(2009) 239 CLR 27
Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32
(2020) 383 ALR 194
Australian Agricultural Co v Federated Engine-Drivers and Fireman's Association of Australasia [1913] HCA 41
(2023) 256 LGERA 24
Gett v Tabet [2009] NSWCA 76
(2009) 109 NSWLR 1
Greylag Goose Leasing 1410 Designated Activity Company v PT Garuda Indonesia Ltd [2023] NSWCA 134
Source
Original judgment source is linked above.
Catchwords
(2009) 239 CLR 27
Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32(2020) 383 ALR 194
Australian Agricultural Co v Federated Engine-Drivers and Fireman's Association of Australasia [1913] HCA 41(2023) 256 LGERA 24
Gett v Tabet [2009] NSWCA 76(2009) 109 NSWLR 1
Greylag Goose Leasing 1410 Designated Activity Company v PT Garuda Indonesia Ltd [2023] NSWCA 134(2023) 111 NSWLR 550
Hossain v Minister for Immigration and Border Protection [2018] HCA 34(1986) 162 CLR 24
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3(2019) 264 CLR 421
Minister for Immigration and Border Protection v WZARH [2015] HCA 40(2015) 256 CLR 326
Mundine v Forestry Corporation of NSW [2022] NSWLEC 140
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17(2021) 273 CLR 506
Nathanson v Minister for Home Affairs [2022] HCA 26(2007) 161 LGERA 230
Ross v Lane [2022] NSWCA 235(2023) 407 ALR 222
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34(2017) 262 CLR 362
Totaan 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
Judgment (26 paragraphs)
[1]
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)
[2]
Solicitors:
Pikes & Verekers Lawyers (Applicant)
Norton Rose Fulbright Australia (Respondent)
File Number(s): 2021/338920 & 2022/156044
Publication restriction: Nil
[3]
Mundine Challenges Forestry Operation Approvals
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.
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.
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.
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").
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.
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.
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").
[4]
Judgment in North East Forest Alliance Incorporated v Forestry Corporation of NSW is Delivered
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.
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).
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.
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.
[5]
The Cherry Tree State Forest and Cherry Tree West State Forest
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.
The Forests are located in Mallanganee in north-east NSW, in the Coastal IFOA Region as defined in the CIFOA.
[6]
Native Title Claim and the Western Bundjalung Settlement ILUA
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.
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.
The ILUA relates to Part A of the native title land that includes the Forests.
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).
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.
[7]
Consultation by FCNSW under the ILUA in relation to the 2021 and 2022 HHP
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").
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.
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.
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.
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").
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.
[8]
The 2021 HHP
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).
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.
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.
On 2 September 2021 FCNSW uploaded the 2021 HHP to the FCNSW Plan Portal website ("Portal").
[9]
2022 HHP
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.
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.
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.
On 11 April 2022 FCNSW uploaded the 2022 to the Portal.
[10]
Status of Harvesting Operations Under the 2021 and 2022 HHP
On 9 November 2021 FCNSW commenced harvesting operations under the 2021 HHP in compartments CTR003 and CTR004 of the Forests.
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.
On 19 September 2022 FCNSW recommenced harvesting operations under the 2021 HHP in compartments CTR003 and CTR004.
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).
[11]
Evidence of the Parties
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.
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.
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.
[12]
The Regulatory Framework Governing Approvals to Conduct Forestry Operations in NSW
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.
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.
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).
[13]
The Coastal Integrated Forestry Operations Approval
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.
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).
FCNSW must apply and comply with a Protocol where required to do so by the approval or another Protocol (condition 5.3).
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).
Consistent with s 69Q(1) of the Forestry Act, the duration of a CIFOA is 20 years unless otherwise revoked (condition 11).
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.
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)).
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).
[14]
The 2021 and 2022 HHP Are Operational Plans Made Under the CIFOA
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.
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.
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.
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.
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.
[15]
The Absence of Power Ground
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.
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.
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.
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.
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.
[16]
Does Condition 53 of the CIFOA Impose a Jurisdictional Fact?
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.
[17]
Determination of Pritchard J in North East Forest Alliance Incorporated on the Jurisdictional Fact Ground
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.
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.
[18]
Comity and the "Plainly Wrong" Test
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).
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."
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.
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]).
[19]
There Are No Compelling Reasons to Depart From North East Forest Alliance Incorporated on the Absence of Power Ground
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.
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.
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.
[20]
The Mandatory Consideration Ground
The reasoning in respect of the first ground is also relevant to the determination of the second, the mandatory consideration ground.
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.
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.
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.
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.
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.
[21]
The Reasoning in North East Forest Alliance Incorporated is Correct in Respect of the Mandatory Considerations Ground
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]).
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.
Again, the question is whether there is a compelling reason to depart from her Honour's reasoning with respect to the mandatory consideration ground.
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.
[22]
The Procedural Fairness Ground
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.
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.
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.
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).
[23]
Conclusion
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.
Having rejected all three grounds of judicial review the summonses must be dismissed in each proceedings.
[24]
Costs
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.
[25]
Orders
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.
[26]
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
Initially, FCNSW questioned Mundine's standing to commence the proceedings and the justiciability of the decisions to approve the 2021 and 2022 HHPs. However, by the time the matter was heard, these issues were (correctly, in my view: see Mundine v Forestry Corporation of NSW [2022] NSWLEC 140 at [6]-[9] in respect of justiciability and South East Forest Rescue Inc v Forestry Corporation of New South Wales (No 2) [2024] NSWCA 113 at [106]-[147] in respect of standing) no longer pressed by FCNSW.
A Notice of Intention to Appeal ("Notice") was then filed by the applicants in North East Forest Alliance Incorporated. The Notice was due to expire on or about 20 February 2024. Given that any appeal would decisively determine two of the three grounds of challenge in these proceedings, the parties agreed to wait until the appeal in that matter was finally determined, or the Notice had expired, whichever came first. In the result it was the latter and there was no appeal.
The need for consultation is provided for in clause 16 of the ILUA which deals with "State Forests". That clause relevantly states:
16. STATE FORESTS
16.1 The RNTBC and the Native Title Holders shall be consulted about the management of State Forests in accordance with Schedule N (State Forests).
For the purpose of clause 16, the "RNTBC" is defined in clause 37.2 as the registered native title body corporate that holds native title in respect of any land or waters in the agreement area in trust for the native title holders. The "Native Titles Holders" are defined in clause 37.2 of the ILUA as the persons holding the common or group rights comprising the native title in relation to any land or waters in the agreement area. That is, the Western Bundjalung People who comprise all the descendants of identified apical ancestors and persons adopted or incorporated into the families of those persons who identify and are accepted as Western Bundjalung People in accordance with their traditional customs and laws, and the biological descendants of those persons.
The composite term "Native Forestry Operations" has the meaning given to "forestry operations" in s 3 of the Forestry Act (clause 19 of Schedule N of the ILUA).
