Mundine v Forestry Corporation of NSW

aan v R [2022] NSWCCA 75; (2022) 108 NSWLR 17 Trives v Hornsby Shire Council [2015] NSWCA 158; (2015) 89 NSWLR 268 Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 Woolworths Ltd v Pallas NewCo Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707 Category: Principal judgment Parties: David Mundine (Applicant) Forestry Corporation of NSW (Respondent) Representation: Counsel: M Hall SC (Applicant) I Hemmings SC, with J McKelvey and E Bathurst (Respondent)

Solicitors: Pikes & Verekers Lawyers (Applicant) Norton Rose Fulbright Australia (Respondent) File Number(s): 2021/338920 & 2022/156044 Publication restriction: Nil

Mundine Challenges Forestry Operation Approvals

1. The apocalyptic Black Summer bushfires of the 2019-2020 bushfire season were the worst ever recorded in New South Wales ("NSW"). Over the course of several months people lost their lives, homes were destroyed, and millions of hectares were razed. Uncomprehendingly, an estimated one billion animals in NSW alone perished or were displaced by the fires. These included endangered and threatened animal, plant and insect species.
2. It is in this context that the applicant, David Mundine, seeks judicial review of the decision to grant approvals by the respondent, the Forestry Corporation of NSW ("FCNSW"), in respect of the following operational plans pursuant to the Coastal Integrated Forestry Operations Approval ("CIFOA") granted under Pt 5B of the Forestry Act 2012 for the purpose of carrying out the following forestry operations: 1. in proceedings 2021/338920, Harvest and Haul Plan for compartments CTR003 and CTR004 in the Cherry Tree and Cherry Tree West State Forest dated 1 September 2021, with Plan ID 200001029 ("2021 HHP"). The 2021 HHP was approved by FCNSW planning supervisor James Jaggers; and 2. in proceedings 2022/156044, Harvest and Haul Plan for compartments CTR005, CTR006 and CTR007 in the Cherry Tree and Cherry Tree West State Forest and Crown-timber land designated as compartment CR007 dated 6 April 2022, with Plan ID 200001062 ("2022 HHP"). The 2022 HHP was approved by FCNSW planning supervisor Matthew Howat.
3. The relief claimed is principally declaratory, namely, that each of the 2021 and 2022 HHPs are invalid and of no effect because of a failure to comply with ss 69L and 69M of the Forestry Act and because they are not operational plans within the meaning of condition 53 of the CIFOA. In addition, Mundine seeks a declaration that he has been denied procedural fairness by FCNSW in approving the 2021 and 2022 HHP absent prior consultation with him pursuant to clause 12 of annexure N of the relevant Indigenous Land Use Agreement ("the ILUA"). Finally, injunctive relief is sought restraining FCNSW from carrying out any activity until a valid operational plan has been prepared.
4. The CIFOA came into effect upon execution by the then Minister for the Environment and the Minister for Lands and Forestry on 16 November 2018 ("the Ministers").
5. An operational plan is a document which must be prepared by FCNSW pursuant to condition 53 of the CIFOA before forestry operations carried out under that approval can commence. The 2021 and 2022 HHPs are "operational plans" within the meaning of Protocol 39 (Definitions) of the CIFOA.
6. There are 40 Protocols to the CIFOA compiled by the NSW Environment Protection Authority ("EPA") which complement various conditions of the CIFOA and must be read with it and any relevant statutory provisions. This, and the statutory regime governing the challenge, is elaborated upon below.
7. The three grounds of challenge raised by Mundine are as follows: 1. first, the 2021 and 2022 HHPs were not approved in compliance with the mandatory preconditions to the exercise of power to approve an operational plan under condition 53 of the CIFOA because ("the absence of power ground"): 1. the HHPs were not able to achieve the principles of ecological sustainable forestry management ("ESFM") pursuant to s 69L of the Forestry Act and condition 14 of the CIFOA, including the precautionary principle; and 2. the HHPs failed to address operational requirements in sufficient detail to enable compliance with condition 14 of the CIFOA; 1. second, there was a failure to consider a mandatory relevant consideration in approving the 2021 and 2022 HHP, namely, the matters contained in s 69L(1) and (2) of the Forestry Act knowing that the principles of ESFM could not be achieved ("the mandatory consideration ground"); and 2. third, a failure by FCNSW to consult with, or disclose to, Mundine and/or the Ngulingah Jagun (Our Country) Aboriginal Corporation ("RNTBC") on its planned operations as obliged pursuant to the ILUA, and therefore, a failure to take into account the views of Mundine or the RNTBC, thereby denying Mundine procedural fairness ("the procedural fairness ground").

Judgment in North East Forest Alliance Incorporated v Forestry Corporation of NSW is Delivered

1. Shortly after the initial hearing in this matter in April 2023, I was required to take a substantial period of leave. In the interim, Pritchard J heard a similar challenge, albeit in relation to different compartments and instituted by another entity, with grounds relevantly identical to the first two grounds referred to above (that is, with the exception of the procedural fairness ground) (see North East Forest Alliance Incorporated (INC1601738) v Forestry Corporation of NSW [2023] NSWLEC 124). In that case, the Court dismissed the application for judicial review on all grounds.
2. In North East Forest Alliance Incorporated the first two grounds of review were as follows (at 5 and (2)): 5 In summary, NEFA's grounds of challenge are as follows: (1) Each of the Braemar HHP and the Myrtle HHP fails to address matters that are mandatory pre-conditions to the exercise of the power to approve an operational plan in accordance with condition 53 of the CIFOA: (a) specifically condition 14.1 of the CIFOA which requires that forestry operations be carried out in accordance with the principles of ecologically sustainable forestry management (ESFM); and (b) operational requirements in sufficient detail to enable the person proposing to undertake forestry operations to comply with the conditions of the CIFOA, specifically condition 14.1 (Ground 1). (2) Further and in the alternative to Ground 1, in purporting to approve the Braemar HHP and the Myrtle HHP, FCNSW (Mr Howat) failed to consider a mandatory relevant consideration, namely the ability of a person to carry out forestry operations in accordance with the principles of ESFM (Ground 2).
3. Given her Honour's findings on what were essentially questions of law directly applicable to the determination of the absence of power and the mandatory consideration grounds in the present proceedings, the matter was relisted for further submissions given that the principle of comity all but compelled that, applying the reasoning of Pritchard J in North East Forest Alliance, these grounds of review ought to be determined in a manner adverse to Mundine.
4. When the matter resumed for further hearing, Mundine contended that her Honour was "plainly wrong" and that I was therefore not bound by the decision on the basis of comity.

