Landmark Federal Court win in Possums Case overturned on basis that logging remains exempt from federal environment laws

MEDIA RELEASE 

Today, the full bench of the Federal Court overturned the landmark win in the Possums Case on one groundon the basis that logging has a wide exemption from federal environment law even when conducted in habitat critical to the survival of wildlife facing a high risk of extinction, and in breach of state law. 

The Full Court dismissed all other 21 grounds of appeal, including those seeking to overturn factual findings in the original decision. Key findings that stand in the original 444 page-judgment 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. 

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 agencyAll appeal grounds relating to those findings were dismissed.  

Friends of Leadbeater’s Possum are applying to keep injunctions in place while they appeal to the High Court, to ensure protections stay in place for the 66 areas subject of the case home to the critically endangered Leadbeater’s Possum and vulnerable Greater Glider. 

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 indicates many of those logging operations may be unlawful under state law, even if they are exempt from federal law 

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

“Logging in native forests is killing threatened species and destroying their critical habitat. Against this background, this morning’s judgment is very disappointing.  

“This battle is not yet over. We are actively looking to appeal to the High Court. 

“The federal government must urgently strengthen environment protections in our forests consistent with the Samuel Review of our national environment laws, and Victoria must expand reserves to prevent both further loss of species heading toward extinction and destruction of their critical habitat.” 

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

 Despite findings that VicForests’ logging destroyed critical habitat for species at high risk of extinction, has driven decline of the critically endangered Leadbeater’s Possum, and may have killed hundreds of threatened Greater Gliders, the Court decided those operations are exempt from the federal environment laws designed to protect those very species 

“We’ll be working with our client, Friends of Leadbeater’s Possum to appeal to the High Court and apply to keep injunctions in place protecting the critical areas of habitat 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 
  • 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, 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. 

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. Final orders given on 21 August, 2020 finalise that process and the case was closed. VicForests had 28 days to appeal the decision. 

In September 2020VicForests lodged their appeal with the Federal Court listing 28 grounds. The appeal was heard on 12-14 April 2021. 

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. 

Judgment for the appeal can be provided on request.

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. 

 

 

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