Federal Court overturns ruling against logging in Victoria’s Central Highlands

In Rainforest News 68, we reported the decision of the Federal Court that logging in the Central Highlands of Victoria required approval of the Federal Minister for Environment. The decision was handed down in May 2020.

The agency responsible for management and sale of timber resources in Victoria, VicForests, appealed the decision. On 10 May 2021, the Full Bench of the Federal Court handed down its decision upholding VicForests’ appeal ruling that forestry operations in the Central Highlands did not require Federal approval.

Central to the issues are (1) the fact that logging is being carried out under the Central Highlands Regional Forest Agreement (CH RFA), and (2) the impact of logging on the Greater Glider and Leadbeater’s Possum. The Greater Glider is listed as ‘vulnerable’ and Leadbeater’s Possum as ‘critically endangered’ under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

The figure below illustrates the decline in the populations of Greater Glider in the Central Highlands.

Section 38(1) of the EPBC Act requires that forestry operations must be undertaken “in accordance with an RFA” in order to be exempt from the provisions of the Act requiring approval by the Minister, including Section 18 which relates to listed threatened species and endangered ecological communities. In the original court proceeding, the parties agreed to consider the question whether forestry operations in the Central Highlands were being carried out “in accordance” with the CH RFA and therefore were exempt from Section 38 of the EPBC Act.

The CH RFA states “The Parties agree that State Forest outside the CAR Reserve System is available for timber harvesting in accordance with the Central Highlands Management Plan and the Code of Forest Practices for Timber Production.”

The Federal Court action was taken against VicForests by Friends of Leadbeater’s Possum. In her decision, Justice Debra Mortimer SC found that “in accordance with an RFA” as required by Section 38(1) of the EPBC Act included conforming with the Forest Management Plan and the Code of Forest Practices for Timber Production which are accredited by the Commonwealth under the RFA. Clause 2.2.2.2 of the Code, which is a Mandatory Action under the Code, refers to application of the precautionary principle:

The precautionary principle must be applied to the conservation of biodiversity values. The application of the precautionary principle will be consistent with relevant monitoring and research that has improved the understanding of the effects of forest management on forest ecology and conservation values.

Judge Mortimer considered that VicForests should have, but did not, apply the precautionary principle with respect to the impact of logging on the Greater Glider and Leadbeater’s Possum. Hence, she concluded that the forestry operations were not carried out in accordance with the RFA and therefore were not exempt from Section 38(1) of the EPBC Act.

The judges determined that the words “in accordance with” were meant to be descriptive of the forestry operations and that as long as the forestry operations were carried out within the RFA area they would be “in accordance with an RFA”.

That is to say, a contravention of a condition of permissibility of the conduct of the forestry operation does not mean that the operation is prohibited by the RFA. Again, the focus of the statutory text is on the geographical area on which the RFA permits forestry operations and not the restrictions, limits, prescriptions, or contents of the Code or an RFA.

In light of these reasons, the primary judge’s finding (Separate Question reasons at [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 CH RFA – that is, in accordance with any restrictions, limits, prescriptions, or contents of the Code – in order to secure the benefit of the exemption in s 38(1) cannot be sustained.

The Court noted the Objects of the EPBC Act are, inter alia, “to provide for the protection of the environment, especially those aspects of the environment that are matters of environmental significance” and recognised that the Greater Glider and Leadbeater’s Possum are “matters of national environmental significance”. These species therefore should be protected by provisions of the EPBC Act. However, the Court noted another of the Objects of the Act is to “to assist in the co-operative implementation of Australia’s international environmental responsibilities”. They argue that it is the responsibility of the Victorian Government to ensure that it complies with the expectations of the Commonwealth. The conclusion is that compliance with the Code of Forest Practices is not a matter for the Federal Court.

Friends of Leadbeater’s Possum are considering appeal to the High Court.

Prior to the decision of the Full Bench, Senator Bridget Mackenzie introduced a Bill into the Senate which proposes to remove the words “in accordance with an RFA” from both the EPBC Act and the Regional Forests Agreements Act (2002).