Friends of Leadbeater's Possum Inc v VicForests

Friends of Leadbeater's Possum Inc initiated legal action against VicForests, a government-owned entity responsible for managing state forests in Victoria. The dispute centered around the interpretation of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and related legislation, specifically the application of a regulatory scheme established under these Acts. The crux of the matter was whether VicForests' forestry operations complied with a clause in a regional forest agreement (RFA), and if non-compliance triggered an exemption under section 38(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The court was required to determine the nature of compliance with the RFA necessary to engage the exemption and whether the applicant's interpretation of the legislation was correct.

The court found that the applicant's interpretation of the statutory scheme was flawed. It rejected the notion that the RFA regime replaced the EPBC Act, and that there must be "full compliance" with the RFA regime. Instead, the court accepted the Commonwealth's argument that the exemption in section 38(1) applied to forestry operations conducted in conformity with the systems of forest management accredited by the RFA. This included observing restrictions on specific forestry operations and requirements in action plans and recovery plans for listed threatened species. The court held that the failure of the State of Victoria to undertake five-yearly reviews, as required by clause 36 of the Central Highlands RFA, did not affect the operation of the exemption. The court concluded that the exemption applied to forestry operations conducted in accordance with the RFA, but not to any express prohibitions within the RFA.

In summary, the court ruled that VicForests' conduct of forestry operations in the Central Highlands RFA region was covered by the exemption in section 38(1), despite the failure of the State of Victoria to undertake the required five-yearly reviews. The court rejected the applicant's argument that non-compliance with the RFA regime affected the operation of the exemption, and held that some failures to perform obligations under an RFA were matters between the two governments. The court also rejected VicForests' argument that the exemption applied to any forestry operations conducted in an RFA region without express prohibitions. Instead, the court found a middle ground, requiring conformity with the systems of forest management accredited by the RFA.

The final orders required the parties and interveners to file an agreed proposed form of answer to the separate question, taking into account the Court's reasons for judgment, together with any further or other orders the parties and interveners submitted the Court should make, including as to costs. If no agreement was reached, the parties and interveners were to file submissions, each limited to five pages, concerning their respective proposed form of answer to the separate question, taking into account the Court's reasons for judgment, together with submissions on any further or other orders the parties and interveners submitted the Court should make, including as to costs.