Schedule N of the ILUA is significant. It concerns how native title is to be managed within State forests such as the Forests. Part C, clause 12 establishes the consultation process mandated by clause 16:
PART C (CONSULTATION)
12. CONSULTATION MEETINGS
12.1 Forestry Corporation shall consult with the RNTBC in accordance with this clause regarding:
(a) the exercise of Native Title in the State Forest Native Title Area;
(b) the carrying out of Equivalent Benefits in the Equivalent Benefits Area 3; and
(c) Aboriginal Cultural Heritage within the State Forest Native Title Area and Equivalent Benefits Area 3.
Note: 'Aboriginal Cultural Heritage' is defined in the Dictionary in this Agreement.
12.2 Forestry Corporation and the RNTBC shall hold a Consultation Meeting on at least one day annually, and otherwise as agreed, to discuss Native Forest Operations and Plantation Operations and the facilitation of access and activities by the Native title Holders to the State Forest Native Title Area and to Equivalent Benefits Area 3.
12.3 Forestry Corporation may attend the Annual Meetings described in paragraph 4.1(a) (Frequency of Consultation Meetings) of Schedule D (Consultation Protocol) if invited by the RNTBC and the other State Agencies.
12.4 At any Consultation Meeting, Forestry Corporation shall provide information in relation to and discuss with the RNTBC the following matters:
(a) Native Forest Operations and Plantation Operations proposed to be done during the next 12 months;
…
12.5 At any Consultation meeting, the RNTBC may provide information regarding:
(a) the location of any Aboriginal Cultural Heritage;
(b) how the RNTBC should be consulted if potential Aboriginal Cultural Heritage is found during Forestry Operations, including the appropriate way to manage the Aboriginal Cultural Heritage;
(c) the granting of any new permits or licences;
(d) traditional natural resources and materials that the Native Title Holders may seek to gather and use in exercising Native Title; and
(e) feedback on the effectiveness of existing arrangements and consultation processes.
12.6 Forestry Corporation and the RNTBC shall document matters discussed at Consultation Meetings and any agreed actions arising from Consultation Meetings. Agreed actions may include:
(a) any further consultation that is required between the RNTBC and Forestry Corporation;
(b) any field inspections to be undertaken by Forestry Corporation's Aboriginal Cultural Heritage staff and/or the Native Title Holders;
(c) any process to be followed by Forestry Corporation if potential Aboriginal Cultural Heritage is found during Native Forest Operations or Plantation Operations;
(d) any variation to Native Forest Operations or Plantation Operations proposed over the following 12 months;
(e) implementing any agreement for Forestry Corporation to assist the Native Title Holders with the provision of resources, materials and access for the exercise of Native Title or Equivalent Benefits; and
(f) making recommendations:
(i) to the Parties regarding their future conduct in acting under or implementing this Agreement; and
(ii) regarding matters to be substantially addressed in the course of the formal review referred to in clause 30 (Reviewing this Agreement) of this Agreement.
12.7 A summary of the discussion items and agreed actions from a Consultation Meeting shall be provided by Forestry Corporation to the RNTBC within ten days of the meeting and shall be agreed between the RNTBC and Forestry Corporation withing 30 days of the meeting.
12.8 Forestry Corporation and the RNTBC shall, as soon as practicable, undertake any agreed actions identified under to sub-clause 12.6.
Part C of Schedule N of the ILUA further provides for consultation between the RNTBC and FCNSW, cooperation between those two entities, the facilitation of a constructive dialogue between them with respect to the operation and implementation of, and compliance with, the ILUA, together with a framework that governs and promotes discussions between the RNTBC and FCNSW (clause 2.2(c) of Schedule N). Having noted this, however, clause 2.3 of Schedule N provides that nothing in it allows the native title parties to prevent native forest operations being undertaken by FCNSW in accordance with the law.
On 18 November 2022, the Attorney-General of NSW received an Assignment Deed ("the Deed") between Torrens, Mundine, Bancroft, Gordon, David Walker, Robinson, Donnelly, Brown and Graeme Walker ("the native title claimants") and the RNTBC pursuant to clause 28 of the ILUA, assigning the rights held by the native title claimants under the ILUA to the RNTBC. While FCNSW relied upon the Deed for the purpose of refuting the denial of procedural fairness ground (that is, Mundine had assigned any right to be consulted to the RNTBC), given that it was entered into after the approval of the HHPs, I place limited weight on it.
In reply FCNSW relied upon the following evidence:
1. an affidavit of Halliday, the Upper North Coast Harvesting Manager employed by FCNSW, affirmed 10 March 2023. He deposed to the pre-harvest consultation, in particular, to the 8 September 2021 site meeting between Potter and Bugno from FCNSW and Baldwin from the RNTBC. At the meeting, the proposed forestry operations in compartments 3 and 4 under the 2021 HHP were discussed;
2. an affidavit of John Shipp affirmed 13 March 2023. Shipp is the Aboriginal Partnerships and Cultural Heritage Manager - Hardwood Forest Division at FCNSW. He was involved in the negotiation and drafting of the ILUA and on behalf of FCNSW executed a copy of the Cultural Heritage Services Agreement which engaged the RNTBC to carry out cultural heritage surveys in compartments 1 to 10 in the Forests; and
3. the expert report of Peake, dated 10 March 2023. Peake is an ecologist who was instructed to prepare a report in response to certain paragraphs of the Pugh report.
The term "forestry operations" referred to in s 11(1)(a) is defined in s 3(1) of the Act to mean:
forestry operations means -
(a) logging operations, namely, the cutting and removal of timber from land for the purpose of timber production, or
(b) the harvesting of forest products, or
(c) ongoing forest management operations, namely, activities relating to the management of land for timber production such as thinning, burning and other silvicultural activities and bush fire hazard reduction, or
(d) ancillary activities to enable or assist in the above operations such as the provision of roads, snig tracks, waterway crossings and temporary timber storage facilities.
As FCNSW noted, s 11(1)(a) draws a distinction between the carrying out of forestry operations and the authorisation of those operations. This is significant because one aspect of the debate between the parties is whether the authorisation of forestry operations at issue here occurred at the level of the Ministers granting the CIFOA or at the level of FCNSW planning supervisors approving operational plans under the CIFOA, or both.
Part 3 of the Forestry Act deals with State forests such as the Forests the subject of these proceedings. Under Pt 3, Div 3 FCNSW must prepare and adopt plans for the management of State forests (s 21). Section 22 of the Forestry Act provides that the terms of an IFOA prevail over a management plan for State forests in the case of inconsistency:
22 Management plans to be consistent with integrated forestry operations approvals
(1) The Corporation is not to adopt a management plan for a State forest that is wholly or partly located in the area to which an integrated forestry operations approval applies unless it is in accordance with the terms of the integrated forestry operations approval for the area.
(2) To the extent that a management plan for a State forest that is wholly or partly located in the area to which an integrated forestry operations approval applies is not consistent with the terms of the integrated forestry operations approval for the area, the terms of the approval prevail.
Part 4 of the Forestry Act concerns the taking of timber, forest products and forest materials. Division 2 establishes a licencing scheme. The licences are examples of authorisations of forestry operations granted by FCNSW.
