Why the Toolangi case was so important

On 14 March 2012, environment group MyEnvironment lost their Supreme Court case against Vicforests.   The Court rejected their argument, made on their behalf by their lawyers Bleyer Lawyers and barristers Kristin Walker and Emrys Nekvapil, that Vicforests ought not be able to log forests at Toolangi that are habitat for the critically endangered Leadbeaters Possum.  The case’s many supporters will no doubt be disappointed with the final decision, however they can be reassured that the case was not in vain. 

Perhaps unsurprisingly, in his response to the decision, Victorian Agricultural Minister Peter Walsh suggested the case was a waste, stating that the decision ‘endorses Victoria’s sustainable forestry practices’.  Mr Walsh also stated that the case ‘was a deliberate tactic to tie up resources’. 

Such comments are particularly disingenuous when we consider that the Department of Sustainability and Environment has recently started its own legal proceedings against VicForests in relation to allegedly unauthorised logging near Orbost, in Gippsland.

In any case, Minister Walsh is wrong.  A proper understanding of the case shows not only the important public interest basis for the case, but also what it actually achieved for the environment.

The case was of course not about tying up resources, but about protecting a species unique to Victoria, the Leadbeater’s Possum.  This animal is protected by law: it is listed as threatened under the Flora and Fauna Guarantee Act, and practices like logging are constrained by an ‘Action Statement’ under the Act which aims to guarantee that the Possums can “survive, flourish and retain their potential for evolutionary development in the wild”.

MyEnvironment, in bringing their case, asked the Court the very legitimate question: is VicForest’s plan to log Toolangi consistent with these rules? 

The urgency of this question is apparent.  During the 11 day trial, the Court heard from experts that the 2009 bushfires destroyed between 40 and 50 % of the Possum’s habitat, and reduced Possum numbers to just 2,000.  The coupes planned for logging were a rare example of unscathed Possum habitat.  The Court heard from experts that without appropriate habitat, the Possum may face extinction in the next 20 to 30 years. 

The Court ultimately found that the laws that applied in this case did not prevent logging at Toolangi.  But the length of the Court’s decision (110 pages) shows that the law was far from clear.  Given that the survival of a species is at stake, the Toolangi case was an essential test of these rules.  As is often the case, the decision largely turned on a careful analysis of a few words and phrases in the Action Statement and other documents which are supposed to protect the possum and its habitat. But does the court’s verdict mean that the case was unwarranted?  Far from it. 

Rather than endorsing Victoria’s ‘sustainable forestry practices’ as Minister Walsh suggests, Justice Osborn’s decision shows how our current environmental laws and their implementation are  inadequate.  Summaring his decision, Justice Osborn stated that “the evidence called by MyEnvironment demonstrates a strong case for the overall review of the adequacy of the reserve system intended to protect [Possum] habitat within the Central Highlands Forest Management Area.  The 2009 bushfires have materially changed the circumstances in which the existing system was planned and implemented and there is, on the evidence, an urgent need to review it.”

Importantly, the Court case and the extra scrutiny it put Vicforests under also had a some important practical consequences.  In response to the arguments and evidence presented by MyEnvironment, during the trial VicForests agreed to significantly scale back its planned logging at Toolangi, to exclude certain areas from logging, and to refrain from its usual practice of burning the forest after logging. 

If VicForests had not made these concessions during the trial, the Court’s final decision may have been very different.  And if VicForests hadn’t been faced with Supreme Court proceedings, it is unlikely that they would have made such concessions.

Furthermore, Vicforests has also now said in its media release following the decision that it “supports the Court’s suggestion of a review of the zoning system for Leadbeater’s Possum following the 2009 bushfires”.

In the end, we should remember that MyEnvironment and their supporters did not pursue the case for their own personal gain, but on behalf of something that can’t stand up in court for itself, the Possum.  If it weren’t for MyEnvironment, their lawyers and this case, the Toolangi coupes would likely have been cleared, the law would remain unclear, and the desperate state of the Possums, and the laws intended to protect them, would remain hidden.

In 1960, the Possum was actually thought to be extinct.  However, in 1961 it was rediscovered in the Central Highlands, not far from the Toolangi forests.  Since then, our government has made the Possum our State faunal emblem, and enacted laws which aim to guarantee that such extinction does not happen again.

Public interest cases like Toolangi are critical to ensuring that government is complying with these laws, and in revealing when they are failing to achieve this goal.  Rather than criticising the bringing of the case, our political leaders ought to be heeding the Court’s decision and urgently reviewing whether our the current system is up to the task of ensuring the possums survival.   

For these reasons, we should all be very grateful for the work and courage of those who brought this case: environment group MyEnvironment, their lawyers Bleyer Lawyers, and the barristers that acted in the case, Kristin Walker and Emrys Nekvapil.

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