report provided that:

Old-growth forest can have a high value for biodiversity and hence a substantial proportion of the remaining extent will be incorporated by applying the CAR criteria for biodiversity. For example, old-growth forests with high nutrient levels and moderate topography have been shown to be significant habitat for certain fauna …

155    By the third ground of their originating application, the applicant contends that the relevant assessments did not have regard to the environmental value of old growth or the principles of ESM because they did not contain a reasonably contemporaneous assessment of:

(1)    the area of old growth forest in the North East region, either generally or categorised by forest ecosystem type;

(2)    the actual or likely age class of forest ecosystems in the North East region;

(3)    the disturbance levels of forests in the North East region, either generally or by forest ecosystem type; or

(4)    the likely impacts of harvesting operations that would be permissible under a varied NE RFA on existing and “future” old growth.

(Applicant’s statement of claim at [62].)

156    In this regard, it was not in issue that the Commonwealth was aware when the NE Variation Deed was entered into that the health and extent of forest ecosystems may change over time through various agents and processes including climate change, bushfires, pests, and diseases, as recognised in the 2018 Independent Review at p 112 (attachment K to the Prime Minister’s Brief). More specifically, the vulnerability of old growth forests to change had been recognised in the JANIS Report (at p 15), which found that:

old-growth, as part of an ecological succession, is not static and cannot be maintained indefinitely merely through the reservation of existing examples of that age-class. The inclusion of old-growth in the reserve system should be seen in the context of the selection and reservation of an appropriate mosaic of age-classes, which, with ecological processes intact will have the potential to generate the old-growth of the future.

157    It was also agreed between the parties that other material that was published by, or provided to, the Commonwealth between the date on which the NE RFA was entered into and the date on which the NE RFA Variation Deed was executed also addressed the scale and impact of agents and processes affecting forest health and vitality: SAF at [22].

158    In light of the self-evidently correct proposition that old growth may change over time, the applicant submits that (AS at [76]):

Any assessment of old growth values involves not only an understanding of what old growth exists at a particular point in time, but also where areas of old growth might exist in the future. A reserve system with old growth in mind must have the potential to generate new areas of old growth in the future.

159    With respect to the overall protection of forests in NSW, the 2018 Independent Review stated (at p 107) that:

While overall the protection of the state’s forest is impressive there are concerns particularly with the overall decline of 4 million hectares in forest area over the period from 2006 to 2011 although this likely to be the way forest is assessed. The other concern is fragmentation of the forest with only 9% in natural condition and the overall assessment that the forest condition is deteriorating.

These descriptors of the forest condition need stronger definition and explanation. The base must be through mapping and narrative clearly defining of the causes and trends of deterioration. This mapping and analysis must be widely promulgated and provide an objective factual base and the trends for discussion to support management to improve the state of the forest.

160    As a result, the Review recommended that “Future NSW Agreements to require a detailed and well-presented analysis of the conservation status of the forest, include an explanation for any decline in health or loss of forest area”.

161    Relying upon those documents, the applicant submits that the Commonwealth was aware that old growth values in the North East region have been or were likely to be impacted by a range of agents and processes, and that further data and monitoring was required in order to properly understand the nature and extent of those impacts: AS at [80].

162    In the applicant’s submission, despite this knowledge of the changing state of old growth in the North East region, no contemporaneous measurement or evaluation of old growth and/or the principles of ESM in relation to old growth was contained in the Prime Minister’s Brief: AS at [75]–‍[76]. Rather, in the applicant’s submission, the Assessment Report “relied entirely on data from the CRA process” and effectively “overlays [that data] onto the protected areas network in order to calculate the total area of old growth forest located within protected areas by RFA region and according to forest ecosystem type at various points in time (25 January 1996, 30 June 2001, 30 June 206, 20 June 2011, and 30 June 2016)”: AS at [78]. As such, the applicant contends that the Assessment Report failed to evaluate contemporaneous data about the existence, location and status of old growth areas, “instead presuming there has been no change” and giving no consideration as to extent to which the existing reserve system will provide for future old growth forest: AS at [78]. The failure to have engaged in that form of assessment is said to mean that the Prime Minister’s Brief did not include assessments, within the meaning of s 4 of the RFA Act, relevant to environmental values or the principles of ESM concerning old growth.

9.4.2    Disposition of ground 3

163    In my view, the applicant not established that relevant assessments of old growth and ESM were not taken into account. That being so, ground three would also be dismissed.

164    First, I accept, and it was properly not in issue between the parties, that old growth forests are subject to change. Plainly, various agents—both human and non-human—can change the existence and extent of what can be classified as an old growth forest.

165    Secondly, it was also not in issue that the mapping of old growth forest areas was undertaken during the CRA process, and was not updated upon execution of the Varied NE RFA: R1S at [68]. This is expressly acknowledged in the Assessment Report (at p 29) which relevantly notes that:

the old-growth forest area identified during the CRA process between 1995-2000 has not been updated since, and therefore does not take into account any old-growth forest that has subsequently been subjected to disturbance such as fire, or any additional areas of old-growth forest subsequently identified. Changes in the area figures are due solely to changes of old-growth forest area in protected areas.

(I interpose that the Assessment Report does not define a “protected area”. However, as the NSW Framework Overview explains, the National Parks and Wildlife Act 1974 (NSW) “includes a number of categories for protected area, which allow different levels of sustainable visitor use” and “[p]ermissible activities in these reserve categories are determined by a set of management principles for each reserve category and by plans of management which must be prepared for each reserve”: at p 30.)

