Compliance of NE NSW Forestry with Commonwealth Threatened Species Requirements Compliance of Forestry Operations in North East New South Wales with Commonwealth Requirements for Threatened Species and Ecosystems. Dailan Pugh, North East Forest Alliance, September 2018. PREFACE This report reviews the protection applied both in theory and practice to nationally threatened species and ecological communities in forestry operations in the North East NSW Regional Forest Agreement (NE RFA) area. On public lands in north-east NSW logging is regulated by the Integrated Forestry Operations Approvals (IFOAs) (one for Upper North East and one for Lower North East) and the appended Environment Protection Licences, Threatened Species Licences and Fisheries Licences. The NSW Government is currently proposing on amalgamating all IFOAs and Licences for eastern NSW (including Eden and Southern) into a single Coastal IFOA. For private lands the Private Native Forestry Code of Practice (PNF Code) was introduced by the NSW Government in August 2007 and sets the minimum operating standards for harvesting in private native forests. The NSW Government is currently undertaking a review of the PNF Codes. This review provides numerous examples where logging prescriptions specified in IFOAs and the PNF Code are not compliant with Commonwealth Recovery Plans and Conservation Advices and where logging prescriptions are regularly and systematically not applied in practice. Federally listed threatened species and ecosystems are not being provided with the protection intended and often legally required. The PNF Code generally provides no real species-specific protection for threatened species, while the new Coastal IFOA is proposing reducing or removing most current species- specific protection for threatened species while significantly increasing logging intensity. In summary this review finds: 1. Many Federally threatened species are not covered by Recovery Plans, have Recovery Plans that have expired or are not required to have Recovery Plans. 2. It is apparent that many Recovery Plans, particularly multi-species plans, fail to consider logging impacts or provide sufficient guidance on how to address forestry impacts and guide the recovery of threatened species. 3. While Recovery Plans are required by the NE RFA to be accounted for in logging operations, in practice Recovery Plans and Conservation Advices are generally ignored when planning and undertaking forestry operations. 4. One of the key requirements of numerous Recovery Plans and Conservation Advices (as well as being an ESFM principle) is to monitor the effectiveness of logging/management prescriptions and adjust them accordingly (adaptive management), yet it appears that in the past 20 years only 5 plant species have been subject to token monitoring and despite significant damage to those species there has yet been no change to prescriptions. For most prescriptions there are no performance measures and Government's apparently don't care if they are effective. 5. In practice Threatened species management prescriptions are often breached and yet there is little meaningful enforcement or consequences, and rarely any rehabilitation or compensatory habitat requirements. 1 Compliance of NE NSW Forestry with Commonwealth Threatened Species Requirements 6. On private lands there are numerous prescriptions for threatened species, though as there are few records of threatened species on private lands and no requirements to survey for them, they are rarely provided any protection in practice. Without surveys to trigger species- specific prescriptions they are tokenistic. 7. The Commonwealth Government uses the existence of an RFA as an excuse for ignoring the impacts of forestry on threatened species, irrespective of whether Recovery Plans and prescriptions are complied with or whether prescriptions are weakened or removed. 8. The NSW Government uses the existence of an RFA as an excuse for ignoring Federal Recovery Plans, Conservation Advices and new listings. 9. The proposed new Coastal IFOA removes and reduces protection for most Federally listed threatened species. 10. The proposed new Coastal IFOA proposes significantly increasing logging intensity, removing the need to retain most mature trees (nectar feed trees and recruitment habitat trees), reducing riparian buffers, and logging oldgrowth and rainforest in Informal Reserves and yet none of the retained prescriptions for threatened species have been increased to take this into account. Given the abject failure of NSW's legislative processes to demonstrate that they provide meaningful or adequate protection for Commonwealth listed Threatened species, the frequency with which management intent does not comply with Recovery Plans and Conservation Advices, the demonstrated failure to often implement prescriptions, and NSW's intent to significantly increase logging intensity and reduce protection for Threatened species, the Commonwealth needs to ensure that there is a significant re-write of the Threatened species provisions of the IFOA and PNF Code to ensure that they implement the identified recovery actions and provide the protection required for nationally Threatened species and ecosystems. NEFA's submission to the Regional Forest Agreement Review (Pugh 2018) demonstrates serious non-performance in the NE RFA area, including: failure to implement forestry codes of practice, failure to implement recovery plans for threatened species, failure to establish management plans for CAR reserves, failure to implement or enforce the ESFM framework and failure to correct proven and ongoing breaches of the RFA. This report more comprehensively details the relevant requirements of national Recovery Plans and Conservation Advices, the NSW legislative protections for threatened species and ecosystems, and examples of compliance from the very small sample of operations inspected by NEFA over the years. Recovery Plans are the principal measure relied upon by the Commonwealth to safeguard nationally listed threatened species. Unfortunately most threatened species are not covered by Recovery Plans, and many plans are either out of date or so vague as to be ineffective. Conservation Advices are the only federal direction offered for most threatened species and these have limited, if any, effect as they are not required to be complied with. Clause 62 of the NE RFA states that "The Parties agree that the management prescriptions or actions identified in jointly prepared and agreed Recovery Plans or Threat Abatement Plans will be implemented as a matter of priority, including through the Integrated Forestry Operations Approval on State forest". It is apparent that there is a comprehensive failure to incorporate nationally identified actions from Recovery Plans and Conservation Advices into NSW's legislative controls for logging operations on public lands, private lands and plantations. All the alterations made to the NSW Integrated Forestry Operations Approvals (IFOAs), and associated licences since 1998, have been aimed at reducing or removing protections for threatened species to make more areas and trees available for logging. There has not been a single change aimed at implementing a Recovery Plan requirement or improving the protection for any threatened species. 2 Compliance of NE NSW Forestry with Commonwealth Threatened Species Requirements Hawke (2009) identifies "Rather than being an exemption from the Act, the establishment of RFAs (through comprehensive regional assessments) actually constitutes a form of assessment and approval for the purposes of the Act. ... RFAs should be regularly monitored and audited to ensure they continue to meet the agreed conditions of that approval", noting: Key matters to consider when undertaking a review should be whether the following have been demonstrated: • the state's ESFM framework is capable of adapting to new information in a timely manner – this could include systems to ensure harvesting plans are consistent with recovery plans, conservation advice and action statements; • matters of NES are consistently and uniformly incorporated into the state's ESFM framework and given appropriate consideration (consistent with information provided under the Act, such as listing advice); The ESFM requirements under the NSW IFOAs are merely "non-licence" requirements that nobody is responsible for enforcing. As a consequence many of the basic principles of ESFM are openly and regularly flouted (Pugh 2018). The Threatened Species Licence (TSL) and Fisheries Licence (FL) issued under the IFOAs do theoretically provide some legally enforceable protection for threatened species though these are poorly applied and policed. The proposed Coastal IFOA seeks to integrate the TSL and FL into the IFOA, though in the process removes or reduces the protection for most threatened species. Application of prescriptions in the real world is where the process can often fail. In practice poor implementation is a common occurrence in NSW. NEFA considers that this is testimony to regulatory failure in NSW. Even the small sample of convictions Justice Pepper (Director-General, Department of Environment, Climate Change and Water v Forestry Commission of New South Wales [2011] NSWLEC 102) reviewed led her to conclude: However, in my view, the number of convictions suggests either a pattern of continuing disobedience in respect of environmental laws generally or, at the very least, a cavalier attitude to compliance with such laws. ... Given the number