Division 4 of Part 4 of the EPBC Act, including section 38, the RFA Act and the National Forest Policy Statement
95 Division 4 of Part 4 the EPBC Act is headed "Regions covered by regional forest agreements". I propose to consider Div 4 of the EPBC Act, and the RFA Act together, as their content and purpose is inextricably linked. The same is true of the National Forest Policy Statement, to which the RFA Act refers.
96 I begin with some of the legislative history. At the commencement of the EPBC Act in July 2000, Div 4 and s 38 in particular were present in the scheme, but in a marginally different form:
Division 4 - Forestry operations in certain regions
Subdivision A - Regions covered by regional forest agreements
38 Approval not needed for forestry operations permitted by regional forest agreements
(1) A person may undertake RFA forestry operations without approval under Part 9 for the purposes of a provision of Part 3 if they are undertaken in accordance with a regional forest agreement.
Note: This section does not apply to some forestry operations. See section 42.
(2) In this Act:
regional forest agreement has the same meaning as in the Regional Forest Agreements Act 1999.
RFA forestry operations has the same meaning as in the Regional Forest Agreements Act 1999.
97 The Regional Forest Agreements Act 1999 (Cth) (which took the form only of the Regional Forest Agreements Bill 1998 (Cth)) was never enacted. The Bill (in s 3) had defined "RFA forestry operation" as follows:
RFA forestry operations means forestry operations that:
(a) are conducted in relation to land in a region covered by an RFA (being land where those operations are not prohibited by the RFA); and
(b) are conducted in relation to a forest (within the meaning of the RFA).
98 Paragraph (b) of this definition was not retained when the current RFA Act was enacted, but I do not consider its absence adds to or illuminates anything about the construction of s 38 and other relevant provisions.
99 It is worthwhile noting two matters about the original s 38. The first is that its form - "a person may undertake" is a formulation retained in many of the exception and exemption provisions in the EPBC Act. This form uses the active voice, and directs itself at the person undertaking the action. Examples from the current EPBC Act include ss 37 and 37M, to which I have referred above. The applicant did emphasise that the current form of s 38 uses the passive voice, and I discuss this submission below.
100 Aside from the change in formulation and voice, the substance of the exemption remains as it was enacted with the EPBC Act in 2000. The focus of the provision is on the undertaking of forestry operations: that focus is critical to the conclusion I have reached about the correct construction of s 38. It is of some weight in the constructional choice that this has been the focus of s 38, in its context in Pt 4 of Ch 2, since the introduction of the legislative scheme of the EPBC Act.
101 The process of inquiry into and assessment of forest in all regions around Australia, and the flora and fauna those forests supported, was a long and often contentious one. It was commenced under the predecessor legislation to the EPBC Act - the EPIP Act. This regime was given continuing effect by the Environmental Reform (Consequential Provisions) Act 1999 (Cth).
102 The terms of the EPIP Act were used as the vehicle for the assessment process resulting in RFAs. Some RFAs were concluded under that process prior to the commencement of the EPBC Act: the Tasmanian RFA was one such (see Wilderness Society Inc v Turnbull, Minister for Environment and Water Resources (2007) FCAFC 175; 166 FCR 154 (Branson, Tamberlin and Finn JJ) at [35].
103 The current form of Div 4 and s 38 commenced on 3 May 2002. These amendments resulted from the passage of the RFA Act.
104 Clause 1 of Sch 1 to the RFA Act repealed and substituted s 38 of the EPBC Act. It made some further consequential amendments to the EPBC Act to reflect the passage of the RFA and in particular the operative definition of RFA forestry operations.
105 Section 6 of the RFA Act as passed set out three pieces of federal legislation dealing with forestry operations or forestry products which would, because of enactment of the RFA Act and the system of RFAs across Australia, no longer apply in the same way. Two were the Export Control Act 1982 (Cth) (in relation to the export of "RFA wood") and the Australia Heritage Commissions Act 1975 (Cth) (in relation to forestry operations).
106 The third was the EPBC Act. Section 6(4) of the RFA Act as passed provided:
6 Certain Commonwealth Acts not to apply in relation to RFA wood or RFA forestry operations
…
(4) 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.
