On 8 June 2011, the Land and Environment Court gave its decision in Director-General, Department of Environment, Climate Change and Water v Forestry Commission of New South Wales  NSWLEC 102.
In this case, the Court considered whether the Forestry Commission of New South Wales was in breach of the National Parks and Wildlife Act 1974 (NSW) (NPW Act) when it carried out bush fire hazard reduction resulting in the burning of a critically endangered habitat in a national park.
The Forestry Commission of NSW (Commission) pleaded guilty to the offence against s175(1)(a) of the NPW Act of contravening a condition attached to its threatened species licence (Licence), contrary to s133(4) of the NPW Act. The bush fire hazard reduction took place between 29 April 2009 and 21 May 2009 and resulted in the burning of over 90 per cent of the Smoky Mouse habitat in the Nullica State Forest.
Justice Pepper of the Land and Environment Court convicted the Commission of the offence, and imposed a penalty of $8,000 (which was discounted to $5,300) to be paid to the Office of Environment and Heritage (formerly the Department of Environment, Climate Change and Water) (OEH). The maximum penalty for a corporation under s175 of the NPW Act is $22,000. In addition, the Commission was ordered to pay OEH's legal costs of $19,000 and undertake a number of specified monitoring activities over three years with respect to the Smoky Mouse habitat, including the deployment of remote cameras at various sites, the assessment of camera data over a period of three years and undertaking vegetation plot monitoring and data analysis for three years.
The Commission is responsible for conducting forestry operations in the Nullica State Forest and undertakes hazard reduction burning subject to the terms of the Licence it holds under Part 6 of the Threatened Species Conservation Act 1995 (NSW) (TSC Act).
The Smoky Mouse (Pseudomys fumeus) is listed as critically endangered under Schedule 1 of the TSC Act. The conditions of the Licence and the Eden Integrated Forestry Operations Approval excluded identified forest activities within 100 ha of the Smoky Mouse habitat, referred to as "Smoky Mouse exclusion zones". The relevant Smoky Mouse exclusion zone (exclusion zone) that was burned was contained within compartment 717.
In July 2008, the Commission approved a Hazard Reduction Burn Plan in compartment 717, adjacent to the exclusion zone. On 29 April 2009, the hazard reduction burn was carried out by the Commission. As the exclusion zone was unclear on the burn map, no measures were put in place to prevent the burn from spreading into the exclusion zone. On 14 May 2009, OEH officers observed an active fire within the exclusion zone, and the Commission indicated its intention to extinguish the fire and inspect the exclusion zone. By 21 May 2009, the fire had extinguished itself. Subsequently, the Commission carried out a full investigation into the incident and introduced procedural measures to address deficiencies in the Commission's processes that led to the offence being committed, and additional monitoring with respect to the Smoky Mouse, implemented at a cost of $10,000. Notably, prior to this incident, OEH had issued informal and formal warnings to the Commission in respect of breaches of licence conditions in the exclusion zones.
The Court made the following findings:
- the Commission's conduct in causing the burn to extend to the exclusion zone (contrary to a condition of its Licence) undermined relevant protective regulatory schemes and impeded the achievement of ecologically sustainable development
- whilst there was no evidence of any actual harm caused to the Smoky Mouse, the potential for short-term adverse impact was "real" due to the sizable area of habitat affected by the burn and the endangered status of the species. Further, the Court found that the burn caused "likely environmental harm"
- the Commission was aware of the presence of Smoky Mouse in parts of the Forest and the need to protect them, had received warnings from OEH with respect to breaches of its Licence, and notification from OEH of the cumulative impacts of forestry activities on the species. The established procedures of the Commission did not ensure OEH's forewarnings were appropriately dealt with and the accident was therefore not unforeseen
- there were several simple and inexpensive practical measures that could have been taken to ensure the staff members who conducted the hazard reduction were aware of the exclusion zone and the need to prevent harm to the environment
- the Commission had control over the operations
- the offence was not committed intentionally or deliberately.
In considering the subjective circumstances of the offence, the Court considered that the:
- Commission had been prosecuted for eight prior environmental offences. Whilst the Court held that the offences were all pollution related offences and were dissimilar in nature to the present offence, the Court held that the number of convictions suggested a "pattern" or "continuing disobedience" of environmental laws in general. The Commission's prior offending was therefore held to be an aggravating factor in sentencing
- Commission notified OEH of its intention to plead guilty on the first occasion it appeared represented in the matter, and was entitled to the full utilitarian discount of 25 per cent
- Commission fully cooperated with OEH at all times
- Commission's "good character" was reflected by relevant procedural measures and additional restorative and ameliorative measures implemented by the Commission at a cost of $10,000, and evidence of contrition and remorse adduced at trial. Notably, however, the Court rejected the Commission's assertion that its plea of guilty was sufficient in showing remorse
- Commission agreed to pay OEH's costs
- penalty must act as a general deterrence to others, and as a specific deterrence to the Commission in light of its prior history of breaching environmental laws
This case confirms the fundamental importance of complying with the conditions of threatened species licences and the willingness of the Court to impose monetary penalties and enforce various species monitoring measures.
Importantly, in this case, the potential for short-term harm to the species and likely environmental harm was sufficient for a conviction. Whilst the offence was not committed intentionally or deliberately, the accident was not unforeseen, and the Commission had failed to implement simple, inexpensive measures to prevent harm to the environment.
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