Thu Jun 8

Has time been called on the native forest logging deals of the 1990s? Here's what the Albanese government can do

Written by Peter Burnett, Honorary Associate Professor, ANU College of Law, Australian National University

Victoria recently announced an end to native forest logging ^[1] in December 2023, six years earlier than previously announced ^[2]. Western Australia is ending it from January 2024 ^[3]. The Greens and independent federal MPs are now calling on the Albanese government to end native forest logging nationally ^[4].

These developments are already destabilising the federal government’s environmental law reform agenda, and could even derail it.

While the states regulate forestry, the Commonwealth does have constitutional powers to intervene. But it could then face legal claims for compensation, as well as fierce opposition from the logging industry and unions.

Ultimately, though, the government’s hand may be forced.

Anti-logging protesters, including one dressed as Premier Dan Andrews wielding a chain saw, stand in front of the state parliament

Following a campaign that led to a court decision against the state-owned VicForests, the Andrews government will end native forest logging earlier than planned. Joel Carrett/AAP

Decades of disputes coming to a head

The disputes over forestry in Australia go back to the early 1970s. That was when environmentalists began fighting the clearing of native forests to make way for federally funded softwood plantations and the exporting of native timber woodchips.

Later forest battles in the 1980s, including over World Heritage nominations, brought forests such as the Daintree ^[6] in Queensland and the Lemonthyme ^[7] in Tasmania to public attention.

Prime Minister Paul Keating struck a deal with the premiers in 1992. All governments committed to the National Forest Policy Statement ^[8] and to regional forest agreements ^[9] (RFAs). They agreed to cooperate to conserve the forest environment while encouraging the forestry industry.

Later that decade the Howard government negotiated ten regional agreements, covering forests in New South Wales, Victoria, Western Australia and Tasmania. Queensland negotiated its own RFA-like deal for its south-east region. Logging there is due to end from 2024 ^[10].

Each agreement would last 20 years, but be reviewed every five. These agreements were exempt from the Commonwealth’s shiny new Environment Protection and Biodiversity Conservation (EPBC) Act. The rationale was that the agreements had already gone through their own environmental approval process.

Agreements face fresh scrutiny

Fast-forward to 2023. The regional forest agreements have all been reviewed and rolled over for up to 20 years.

All is not sweetness and light, however. The agreements have been heavily criticised for setting a lower environmental bar than the EPBC Act ^[12], made worse by being poorly implemented and enforced.

In 2021, when the WA government announced ^[13] it would end native forest logging, it cited environmental reasons and declining timber yields.

Then, last November, Victorian environment groups managed to win two Supreme Court cases ^[14]. Essentially, they won on the ground that the state-owned VicForests was not following ecological protocols put in place for regional forest agreements.

This brought logging to a temporary halt, now made permanent after this year. No doubt the extra cost of complying with the protocols was a major factor in the decision.

Federally, a review in 2020 of the EPBC Act by Professor Graeme Samuel recommended ^[15] regional forest agreements be subject to proposed new National Environmental Standards ^[16]. These standards are now the centrepiece of the Albanese government’s Nature Positive Plan ^[17] reforms.

The government committed to “work towards” bringing the forestry agreements under the new standards. But it has yet to spell out the detail. The future of forestry in NSW, Tasmania and Queensland remains unclear.

protesters bearing placards gather in front of a big gum tree in a forest

Protesters gather around Big Spotty, possibly the tallest spotted gum in the world, in a NSW forest slated for logging this year. Dean Lewins/AAP

What could the feds do?

What can the Commonwealth actually do? Can it at least raise the environmental bar for native forest logging to the same standard as for everything else, if not more?

The states directly regulate forestry and are in the forestry business themselves. The easiest way to raise environmental standards then would be for the remaining forestry states to take their own action. However, the prospects of that happening are unclear.

A 2022 plan by the then Perrotet government to end native forest logging in NSW was blocked ^[19] by the junior Coalition partner, the Nationals. Queensland’s review ^[20] of its native timber industry remains ongoing after two years. Tasmania remains committed ^[21] to its forest industry.

Even though the Commonwealth has preferred to pull strings from a distance, through national policy and regional forest agreements, it does have constitutional powers up its sleeve. These powers include the capacity to protect biodiversity directly in implementing the international Convention on Biological Diversity ^[22].

Problems are less a matter of powers than politics

The problems lie more on the policy side. With the non-Victorian forestry agreements renewed for 20 years, the industry will cry foul if new environmental standards take more forest acreage out of play. They also have a card up their sleeves. The agreements provide for the Commonwealth to pay compensation if it passes legislation to increase environmental protection in the forests.

On the other hand, a standard for forests that made little difference to current forestry, or which took effect only after agreements expire, would be unacceptable to environment groups.

Then there is the crossbench push to override regional forest agreements and ban native forest logging across the nation. Given its liking for small-target approaches, it’s hard to see the Albanese government coming at something with such sweeping implications, including for union members, despite agitation ^[24] from Labor’s own environment ginger group, LEAN ^[25].

Then again, the government might not have much choice.

In Victoria, the courts forced the state government’s hand. For the Albanese government, it may be the Senate, where the crossbench has the power to hold the government’s entire environmental reform package to ransom.

It seems time is being called on the forest settlement of the 1990s. The government could use the time between now and next year’s Senate debate on its reform package to work up a new approach. It could be built around forest restoration, conservation and Indigenous empowerment, as experts are proposing ^[26].

If it doesn’t, we are headed for quite a stoush.