The Cherry Tree State Forest and Cherry Tree West State Forest

1. The Cherry Tree State Forest and the Cherry Tree West State Forest (together, "the Forests") are State Forests within the meaning of the Forestry Act and administered under that Act by FCNSW.
2. The Forests are located in Mallanganee in north-east NSW, in the Coastal IFOA Region as defined in the CIFOA.

Native Title Claim and the Western Bundjalung Settlement ILUA

1. Mundine is an Aboriginal Traditional Owner of the Wudjebal/Wahlubal Clans within the Bundjalung Nation and was an applicant in the successful Western Bundjalung native title claim under the Native Title Act 1993 (Cth) ("the native title claim"). The native title claim included the Forests.
2. The ILUA is an agreement under Pt 2 of Div 3 of the Native Title Act. On 12 July 2018 the Western Bundjalung Settlement ILUA was registered on the National Native Tribunal Register with the following persons as signatories: Tim Torrens, Mundine, Kathy Malera-Bandjalan, Bronwyn Bancroft, Leonard Gordon, David Walker, Terrence Robinson, Andrew Donnelly, Gary Brown and Graeme Walker on behalf of the Western Bundjalung People; RNTBC; the Attorney General of NSW; the Minister administering the Crown Land Management Act 2016; the Minister administering the Fisheries Management Act 1994; the Minister administering the National Parks and Wildlife Act 1974; the Minister administering Pt 6 of the National Parks and Wildlife Act 1974; the Chief Executive of FCNSW; the Secretary of the Department Responsible for administering the National Parks and Wildlife Act 1974; and the Secretary of the Department Responsible for administering Pt 6 of the National Parks and Wildlife Act 1974.
3. The ILUA relates to Part A of the native title land that includes the Forests.
4. On 4 May 2021 the ILUA was amended and was registered on the National Native Title Tribunal Register. The same persons were signatories to the ILUA. The Forests are listed as being within the area subject to the ILUA (see clause 6 of the ILUA).
5. Clause 1.1 relevantly sets out the objects of the ILUA: The main objects of this Agreement are: (a) recognition by the State that the Native Title Holders hold Native Title in the Native Title Area; (b) to establish a Consultation Protocol and other mechanisms to enable the Parties to communicate regarding significant issues for the Native Title Holders in the Agreement Area; (c) to establish an Alternative Future Acts Regime covering some classes of Future Acts proposed to be done in relation to the Native Title Area; (d) the transfer of certain Freehold Parcels to the RNTBC on behalf of the Native Title Holders; (e) to establish regimes for the involvement of the Native Title Holders in the management of Crown Land, National Park Estate, State Forests, and the Fishery Resource in the Agreement Area; (f) to allow the Native Title Holders to carry out activities similar to the exercise of Native Title in certain areas where Native Title has been extinguished; (g) to provide for the protection of, and consultation about, Aboriginal Cultural Heritage; and (h) to achieve a final settlement of the Application insofar as it relates to issues arising between the Applicant and the State in relation to land or waters in the Application Area.

Consultation by FCNSW under the ILUA in relation to the 2021 and 2022 HHP

1. On 21 September 2020 FCNSW and the RNTBC entered into an Agreement for Cultural Heritage Services in relation to the RNTBC providing cultural heritage services to FCNSW on an as needs basis ("the Cultural Heritage Services Agreement").
2. A cultural heritage survey was conducted by Robert Potter (Aboriginal Partnerships Liaison Officer, FCNSW), Brown and Alinta Hippi (representatives of the RNTBC) in relation to compartments 1 - 10 of the Forests on 21 - 25 June 2021. The RNTBC was engaged by FCNSW to carry out the works under the Cultural Heritage Services Agreement.
3. On 23 June 2021 Potter, Brown and Hippi signed the Roading Cultural Heritage Survey Report. Two days later, on 25 June 2021, they signed the Pre-Harvest Cultural Heritage Survey Report.
4. Together, the Roading Cultural Heritage Survey Report and the Pre-Harvest Report are referred to as the "Cultural Heritage Survey Reports". Copies of the Cultural Heritage Survey Reports were provided by email to Jane Baldwin, CEO of the RNTBC, on 26 July 2021.
5. On 8 September 2021, an onsite meeting at the Cherry Tree State Forest was held between FCNSW (attended by Potter, Thomas Halliday and Flavio Bugno) and the RNTBC (attended by Baldwin) to discuss forestry operations, including proposed forestry operations in compartments CTR003, CTR004, CTR005, CTR006, CTR007 and CR007 ("the 8 September 2021 site meeting").
6. On 16 August 2022 Jesse Shilling (FCNSW Aboriginal Partnership Liaison Officer for the North Coast), Trent McGrady and Peter Exton (representatives of the RNTBC) carried out an inspection of a potential scar tree along Pedericks Road within the Cherry Tree State Forest.

The 2021 HHP

1. The 2021 HHP was approved by Jaggers, the Operations Planning Manager North and acting FCNSW planning supervisor, as an operational plan pursuant to condition 53 of the CIFOA. The 2021 HHP included the following documents: 1. Harvest and Haul Plan, dated 1 September 2021; 2. Harvest Plan Operational Map, dated 1 September 2021; and 3. Locality Map, undated (Version 2).
2. The 2021 HHP applied to harvesting operations in compartments CTR003 and CTR004 within the Forests. The land to which the 2021 HHP applied is the land depicted on the Harvest Plan Operational Map.
3. As referenced in the 2021 HHP, FCNSW obtained an Ecology Report, which included desktop and targeted surveys in relation to compartments CTR003 and CTR004 in the Forests. The Ecology Report was prepared by Kevin Harvey, a Field Ecologist with FCNSW, and was reviewed by Matt Dobson, a Senior Field Ecologist within FCNSW, who signed it on 30 August 2021. FCNSW also obtained the Cultural Heritage Survey Reports.
4. On 2 September 2021 FCNSW uploaded the 2021 HHP to the FCNSW Plan Portal website ("Portal").

