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 2017 before Justice Mortimer of the Federal Court.
THE POSSUMS’ CASE
JANUARY 2019 SUMMARY
Friends of Leadbeater’s Possum Inc. v VicForests has already established that
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. The challenge we now face is to show that logging has not been conducted in accordance with the Central Highlands RFA.
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, 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.
We allege 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 Central Highlands 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 in 2018 was extended
to 2020.
The first hearings in the case were held in November and December 2017 before Justice Mortimer of the Federal Court.
The outcome of those hearings was that failure to conduct the mandated 5 yearly reviews did not extinguish exemption from the EPBC Act of logging under an RFA, as VicForests is not responsible for carrying out the reviews. But the Court also heard that compliance with state regulations and provisions was required and that non-compliance would mean that the exemption from the EPBC Act was not applicable.
Accordingly, we amended our Claim and have spent the past twelve months gathering evidence in support of our case.
The hearing opens in the Federal Court on Monday, 25th February and is expected to last for 3 weeks.
The case may have implications for forests and RFAs in other states around Australia. The Victorian and Commonwealth governments intervened in the preliminary hearing and will continue to follow progress.
Documents are available below and on the Federal Court website, here –
https://www.comcourts.gov.au/file/FEDERAL/P/VID1228/2017/order_list
Images on this page by Wildlife of the Central Highlands (WOTCH)
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
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Court Signed Documents
Go to:
January 2019
The Possums’ Case Update Jan 2019
Expert Report of Dr Smith January 9, 2019
Second Expert Report of Dr Smith January 9, 2019
Expert Report of Professor Woinarski January 18, 2019
Expert Report of Dr Nicolle January 18, 2019
Expert Report of Stephen Mueck January 2, 2019
Second Expert Report of Stephen Mueck January 22, 2019
September 2018
Further-Amended-Statement-of-Claim-(6-9-18)-filed
May 2018
FLBP-Affidavit-(1-5-18)-stamped
FLBP-Submissions-in-support-of-interlocutory-injunction-(1-5-18)-stamped
April 2018
FLBP-180403-VF-submissions-on-Final-Orders.pdf
FLBP-20180329-Submissions-of-the-Commonwealth-(filed)-17010204.pdf
FLBP-Amended-Statement-of-Claim-(29-3-2018)-stamped.pdf
FLBP-Applicant’s-Submissions-(3-4-18)-stamped.pdf
FLBP-Interlocutory-Application-(23-4-18)-stamped
FLBP-Injunction_P_VID1228_2017_1159088
FLBP-Affidavit-(23-4-2018)-stamped
March 2018
FLBP_Amended_Statement_of_Claim_(29_3_2018)_stamped.pdf
January 2018
FLBP-Applicants-Submissions-11-12-17-sealed.pdf
December 2017
20171211_Submissions-of-the-Commonwealth-(filed)-17010204
20171217_VF-submissions-on-the-SQ-(3)
Second_Intervener_Client_3321657_6
November 2017
FLBP-1.-Originating-Application-14/11/2017
FLBP-3.-Certificate-Consent-14/11/2017
FLBP-4.-Interlocutory-Application-15/11/2017
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