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 coupes.
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 case
In October 2017, representing Friends of Leadbeater’s Possum (FLBP), we took VicForests to Federal Court to stop logging in vital habitat for the Leadbeater’s Possum and the Greater Glider.
FLBP alleged that logging by state-owned VicForests in 41 areas of habitat for the critically endangered Leadbeater’s Possum and the vulnerable Greater Glider contravenes federal law. They argued that logging operations in certain areas of forest in Victoria’s iconic Central Highlands fails to comply with the Victorian Code of Practice, a requirement under the Regional Forest Agreement. This requirement is the basis for the exemption for “forestry operations” from national environment law. This non-compliance, FLBP claimed, means the exemption does not apply and VicForests must comply with national environmental laws.
The most significant breach of the Code alleged in the case is non-compliance with the precautionary principle laws in certain forests where Greater Gliders are living. The principle requires logging operations to avoid serious or irreversible damage to the species wherever practical. Greater Gliders are known to be threatened by logging yet logging continues in habitat where Gliders have been sighted.
This is 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).
The case seeks orders to stop logging in 41 areas of forest in Victoria’s Central Highlands, home to Greater Gliders and Leadbeater’s Possums. It also seeks to protect an additional area of forest to mitigate for 26 sites that FLBP allege were unlawfully logged in the past.
If the case is successful, it could mean logging proposed in the areas in question would be subject to national environment laws (the Environment Protection and Biodiversity Conservation Act 1999), and could not proceed without impact assessment and federal ministerial approval under that Act. It could also mean that the past logging in question contravened that Act and could require permanent protection of additional areas to mitigate for that unlawful conduct.
A win in this case would also have national implications for logging exemptions and threatened species protection under national environment laws.
A huge win with national significance
On 27 May 2020, the Federal Court delivered its judgment in a huge victory for Victoria’s threatened possums.
Friends of Leadbeater’s Possum (FLBP), successfully argued 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 and is unlikely in future to comply with both state and federal laws designed to protect threatened species.
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.
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.
The Court will give the parties an opportunity to agree on the appropriate orders the Court should make, given the conclusions it has reached. If there is no agreement, the parties will be able to file short submissions on appropriate orders. It will then determine what final orders should be made, including whether ongoing injunctions should be issued against VicForests to prevent any forestry operations in any of the coupes not yet logged.