On the same day that 124 Australian species were added to the international (IUCN) endangered list, the Australian High Court ruled that the states can smash down endangered Leadbeaters Possum habitat and still be compliant with commonwealth environment laws. This finding by the high court shows how broken Australia’s environmental laws are. If they cared, they’d repair the small technicality in wording that has allowed this. But the Morrison government is more likely to allow another entire species be snuffed out by VicForests and the woodchip industry.
On the 10th December 2021, it was confirmed that Australia’s federal environment laws are in need of urgent reform and are catastrophically failing wildlife already under threat of extinction. The High Court of Australia declined to grant leave to community group Friends of Leadbeater’s Possum, to appeal their long-running case, despite having earlier won on 30 of 31 grounds.
The below are comments from Environment Justice Australia on the day of the decision.
Even though the Federal Court found that logging has a wide exemption from federal environment law, critically, it upheld all other aspects of the original judgment, including that:
- logging is permanently destroying habitat critical to the survival of the Wollert (Leadbeater’s Possum) and Warnda (Greater Glider);
- logging is a cause of the decline of important populations necessary for their long-term survival; and
- current habitat reserves are inadequate to protect the species from extinction
But the facts remain – VicForests is breaching state law and driving these native possums towards rapid extinction – they must be held accountable.
The decision allows VicForests to continue logging native forests with an exemption from federal environment laws, even though the Federal Court found and confirmed on an earlier appeal that the state-owned company was breaching multiple Victorian laws and is driving threatened possums to extinction.
The High Court application followed a historic win by Environmental Justice Australia’s legal team acting for Friends of Leadbeater’s Possum in May 2020.
VicForests appealed the decision and failed on 30 of 31 grounds, with the Federal appeal Court upholding all factual findings from the original judgment. However, despite this outcome, the Courts have now confirmed that VicForests’ logging will continue to be exempt from federal environment laws.
Other findings upheld were that logging in the 66 areas subject to the case was breaching Victorian environment law, and in just 17 of the areas investigated, up to 600 Greater Gliders may have been impacted and killed by the state’s logging agency.
The Federal appeal Court in May this year confirmed an order for costs in favour of Friends of Leadbeater’s Possum for the trial and 50% of the appeal.
Steve Meacher, President of Friends of Leadbeater’s Possum said:
“We shouldn’t have to go to court to enforce the laws that should protect endangered wildlife. The federal government must strengthen environment protections in our forests as a matter of urgency, as recommended by the Samuel Review of federal environment laws.”
Nicola Rivers, Co-CEO of Environmental Justice Australia said:
“For VicForests’ logging operations to be found exempt from the very laws that protect threatened wildlife at the same time as they were found to be destroying critical habitat for species at high risk of extinction, is quite frankly, extraordinary.”
Original federal court case and decision
The case was filed in October 2017 by volunteer-run community group, Friends of Leadbeater’s Possum, 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 judgment on 27 May, 2020 the court found in favour of Friends of Leadbeater’s Possum 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 principal 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 and its habitat.
Among the key findings from the Court’s original 444-page judgment are that:
- logging is permanently destroying habitat critical to the survival of Leadbeater’s Possum and Greater Glider
- logging is a driver of the decline of important populations necessary for long-term survival of both species, and current reserves are inadequate to protect both species from their high risk of extinction in the immediate and medium term.
- In just 17 of the 66 areas investigated, up to 600 Greater Gliders may have been impacted and killed by the state’s logging agency.
On 21 August 2020, the Federal Court delivered final orders for the case that granted final injunctions to protect the 66 areas of forest home to the threatened Greater Glider and critically endangered Leadbeater’s Possum 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. VicForests had 28 days to appeal the decision.
VicForests appeal to the Full Federal Court
In September 2020, VicForests lodged their appeal with the Federal Court listing 31 grounds. The appeal was heard on 12-14 April 2021.
On 10 May, 2021, the full bench of the Federal Court rejected 30 out of 31 grounds of appeal. It upheld all factual findings from the original decision and confirmed VicForests’ logging breached 6 different Victorian state environment laws. However, it found in favour of VicForests on a single ground – that logging is exempt from federal environment law under Regional Forest Agreements even when it is driving decline of endangered species, conducted in habitat critical to the survival of wildlife facing a high risk of extinction, and in breach of state law.
Key findings that stand include that logging is permanently destroying habitat critical to the survival of the Leadbeater’s Possum and Greater Glider, is a cause of the decline of important populations necessary for their long-term survival, and that current reserves are inadequate to protect the species from their high risk of extinction.
As stated above, the original judgment also found that logging in the 66 areas subject to the case was in breach of Victorian environment law, and in just 17 of the areas investigated, up to 600 Greater Gliders may have been impacted and killed by the state’s logging agency. All appeal grounds relating to those findings were dismissed.
The Full Court also ordered that VicForests pay the costs of Friends of Leadbeater’s Possum in the original case and half of the costs of the appeal.
Friends of Leadbeater’s Possum High Court Special Leave Application
Friends of Leadbeater’s Possum submitted an application for special leave to appeal to the High Court of Australia, and this hearing of this matter was listed on Friday 10 December 2021.
The forests and RFAs
The case has already prompted Bunnings to stop stocking VicForests’ products and the Bob Brown Foundation to launch a similar Federal Court case, challenging logging under Regional Forest Agreements in Tasmania’s forests.
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 eucalypts to survive.
But 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 unique 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, Greater Glider and the Koala closer to extinction.
Federal Court documentation and transcripts
Please note key Court documents from the original case can be accessed directly from the Federal Court website here.
The appeal judgment can be viewed here.