Federal Court Grants Injunction to Stop the Logging in Central Highlands: Friends of Leadbeater's Possum Inc v VicForests (No 3) [2018] FCA 652.

On Thursday afternoon, the Federal Court of Australia granted an interim injunction to prevent VicForests from carrying out forestry operations in five different Victorian coupes known to be home to Greater Gliders. This order is quite timely, as VicForests initially planned to commence logging operations in these areas today.

The Greater Glider (Petauroides Volans) is the only species of its genus and is the largest gliding possum in Australia. With its distinctive bushy ears, cream-coloured fur below and dusky brown to mottled grey fur above, Gliders have captured the hearts of many Australians.
 
It is therefore unfortunate to see their number on the decline. Despite arguments by forestry operators that they replant trees in cleared land, the adverse impact on native fauna is profound. Gliders are known to be particularly slow to recover from habitat interferences, given that they have a poor dispersal ability to move between fragments through cleared areas and they are highly dependent on forest connectivity and large mature trees.
 
Unsurprisingly, Gliders have officially been listed as an endangered pursuant to section 178 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) as well as under section 10 of the Flora and Fauna Guarantee Act 1988 (Vic). The EPBC Act attempts to offer some protection to Gliders and other endangered species by making it a criminal offence to do anything that causes them harm. So why is logging allowed to occur in areas known to be home to Gliders, when these forestry operations are known to cause them harm? The EPBA Act specifically excludes operations carried out under a Regional Forest Agreement (RFA) from falling under these offences. This exemption means that activities that would otherwise offend federal law is completely permitted — a clear instance where economic interests have been placed above environmental and wildlife welfare. When first implemented, RFAs were intended to balance these financial and environmental interests by allowing logging in these areas, subject to particular restrictions. However, a rather lax approach to oversight and enforcement has resulted and the interests of loggers being favoured and native forests being open to exploitation.
 
In March, in the Federal Court, Friends of Leadbeater's Possum Inc (Friends) — instructed by Environmental Justice Australia (EJA) — sought orders restraining VicForests from undertaking any further forestry operations in particular Victorian coupes. Friends submitted that because the State and Commonwealth Governments did not comply with cl 36 of the RFA in question — namely that they did not conduct each of the first, second and third five-yearly performance reviews stipulated under that clause — that the exemptions under section 38(1) of the EPBC Act and section 6(4) of the Regional Forests Agreements Act 2002 (Cth) (RFA Act) did not apply to VicForests’ operations. Rather shockingly, this RFA had only been reviewed once, which was in 2015.
 
Mortimer J in the Federal Court decided against Friends’ claim, giving reasons that under the proper statutory construction of the EPBC Act and RFA Act exemptions, which permitted VicForests to log in these areas, they were not affected by the failure to carry out reviews as contemplated by cl 36 of the RFA.
 
Despite the negative outcome on this point, Mortimer J (helpfully) noted in her judgement at paragraph 155 that:

The actual conduct of forestry operations (being an action for the purposes of the EPBC Act) must be undertaken in accordance with the contents of the Central Highlands RFA – that is, in compliance with any restrictions, limits, prescriptions, contents of the Victorian Code of Practice for Timber Production – in order to secure the benefit of the exemption in cl 38(1).

​In a new case, Friends adopted the approach suggested previously by Her Honour to challenge the exemptions from a different angle. Essentially, the premise of this new argument is that because the Victorian Code of Practice for Timber Production 2014 is accredited under the RFA, a lack of compliance with these terms may be sufficient breach the RFA and, therefore, revoke the exemption that was originally provided under the EPBC Act. Without this exception, the only other way to carry out these forestry operations would be to gain specific approval under the EPBC Act (which has VicForests has not done).
 
Specifically, Friends submitted that cl 2.2.2.2 of the Code requires VicForests to comply with the 'precautionary principle', which requires that:

when contemplating decisions that will affect the environment, careful evaluation of management options be undertaken to wherever practical avoid serious or irreversible damage to the environment; and to properly assess the risk-weighted consequences of various options. When dealing with threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

​Friends relied on the pivotal case of Environment East Gippsland v VicForests (2010) 30 VR 1, (which will be familiar to civil procedure and environmental law enthusiasts alike), submitting that this precautionary principle is engaged where:

(a)    there is a real threat of serious or irreversible damage to the environment; and
(b)    the threat is attended by a lack of full scientific certainty.

Answering the first limb, Friends submitted that, with the Gliders present in the five of the different coupes, there was a threat of 'serious or irreversible damage to the Greater Gliders'. To the second limb, that a 'lack of full scientific certainty' derives from the fact that the Greater Glider is a 'recently listed threatened species' and, therefore, that there are extensive gaps — if not complete absences — of recovery plans and scientific knowledge regarding the adverse effects to be had by logging.

​Following their first argument that the precautionary principle was engaged, Friends argued that the requisite 'careful evaluation of management options' was not discharged, thereby breaching the Code, which ultimately removed the logging exemption.
   
This interim injunction is a necessary step in protecting this endangered species as well as its habitat. EJA is due to return to the Federal Court regarding this matter on 25 February 2019. Until then, the interim injunction granted by Mortimer J yesterday will remain in force and will prevent logging in five different areas that must be left intact to ensure the long-term sustainability of the Victorian Greater Glider population. 

Jake Herd

JD candidate at Melbourne Law School