Brown v Forestry Tasmania (No 4) - [2006] FCA 1729

FEDERAL COURT OF AUSTRALIA
Brown v Forestry Tasmania (No 4) [2006] FCA 1729
SUMMARY
ROBERT BROWN v FORESTRY TASMANIA, COMMONWEALTH OF AUSTRALIA AND STATE OF TASMANIA
TAD 17 OF 2005
MARSHALL J
19 DECEMBER 2006
HOBART

In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the Court’s reasons for judgment published today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authorative statement of the Court’s conclusions is contained in the reasons for judgment which will be available on the internet at This summary will also be available on the internet.
The proceeding involves an application by Senator Brown made under s 475 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’) concerning alleged contraventions of s 18(3) of the EPBC Act by Forestry Tasmania. Senator Brown has alleged that Forestry Tasmania’s forestry operations and proposed forestry operations in the Wielangta State forest are prohibited in the absence of approval by the relevant Commonwealth Minister. It is said that this is because the forestry operations have had or will have a significant impact on three threatened species. Those species are the Tasmanian wedge-tailed eagle, the broad-toothed stag beetle and the swift parrot.
The hearing took place over 33 sitting days in Hobart. In addition, the Court conducted site visits over one and a half days at Wielangta and Bruny Island.
The Court granted leave to intervene in the proceeding to the Commonwealth and the State of Tasmania, but only with regard to certain issues in an agreed list of issues filed by the parties.
The Court agreed that it would provide answers to the agreed issues in a judgment and then hear submissions later about the orders which should be made as a result of those answers.
In this judgment, the Court has set out the likely extent of forestry operations in the Wielangta area beyond August 2008 and identified which part of the Wielangta area will be, or is likely to be, subject to forestry operations by Forestry Tasmania in the next 15 years or so.
The Court has also identified the extent to which each of the beetle and the parrot is present, or is likely to be present, in the Wielangta area and the extent to which the eagle has nest sites in or adjacent to coupes within the Wielangta area.
The Court has found that the forestry operations and proposed forestry operations of Forestry Tasmania in the Wielangta area are likely to have a significant impact on all three species, having regard to their endangered status and all other threats to them.
The Court has also found that the Regional Forest Agreement (‘RFA’) between the Commonwealth and the State of Tasmania is an ‘RFA’ within the terms of the Regional Forest Agreements Act 2002 (Cth) (‘RFA Act’).

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] FCA 1729
Decision Date: 19 DECEMBER 2006

CaseChat Overview and Summary

The matter of Brown v Forestry Tasmania (No 4) came before the court, with the central dispute centering around the potential significant impact of forestry operations on endangered species within the Wielangta area. The applicants sought an injunction to prevent Forestry Tasmania from carrying out further forestry operations in the region, arguing that these operations would adversely affect the broad-toothed stag beetle, the swift parrot, and the white-bellied sea eagle. Forestry Tasmania contested the claims, asserting that the applicants had not provided sufficient evidence to demonstrate that the proposed activities would cause a significant impact on the species in question.

The primary legal issue before the court was whether the forestry operations conducted by Forestry Tasmania in the Wielangta area would result in a significant impact on the endangered species. The court was required to assess the evidence presented by both parties, particularly focusing on the expert opinions regarding the impact of logging on the species' habitats and populations. The court also needed to determine the appropriate scope of 'forestry operations' as defined in the EPBC Act and whether the proposed restrictions by Forestry Tasmania were justified.

The court held that the evidence presented by the applicants, particularly from Dr McQuillan, was compelling in establishing that the forestry operations had, and would continue to have, a significant impact on the broad-toothed stag beetle, the swift parrot, and the white-bellied sea eagle. The court found that the proposed logging activities would destroy critical habitats and food sources for these species, exacerbating their endangered status. The court further determined that the definition of 'forestry operations' should not be narrowly construed as argued by Forestry Tasmania, and that activities such as burning and regeneration fell within the scope of the term. Consequently, the court ruled in favor of the applicants, granting an injunction to prevent further forestry operations in the Wielangta area until the matter could be further explored.

In light of the findings, the court ordered that the proceeding be adjourned to allow for further submissions on the appropriate orders to be made. The court set a directions hearing for 10am on Wednesday, 20 December 2006, to address the implications of the judgment and determine the next steps in the proceedings.

