Native title year in review 2025-2026 

What you need to know

• For the first time in the context of forestry offences, the NSW Land and Environment Court considered cultural harm to the Gumbaynggirr Nation as a relevant sentencing consideration for offences involving the unlawful felling of nine protected trees in Wild Cattle Creek State Forest (Environment Protection Authority v Forestry Corporation of New South Wales (No 3) [2026] NSWLEC 25).
• The Court ordered that $450,000 be paid to the Yurruungga Aboriginal Corporation (rather than the State) to fund restorative justice activities. These activities included a healing ceremony, a biocultural repair plan, cultural mapping for an Indigenous Protected Area, and establishing the Gumbaynggirr Guardians ranger program.
• This decision reflects a growing trend across Australian environmental legislation to recognise and redress cultural harm to First Nations peoples in environmental decision-making, including recent reforms to the Protection of the Environment Operations Act 1997 (NSW), Water Management Act 2000 (NSW) and the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

What you need to do

• Operators authorised to undertake activities on Country should be aware that cultural harm to First Nations peoples may be taken into account as a relevant sentencing factor for environmental offences.
• Consider your existing approaches and practices for engagement with First Nations communities about activities on Country as appropriate in light of the decision.
• Monitor the growing trend in legislation across Australian jurisdictions to require courts to consider harm to First Nations peoples' spiritual, social, customary and economic connections to land and water when imposing penalties for environmental offences.

Background to this sentencing decision

The Forestry Corporation of New South Wales (FCNSW) pleaded guilty to four strict liability offences under section 69SA(1) of the Forestry Act 2012 (NSW) for failing to carry out harvesting operations in Wild Cattle Creek State Forest in accordance with conditions of the Coastal Integrated Forestry Operations Approval. One offence involved the cutting down of six giant trees and three offences each involved the cutting down of one hollow-bearing tree in mid-2020.

Cultural harm to the Gumbaynggirr Nation

A notable feature of the sentencing was the Court's consideration of cultural harm to the Gumbaynggirr Nation under section 13.12(2) of the Biodiversity Conservation Act 2016 (NSW) (BC Act) which permits the Court to take into account matters it considers relevant (apart from those listed in section 13.12(1) of the BC Act) in sentencing for offences under the BC Act.

The EPA read affidavits from three Gumbaynggirr representatives: Dr Marshall (traditional owner, knowledge holder and cultural ecologist), Mr Kelly (CEO of the Yurruungga Aboriginal Corporation) and Ms Buchanan (senior lore woman and medicine woman). Their evidence described the cultural significance of the trees and the harm caused by their unlawful felling to Gumbaynggirr culture, emotional wellbeing, spiritual wellbeing and identity.

Dr Marshall described the loss of the giant trees as part of the "death by 1,000 cuts" of Gumbaynggirr culture. Giant and large old trees hold significant cultural value and their loss permanently affects connection with ancestry and culture. Mr Kelly stated that the unlawful removal severed ancestral ties, disrupted symbiotic relationships and caused irreparable cultural loss. He called for recognition and understanding of the profound impact of the felling of these trees, described at [168] as "a wound that will continue to affect his community for generations."

Pain J accepted this evidence, finding at [172]:

Substantial cultural harm arising from the offences as provided in the evidence of Mr Kelly, Ms Buchanan and Dr Marshall will be considered as part of sentencing for these offences.

Restorative justice process and orders

The EPA and FCNSW voluntarily committed to a restorative justice process prior to the sentencing hearing. The restorative justice conference was held over two days in April 2025 and included 26 participants. The participants comprised three Gumbaynggirr representatives, 11 FCNSW officers, 10 EPA officers, the facilitator and a professor from the Australian National University's restorative justice unit. FCNSW funded the process at a total cost of $148,744.35.

Rather than imposing a conventional fine payable to the State, the Court ordered that the $450,000 penalty equivalent be paid to the Yurruungga Aboriginal Corporation to undertake restorative justice activities agreed during the conference, pursuant to section 13.25(2) of the BC Act. Pain J explained her approach at [226]:

While I do not consider the restorative justice process and its outcome is a substitution for the sentencing process for which the FCNSW is before the Court, given the scale of the orders to be made in addition to the restorative justice activity order, on this occasion I will not impose penalties. I will order payment by the FCNSW of the equivalent of the penalties I would have imposed to the Yurruungga Aboriginal Corporation to assist in achieving the restorative justice activity order specified in Annexure B.