For completeness, Pt 5A deals with forest agreements. It is not relevant because there is no forestry agreement under that Part that is in force with respect to the land the subject of the challenge by Mundine. This means that s 69G, upon which Mundine initially placed reliance, has no application.
Part 5B of the Forestry Act deals with "Integrated forestry operation approvals" ("IFOA"), such as the CIFOA. It is central to these proceedings. The Part relates to the making, application, and enforcement of IFOAs with respect to forestry operations in State forests or other Crown-timber lands (s 69K(1)). It is the framework that authorises the carrying out of forestry operations.
The purpose of Pt 5B is set out in s 69L(1) of the Forestry Act:
69L Purpose of integrated forestry operations approvals
(1) The purpose of this Part is to provide a framework for forestry operations to which this Part applies -
(a) that authorises the carrying out of those forestry operations in accordance with principles of ecologically sustainable forest management, and
(b) that integrates the regulatory regimes for environmental planning and assessment, for the protection of the environment and for threatened species conservation, including threatened species, populations and ecological communities under Part 7A of the Fisheries Management Act 1994.
Section 69L(2) defines the principles of ESFM:
(2) In this section--
principles of ecologically sustainable forest management means the following -
(a) maintaining forest values for future and present generations, including -
(i) forest biological diversity, and
(ii) the productive capacity and sustainability of forest ecosystems, and
(iii) the health and vitality of native forest ecosystems, and
(iv) soil and water quality, and
(v) the contribution of native forests to global geochemical cycles, and
(vi) the long term social and economic benefits of native forests, and
(vii) natural heritage values,
(b) ensuring public participation, provision of information, accountability and transparency in relation to the carrying out of forestry operations,
(c) providing incentives for voluntary compliance, capacity building and adoption of best-practice standards,
(d) applying best-available knowledge and adaptive management processes to deliver best-practice forest management,
(e) applying the precautionary principle (as referred to in section 6(2)(a) of the Protection of the Environment Administration Act 1991) in preventing environmental harm.
Division 2 of the Forestry Act concerns approvals. In particular, ss 69M and 69N permits the granting of IFOAs jointly by the Ministers:
69M Granting of Approvals
(1) Approval for the carrying out of forestry operations to which this Part applies may be granted under this Part. Such an approval is called an integrated forestry operations approval.
(2) This Part does not prevent or affect the carrying out of forestry operations authorised by or under any other provision of this Act or any other Act or law. However, the carrying out of forestry operations to which an integrated forestry operations approval applies is subject to the terms of the approval.
69N Approvals to be granted jointly by relevant Ministers
(1) An integrated forestry operations approval may only be granted jointly by the Minister for the Environment and the Minister for Lands and Forestry.
(2) An integrated forestry operations approval is to be in writing signed by those Ministers.
(3) Before granting an integrated forestry operations approval, the Minister for the Environment and the Minister for Lands and Forestry are required to consult the Minister administering Part 7A of the Fisheries Management Act 1994.
Prior to the granting of an IFOA, public consultation on the proposed approval must take place pursuant to s 69NA of the Act:
69NA Public consultation on proposed approvals
(1) Before an integrated forestry operations approval is granted, public consultation on the proposed approval is to be undertaken.
(2) The public consultation is to include the following -
(a) giving at least 28 days notice of the proposed approval,
(b) making the proposed approval publicly accessible during that period of public notice,
(c) inviting representations in connection with the proposed approval within the time specified in the notice,
(d) consideration of any such representation before the approval is granted. …
The terms of an IFOA are established by s 69P of the Forestry Act:
69P Terms of approval
(1) An integrated forestry operations approval is to describe the forestry operations covered by the approval, including a description of the area of the State to which it applies.
(2) An integrated forestry operations approval is -
(a) to make provision for or with respect to the carrying out of forestry operations covered by the approval, and
(b) to set out conditions subject to which those forestry operations are to be carried out, including conditions that may be imposed under any of the following -
(i) a biodiversity conservation licence under the Biodiversity Conservation Act 2016,
(ii) a licence under Part 7A of the Fisheries Management Act 1994,
(iii) an environment protection licence under the Protection of the Environment Operations Act 1997.
(3) An integrated forestry operations approval may apply or adopt protocols, codes, standards or other instruments that are publicly available and in force from time to time.
(4) Without limiting subsection (3), any such protocols may include those prepared by the Environment Protection Authority.
An IFOA generally has effect for a period not exceeding 20 years (s 69Q(1)).
The content of an IFOA is not immutable. It may be amended, suspended or revoked at any time jointly by the Ministers and may extend to any or all of the forestry operations covered by the approval (s 69R). Again, public consultation on the proposed amendment, revocation or approval must be undertaken (s 69RA).
The power to enforce an IFOA is located in Div 2A of the Forestry Act. It is an offence to contravene a requirement imposed by an IFOA (s 69SA(1)) and the function of monitoring and enforcing compliance of IFOAs in the carrying out of any forestry operations to which Pt 5B applies falls to the EPA (s 69SB(1)).
Finally, by reason of ss 69W, 69X and 69Y, respectively, certain provisions of the Environmental Planning and Assessment Act 1979, the Biodiversity Conservation Act 2016 and the Local Government Act 1993, largely dealing with approvals, interim protections orders and orders preventing or interfering with the carrying out of forestry operations, do not apply. Thus the Forestry Act operates as a code with respect to the carrying out of forestry operations (as defined in the Act) authorised by an IFOA.
Condition 14.1 is central to Mundine's case. It sets out the objectives of the CIFOA. It is in the following terms:
14. General objectives of the approval
14.1 The overall objective of the approval is to authorise the carrying out of forestry operations set out in condition 13 above:
(a) in accordance with the principles of ecologically sustainable forest management,
(b) in a manner which integrates the regulatory regimes for:
(i) environmental planning and assessment;
(ii) the protection of the environment; and
(iii) threatened species conservation and biodiversity;
(c) in accordance with the conditions of this approval and the protocols, as applicable.
Mundine submitted that condition 14.1 imposes additional operational obligations on the approval of forestry operations already authorised by the CIFOA, but which do not commence until an operational plan is approved. FCNSW resisted this proposition and argued that the FCNSW planner who approves an operational plan does not have to separately consider whether the forestry operations the subject of the plan comply with ESFM. Rather, it is at the level of the grant of the IFOA, as the instrument that authorises the carrying out of the relevant forestry operations, that the principles of ESFM must be considered and applied.
Condition 15 sets out the specific objectives of the approval, including objectives with respect to threatened species (conditions 15.1 and 15.3), practical measures to be taken to protect the aquatic environment and waters from pollution (condition 15.2), and steps to ensure the ongoing monitoring, evaluation, reporting and improvement of the approval so that it is effective in achieving its objectives (condition 15.4).
FCNSW must not carry out any forestry operations that are likely to result in certain harm to flora and fauna (condition 16) and, except as permitted by the approval, must not pollute waters by the carrying out of a forestry operation (condition 17).
