Federal Court’s orders – a win for forest protection and threatened possums
From Environmental Justice Australia.
The Federal Court delivered final orders for the Friends of Leadbeater’s Possum’s historic win against state logging agency VicForests. It protects the 66 stands of forests that were subject to the case, and sends a clear message to VicForests that future logging plans must protect listed species.
Although the court reached its conclusion in this case in May 2020, until the ruling, it had not yet decided what relief to grant the applicant, Friends of Leadbeater’s Possum.
Justice Mortimer’s orders grant final injunctions to protect the 66 areas of forest that support the threatened Greater Glider and critically endangered Leadbeater’s Possum. These species were subject to the case.
The Judge also made formal declarations of unlawful logging by VicForests in those 66 areas and ordered VicForests pay Friends of Leadbeater’s Possum’s costs of running the case.
This case will have national implications for species threatened by logging under Regional Forest Agreements across the country which will now face much greater scrutiny.
Just yesterday, the Bob Brown Foundation launched a similar Federal Court case, challenging logging under Regional Forest Agreements in Tasmania’s forests.
Steve Meacher, President of Friends of Leadbeater’s Possum said:
“This is a gratifying close to the roller-coaster ride that this case has been over the past three years. Our evidence and arguments have been resoundingly vindicated and we hope this result will have a real impact to relieve the threat of extinction for these very special endangered Australians and to protect the forests in which they live.”
“Huge thanks are due to the surveying team from WOTCH and our expert witnesses who provided an unassailable body of detailed evidence, and to our extraordinary legal team at Environmental Justice Australia.
“We are immensely grateful to the public for the donations that have enabled us to pay the costs of mounting a case on this scale and to all those who have worked on the case and supported us in so many ways on this long and challenging journey.”
Danya Jacobs, Senior Lawyer from Environmental Justice added:
“This is the first time the Federal Court has granted a final injunction to prevent logging of threatened wildlife habitat and the first time Victoria’s logging industry – the largest in Australia – has been held to account under federal environment law for its devastating impacts on endangered wildlife. This was a complex case and a real test of our environment laws.”
“The outcome of this case demonstrates that properly enforcing our environment laws is critical to stem the loss of wildlife in this country.
“This case proved that a state agency unlawfully logged 26 areas home to species at risk of extinction which are meant to be protected by both state and federal law – and planned to unlawfully log another 41. Both governments must strengthen enforcement of our environment laws to ensure this type of unlawful destruction of our declining native wildlife never happens again.
“We hope the Court’s orders send a strong message to governments and industry across the country that if they flout the law at the expense of our threatened wildlife, the community will hold them to account in court.”
“Australia has just lost billions of animals to catastrophic bushfires – one of the worst environmental disasters in living memory – and Australia has the highest rate of mammal extinction in the world.
“Victorians expect Premier Andrews to honour the commitments his government made in the wake of the bushfires to strengthen protections for threatened species in our forests by October this year – and abandon plans to prevent community access to the Courts to enforce environment laws.
“Instead of strengthening protections for native wildlife, we are seeing both the Andrews and Morrison Governments move to rush through proposals that weaken environment laws and obstruct community access to the courts. These policies will hand big business carte blanche at the expense of our native wildlife and shield industry and government from being held accountable under the law.
“It’s vital to our democracy that community has the right to challenge industry and government when they flout the law, especially when it is at the expense of our shared living world and the places and wildlife we love.”
UPDATE – VicForests to appeal judgment and ruling
In mid-september, VicForests lodged an appeal in the Full Federal Court .
In May, the Federal Court strongly criticised the way VicForests manages the habitat of two rare possums.
Even though Justice Mortimer, in her 450 page judgment, was scathing of the ‘new improved’ method of logging that VicForests claims it now carries out, it appears the logging agency will be trying to use this same argument again.
As the government’s clearfelling monopoly appealed the ruling – it received the full backing of the federal government. Senator Duniam said:
The forestry industry is being attacked in the coupes and now the courtrooms, and it is critical that they are defended in these places too…. We stand with the forestry industry and we stand by our Regional Forest Agreements, which provide a high level framework for delivering environmental, … benefits from our native forests.
Well, clearly their RFAs are not working and logging was deemed illegal and a threat to endangered wildlife. But he went on:
…the (logging) industry deserves certainty, and the federal government remains committed to ensuring it, we stand with the Victorian (logging) industry … We will take any necessary actions that may be appropriate to provide long term certainty into the future.”