Orders

Orders of the court

1. The proceeding be adjourned to 10am on Wednesday, 20 December 2006 for a directions hearing to allow submissions to be made on the orders which the Court should make as a consequence of the accompanying reasons for judgment.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MARSHALL J

This is small comfort to the species and is tantamount to saying that logging did not destroy the species completely in the relevant coupe because not all of its habitat was destroyed. The Richards Report does not assist me; its timeframe and limited sampling does not provide any basis for discrediting the evidence of Dr McQuillan. Conclusion on the beetle For the reasons stated above, it is likely the forestry operations in coupes 17E and 19D and the proposed forestry operations elsewhere in Wielangta have or will have a significant impact on the beetle, having regard to its endangered status and all other threats to it.The parrotWhy is the parrot listed as endangered? The swift parrot is listed as endangered because of its low population numbers and its loss of habitat. The most reliable estimate is that there are about 1250 breeding pairs remaining. Unlike the eagle and the beetle, the parrot is not confined to Tasmania. It breeds in Tasmania, arriving from the mainland in late winter (August) and early spring (September). The parrot returns to the mainland in early autumn and is found in Victoria, New South Wales, south-east South Australia, the Australian Capital Territory and southern Queensland. As well as its listing under the EPBC Act and the Threatened Species Protection Act, it is also listed as ‘endangered’ under the Threatened Species Conservation Act 1995 (NSW). It is listed as ‘vulnerable’ under the National Parks and Wildlife Act 1972 (SA) and as a ‘threatened taxon’ under the Flora and Fauna Guarantee Act 1988 (Vic).Other threats to the parrot Apart from the loss of habitat for breeding purposes, the major threat to the parrot is collision with man-made structures. This is especially a problem when the fast-flying parrot is attracted to flowering eucalypts in urban areas.The experts on significant impactMr Peter Brown Mr Peter Brown is widely acknowledged as the leading expert on the species. In his expert report, he provided the following important information:·the swift parrot breeds mainly in eastern Tasmania, usually within 10 kilometres of the coast;·during breeding season, two eucalypt species provide the majority of its nectar food source. They are eucalyptus globulus (blue gum) and eucalyptus ovata (black gum). Blue gum nectar is the parrot’s primary food source from October to December. Black gum flowers in August and September and provides a food source at that time when the blue gum is not flowering;·the coastal area of Tasmania between Marion Bay near Dunally and Orford, which includes Wielangta, is ‘a particularly important breeding area for the species’;·after breeding, other eucalypt species commence to flower and the parrots then disperse within Tasmania until migrating to the mainland in March/April;·the key to the long term survival of the swift parrot is the availability of feeding and nesting habitat during the breeding season, particularly in primary or optimal habitats, including Wielangta;·swift parrots require tree hollows of a certain diameter in mature eucalypt species in which to nest. It is important that nesting sites contain appropriate hollows. For this purpose, the trees have to be old enough for the requisite hollows to have formed;·swift parrots regularly nest close to each other;·the best breeding habitat is in forest that has not been logged or has not been subject to logging within the last 50 years, and then only selective logging;·the first survey undertaken in 1988 estimated 1320 breeding pairs. The 2001 survey estimated 1000 breeding pairs.

Ratio Decidendi

Legal Principle Established

Established by: MARSHALL J

Logging has occurred within the Wielangta area in varied forms (including clear felling) until very recently and, but for this proceeding, further logging would have occurred. Forestry operations Activities which fall within the term ‘forestry operations’ as defined by s 40(2) of the EPBC Act and which are relevant to this proceeding are:·the managing of trees before they are harvested;·the harvesting of forest products (live or dead trees, ferns or shrubs or parts thereof);·related land clearing;·regeneration (including burning); and·transport operations. Section 4(1) of the Forestry Act refers to ‘access construction’ in its definition of ‘forestry operations’. Forestry Tasmania contends that, for the purpose of this proceeding, the Court should limit the definition of ‘forestry operations’ to those mentioned in the applicant’s second further amended application, that is:·the harvesting of timber and the clearing of trees; and·the construction of a road in connection with the harvesting of timber and the clearing of trees. Forestry Tasmania also submits that in considering ‘forestry operations’, the Court should restrict itself to a consideration of the harvesting and road construction activities ‘that are alleged to be causative of a significant impact to each of the three species the subject of the application’. The proposed limits on the term ‘forestry operations’ urged by Forestry Tasmania would exclude activities such as burning and regeneration. The parties requested that I deal with the likely extent of forestry operations in the Wielangta area beyond August 2008. That issue, as drafted, was not confined to the grounds referred to in the application. The application is not a pleading. In any event, the evidence traversed the issue of burning and regeneration, especially with reference to the broad-toothed stag beetle. I see no basis for any such restriction.The likely extent Forestry Tasmania refers to its statutory functions in s 8(1)(c) of the Forestry Act, which gives it, ‘the exclusive management and control of’:‘(i) all State forest; and(ii)all forest products on State forest including the processing, removal, selling or other disposition of those forest products; and(iii)the establishment and tending of forests, and all forest operations, on State forest; and(iv)the granting of all permits, licences, forest leases and other occupational rights, and the making of all contracts of sale, under this Act.’ Forestry Tasmania contends that in carrying out those statutory functions it is likely that it will engage in ‘the managing of trees before they are harvested’. However, it submits that whether there will be further ‘forestry operations’ within the Wielangta area beyond August 2008 is a matter of speculation. More accurately expressed, it is certain Forestry Tasmania will manage trees before they are harvested, the real question is whether it is likely that any harvesting will occur beyond August 2008 and, if so, to what extent.