North East Forest Alliance Inc v Commonwealth of Australia [2024] FCA 5

FEDERAL COURT OF AUSTRALIA

North East Forest Alliance Inc v Commonwealth of Australia [2024] FCA 5 File number(s): NSD 773 of 2021

Judgment of: PERRY J

Date of judgment: 10 January 2024

Catchwords: ENVIRONMENTAL LAW — construction of the Regional Forest Agreement Act 2002 (Cth) (RFA Act) — where a Variation Deed extended the existing Regional Forest Agreement for North East New South Wales (the NE RFA) — whether the varied NE RFA was still an RFA for the purposes of the RFA Act — where the definition of an RFA in s 4 of RFA Act requires an RFA to be "entered into" having regard to assessments of various matters — whether the phrase "entered into" is apt to encompass extensions of an existing RFA — where ordinary meaning of term "entered into" captures only the entry into an RFA, and not amendments to that RFA — where ordinary meaning confirmed by the context of the RFA Act — where RFA Act envisages that government parties can extend RFA without new assessments being required — where RFAs address a subject matter involving a balance of competing interests likely to evolve over time, and RFA Act left open possibility that government parties could negotiate amendments to existing RFAs — held: no requirement that extension to existing RFAs must have regard to new assessments ENVIRONMENTAL LAW — whether assessments must be sufficiently evaluative and reasonably contemporaneous for agreement to fall within the definition of RFA — where assessments must be "relevant to the region or regions" — where assessments occur with respect to open-textured "values" and "principles —where introduction of requirements of reasonable contemporaneity and sufficiency would introduce uncertainty contrary to the purpose of the RFA Act— held: there is no implied requirement that regard must be had to assessments of the matters in para (a) of the definition which are sufficiently evaluative or reasonably contemporaneous ENVIRONMENTAL LAW — whether assessments adequately had regard to climate change, endangered species and old growth — where climate change not an enumerated value with respect to the matters specified in the RFA definition — where assessments had regard to environmental values and principles of ecologically sustainable management relevant to the regions — where assessments also considered the impacts of climate change —where assessments of endangered species focused on the adequacy of State regulatory framework to manage that concern — where focus on State regulatory framework appropriate, given entry into RFA displaces approvals process for certain actions under Commonwealth legislation in favour of a State Regulatory Framework — where Assessment Report assessed the available data with respect to old growth — held: applicant's claims that the assessments were not sufficient to the Varied NE RFA to meet the definition of an RFA dismissed