A historic victory for Australia’s native forests and threatened species is being challenged in the Federal Court next week, with an appeal outcome set to change the fate of logging in Australia.
In a win of national significance, the Federal Court last year delivered a landmark judgment in the Possums Case against VicForests that found logging operations in 66 areas of habitat critical to the vulnerable Greater Glider and critically endangered Leadbeater’s Possum contravened both state and federal law.
Victoria’s state logging agency, VicForests, has appealed the court’s findings that its operations are in breach of laws designed to protect threatened species, listing 28 grounds and will be heard in Sydney’s Federal Court over three days from Monday, April 12.
The Possums Case, brought by Friends of Leadbeater’s Possum represented by Environmental Justice Australia, has national implications for threatened species facing habitat destruction from logging under Regional Forest Agreements (RFAs) across the country. Under RFAs, state logging agencies claim a special exemption from federal environment laws that has seen them log threatened species habitat, driving threatened plants and animals closer to extinction.
The appeal was lodged as new research from the Australian National University found that over 22 years of monitoring data there has been a 50 per cent decrease in Leadbeater’s Possum populations and an 80 per cent decline in Greater Glider populations in the wet eucalypt forests of south-eastern Australia, caused by logging and fire.
Just last week, a NSW Forestry Corporation review was released finding the 2019-20 bushfires have reduced the amount of native forest slated for logging in the state by as much as 30 percent. In addition, research released this week shows the population of greater gliders in the NSW Blue Mountains has more than halved after a horrific bushfire season and years of drought and heatwaves.
Vast amounts of native forest, home to threatened species in Victoria and New South Wales, have been lost to the catastrophic bushfires since the case began in 2017 and calls for a rapid phase out, and an interim moratorium, on native forest logging have intensified.
The outcome of the Federal Court appeal will determine the future of some of the last remaining habitat for the critically endangered Leadbeater’s Possum and the vulnerable Greater Glider and set important legal precedents for threatened species protection across Australia.
Steve Meacher, President of Friends of Leadbeater’s Possum, said:
“Instead of focusing on ensuring that logging across their operations complies with the laws intended to protect the Greater Glider and Leadbeater’s Possum as the Court found they should, VicForests has decided to take our community-based volunteer group back to court.
“Ongoing logging is pushing the Leadbeater’s Possum and Greater Glider ever closer to extinction, along with other threatened wildlife across the country. The fate of our forest dwelling species is grim in the aftermath of the Black Saturday and Black Summer bushfires, and yet state governments continue to log their “lifeboats” – the last refuges where our wildlife are managing to hang on.
“We are confident that Justice Mortimer’s carefully reasoned judgement, as to state and federal threatened species protection, is correct and that our landmark victory will be upheld.
“We look forward to a positive outcome and the national implications this will have for the conservation of threatened wildlife across the country; wildlife that is rapidly losing its last remaining habitat to logging under the disastrous Regional Forest Agreements.”
Danya Jacobs, Senior Lawyer at Environmental Justice Australia, said:
“The landmark win in the Possums Case set an important legal precedent applying federal threatened species protection law to the logging industry for the first time in more than two decades.
“In the 20 years that Regional Forest Agreements have been in place, logging has pushed iconic Australian species like the Leadbeater’s Possum, Swift Parrot and even the Koala closer to extinction.
“No other industry has the kind of exemption from national environment laws afforded to the logging industry. The Possums Case made clear that the exemption has limits, it is not a carte blanche and threatened species must be protected in our forests.
When: 10:30am Monday 12 April to Wednesday 14 April
Where: Courtroom 18C, Law Courts Building 184 Phillip Street, Queens Square, Sydney
Media: Federal Court enquiries from journalists are to be directed to the Director Public Information. Journalists may attend the hearing in Court or by live stream.
The case was first filed in October 2017 by Friends of Leadbeater’s Possum, 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 2020, the court found in favour of volunteer-run community group, Friends of Leadbeater’s Possum, 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 had 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.
Following the judgment, the Court held further hearings on the appropriate orders it should make given the conclusions it had reached. Final orders were made on 21 August 2020 granting injunctions over all 66 areas. VicForests had 28 days to appeal the decision.
VicForests lodged an appeal with the Federal Court. VicForests has appealed the court’s findings that its operations are in breach of state and federal laws designed to protect threatened species, listing 28 grounds.
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.
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 other areas in the Central Highlands forests, yet VicForests continues logging these areas.
Federal Court documentation and transcripts
Please note key Court documents can be accessed directly from the Federal Court website here.
Possum magic could fell an industry, The Australian, 19/09/2020
State government loggers to appeal possum court win, Fairfax, 15/09/2020
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
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