A landmark judgment in the New South Wales Land and Environment Court could revolutionize the way traditional owners across the country are compensated for cultural harm.
In March, the NSW Forestry Corporation was found guilty of illegally felling centuries-old trees at Wild Cattle Creek State Forest, north of Dorrigo on the state’s mid-north coast.
Instead of receiving a fine, the logging company began restorative justice proceedings with a local Aboriginal company, with the aim of preventing future violations.
This is the first time that the Forestry Corporation has entered this business.
NSW Forestry Corporation illegally felled nine trees in Wild Cattle Creek State Forest in 2020. (Provided by: Nature Media Center)
Under the judgment, Forestry NSW will pay $450,000 to Yururunga Aboriginal Corporation.
The funds will go toward projects such as healing ceremonies, developing biological restoration plans, and cultural mapping of the area to prevent future damage.
“It feels both righteous and very bittersweet,” Yururunga Aboriginal Corporation CEO Dean Kelly said in a statement.
”On the other hand, it is also about recognizing the harm done to our country and its people. On the other hand, the damage that has already been done cannot be undone.”
“Important and rare” decisions
The judgment, handed down on March 13, comes after six years of litigation in the New South Wales Land and Environment Court.
In her judgment, Judge Nicola Payne said the offenses occurred in 2020 after NSW Forestry Corporation employees used incorrect methods to identify large hollow fruit trees, which are protected by law.
NSW Environmental Protection Agency CEO Tony Chappell said the regulator had taken legal action after discovering six large trees had been felled as a result.
Mr Justice Payne’s judgment found that EPA staff attended a NSW Forestry Corporation training session for logging contractors in November 2019 that included “misguided instructions on measuring large trees”.
Chappell said the illegal logging at Wild Cattle Creek State Forest “maybe could have been prevented” if EPA officials had alerted the Forest Service to the mistake.
“We all have to learn from it and continue to improve so we can do the right thing for our communities and the environment,” he said.
A centuries-old tree was illegally cut down in Wild Cattle Creek State Forest. (Provided by: Yururunga Aboriginal Corporation)
Mr Chappell said these trees had important cultural value.
“These trees are centuries old and had deep spiritual and cultural significance for the Gumbingir people of this area and their ancestors,” Chappell said.
Jonathan Captain-Webb, director of Indigenous Affairs at the Environmental Defenders Office (EDO), said the decision to apply the restorative justice process was “important and unusual”.
“This is the first time we’ve seen restorative justice applied to an environmental issue,” Captain Webb said.
“We accept that fines are not the most appropriate way to achieve justice.
“Rather than just going into government revenue, these funds will go to indigenous organizations to help heal and repair their countries.”
Captain Webb said the decision’s status as common law would allow Indigenous groups across the country to access the process.
Antecedents of healing
Mr Kelly said senior Gumbingir elders, including his uncle Richard Kelly, had long advocated for a system of compensation in place of fines in cases of cultural harm.
“In the past, these fines have rarely been returned to the state or to the people who bear the burden of the losses,” Kelly said in a statement.
”[This judgement] This paves the way for future fines to be returned to Indigenous-led organizations, allowing Indigenous peoples to be at the center of healing and recovery should harm befall the country. ”
Dean Kelly (left) and Gumbaingir elder Alison Buchanan. (Provided by: Dean Kelly)
Forestry Corporation of New South Wales CEO Anshul Chaudhry apologized in a statement for illegally felling the trees.
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