Supreme Court rules against Toolangi

The Supreme Court yesterday decided in the case of MyEnvironment Inc v VicForests that the law did not protect an area of Leadbeater’s Possum habitat in Toolangi from logging by VicForests. 

A copy of the Court’s decision can be found here.  The decision has also been covered by The Age.

The case was launched in August 2011 by Central Highlands-based environment group MyEnvironment, who were represented by Bleyer Lawyers.  MyEnvironment argued that the logging of three coupes in Toolangi was unlawful, because it was contrary to the environmental protection measures that applied to the site.  MyEnvironment also argued that the logging would breach the precautionary principle.  Both arguments hinged on the interpretation of laws that define protected habitat for the Leadbeater’s possum, which is listed as threatened under State and Federal legislation, and was in 1960 believed to be extinct.

Following a reduction in the area planned for logging in 1 of the 3 coupes after the commencement of the case, the Court found that the remaining area planned for logging in that coupe did not include protected habitat for the Leadbeater’s possum, as it was defined in the environmental protections that applied to the coupe.  The Court also held that VicForests’ plans to log the other 2 coupes were not yet detailed enough to rule that logging would necessarily be unlawful in those further coupes, and that the proposed logging did not breach the precautionary principle.

However, Justice Osborn (who delivered a more positive finding in his 2010 decision on logging in Brown Mountain) also said that the evidence showed an urgent need to review the applicable environmental protections, particularly in light of the impact of the 2009 bushfires (which destroted around 45% of the Possum’s habitat).

This disappointing decision demonstrates a failure of the law – a failure of Victoria’s environmental controls, and the Department that is responsible for them, to adequately protect the species they were enacted to protect. 

We should however be very thankful that groups like MyEnvironment have the courage to bring such legal proceedings.  One of the gravest problems with our environmental laws is that battles to save protected species, and clarify our environmental laws, must be fought in the Supreme Court, with the huge accompanying costs and risks.  While the results might be disappointing, the willingness of MyEnvironment to bear these costs and risks on the environment’s behalf should give us some hope!   

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