Friends of Leadbeater’s Possum Inc v VicForests

  • legal_possum

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.

Environmental Justic Australia

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-Client_3461548_4.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-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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