2022 HHP

1. The 2022 HHP was approved by Howat, a planning supervisor, as an operational plan pursuant to condition 53 of the CIFOA. It comprised the following documents: 1. Harvest and Haul Plan, dated 6 April 2022; 2. Harvest Plan Operational Map, dated 6 April 2022; 3. Locality Map, undated; and 4. Forest Type Map, dated 16 February 2022.
2. The 2022 HHP applied to harvesting operations in compartments CTR005, CTR006 and CTR007 within the Forests and Crown-timber land designated as compartment CR007. The land to which the 2022 HHP applied is the land depicted on the Harvest Plan Operational Map.
3. As referenced in the 2022 HHP, FCNSW obtained: 1. an Ecology Report in relation to CTR005, CTR006, CTR007 and CR007. The Ecology Report was prepared by Harvey and was reviewed by Peter Simon, an Acting Senior Field Ecologist within FCNSW, who signed it on 5 April 2022; and 2. the Cultural Heritage Survey Reports.
4. On 11 April 2022 FCNSW uploaded the 2022 to the Portal.

Status of Harvesting Operations Under the 2021 and 2022 HHP

1. On 9 November 2021 FCNSW commenced harvesting operations under the 2021 HHP in compartments CTR003 and CTR004 of the Forests.
2. On 7 February 2022 the harvesting operations under the 2021 HHP (which were occurring in compartments CTR003 and CTR004) were suspended due to inclement weather conditions.
3. On 19 September 2022 FCNSW recommenced harvesting operations under the 2021 HHP in compartments CTR003 and CTR004.
4. As at the date of the hearing of the proceedings, FCNSW had not carried out any harvesting operations under the 2022 HHP (relating to compartments CTR005, CTR006 and CTR007 and Crown-timber land CR007).

Evidence of the Parties

1. In addition to facts that were agreed to between the parties (and the documents underlying those facts), Mundine principally relied upon: 1. the statements of reasons prepared by FCNSW in respect of the 2021 and 2022 HHPs respectively; 2. an affidavit affirmed by him on 15 November 2022, wherein he deposed that he was "not informed of the scale of logging or the lack of consultation and proper protection for our sacred cultural heritage" and that once the "forestry agreement" was signed there was no further consultation; 3. another affidavit affirmed by him on 28 March 2023, deposing to his attempts to obtain information about the relevant forestry operations from the RNTBC; 4. an expert report by Dailan Pugh OAM, an ecologist with expertise in the assessment of private and public forests in north-east NSW, filed on 8 February 2023. Pugh was engaged to provide an opinion on whether the carrying out of forestry operations in accordance with the 2021 and 2022 HHPs for compartments 3 to 7 of the Forests would be consistent with the principles of ESFM, whether these principles had been taken into account in preparing the HHPs, and what changes to the 2021 and 2022 HHPs were necessary to achieve ESFM, as defined by the Forestry Act; 5. a joint expert report by Pugh and Travis Peake dated 24 March 2023; and 6. a letter from Tracy Mackey, the CEO of the EPA, dated 22 September 2020, directed to the Secretary of the Department of Regional NSW and the Acting CEO of FCNSW. In the letter, Mackey stated that it was the view of the EPA that the unprecedented bushfires of 2019-2020 had significantly impacted the environmental values of the State forests of coastal NSW and that subsequent timber harvesting in areas impacted by fire posed a major environmental risk, and that the principles of ESFM under the Forestry Act were "unlikely to be achievable under a business-as-usual approach". The EPA was concerned that a return to operating under the CIFOA as proposed was therefore not tenable.
2. It should be noted that the Pugh report was admitted into evidence subject to relevance. Initially FCNSW provided the Court with 55 pages of objections to the report which were mercifully abandoned after discussion with the parties at the hearing.
3. Ignoring for present purposes the many manifest deficiencies of the Pugh report, a party who alleges a jurisdictional fact in judicial review proceedings is generally entitled to lead evidence of its present or absence (Trives v Hornsby Shire Council [2015] NSWCA 158; (2015) 89 NSWLR 268 at [11] per Basten JA). It was for this reason that Duggan J granted leave to Mundine to adduce such evidence in these proceedings (Mundine at [56]). In doing so, however, her Honour noted that the question of whether a matter was a jurisdictional fact was ultimately an issue for the trial judge to determine at a final hearing. It follows that if I find that the absence of power ground does not raise a jurisdictional fact as alleged by Mundine, then Pugh's evidence will not assist the Court.

The Regulatory Framework Governing Approvals to Conduct Forestry Operations in NSW

1. FCNSW is established by s 5 of the Forestry Act. The principal objectives of the statutory corporation are set out in s 10(1): 10 Objectives of Forestry Corporation (1) The principal objectives of the Corporation are as follows - (a) to be a successful business and, to this end - (i) to operate at least as efficiently as any comparable businesses, and (ii) to maximise the net worth of the State's investment in the Corporation, (b) to have regard to the interests of the community in which it operates, (c) where its activities affect the environment, to conduct its operations in compliance with the principles of ecologically sustainable development contained in section 6(2) of the Protection of the Environment Administration Act 1991, (d) to contribute towards regional development and decentralisation, (e) to be an efficient and environmentally sustainable supplier of timber from Crown-timber land and land owned by it or otherwise under its control or management.
2. In respect of the objective referred to in s 10(1)(c) of the Act it was conceded by Mundine at the hearing that the principles of ecologically sustainable development were not to be conflated with the principles of ESFM.
3. The functions of the FCNSW are relevantly listed in s 11(1) of the Forestry Act: 11 Functions of Forestry Corporation (1) The principal functions of the Corporation are as follows - (a) to carry out or authorise the carrying out of forestry operations in accordance with good forestry practice on Crown-timber land or land owned by the Corporation, (b) to take or authorise the taking of forest materials from State forests or land owned by the Corporation, (c) to sell, supply or process timber, forest products or forest materials taken or harvested under paragraph (a) or (b), (d) to establish and maintain plantations, (e) to control and manage, subject to Part 5, forestry areas, (f) subject to the Rural Fires Act 1997, to carry out measures on Crown-timber land for the protection from fire of timber and forest products on that land, (g) to grant forestry rights in respect of State forests, timber reserves or land owned by it, including any such right that is for the benefit of the Corporation, (h) to acquire, hold, sell or otherwise deal with or trade in carbon sequestration rights (including for the benefit of other persons).

