Legal Victory for the Friends of Leadbeater’s Possum

Justice Mortimer of the Federal Court of Australia today handed down a 359 page judgment concluding that Friends of Leadbeater’s Possum Inc (“Friends”) had proved its pleaded case in litigation under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“the EPBC Act”) against VicForests, the Victorian government agency entrusted with the management of Victoria’s state forest portfolio.

The mammoth decision is the fourth by Justice Mortimer in the case who has previously resolved a number of procedural issues that had arisen between the parties in the conduct of the case.

The case concerned the management and exploitation for commercial forestry of 66 coupes of forest in Victoria’s Central Highlands region. The case concerned the impact on two native fauna species, Leadbeater’s Possum and the Greater Glider.

Leadbeaters Possum. Photo courtesy of the Wilderness Society.

Section 38(1) provides that forestry operations which are conducted pursuant to a Regional Forestry Agreement under the Regional Forest Agreement Act 2002 are not subject to the assessment and approval process of activities which are likely to have an impact on matters of national environment significance in part 3 of the EPBC Act.

Friends had argued, and Justice Mortimer found, on the evidence and on the balance of probabilities, that although a Central Highlands Regional Forestry Agreement does exist, the forestry operations conducted and planned, so far as they impacted upon the two species of protected native fauna, were not pursuant to that agreement because the operations were not being conducted in accord with the precautionary principle and were, therefore, in breach of clause of the Code of Practice for Timber Production 2014. As a result, the forest activities do not benefit from the exemption extended by s 38(1) EPBC Act and, not having been assessed or approved under part 3 of the EPBC Act are unlawful.

The decision is of particular relevance in that Professor Graeme Samuel is currently conducting a review of the EPBC Act for the Federal Government. The success of the litigation might, hopefully, impress upon Professor Samuel an appreciation of how legislation can indeed be effective to protect the environment.

It will be interesting if the usual suspects raise their cries of Lawfare in response to Justice Mortimer’s decision. The decision indicates, however, that conservation groups, assisted by members of the public and environmental defender community law centres are conducting serious litigation to ensure that legal protection of the environment passed by Parliaments is given effect, a role that might have thought should be carried out by the Environment Departments of the executives whose Parliaments passed the protective legislation.

Stephen Keim SC

Higgins Chambers

27 May 2020

Footnote: the decision, Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704 is available at this link.