Friends of Leadbeater's Possum Inc v VicForests (No 4)
[2020] FCA 704
•27 May 2020
FEDERAL COURT OF AUSTRALIA
Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704
SUMMARY
In accordance with the practice of the Federal Court in cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made 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 authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at together with this summary.
The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) is a federal law enacted to implement Australia’s international environmental obligations in the way chosen by the Commonwealth Parliament. As its name suggests, its subject is the protection of the environment and the conservation of biodiversity, and it regulates a wide range of conduct, including activities which may affect what are called in the EPBC Act “matters of national environmental significance”. These matters include: World Heritage properties; National Heritage places; wetlands of international importance; listed threatened species and communities; listed migratory species; marine environment and the Great Barrier Reef Marine Park.
This proceeding concerns forestry operations in 66 specified forest “coupes” (a forestry term for areas of forest planned to be logged) in the Central Highlands region of Victoria. It concerns the alleged effect of those operations on two native species of possum, the Greater Glider and the Leadbeater’s Possum. The Greater Glider and Leadbeater’s Possum are both listed as threatened species under the EPBC Act. The Greater Glider is listed as “vulnerable”, which means it is facing a high risk of extinction in the wild in the medium-term future. The Leadbeater’s Possum is listed as “critically endangered”, which means it is facing an extremely high risk of extinction in the wild in the immediate future. Some of the 66 coupes have already been logged, and some have not. Thus, the proceeding concerns both past and proposed forestry operations.
The case has been brought by Friends of Leadbeater’s Possum Inc, an environmental group, against VicForests, a Victorian statutory agency responsible for the management and sale of timber resources in Victorian State forests.
VicForests’ conduct of forestry operations in the Central Highlands is regulated by a forest management system established under Victorian legislation. However, its forestry operations are also subject to regulation under the EPBC Act. The EPBC Act recognises that across Australia the Commonwealth has entered into a series of intergovernmental agreements with the States about the conservation and management of their native forests, which are called “Regional Forest Agreements” (RFAs). RFAs acknowledge that native forests are important community property, and need to be conserved and managed to accommodate values including economic, cultural, social, and biodiversity values. The Central Highlands RFA between the Commonwealth and Victoria applies to the area in which VicForests conducts its forestry operations in the Central Highlands.
Under s 38 of the EPBC Act, forestry operations that are conducted “in accordance with” an RFA are exempt from provisions in the EPBC Act that otherwise control actions that have, or are likely to have, a significant impact on matters of national environmental significance (including listed threatened species). One such controlling provision is s 18, which provides that a person must not take an action that has, will have or is likely to have a significant impact on a listed threatened species.
In early 2018, shortly after this proceeding was commenced, the parties proposed that the Court determine some questions of law by way of what is known as a “separate question” process. On 2 March 2018, after written and oral arguments by the parties and by the Commonwealth and the State of Victoria as interveners, the Court held that whether an RFA forestry operation was undertaken in accordance with an RFA for the purposes of s 38(1) of the EPBC Act depended on whether it was undertaken in compliance with the Victorian system of forest management and regulation, which the Commonwealth had approved and accredited in the Central Highlands RFA as a substitute regulatory system for the regime that would otherwise exist in the EPBC Act. The Victorian forest management system includes the Victorian Code of Practice for Timber Production 2014. The proceeding was then scheduled for trial on this basis.
The applicant’s case at trial had two main parts. First, it argued that VicForests’ past and future forestry operations in the 66 coupes were not, or would not be, conducted “in accordance with” the Code and therefore the exemption in s 38(1) of the EPBC Act did not apply. Second, the applicant contended those operations had, or were likely to have, a significant impact on the Greater Glider and/or the Leadbeater’s Possum and therefore contravened s 18 of the EPBC Act. It contended the Court could stop future forestry operations occurring unless and until the federal Minister gave approval for them; and also that the Court could grant other kinds of relief in relation to past forestry operations which had a significant impact on either or both species. VicForests disputed all of the allegations made by the applicant.
The Court has upheld the applicant’s arguments on cl 2.2.2.2 of the Code, which requires VicForests, in planning and conducting its forestry operations, to apply the precautionary principle to the conservation of biodiversity values. The Glossary to the Code provides:
‘precautionary principle’ means when contemplating decisions that will affect the environment, careful evaluation of management options be undertaken to wherever practical avoid serious or irreversible damage to the environment; and to properly assess the risk-weighted consequences of various options. When dealing with threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
In this part of the case, the applicant’s arguments focused on the threats of serious damage to the Greater Glider which it said arose from VicForests’ forestry operations. The applicant also made arguments about what are called in the Court’s reasons the “miscellaneous breaches” of other provisions in the Code, concerning matters such as a failure to screen forestry operations from public view, and a failure to protect listed flora species, such as Tree Geebung. The Court has upheld almost all of these arguments. Non-compliance with these mandatory parts of the Code means that VicForests’ past forestry operations in 26 coupes were not conducted “in accordance with” the Central Highlands RFA and its future forestry operations in 41 coupes not yet fully logged are not likely to be conducted “in accordance with” the Central Highlands RFA. One coupe is partially logged and therefore counted in both categories. Thus the exemption in s 38(1) of the EPBC Act does not apply and the Court has found that VicForests’ forestry operations in all 66 coupes are exposed to the ordinary operation of the controlling provisions in the EPBC Act, relevantly s 18 and the prohibitions on actions having a significant impact on listed threatened species.
The Court’s findings about why VicForests has not complied with the Code provisions relied on by the applicant are complicated, and not easily susceptible to a short summary. The Court has given considerable weight to the opinions of the two experts called on behalf of the applicant: Dr Andrew Smith and Professor John Woinarski. It has accepted their evidence, and the evidence of witnesses for the applicant, that the 66 impugned coupes contain high quality habitat critical to the survival of both species, and that one or both of the species have been detected in or around all of the 66 impugned coupes.