The Coastal Integrated Forestry Operations Approval

1. The CIFOA the subject of these proceedings was granted jointly by the Ministers under s 69N of the Forestry Act. It commenced on 16 November 2018. The CIFOA is an approval referred to in s 69M of the Forestry Act and applies within the State to State forests and other Crown-timber land within the defined "Coastal IFOA Region" (Chapter 1, Division 2 of the conditions). It comprises the Coastal Integrated Forestry Operations - Conditions and incorporates the Coastal Integrated Forestry Operations - Protocols.
2. Chapter 1 of the CIFOA deals with its scope and interpretation, with Division 1 directed to the latter. Condition 3.1 states that the approval and the Protocols are to be interpreted in accordance with the General Interpretation Rules set out in Part 1 of Schedule 1. Condition 123 sets out the rules of interpretation. Condition 124.1(e) effectively characterises the CIFOA as a living document, and that any reference to the approval is to that document "as amended from time to time" (this is consistent with condition 5.1).
3. FCNSW must apply and comply with a Protocol where required to do so by the approval or another Protocol (condition 5.3).
4. The corporation must further comply with the conditions of the approval (condition 7.1) and if more than one requirement of an approval or Protocol applies, it must comply with the more stringent requirement (condition 7.2).
5. Consistent with s 69Q(1) of the Forestry Act, the duration of a CIFOA is 20 years unless otherwise revoked (condition 11).
6. The area to which the CIFOA applies, the Coastal IFOA Region, which includes the Forests, is set out in condition 12.1. The condition is subject to condition 12.2 which states that the approval does not apply to, and therefore, does not authorise, forestry operations on certain specified land.
7. Condition 13 of the CIFOA addresses the types of forestry operations covered by the approval. These include harvesting, roading and post-harvesting operations conducted within 18 months of the completion of harvesting operations. It was not in dispute that these proceedings concern harvesting operations that comprised "selective harvesting for the production of timber" (condition 13.1(a)(i)).
8. The CIFOA does not authorise the carrying out of any other forestry operations not set out in condition 13.1 (condition 13.2). Having said this, FCNSW can carry out a forestry operation under an approved plan of operations the equivalent of an operational plan prepared or approved under a relevant IFOA (condition 13.3).

The 2021 and 2022 HHP Are Operational Plans Made Under the CIFOA

1. Critically, condition 53 of the CIFOA relates to operational plans and sets out what must be included in such a plan and who can approve it. An operational plan must be prepared for each forestry operation carried out under the CIFOA. At the risk of repetition, the 2021 and 2022 HHPs are operational plans under the CIFOA.
2. Condition 53.1 of the CIFOA is in the following terms: FCNSW must prepare a separate operational plan for each forestry operation in each operational area (as defined in the operations register), excluding forest product and timber operations conducted under section 45 of the Forestry Act.
3. Protocol 39 (Dictionary) sets out the following relevant definitions: approval The approval granted to FCNSW under Part 5B of the Forestry Act 2012, which includes protocols. Where there is a reference to a condition of the 'approval', it is a reference to a condition in the main body of the approval (Conditions 1-125). In any other context, it takes the ordinary meaning. … forest products operations The harvesting or removal of forest products from an operational area. … operational area An area defined in the operational plan and operations register in which a forestry operation (excluding forest product and timber operations conducted under section 45 of the Forestry Act 2012) is occurring or will occur. operational map A map required to be prepared under condition 53.3(d) of the approval. operational plan A plan required to be prepared under condition 53 of the approval. operations register A register required to be kept and prepared under condition 28 of the approval.
4. Condition 53.2 provides that: A forestry operation must not commence in an operational area unless an operational plan has been prepared for that forestry operation in that operational area.
5. Each operational plan must include the following documents in conformity with Protocol 4 which deals with Operational Plans, namely, general requirements for all operational plans and additional specific requirements for operational plans relating to harvesting operations, roading, burning operations, forest produce operations, a location map and an operational map (condition 53.3). Conditions 4.2, 4.3 and 4.4 of Protocol 4 detail the operational plan requirements, both general, specific, and mapping.

The Absence of Power Ground

1. Mundine submits that the 2021 and 2022 HHPs are not operational plans within the meaning of condition 53 of the CIFOA because they are unable to achieve the principles of ESFM.
2. This is because the effect of the conditions of the CIFOA is that it is unlawful for FCNSW to conduct forestry operations, including harvesting, except in accordance with an operational plan approved in accordance with the CIFOA. The only source of power to make and approve an operational plan, and to render the conduct of forestry operations lawful, is condition 53 of the CIFOA.
3. Condition 53 is expressed in mandatory language, and therefore, an operational plan that does not comply with its requirements cannot lawfully be approved. Put another way, a plan whose implementation involves non‑compliance with the conditions of the approval must not be approved and to purport to do so is beyond power. These conditions include that the proposed forestry operation is one that is in accordance with the principles of ESFM pursuant to condition 14.1.
4. Mundine contends that this gives rise to an objective question in the nature of a jurisdictional fact to be determined as to whether or not the two HHPs are in fact capable of achieving the principles of ESFM. The FCNSW planning supervisor can only validly approve an operational plan if the plan in fact complies with these principles. The exercise of the power to approve the plan is conditioned upon the planning supervisor attaining the necessary state of satisfaction that the operational plan achieves ESFM, which could not occur in relation to the 2021 and 2022 HHPs because they were silent with respect to ESFM.
5. By way of variation to the submission above, Mundine further argued that because the operational plans must contain operational requirements in sufficient detail to enable the person proposing to carry out forestry operations to comply with the CIFOA (see condition 53.4(b)), including the principles of ESFM contained in condition 14.1, the FCNSW planning supervisor could not validly approve the HHPs because such details were absent or inadequate.

Does Condition 53 of the CIFOA Impose a Jurisdictional Fact?

