Federal Court orders VicForests to pay costs in Possums Case, reiterating multiple breaches of Victorian environment law

By June 3, 2021June 4th, 2021Forests, Media releases

MEDIA RELEASE

Federal Court orders VicForests to pay costs in Possums Case, reiterating multiple breaches of Victorian environment law

Today, the Full Federal Court ordered VicForests to pay the costs of Friends of Leadbeater’s Possum in the case to protect threatened native possums from logging.

The costs decision in the Possums Case was made in light of findings that the state logging agency breached Victorian law and its operations pose a major threat to two native possum species at high risk of extinction. The costs judgment states:

“FLP was overwhelmingly successful at trial in establishing, as matters of fact, that VicForests contravened State legislative instruments with respect to the endangered Greater Glider and Leadbeater’s Possum species. Those factual findings were not disturbed on appeal”.

VicForests has been ordered to pay Friends of Leadbeater’s Possum’s full costs for the original trial that the community group won, along with 50 percent of the costs of the appeal. The full Federal Court decided one ground of appeal in VicForests’ favour and dismissed numerous others.

The appeal Court upheld that the logging agency had repeatedly contravened environmental protections across scores of forest areas, home to the critically endangered Leadbeater’s Possum and vulnerable Greater Glider.

Steve Meacher, President of Friends of Leadbeater’s Possum said:

“The Court’s decision to order VicForests to pay our costs indicates the importance of this case and the findings that were made. We urge government to listen and act to conserve the forests found to be in dire need of protection for these precious native possums, that are being driven toward extinction by VicForests’ logging operations.

“The Victorian government must stop its senseless destruction of these precious native possums which the Court found are being driven towards extinction by the state’s logging operations.

“The Andrews’ government is a nature laggard, with the worst record on nature protection in decades. We are now the country’s logging capital – senselessly wood-chipping tonnes of native forest each year, far beyond any other state[1].”

“Logging in native forests is killing threatened species and destroying their critical habitat. This battle is not yet over – we are appealing to the High Court and will do everything we can to hold VicForests to account under our federal, as well as state, laws.

Nicola Rivers, Co-CEO of Environmental Justice Australia said:

“It is encouraging to see the Courts hold VicForests accountable for the costs of this important public interest case, where the logging agency was found to be operating in breach of Victorian environment laws. This case has shown that enforcement of our environment laws, particularly against government agencies, is falling to the community. ”

“We are working with our client, Friends of Leadbeater’s Possum to appeal to the High Court on the issue of the logging industry’s exemption from federal environment law. In the meantime, injunctions remain in place protecting the critical areas of habitat subject of the case while that occurs.”

Findings in the landmark case that were upheld by the appeal Court were that VicForests contravened six state environment laws in 66 areas of forest, and had logged unlawfully in areas home to both species by:

  • breaching the precautionary principle by failing to avoid serious and irreversible damage to the Greater Glider,[2]
  • failing to identify and protect a Leadbeater’s Possum colony[3], and its habitat,[4]
  • destroying protected tree species,[5]
  • clear felling vegetation gaps in the forest far larger than permitted[6], and
  • failing to retain forest in minimum required buffers.[7]

Just some of the findings of the Court are that logging destroyed habitat critical to the survival of the Leadbeater’s Possum and Greater Glider,[8] is a cause of their population decline and a major threat,[9] is likely to significantly impact both species,[10] and current reserves are “no panacea” – having failed to arrest their rapid decline[11].

The Leadbeater’s Possum is one of nine critically endangered species, of which two recently became extinct.[12] In just 17 of the areas investigated, up to 600 Greater Gliders may have been killed by Victoria’s state logging agency.[13] The Greater Glider population has declined by 87 percent over the last 22 years, with higher declines recorded in forests subject to logging.[14]

According to the original judgment, the evidence “paints a grim picture for the Leadbeater’s Possum: if the present trajectory continues, it may well become extinct in the wild”.[15] It is “In that context, the conservation of every individual of the species matters. The conservation and protection of every single Leadbeater’s Possum colony, without doubt, matters.”[16]

In May, federal government scientists recommended the Greater Glider for up-listing to the endangered category due to catastrophic losses in the 2020 bushfires, citing logging as a very high-risk threat with major consequences for the species[17]. The Environment Minister is now considering the recommendation.

