Bob Brown Foundation Inc v Commonwealth of Australia [2021] FCAFC 5

Bob Brown Foundation Inc v Commonwealth of Australia [2021] FCAFC 5

The separate question was answered yes because the definition of "RFA" in s 4 of the Regional Forest Agreements Act 2002 (Cth), read in text, context and purpose, does not require the Tasmanian RFA's provisions concerning the CAR Reserve System and ecologically sustainable forest management to create legally enforceable obligations. The phrase "agreement that is in force" is equivocal in the context of an intergovernmental agreement dealing with environmental and economic policy, and the RFA Act was enacted on the footing that the existing Commonwealth-Tasmania agreement was an RFA. The RFA Act gives effect only to certain Commonwealth obligations and does not make legal enforceability of...

Jurisdiction
Australia
Judgment Date
03 February 2021
Procedural Posture
Environmental Law Proceeding Concerning Forestry Operations, Threatened Species and Regional Forest Agreement Status / Separate Question Reserved Under S 25(6) of the Federal Court of Australia Act 1976 (cth) for Determination by the Full Court, Together With an Application for Declaratory Relief
Outcome
Separate question answered "Yes"; application for declaratory relief dismissed; costs submissions to be filed unless agreement is reached.
Legal Topics
['regional Forest Agreements' 'environmental Protection and Biodiversity Conservation Act 1999 (cth)' 'regional Forest Agreements Act 2002 (cth)' 'listed Threatened Species' 'swift Parrot' 'forestry Operations' 'comprehensive, Adequate and Representative Reserve System' 'ecologically Sustainable Forest Management' 'legal Enforceability of Intergovernmental Agreements' 'incorporation by Reference']
['environmental Law' 'administrative Law' 'statutory Interpretation'] ['regional Forest Agreements' 'environmental Protection and Biodiversity Conservation Act 1999 (cth)' 'regional Forest Agreements Act 2002 (cth)' 'listed Threatened Species' 'swift Parrot' 'forestry Operations' 'comprehensive, Adequate and Representative Reserve System' 'ecologically Sustainable Forest Management' 'legal Enforceability of Intergovernmental Agreements' 'incorporation by Reference']

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Procedural Posture

Environmental Law Proceeding Concerning Forestry Operations, Threatened Species and Regional Forest Agreement Status / Separate Question Reserved Under S 25(6) of the Federal Court of Australia Act 1976 (cth) for Determination by the Full Court, Together With an Application for Declaratory Relief

Legal Issues

  1. 1 ['Whether the Tasmanian RFA is an "RFA" or "Regional Forest Agreement" for the purposes of the Regional Forest Agreements Act 2002 (Cth) and s 38(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).' 'Whether an agreement must impose legally enforceable obligations concerning a CAR Reserve System and ecologically sustainable forest management to satisfy the definition of "RFA" in s 4 of the Regional Forest Agreements Act 2002 (Cth).' 'Whether matters material to the CAR Reserve System or ecologically sustainable forest management can be subject to unilateral amendment from time to time by Tasmania without preventing the Tasmanian RFA from satisfying the statutory definition.' 'Whether s 46AA(1)-(2) of the Acts Interpretation Act 1901 (Cth) prevented the Tasmanian RFA from applying, adopting or incorporating material as in force or existing from time to time.']

Ratio Decidendi

The separate question was answered yes because the definition of "RFA" in s 4 of the Regional Forest Agreements Act 2002 (Cth), read in text, context and purpose, does not require the Tasmanian RFA's provisions concerning the CAR Reserve System and ecologically sustainable forest management to create legally enforceable obligations. The phrase "agreement that is in force" is equivocal in the context of an intergovernmental agreement dealing with environmental and economic policy, and the RFA Act was enacted on the footing that the existing Commonwealth-Tasmania agreement was an RFA. The RFA Act gives effect only to certain Commonwealth obligations and does not make legal enforceability of...

Court Disposition

Separate question answered "Yes"; application for declaratory relief dismissed; costs submissions to be filed unless agreement is reached.

Orders

  • ['The question reserved under s 25(6) of the Federal Court of Australia Act 1976 (Cth) for hearing and determination by the Full Court was answered "Yes".' "The application for declaratory relief in terms of paragraph 1 of the applicant's amended originating application dated 28 September 2020 was dismissed."...