1. It is convenient to briefly set out the legal principles governing the establishment of a jurisdictional fact. They were not in dispute and were set out in North East Forest Alliance Incorporated by Pritchard J, where they were likewise agreed upon (at [162]): 162 … 21. There is no single test for a court to determine whether the existence of a particular fact is an essential precondition to the valid exercise of a power of approval. Rather the Court weighs together the factors identified and discussed in cases such as Woolworths v Pallas NewCo (2004) 61 NSWLR 707 and Timbarra Protection Coalition v Ross Mining (1999) 46 NSWLR 55 to seek to identify the intention of the instrument by which the power of approval was vested in the decision maker. Often they are grouped under the heading of 'essentiality' 'objectivity' and 'inconvenience'. 22. The cases do not give any easily-applied formula for determining whether or not a matter is such an essential precondition. At a high level of generality, the test remains that stated by the High Court in Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at [28]. The Court said: "The term 'jurisdictional fact' (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlightens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion satisfaction of which mandates a particular outcome". 23. What is clear is that the issue is one of construction of the instrument by which the power is conferred upon the decision-maker. Consideration must be given to the language of the power under consideration in the total context of the legislative scheme under which the power is conferred. The nature of the "fact" is also relevant. "The determination of whether or not a fact is jurisdictional in the requisite sense can give rise to considerable difficulty and is a matter upon which reasonable minds can differ. There is no bright line between jurisdictional error and error in the exercise of jurisdiction. Nevertheless, the Court, being called upon to do so, must determine whether the repository of a statutory power has acted, or proposes to act, in a manner which transgresses the limits upon the exercise of the power that parliament has conferred." (Pallas Newco at [9]). 24. Generally the more recent cases have dispensed with the nomenclature of "jurisdictional fact". The language currently most commonly in use is that the question "involves a distinction between a fact that is an 'essential preliminary to the decision-making process' and 'a fact to be adjudicated upon in the course of the inquiry'". (Ross v Lane [2022] NSWCA 235 at [32], citing authorities including Pallas Newco at 46- 49.) 25. The Chief Justice, speaking for the majority in Pallas Newco, emphasised that the determination was closely related to the issue of "mandatory" and "directory" provisions and that one method of determining the issue is to ask whether it was a purpose of the legislation (and here, of the approval) that an act done in breach of the provision would be invalid. 26. While a number of judges in individual cases have talked of there being presumptions regarding statutory intention, no clear position to that effect has commanded consistent judicial support. Thus, in Ross v Lane, for example, Beech-Jones JA said at 37: "Ordinarily, the scope of the matters that must be considered by a decision-maker such as a consent authority in exercise of a statutory power is a matter for a court to determine and not the decision-maker themselves. One circumstance that is outside the ordinary is those statutes that expressly provide that the decision- maker may have regard to such matters as they 'consider relevant' but even these types of provisions have their limits. In this case there is no scope for a consent authority to determine not to have regard to the considerations specified … thus, subject to considering the terms of the particular instrument, whether or not the instrument applies to the land to which the development relates is not a matter for consent authority to authoritatively determine." (See also Pallas Newco at [50]-[51], per Spigelman CJ). 27. By way of contrast Basten JA in Ross v Lane suggested that ordinarily legislature should be assumed to intend a decision-maker to determine matters that require evaluative judgment, rather than making them objective preconditions. 28. With respect to both judges, they are not to be taken as stating any new test with the determination of the question or as laying down rules to apply in all cases. Rather, each should be taken as applying the process determined by the Court of Appeal in Pallas Newco, but placing emphasis on different aspects of the specific scheme that was before them. In the end, although they agreed on the result of the case, Beech-Jones JA would have found the question of whether SEPP 65 applied to the proposed development was a mandatory pre-condition to the exercise of power, and Basten JA would not. The case illustrates again Spigelman CJ's statement from Pallas Newco but the question is one on which reasonable minds can differ, even on the same facts.

Determination of Pritchard J in North East Forest Alliance Incorporated on the Jurisdictional Fact Ground