Division 5 sets out the general conditions of the CIFOA. Condition 18 requires that all forestry operations (defined in Protocol 39 (Definitions) as the operations and activities authorised under the approval as set out in condition 13) must be planned, implemented and conducted in accordance with the conditions, in a competent manner and by a suitably qualified person.
Condition 19 mandates that forestry operations covered by the CIFOA "must be carried out in accordance with the approval, including in accordance with any relevant operational plan, during and at completion of a forestry operation in an operational area" (see similarly condition 89).
The review or amendment of an approval is provided for in condition 23, upon which Mundine placed specific reliance:
23. Special provisions requiring a review or amendment to the approval
23.1 FCNSW may request the EPA to review a condition, objective or outcome of the approval by way of written submission to the EPA demonstrating that in FCNSW's opinion:
(a) a condition, objective or outcome is not being consistently achieved when implementing the approval;
(b) the practical application or enforcement of a condition results in the consistent inability to effectively implement or regulate that condition;
(c) new information, or an alternative method, procedure, technique or approach to a condition would achieve an improved outcome; or
(d) the monitoring program under Chapter 8 of the approval identifies that the conditions are not effective or not delivering the intended objectives or outcomes of the approval.
23.2 In consultation with FCNSW, the EPA will consider all relevant issues and, within six months or another timeframe approved by the EPA:
(a) provide a report of the outcome of the review if EPA determines that no changes are to be made to the approval;
(b) amend the protocols to address the issues identified; or
(c) recommend to the Ministers to amend the approval.
23.3 The EPA may initiate a review of a condition, objective or outcome of the approval for the reasons set out in condition 23.1(a)-(d), and if so, will comply with condition 23.2.
23.4 If applying a condition of the approval at a specific site would result in a poor environmental outcome, or if in a specific and unique circumstance FCNSW would not be able to comply with the conditions of the approval, then prior to commencing the relevant forestry operation:
(a) FCNSW may submit a report to the EPA in accordance with Protocol 5: Approvals for restricted activities; and
(b) the EPA may grant a site-specific operating condition in response to the report that specifies:
(i) the conditions of the approval that must be implemented at the specific site for the duration of the forestry operation; and
(ii) site-specific operating conditions that must be implemented at the specific site for the duration of the forestry operation in that area, or for another time period specified by the EPA. …
There is no requirement in condition 53 or Protocol 4 for the operational plans themselves to separately address the principles of ESFM. Rather, the operational plans address these principles by complying with the conditions of the CIFOA, which, as stated above, has an overall objective of authorising forestry operations in accordance with ESFM principles.
The content of each operational plan is provided for in condition 53.4.
At the risk of oversimplification, the principles can be summarised as follows:
1. a jurisdictional fact describes a fact which must exist as an essential precondition to the exercise of a power. A person purporting to exercise the power absent such a fact being established is to act without legal authority (Woolworths Ltd v Pallas NewCo Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707 at [5] per Spigelman CJ and Trives at [9] per Basten JA);
2. there is no single test to determine whether the existence of a particular fact is an essential precondition to the valid exercise of power (Ross v Lane [2022] NSWCA 235; (2022) 255 LGERA 136 at [74] per Basten AJA);
3. the task is one of statutory construction (Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2023) 407 ALR 222 per Gordon, Edelman, Steward and Gleeson JJ at [78] and El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78; (2023) 256 LGERA 24 at [36] per Leeming JA). Consideration must be given to the language of the provision conferring power and the total context of the legislative scheme within which the power is located, including the scope and nature of the jurisdiction and of the fact asserted to be jurisdictional (Pallas NewCo at [6]). The legal meaning of a provision is to be derived from a full consideration of its text, the text and context of the statute viewed as a whole and the general purpose and policy of the enactment in question (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] per Hayne, Heydon, Crennan and Kiefel JJ, SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR at 362 at [14], Greylag Goose Leasing 1410 Designated Activity Company v PT Garuda Indonesia Ltd [2023] NSWCA 134; (2023) 111 NSWLR 550 at [14]ff per Bell CJ and Commissioner of Police v Attorney General for New South Wales [2024] NSWCA 150 at [62] per Ward P);
4. there are several factors that bear upon the task of statutory construction:
1. first, whether the criterion of engagement of the power requires identification of a fact in precise terms. Where a criterion is evaluative, as to which reasonable minds may differ, this favours a conclusion that the criterion is not a jurisdictional fact. However, where the statute includes criteria some of which are precisely defined and others of which involve matters of degree, this speaks against an intention that some facts are jurisdictional but others are not (Ross at [80]);
2. second, where a construction results in the existence of a jurisdictional fact that produces inconvenience it is more likely that the interpretation ought to be eschewed absent a clearly expressed intention to achieve this outcome (El Khouri at [42]); and
3. third, consideration must be given to how the condition or criterion contended to be jurisdictional operates in the particular statutory context in which it appears (Ross at [83]-[84]).
In this regard, it is important to note that earlier in her judgment Pritchard J had determined that an operational plan approved by a FCNSW planning supervisor was a separate approval to the CIFOA (at [154]):
154 In relation to the Court's jurisdiction and the justiciability of the matters raised in these Class 4 judicial review proceedings, I find as follows:
(1) An operational plan approved by a FCNSW planning supervisor is a separate approval to the Ministers' approval of forestry operations in the CIFOA. This is plain from the requirements of condition 53.4 of the CIFOA, that the operational plan address the conditions of the CIFOA, contain sufficient detail to enable the person proposing to undertake forestry operations to comply with the conditions of the CIFOA, and be "approved and dated" by a FCNSW planning supervisor.
(2) Condition 53 of the CIFOA is not "merely" a "timing provision" which relates only to when forestry operations may be commenced. The requirements of condition 53 are more robust than stipulating the time at which forestry operations may commence.
(3) The power embedded in condition 53, being a condition of statutory approval, is not immune from consideration of the legality of its exercise and is amendable to judicial review. As in Hunter Valley Energy, I do not consider that anything substantive should turn on whether the "power" is statutory or non-statutory.
(4) The decision of a planning supervisor to approve an operational plan made pursuant to the embedded authority in condition 53 of the CIFOA enlivens the power of the Court to entertain an application for judicial review.
(5) Accordingly, the Court has power (and jurisdiction) to review the decision of the planning supervisor.
As may be expected, there were variations between the submissions put by the parties in North East Forest Alliance Incorporated compared to those made by the parties in the present proceedings. If nothing else, as reflected in Pritchard J's comprehensive reasons, the arguments put in North East Forest Alliance Incorporated appeared to be more detailed than those proffered in the present case (see her Honour's summary of the applicant's submissions at ([183]-[195]). Having said this, Mundine's submissions were in critical respects almost identical to those of the applicant in North East Forest Alliance Incorporated. The same observation may be made with respect to the contentions put forward by FCNSW (at [196]-[217]). Given the duplication of counsel across all matters this is unsurprising.