The activities, set out in Annexure B to the judgment, include:

• Facilitating a healing ceremony on Gumbaynggirr Country;
• Developing and implementing a biocultural repair plan in consultation with Gumbaynggirr representatives;
• Facilitating the involvement of Gumbaynggirr People in a Working Group for future harvesting plans on Gumbaynggirr Country;
• Undertaking cultural mapping for the Indigenous Protected Area Proposal for the Bellinger Valley; and
• Establishing the Gumbaynggirr Guardians ranger program.

Her Honour noted that both parties agreed to follow principles of Free, Prior and Informed Consent and to respect and care for Indigenous Cultural Intellectual Property shared during the process, as outlined in the United Nations Declaration on the Rights of Indigenous Peoples.

A clear trend: cultural harm in environmental sentencing across Australia

This decision is part of a broader legislative trend to recognise cultural harm to First Nations peoples as a relevant factor in environmental enforcement and to provide courts with the tools to mobilise penalties for the benefit of affected communities.

Reforms to the Protection of the Environment Operations Act 1997 (NSW) (POEO Act)

The POEO Act contains equivalent provisions, introduced in late 2025, section 241(1)(e1) requires a court sentencing for an offence under that Act to consider (to the extent relevant) "the impact of the offence on Aboriginal cultural values and practices, including impacts on lands, skies, waters, plant and animal species and seas, having regard to the spiritual and cultural significance of the impact of the offence". Section 250(1A) empowers the Land and Environment Court to order the carrying out of a restorative justice activity for the restoration of the environment or for the public benefit, such an activity being defined as "any social or community activity for the benefit of the community or persons that are adversely affected by the offence" that the offender has agreed to carry out. 

Reforms to the Water Management Act 2000 (NSW)

Reforms enacted in the Water Management Legislation Amendment (Stronger Enforcement and Penalties) Act 2025 (NSW) now also require courts, when sentencing for offences under the Water Management Act 2000 (NSW), to consider (to the extent relevant) "the impact, likely impact or potential impact of the offence on the spiritual, social, customary or economic use or value of land and water by or for Aboriginal people" and, where any such impact arises, "the views of Aboriginal persons impacted or likely to be impacted" (section 364A(1)(b1) and (b2)). We discuss these reforms in our 14 May 2026 article, "A new age of enforcement under the NSW Water Management Act".

Similar options at the Commonwealth level under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act)

At the Commonwealth level, the EPBC Act does not include a mandatory sentencing factor requiring courts to consider cultural harm to First Nations peoples like those provisions in the aforementioned Acts in NSW. However, that is not to say that the type of orders Pain J made in Forestry Corporation cannot possibly find life in Federal Courts applying the EPBC Act. The EPBC Act already provides the Federal Courts with the power to make remediation orders under section 480A which could potentially be used to achieve similar outcomes. 

While the recent reforms in December 2025 did not introduce any express sentencing provisions to this effect, they did significantly expand First Nations engagement in environmental governance and decision-making by codifying a greater role for the Indigenous Advisory Committee in the development of National Environmental Standards, species listings and conservation planning. While the EPBC Act offers a less clear path toward redressing cultural harm and achieving restorative justice in the context of enforcement / sentencing provisions than in NSW, there still appears to be a clear policy trajectory toward improving First Nations' involvement in environmental decision-making at the Commonwealth level. We discuss the EPBC Act reforms in more detail in our 14 May 2026 article "EPBC Act reforms: most significant change to Australia's environmental law in decades".

Conclusion

Taken together, these developments make it clear that proponents operating on Country should expect that harm to First Nations cultural values will continue to be front of mind for both policymakers and the courts they have vested these sentencing powers with.

Want to know more? 

• Native Title Year in Review 2024-2025 (9 September 2025)
• EPBC Act reforms: most significant change to Australia's environmental law in decades (14 May 2026)
• A new age of enforcement under the NSW Water Management Act (14 May 2026)
• Commonwealth cultural heritage protection applications: still top of mind for First Nations Groups (9 September 2025)

Authors: Tony Hill, Partner; Guy Dwyer, Partner and Jacob Alvarez, Graduate.