14 September 2020

VicForests to appeal landmark Federal Court win for threatened possums

VicForests last week lodged an appeal with the Federal Court over the landmark decision in the Friends of Leadbeater’s Possum case that has stopped logging in habitat for threatened native possums.

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.

This case has national implications for species threatened by logging under Regional Forest Agreements across the country, which now face much greater scrutiny.

The case has already prompted Bunnings to stop stocking VicForests’ products and the Bob Brown Foundation last month launched a similar Federal Court case, challenging logging under Regional Forest Agreements in Tasmania’s forests.

VicForests has appealed the court’s findings that its operations are in breach of state and federal laws designed to protect threatened species, listing 31 grounds.

Background

The case was filed in October 2017 by Friends of Leadbeater’s Possum (FoLP), 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 judgement on 27 May, the court found in favour of FLbP 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 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.

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.

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 finalise that process and the case was closed. VicForests had 28 days to appeal the decision.

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 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 can be accessed directly from the Federal Court website here.

Related media:  

• VicForests breached threatened species laws with central highlands logging, court rules, The Guardian, 27/05/2020 
• Calls for review of forestry exemption laws after VicForests conservation breaches, The Guardian, 03/06/20 
• Franklin Dam-like court judgment to protect Victoria’s endangered species from loggers, Fairfax, 29/05/20 
• Federal Court says VicForests unlawfully logged rare possum habitat, Fairfax, 27/05/2020 
• While Victoria’s forests burnt, logging continued, The Age, 17/01/2020  
• VicForests banned from logging greater glider habitat pending legal challenge, The Guardian, 10/05/18   
• Ministerial documents reveal Commonwealth concerns about ‘old science’ and ‘validity’ of forest agreements, ABC News, 21/03/18  
• Plan to protect possum under cloud as timber industry seeks change, The Age, 26/02/18