A Law Unto Themselves? Australian Regulation of Forestry Operations by Thomas Ian Baxter BEc / LLB(Hons) (Tas), Grad Cert Leg Prac (Tas), LLM (ANU) Submitted in fulfilment of the requirements for the degree of Doctor of Philosophy, Faculty of Law, University of Tasmania, Hobart (November 2014) Declaration This thesis contains no material which has been accepted for a degree or diploma by the University or any other institution, except by way of background information and duly acknowledged in the thesis, and to the best of my knowledge and belief no material previously published or written by another person, except where due reference is made in the thesis, nor does the thesis contain any material that infringes copyright. Signed Thomas Ian Baxter Date Authority of Access This thesis may be made available for loan and limited copying and communication in accordance with the Copyright Act 1986 (Cth). Signed Thomas Ian Baxter Date ii Abstract This thesis critically examines federal environmental regulation of Australian forestry operations, particularly the effective exclusion of forestry operations in regional forest agreement [RFA] regions from Australia’s omnibus environmental statute, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) [EPBC Act]. The thesis tests the official rationale for this exclusionary policy, termed ‘RFA exceptionalism’, and where it leaves Australia’s compliance with key international environmental treaty obligations. Australia’s federal and State Governments and industry have asserted that RFAs (governed by the Regional Forest Agreement Act 2002 (Cth)) provide equivalent environmental protection to that of the EPBC Act. Therefore, they say, forestry operations undertaken in RFA regions do not require assessment under the EPBC Act. This thesis tests this justification for RFA exceptionalism, a policy embedded in both the EPBC Act and RFA Act. In particular, it assesses the Tasmanian RFA’s legal protection against two key objects of the EPBC Act (with equivalent goals in Australia’s National Forest Policy Statement 1992), to: • ‘provide for the protection of the environment, especially … matters of national environmental significance’;i and • ‘assist in the co-operative implementation of Australia’s international environmental responsibilities’.ii The schemes of the EPBC Act (applicable to all other industries which significantly impact matters of national environmental significance) and RFA Act are examined in Chapters 2 and 3 respectively. Research questions and hypotheses are then developed to test the Tasmanian RFA against the above two statutory aims. i Environment Protection and Biodiversity Conservation Act 1999 (Cth) s3(1)(a). ii Environment Protection and Biodiversity Conservation Act 1999 (Cth) s3(1)(e). iii Chapters 5-7 test the hypotheses, using prominent Tasmanian case studies to examine federal legal protection from forestry operations afforded to places of outstanding universal value deserving World Heritage listing; and threatened species. The case studies demonstrate, inter alia, the amendment of federal and State statutes and the Tasmanian RFA (‘shifting the goalposts’) to defeat environmental litigation (evidenced by subsequent judicial decisions examined in Chapters 6 and 7). The thesis proves that RFAs do not, as claimed, provide equivalent legal protection to the EPBC Act. Accordingly, that claimed justification for excluding RFA forestry operations from the EPBC Act is a false premise. Moreover, the Australian Government has, through the RFA regime, largely abandoned the regulatory playing field – effectively leaving forestry regulation to the States. In so doing the Australian Government has abdicated its responsibility to ensure that Australia fulfils its environmental treaty obligations. Thus, the current federal environmental regulation of Australian forestry operations is manifestly inadequate. It appears a case of ‘systemic capture’. Law reform is therefore recommended to overhaul the current regime of RFA exceptionalism, in order to promote a level playing field and fulfilment of Australia’s environmental treaty obligations purportedly implemented by the EPBC Act. iv Acknowledgments This thesis would not have been completed without the invaluable support of my supervisors, colleagues, family and friends who have assisted along the way, and to whom I owe a great debt of gratitude. In particular, I acknowledge a few of many who have helped First and foremost, I gratefully acknowledge and sincerely thank my supervisors, Rick Snell and Michael Stokes, for their guidance, patience, persistence and so many insightful comments on my many drafts, way above and beyond any call of duty. I also thank Marcus Haward and Lorne Kriwoken, research supervisors, and for their forbearance as