Note: This subsection does not apply to some RFA forestry operations. See section 42 of the Environment Protection and Biodiversity Conservation Act 1999.
107 Section 6(4) remains in this form.
108 The RFA Act states that one of its objects in s 3(a) is to give effect to "certain" of the Commonwealth's obligations under the various RFAs it had entered into with the States. Provisions in the RFA Act deal with termination of RFAs and the payment of compensation to States, tabling of RFAs and annual reports about each RFA and the obligation to publish information about them. Section 10A also required the responsible Federal Minister to establish a:
…comprehensive and publicly available source of information:
(a) for national and regional monitoring and reporting in relation to all of Australia's forests; and
(b) to support decision-making in relation to all of Australia's forests.
109 The RFA Act also created the Forest and Wood Products Council, a statutory body intended to assist in the development and co-ordination for the forest and wood products industry. VicForests is correct to emphasise that the system of RFAs, and the place given to them through the RFA Act was wider than simply the protection of the environment. The RFA Act, and the RFA system itself, were intended to create a new model through which the conservation, use and development of Australia's forest resources would occur. To recognise that fact is not inconsistent with giving s 38(1) of the EPBC Act, and s 6(4) of the RFA Act, a construction which advances the environmental protection and biodiversity conservation objectives of the RFAs, the RFA Act and the EPBC Act. Industry development objectives, and environmental protection and conservation objectives, are not necessarily mutually exclusive, and the RFA scheme does not make them so.
110 Another object of the RFA Act is to give effect to "certain aspects of" the National Forest Policy Statement: see s 3(b). The NFPS was first issued in 1992, and re-issued in 1995, after Tasmania - the last State to do so - endorsed the policy. The NFPS - unlike the RFAs- covers both private and public forests. The breadth of input, and adherence to the policy contained in the statement is set out in the foreword:
During the past decade there has been considerable debate, both within Australia and internationally, about global and domestic environmental issues, including the use and management of forests. The global focus culminated in the United Nations Conference on the Environment and Development in Rio de Janiero in June 1992, at which Australia endorsed the Global Statement of Principles on Forests and signed a number of conventions relating to Biological Diversity and Climate Change.
The Commonwealth, State and Territory Governments attach the utmost importance to sustainable management of Australia's forests. In order to achieve the full range of benefits that forests can provide now and in the future, the Governments have come together to develop a strategy for the ecologically sustainable management of these forests. The strategy and its policy initiatives will lay the foundation for forest management in Australia into the next century.
This Statement has been jointly developed by the Commonwealth, States and Territories through the Australian Forestry Council and the Australian and New Zealand Environment and Conservation Council in consultation with other relevant government agencies, the Australian Local Government Association, unions, industry representatives, conservation organisations and the general community. The Statement was signed by all participating Governments, with the exception of Tasmania, at the Council of Australian Governments' meeting, held in Perth in December 1992. Tasmania became a signatory to the Statement on 12 April 1995. The Statement has been developed concurrently with the development of the Ecologically Sustainable Development National Strategy and the National Greenhouse Response Strategy.
In endorsing this Statement, we commit our respective Governments to implement, as a matter of priority, the policies in it for the benefit of present and future generations of Australians. We acknowledge that implementation of policies requiring funding will be subject to budgetary priorities and constraints in individual jurisdictions.
111 The combination of needs and objectives to be served by the NFPS was recognised in the Introduction:
In developing this Statement, the Commonwealth, State and Territory Governments have been mindful of the many values that Australia's forests have, of forests' role in the full suite of ecological processes that sustain life on this continent and their function as habitat for a diverse range of flora and fauna, and of the contribution that forest-based activities make to the national economy and regional and local employment.
112 The NFPS also recognised, in the Introduction, the need to accommodate change in forest management, and the need for adaptation to changing circumstances:
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.
113 The NFPS then sets out four agreed approaches to forest management:
The objectives and policy initiatives are underpinned by the following agreed approaches to forest management:
• The Governments will set the regulatory framework for the use of native forests in order to achieve social and environmental objectives. Within those constraints, market forces should determine the extent of resource use and the nature of industry operations, within the parameters of government industry policy.