In relation to VicForests’ obligation to apply the precautionary principle to the conservation of biodiversity values (the specific value here being the Greater Glider), the Court has found that VicForests has not engaged, and is not likely to engage, in a careful evaluation of management options to avoid wherever practical the very real threats of serious damage to the Greater Gilder which are posed by its forestry operations in the Central Highlands. The Court has found those threats are recognised by official sources such as the Conservation Advice issued under the EPBC Act for the Greater Glider, and the draft Recovery Plan for the species.
The Court has found that in planning and conducting its forestry operations and in the choice of which native forest should be logged, and how it should be logged, VicForests’ consideration and application of management options pays insufficient regard to matters such as the high quality of the habitat for the Greater Glider in the impugned coupes, the detections of Greater Gliders in fact using and occupying the forest in and around those coupes and the effects of wildfire on Greater Glider habitat in reserves and national parks. Instead, the Court has found VicForests relies on “desktop” and other theoretical methods, which the Court has found to be flawed, such as VicForests’ habitat mapping. The Court has found that the development and content of policies such as the Interim Greater Glider Strategy could not be properly described as a careful evaluation of management options but rather were defensive documents, with content suggesting VicForests felt obliged to have a policy addressing further protection for the Greater Glider, but was reluctant to implement it.
The Court has found VicForests has not considered developing its own comprehensive in-forest survey system prior to logging, preferring to rely on other agencies like DELWP, even though DELWP has insisted the responsibility for such matters lies with VicForests, as the Court has found it does under the Code. Coupe planning for forestry operations is seldom modified to accommodate detections of Greater Glider, or to avoid logging high quality Greater Glider habitat. VicForests relies on the absence of a specific management prescription in the Central Highlands region for the Greater Glider, but the Court has found that this position simply ignores its obligations under cl 2.2.2.2, which are quite independent of, and additional to, the existence of any such management prescription.
Despite VicForests’ stated policy that it intends to move towards less intensive silvicultural practices, in order to secure accreditation for its forest products by the Forest Stewardship Council, the Court has found that, first, it is not persuaded on the evidence that VicForests will do so in the impugned coupes which have not yet been logged. Secondly, even if it did, the Court’s view is that those practices will not result in VicForests applying the precautionary principle in the planning and conduct of its forestry operations in order to conserve the Greater Glider.
On the second part of the applicant’s case – whether the prohibitions in s 18 have been contravened – the Court has found that VicForests’ past forestry operations in those coupes that have been logged have had a significant impact on the Greater Glider, or the Leadbeater’s Possum, or both. It has also found that VicForests’ proposed forestry operations in those of the 40 coupes not yet logged and one coupe not yet fully logged are likely to have a significant impact on the Greater Glider, or the Leadbeater’s Possum, or both.
The Court has found that existing forest management prescriptions have not been effective to arrest the decline of the Greater Glider and the Leadbeater’s Possum. This includes accepting the expert opinion of Professor Woinarski that the protection zones created for Leadbeater’s Possum are not effective. Further, VicForests has not reliably complied with the existing forest management prescriptions. Neither VicForests’ past approach, nor its proposed less intensive silvicultural practices, avoid significant impact on the two species. That is primarily because of the impact forestry operations have on the species’ habitat, and the long lasting effects of that impact. Not only do VicForests’ forestry operations damage or destroy existing habitat critical to the survival of the two species, they also prevent new areas of forest from developing into such habitat in the future. Although suitable habitat may be found in reserves already protected from logging, the Court has accepted the experts’ opinions that the increasing risks (in frequency and intensity) posed by wildfire to these reserves renders habitat in the impugned coupes all the more important, especially because of the overwhelming evidence, not challenged by VicForests, that both species in fact use and occupy these coupes.
The Court will give the parties an opportunity to agree on the appropriate orders the Court should make, given the conclusions it has reached. If there is no agreement, the parties will be able to file short submissions on appropriate orders. It will then determine what final orders should be made, including whether ongoing injunctions should be issued against VicForests to prevent any forestry operations in any of the coupes not yet logged.
MORTIMER J
27 May 2020
FEDERAL COURT OF AUSTRALIA
Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704
File number: VID 1228 of 2017 Judge: MORTIMER J Date of judgment: 27 May 2020 Catchwords: ENVIRONMENT LAW – listed threatened species – conduct of past and proposed forestry operations in the Victorian Central Highlands Regional Forest Agreement region – precautionary principle – whether exemption in s 38(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) lost because forestry operations were not or are not likely to be undertaken in compliance with the Code of Practice for Timber Production 2014 (Vic) – whether, if the s 38(1) exemption is lost, forestry operations are an action that was likely to have had or is likely to have a significant impact on the Greater Glider or Leadbeater’s Possum or both Legislation: Acts Interpretation Act 1901 (Cth) s 23
Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 3, 18, 38, 40, 67, 75, 139, 178, 179, 201, 207A, 207B, 208A, 266B, 269AA, 270, 303CG, 391, 475, 480A, 502, 503, 523, 524, 527E, 528