colleagues in a CSIRO Wealth from Oceans Cluster grant which overlapped the timeframe of this thesis. Thank you also Peter Wilde, Geoff Baxter and Richard Baxter for proof-reading my chapters so ably and carefully. Thanks to academic and professional staff of both the Faculty of Law and Tasmanian School of Business and Economics for all their assistance, collegiality and support. Thanks to colleagues in the former School of Accounting and Corporate Governance who shouldered my teaching load at critical stages. Thanks to Law staff, both on and off the badminton court. Thanks to Deb Bowring in the Law Library for EndNote expertise during its various versions and my replacement computer. Thanks to Elise Clark and Robyn Lewis for their dedicated work helping me format no end of tedious references. Last, but by no means least, special thanks to Eloise. And all my family for their love and support in so many ways during the journey of this PhD and in life generally. This thesis is dedicated to the late Susan Hrasky, Head of the School of Accounting and Corporate Governance. Thank you, Sue, for all your dedication, friendship, support and wise counsel. v Acronyms and Abbreviations CAR comprehensive, adequate and representative CBD Convention on Biological Diversity CFMEU Construction, Forestry, Mining and Energy Union COAG Council of Australian Governments CRA comprehensive regional assessment Cth Commonwealth [of Australia], designating a federal/national statute DAFF Department of Agriculture, Fisheries and Forestry (now named Department of Agriculture), a Cth agency EIA environmental impact assessment ENGO environmental non-government organisation EPBC Act Environment Protection and Biodiversity Conservation Act 1999 (Cth) ESD ecologically sustainable development ESFM ecologically sustainable forest management ( exm RFA exceptionalism FPST Forest Practices System of Tasmania FT Forestry Tasmania GBE Government Business Enterprise Gunns Gunns Limited HCVF high conservation value forests vi H1 Hypothesis 1 H2 Hypothesis 2 HEC Hydro Electric Commission (renamed Hydro Electric Corporation) IGAE Intergovernmental Agreement on the Environment 1992 MEA multilateral environmental agreement MNES matter(s) of national environmental significance NAFI National Association of Forest Industries (later renamed Australian Forest Products Association) NES national environmental significance NFPS National Forest Policy Statement 1992 NSW New South Wales PM Prime Minister PMA Act Pulp Mill Assessment Act 2007 (Tas) RFA regional forest agreement RFA Act Regional Forest Agreements Act 2002 (Cth) RMPST Resource Management and Planning System of Tasmania RPDC Resource Planning and Development Commission (now TPC) RQ Research Question SEQ South East Queensland SEQFA South East Queensland Forest Agreement SOFR Australia’s State of the Forests Report 2008 vii Tas Tasmania (designating a Tasmanian statute) TPC Tasmanian Planning Commission TRFA Tasmanian Regional Forest Agreement 1997 TWS The Wilderness Society TWWHA Tasmanian Wilderness World Heritage Area UNCED United Nations Conference on Environment and Development 1992 VCLT Vienna Convention on the Law of Treaties WA Western Australia WHC World Heritage Convention WHPC Act World Heritage Properties Conservation Act 1983 (Cth) viii Table of Contents Chapter 1 Introduction ............................................................................................... 1 Chapter 2 EPBC Act ................................................................................................ 55 Chapter 3 Regional Forest Agreement (RFA) Exceptionalism .............................. 111 Chapter 4 Forest Practices System of Tasmania (FPST) v RFA Exceptionalism 181 Chapter 5 World Heritage and the Tasmanian Wilderness World Heritage Area 229 Chapter 6 Promises to Protect Threatened Species and the Wielangta Case ......... 279 Chapter 7 Environmental Impact Assessment: eg Gunns Limited’s Pulp Mill ..... 355 Chapter 8 Conclusion: the Need for Law Reform ................................................. 393 References ............................................................................................................... 459 Appendix Selected Statutory Provisions and Maps ............................................... 489 Declaration ................................................................................................................... ii Authority of Access ...................................................................................................... ii Abstract .................................................................................................................. iii Acknowledgments .......................................................................................................