• Commercial uses of forests (including wood production) that are based on ecologically sustainable practices are appropriate and desirable activities. In this context, the establishment of plantations for wood production should be determined on the basis of economic viability and international competitiveness.
• The Governments will seek complementary management of forests for all uses through integrated strategic planning and operational management across agencies with responsibility for forests in Australia.
• There should be a sound scientific basis for sustainable forest management and efficient resource use.
114 Part 4.1 of the NFPS deals with what it describes as two of the "principal objectives" of the NFPS: the maintenance of an extensive and permanent native forest estate in Australia and the protection of nature conservation values in forests. The Statement goes on to describe how these objectives will be achieved:
The protection of the full range of forest ecosystems and other environmental values is fundamental to ecologically sustainable forest management. It entails the maintenance of the ecological processes that sustain forest ecosystems, the conservation of the biological diversity associated with forests (particularly endangered and vulnerable species and communities), and the protection of water quality and associated aquatic habitats.
The Governments recognise the unique nature of Australia's biota and that the natural inter-relationship between native flora and fauna is essential for the health of the forest ecosystem. Accordingly, they will manage for the conservation of all species of Australia's indigenous forest fauna and flora throughout those species' ranges, and they will maintain the native forest cover where a reduction in this cover would compromise regional conservation objectives, consistent with ecologically sustainable management. The Governments also recognise that maintaining the integrity of native forests and plantings in urban areas is important for conserving nature in those environments.
The Governments agree to manage public native forests for the protection of the range of other conservation values, such as wilderness and heritage values, cultural significance (including significance to Aboriginal people), and landscape and aesthetic attributes. State Governments have already made considerable progress towards meeting these objectives.
The Governments also acknowledge that a variety of uses of public native forests is desirable, provided those uses comply with the principles of ecologically sustainable development. The objective here is the management of public native forests so as to retain the full suite of forest values over time. The Governments acknowledge, however, that some uses, including non-commercial uses, may inevitably compromise other values, such as tourism and recreation values, at least in the short term.
115 Putting to one side how the NFPS nature conservation objectives would be achieved in private forests, in public forests, the NFPS identified two ways in which those consideration objectives would be achieved. First, through a "reserve system" setting aside parts of the public native forest estate as "dedicated nature conservation reserve systems to protect native forest communities, based on the principles of comprehensiveness, adequacy and representativeness". The NFPS states that this reserve system will "safeguard endangered and vulnerable species and communities", although it also notes (on p 7) that other areas of forest, outside the reserves, will also be protected to safeguard special areas and to provide links where possible between reserves or other protected areas. Thus, the second method identified was a system of what the NFPS calls "complementary management" in public forests outside reserves that are available for wood production and other commercial uses.
116 A national working group was to be established to identify the areas which should be set aside as reserves, based on the three criteria of comprehensiveness, adequacy and representativeness. The conservation of old growth forests and wilderness areas was to be given particular attention in the design of the reserve system: see page 9-10 of the NFPS.
117 The second identified way of achieving the Statement's conservation objectives - "complementary management" - was given the formal description in the NFPS of "Ecologically sustainable forest management and codes of practice". The NFPS described this concept at pp 10 -11:
Ecologically sustainable forest management will be given effect through the continued development of integrated planning processes, through codes of practice and environmental prescriptions, and through management plans that, among other things, incorporate sustainable-yield harvesting practices. The management plans will provide a set of operational requirements for wood harvesting and other commercial and non-commercial uses of forest areas, including conservation reserves and leased Crown land.
To ensure that nature conservation objectives are met in forests, the management of public native forests outside the reserve system will complement the objectives of nature conservation reserve management. Forest management agencies will continue to assess forest areas for the purpose of developing strategic management plans and, where necessary, operational harvesting plans. As a consequence of these forest assessments, areas that have important biological, cultural, archaeological, geological, recreational and landscape values will continue to be set aside and protected from harvesting operations or managed during operations so as to safeguard those values.
• Accordingly, and in keeping with the 'precautionary principle', the State Governments will undertake continuing research and long-term monitoring so that adverse impacts that may arise can be detected and redressed through revised codes of practice and management plans.