Which includes killing off the federal environment laws!? And possibly pesky endangered wildlife.
Background to the case
The case was filed in October 2017 by Friends of Leadbeater’s Possum (FLBP), represented by lawyers from Environmental Justice Australia. This was only the second case ever brought in the 21-year history of Australia’s national environment protection law that challenges the special exemption given to the logging industry from laws that protect threatened species, via Regional Forest Agreements (RFAs).
In a historic judgement on 27 May, the court found in favour or FLBP that logging by state-owned VicForests in 66 areas of habitat critical to the vulnerable Greater Glider and critically endangered Leadbeater’s Possum contravenes federal law.
The court found that VicForests has not complied and is unlikely in future to comply with both state and federal laws designed to protect threatened species.
Justice Mortimer found that logging operations in certain areas of forest in Victoria’s iconic Central Highlands failed to comply with the Victorian Code of Practice for Timber Production, a requirement under the Regional Forest Agreement. RFAs are the basis for the exemption for logging operations from national environment law. The non-compliance with the RFA means the exemption does not apply and VicForests must comply with national environmental laws.
The central breach of the Code found that VicForests did not comply with precautionary principle laws in certain forests where Greater Gliders are living, because those logging operations do not avoid serious or irreversible damage to the species wherever practical. The species is known to be threatened by logging yet logging occurred, and is planned, in habitat where Gliders have been sighted. The Court also found a number of other breaches of the Code – including relating to protection of Leadbeater’s Possum habitat.
This landmark decision sets an important legal precedent applying federal threatened species protection law to the logging industry, which has operated under a special exemption from federal environment law for more than 20 years. It will have implications for native forest logging and threatened species protection around the country.
Following the judgment, the Court gave the parties the opportunity to file short submissions on the appropriate orders it should make given the conclusions it had reached. Today’s orders finalise that process and the case is now complete. VicForests has 28 days to appeal the decision.
Victoria’s tall montane ash and mixed species forests in the Central Highlands provide some of the last remaining habitat for the critically endangered Leadbeater’s Possum and the vulnerable Greater Glider. These nocturnal possums need the tall canopies and deep hollows of old-growth eucalypts to survive.
But right now, under Regional Forest Agreements (RFAs), the Victorian government agency – VicForests – is logging their habitat and driving these fragile creatures closer to extinction.
Citizen scientists have documented sightings of Leadbeater’s Possums and Greater Gliders in more than 100 of VicForests’ logging coupes in the Central Highlands forests, yet VicForests continues logging these areas.
RFAs give logging operations a limited exemption from national environment laws. These agreements between state and federal governments mean logging agencies are not required to comply with national environment laws. No other industry has this kind of exemption.
Logging continues in threatened species habitat while RFAs are in place across the country. Despite the catastrophic Black Summer bushfires, Victorian RFAs were recently extended for another 10 years. In the 20 years that Regional Forest Agreements have been in place, logging has pushed iconic Australian species like the Swift Parrot, Leadbeater’s Possum, and the Koala closer to extinction.
Federal Court documentation and transcripts
Please note key Court documents can also be accessed directly from the Federal Court website here.
- VicForests breached threatened species laws with central highlands logging, court rules, The Guardian, 27/05/2020
- Calls for review of forestry exemption laws after VicForests conservation breaches, The Guardian, 03/06/20
- Franklin Dam-like court judgment to protect Victoria’s endangered species from loggers, Fairfax, 29/05/20
- Federal Court says VicForests unlawfully logged rare possum habitat, Fairfax, 27/05/2020
- While Victoria’s forests burnt, logging continued, The Age, 17/01/2020
- VicForests banned from logging greater glider habitat pending legal challenge, The Guardian, 10/05/18
- Ministerial documents reveal Commonwealth concerns about ‘old science’ and ‘validity’ of forest agreements, ABC News, 21/03/18
- Plan to protect possum under cloud as timber industry seeks change, The Age, 26/02/18
Environmental Justice Australia’s Senior Lawyer Danya Jacobs is available for interview.
Media contact: Margot Gorski 0412 393 394 firstname.lastname@example.org
One Reply to “Federal Court’s orders – a win for forest protection and threatened possums”
This decision has taken far too long for the welfare of all wildlife but full marks to your team in continuing the fight for justice and having the judges decision come down supporting your accreditation in finding justice for wildlife. The decision may also have implications in other areas of Wildlife protection. Congratulations.