Accordingly, Mundine argued that, properly construed, the intention of the Ministers in making the CIFOA was that the ability to conduct a forestry operation consistent with ESFM was a necessary precondition to the approval of an operational plan. The CIFOA defers to a later stage further consideration of those principles, namely, the approval of an operational plan under condition 53, as part of the authorisation process. In other words, the principles of ESFM are to be taken into account at the stage of the granting of the CIFOA and at the stage of approving an operational plan.
This conclusion was, Mundine submitted, evident from the following textual and contextual indicators:
1. first, the CIFOA does not directly authorise any forestry operations. Rather, it makes provision for, or with respect to, the carrying out of forestry operations, one of which is that a further specific approval is required by condition 53. It permits FCNSW, acting through a planning supervisor, to approve a forestry operation by approving an operational plan. A HHP therefore takes its force from condition 53;
2. second, condition 14.1 plainly states that the principles of ESFM must be considered at the level of any approval to authorise the carrying out of forestry operations (as that term is defined). This is one of the general objectives of the approval. On the construction preferred by FCNSW, condition 14.1(a) would have no work to do;
3. third, the overall importance of the role played by ESFM in the structure of the regulatory regime, commencing with s 69L of the Forestry Act, which applies the principles of ESFM to "forestry operations" and not to "forestry approvals". This indicates that, applying condition 53 (especially condition 53.4(a) and (b)) of the CIFOA, the application of ESFM principles is engaged at the point of granting the approval for the HHP. It is also consistent with s 10(1)(c) of the Act. Where there is no scrutiny of an operational plan's consistency with ESFM principles, except through the process set out in condition 53, the likelihood that compliance with those principles is a precondition to the exercise of power is much stronger;
4. fourth, there are factors that make it inherently unlikely that the Ministers intended, by establishing Protocols and by imposing conditions addressing environmental harm, to definitively determine the matter of compliance with ESFM. These include the static and inflexible nature of the conditions imposed given the size of the geographic area covered by the CIFOA, its duration (20 years), and the fact that s 69R of the Forestry Act, which provides for the suspension, revocation and amendment of IFOAs, does not mandate the CIFOA's update or amendment;
5. fifth, while condition 23 of the CIFOA sets out the circumstances wherein FCNSW or the EPA may review or amend an IFOA, it does not compel its review or amendment in all circumstances. Furthermore, only FCNSW can have recourse to the process contained in condition 23.4, otherwise amendment can only be made in accordance with s 69R of the Forestry Act and requires joint authorisation from the Ministers. This is to be contrasted with the amendment of an operational plan in accordance with condition 53;
6. sixth, while a requirement is imposed on FCNSW to implement a monitoring program to review compliance with the CIFOA by Chapter 8, condition 122 and Protocol 38 of the CIFOA, Chapter 8 does not mandate any amendment of the CIFOA consequent upon the monitoring; and
7. seventh, the size of the areas covered by the operational plans and the relative informality of their amendment procedure, compared to the CIFOA, are an indication that they are the more appropriate vehicle for achieving ESFM. The large area covered by the CIFOA makes it implausible that the Ministers considered themselves to be making a single prescription of ESFM principles for entire coastal forestry regions.
Mundine argued that there could be no dispute that if the capacity to conduct the operations authorised by the 2021 and 2022 HHPs consistently with ESFM principles was a necessary precondition to the approval of those plans, then the precondition had not been met.
It was in this context that Mundine relied on the expert evidence of Pugh. Pugh detailed the way in which the authorised activities were inconsistent with the principles of ESFM. Mundine submitted that the evidence was unchallenged because, first, there was no cross-examination of Pugh, and second, Peake did not engage with this material because of his view that ESFM was only relevant at the stage of making the CIFOA.
As can be seen from the passage quoted above, Pritchard J dealt with each of the arguments presently advanced by Mundine to arrive at the conclusion that neither the achievement of ESFM principles in the operational plans nor the sufficiency of detail in relation to operational requirements contained in those plans, so as to enable the person undertaking forestry operations to comply with the conditions of the CIFOA (including condition 14.1), were jurisdictional facts.
Her Honour went on to determine that even if she was wrong in her construction of the Forestry Act and the CIFOA, and that compliance with condition 14.1 was a mandatory precondition to the valid approval of an operational plan, the applicant had failed to establish how the principles of ESFM had not been achieved in the approval of the 2021 and 2022 HHPs or that the operational plans lacked sufficient detail to enable forestry operations to be conducted in accordance with such principles. This was due to the rejection by Pritchard J of the applicant's witness, Dr Stephen Phillips, on the ground of relevance because the evidence did not refer to the principles of ESFM but was directed to the potential impact of forestry operations on the koalas in the forests (at [220]-[221]).
Underpinning the principle of comity and the high bar to be met for a court to depart from an earlier decision of the same court (even at first instance) where the second case does not differ in a material aspect from the first, are "the important goals of fostering stability and predictability in the law and consistency and certainty in the administration of justice" (Totaan at [74] per Bell CJ).
With these considerations in mind, do either of the limited circumstances referred to above apply, thereby warranting departure from the decision in North East Forest Alliance Incorporated on the absence of power ground?
Second, as a study of the reasoning in North East Forest Alliance Incorporated makes plain, no error, let alone any manifest or compelling error, is displayed in that judgment that warrants departure from it. By focussing on [218(2) and (3)], Mundine incorrectly relies on Pritchard J's reasoning in those paragraphs divorced from the remainder of her analysis.
At [218(9) and (10)] of North East Forest Alliance Incorporated, Pritchard J explained why condition 53.4 did not require compliance with condition 14.1 of the CIFOA, namely, because the latter stated an objective of the approval and was not an operative condition. There was nothing, her Honour concluded, contained within ss 69M or 69L of the Forestry Act or the CIFOA that militated a contrary finding.
This conclusion is, in my opinion, plainly correct. There is nothing in the language of condition 14.1 that indicates that it is an operative condition, compliance with which is mandatory or, to adopt the language used by Mundine, which compels the 2021 and 2022 HHPs to contain "sufficient information to permit a person carrying out the [forestry] operation to comply with the conditions, including condition 14.1" (T118:44-45). On the contrary, its text states expressly that "the overall objective of the approval is to authorise the carrying out of forestry operations" (emphasis added) in accordance with the principles of ESFM; it does not insist on this outcome.
A contextual analysis reinforces this view. It would, for example, diminish the work to be carried out by other conditions of the CIFOA, for example, conditions 7.1, 18, 23.1 and 29.1, all of which explicitly require implementation in accordance with the conditions of the CIFOA. This may be contrasted with the language of condition 14.1.
The construction would also result in unnecessary administrative duplication and uncertainty. Every time a decision was required to be made under the CIFOA, this would demand a separate assessment of whether, to use the language of condition 14.1, the decision met the principles of ESFM in a manner that integrates the statutory regimes for environmental planning and assessment, the protection of the environment, threatened species conservation and biodiversity. The inconvenience of such an approach is obvious.