1. In North East Forest Alliance Incorporated Pritchard J summarised the contentions of the applicant in relation to the absence of power ground in the following way (at [182]): 182 By Ground 1, NEFA contends that each of the Braemer and Myrtle HHPs is invalid because there is an objective question in the nature of a jurisdictional fact as to whether the HHPs or forestry operations conducted in accordance with them were "in fact able to achieve the principles of ESFM". NEFA contends that the FCNSW planning supervisor could only validly approve an operational plan if: (1) in accordance with condition 53.4(a) of the CIFOA, the plan "address[es] the conditions of the approval", relevantly condition 14.1 which requires that any forestry operation be carried out in accordance with the principles of ESFM; and (2) the plan contains operational requirements in sufficient detail to enable the person proposing to undertake the forestry operation to conduct such operation in accordance with the principles of ESFM.
2. Her Honour concluded that she was not satisfied that achievement of the principles of ESFM in operational plans was a jurisdictional fact. Nor was she satisfied that the sufficiency of detail in relation to operational requirements in order to enable a person undertaking forestry operations to comply with the conditions of the CIFOA was a jurisdictional fact (at [219]). Her Honour's reasons for arriving at this conclusion were as follows (at [218], footnotes omitted): 218 In relation to the question of jurisdictional fact raised in NEFA's submissions in relation to Ground 1, I find as follows: (1) Condition 53 of the CIFOA does not refer to the principles of ESFM. Rather, it sets out the operational requirements which FCNSW must meet for each forestry operation. Condition 53.4 provides that each operational plan must address the conditions of the approval; contain operational requirements in sufficient detail to enable the person proposing to undertake the forestry operation to comply with the conditions of the approval; and be approved and dated by a FCNSW planning supervisor. Condition 53 does not specify any matters to be considered by the FCNSW planning supervisor in determining whether to approve an operational plan. (2) Nor can it be implied from condition 53 or the CIFOA as a whole that the approval of an operational plan is conditional on the FCNSW planning supervisor being satisfied that the operational plan complies with the principles of ESFM. The language of condition 53.4(a) - that the operational plan "address the conditions of the approval" - does not require the plan to demonstrate compliance with each condition of the CIFOA. Rather, the planning supervisor is required to be satisfied that the operational plan addresses the conditions of the CIFOA in order to ensure that the plan has been prepared in accordance with the requirements of Protocol 4. I find that the two operational plans, the Braemar HHP and the Myrtle HHP, were prepared in accordance with the requirements of Protocol 4 which sets out "General requirements" and "Specific operational plan requirements". (3) Nor does condition 53.4(b) take NEFA's case any further. The requirement of compliance with the conditions of the approval to which condition 53.4(b) refers is that of the "person proposing to undertake the forestry operation" the subject of the operational plan; it is not a requirement of the plan itself. That is not to say that FCNSW can authorise itself to conduct otherwise unlawful operations. Rather, the condition requires the operational plan to contain "operational requirements in sufficient detail" to enable that compliance. It does so by complying with the general and specific requirements of Protocol 4. It is the "person proposing to undertake the forestry operation" who must ensure compliance with the conditions. That person must be a "suitably qualified person", as required by condition 18.1(c), a person defined in Protocol 39 as "[a] person who has experience or qualifications, or both, which enable them to carry out the requirements of a described job or task in a competent and professional manner and, where relevant, comply with the specific requirement of Protocol 6: Suitably qualified persons - training and experience". (4) Nor does it follow that because there is no requirement for a consultation process prior to the approval of an operational plan that compliance with the principles of ESFM is a precondition to the exercise of the power to approve the plan. There is, and here was, a process of public consultation in accordance with s 69NA of the Forestry Act before the grant of the approval by the Ministers. Public consultation processes are associated with the monitoring program which oversees ongoing compliance of the approval with the principles of ESFM. That renders this case akin to Australian Heritage Commission where a feature of the statutory scheme which was said to indicate that the primary decision maker could conclusively determine whether a place should be registered was that the decision could only be made after a process of public consultation. (5) It is of significance that Protocol 4 which sets out "General requirements" and "Specific operational plan requirements" nowhere require that an operational plan independently address the principles of ESFM. Rather, those principles are addressed in the conditions of the CIFOA itself and are implemented by the operational plan complying with the general and additional specific requirements specified in Protocol 4: (a) Under condition 4.2(2)(b) of Protocol 4, if FCNSW proposes a forestry operation in any area within the known habitat or potential habitat of a relevant subject species, the operational plan must include the requirements of (1) any flora road management plan required to be implemented during the forestry operation in the operational area for that species under condition 83 of the approval; and (2) any species management plan required for that species under condition 82.1 of the approval. (b) Under condition 4.2(2)(c) of Protocol 4, if a forestry operation is a harvesting operation or roading or burning operation, then the operational plan must also include (1) the results of the targeted flora and fauna surveys and BAHS where conducted, as required by conditions 56 and 57 of the approval and Protocol 20; (2) each species-specific condition to be applied to the forestry operation in accordance with Chapter 4, Divisions 4 and 5 of the approval; (3) each site-specific biodiversity condition prepared under Protocol 31; (4) each site-specific research condition relevant to the operational area as approved under Protocol 5; and (5) identification of areas of the compartment that are subject to seasonality restrictions and the seasonality restrictions that apply to each area as determined in accordance with Protocol 12. (c) There are also specific operational requirements for harvesting operations (condition 4.2(3)), for roading operations (condition 4.2(4)), for burning operations (condition 4.2(5)), for forest products operations (condition 4.2(6)), and specific requirements for regeneration (condition 4.2(7)). (6) Accordingly, there is scrutiny of the consistency of the operational plan with the principles of ESFM through the approval process provided for in condition 53 of the CIFOA. That scrutiny is provided by the process of preparing the plan in accordance with Protocol 4 and confirmation by the FCNSW planning supervisor that the plan has been prepared in accordance with and addresses the conditions of the CIFOA. Here the two operational plans - the Braemer HHP and the Myrtle HHP - complied with the requirements of Protocol 4, and addressed the conditions of the CIFOA for the purposes of condition 53.4. (7) It is clear from the authorities that the determination of whether a fact said to be jurisdictional is a jurisdictional fact requires "careful analysis of the statute which confers the jurisdiction", "the language of the power under consideration" and "the total context of the legislative scheme in which the power is conferred, including the scope and nature of the jurisdiction and the facts said to be jurisdictional". Having found that the embedded decisions of FCNSW (Mr Howat) to approve the operational plans are amenable to judicial review, I am not satisfied that condition 53 of the CIFOA contains a jurisdictional fact. Construing the CIFOA as a whole, and the statutory scheme in which it operates, and applying the observations of Spigelman CJ in Pallas Newco at [5]-[6] and Basten JA in Trives at [9]-[11] and [37], I do not consider that consideration of and the making of a finding as to the achievement of the principles of ESFM was a jurisdictional fact in the sense of an essential precondition to the exercise of the power of FCNSW (Mr Howat) to approve the operational plans. It is not a fact to be determined by the Court in its original jurisdiction with the function of reviewing Mr Howat's decisions to approve the operational plans. (8) The approval of an operational plan, as I have found at [154(1)] above is a separate approval from that of the Ministers to approve forestry operations in the CIFOA. However, I find in relation to Ground 1 that the legislative scheme of the Forestry Act does not indicate that the principles of ESFM are required to be separately considered and applied at the level of an operational plan. (9) I find that condition 14.1 of the CIFOA states an objective of the approval, and not an operative condition. Nothing in s 69M of the Forestry Act or in s 69L (with its "elaborate definitions" of the principles of ESFM) or in the CIFOA as a whole detracts from that conclusion. I accept the submissions of FCNSW above at [211] to [213] in relation to a textual analysis and harmonious reading of the whole of the approval. (10) Plainly, condition 53.4 of the CIFOA requires an operational plan to address the conditions of the approval. However, I do not consider from consideration of the Forestry Act as a whole, including the objects of FCNSW in s 10 which in turn include compliance with the principles of ESD which include principles of ESFM and the "elaborate definition" of the principles of ESFM in s 69L, as well as the CIFOA as a whole, that that requirement extends to a consideration of the principles of ESFM in the making of an operational plan. (11) Undertaking the balancing of the indicators in the statutory scheme in favour of and against jurisdictional fact in accordance with Trives at [37], I am unable to conclude that the characterisation of whether the HHPs or operations conducted in accordance with them were "in fact able to achieve the principles of ESFM" is jurisdictional. NEFA has not demonstrated any jurisdictional fact or condition on the exercise of power by the FCNSW (Mr Howat) to approve the two operational plans that arises from the Forestry Act or the CIFOA. (12) That is because, as submitted by FCNSW, there is nothing in the Forestry Act or the CIFOA which requires the principles of ESFM to be considered and applied at the level of the approval of an operational plan. It is at the time of deciding whether to grant an approval that the principles of ESFM are required to be considered. It is, as submitted by FCNSW, sufficient that the operational plan contains the necessary information and is approved in accordance with condition 53.4(c). (13) Nor do I accept NEFA's submission that the CIFOA is "a static instrument that can only be amended under the less versatile statutory processes prescribed by s 69R". I accept FCNSW's submissions in relation to the capacity to amend the CIFOA and to address changing environmental conditions summarised at [208] to [209] above.

