Logging operations to continue between NSW and Queensland after judge rejects environmentalists' court bid

Environmentalists have lost a legal challenge to a forestry agreement between the NSW and Commonwealth governments, meaning logging operations can continue within a vast coastal area between Sydney and the Queensland border.

The North East Regional Forestry Agreement was originally signed in 2000 and renewed in 2018.

The North East Forest Alliance (NEFA) asked the Federal Court to declare that the renewed agreement did not meet the definition of such agreements under relevant laws.

On behalf of the alliance, the Environmental Defenders Office (EDO) argued the Commonwealth was required to assess environmental values and principles of ecologically sustainable management when it was renewed, but failed to do so.

These included impacts on endangered species, climate change and old growth forests.

Justice Melissa Perry today rejected that argument and ruled the requirement to assess environmental values applied only when the intergovernmental agreement began, not when it was extended.

Summarising her decision, the judge said the effect of a regional forest agreement was not to leave a "regulatory void" with respect to the regions covered by the agreement.

Rather, it provided an "alternative mechanism" by which the objectives of biodiversity laws could be achieved through intergovernmental agreement.

"The question of whether or not to enter into or vary an intergovernmental agreement of this nature is essentially a political one," Justice Perry said.

"The merits of which are matters for the government parties and not the courts to determine."

The evidence considered by the court

A deed extending the agreement was executed under former prime minister Scott Morrison and former premier Gladys Berejiklian.

As part of the extension, there was an assessment report which relied on published data and formal five-yearly reviews of regional forestry agreements.

But the EDO argued there was no "reasonably contemporaneous" assessment of the projected impacts of climate change on forests.

In her full written judgement, Justice Perry said there was no expert evidence presented to court allowing it to assess whether the information relied on to extend the agreement was out of date.

She also noted all parties agreed the Commonwealth was aware of and had published material recognising Australia's weather and climate were changing.

In relation to endangered species, the EDO argued material relied on at the time of renewal was also not reasonably contemporaneous.

But Justice Perry similarly highlighted a lack of expert evidence that would allow the court to assess that claim, including whether historical information was no longer relevant or whether more recent data on endangered species existed.

'People will take to the front lines'

Greens MP and former Environmental Defenders Office lawyer Sue Higginson said it was a disappointing outcome, although it was always a "very ambitious case" by NEFA.

She said the final words from Justice Perry in the court this morning that the matter was in the hands of politicians sent a "very strong message".

"I do suspect people will take to the front lines again, as they've been doing," Ms Higginson said.

North Coast Environment Council volunteer Ashley Love said an end to that type of logging is especially important as work progresses on the Great Koala National Park.

The park will connect 300,000 hectares of state forests and existing national parks between Coffs Harbour and Kempsey on the mid-north coast.

Premier Chris Minns said the government remained committed to the park but "doesn't mean that private plantations or forestry in NSW will immediately or should at any point in time come to an end".

"It's important to the colonies of koalas that are in danger in that part of NSW," he said.

The premier argued private plantations were vital for renewable energy, the construction sector and house building, while also supporting the local economy. 

"We still think that there's a strong future for forestry in NSW, but we are also open to innovative changes that could create a marketplace to drive economic growth," Mr Minns said.

"It's not as if local industries won't stop using hardwood and softwood if it was all of a sudden phased out overnight ... they're more likely to take it from virgin rainforest in Indonesia and Brazil than domestically."

The premier also foreshadowed changes under his government, including introducing a carbon offset scheme that could reward companies for not clearing areas that would otherwise be logged.

"This is an area of policy we haven't public explored before, but we are looking at potential carbon offsets as a new marketplace for the state," he said.

Forestry industry relieved

The case was the first challenge to a regional forestry agreement in NSW.

NSW Nationals leader Dugald Saunders welcomed the court's decision but said the industry needed more reassurance.

"Todays court case really reflects the desperation people have for the industry to continue," he said.

"We still need more from both levels of government, to actually clarify the commitment it has … around forestry continuing."

Prior to the decision, Mr Saunders said if the EDO won more than 5,000 workers could have been impacted.

President of Timber New South Wales Andrew Hurford said the industry was buoyed by the court's ruling today.

Mr Hurford said the Regional Forestry Agreement process was designed to managed the resource comprehensively, and that 87 per cent of forest in the region were reserved from harvesting.

"We just need a bit of balance here," he said. 

"We manage 12 per cent of the public estate in a sustainable fashion, very careful of the environment and very careful to ensure that we have timber availability into the future."

'It's not the same forest now as it was then'

North East Forest Alliance president Dailan Pugh disagreed with the reliance on an assessment done three years prior to the original agreement.

"It's extremely disappointing that the federal and state governments can do these regional forest agreements based on an assessment done in 1997, and to continually renew them," he said. 

He said the assessment was based on "reasonable information available at the time", but argued that more information was now available.

"We know that climate change ... is having a major impact on our threatened species," he said.

"It's not the same forest now as it was then, and our species have continued to decline despite the regional forest agreement.

"The judge has said it's not a legal issue, it's a political decision, so it's up to the politicians to decide whether that is an acceptable approach."