Two years on from the black summer bushfires: continuing our work to protect native forests and wildlife

By EDO’s Biodiversity Team 

It has been just over two years since the Black Summer bushfires of 2019-2020 devastated landscapes, communities and wildlife across large parts of Australia. In this latest update, we outline how we have been working with clients and communities to seek enhanced protections for bushfire impacted ecosystems, flora and fauna; and how we continue to call on policy and law makers to overhaul laws in response to bushfire impacts, and to address the key driver of extreme weather and human-induced natural disasters – the changing climate. Concerningly, as we write this, unprecedented floods on the east coast, and bushfires in the west, have left communities and landscapes once again bearing the brunt of increasingly severe climate change impacts. 

Introduction 

In the immediate aftermath of the Black Summer fires, EDO was overwhelmed with calls and emails from people wanting to take action to both immediately protect devastated landscapes and step-up efforts to demand climate action. We worked with clients and communities to identify legal tools that could help people respond to the catastrophic events that unfolded that summer – see our earlier updates from January 2020, February 2020 and September 2020. 

While we have been vocal in highlighting the need for significant legal reform in response to the bushfires and anticipated future climate impacts, governments have been slow to respond, and a global pandemic has drawn attention away from the task at hand.  Work is still needed, with expert advice indicating that the time required for recovery of threatened and sensitive species after average fires ranges from around 10 – 120 years. 

We acknowledge that substantial effort has been directed towards assessing bushfire impacts, and restoration and recovery, but for the most part things have been allowed to continue ‘business-as-usual’. Many of our environmental and planning laws remain unchanged, and devastated natural areas remain at risk from key threats, including expanding urban and industrial development, agricultural activity, infrastructure development, and commercial logging operations. At the same time, little has been done to shore-up an effective legal framework to guarantee necessary action on climate change, including reducing emissions, managing climate risks, and planning for a just transition away from fossil fuel production and use, consistent with the best available science. 

In the absence of strong leadership and action, EDO’s Biodiversity Team has been working with clients and communities, using legal tools and opportunities available to us, to seek protection for wildlife and ecosystems, and to call for stronger laws.  

Protecting native forests 

EDO has been working to protect native forests from the damaging consequences of high-impact timber logging. Forestry operations have detrimental impacts on native forests, including on threatened plants and animals, water and soil quality, and carbon emissions. These impacts, which when compounded with other pressures such as climate change and declining biodiversity, and the devastation caused by the 2019-2020 bushfire season, put the health and sustainability of forests and the important ecosystems services that they provide at risk. Our key work has included the following. 

  • Challenging the North East Regional Forest Agreement (RFA): On 28 March 2022, we will be heading to the Federal Court on behalf of North East Forest Alliance, to challenge the North East NSW RFA.  We will argue that the Commonwealth’s failure to assess climate change, endangered species and old growth forest when extending the RFA in 2018 means that the RFA does not exempt native forest logging from assessment and approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). This is the first time a NSW RFA has been challenged in court, and, if successful, may have implications for other RFA agreements in New South Wales, as a well as Victoria, Tasmania and Western Australia. Read more here. 
  • In court to twice overturn approval of the Eden timber mill expansion: Throughout 2021, we acted in the NSW Land and Environment Court on behalf of South East Forest Rescue to challenge the approval of a new timber hub at the Eden chipmill on the New South Wales South Coast. The hub involves the construction and operation of a log sorter, sawmill, pallet plant and briquette plant – all aimed at processing smaller logs and using logging ‘waste’. Our client alleged that Bega Valley Shire Council did not consider the upstream impacts of timber harvesting that would supply the mill, including impacts on biodiversity and the climate.  While EDO was successful in having Council’s decision overturned twice (see decisions here and here), it was due to administrative errors in the Council’s decision-making process.  Our more substantive arguments on the upstream impacts of timber harvesting were not considered by the court due to our success on those administrative grounds. Ultimately however, the expansion was reapproved by Council in late 2021, given it had the benefit of carefully addressing those arguments. 
  • Providing expert evidence to the New South Wales Parliament: We are engaged in the ongoing NSW Parliamentary Inquiry into the forest and timber products industry in NSW. The inquiry has put a spotlight on the legal framework regulating forestry operations in NSW and highlights ongoing concerns about the future sustainability of logging native forests, particularly following the devastating 2019-2020 bushfire season. In our detailed submission, and appearance at the public hearing in September 2021, we called on the Parliamentary Committee to examine the scientific, economic, and environmental evidence as to the viability and sustainability of the forestry and timber products industry continuing to undertake forestry operations in native forests, particularly in the wake of the 2019-2020 bushfires. Read more here.  
  • Advising on the implications of the leaked Natural Resources Commission Report: In late November 2021, an excerpt from a NSW Natural Resources Commission report was leaked online.  The NRC was asked to provide independent, evidenced based advice on whether the Coastal Integrated Forestry Operations Approval was designed to mitigate the risks of harvesting in severely fire affected landscapes, such as those from the 2019-2020 bushfires.  The leaked excerpt indicates that the NRC called for an immediate halt to native logging in regions hit hard by the 2019-2020 bushfires.  In extreme risk areas, for example, the NRC found that “there is a risk of serious and irreversible harm to environmental values from the cumulative impacts of fire and harvesting.”   We are advising on the implications of those findings.   Despite being commissioned by the NSW Government, and finalised in June 2021, the NSW Government is yet to release the NRC Report, citing reasons of cabinet in confidence. 
  • Calling for the overhaul of Victoria’s forestry regulatory framework: Unlike other jurisdictions, the Victorian RFA framework includes a review mechanism that has triggered a ‘Major Event Review’ of Victoria’s RFAs following the 2019-2020 bushfires. This provides an opportunity to assess the impacts of the catastrophic 2019-2020 bushfire season on the operation of the Victorian RFAs and implement remedial actions. Read our submission to the Major Event Review here. We have also engaged in proposals to vary the Code of Practice for Timber Production in Victoria, calling for a comprehensive rewrite of the Code following the bushfires. 
  • Celebrating an end to native forest logging in Western Australia: In September 2021, the Western Australian government announced that native forest logging in the south-west of the State would end in 2024. As EDO’s WA Managing Lawyer Tim Macknay said at the time:  “This is a hugely significant moment in the fight for nature in Western Australia. 