166    As the last sentence in the quotation from the Assessment Report at p 29 indicates, updated information was available and relied upon with respect to old growth in protected areas. However, updated information for old growth forests outside protected areas was not available. The Assessment Report further explained (also at p 29) that the extent of old growth forest in the NSW RFA regions was identified “through the spatial data available from the associated CRA process”. That data was obtained at various points in time following the initial CRA process, the changes to which were summarised in Table 1.1 (on p 29), which stated relevantly:

167    Table 1.1 therefore demonstrates that the majority of old growth forest in the RFA regions fell within protected areas as at 30 June 2016, which in the case of Lower North East was 91%. The following four tables (at pp 31–56) depict the “extent of old growth forest in each RFA region, by Forest Ecosystem, and the extent in protected areas at various time points before and after the respective RFAs were signed, including the most recent area as at 30 June 2016”: at p 29. Plainly, that reporting on old growth—in regions where the vast majority of old forest growth is located, and based on data obtained as recently as 2016—was an assessment of old growth that was relevant to the North East region.

168    Thirdly, as to the extent of protection afforded to old growth forest under State laws and processes, the Assessment Report found (at p 189) that:

Old growth values were one of the criteria used to establish the CAR reserve system under the NSW RFAs. Of the 2.54 million hectares of old-growth forest identified as part of the CRA process in the three NSW RFA regions, a total of 1.1 million hectares (45 per cent) was already protected under formal reservation (the NPWS (NPWS) estate) before the NSW RFAs were signed.

By mid-2001, after all three NSW RFAs came into effect, a total of 1.9 million hectares (78 per cent) of the old-growth forest identified in the CRA process was protected under the CAR reserve system (which includes Formal Reserves, Informal Reserves, and Regional Prescriptions for forest management on public land). By mid-2016 a total of 2.0 million hectares (80 per cent) of the identified old-growth forest is protected under the CAR Reserve system.

169    The 2018 Independent Review in this respect observed that the CAR reserve system established through the RFA process “has been a significant change in the management of the forest in the RFA areas”: at p 55. Further, the Assessment Report concluded as to the extent to which old growth forests were and will continue to be protected by the then proposed Varied NSW RFAs by virtue of State laws and processes that (at p 189):

The renewed NSW RFAs will continue to protect old growth values in both the CAR reserve system and through ecologically sustainable forest management in State forests through the NSW Forest Management Framework. The draft NSW IFOA explicitly states that forestry operations are prohibited from all old growth forests in RFA regions.

(Emphasis added.)

170    In this regard, it will be recalled that the IFOAs (Integrated Forestry Operations Approvals) are a component of the CAR reserve system. Significantly, the Varied NE RFA in turn requires that IOFAs prohibit forestry operations in all old growth forest as defined: see clauses 48(b) of the Varied NE RFA read with clause 13B of Attachment 1(A) (Upper North East region) and clause 17B of Attachment 1(B) (Lower North East region).

171    In this respect, as I found with respect to ground 2, it is logical and relevant for an assessment with respect to “environmental values, including old growth” and principles of ESM (as concerns old growth), to principally focus on the adequacy of the State regulatory framework with respect to those matters as they apply to the NE RFA regions. That is because, as I have outlined above, the principal consequence of entering an RFA is to displace the approvals process under federal legislation for State regulation. In those circumstances, it is entirely orthodox that an assessment of values and principles in respect of old growth would focus on the adequacy of State regulations, rather than a more particularised survey of old growth forest in the North East region.

172    Fourth, the applicant’s principal argument on this ground took issue with reliance on the data from the CRA processes. However, as the Commonwealth submits, the mere fact that the mapping of old growth forest areas was undertaken during the CRA process, and relied upon in the Assessment Report, does not demonstrate that the Report was not an “assessment” of old growth for the purposes of Condition (a). For the reasons I have earlier given, the RFA Act does not necessarily require that new data be obtained for the purposes of an assessment; nor is it for the Court to assess the sufficiency of the data that was relied upon. All that is required is that there are “assessments” of the specified matters “which are relevant to the region or regions”. As I have explained, those assessments may still be relevant, notwithstanding that old data has been used. That is particularly so where, as here, that data has been supplemented by more up-to-date information, even if not comprehensively so.

173    Furthermore and in any event, no expert evidence was led as to the inadequacy of using data obtained during the CRA process in assessing old growth values. In the absence of such evidence, having regard (among other things) to the methodology used in the Assessment Report and in light of the stated purposes of the Report, the applicant has not demonstrated that the Assessment Report objectively to assess old growth in a manner relevant to the regions.

174    In short, as the Commonwealth submits, the Assessment Report assessed the available data with respect to old growth by reference to an internationally agreed indicator, the Montréal Process, relying on data obtained in 2016 for at least the majority of old growth areas in the North East region, and identified how old growth was protected under the NSW Forest Management Framework. As such, the Assessment Report provided an assessment of old growth for the purposes of Condition (a).

10.    CONCLUSION

175    It follows that the applicant has failed on each of their substantive contentions and the application must be dismissed. In those circumstances, it is unnecessary to decide whether the grant of declaratory relief should be refused in the exercise of discretion, as contended by the respondents in their written submissions. I will allow the parties the opportunity to make submissions on costs, in the event that they are unable to reach agreement as to the appropriate orders as to costs.

Associate:

Dated:    10 January 2024