The construction proffered by Mundine would also render almost nugatory the detailed approval role conferred upon the Ministers by Pt 5B of the Forestry Act, which oblige the principles of ESFM to be considered by those Ministers prior to granting the CIFOA. That the obligation to consider ESFM is engaged at this level and only this level is apparent from the statutory scheme under Div 2 of Pt 5B:
1. first, s 69M(1) provides that approval for the carrying out of forestry operations to which Pt 5B applies may be granted under that Part and that such approval is called an IFOA. It is the CIFOA that authorises the carrying out of forestry operations. Neither by recourse to text, nor context, is the authorisation deferred to the stage of approving an operational plan made under an IFOA. Accordingly, it is at the time of authorisation, that is, the making of the CIFOA, that the principles of ESFM are engaged. There is nothing in the language (either express or implied) of either ss 69L or 69P(2)(a) of the Forestry Act that warrants a contrary view;
2. second, contrary to the submissions of Mundine, amending an IFOA is not so inflexible under s 69R that it could not have been the objective intention of Parliament that ESFM was to be addressed only at the stage of the making of the CIFOA. There are mechanisms within the CIFOA which allow for that instrument to be amended or adopted, including Protocols prepared by the EPA (s 69P(3) and (4) of the Forestry Act). I agree with FCNSW that it is the EPA, as one of the principal environmental regulators in NSW, together with the monitoring steering committee established by the CIFOA, that are best placed to make the evaluative judgment of whether an IFOA continues to achieve the principles of ESFM; and
3. third, the content of ESFM is expressed in general and aspirational terms, requiring evaluative and policy determinations to be made. The performance of this function is more readily adapted to persons with knowledge and expertise in relation to the environmental matters comprising ESFM, namely, the Ministers who granted the CIFOA after various mandated forms of consultation with relevant stakeholders (including the public: ss 69N and 69NA). By granting the CIFOA, the Ministers will have considered and adopted a detailed approval with Protocols and conditions appropriate to the planned forestry operation. Once adopted, the approval will be continually monitored for compliance with the principles of ESFM by the EPA and the monitoring steering committee (Chapter 8 of the CIFOA and condition 23). The EPA is conferred with the power to amend the Protocols (s 69P(3) and (4) of the Forestry Act and condition 23.2(b)). This speaks against deferral of the consideration of ESFM to the making of an operational plan. The CIFOA is not a static instrument that can only be amended by the process set out in s 69R. The Protocols have, in this instance, been amended. FCNSW must also participate in the monitoring steering committee (Protocol 38) which comprises, among other people, qualified scientists with expertise in the principles of ESFM. The monitoring program must be designed to meet these principles. In this context, the CIFOA contains mechanisms to address changing environmental conditions, including the "up listing" of certain species such as the koala (see condition 21). Furthermore, and contrary to Mundine's submission, invasive weed species are a relevant factor for consideration in the implementation of ESFM principles (see, for example, Protocols 4, 37 and 39). Thus, in respect of the 2021 HHP, in the preparation of the operational plan, regard was had to the steps set out in the CIFOA Harvest Planning Manual, which included a section dealing with noxious weeds.
The proper construction of condition 14.1 tells against the existence of a jurisdictional fact. Likewise, the correct interpretation of condition 53 of the CIFOA. Condition 53 does not refer to ESFM, rather it endeavours to set out the operational conditions which FCNSW must meet for each forestry operation. Importantly, condition 53.4 provides that each operational plan must address the conditions of the CIFOA, contain operational requirements in sufficient detail to enable persons proposing to undertake forestry operations to comply with the condition of approval, and must be approved by a FCNSW planning supervisor. What the condition does not do is prescribe the matters which a FCNSW planning supervisor must take into account in order to approve an operational plan, including that the operational plan complies with the principles of ESFM pursuant to condition 14.1. Equally, condition 53.4 does not require the operational plan to refer to, and separately show compliance with, each and every condition of the CIFOA, rather, the operational plan must address the conditions. If the plan has been prepared in accordance with Protocol 4, the planning supervisor can be satisfied that the operational plan achieves this. The obligation to comply with the conditions of the approval attaches to the person proposing to undertake the forestry operation and not the plan (condition 53.4(b)). The operational plan ensures compliance with the CIFOA by adhering to the general and specific requirement of Protocol 4.
In other words, as FCNSW succinctly put it, the principles of ESFM operate as an "umbrella". They are not stand alone principles that must be separately satisfied for the purposes of a valid operational plan.
The fact that there is no consultation process prior to the approval of an operational plan is of little moment given that there was a process of public consultation before the grant of the CIFOA by the Ministers (s 69NA of the Forestry Act). In any event, public consultation occurs with the monitoring program overseeing the CIFOA's ongoing compliance with the principles of ESFM. Moreover, as explained above, the CIFOA can be amended, suspended or revoked at any time by the Ministers authorised to grant approval (s 69R), and ongoing monitoring and enforcement of the conditions of the CIFOA in the carrying out of any Pt 5B forestry operations is performed by the EPA. In other words, compliance with the principles of ESFM can be monitored after the CIFOA is granted and an operational plan is approved. Separate consideration of the principles of ESFM in the approval of an operational plan is therefore unnecessary because the forestry operation is continually monitored to ensure that the conditions of approval of the CIFOA, which include ESFM, are complied with.
A further contextual indicator against the existence of the jurisdictional fact relied upon by Mundine is that Protocol 4, which sets out the general and specific operational plan requirements, is silent as to whether or not it is a requirement that operational plans must independently address the principles of ESFM. Instead, those principles are addressed in the conditions of the CIFOA and are implemented by the operational plan complying with the requirements of Protocol 4. It is therefore not correct to submit, as Mundine does, that there is no oversight of the operational plans' consistency with ESFM except through the approval process set out in condition 53 of the CIFOA.
It is also of significance that, unlike conditions 53 and Protocol 4, the CIFOA expressly prescribes the circumstances where ESFM principles must be applied or considered (for example, protocol 37 and protocol 38).
In conclusion, having regard to the discussion above, the reasoning of Pritchard J in North East Forest Alliance Incorporated does not, in my view, give rise to any compelling reason to depart from it on the absence of power ground and ought to be followed. On the contrary, the analysis confirms the correctness of her Honour's approach. That is, having regard to the statutory framework underpinning the making of the 2021 and 2022 HHPs, together with the various factors which have been identified by the parties, no jurisdictional fact arises in the manner contended for by Mundine.
The logical corollary of this finding is that the evidence of Pugh and Peake is of no relevance and I consequently place no weight on it.
The absence of power ground must be rejected.
In reply, FCNSW submitted that, first, there is nothing express or implied in the text of s 69L of the Forestry Act, or its context and purpose, which mandates that a person approving an operational plan must consider ESFM principles.
Second, the only matters that the planning supervisor is required to take into account under condition 53 is whether the operational plan includes the documents referred to in condition 53.3, addresses the conditions of the CIFOA as mandated by condition 53.4, and contains sufficient operational details to enable the person proposing to undertake the forestry operation to comply with the conditions of the CIFOA (including condition 14.1) as required by condition 53.4(b). The latter is practically achieved by ensuring compliance with Protocol 4. The statements of reasons for both the 2021 and 2022 HHPs before the Court established that this process was carried out by the planning supervisors in each instance.
