Australian court calls into question Regional Forest Agreements

The days of RFAs may be numbered if the successful challenge by Friends of Leadbeater’s Possum is anything to go by

By Peter Burnett

The recent decision of the Federal Court in Friends of Leadbeater’s Possum Inc v VicForests (hereafter, the Possum Case) could have significant and possibly profound implications for the logging of native forests in Australia. In this case the court found that VicForests, a Victorian Government forestry corporation, was in breach of a statutory Code of Practice for Timber Production that had been accredited under a federal-state Regional Forest Agreement (RFA).

Being covered by an RFA has meant that VicForests was exempt from the normal requirements of the Environment Protection and Biodiversity Conservation Act (EPBC Act). Because of this exemption, VicForests didn’t have to go through an environmental assessment and approval process each time it wanted to log in new areas that might contain endangered species or other ‘matters of national environmental significance’.

Of course, being in breach meant that this exemption was lost.

No simple fix

You might think that VicForests could deal with such a finding by simply bringing itself back into compliance with the code. It’s not that simple, however.

The code of practice required VicForests to comply with the precautionary principle. This in turn required them to conduct on-ground ecological surveys, with a view to avoiding serious and irreversible environmental damage. In this case, damage was possible to two endangered possums, the Leadbeater’s possum and the greater glider.

In considering impacts on the possums, VicForests had relied on desktop modelling (including habitat mapping) instead of conducting surveys. The court said this was a flawed approach. It also found that policies such as VicForests’ Interim Greater Glider Strategy didn’t represent the required ‘careful evaluation of management options’ but rather were defensive documents. The content of these documents suggested that VicForests developed policies out of a sense of obligation and were reluctant to implement them.

The implication is that coming into compliance with the Code would be no small thing. It would require significant changes of approach and attitude. More significantly, given expert evidence that the possums had been detected in or around all of the 66 logging coupes considered in the case, it was likely that the possums, let alone any other environmental value, could severely restrict or even prevent logging altogether.

Playing possum

The Possum Case is on appeal, and of course the appeal could be successful. If it is not successful (and I think Justice Mortimer’s 444 page judgement will be difficult to pull apart in an appeal court because it rests much more on scientific evidence and practice than on the points of law to which an appeal court is confined) the Victorian government’s hand will be forced.

The government will either have to underwrite further losses as VicForests brings itself into compliance with environmental standards, or it will decide to accelerate the transition out of native forest logging. The option of watering down the rules, which is what the federal and Tasmanian governments did in an earlier case, is less likely because, again, the issues relate more to good science and practice than to legalities, making a lowering of the bar more obvious and thus harder to defend.

This is not the first challenge to Australia’s ten RFAs. Green activist and former Senator Bob Brown challenged the Tasmanian RFA in 2006 in the Weilangta case. He won in the first instance but lost on appeal. The Possum Case seems to have prompted him to try again: Brown has already commenced a fresh challenge to the Tasmanian RFA.

The main implication of the Possum Case may be that the days of RFAs are numbered.

A fresh approach

In one respect the end of RFAs would be unfortunate, as the underlying model of regional environmental assessments and approvals is a good one.

In another respect, if RFAs simply provide cover for defensive box ticking and green-washing rather than substantive conservation (something I discussed in an early blog), this would be no great loss.

RFAs provided a mechanism to settle the ‘forest wars’ of the 1990s. So, if RFAs are rendered inoperable by court challenges, will it be back to the forest wars?

Or do we now have a much better appreciation of the many values that our native forests provide; values that include a whole range of ecosystem services beyond timber production, such as carbon sequestration, water yield, habitat provisioning and recreational amenity? Heather Keith and her colleagues reached this conclusion in an important article published in Nature in 2017.

Sometimes we need a jolt to the system to get us thinking differently.

Image: This possum is stuffed: George is a taxidermied male Leadbeater’s Possum (Gymnobelideus leadbeateri) that Friends of Leadbeater’s Possum uses for its educational work relating to this threatened species. George was found dead but intact on the side of a logging road in 2011 in the Victorian Central Highlands. It is assumed that George’s home in the mountain ash (Eucalyptus Regnans) forests was a victim of logging, and as his home was being carted away he fell off the logging truck. (Image by Tirin (www.takver.com) and used under the Creative Commons Attribution-Share Alike 3.0 Unported license.)

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