118 Towards the end of the NFPS, the government signatories set out the agreements they had reached about to implement the NFPS as described in this document. On pp 15-23, the NFPS describes the process of completing the "comprehensive regional assessments" to, amongst other matters, underpin the Comprehensive, Adequate and Representative Reserve System and wood production targets and the "collection and evaluation of information on environmental and heritage aspects of forests in the region", assistance to be given to forest industry development (including removing some export controls, as eventually occurred in s 6 of the RFA Act), and a range of other methods by which the policy objectives set out in the NFPS would be achieved. The NFPS then states (at p 21-22):
These assessments will provide the basis for enabling the Commonwealth and the States to reach a single agreement relating to their obligations for forests in a region. Commonwealth obligations 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.
….
The Commonwealth-State regional agreement resulting from the assessment will also cover guidelines for all aspects of ecologically sustainable management of the forests in question, taking into account the existing regulatory framework in the States and building on forest management strategies and practices. In this respect, the guidelines will cover, for example, management for sustainable yield, the application and reporting of codes of practice, and the protection of rare and endangered species and national estate values. They may also specify the levels and types of disturbance that are acceptable for a particular forest so as not to adversely affect national estate and other conservation values of that forest.
119 The NFPS was made well before the enactment of the EPBC Act. The NFPS refers to the predecessor federal environmental legislation: the EPIP Act.
120 The NFPS recognises the primary responsibility of the States for land use decision-making and management, but also acknowledges the Commonwealth's role in land use decision-making.
121 For example, at p 19 of the NFPS, the following statement appears:
The Commonwealth Government has a number of nature conservation and heritage obligations arising from Acts of Parliament and international conventions, and it needs to assure itself that the processes and mechanisms used allow it to honour its responsibilities and satisfy its interests.
122 I have spent some time describing the purpose and content of the NFPS because its implementation is one of the objectives of the RFAs, and once the relevant content and purpose of the NFPS is understood, it informs an understanding of the structure and content of RFAs themselves, the RFA Act, and the exemptions in s 6(4) and s 38(1) in particular.
123 I have set s 38 out already, but it bears repetition here. The current form of s 38 of the EPBC Act provides:
38 Part 3 not to apply to certain RFA forestry operations
(1) Part 3 does not apply to an RFA forestry operation that is undertaken in accordance with an RFA.
(2) In this Division:
RFA or regional forest agreement has the same meaning as in the Regional Forest Agreements Act 2002.
RFA forestry operation has the same meaning as in the Regional Forest Agreements Act 2002.
Note: This section does not apply to some RFA forestry operations. See section 42.
124 The current meaning of "RFA forestry operation" appears in s 4 of the RFA Act:
RFA forestry operations means:
(a) 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 are not prohibited by the RFA); or
(b) forestry operations (as defined by an RFA as in force on 1 September 2001 between the Commonwealth and Victoria) that are conducted in relation to land in a region covered by the RFA (being land where those operations are not prohibited by the RFA); or
(c) harvesting and regeneration operations (as defined by an RFA as in force on 1 September 2001 between the Commonwealth and Western Australia) that are conducted in relation to land in a region covered by the RFA (being land where those operations are not prohibited by the RFA); or
(d) forestry operations (as defined by an RFA as in force on 1 September 2001 between the Commonwealth and Tasmania) that are conducted in relation to land in a region covered by the RFA (being land where those operations are not prohibited by the RFA).
For the purposes of paragraph (b), the East Gippsland RFA (as in force on 1 September 2001) is taken to include a definition of forestry operations that is identical to the definition of forestry operations in the Central Highlands RFA (as in force on 1 September 2001).
125 It is paragraph (b) of this definition which is applicable to the circumstances of the current proceeding.
126 The Central Highlands RFA defines forestry operations as:
"Forestry Operations" means
(a) the planting of trees; or
(b) the managing of trees before they are harvested; or
(c) the harvesting of Forest Products
for commercial purposes and includes any related land clearing, land preparation and regeneration (including burning), and transport operations[.]