Evidence Act 1995 (Cth) ss 50, 53, 97
Federal Court of Australia Act 1976 (Cth) ss 21, 23
Regional Forest Agreements Act 2002 (Cth) ss 4, 6
Protection of the Environment Administration Act 1991 (NSW) s 6
Conservation, Forests and Lands Act 1987 (Vic) ss 31, 39, Pt 5
Flora and Fauna Guarantee Act 1988 (Vic) s 19
Sustainable Forests (Timber) Act 2004 (Vic) ss 5, 37, 41, 44, 46, 70
Cases cited: Australian Building and Construction Commissioner v Powell [2017] FCAFC 89; 251 FCR 470
Australian Competition and Consumer Commission v Metcash Trading Ltd [2011] FCAFC 151; 198 FCR 297
Australian Conservation Foundation Inc v Minister for the Environment [2016] FCA 1042; 251 FCR 308
Baird v Queensland [2006] FCAFC 162; 156 FCR 451
Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of Conservation and Land Management (1997) 18 WAR 102
Environment East Gippsland Inc v VicForests [2010] VSC 335; 30 VR 1
Friends of Leadbeater’s Possum Inc v VicForests [2018] FCA 178; 260 FCR 1
Friends of Leadbeater’s Possum Inc v VicForests (No 2) [2018] FCA 532
Friends of Leadbeater’s Possum Inc v VicForests (No 3) [2018] FCA 652; 231 LGERA 75
Krajniw v Brisbane City Council (No 2) [2011] FCA 563
Morton v Union Steamship Co of New Zealand Ltd [1951] HCA 42; 83 CLR 402
MyEnvironment Inc v VicForests [2012] VSC 91
MyEnvironment Inc v VicForests [2013] VSCA 356; 42 VR 456
Northern Inland Council for the Environment Inc v Minister for the Environment [2013] FCA 1419; 218 FCR 491
Oztech Pty Ltd v Public Trustee of Queensland [2019] FCAFC 102; 269 FCR 349
Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; 251 CLR 1
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262
Spencer v Commonwealth [2010] HCA 28; 241 CLR 118
Tasmanian Aboriginal Centre Inc v Secretary, Department of Primary Industries, Parks, Water and Environment (No 2) [2016] FCA 168; 337 ALR 96
Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133; 67 NSWLR 256
Wotton v State of Queensland (No 5) [2016] FCA 1457; 352 ALD 146
Date of hearing: 3, 4, 5, 7, 11, 12, 13, 14, 17, 18, 19 and 20 June 2019 Date of last submissions: 13 September 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 1464 Counsel for the Applicant: Mr J Delany QC with Ms J Watson and Ms T Skvortsova Solicitor for the Applicant: Environmental Justice Australia Counsel for the Respondent: Mr I Waller QC with Mr H Redd and Ms R Howe Solicitor for the Respondent: Baker & McKenzie
Table of Corrections 24 August 2020 In paragraph 752, the word “not” has been added before “a substantive provision”. ORDERS
VID 1228 of 2017 BETWEEN: FRIENDS OF LEADBEATER’S POSSUM INC
Applicant
AND: VICFORESTS
Respondent
JUDGE:
MORTIMER J
DATE OF ORDER:
27 May 2020
THE COURT ORDERS THAT:
1.On or before 4 pm on 10 June 2020, the parties file any agreed proposed minutes of orders, including the proposed form of declaratory relief, reflecting the Court’s reasons for judgment.
2.In the absence of agreement, on or before 4 pm on 17 June 2020, the parties each file proposed minutes of orders, including the proposed form of declaratory relief, reflecting the Court’s reasons for judgment, together with submissions limited to 5 pages in support of the proposed minutes of orders.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
Table of contents
INTRODUCTION AND SUMMARY
[1]
THE HISTORY OF THE PROCEEDING
[14]
Amendments just before trial
[20]
The view
[21]
THE SPECIES IN ISSUE
[22]
The Greater Glider
[28]
Population
[44]
Threats to the sustainability and recovery of the Greater Glider as a species
[55]
Dr Smith’s description of the Greater Glider
[67]
The Leadbeater’s Possum
[80]
Threats to the sustainability and recovery of the Leadbeater’s Possum as a species
[96]
Additional biology/ecology points made by Professor Woinarski
[104]
THE FEDERAL AND STATE REGULATORY FRAMEWORK IN SUMMARY
[106]
Allocation orders and Timber Release Plans
[111]
The Code
[122]
The Management Standards and Procedures
[141]
The role of the EPBC Act Conservation Advices, despite any State regulatory regime
[150]
THE COUPES IN ISSUE
[151]
THE PARTIES’ CONTENTIONS IN SUMMARY
[163]
The applicant’s case in summary
[168]
VicForests’ response in summary
[185]
THE RELIEF SOUGHT
[202]
THE EVIDENCE
[214]
The documentary evidence
[215]
The tendency evidence
[216]
The applicant’s evidence
[220]
VicForests’ evidence
[227]
Rulings
[236]
THE EXPERT EVIDENCE
[242]
My general findings on the three key experts
[243]
Dr Smith
[244]
Professor Woinarski
[247]
Dr Davey
[249]
VICFORESTS’ FORESTRY OPERATIONS
[256]
The evidence about harvesting methods
[264]
The evidence about Timber Release Plans and coupe planning
[276]
VicForests’ habitat mapping
[306]
Mr Paul’s evidence about whether the Scheduled Coupes will be placed back into the harvesting schedule
[310]
VicForests’ policy changes about its silvicultural methods
[314]
The Castella Quarry coupe as the only current example of “variable retention harvesting”
[354]
THE 2019 REVIEW OF DELWP’S ROLE AS A FORESTRY REGULATOR
[358]
DELWP SURVEYS
[368]
RESOLUTION: SOME GENERAL FINDINGS
[379]
Whether the applicant’s arguments about the Timber Release Plan, Pre-harvest Biodiversity Survey Instruction and Interim Greater Glider Strategy involve a new case
[383]
Some key general findings
[419]
Mapping
[420]
Modelling versus detection-based methods
[455]
Some issues about habitat
[483]
Old growth
[484]
1939 regrowth
[505]
Habitat trees
[524]
My findings about retained habitat trees in the Logged Coupes
[530]
My findings about the effectiveness of the habitat tree prescription
[556]
The contended distinction between suitable and critical habitat
[570]
Features of the threatened status of the species
[601]
The population decline of the Greater Glider in the Central Highlands
[601]
The role of genetic diversity
[612]
Extinction
[617]
Recovery
[626]
Detections
[633]
The effects of fires
[651]
Assessment beyond a coupe-by-coupe scale
[677]
RESOLUTION: THE S 38 ARGUMENT
[681]
VicForests’ deeming argument
[689]
The issues raised about s 38
[711]
What is the RFA forestry operation to which the applicant’s pleaded allegations are to be applied?
[714]
The use of the singular in s 38, and the use of the plural in s 4 of the RFA Act and the CH RFA
[749]
Is there a correlation between “action” and “forestry operations”?