Comity and the "Plainly Wrong" Test

1. As Mundine correctly submitted, a judge of this Court is neither legally nor technically bound by the decision of another judge of the same Court. However, it is only in limited circumstances that, according to the principle of comity, it will be proper for the second judge to disregard the first decision. That is: 1. where the second case differs in a material aspect so that the principle stated in the first decision does not govern the second; or 2. where the judge in the second case is satisfied that the first decision is "clearly", or "manifestly" wrong (Australian Agricultural Co v Federated Engine-Drivers and Firemen's Association of Australasia [1913] HCA 41; (1913) 17 CLR 261 at 278-279 per Isaacs J).
2. In Totaan v R [2022] NSWCCA 75; (2022) 108 NSWLR 17 Bell CJ gave content to the epithets "plainly wrong" or "clearly wrong" (at [73]): 73 It was said in Gett at [294]-[295], in a passage applied in Fairfax Digital Australia & New Zealand Pty Ltd v Kazal (2018) 97 NSWLR 547; [2018] NSWCA 77 at [147], that: "The phrases "plainly wrong" or "clearly wrong" can be understood to focus on at least one or more of the following attributes of a ruling: (a) the fact of error is immediately […] apparent from reading the relevant judgment; (b) the strong conviction of the later court that the earlier judgment was erroneous and not merely the choice of an approach which was open, but no longer preferred (cf Chamberlain and Clutha), and (c) the nature of the error that can be demonstrated with a degree of clarity by the application of correct legal analysis. In our view, the first possibility is liable to be highly subjective and should not be required, where the other two possibilities are satisfied. The existence of (b) and (c) is a precondition to the exercise of the power to depart from earlier authority."
3. The reference to Gett was a reference to the decision in Gett v Tabet [2009] NSWCA 76; (2009) 109 NSWLR 1, where the Court of Appeal considered at length the approach to be followed when intermediate appellate courts are asked to depart from a court of coordinate jurisdiction as well as their own earlier decisions. While the opinion was provided in this context, it is nevertheless equally apposite in the present case.
4. So too, in my view, was the observation made in David William Pallas & Julie Ann Pallas as trustees for the Pallas Family Superannuation Fund v Lendlease Corporation Ltd [2024] NSWCA 83, where Leeming JA commented upon the desirability of focusing on the existence of "compelling reasons" to depart from an earlier decision, rather than the deprecatory language of "plainly wrong" (at [140] per Leeming JA and Bell CJ at [22]).

There Are No Compelling Reasons to Depart From North East Forest Alliance Incorporated on the Absence of Power Ground

1. According to Mundine, the decision of Pritchard J on the absence of power ground ought not be followed because not only were the circumstances of the that case materially different, but when regard is had to her Honour's reasoning there are compelling reasons to depart from her judgment.
2. The material difference between the current cases and North East Forest Alliance Incorporated is, Mundine asserts, in the Court's treatment of the expert ecological evidence. In the present proceedings, the Court admitted expert evidence directly addressing the capacity of a person carrying out forestry operations in conformity with the relevant operational plans to achieve outcomes consistent with ESFM pursuant to condition 14.1. In North East Forest Alliance Incorporated Pritchard J rejected the tender of such evidence because it did not address the relevant question. As a consequence, Mundine argued that her Honour was "obliged" to reject the cognate absence of power ground because he was unable to discharge the onus of establishing that the jurisdictional fact had not been satisfied. Moreover, the absence of such evidence made it impossible for the Court to assess whether simple compliance with the requirements of Protocol 4 in fact permits the planning supervisor to comply with the requirements of ESFM. In the result, this Court remained free to determine the proper construction of condition 53, especially condition 53.4, independent of the reasoning referred to at [218(2) and (3)] of North East Forest Alliance Incorporated.
3. There are two reasons why the Court's decision in North East Forest Alliance Incorporated ought to be followed as a matter of comity. First, as FCNSW correctly points out, Mundine's reliance on this asserted material difference is misconceived. The Court in North East Forest Alliance Incorporated rejected the absence of power ground because, having regard to the proper construction of the statute, approval of the HHPs was not conditioned upon establishing the jurisdictional fact asserted by the applicant. It was only in the alternative that Pritchard J held that if, in any event and contrary to her determination, there was a jurisdictional fact, the applicant could not establish that the principles of ESFM had not been achieved by the approval of the two operational plans or that the operational plans lacked sufficient detail to enable the person proposing to undertake forestry operations to comply with the conditions of the approval, including condition 14.1. This was because of the rejection by her of expert evidence that did not deal with the principles of ESFM and was therefore irrelevant.

The Mandatory Consideration Ground

1. The reasoning in respect of the first ground is also relevant to the determination of the second, the mandatory consideration ground.
2. Mundine submitted that the capacity of a person carrying out the proposed forestry operation to comply with the conditions of the CIFOA was a mandatory consideration in two respects. The assessing officer must first consider which conditions are called up by the proposed operation, and second, the officer must ask whether the operational plan contains sufficient information to permit the operation to comply with the CIFOA and to determine whether each condition of the CIFOA has been addressed in the operational plan.
3. According to Mundine, it would be impossible for a planning supervisor considering a proposed operational plan to be satisfied that condition 53.4(a) and (b) had been met without taking into account the requirements of each condition (such as condition 14.1) of the CIFOA to determine whether it was relevant, and if it was, whether the operational plan addressed it and the plan contained sufficient detail to permit the person implementing the plan to comply with it.
4. Because harvesting is a type of forestry operation likely to affect the environment, a person approving this activity is therefore required to consider conditions concerned with environmental protection, such as condition 14.1. And because it could not be said that ESFM principles were irrelevant to the conduct of forestry operations under the HHPs, it was therefore mandatory for a person proposing to implement each of the 2021 and 2022 HPPs to consider if these principles could be complied with.
5. Mundine relied upon his construction of condition 14.1 under the absence of power ground to argue against the proposition that ESFM principles were taken into account by complying with the CIFOA. This would, according to him, leave little work for condition 14.1(a) to do.
6. Finally, Mundine relied upon the unchallenged evidence of Pugh to submit that the evidence established that ESFM principles were not reflected in the forestry operations authorised by the 2021 and 2022 HHPs.

