NSW Must Change ‘Environmental Lawfare’ After High Court Decision

The recent decision, given on 9 April 2025, in Forestry Corporation of New South Wales v South East Forest Rescue Incorporated [2025] HCA 15, has raised concerns within the Australian forestry industry.

The judgment

In summary, the High Court’s decision concerns the statutory interpretation of the Forestry Act 2012 NSW, which determines if the common law right of ‘open standing’ was extinguished regarding Part 5B of that Act. This section of the Act is about timber harvesting under an integrated forestry operations approval in NSW native hardwood State Forests. That is the extent of the decision.  

‘Open standing’ refers to the common law right to seek relief from a court as a private person on a breach of a public duty. The right exists where a special interest can be shown, and this is a matter of fact.

Counsel for the Forestry Corporation of NSW submitted three questions for determination by the High Court. Essentially, these questions were:

• Can persons with a special interest have a common law right to commence proceedings unless that right is outset by legislation?
• Must a statute in respect to any common law right have “irresistible clarity” before a statute can removed or alter that common law right?
• With regard to the statutory scheme concerning Integrated Forestry Operations Approval (IFOA,) can persons with a special interest seek relief from the Court t to enforce any duty not to breach an IFOA

The first two questions sought clarification as to whether the right to ‘open standing’ had been removed from the Forestry Act 2012 NSW.   This argument was based on the proper construction of ss 69SB and 69ZA and Biodiversity Conservation Act 2016 (NSW), ss 13, 14 and 13.14A.  These sections removed either the statutory right to standing found within the NSW Environmental statutory law or conferred enforcement of Part 5B of the Forestry Act on the NSW EPA.

The High Court ruled that the Forestry Act did not remove the common law right to open standing to seek relief from a relevant court of any breach of an integrated forestry operations approval under the terms of the Forestry Act, NSW 2012.

The High Court’s judgement stated:

Open standing (common law right) issue

Their Justices did not adjudicate on the issue of open standing. But they did, by way of remarks, outline the law on the issue, noting that a ‘statutory scheme that creates and regulates public rights, duties or obligations may abolish or relax the common law requirements of standing or it may restrict or exhaustively identify the persons or class of persons who may commence proceedings to enforce those rights, duties or obligations. (para 12) (Emphasis added).

What flows from this is the NSW Forestry Act did not alter the common law right of open standing. This Act removed certain statutory rights to commence proceedings and gave a positive power of enforcement to the NSW EPA. However, it stopped there.

The High Court was not asked to adjudicate on the matter of open standing in NSW forestry cases.

The NSW Court of Appeal reviewed the open standing question and found legal standing did exist for the South East Forest Alliance. This overturned the Primary Judge in the Land and Environment Court and dismissed the argument that the finding of open standing granted to South East Forest Alliance was a legal precedent, i.e., new law. 

Instead, the Court of Appeal pointed to Pritchard J’s judgment in North East Forest Alliance Incorporated (INC1601738) v Forestry Corporation of NSW [2023] NSWLEC 124 (20 November 2023) saying “I would describe Pritchard J’s identification and application of common law standing principles in that earlier decision as to what constitutes a “special interest” as entirely orthodox and uncontroversial” (para 53 of South East Forest Rescue Incorporated v Forestry Corporation of New South Wales [No 2} [2024] NSW CA 113.)  Pritchard J’s grounds for determining if standing is available are set out in Paragraphs 93 – 136 of this judgment.

Any suggestion that these cases have altered the law concerning native forestry in NSW is inaccurate. NSW Forestry Law remains as enacted.

Lawfare – The Policy issue raised

The litigation commenced by the South East Forest Alliance and the North East Forest Alliance is now commonly referred to as environmental “lawfare.” 

The high-profile Santos case concerning the 262km Barossa underwater pipeline installation off the coast of the Northern Territory’s Tiwi Islands is the case in which it was claimed the pipeline would intersect with the submerged ‘Crocodile Man’ songline and the underwater resting place of the rainbow serpent. The Federal Court judge said the expert’s evidence of the cultural heritage map showed ‘artistic licence’. 

What the lawyers for Forestry Corporation of NSW argued in the High Court was that the intent of the legislation with respect to enforcement of part 5B of the Forestry Act was placed with the NSW EPA and other statutory rights to commence proceedings were removed i therefore the common law right was removed.

Whilst the extrinsic material to the relevant legislation did not address this issue, it does not necessarily mean that this intent to place the enforcement only with the NSW EPA, was not in the Cabinet papers or the drafting instructions.  It does seem unusual that statutory rights are removed to commence proceedings, and the common law right left in place.  This is somewhat inconsistent.

The remedy is to amend the two items of NSW legislation if the intent was to only have the NSW EPA as the ‘regulator”. 

It was the NSW Coalition in government that enacted both items of legislation.  The chances of the current ALP Government revising this are unlikely.  The Environment Minister who is in charge of the Biodiversity Conservation Act is Hon Penny Sharpe, and she would not be willing to exclude the ENGOs that form the protest groups.  The Minister for Agriculture, Hon Tara Moriarty, would require The Hon Penny Sharpe to agree to amend the provisions of the Forestry Act.  The Hon Tara Moriety is making no decisions on native forestry until the Great Koala National Park issue is resolved and the review of the native forestry industry is concluded. 

This is the status quo, even if the High Court decision is part of that mix. 

The NSW Treasury, in its last budget, provided funds to Forestry Corporation NSW for expected litigation costs, so they were expecting continuing lawfare. However, the NSW Treasury would prefer that allocated funds not be used due to budgetary pressures from public sector salaries in NSW and an increase in infrastructure project costs.

Why the NSW Parliament’s intent must be legislated?

The NSW Parliament did enact provisions for the NSW EPA enforcement of native forestry operations.  This legislation focuses the enforcement of Parliament’s intention into one agency.  However, it appears the poor drafting of the Bill resulted in enforcement being left open to persons with special interest.

The result is that particular environmental groups now use their “open standing” status to close down any NSW EPA-authorised harvesting operations. This clearly was not the policy intent behind the Forestry Act and its Part 5B.

These special interest groups have a major impact on the commercial operations of the Forestry Corporation of NSW. The litigation deprives it of revenue flow from harvesting operations.  It still has fixed costs.  The stoppages through lawfare impacts local communities where harvesting contractors are stood down.  Timber mills who purchase the harvested timber under contracts are impacted.  Some more than others due to the varying nature of each mills business model.

However, they have been operating on an average of 50% supply for nearly 2 years, desperately trying to keep all their staff employed.   This also flows through to communities, the Sydney-based timber merchants, and the building sector as low supply affects prices. This supply and demand pricing issue impacts inflationary pressures, as seen recently, central bank interest rate decisions.

In the NSW Upper House, the Greens MPs repeatedly say the Forestry Corporation of NSW is running at a loss. Although these statements do not accord with a proper reading of published financial figures, they are given unwarranted credibility. They disguise their real intent of closing native forestry in totally inaccurate financial arguments that have no basis.