Background to Court cases is usually fascinating, and the matter before the NSW Land and Environment Court, South East Forest Rescue Inc. vs Forestry Commission of NSW, is no exception.
In these proceedings, South East Forest Rescue Inc. is in part standing in the shoes of the NSW EPA, which the NSW Parliament authorises in the Forestry Act 2012 to ensure compliance with forestry approvals in State Forests.
The declaration sought in these proceedings seeks to alter the interpretation of delegated legislation that can only be approved jointly by the Minister for Forestry and the Minister for the Environment.
As the regulator, the NSW Environmental Protection Agency (NSW EPA) must ensure Forestry Corporation of NSW (FCNSW) complies with the protocols and conditions for forestry operations.
In 2019, following the bushfires in Southern NSW, the NSW EPA sought to redefine the use of the phrase ‘site-specific’ within the Conditions to create, in effect, a new Condition.
Whilst FCNSW took a consultative approach, which is part of the process for compliance, the NSW EPA took a stance that went beyond its legislative role. Of course, this was unsustainable.
Three years later, the same attempt to rewrite the conditions and protocols occurs, but with a difference. The NSW EPA appears to be using environmental activists to do what it cannot under the legislation. This conclusion is based on publicly available material and joining the dots.
The NSW EPA use rolling “Stop Work Orders” to change the CIFOA
The conditions are Coastal Integrated Forestry Operation Approvals (CIFOA) and can be viewed here (see GIPA EPA926 dated 30 October 2023).
Since June 2022, the NSW EPA has been using Stop Work Orders to attempt to force changes to the CIFOA following the finding of a carcass of a Southern Great Glider in a southern NSW forest seven months after any forestry operations were in the area.
This Stop Work order has been extended twice.
The critical issue is the interpretation of how ‘broadscale surveys’ within the terms of the Conditions of the CIFOA are to be conducted. This becomes apparent through the material that follows.
This material enables a reader to conclude that environmental activists within the NSW EPA (the Government sector) and the environmental activists not in the NSW EPA (non-government sector) are working together.
The objective is the closure of native forestry operations in NSW.
Freedom of Information inquiries disclose that environmental groups, including WWF and Hon. Sue Higginson MLC, have been writing to the NSW EPA demanding protection of the Southern Greater Gilder (SGG) by the closure of native forestry operations. There was an attempt to use the carcass of the SGG to implicate FCNSW operations as non-compliant.
In late 2023, a Freedom of Information request obtained the autopsy report on the carcass conducted by Taronga Zoo staff.
The report was highly redacted because of an ongoing investigation.
But an investigation into what?
There is sufficient commentary about the report that suggests the death was due to natural causes or the outcome of a predatory bird, such as the Powerful Owl, which is in the Southern NSW native forests.
The NSW EPA has disclosed no details concerning the investigations associated with the autopsy or the Stop Work Orders in any media releases.
Entries in the NSW EPA GIPA disclosure log (Freedom of Information) for 2023 on the Agency website end in October 2023.
There are no details in the Disclosure Log of any answers to Freedom of Information requests concerning the investigations, the autopsy, or the Stop Work Order issues.
However, there have been several public disclosures of details related to the investigations by the NSW EPA.
A Facebook entry on 27 October 2023 by the Nature Conservation Council of NSW (also known as Nature NSW) disclosed this:
“The EPA recently found 19 dens and 89 gliders in just one area Forestry Corporation was logging.
It is a legal requirement that a 50-metre exclusion zone from logging is created around the hollows that the endangered greater gliders used to nest in and sleep.
Forestry Corporation claims no evidence of gliders in any area they log. However, it has recently been revealed that the Forestry Corporation undertake surveys for this nocturnal marsupial during the day!
Sign the petition to force Forestry Corporation to survey for a nocturnal greater glider at night.”
Nature Conservation Council of NSW, known as Nature NSW, October 27, 2023.
Is this information made up? It could be given the issues of timing in the tenses used. Or it could be an accurate report of the NSW EPA investigation of what was found in a harvested compartment. If so, who was the source?
The level of detail in this Facebook entry indicates the writer was in touch with someone operational within the NSW EPA.
On 25 October 2023, two days before this Facebook entry, the NSW Parliament Portfolio Committee No 4 – Regional NSW held what is known as Budget Estimates.
Hon. Sue Higginson MLC (Greens), in questioning the Minister for Primary Industry, clearly knew about the NSW EPA Stop Work Orders in the Tallaganda State Forest. She asked about the ‘legal responsibility of Forestry Corporation to undertake broadscale surveys during harvest operations.’ (See page 21 of the uncorrected Transcript.)
Why was this question asked? It is a very technical question coming out of the CIFOA. There had been no NSW EPA press release on the issue.
The Minister had not done a press release on the matter. Aside from the actual CIFOA document, the only other would be the ‘chatter’ outside and inside the NSW EPA amongst environmental activists.
Hon Sue Higginson said this in Budget Estimates:
“On a brief analysis of the results of these surveys, it’s unbelievable that Forestry Corporation is not finding threated species when they go about these surveys. At the moment, you’ve got greater gliders being found in the south by citizen science and Forestry Corporation not recording the den trees. We’ve got stop work orders.”
The Hon Sue Higginson at NSW Budget Estimates.
Leaving aside technical issues that surveys are done before any operations, how does a member of the Greens Party, who is not part of the Government, see surveys that are Agency documents?
There is no record of any Freedom of Information Request by any party for this material in 2023. If Ms Higginson has not seen the surveys, how can she state such conclusions as in her question to the Minister for Primary Industry?
There can only be one reasonable and plausible explanation: without any alternative details, the NSW EPA officers are giving the native forest activists this information outside the Agency.
It is no surprise that the Summons currently before the NSW Land and Environment Court was filed on 15 January 2024, for which the preparation seems to have been started in October 2023.
The critical issue of the matter is ‘broadscale surveys as set out in the CIFOA.’
Is the NSW EPA aiding and abetting not-for-profit environmentalists and the members of the Greens Party to achieve what they cannot when they only have a compliance role under the relevant legislation?
The CIFOA has to be reviewed every five years. This year, this review is due.
Could it be that the NSW EPA is assisting environmental groups and the Greens party to give prominence to issues in the lead-up to the review?
Either scenario is possible. In the face of other evidence not available to the public, the NSW EPA appears to be playing hardball politics, leaking like a sieve, and to either the apparent ignorance or acceptance of the ALP Minister for the Environment.
One of the objectives of the NSW Public Service is for the government sector to be apolitical and professional in implementing the decisions of the Government of the day.
This raises the question, “What is the NSW ALP Government’s agenda for native forestry in NSW?
There is no doubt Minister Sharpe’s environmental agenda is dictated by the pressure from Sydney Inner City Greens, who are chasing ALP seats.
Of course, none of this concerns the facts associated with NSW native forestry.
- Wood Central is a neutral platform and will not take an editorial stance on the court action. However, it invites subject matter experts to provide contributors, who will be fact-checked before publication.