Some of the first cases EDO ran in WA in the late 1990s were against logging operations and the issue has been front of mind for our office and our clients ever since. This win is a testament to the efforts of our clients – particularly the WA Forest Alliance and the South-West Forests Defence Foundation – some of whom have been fighting the logging industry for 50 years.” 

Protecting threatened species and their habitats 

While it is difficult to estimate the exact number of native animals impacted by the fires, some experts originally predicted it could be as many as 800 million in NSW and one billion nationally, with more recent analyses suggesting as many as three billion nationally. Some of our recent work aimed at protecting threatened species and their habitats includes: 

  • Working with clients to identify and nominate species and habitat for threatened species and critical habitat listing: For example, we recently welcomed the decision of the Federal Environment Minister to uplist the koala to endangered under the EPBC Act, following nomination from EDO clients WWF, IFAW and HSI – read more here. We continue to provide input on potential threatened species nominations, and opportunities to declare habitat as ‘critical’ under environment protection laws. 
  • Providing expert advice on overhauling biodiversity offset schemes: We have ongoing concerns about the overuse of biodiversity offsets and the effectiveness of offset schemes to halt or reverse the loss of biodiversity values. We continue to provide expert recommendations on overhauling offset rules, including, most recently by: 
  • Making written submissions and appearing at the public hearing of the Parliamentary Inquiry into the integrity of the NSW Biodiversity Offsets Scheme – read our submission here. 
  • Providing feedback on proposed changes to elements of the NSW Biodiversity Offsets Scheme, including Draft Mine Rehabilitation Ancillary Rules and the Biodiversity Conservation Fund charge system for offsets. 
  • Ongoing engagement in the comprehensive review of Queensland’s Environmental Offsets Framework. 
  • Calling on the Federal Environment Minister to better protect threatened species and endangered communities: In late 2021, we again wrote to the Federal Environment Minister, requesting action to ensure that the significant amount of work being undertaken on species recovery is not undermined by inadequate assessment of controlled action and approval decisions under the EPBC Act. 

Defending the Unburnt 

EDO continues our partnership with WWF to ‘Defend the Unburnt’, working with local communities, and decision-makers across the country to secure stronger legal protections for priority unburnt areas on the east coast of Australia – see more here.   

Some of the key work we have been doing, includes: 

  • Publishing a guide for landholders on private land conservation opportunities to protect unburnt landscapes– see here; 
  • Meeting with Members of Parliament, and policy makers, to discuss new and strengthened opportunities to protect unburnt areas – including, for example, increased funding for existing stewardship programs, and tightening of environmental protections in land clearing and forestry rules; 
  • Providing legal analysis of risks arising from new policy and laws – see for example, our Explainer on new rural boundary clearing codes and amendments to tree clearing rules in urban areas; 
  • Examining corporate duties to respond to climate and nature-based risks; 
  • Publishing Fact Sheets on key legal mechanisms for protecting threatened species and habitat in unburnt areas– see here; and  
  • Continuing to provide legal advice to individuals and groups concerned about inappropriate development, clearing and forestry activities being undertaken in bushfire impacts areas. 

Demanding action on climate change 

In all our work, we continue to call on policy and law makers to recognise the impacts of climate change, including extreme weather and human-induced natural disasters, as one of the key drivers of biodiversity loss and habitat destruction; and to protect carbon-rich ecosystems (including forests, woodlands, native grasslands, savannahs, peatlands, coastal and marine ecosystems such as mangroves, tidal marshes, kelp forests and seagrass meadows) as important carbon sinks. 

The work of EDO’s Biodiversity Team compliments EDO’s broader efforts to work with our clients and communities to hold decision makers, policy makers, and corporate leaders accountable for reducing emissions, managing climate change impacts and risks, and planning for a just transition away from fossil fuels.