[761]
When is the s 38 exemption lost?
[781]
My findings: what are the consequences of a loss of the s 38 exemption?
[787]
Can non-compliance with cl 2.2.2.2 lead to the loss of the s 38 exemption?
[790]
The precautionary principle: definitions and content
[800]
Clause 2.2.2.2 of the Code
[800]
Findings on the construction and operation of cl 2.2.2.2 as it applies to VicForests’ RFA forestry operations
[831]
What is certain and uncertain about the damage to the Greater Glider from forestry operations?
[860]
The role of the Interim Greater Glider Strategy
[866]
Development of the Interim Greater Glider Strategy
[868]
Mr Paul’s evidence in cross-examination
[883]
The application of the Interim Greater Glider Strategy and VicForests’ submissions about it
[888]
The text of the Interim Greater Glider Strategy
[911]
The problems with the Interim Greater Glider Strategy
[920]
Conclusion on the Interim Greater Glider Strategy
[935]
Did VicForests fail to comply with cl 2.2.2.2 in the Logged Glider Coupes?
[943]
In the Logged Glider Coupes, what management options were evaluated and used by VicForests in its timber harvesting operations (and planning for them), to wherever practical avoid serious damage to the Greater Glider?
[943]
In the Logged Glider Coupes, what assessments of the risk-weighted consequences of various options have been undertaken by VicForests in its timber harvesting operations (and in planning for them)?
[950]
In the Logged Glider Coupes, have those processes been applied to conserve the Greater Glider?
[958]
VicForests’ answer
[959]
Is VicForests likely to fail to comply with cl 2.2.2.2 in the Scheduled Coupes?
[963]
Reserves within forest available for harvesting, and forest in national parks
[965]
The gross versus nett harvest area argument
[978]
VicForests’ 2019 proposed Harvesting and Regeneration Systems plan
[987]
The first limb: Is VicForests likely to implement the new approach?
[992]
The second limb: Is this “new” approach likely to lead to compliance with cl 2.2.2.2?
[1038]
Forestry operations in the additional coupes
[1077]
The lack of sufficient certainty about proposed timber harvesting operations
[1118]
Harvesting rotations and the effect on the Greater Glider
[1128]
The Castella Quarry coupe as an example
[1132]
My general findings about VicForests’ proposed changes to its silvicultural systems
[1157]
Conclusion on the Scheduled Coupes and s 38
[1175]
THE MISCELLANEOUS BREACHES: SPECIFIC (ALTERNATIVE) ALLEGED BREACHES OF THE CODE IN THE LOGGED COUPES
[1185]
Failure to protect mature Tree Geebungs
[1188]
Failure to protect Zone 1A habitat
[1214]
Failure to identify Leadbeater’s Possum colony
[1250]
Failure to screen during harvesting operations
[1263]
The evidence and my findings
[1267]
Too small gaps in retained vegetation
[1273]
Summary
[1287]
The effect of my conclusions on the miscellaneous breaches
[1289]
RESOLUTION: THE SIGNIFICANT IMPACT ARGUMENT
[1291]
Whether there is sufficient certainty for the prohibitions to be engaged
[1293]
Correct approach to the concept of “significant impact” in Pt 3
[1294]
Significant impact on the species as a whole
[1300]
Interpretation and application of the Commonwealth Significant Impact Guidelines
[1310]
What is the “action” for the purposes of s 18?
[1323]
An overall finding on significant impact
[1342]
Findings on significant impact: the Leadbeater’s Possum
[1348]
Existing prescriptions and measures have not arrested decline
[1354]
The applicant’s argument on significant impact for the Leadbeater’s Possum
[1383]
Other factors and aspects of the evidence to which I have given weight
[1422]
The effects of fire
[1425]
The CAR reserve system and its capacity to mitigate or ameliorate the effects of forestry operations on the Greater Glider and the Leadbeater’s Possum
[1426]
Conclusion: the Leadbeater’s Possum
[1431]
Findings on significant impact: the Greater Glider
[1433]
The CAR reserve system does not ameliorate the impact from forestry operations to bring it below significant
[1446]
Conclusion: the Greater Glider
[1452]
CONCLUSION ON SIGNIFICANT IMPACT
[1455]
THE SCOPE OF S 475(2)
[1458]
SUBMISSIONS ON ORDERS
[1464]
MORTIMER J:
INTRODUCTION AND SUMMARY
This proceeding concerns forestry operations in 66 specified native forest coupes in the Central Highlands region of Victoria and the effect of those forestry operations on two native fauna species, the Greater Glider and the Leadbeater’s Possum. Both are listed as threatened species under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The Greater Glider is listed as “vulnerable”, and the Leadbeater’s Possum is listed as “critically endangered”. Some of the 66 coupes have already been logged, and some have not. Thus, the proceeding concerns both past and proposed forestry operations.
The case has been brought by Friends of Leadbeater’s Possum Inc, an environmental group, against VicForests, a Victorian statutory agency whose purpose is the management and sale of timber resources in Victorian State forests on a commercial basis. The native forest in question is included within the region covered by the Central Highlands Regional Forest Agreement (CH RFA), an intergovernmental agreement between the Commonwealth and the State of Victoria. The term “coupe” is a forestry term, referring to areas or patches of forest in which logging occurs.
The proceeding raises complex issues of law and fact about the operation of the EPBC Act on VicForests’ impugned forestry operations in those 66 coupes. It has already been the subject of two published decisions, the first of which in particular establishes the framework for the issues to be determined in these reasons: see Friends of Leadbeater’s Possum Inc v VicForests [2018] FCA 178; 260 FCR 1 and Friends of Leadbeater’s Possum Inc v VicForests (No 3) [2018] FCA 652; 231 LGERA 75. I shall refer to those two judgments as the “Separate Question reasons” and the “Injunction reasons” respectively. I also published reasons for judgment determining the form of answer to the separate question and addressing other matters relating to an amended statement of claim filed by the applicant in Friends of Leadbeater’s Possum Inc v VicForests (No 2) [2018] FCA 532. I will refer to that judgment as the “Relief reasons”. It will be necessary to refer to aspects of those three sets of reasons in this judgment, but it should be taken that I have generally adopted the reasoning I set out in those decisions in this judgment. In particular, my reasoning about the legislative scheme of the EPBC Act, and the way forestry operations as “actions” are dealt with in that Act, is set out in the Separate Question reasons at [123]-[135], [170], [195(a)], [197]-[198] and [223]-[226]. The core provisions of the EPBC Act are also set out in those reasons at [64]-[76].
