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Federal Court win for VicForests against Friends of Leadbeaters’ Possum

VicForests today won its appeal against a Federal Court order which imposed strict conditions to stop logging of threatened species habitat in Victoria’s Central Highlands. The appeal was handed down in the Federal Court this morning. Source: Timberbiz

In a unanimous decision, the Court upheld VicForests’ appeal against a single-judge decision 12 months ago which had created significant legal uncertainty for RFAs and for the tens of thousands of forest industry jobs that the bilateral state-Commonwealth agreements underpin.

At the heart of the appeal was whether the Commonwealth EPBC Act could apply to forestry operations covered by an RFA, or whether the RFAs provide an equivalent and alternative (as VicForests maintained) regulatory framework with Commonwealth oversight to protect “Matters of National Environmental Significance”.  The Full bench today ruled that they do, and consequently the EPBC Act does not also apply.

The Federal Court in May last year ruled in favour of local environment group Friends of Leadbeater’s Possum, which argued VicForests had breached the federal Environment Protection Biodiversity Conservation Act when it logged forest coupes in the Central Highlands region.

VicForests had argued to the Federal Court that it was exempt from federal threatened species obligations set out in the Act because of Regional Forest Agreement negotiated between the state and federal governments.

However, Justice Debra Mortimer found VicForests’ logging operations had damaged threatened species habitat and failed the Act requirements including protecting threatened gliders and possums. An injunction was placed banning VicForests from doing any more logging in the region.

VicForests operations at 26 logging coupes were said to have been in breach of the code of practice that governed forest management in Victoria.

However, in a decision today by Justice Jayne Jagot, Justice John Griffiths and Justice Sarah Derrington VicForests’ appeal was upheld.

Today, Friends of the Leadbeater’s Possum applied to have existing injunctions remain in place while they consider appealing to the High Court.

In a statement, Friends of the Leadbeater’s Possum president Steve Meecher said the battle “was not yet over”.

In a brief statement VicForests said it was pleased that its appeal to the Full Court of the Federal Court has been successful.

“The Full Court accepted VicForests’ arguments on the main ground of appeal – with all other grounds being argued as an alternative in the event that the first ground was unsuccessful,” the statement said.

“Importantly, the Court has upheld VicForests’ interpretation of the framework for sharing of environmental regulation between the Commonwealth and the States – that is, that forestry operations conducted in an area that is managed through a Regional Forest Agreement are managed under the State regime approved by the Commonwealth through the RFA process, not through the approval process under Commonwealth Law.”

Australian Forest Products Association CEO Ross Hampton said today’s decision was vindication for Australia’s sustainable forest industries which are regulated to the highest environmental standards in the world.

“Today’s decision provides certainty for Victoria’s native timber industry, and indeed for forest industry workers around the country who depend on the operational certainty that the robust RFA framework provides,” Mr Hampton said.

“It is also further evidence that our sustainable forest industries provide all the necessary environmental protections for threatened species and Matters of National Environmental Significance that the EPBC Act requires.

“This decision should put an end once and for all to the claim that RFAs somehow ‘exempt’ forestry operations from national environmental laws or oversight, and I commend the Federal Court judges for confirming this beyond doubt.”

Victorian Forest Products Association CEO Deb Kerr welcomed the decision, and hoped it will put an end to the lawfare that has stalled VicForests’ planned forestry operations in the Central Highlands for three years.

“I call on the activists to respect the full bench of the Federal Court’s decision and stop the litigation so that VicForests can resume timber harvesting operations and provide certainty for the thousands of Victorian hardwood timber industry workers,” Ms Kerr said.

“Today’s decision has the effect of overturning all of Justice Mortimer’s decision last May, which means those who seized on that decision to wrongly claim that VicForests’ timber was ‘illegal’ should now apologise and correct the record,” Ms Kerr said.

Meanwhile VicForests has announced it will resume harvesting unburnt coupes within the East Gippsland fire footprint immediately. This harvesting will be essential to restoring supply for timber processers that have been significantly impacted by constraints during 2020.

VicForests is planning to harvest a very small area in East Gippsland over the next 18 months, totalling around 0.2% of the unburnt forest in East Gippsland.