Third, to the extent that Mundine relied upon the Pugh report to contend that neither planning supervisor made enquiries about the impact of invasive weeds, climate change or the effect of the 2019-2020 bushfires, the Forestry Act must expressly or impliedly oblige the decision-maker to take these matters into account at this level of particularity. There was nothing, FCNSW submitted, in either the Act or the CIFOA that required this degree of scrutiny.
Without repeating the findings made above in relation to the absence of power ground, FCNSW's submission that there is no "clear error" in Pritchard J's reasons that would permit this Court from departing from her Honour's findings in relation to the mandatory consideration ground is, in my opinion, correct.
Whether a decision-maker is required to consider certain matters is a question of statutory construction (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-40 per Mason J and Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; (2020) 383 ALR 194 at [33]). A mandatory relevant consideration may be express or implied from the subject-matter, scope and purpose of the statute in question.
There is, as explained earlier, nothing in the text, context or purpose of ss 69L, 69M, 69N, or 69P of the Forestry Act which requires a person approving an operational plan (an expression not found in the Act, it should be noted) to take into account the principles of ESFM. Section 69L(1) and (2) does no more than identify the purpose of Pt 5B; it does not compel any particular outcome. As explained above, the purpose of Pt 5B is to provide a framework for forestry operations that authorises the carrying out of those operations in accordance with the principles of ESFM.
Also as discussed above, it is the CIFOA, and not the operational plan, that authorises the forestry operations to be carried out, and it is at the point of the decision to grant the CIFOA that consideration of the principles of ESFM is engaged. This conclusion is reinforced by the second reading speech to the Forestry Legislation Amendment Bill 2018 that introduced Pt 5B, which stated that the Bill "enshrines the principle of ecological sustainable forest management as an objective in the Act when making an IFOA" (emphasis added).
As FCNSW observed, were it otherwise, and the planning supervisor was obliged to separately consider the principles of ESFM, this could give rise to a risk of the planning supervisor acting inconsistently with the CIFOA.
Again, as submitted by FCNSW, the matters required by each of the planning supervisors to be taken into account pursuant to condition 53 in making the 2021 and 2022 HHP were properly considered. In respect of the 2021 HHP, the statement of reasons indicates that Jaggers:
1. reviewed the Pulse Checklist which confirmed that the procedural steps set out in FCNSW's CIFOA's Harvest Planning Manual had been completed (an internal document for the preparation and approval of operational plans under the CIFOA);
2. reviewed the Harvest Plan Background Data and Checklist for compartments 3 and 4 of the Forests;
3. reviewed in detail the 2021 HHP and its conditions;
4. satisfied himself that the necessary steps set out in the CIFOA Harvest Manual had been completed;
5. satisfied himself that appropriate measures had been implemented in the planning of the 2021 HHP; and
6. satisfied himself that the conditions imposed in the 2021 HHP were appropriate.
An almost identical review was carried out and state of satisfaction attained by Howat prior to his approval of the 2022 HHP (as disclosed by the statement of reason for making of that operational plan).
The statements of reasons with respect to the HHPs disclose that EFSM principles were accommodated insofar as they were taken into account in the approval of the CIFOA, the conditions of which were directly addressed by the HHPs.
As the particulars to this ground and Mundine's reliance on the Pugh evidence indicates, Mundine is essentially aggrieved that FCNSW did not make specific enquiries into the impacts of invasive weeds, the 2019-2020 bushfires and climate change, which are relevant to a proper consideration of the principles of ESFM. However, there is nothing in the Forestry Act that expressly or impliedly obliges the planning supervisors, as decision-makers, to consider the subject matter of ESFM at that level of particularity (Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 at [60], Notaras v Waverley Council [2007] NSWCA 333; (2007) 161 LGERA 230 at [120] per Tobias JA and Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 at [140]).
The Court rejected this ground of challenge in North East Forest Alliance Incorporated for near identical reasons. It was correct to do so. I likewise reject the mandatory considerations ground.
Leaving aside the criticism of Mundine for his recourse to the since eschewed concept of legitimate expectations (see Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at [28]-[30] per Kiefel CH, Bell and Keane JJ), FCNSW argued that there had been no denial of procedural fairness because:
1. first, there was nothing in the legal framework under Pt 5B of the Forestry Act, or the CIFOA itself, which required FCNSW to consult with Mundine prior to the approval of the HHPs;
2. second, there was nothing in Schedule N of the ILUA that assisted Mundine because the HHP approvals were not made within the legal framework of the Native Title Act or the ILUA. Nothing in clauses 12 or 16 of the ILUA required FCNSW to provide information at any annual meeting in relation to the making of an operational plan under the CIFOA or for Mundine to individually be consulted about proposed forestry operations;
3. third, the obligation to consult under the ILUA was, upon a proper reading of that instrument, between FCNSW and RNTBC and not the native title holders;
4. fourth, FCNSW consulted with RNTBC prior to making the HHPs through the preparation of the Cultural Heritage Surveys as described in the Shipp and Halliday affidavits. Accordingly, no practical injustice resulted from any alleged absence of consultation with Mundine personally because consultation occurred through the RNTBC;
5. fifth, there was no representation by FCNSW that a particular process of consultation would be followed in approving the HHPs that was not in fact followed by FCNSW; and
6. sixth, there was no realistic possibility that had Mundine attended a consultation meeting between the FCNSW and RNTBC to raise the concerns referred to in his affidavits, that the FCNSW planning supervisors approving the HHPs would have come to a different decision. Thus, even if Mundine was denied procedural fairness as alleged, the error was not material.
The procedural fairness ground may be dismissed for the reasons articulated by FCNSW.
There can be no doubt that Pt 5B of the Forestry Act required public consultation prior to the making of the CIFOA (s 69NA). There is no suggestion that this did not occur. There is no evidence establishing that the required public consultation did not occur. Mundine is a member of the public. On the contrary, the evidence demonstrates that extensive consultation with the RNTBC took place prior to the approval of the 2021 and 2022 HHPs.
There are, moreover, several features of the legislative framework that speak against an obligation to accord procedural fairness or any form of consultation before an operational plan is approved arising. First, there is nothing in the Forestry Act that imposes a requirement to consult in the making of an operational plan; the "approval" referred to in s 69NA is to the CIFOA. Second, unlike the explicit obligation in s 69NA of the Act, the remainder of the statute, and the CIFOA itself, including as is Protocol 4, are silent in this regard. Third, while condition 53.5 of the CIFOA states that an operational plan must be made available to the public (again, of which Mundine is plainly a member) and the EPA at least two business days prior to the commencement of the forestry operations, no obligation or process to consult with the public exists. The obligation is one of notification only and does not support the existence of any individualised process of consultation in the manner posited by Mundine. Put simply, there is nothing in the statutory scheme under the Forestry Act or the CIFOA itself that gives rise to the right asserted by Mundine.