Further, my reasoning on how the exemption conferred by s 38(1) might be lost can be found at [193]-[272] of the Separate Question reasons. While those findings may need to be developed somewhat, and applied to the evidence, the basic approach I have taken is set out in those passages.
These present reasons reflect the Court’s comfortable persuasion, on the balance of probabilities, that the applicant has made out its pleaded case. That pleaded case centres on allegations about the adverse impacts on the Greater Glider as a species and Leadbeater’s Possum as a species from VicForests’ past and proposed forestry operations in the 66 impugned coupes. The applicant’s pleaded case divides the 66 impugned coupes into a number of subsets, depending on whether they have been logged or are proposed to be logged, and depending on which coupes provide habitat for, and are used or occupied by, each of the two species. Thus, these reasons refer to the “Logged Coupes” (see [151] below); the “Scheduled Coupes” (see [152] below); the “Logged Glider Coupes”, the “Logged Leadbeater’s Possum Coupes” and the “Scheduled Leadbeater’s Possum coupes” (see [158] below).
In summary, the principal findings of the Court are as follows:
(a)I have accepted VicForests’ submission that the applicant’s case as put in closing submissions is wider than its pleaded case. Accordingly, the Court confined itself to the applicant’s pleaded case.
(b)In undertaking forestry operations in the Logged Glider Coupes, VicForests did not apply the precautionary principle to the conservation of biodiversity values in those coupes, as it was required to do by cl 2.2.2.2 of the Code of Practice for Timber Production 2014. Specifically, on the applicant’s case, VicForests did not apply the precautionary principle to the conservation of the Greater Glider as a threatened species present in, and using, the forest in those coupes. Accordingly, in relation to the forestry operations undertaken by VicForests in the Logged Glider Coupes, its conduct was not covered by the exemption in s 38(1) of the EPBC Act.
(c)Where made out, the miscellaneous breaches of the Code alleged by the applicant result in the loss of the exemption under s 38(1) in respect of forestry operations undertaken in the coupes in which the breaches occurred.
(d)In undertaking forestry operations in the Scheduled Coupes, VicForests is not likely to apply the precautionary principle to the conservation of biodiversity values in those coupes, as it is required to do by cl 2.2.2.2 of the Code. Specifically, on the applicant’s case, VicForests is not likely to apply the precautionary principle to the conservation of the Greater Glider as a threatened species present in, and using, the forest in those coupes. Accordingly, in relation to any forestry operations proposed to be undertaken by VicForests in the Scheduled Coupes, its conduct will not be covered by the exemption in s 38(1) of the EPBC Act.
(e)The result of the Court’s findings on (b), (c) and (d) means that none of the 66 impugned coupes are subject to the s 38(1) exemption.
(f)The findings in (b) to (d) do not result in only a qualified loss of the s 38(1) exemption, restricted to the impact of the forestry operations on the Greater Glider.
(g)For the purposes of s 18 of the EPBC Act, each forestry operation in each of the 66 impugned coupes is an action; each series of forestry operations in each coupe group (see [155] and [162] below) is an action; the forestry operations undertaken in the Logged Coupes are, collectively, an action; the forestry operations proposed to be undertaken in the Scheduled Coupes are, collectively, an action; and the forestry operations in all of the 66 coupes are, collectively, an action.
(h)In relation to each of the actions identified in (g), VicForests’ conduct of forestry operations is likely to have had, or is likely to have, a significant impact on the Greater Glider as a species and/or the Leadbeater’s Possum as a species. Accordingly, s 18 has been contravened and/or is engaged, depending on whether the action has been undertaken, or is proposed to be undertaken.
(i)The evidence provides sufficient certainty for the findings in (g) and (h) to be made, on the balance of probabilities. It will be a matter for further argument if, and how, those findings can and should be translated into injunctive relief in respect of the Scheduled Coupes.
(j)The consequence of these findings is that declaratory relief should be granted. The form of that declaratory relief will be determined after the parties have had an opportunity to consider the Court’s reasons and have attempted to agree on the form of declaratory relief or have made submissions about the appropriate form.
(k)In relation to the Logged Coupes (that is, the Logged Glider Coupes and the other Logged Coupes), relief of the kind set out in s 475(3) of the EPBC Act may also be available, subject to the Court hearing the parties’ further submissions, based on the findings the Court has made.
It is appropriate to make four general observations at the start of these reasons.
First, what the evidence in this proceeding has demonstrated is that the protection and conservation of biodiversity values – in this case relevantly the two listed threatened species in issue – is essentially a practical matter. Although policies and planning are important precursors and elements in protection and conservation, what happens on the ground in the native forest which supports and encompasses those values is how protection and conservation are achieved. Relevantly to the issues in this proceeding (rather than the wider biodiversity values protected by other aspects of the EPBC Act), understanding a native forest as a living, changing, finely balanced and often vulnerable ecosystem, and understanding the way in which all flora and fauna species in fact (rather than theory) use and depend on that native forest, are what best informs protection and conservation of, and the avoidance of adverse impacts on, those species. The evidence demonstrates the need for this approach is acute when dealing with listed threatened species.
