By Gregg Borschmann
The Federal Government is staring down the prospect of legal challenges to a series of forest agreements allowing logging in native forests across Australia.
The Commonwealth is concerned the science underpinning Regional Forestry Agreements (RFAs) in four states is “now quite old” and may no longer “remain valid”, documents obtained by the ABC reveal.
But the documents show a deal has been done with the states to “modernise” the RFAs, without doing any new science or “comprehensive regional assessments” where the logging is occurring.
Part of the reason outlined in the documents is that new assessments will be too “costly”.
A meeting brief prepared for NSW Lands and Forestry Minister Paul Toole for an August 30, 2017 meeting of Commonwealth forestry ministers in Tasmania reads:
“The Commonwealth is concerned that significantly altering existing RFAs may invite challenges to their validity, in the absence of new — and costly — Comprehensive Regional Assessments. Its preference is to extend the existing agreements. It is in both parties’ interests to avoid the need to revisit the costly CRA process.”
Over the past 20 years, as the Commonwealth has stepped back from regulating state-based forestry operations, the RFAs allow logging in native forests after certain conditions are met, such as protecting biodiversity and endangered species.
But the science used to make those environmental assessments is 20 years old and the Commonwealth has expressed concerns that as the RFAs are renewed this, “may invite challenges to their validity”.
‘Major concern’ for native forest timber industries
Ten RFAs currently exist between the Commonwealth and the state governments of New South Wales, Victoria, Tasmania and Western Australian — nine of which will expire over the next two years.
Two key RFAs expire next week in Victoria’s East Gippsland and Central Highlands logging areas, without any indication from Government about whether the agreements will be extended.
This is causing “major concern” for Victoria’s native forest timber industry.
Ministerial briefing notes released to the ABC under NSW freedom of information Government Information (Public Access) law, document various concerns about the “legal and political risks” associated with renewing the agreements.
The documents were prepared for the NSW Primary Industries Minister, Niall Blair, and Lands and Forestry Minister Mr Toole while they were participating in a series of meetings from late 2016.
Mr Blair and Mr Toole were meeting with Commonwealth forestry ministers to discuss the renewal of the RFAs, which were signed by then prime minister John Howard with various state premiers between 1997 and 2001.
A “contentious issues brief” prepared for Mr Toole ahead of a March 2017 phone call with the Assistant Minister for Agriculture and Water Resources, Senator Anne Ruston, reveals details of the Commonwealth’s concerns.
“In other jurisdictions, for example Tasmania, there are concerns regarding the assessments that underpin the current RFAs and the validity of this science for extended RFA negotiations,” the brief states.
Another meeting brief prepared for Mr Toole two weeks later outlined “matters of importance to the NSW Government” raised at a December 2016 meeting of ministers.
“Legal uncertainty as to whether the now-quite-old Comprehensive Regional Assessments (CRAs), that underpin the existing RFAs, remain valid for proposed extensions,” it states.
Revelations ‘damaging’ for Commonwealth
Danya Jacobs, senior lawyer with Environmental Justice Australia, says the revelations are damaging for the Commonwealth and make future legal challenges to the RFAs likely.
“The documents reveal governments admit there is legal uncertainty as to whether the … assessments remain valid for any extended RFAs,” Ms Jacobs said.
“But NSW and the Commonwealth are still intent on avoiding a fresh assessment — purportedly because of how much it would cost — and instead are aiming to lock-in future decades of logging on the basis of vastly outdated science.”
The Tasmanian RFA was renewed in August last year by Prime Minister Malcolm Turnbull and Tasmanian Premier Will Hodgman.
A summary prepared for the August 2017 meeting of ministers of “key learnings” from the renewal of the Tasmanian RFA reveals the Commonwealth is concerned about whether the new agreement “would continue to be an RFA”.
As a result, changes to the Tasmanian RFA were restricted, “to those matters that were important … to ensure that ‘forestry operations’ continue to be exempt from additional approvals [under federal environment law]”.
Former Greens leader Bob Brown has flagged his interest in legally challenging the extended Tasmanian RFA as a result of the revelations in the FOI documents.
“Despite the RFA, Tarkine rainforests are being logged right now,” Bob Brown campaign manager Jenny Weber said in a statement.
“We will be studying the legality of the RFA rollover in Tasmania that shut out the public.
“Bob Brown won the Wielangta case that challenged the Regional Forest Agreements but the politicians changed the rules. Unique native forests and endangered species continue to be comprehensively failed by governments who are meant to protect them.”
‘Commonwealth has no influence over forest management’
A well-placed source in NSW claims last year a top government official informally advised colleagues the renewal process had been poorly handled.
As a result, conflict over forests would be reignited in NSW.
The source claims current arrangements between the Commonwealth and the states make the RFAs vulnerable to legal challenge.
“The Commonwealth accredits the forest management system in each state, but it has no influence over the management,” the source told the ABC.
“That’s the Achilles heel of the RFAs. There’s no Commonwealth oversight, no interest with what is happening on the ground. They signed that away … effectively saying, ‘Whatever you do is good enough for us’.
“There is no process, it is a total blank cheque.”
Senator Ruston said the Australian Government, “undertook a risk assessment for the extension of the RFAs”.
“These included what steps needed to be taken in order to improve and extend RFAs,” Senator Ruston said.
“Actions include stakeholder consultation and developing best practice administrative processes.”
Questions were also put to Mr Toole.
His written response said in part the NSW Government believed, “the RFA model provides a robust framework for [the RFA renewals] and the sustainable management of our forests into the future”.
Asked if the Commonwealth and NSW governments had addressed any legal or political risks, the Minister said: “The NSW Government is confident in the legal validity of the current and renewed RFAs.
“Concerns raised through the public consultation and submission process, together with the outcomes of the independent review of the implementation of the current RFAs, will inform decisions on the content of the future RFAs.”
This piece was published by the ABC on 21 March 2018