There is nothing in the ILUA that leads to a contrary conclusion. Mundine relies upon clause 12 of Schedule N of the ILUA to submit that the entry by FCNSW into that agreement amounted to "an assurance" that proposed harvesting operations in sensitive areas of the State forests covered by the ILUA would be disclosed in advance to the native title holders, including himself.
But an analysis of the text, context and purpose of the ILUA demonstrates that the argument is misconceived. Consultation is required to be undertaken with the RNTBC but not separately with the native title holders. Rather, clause 16 states that the RNTBC and the native title holders shall be consulted about the management of the State forests "in accordance with Schedule N".
Clause 12 of Schedule N sets out the mode and content of the consultation referred to in clause 16. FCNSW must consult with the RNTBC regarding the exercise of native title, the carrying out of equivalent benefits, and Aboriginal cultural heritage. Consultation must occur at least once a year to discuss native forestry operations and plantation operations proposed to be carried out over the following 12 months, and the facilitation of access and activities by the native title holders to the State forest native title area provided for in the ILUA. There is nothing in clause 12, especially clause 12.4, that requires Mundine as a native title holder or claimant to be individually consulted. The consultation referred to is between FCNSW and the RNTBC; RNTBC acts as the conduit between FCNSW and the native title holders. This process is one that Mundine tacitly acknowledges in his affidavit affirmed 28 March 2023, when he deposed to his requests to the RNTBC for information about FCNSW. If Mundine harbors a grievance with respect to the adequacy of the consultations with, or the information provided by FCNSW with respect to forestry operations within State forests, to RNTBC, this is a matter to be raised by RNTBC in the context of a breach of the ILUA. It does not give rise in and of itself to a breach of procedural fairness in the exercise of statutory power to approve the HHPs.
As a practical matter this must be the case. To consult all of the native title holders, which includes all descendants of particular apical ancestors, in addition to persons adopted or incorporated into the families of persons who identify, and are accepted, as Western Bundjalung People, not all of whom would be readily ascertainable by FCNSW, is, on any view, unworkable and unlikely to have been the intention of clauses 12 and 16. On the contrary, the fact that consultation was to occur between FCNSW and the RNTBC is entirely consistent with the function of the latter entity. RNTBC is the body which holds the lands and waters the subject of the ILUA on trust for native title holders. As Mundine aptly described the RNTBC, it is a "one-stop-shop" (T43:32).
That consultation occurred between FCNSW and the RNTBC is not in dispute. It was carried out prior to the approvals of the HHPs, as the Shipp and Halliday evidence attests to (I did not find Shipp's cross-examination to suggest otherwise persuasive), especially with respect to cultural heritage. In short there was no denial of procedural fairness in respect of Mundine.
Having said this, I reject (at least in part) FCNSW's submissions concerning materiality. It is settled law that failing to observe some applicable requirement of procedural fairness can give rise to jurisdictional error (Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [30] and [70]-[72], Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [81] and LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [3]).
Assuming, for present purposes, that a proper construction of the statutory framework governing the making of the 2021 and 2022 HHPs resulted in a finding that a failure to afford Mundine procedural fairness in the manner asserted by him gave rise to error, it falls to determine whether or not the breach is material, and therefore, the error is jurisdictional (LPDT at [7]). That is, if there is a realistic possibility that the decision that was made could have been different if the error had not occurred (LPDT at [7]).
In LPDT the High Court opined as to the meaning of "realistic" as follows (at [14]-[15], footnotes omitted):
14 The question in these cases is whether the decision that was in fact made could, not would, "realistically" have been different had there been no error. "Realistic" is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.
15 What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is "no easy task" for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.
With respect to errors in the process of decision-making, such as a denial of procedural fairness, what must be established on the balance of probabilities will depend upon the precise error alleged to have occurred, having regard to any relevant statutory provisions within the relevant statutory scheme (LPDT at [12] and [13]).
Mundine has specifically identified in his evidence and submissions the matters he would have raised with FCNSW had he been consulted. In addition to his general "concern" about the proposed logging in the Forests, he identified the following matters:
1. first, the scale of the logging and the lack of "proper protection for our cultural heritage";
2. second, the ridgeline along Cherry Tree Road which was one of the main trading and ceremonial routes his people used to travel from Bundjalung and Kunbaingeree country through the border ranges into the Bunya mountains; and
3. third, when he visited the Forests on 20 September 2022 and inspected the compartments that were logged in 2015, he saw that "most of the forest was virtually a wall of lantana which was impenetrable to enter".
I do not accept that the decision to approve the HHPs could realistically have been different had Mundine been consulted about the scale of the logging and cultural heritage protection having regard to the statement of reasons and the material Jaggers and Howat had regard to in approving the HHPs.
Given that Mundine's observation about the lantana took place after the 2021 and 2022 HHPs were approved, it cannot be said that any asserted failure to consult with him so that he could discuss his concerns regarding the invasive weed is material. Mundine is not, it is relevant to note in this context, an ecologist nor does he possess any specialist knowledge about the species. Moreover, as Mundine conceded during the hearing, invasive weeds (of which lantana is one) were considered in both the 2021 and 2022 HHPs (T141:20-30). It cannot therefore be said that consultation could have realistically resulted in a different decision being made.
But the same cannot be said of any failure to consult Mundine on the scope and scale of the forestry operations the subject of the HHPs or the cultural heritage significance of the ridgeline along Cherry Tree Road. It does not appear that this particular matter was discussed during the Indigenous cultural heritage consultations or if it was separately studied or surveyed by the cultural heritage consultants, whose views and opinions informed the decision to approved the HHPs.
While reference is made to searches of the Aboriginal Heritage Information Management System ("AHIMS") in the approvals and the facts disclose that cultural heritage surveys were undertaken in the compartments, along with the preparation of the Cultural Heritage Survey Reports and onsite meetings between representatives of the RNTBC and FCNSW (for example, the 8 September 2021 site meeting) to discuss cultural heritage, there is no evidence that the specific issue identified by Mundine was raised. It was not recorded in the Cultural Heritage Survey Reports and the AHIMS is not a complete record of First Nations cultural heritage within the State, which exists not just at the local level but also at the landscape level in songlines and Dreaming. There is nothing in Shipp's evidence that warrants a contrary conclusion. As his cross‑examination revealed, his role in relation to the proposed forestry operations in the Forests was that of supervisor, rather than the person who carried out the work (T97:30-37). He neither, for example, attended the cultural surveys the subject of his written evidence (T97:41) nor did he attend the 8 September 2021 site meeting (T97:45). In addition, apart from representatives of the RNTBC, he did not consult with Potter, or anyone else in FCNSW, or identify any other key stakeholder for the purpose of consultation in this regard (T100:40).
In my view, it cannot be concluded that had Mundine been consulted, the result could not realistically have resulted in a different outcome. Put simply, the failure was material.
The procedural fairness ground is, however, rejected for the reasons given above.