Second, it was a repeated theme of VicForests’ submissions that the applicant’s case and arguments invite the Court to intrude into spheres of decision-making which are properly seen as reposed in the legislature or the executive. For example, VicForests contended (at [12] of its closing written submissions) the applicant’s case was not “essentially one of factual questions about the threat posed by the impact of forestry operations on Greater Glider and Leadbeater’s Possum” at some general level, but that it primarily concerned legal questions about the construction of the Code and the EPBC Act “as applied to factual matters”. In other words, that the Court was not examining what were the appropriate protections, at a policy level, for each of the species, but what the specified protections were, and whether they had been observed by VicForests. Another example is at [230] of its closing written submissions, where VicForests contended the Victorian legislature and the executive “have struck a balance between conservation measures and those that relate to the commercial use and exploitation of forest resources in State forests”, and that where there were “value judgments” to be made about that balance, those judgments were the “province of the legislature or the executive rather than the judiciary”. The Court’s role does not, VicForests submitted, extend to “the substitution of the court’s view of a more reasonable balance for that which was struck by the legislature or the executive”. These submissions were primarily made in the context of the approach VicForests contended should be taken to the obligation imposed by cl 2.2.2.2 of the Code.
It is not unusual for a respondent in the position of VicForests to make submissions that seek to confine the Court’s role as narrowly as possible, especially in a public interest case, involving contested issues of fact as well as law, and with significant consequences for a respondent in the performance of its functions and duties. Likewise, it is not unusual for an applicant in a public interest case to encourage the Court to take an expansive view of what matters need to be determined.
The Court’s function is to determine, on the evidence, whether the applicant has proven, on the facts and on the law as applied to those facts, its allegations against VicForests in respect of its forestry operations in the Logged Coupes and the Scheduled Coupes. Contrary to VicForests’ submissions, there is a significant factual aspect to the applicant’s allegations, which as a trial court, the Court must decide. It necessarily involves examining the competing evidence (including expert opinion evidence) about topics which are the product of wider policies and practices, and factual topics of more general application. In performing its task, the Court acts on the evidence before it, taking account of the submissions made. In this case, both the evidence and argument adduced by both parties travelled well outside evidence about these 66 coupes, as it needed to. Where the legal and statutory framework which the Court must consider, by reason of the parties’ respective cases, includes matters of degree, or has some qualitative or evaluative element, the determination of those matters is part of the exercise of judicial power, and not outside it.
Third, and not unconnected to the second matter, the evidence revealed that VicForests is required to operate under demands and constraints which pose something of an inherent contradiction. On the one hand, it is required to conduct forestry operations in Victoria’s native forest, rather than only in plantations. That native forest is identified as an available timber resource, indeed a principal available timber resource in Victoria, for VicForests to perform its commercial forestry function, as conferred by statute. On the other hand, VicForests is required by law to conduct those forestry operations in a way which avoids and mitigates adverse impacts on a wide range of biodiversity values, a range that is much wider than listed threatened flora and fauna species, but includes them. As I explain later in these reasons and as both VicForests and various reviewing bodies have recognised, for listed threatened species which are highly dependent on the very native forest which is to be subject to forestry operations, and for whom recovery out of the status of being a threatened species is expressed to be an objective, the avoidance of adverse impacts in a real world sense (rather than just an aspiration) inevitably involves compromising available commercial timber resources. Hence the conflict, which may explain (but not necessarily justify) why the actual conduct of forestry operations on the ground often cannot meet the conservation and protection obligations imposed by law.
Fourth, and no less importantly than the other general matters, all counsel, their instructing solicitors and their clients invested enormous amounts of time and resources in the conduct of this proceeding and did so with commendable efficiency and cooperation, including coping with the Court’s management of this proceeding as a digital trial, conducted only with the resources of the parties and the Court and no external provider. The Court is grateful to them all.
THE HISTORY OF THE PROCEEDING
This proceeding was commenced by way of an originating application and statement of claim filed on 13 November 2017. On 17 November 2017, the Court made orders stating a separate question for hearing and determination, with the agreement of the parties. Prior to the hearing of the separate question, the Court issued rulings regarding the filing of an agreed statement of facts (on 1 December 2017) and the granting of leave to the State of Victoria and the Commonwealth to intervene (on 29 November 2017). The Separate Question reasons were delivered on 2 March 2018.
On 20 April 2018, the Court delivered the Relief reasons, which, as I have already noted, stated the answer to the separate question and addressed matters relating to the amended statement of claim filed by the applicant on 29 March 2018 (which amendments were generally summarised in those reasons at [30]-[33]). The amended statement of claim removed all references to cl 36 of the CH RFA, flowing from the Separate Question reasons, and instead put forward arguments relying on breaches of the Code. The Court concluded the operation of the Federal Court Rules 2011 (Cth) permitted the applicant to take this course.
On 23 April 2018, the applicant filed an application for an interlocutory injunction. Previous undertakings given by VicForests in relation to its timber harvesting operations pending the hearing and determination of the separate question had come to an end when the Court made its separate question orders on 20 April 2018. The Injunction reasons were delivered on 10 May 2018. On that date, the Court ordered that until the hearing and determination of the proceeding or further order, VicForests, whether by itself, its servants, agents, contractors or howsoever otherwise, be restrained from conducting forestry operations, felling, removing or damaging any trees or other substantial vegetation or widening the existing road line in certain specified coupes.
At the hearing of the injunction application, the proceeding was listed for trial commencing on 25 February 2019. On 11 February 2019, pursuant to leave granted by the Court on 7 February 2019, VicForests filed an affidavit of Mr William Edward Paul, which addressed “recent developments concerning VicForests’ silvicultural policies and practices” (at [5(a)]). At a case management hearing on 14 February 2019, both parties submitted that, as a result of the matters contained in Mr Paul’s affidavit, the trial dates should be vacated and the matter relisted for trial at a later date which could accommodate the developments to which Mr Paul’s affidavit adverted.
On 18 February 2019, the Court ordered, amongst other matters, that the trial be relisted to commence on 3 June 2019, and that the parties file proposed orders concerning the conduct of a joint experts’ conference and preparation of a joint report. The Court made further timetabling orders following a case management hearing on 25 February 2019, including orders for discovery of specified categories of documents by VicForests and the referral of other requests for discovery made by the applicant to Judicial Registrar Ryan for mediation and determination. Judicial Registrar Ryan conducted a mediation with the parties on 18 March 2019, following which he made orders for discovery of certain categories of documents and referred any outstanding discovery disputes back to the Court for hearing at a case management hearing on 16 April 2019. Following the filing of written submissions by the parties, the dispute concerning three remaining categories of discovery was determined by the Court in a ruling dated 17 May 2019.
