Logging exempt from environment laws despite destroying threatened species’ Victorian habitat, court finds

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A Victorian government forestry agency has won an appeal against a landmark court judgment that found it had repeatedly breached conservation regulations during its logging of the state’s central highlands.

The full bench of the federal court on Monday overturned a judgment that last year found VicForests had breached a code of practice related to a regional forestry agreement between the federal and state governments, and had therefore lost its right to be exempt from national environment laws.

The May 2020 judgment by justice Debra Mortimer found VicForests’ logging did not comply with the RFA as it was destroying habitat critical to two threatened species – the vulnerable greater glider and the critically endangered Leadbeater’s possum.

The decision sparked calls for a review of the industry-wide exemption for logging from the federal Environment Protection and Biodiversity Conservation (EPBC) Act under the terms of RFAs in four states.

In its judgment on Monday, the court found the initial judgment – including that VicForests had breached the code of practice by not complying with the precautionary principle in some forests – was factually correct.

But it found that VicForests’ logging was exempt from national environment laws even if it did not comply with the RFA.

The volunteer-run conservation group that brought the case, Friends of the Leadbeater’s Possum, said it planned to appeal to the high court, and would apply to keep injunctions preventing logging in place until that case was heard.

The president of the group, Steve Meacher, said the judgment was “very disappointing”.

“Logging in native forests is killing threatened species and destroying their critical habitat,” he said. “This battle is not over yet.”

VicForests said it was pleased the court accepted its argument that forestry under RFAs was managed under state regimes and did not need to be approved under national laws. The RFA requires VicForests to provide a management plan that “balances” the environmental and economic impact of logging.

Mortimer had found logging in 26 coupes had not complied with the code of practice and planned logging in another 41 coupes was likely not to comply.

Nicola Rivers, the co-chief executive of Environmental Justice Australia, which represented the conservation group, said the latest judgment confirmed VicForests’ logging had destroyed critical habitat for species at high risk of extinction, driven the decline of the Leadbeater’s possum and may have killed hundreds of threatened greater gliders.

“The court decided those operations are exempt from the federal environment laws designed to protect those very species,” she said.

A once-in-a-decade independent review of the EPBC Act by the former competition watchdog chief Graeme Samuel last year found the environment laws were failing, and the effective exemption granted to native forest logging should be abolished. The government is yet to formally respond to Samuel’s recommendation.

The Nationals Senate leader, Bridget McKenzie, introduced a private member’s bill to reinforce native forest logging’s exemption from environment laws in response to last year’s federal court judgment. The environment minister, Sussan Ley, said through a spokesperson that McKenzie’s bill was not government policy.

The Australian Forest Products Association said the court judgment was a “historic win for Australia’s sustainable native forest industries” that confirmed RFAs “provide all the environmental protections required by national environmental laws”.

“Today’s decision provides certainty for Victoria’s native timber industry and indeed for forest industry workers around the country,” the association’s chief executive, Ross Hampton, said

But the Wilderness Society said the court had rejected 30 of the 31 grounds that VicForests put forward, and upheld a finding that its logging activities posed a threat of extinction to the two species.

“Given all but one of the grounds were upheld, the court’s finding of illegal logging under Victorian law stands,” the society’s national campaigns director, Amelia Young, said. “Today’s outcome does not change the systemic risk of illegality that exists in these supply chains, and confirms that national environment laws are in desperate need of reform to protect endangered forest animals.”

Young called on “manufacturers, processors, retailers and consumers of timber, paper and packaging products” made from wood logged by VicForests to boycott its products, and the Victorian government to bring forward its plan to phase out native forestry by 2030.

The state government has been contacted for comment.

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