The forestry industry appears to remain largely unaffected by the EPBC Reform. However, that change if litigation is launched by ENGOs under the Commonwealth’s new National Environmental Standards (NES) – now published for public comment.
Native forestry is, at the best of times, a complex matter. This complexity runs from constitutional limitations on Commonwealth power through to the variability of state government regulations, which extend down to the diameter measurements of trees permitted for harvest.
Environment Minister Murray Watt, however, has made three points clear:
- There will be no specific forestry National Environmental Standard.
- The new National Environmental Standards will apply to the forestry industry, and
- The current RFA exemption (in Part 4 of the Act) for approval under Part 9 of the Act (for matters in Part 3) will remain.
The idea that the Commonwealth legislation concerns the environment generally is incorrect. The EPBC Act and the NES only concern threatened species. This is due to a constitutional limitation imposed by the Commonwealth. The balance of environmental matters sits with the States and Territories. The Commonwealth does not have control over land use or forestry operations in the States or forestry operations under State control.
- Under the Reforms, the National Environmental Standards are a condition for approval (Part 9 of the Act).
- An approval occurs because an “action” is present (this refers to any itemised item in Part 3 of the Act).
- An “action” is an outcome or a likely outcome related to threatened species.
- The assessment of an NES in relation to an “action” must be a “net gain” meaning the concept of “nature positive.”
The Commonwealth’s powers in the environment area appear in the foreign treaty power in the Commonwealth Constitution. The only Treaties signed concern threatened species.
In one of the new standards called the Matters of National Environmental Significance (MNES,) there is an “unacceptable impacts test”. This test has two parts: ‘species’ and ‘habitat’. This test outcome will need to be mitigated or avoided before a project can be approved (or commenced in the case of forestry).
For threatened species an “unacceptable impact” is where the impact “seriously impairs” the “viability” of the species “to survive and recover in the wild in a particular region” being “seriously altered for the worse”.
Alternatively, the impact is likely to cause serious damage to “critical habitat” of the species, and the habitat is “irreplaceable” and necessary for the species to remain viable.
“Net gain” must be shown with each approval where there is a residual impact. Net gain is obtained by an offset and/or payment of a restoration contribution charge.
With regard to ‘forestry operations’, the immediate challenge for the Commonwealth Government is how are the NES conditions to an approval going to apply, when an approval is not required under the EPBC Act?
The Regional Forestry Agreements Act is part of the Commonwealth -State forestry arrangements regarding this exemption from the EPBC Act. The Commonwealth seeks to regulate forestry in the States relating to threatened species through these statutory instruments of Federal-State arrangements. The Commonwealth has the constitutional power over threatened species and the States have the control over the land mass.
Amending this Act is unlikely as altering the Regional Forestry Agreements between the Commonwealth and States, which operate on a five-year rotation, presents problems of creating new agreements and transitional periods.
The Commonwealth Government stated it supports a native forestry industry. Then it has to outline how it proposes the NES regime applies to the forestry sector. So far there has not been wide industry consultation on the issue. The challenge is the industry sector will require wide consultation.
Consultation on every aspect of the timber supply chain is important and required to understand the sector. This includes State Governments, private land holders, plantation owners and operators, harvest contractors and transport companies and saw millers and further processors. None of this is impossible, but it’s a challenge.
Continuing misinformation from ENGOs includes disregarding State Government regulations, the science of silviculture, misusing technical terms for publicity and distortion of public data.
Litigation, sometimes called lawfare, becomes a precise contest between and around the scientific findings of the impact of native forestry on threatened species and native habitat.
The gift from the federal government of the EPBC Reform to the forestry sector, will be watching the rise of the various ENGOs and the EDO try to establish common law standing of the enforcement of public rights. This will be funded using money raised through charitable and DTG provisions.
Expect to see them challenge Australia wide forestry operations on the basis of “viability” of species and serious damage to habitat.