On 22 March 2019, the Court made orders, with the agreement of the parties, in relation to the conduct of a joint experts’ conference and preparation of a joint report. The conference was scheduled to take place on 3 May 2019, facilitated by two Judicial Registrars. The parties were ordered to file an agreed list of questions for the experts (or separate proposed lists of questions) by 15 April 2019. Following further discussion with the parties at a case management hearing on 16 April 2019, and in written correspondence, it became apparent that the conference would be of little utility due to the divergence in the parties’ proposals regarding the approach to the conference. On 17 April 2019, the Court informed the parties that the joint experts’ conference and joint report orders would be vacated and the parties’ experts would be examined, cross-examined and re-examined at trial in the usual way. Although the Court left open the possibility of conducting a joint experts’ conference after the commencement of the trial, and VicForests again raised the possibility of a joint conference in its opening written submissions filed prior to trial, it did not eventuate. There remained no utility, in the Court’s opinion, in considerable resources and expense being applied to such a process, in light of the parties’ differing approaches to the proposed conference during case management and their considerably divergent approaches to how the experts should be asked to consider the complex factual issues in the proceeding.
Amendments just before trial
Late in the afternoon of the Friday before the trial was scheduled to commence, the Court was notified of some proposed further amendments to the applicant’s claim. The amendments, which were foreshadowed at [172] and [174] of the applicant’s opening written submissions, narrowed the case to be put and added an additional ground of relief. They were the subject of consent from VicForests. The Court granted leave to the applicant to file and serve a third further amended statement of claim and amended originating application. Those documents were filed on 3 June 2019. As a result of those amendments the applicant:
(a)withdrew its allegations that forestry operations have had, are having, or are likely to have a significant impact on the Leadbeater’s Possum in the Ada River logged coupe 9.26 (Tarzan), Baw Baw logged coupe 9.32 (Rowels), Hermitage Creek scheduled coupes 10.14-10.16 (Drum Circle, Flute, San Diego) and the Torbreck River scheduled coupes 10.18-10.20 (Skupani, Splinter and Bhebe); and
(b)sought a declaration of right pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) that VicForests has breached s 18(2) of the EPBC Act by reason of its forestry operations in the “Logged Leadbeater’s Possum Coupes” and has breached s 18(4) of the EPBC Act by reason of its forestry operations in the “Logged Glider Coupes” (as those terms are defined in the third further amended statement of claim).
The view
During the trial, the Court and the parties undertook an inspection or view of ten coupes in the Central Highlands pursuant to s 53 of the Evidence Act 1995 (Cth). The coupes inspected were Castella Quarry, Goliath, Shrek, Guitar Solo, Flute, Kenya, The Eiger, Mont Blanc, Hairy Hyde and Greendale, being a mix of Logged Coupes and Scheduled Coupes. Castella Quarry is not one of the 66 impugned coupes in the proceeding but was visited as an example of a coupe in which VicForests’ new silvicultural systems were being implemented. The Court expresses its gratitude to the parties for facilitating that inspection and in particular to the VicForests staff who assisted on the day.
THE SPECIES IN ISSUE
While there was a significant dispute between the parties about the effects of VicForests’ forestry operations on the two species, there was also a dispute between the parties about how perilous the circumstances of the Greater Glider are, as a species. There appeared to be less debate about the perils facing the Leadbeater’s Possum. In relation to that species, the area of debate in assessing the impact of VicForests’ impugned forestry operations was about whether the measures in place were effective enough to avoid a conclusion of significant impact and whether VicForests adhered to them.
Unsurprisingly, each of the parties relied on the opinions given by their respective experts as the basis for the Court’s fact-finding about the species. As I explain later in these reasons, I accept and prefer the opinion evidence of the applicant’s species experts, Dr Smith and Professor Woinarski, and where the evidence of VicForests’ experts such as Dr Davey or Professor Baker conflicts with the applicant’s species experts, I prefer the evidence of the applicant’s species experts. Both Dr Smith and Professor Woinarski gave detailed evidence in their reports about each of the Greater Glider and the Leadbeater’s Possum. In terms of the characteristics of the species and their habitats, some of the significant differences of opinion between the applicant’s species experts and Dr Davey were their opinions about:
(a)the estimates of Greater Glider populations and their rates of decline;
(b)how Greater Gliders might use logged forest, including retained habitat trees;
(c)the effectiveness of the Comprehensive, Adequate and Representative (CAR) reserve system and existing management prescriptions; and
(d)the movement patterns of the Leadbeater’s Possum.
I rely on the expert evidence to some extent in setting out my general findings about each of the species; however, the principal sources I have relied upon are the Conservation Advices for each species.
I have placed significant weight in my fact-finding in this proceeding on the Conservation Advices. I consider that in the context of a proceeding under the EPBC Act, it is appropriate to do so. They are the mandatory and foundational documents describing each threatened species, its characteristics and habitat, and the threats posed to it. A Conservation Advice must be prepared for each listed threatened species: s 266B(1). The Conservation Advice must include a statement setting out the grounds on which the species is eligible to be included in the category in which it is listed and the main factors that are the cause of it being so eligible: s 266B(2)(a). Relevantly, it must also include “information about what could appropriately be done to stop the decline of, or support the recovery of, the species”: s 266B(2)(b)(i).
This document contains the formal recognition, for the purposes of the EPBC Act, of why the listed threatened species has been determined to need protection and what measures need to be taken to ensure its conservation and recovery.
