VicForests breached threatened species laws with central highlands logging, court rules

Lisa Cox

For the first time in 20 years forestry operations may have to be assessed under national environmental laws after the federal court ruled VicForests had breached laws related to threatened species.

Friends of Leadbeater’s Possum had challenged logging by the state-owned forestry corporation in 66 coupes in Victoria’s central highlands.

The environment group argued VicForests had breached the code of practice in its regional forestry agreement and that its exemption from national environmental laws should therefore not apply.

Related: 'Compelling evidence' logging native forests has worsened Australian bushfires, scientists warn

It said the court should prevent further logging unless it was assessed and approved by the federal environment minister, Sussan Ley.

In a judgment on Wednesday, the court agreed VicForests had breached provisions related to environmental conservation in the code of conduct, and that past and proposed logging would have a significant impact on the vulnerable greater glider and the critically endangered Leadbeater’s possum.

Danya Jacobs, a senior lawyer with Environmental Justice Australia, which represented Friends of the Leadbeater’s Possum, said the case had profound implications.

“The logging industry has operated for 20 years as if it doesn’t have to comply with our federal environment laws because of regional forest agreements,” she said. “This case overturns that position and clearly finds that the exemption can and will be lost where threatened species protections are not complied with.”

The parties to the case are now expected to respond to the findings before the court finalises its orders.

The case is only the second in the 21-year history of Australia’s Environment Protection and Biodiversity Conservation Act to challenge the special exemption given to the forestry industry.

Under the EPBC Act, forestry operations are exempt from assessment if they are conducted in accordance with a regional forestry agreement – long-term bilateral agreements between state and federal governments.

In Victoria, these agreements include a code of practice that sets out conditions logging operations must meet, including in relation to threatened species.

Friends of Leadbeater’s Possum argued VicForests had breached the code of practice in its agreement and that its agreement and exemption from national law were, in effect, invalid.

In her judgment, justice Debra Mortimer found VicForests had breached the code of practice by not complying with the precautionary principle relating to conservation of the environment.

She found logging in 26 coupes had not complied with the central highlands RFA and that logging yet to be conducted in a further 41 coupes was not likely to be conducted in accordance with the RFA. One coupe was partially logged and counted in both categories.

The president of Friends of Leadbeater’s Possum, Steve Meacher, said the outcome was a “huge win not just for the Leadbeater’s possum and the greater glider but for wildlife threatened by logging across the country.

“No government or company should be exempt from national environment laws that are in place to protect our threatened species.

“We must stop the senseless logging of critical threatened species’ habitat or we will drive them to extinction.”

In a summary, Mortimer said the court had accepted evidence that the greater glider, the Leadbeater’s possum, or both animals, were found in or around each of the 66 coupes.

In relation to the greater glider, the court found VicForests “has not engaged, and is not likely to engage, in a careful evaluation of management options to avoid wherever practical the very real threats of serious damage to the Greater Gilder which are posed by its forestry operations in the central highlands”.

It found that in planning and conducting logging and in deciding where it would log, VicForests had “insufficient regard” to high quality greater glider habitat, the presence of greater gliders in areas it planned to log, and to the additional pressures greater gliders were facing due to bushfires.

It said policies VicForests had developed that were meant to manage the greater glider were instead “defensive documents” that suggested “VicForests felt obliged to have a policy addressing further protection for the greater glider, but was reluctant to implement it”.

The court found logging in the 66 coupes – both past and planned – was likely to have a significant impact on one or both species, and that management operations meant to reduce the impact “have not been effective to arrest the decline of the greater glider and the Leadbeater’s possum”.

“Not only do VicForests’ forestry operations damage or destroy existing habitat critical to the survival of the two species, they also prevent new areas of forest from developing into such habitat in the future,” the summary states.

The court accepted the view of experts that habitat within the coupes was of increasing importance because of the threat posed by more frequent and intense bushfires.

Jacobs said when governments failed to protect threatened species it fell to small community groups and public interest lawyers to hold them to account in the courts.

“As the extinction crisis accelerates, it’s vital that our environment laws work to protect what is left,” she said.

The Greens said all native forestry operations now “faced a cascade of legal challenges”.

Related: Ending logging in Victoria now would save taxpayers $192m, budget office estimates

“This is a hugely significant decision. It shows the provisions of our logging laws under the Regional Forest Agreements (RFAs) are not working to protect threatened species,” the party’s forestry spokesperson, Senator Janet Rice said.

Amelia Young, the national campaigns director for the Wilderness Society, described it as “the Franklin Dam of forest legal judgments”.

“The case has laid bare the staggering unsustainability of industrial native forest logging and the catastrophic failures of governments in stopping their own agencies from sending our wildlife into the abyss of extinction,” she said.

“State governments have for decades exploited their exemption from national environment laws under the regional forest agreements, while logging native forests to secure unsustainable volumes of wood, and in doing so, push forest dwelling species to the brink of extinction.”

Guardian Australia has sought comment from VicForests and Ley.