Community group's 'historic' win against Forestry Corp will go to High Court

A community environmental group’s legal fight against the Forestry Corporation of NSW (FCNSW) is far from over, as the matter will now go before the High Court.

On Thursday (5 September), the High Court granted FCNSW special leave to appeal a decision by the NSW Court of Appeal from earlier this year, in which it had lost to South East Forest Rescue (SEFR).

There is a somewhat complex history to the matter.

SEFR wanted to sue Forestry to stop certain logging operations unless it took steps to minimise the effects of those operations on the southern greater, yellow-bellied and squirrel gliders.

But the NSW Land and Environment Court originally dismissed SEFR’s proceedings, finding in part that the organisation did not have a “special interest” in the subject matter and therefore lacked the legal “standing” required to bring such action.

SEFR appealed this decision and earlier this year, the three-judge Court of Appeal unanimously ruled in its favour, finding it did have a “special interest” in the issue.

At the time, a lawyer for SEFR described it as “a historic and momentous decision”.

The proceedings were remitted back to the Land and Environment Court, but in the meantime, Forestry went to the High Court.

It is understood that the issue before the High Court will be around the issue of legal “standing”.

Also, while the High Court granted FCNSW special leave to appeal on Thursday, it was on the condition that it pay SEFR’s legal costs.

FCNSW had 14 days to lodge an appeal, which would then take place at a date to be set.

“The application to the High Court was necessary to provide clarity over who has authority to bring civil enforcement proceedings in relation to public native forestry in NSW,” a spokesperson for the Forestry Corporation told Region.

“The NSW Environment Protection Authority has strong regulatory powers and will continue to use these to enforce the environmental rules while this matter is clarified, as they have done for the past 20 years.”

A spokesperson for SEFR said their organisation claimed FCNSW had conducted unlawful logging, but its case couldn’t be heard and determined in court until the question of whether it could bring Forestry to court had been decided.

SEFR’s Scott Daines told Region he had “mixed feelings” about the fact the matter would go before the High Court.

“It’s good the High Court has taken an interest and once and for all will make a determination on whether third parties can take Forestry to court,” he said.

“Unfortunately, the sad part about this whole process is in the meantime, greater gliders are getting killed left right and centre across NSW.

“I think Forestry is using this as a delaying tactic … they are wasting huge amounts of taxpayers’ money in the process.”

In late July, Forestry was fined $360,000 after breaking conditions designed to help a Far South Coast forest recover from the Black Summer bushfires.