The Reasoning in North East Forest Alliance Incorporated is Correct in Respect of the Mandatory Considerations Ground

1. Although worded differently, the gravamen of the mandatory consideration ground presently raised is identical to Ground 2 dealt with by the Court in North East Forest Alliance Incorporated. Indeed, many of the submissions in that case were identical to the submissions presented in these proceedings (see at [223]-[225]).
2. In dismissing this ground of review, Pritchard J held that (at [228]): 228 In relation to Ground 2, I find as follows: (1) In essence, in Ground 2 NEFA contends that condition 14 of the CIFOA which sets out the general objectives of the approval is a mandatory consideration in the determination by the FCNSW planning supervisor to approve an operational plan. (2) Whilst s 69L of the Forestry Act plainly requires the relevant Ministers to consider the principles of ESFM in determining whether to grant an approval, there is nothing in condition 14 of the CIFOA read in isolation, in the context of CIFOA as a whole, or in the Forestry Act which requires a FCNSW planning supervisor in approving an operational plan separately to consider those principles. (3) The planning supervisor is required to consider whether the operational plan includes the documents identified in condition 53.3, addresses the conditions of the CIFOA as required by condition 53.4(a) and contains operational requirements in sufficient detail to enable the person proposing to undertake the forestry operation to comply with the CIFOA as required by condition 53.4(b). The statements of reasons for both operational plans, as submitted by FCNSW at [226(6)] above, confirm that this is what occurred here, and NEFA did not contend otherwise. (4) The principles of ESFM were taken into account by the Ministers in granting the CIFOA. Again, NEFA did not contend otherwise.
3. Again, the question is whether there is a compelling reason to depart from her Honour's reasoning with respect to the mandatory consideration ground.
4. As Mundine frankly acknowledged, there is no evidential reason why, as a matter of comity, the result in North East Forest Alliance Incorporated ought not be followed. Rather, Mundine relied upon what was said to be an error at [228(3)] of Pritchard J's reasons. The ground raised by the applicant before her Honour challenged the meaning of the language of condition 53, by contending that the proper construction of the words "address the conditions of the CIFOA" and "enable the person proposing to undertake the forestry operations to comply with the CIFOA", meant that the conditions, including condition 14.1, had to be addressed and complied with directly in the operational plans. According to Mundine, her Honour reached a contrary conclusion without articulating her reasons for doing so. Therefore, the Court in these proceedings was entitled to consider the matter afresh and to depart from the conclusion arrived at in North East Forest Alliance Incorporated.

The Procedural Fairness Ground

1. This ground of review was not argued before the Court in North East Forest Alliance Incorporated. It operates independently of the two grounds dismissed above.
2. According to Mundine, the procedural fairness ground arises from an enjoyment by him, and other native title holders, of rights over the Forests by reason of entering into the ILUA, and FCNSW's failure "to obtain his consent to continue logging operations". The obligation arises from clause 16 of the ILUA which states that the RNTBC "and Native Title Holders" shall be consulted about the management of State forests in accordance with Schedule N. This gives rise to, according to Mundine, a separate obligation to consult with him as a signatory to the ILUA, in addition to any separate obligation to consult with the RNTBC.
3. Clause 12 of Schedule N to the ILUA, to which FCNSW is a party, sets out the consultation requirements, including that at least every 12 months FCNSW disclose to and consult with the RNTBC on its proposed forestry operations. Mundine is a member, a former director and an alternative director of the RNTBC. He further submitted that as a native title holder he had a "legitimate expectation" that FCNSW would disclose to him proposed harvesting operations in sensitive areas of the Forests 12 months prior to any plans in relation to the proposed operations being finalised. This is because FCNSW obtained access to Mundine's land (as a native title holder) for its own commercial purposes in exchange for the promise to use a specific planning regime under the ILUA, in addition to the CIFOA approval process. To the extent that this did not happen, he was deprived of the enjoyment of his native title rights contrary to that agreed to by FCNSW when it entered into the ILUA.
4. Had Mundine been fairly consulted as was required under the ILUA, he would have put his concerns with respect to the proposed forestry operations (as outlined in his affidavit affirmed on 15 November 2022) and could have achieved a more favourable outcome. In other words, the jurisdictional error in failing to afford him procedural fairness was material (citing MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ and Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 at [32] per Kiefel CJ, Keane and Gleeson JJ, [46]-[47], [55] per Gageler J and [76]-[81] per Gordon J and [93] per Edelman J).

Conclusion

1. I have dismissed the absence of power ground and the mandatory consideration ground both on the basis that I cannot find any compelling reason to depart from the reasoning and conclusion reached by the Court in the earlier decision of North East Forest Alliance Incorporated. The procedural fairness challenge also fails.
2. Having rejected all three grounds of judicial review the summonses must be dismissed in each proceedings.

Costs

1. Because these are Class 4 proceedings, costs would ordinarily follow the event. However, the parties urged restraint and submitted that costs ought to be reserved on the basis of a potential application by Mundine that each party should bear their own costs because the proceedings ought to be characterised as public interest litigation pursuant to r 4.2 of the Land and Environment Court Rules 2007. Accordingly, this is what will occur.

Orders

1. The formal orders of the Court are therefore as follows: 1. in matter 2021/338920 the second further amended summons is dismissed; 2. in matter 2022/156044 the amended summons is dismissed, 3. in both proceedings costs are reserved. The parties are to bring in short minutes of order for the preparation and timetabling of a hearing on costs; and 4. in both proceedings the exhibits are returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 July 2024