Logging continues daily in Victoria at sites where Greater Gliders are recorded and in known Leadbeater’s Possum habitat. Friends of Leadbeater’s Possum and their lawyers at Environmental Justice Australia say today’s decision again highlights that many of those logging operations may be unlawful under state law, even if they are exempt from federal law.

Friend’s of Leadbeater’s Possum are preparing an application for appeal to the High Court after the Full Court’s May decision that logging has a wide exemption from federal environment law, even when it breaches state laws. The Court ordered a stay on its orders that would have overturned the original injunctions on logging operations, pending the High Court appeal application. This means injunctions remain in place protecting the 66 coupes subject of the case.

Background

The case was filed in October 2017 by volunteer-run community groups, 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 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[18]
  • logging is a driver of the decline of important populations necessary for long-term survival of both species[19], and current reserves are inadequate to protect both species from their high risk of extinction in the immediate and medium term. [20]
  • 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.[21]

On 21 August, 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.

In September 2020, VicForests lodged their Notice of Appeal with the Federal Court listing 31 grounds. The appeal was heard in Sydney on 12-14 April 2021.

In May 2021, the Full Court delivered its appeal judgment finding in favour of VicForests on a single ground and rejecting all other grounds. The Court found that despite the fact that VicForests’ logging operations were in breach of Victorian law and driving the Leadbeater’s Possum and Greater Glider to extinction – they were still exempt from the EPBC Act under Regional Forest Agreements. VicForests failed on all other 30 grounds.

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-growth 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 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 from the original case can be accessed directly from the Federal Court website here.

The appeal costs judgment is available here.

Related media:

President of Friends of Leadbeater’s Possum Steve Meacher is available for interview.

Media contact:  Livia Cullen 0411 108 239 [email protected]

Environmental Justice Australia is a leading public interest legal organisation. Our lawyers act on behalf of people and community organisations to safeguard health; protect magnificent forests, rivers and wildlife; and tackle climate change.

[2] Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704 (the Possums Case (No 4)) at [943]-[962], [1175]-[1184]; VicForests v Friends of Leadbeater’s Possum Inc [2021] FCAFC 66 at [161]-[243];  VicForests v Friends of Leadbeater’s Possum Inc (No 2) [2021] FCAFC 92 at [8(2)].

[3] The Possums Case (No 4) at [1250] – [1262]; VicForests v Friends of Leadbeater’s Possum Inc [2021] FCAFC 66 at [244].

[4] The Possums Case (No 4) at [1214]- [1249]; VicForests v Friends of Leadbeater’s Possum Inc [2021] FCAFC 66 at [246]- [254]; VicForests v Friends of Leadbeater’s Possum Inc (No 2) [2021] FCAFC 92 at [8(2)].

[5] The Possums Case (No 4) at [1188] – [1213]; VicForests v Friends of Leadbeater’s Possum Inc [2021] FCAFC 66 at [244].

[6] The Possums Case (No 4)at [1273]- [1286]; VicForests v Friends of Leadbeater’s Possum Inc [2021] FCAFC 66 at [244].

[7] The Possums Case (No 4) at [1263]-[1272];  VicForests v Friends of Leadbeater’s Possum Inc [2021] FCAFC 66 at [255]- [261]; VicForests v Friends of Leadbeater’s Possum Inc (No 2) [2021] FCAFC 92 at [8(2)].

[8] The Possums Case (No 4) at [76], [1444] – [1445], [1396], [1406], [1420], [1431], and [160]

[9] The Possums Case (No 4) at [56]-[58], [75][1408], [1435], [1454], and [1262].

[10] The Possums Case (No 4) at [1432], [1454]

[11] The Possums Case (No 4) at [97(e),(j)], [1348], [1426], [1430], [1447]-[1449]

[12] The Possums Case (No 4) at [1422]

[13] The Possums Case (No 4) at [1442]

[14] The Possums Case (No 4) at [51]

[15] The Possums Case (No 4) at [1453]

[16] The Possums Case (No 4) at [1262]

[17] p22, Table 2

[18] Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704 at [76], [1420], [1431], [1444]-[1445].

[19] Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704 at [56]-[58], [75]-[79], [615]-[616], [1408], [1435].

[20] Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704 at [1446]-[1451], [1426]-[1430].

[21] Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704 at [1442].

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