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Forestry Commission of New South Wales v. Corkill

Country/Territory
Australia
Type of court
National - higher court
Date
Nov 1, 1991
Source
UNEP, InforMEA
Court name
Supreme Court of New South Wales
Judge
Mahoney
Meagher
Handley
Reference number
73 LGRA
Language
English
Subject
Wild species & ecosystems, Forestry
Keyword
Forestry licence/permit Authorization/permit Protected animal species Forest management/forest conservation
Abstract
The Forestry Commission of New South Wales proposed to carry out a programme of logging in the Chaelundi State Forest. It was common ground that the result of carrying out that logging would be the disturbing or killing of protected fauna. The issue to be determined was whether that would involve a contravention of s 98 or s 99 of the National Parks and Wildlife Act 1974 (NSW). Mr. Corkill had brought proceedings in the Land and Environment Court of New South Wales in respect of the proposal. That court had declared that the proposal, if carried out by logging and roading activities, would be “likely to disturb or injure” various endangered species within the Act. The Commission had appealed to this Court against that declaration. The Supreme Court affirmed that protected fauna would be disturbed and/or killed. That was accepted to be the unintended but necessary result of the carrying out of the logging proposal. The court then analyzed whether this would result in breaches of s 98 or s 99 of the National Parks and Wildlife Act 1974. In the opinion of the court, both s 98 and s 99 applied to the Commission’s proposal. Section 98 related to protected fauna that was not endangered. A person who took or killed protected fauna within s 98 was not liable to conviction for an offence against that section if he proved “that the act constituting the offence was done… in pursuance of a duty imposed on him by or under any Act” (s 98(3)(b)). The duty imposed upon logging companies by the relevant licenses was, in the court’s view, a duty imposed by or under the Forestry Act and therefore the killing protected fauna within s 98 would not give rise to a conviction for an offence. The position was, however, different in respect of s 99. Section 99 related to protected fauna that was additionally endangered. Section 99(3) provided that where the provisions of an Act “authorize or require anything to be done that would constitute an offence” under s 99(1), “the provisions of this section prevail.” That meant that, notwithstanding that what was done may have been done pursuant to another Act, the taking or killing of endangered fauna would constitute an offence under s 99. Therefore, the proposal by the Forestry Commission would involve, at least, the commission of an offence by the logging companies under s 99. The appeal was dismissed.
Full text
COU-143777E.pdf

References

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