Friends of Leadbeater’s Possum Inc v VicForests November 17 2017

  • Justice

The Possums’ Case

November 17 2017 Summary

Friends of Leadbeater’s Possum Inc. v VicForests challenges whether the native forest logging industry can be held to account for its impact on federally listed species, when logging has not been conducted in accordance with the 20-year old Regional Forest Agreement (RFA) regime.

20 year Regional Forest Agreements across Australia

The case concerns the magnificent forests of Victoria’s Central Highlands which are home to the critically endangered Leadbeater’s Possum and the Greater Glider, recently listed as vulnerable. It could have implications for other areas. At stake is native forest habitat on public land that is home to iconic wildlife.

Logging in public native forests is exempt from our national threatened species protection law, the Environment Protection and Biodiversity Conservation Act, provided that the logging is carried out in accordance with an RFA, a commonwealth-state agreement. The RFA requires a performance review every five years.

We allege that failure to complete the required five-year reviews on time or at all, means that logging in certain areas which significantly impacts the Leadbeater’s Possum and Greater Glider has not been and will not be in accordance with the RFA, and so is not exempt from the assessment and approval requirements of the EPBC Act that apply to such actions.

The Central Highlands RFA was signed on 27 March 1998 and the first 5-year review was due by 2003. However, the State and Federal governments say that they have only done one review, which they say looked at the period up to 2009 and concluded in 2015.

The first hearing in the case was held on Friday, 17th November before Justice Mortimer of the Federal Court.

Environmental Justic Australia

The outcome of Friday’s hearing was orders from the Court for a hearing of a “separate question” relating to whether logging in the areas named in FLbP’s claim which significantly impacts threatened species has not and will not be conducted in accordance with the RFA, and so is not exempt from the requirements of the EPBC Act, due to the failure to conduct the mandated 5 yearly reviews (the full text of the “separate question” can be read in the orders from Justice Mortimer – see the link below).

The Court orders from this initial hearing record that VicForests will not log in 34 scheduled coupes (see paragraph 10 of the statement of claim), until the separate question has been determined by the Court.

The Case returns to Court on 14th December to hear the “separate question”.

The case may have implications for forests and RFAs in others states around Australia. The Victorian and Commonwealth governments have indicated they may intervene in this case and other states may follow suit.

The orders made by Justice Mortimer on Friday are available on the Federal Court website, here – https://www.comcourts.gov.au/file/FEDERAL/P/VID1228/2017/order_list 

Court Signed Documents

FLBP-Pleading-14/11/2017

FLBP-1.-Originating-Application-14/11/2017

FLBP-3.-Certificate-Consent-14/11/2017

FLBP-4.-Interlocutory-Application-15/11/2017

FLBP-5.-Orders-17/11/2017

FLBP-Interlocutory-Application-dated-22/11/2017

FLBP-20171122-Interlocutory-application-(filed)-23/11/2017

FLBP-6.-Agreed-Statement-of-Facts-with-Annexures-07-12-2017


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