127 VicForests placed some emphasis on an implication it submitted arose from the text of s 4 of the RFA Act: namely, that a particular RFA could itself prohibit forestry operations in certain areas covered by that RFA. VicForests submitted the phrase "in accordance with the RFA" in s 38(1) should not be given the meaning for which the applicant contends, because, where the legislature had wanted specifically to refer to something permitted or prohibited, it did so in very plain language.
128 The remainder of Div 4 of Ch 2 of the EPBC Act has some bearing on the proper construction of s 38(1). Sections 39 and 40 (Subdiv B) deal with regions where no RFA has yet been concluded. Due to the slow progress of the negotiation of RFAs with various states in relation to a variety of forest regions, the EPBC Act needed to address two situations: the situation where there was a concluded RFA and the situation where there was not. Subdiv A and s 38 were directed at the former, Subdiv B (ss 39, 40 and 41) were directed at the latter. The purpose of ss 39, 40 and 41 of the EPBC Act is to recognise that as at July 2000, when the EPBC Act commenced, there were a number of RFAs that were yet to be concluded. That remained the case even in May 2002 when the RFA Act was enacted and the amendments to Div 4 introduced. The Court was informed by the Commonwealth that, as at the date of the trial of the separate question, only the RFA region known as South East Queensland (see s 41(1)(h)) engaged the operation of these provisions.
129 Section 39 states the purpose of Subdiv B expressly, in contrast to Subdiv A and s 38, which has no purposive provision. It provides:
39 Object of this Subdivision
The purpose of this Subdivision is to ensure that an approval under Part 9 is not required for forestry operations in a region for which a process (involving the conduct of a comprehensive regional assessment, assessment under the Environment Protection (Impact of Proposals) Act 1974 and protection of the environment through agreements between the Commonwealth and the relevant State and conditions on licences for the export of wood chips) of developing and negotiating a regional forest agreement is being, or has been, carried on.
(Emphasis added.)
130 The term "not required" reinforces the character of Div 4, like the other divisions in Pt 4, as a substitute protection regime for matters of national environmental significance affected by forestry operations. To say that approval, in a legislative scheme as prescriptive and prohibitive as the EPBC Act, is "not required" for a certain kind of action is explained by the existence in the scheme of a recognised substitute protection.
131 Section 40 in this subdivision retains the original formation of the s 38(1) exemption ("a person may undertake…": see s 40(1)), which is one textual indication telling against placing too much weight on the use of the passive voice in the current form of s 38(1), contrary to the emphasis given to this feature by the applicant. Further, since the active voice is used throughout the other exceptions and exemptions in Pt 4, aside from one matter, I do not consider the Parliament intended any different construction to be given because of the contrasting use of the active and passive voices.
132 That finding is subject to the importance, to which I return below, of the focus of s 38(1) on an RFA forestry operation. The use of the passive voice ("a RFA forestry operation that is undertaken…") increases the emphasis of the section on the particular "action" for which the exemption is provided. The "action" is the undertaking of a forestry operation, and no wider than that. As I set out below, it is that action - that conduct - which must be "in accordance with" an RFA.
133 Section 42 is a "stand-alone" provision in Div 4. It was the subject of consideration by a Full Court of this Court in Wilderness Society Ltd v Turnbull, Minister for the Environment and Water Resources [2007] FCAFC 175; 166 FCR 154. It is, so to speak, an exception from the exemptions. In other words, it reapplies the effect of the controlling provisions of the EPBC Act to forestry operations in three circumstances. It provides:
Subdivision C-Limits on application
42 This Division does not apply to some forestry operations
Subdivisions A and B of this Division, and subsection 6(4) of the Regional Forest Agreements Act 2002, do not apply to RFA forestry operations, or to forestry operations, that are:
(a) in a property included in the World Heritage List; or
(b) in a wetland included in the List of Wetlands of International Importance kept under the Ramsar Convention; or
(c) incidental to another action whose primary purpose does not relate to forestry.
134 It was the third of these circumstances which was in issue in the Wilderness Society case.
135 For present purposes, I note that the use of the two alternative phrases "RFA forestry operations" (if the region is covered by a RFA) and "forestry operations (if it is not) confirms that the focus in this entire division is on forestry operations as the "action" for the purposes of the EPBC Act and the definition of "action" in ss 523-524 of the EPBC Act.