On 27 May, the Federal Court handed down a decision that could have very significant implications for native forest logging in Australia. The case was brought by Friends of Leadbeater’s Possum against VicForests, the agency responsible for management and sale of timber resources in Victorian State Forests.
The legal action related to the impact of forestry operations on the Greater Glider and Leadbeater’s Possum in 66 coupes in the Central Highlands. The Greater Glider is listed as ‘vulnerable’ and Leadbeater’s Possum as ‘critically endangered’ under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
The areas in question are covered by the Central Highlands Regional Forest Agreement (RFA).
Background to RFAs
There are 10 RFAs around Australia, five in Victoria, three in New South Wales, one each in Tasmania and Western Australia. They are agreements between the Commonwealth and the State Governments and were signed between 1997 and 2001. There was an RFA process for South East Queensland but it did not end in an agreement— conservation groups led by ARCS rejected the Federal Government’s proposal and persuaded the Beattie Government to develop a State agreement which eventuated as the South East Queensland Stakeholder/Government Forests Agreement.
The RFAs came out of the National Forest Policy which was agreed between the Commonwealth and the States in 1992. The 1980s and 90s were the times of the “forest wars”. In 1995, a convoy of logging trucks blockaded Parliament House.
Prime Minister Paul Keating was determined to get the Commonwealth out of the picture and instituted the RFA process. The intention was that these agreements would put an end to the “forest wars”. That was not to be.
The EPBC Act
A contentious component of the agreements was that forestry operations carried out under an RFA would be exempt from provisions of the Federal Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) including provisions relating to the protection of threatened species. Such species were supposedly to be protected by provisions within the RFAs. These matters were central to the Federal Court’s deliberations.
Presiding over the Federal Court case was Hon. Justice Debra Mortimer SC. The case involved numerous hearings and stages. In 2018, Judge Mortimer set up a “Separate Question” which was whether VicForests’ forestry operations had the benefit of the exemption in section 38(1) of the EPBC Act. Under the RFA, the Commonwealth accredits the forest management system which includes the Forest Management Plan and the systems and processes established by the Code of Forest Practices for Timber Production. This is the basis for the exemption from section 38(1) of the EPBC Act.
In relation to the Separate Question, Friends of Leadbeater’s Possum argued that the five-yearly reviews required by the RFA had not been carried out and therefore the exemption did not apply. VicForests argued that as long as forestry operations are conducted within the RFA region the exemption of s 38(1) applies.
Judge Mortimer rejected both arguments noting in regard to VicForests’ argument that, for the exemption to apply, forestry operations must be undertaken in conformity with the systems of forest management accredited by the RFA.
A significant focus of the court proceedings was the Code of Practice for Timber Production. Clause 188.8.131.52 of the Code states “The precautionary principle must be applied to the conservation of biodiversity values.”
For the purposes of the court process, the 66 coupes were divided into Logged Coupes and Scheduled Coupes. Judge Mortimer made the following decision:
In undertaking forestry operations in the Logged Glider Coupes, VicForests did not apply the precautionary principle to the conservation of biodiversity values in those coupes, as it was required to do by cl 184.108.40.206 of the Code of Practice for Timber Production 2014. Specifically, on the applicant’s case, VicForests did not apply the precautionary principle to the conservation of the Greater Glider as a threatened species present in, and using, the forest in thosecoupes. Accordingly, in relation to the forestry operations undertaken by VicForests in the Logged Glider Coupes, its conduct was not covered by the exemption in s 38(1) of the EPBC Act.
Judge Mortimer made a similar decision regarding the Scheduled Coupes arguing that VicForests “is unlikely to apply the precautionary principle to the conservation of biodiversity values in those coupes”.
Based on those arguments, Judge Mortimer concluded that each forestry operation in each of the 66 coupes is an “action” under the EPBC Act. That means that the forestry operations require the approval of the Federal Minister for Environment, presently Hon. Sussan Ley MP.
Judge Mortimer has given the parties an opportunity to agree on the appropriate orders the court should make. If there is no agreement, the parties may make short submissions and the court will decide on the final orders.
Other observations by the Judge
Judge Mortimer made some general observations that illustrate common issues with native forest logging. At the risk of boring readers with details, they are reproduced below.
First, what the evidence in this proceeding has demonstrated is that the protection and conservation of biodiversity values – in this case relevantly the two listed threatened species in issue – is essentially a practical matter. Although policies and planning are important precursors and elements in protection and conservation, what happens on the ground in the native forest which supports and encompasses those values is how protection and conservation are achieved. Relevantly to the issues in this proceeding (rather than the wider biodiversity values protected by other aspects of the EPBC Act), understanding a native forest as a living, changing, finely balanced and often vulnerable ecosystem, and understanding the way in which all flora and fauna species in fact (rather than theory) use and depend on that native forest, are what best informs protection and conservation of, and the avoidance of adverse impacts on, those species. The evidence demonstrates the need for this approach is acute when dealing with listed threatened species.
The second observation addressed the argument put by VicForests that their decisions had “struck a balance between conservation measures and those that relate to the commercial use and exploitation of forest resources in State Forests” and that where there were “value judgments” to be made about that balance, those judgments were the “province of the legislature or the executive rather than the judiciary”. The judge responded arguing that
the Court’s function is to determine, on the evidence, whether the applicant has proven, on the facts and on the law as applied to those facts, its allegations against VicForests …. Contrary to VicForests’ submissions, there is a significant factual aspect to the applicant’s allegations, which as a trial court, the Court must decide. It necessarily involves examining the competing evidence (including expert opinion evidence) about topics which are the product of wider policies and practices, and factual topics of more general application. In performing its task, the Court acts on the evidence before it, taking account of the submissions made. Where the legal and statutory framework which the Court must consider, by reason of the parties’ respective cases, includes matters of degree, or has some qualitative or evaluative element, the determination of those matters is part of the exercise of judicial power, and not outside it.
The third observation related to the inherent contradiction in the role of VicForests — and all other forestry agencies.
On the one hand, it is required to conduct forestry operations in Victoria’s native forest, rather than only in plantations. That native forest is identified as an available timber resource, indeed a principal available timber resource in Victoria, for VicForests to perform its commercial forestry function, as conferred by statute. On the other hand, VicForests is required by law to conduct those forestry operations in a way which avoids and mitigates adverse impacts on a wide range of biodiversity values, a range that is much wider than listed threatened flora and fauna species, but includes them. As I explain later in these reasons and as both VicForests and various reviewing bodies have recognised, for listed threatened species which are highly dependent on the very native forest which is to be subject to forestry operations, and for whom recovery out of the status of being a threatened species is expressed to be an objective, the avoidance of adverse impacts in a real world sense (rather than just an aspiration) inevitably involves compromising available commercial timber resources. Hence the conflict, which may explain (but not necessarily justify) why the actual conduct of forestry operations on the ground often cannot meet the conservation and protection obligations imposed by law.”
Broader implications of the decision
Implications for forestry operations in other RFA areas in Victoria, New South Wales, Tasmania and Western Australia arise from the finding that where forestry operations do not conform with management prescriptions included in the RFA, they could be found to be “actions” under the EPBC Act and require approval of the Federal Minister, Sussan Ley.
According to The Guardian, a spokesman for Minister Ley said the Department would “carefully consider the Federal Court’s 450 page judgment, noting that formal orders are yet to be made” and that the findings “will require detailed consideration before the department can discuss possible implications”.