Case: Stocks and Parkes Investments Pty Ltd v The Minister [1971] 1 NSWLR 932
Outcome: followed
The Commonwealth and Forestry Tasmania refer to the judgment of the Full Court of the Supreme Court of New South Wales in Stocks and Parkes Investments Pty Ltd v The Minister [1971] 1 NSWLR 932 (' Stocks and Parkes Investments' ) at 940, where the Court said: 'There is a great difference between the verb "provide" and the verb "provide for" or "make provision for" and it is this difference which gives a clue to the construction of cl. 16. The difference between "provide" and "provide for" is that the former means to give or to make available in fact, while the latter looks to the planning stage alone. You provide for a school site by "looking forward" and planning accordingly. You provide a school site by actually making it available.' 198 I accept the submissions of the Commonwealth and Forestry Tasmania concerning the meaning of 'provides for'. I see no reason to doubt the analysis of the Full Court of the Supreme Court of New South Wales in Stocks and Parkes Investments . 199 The recitals to the RFA refer to the establishment of a CAR Reserve System. 'CAR Reserve System' is defined in cl 2. The RFA refers to the JANIS Report and defines it. The JANIS Report contains agreed criteria for the establishment of a CAR Reserve System. Clause 48 of the RFA commits the parties to the establishment of a CAR Reserve System by reference to JANIS Reserve Criteria. Clause 49 (and the attachments it refers to) goes into some detail about how the CAR Reserve System will be established by referring to different types of reserves and the protection of CAR Values by prescription. Clause 51 refers to an agreement to take appropriate action to establish a CAR Reserve System on Public Land described in an attachment and by reference to a map. It also commits the parties to manage that system and maintain CAR Values consistent with expressed management objectives. Clause 68 contains an agreement to protect Priority Species through the CAR Reserve System or by applying relevant management prescriptions. 200 Given the above, and in the context of the meaning of 'provides for' contained in Stocks and Parkes Investments , I consider the RFA meets the definition contained in subparagraph (b) of the definition of RFA in s 4 of the RFA Act, in that it 'provides for a comprehensive, adequate and representative reserve system'. 201 The provision for a CAR Reserve System does not mean that legally enforceable rights to the creation of such a system must be available. That may be the case if there was an obligation to 'provide' a CAR Reserve System, but that is not the obligation contained in the RFA Act. The same may be said of the lack of a legally enforceable obligation to provide ESFM. 202 The applicant's reference to s 3(c) of the RFA Act concerning the Forest and Wood Products Council is of no assistance. But for the obligation in s 11 of the RFA Act , it would be difficult to see any enforceable obligation on any person to ensure that such a body is set up. If s 11 is considered to be the partner of s 3 in compelling the establishment of the Council, no counterpart to s 11 is aligned to subparagraphs (b) or (c) of the definition of RFA in s 4 of the RFA Act to enforce any obligation referrable to a CAR Reserve System or ESFM. 204 Having regard to the above, and in the context of Stocks and Parkes Investments , I consider the RFA meets the definition contained in subparagraph (c) of the definition of RFA in section 4 of the RFA Act, in that it 'provides for the ecologically sustainable management and use of forested areas in the region or regions'. 205 The RFA is an RFA within the terms of the RFA Act. 206 Under Pt 9 of the EPBC Act, the Minister can approve the taking of certain actions pursuant to an approval process set out in that Part. Section 18(3) of the EPBC Act, referred to at [42] above, is found in Pt 3 of the Act. Part 3 deals with the requirements for environmental approvals for actions. Part 4 provides for exemptions from Pt 3. Section 38 is found in Pt 4. It may be that the issue would have been better expressed by referring to an exemption from Pt 4 as well as, or in lieu of, the reference to Pt 9.