A landmark decision in the NSW Land and Environment Court could revolutionise how traditional owners across the country are compensated after cultural harm.
NSW Forestry Corporation was sentenced in March for illegally logging centuries-old giant trees in Wild Cattle Creek State Forest, north of Dorrigo on the state’s mid north coast.
Instead of receiving a fine, the logging company has entered into a restorative justice process with a local Aboriginal corporation aimed at preventing future offending.
It is the first time Forestry Corporation has entered into the process.
NSW Forestry Corporation illegally felled nine trees at Wild Cattle Creek State Forest in 2020. (Supplied: Nature Media Centre)
NSW Forestry Corp will pay $450,000 to Yurruungga Aboriginal Corporation under the sentence.
The funds will go towards projects including a healing ceremony, the development of a biological repair plan and cultural mapping of the area to prevent future harm.
“It feels both just and deeply bittersweet,” Yurruungga Aboriginal Corporation CEO Dean Kelly said in a statement.
“On one hand, it is a recognition of the harm done to our country and our people. On the other, it cannot undo the damage that has already occurred.”‘Significant and rare’ decision
The sentence handed down on March 13 comes after six years of legal action in the NSW Land and Environment Court.
In her written judgment, Justice Nicola Pain wrote that the crime had occurred in 2020 after NSW Forestry Corp employees used the incorrect methodology to identify giant and hollow bearing trees, which are protected by law.
NSW Environmental Protection Authority CEO Tony Chappel said the regulator took legal action after discovering six giant trees had been felled as a result.
Justice Pain’s judgement found that in November 2019, an EPA officer had attended a NSW Forestry Corporation training session for logging contractors that contained “incorrect guidance as to the measurement of giant trees”.
Mr Chappel said that the illegal logging at Wild Cattle Creek State Forest “may well have” been prevented if the EPA officer had alerted Forestry Corporation to the mistake.
“We all have to learn from it and continue to improve so we can do the right thing for the community and the environment,” he said.
Centuries-old giant trees were illegally felled at Wild Cattle Creek State Forest. (Supplied: Yurruungga Aboriginal Corporation)
Mr Chappel said the trees had significant cultural value.
“These trees were many centuries old and had deep spiritual and cultural significance to the Gumbaynggirr people in this region and their ancestors,” Mr Chappel said.
Director of First Nations with the Environmental Defenders Office (EDO), Jonathon Captain-Webb, said the decision to apply the restorative justice process was “significant and rare”.
“This is one of the first times that we’ve seen restorative justice applied in an environmental context,” Mr Captain-Webb said.
“It acknowledges that a fine is not the most appropriate way to deliver justice.
“These funds are being directed to an Aboriginal organisation to support the healing and the remediation of that country, instead of money simply going into government revenue.”
Mr Captain-Web said the process would be accessed by First Nations groups across the country, now that the judgment had been entered into common law.
Precedent for healing
Mr Kelly said senior Gumbaynggirr elders, including his uncle Richard Kelly, had long advocated for a compensation scheme to replace fines in cases of cultural damage.
“In the past, these penalties rarely returned to country, and rarely returned to the people who bear the burden of loss,” Mr Kelly said in a statement.
“[This judgement] opens the door for future repatriation of penalties to First Nations‑led organisations, so that when harm comes to country, Aboriginal people can be at the centre of healing and restoration.”
Dean Kelly (left) with Gumbaynggirr elder Alison Buchanan. (Supplied: Dean Kelly)
In a statement, NSW Forestry Corporation CEO Anshul Chaudhary apologised for illegally removing the trees.