The Conservation Advice for each species is issued by the Threatened Species Scientific Committee. The Threatened Species Scientific Committee is established pursuant to s 502 of the EPBC Act and is referred to in the Act as the “Scientific Committee”: see the definition of “Scientific Committee” in s 528. Amongst other functions, it has the function of advising the responsible Minister on the amendment and updating of the lists of threatened species for which s 178 and s 179 of the EPBC Act provide: s 503(b). It is an expert committee whose members are appointed by the responsible Minister: s 502.
The Greater Glider
The Conservation Advice for the Greater Glider states that it is based on “‘The Action Plan for Australian Mammals 2012’ (Woinarski et al., 2014)”. One of the authors of that publication is Professor Woinarski, the applicant’s Leadbeater’s Possum species expert. The fact that the Scientific Committee is prepared, for the purposes of performing its functions under the EPBC Act, to rely on a publication of which Professor Woinarski is an author confirms to me that Professor Woinarski’s opinions, where otherwise rational and having a scientific basis, as I find they are and do, should be given substantial weight.
The taxonomy of the Greater Glider species is accepted to be Petauroides Volans. It is the only species in the genus, with two recognised sub-species: P. v. minor (found in north-eastern Queensland) and P. v. volans (found in south-eastern Australia). The Greater Gliders which are the subject of this proceeding are the second sub-species.
The Greater Glider was listed in the vulnerable category under the EPBC Act effective 5 May 2016 and in the Threatened List under the Flora and Fauna Guarantee Act 1988 (Vic) effective 14 June 2017.
The Greater Glider is the largest gliding possum in Australia. It is a member of the nocturnal and arboreal leaf eating Ringtail Possum family (Pseudocheiridae). Being an arboreal mammal, it rarely travels along the ground. Its head and body length can reach 46 cm. Its thick fur increases its apparent size. It has an especially prominent, long furry tail measuring 45-60 cm. Sexual maturity is reached in the second year, and females give birth to a single young from March to June. The longevity of the Greater Glider has been estimated at 15 years, so generation length is likely to be 7-8 years. The Conservation Advice states:
The relatively low reproductive rate (Henry 1984) may render small isolated populations in small remnants prone to extinction (van der Ree 2004; Pope et al., 2005).
It is a nocturnal marsupial, largely restricted to eucalypt forests and woodlands. In the CH RFA region its habitat is the Mixed Species and Ash forests, which serve as both a source of food and a source of denning and resting. Dr Smith gave evidence that:
The Central Highlands is an area of exceptional site quality that is likely to sustain higher than average densities of the Greater Gliders because of its high rainfall, low temperatures and high eucalyptus growth rates.
Its preference for a diversity of eucalypt species is due to the seasonal variation in its preferred tree species. Its diet mostly comprises eucalypt leaves, and occasionally flowers. The Conservation Advice states:
It is typically found in highest abundance in taller, montane, moist eucalypt forests with relatively old trees and abundant hollows.
During the day it shelters in tree hollows, with a particular selection for large hollows in large, old trees. As to the significance of these hollows, in re-examination, Professor Woinarski gave the following evidence, which is relevant to my findings about both the Greater Glider and the Leadbeater’s Possum:
So it’s in almost all parts of Australia, hollows – there’s no – unlike in North America where woodpeckers make hollows for many other trees – for many other hollow-dependant species, there are no fauna species that make hollows in Australia. But it depends upon the rot and decay and the senility of the trees themselves for the hollows to form. The exception is, of course, termites, but we won’t go there. There aren’t so many termites in these forests. So it’s a – it’s a finite resource, and it’s eagerly used. There’s about 30 per cent Australian vertebrates species depend upon hollows. So it’s a really large component of the forest fauna is totally dependent on naturally occurring hollows. Naturally occurring hollows occur, as we’ve talking about previously, sort of they – they become established after 100 years or so, so it’s a really slow process. And there’s much more likelihood of the hollow in any forest to be declining than increasing, simply because of that age – that age disturbance factor. There’s a range – we know Greater Gliders, Sugar Gliders, Squirrel Gliders, a whole lot of owls, Pardalotes, kookaburras, cockatoos, parrots, all of those species are dependent upon hollows in this mountain ash environment, and will compete aggressively with other species for those hollows where they overlap. Leadbeater’s Possums, probably there’s a range of bird species which may compete with them for hollows. So cockatoos, rosellas and the like, for example, could aggressively kick them out. Also, there’s also competition within Leadbeater’s Possum families or – or neighbouring groups for hollow availability as well. So if a suitable den tree for Leadbeater’s Possum colony A and Leadbeater’s Possum colony B is running out of den trees, then it will – they will fight over that availability.
The Conservation Advice states:
In Grafton/Casino, Urbenville and the Urunga/Coffs Harbour Forestry Management Areas (FMAs) in northern New South Wales (NSW), the abundance of greater gliders on survey sites was significantly greater on sites with a higher abundance of tree hollows …
The expert evidence about the optimal number and placement of suitable tree hollows per hectare for the Greater Glider, and the significance of these needs in assessing the impact of forestry operations, are matters I will address when dealing with the precautionary principle and with significant impact. However, as one of VicForests’ witnesses, Mr Timothy McBride, noted in correspondence included in his affidavit affirmed on 15 October 2018 (at [23]), the hollows needed for the Greater Glider have to be fairly large, because of the size of the (mature) animal.
Home ranges for the Greater Glider are, according to the Conservation Advice, “typically relatively small”, around 1-4 ha. Males visit around 22 trees per night and females around 14: Tyndale-Biscoe H, Life of Marsupials (CSIRO Publishing, 2005) p 240. Home ranges can be larger in lower productivity forests and more open woodlands; they are larger for males than for females. Male home ranges are largely non-overlapping. Despite having small home ranges, the Greater Glider has a “low dispersal ability”, making it sensitive to habitat fragmentation. The Conservation Advice states that Greater Gliders:
have relatively low persistence in small forest fragments, and disperse poorly across vegetation that is not native forest. Modelling suggests that they require native forest patches of at least 160 km² to maintain viable populations (Eyre 2002). Kavanagh & Webb (1989) found no significant movement of greater gliders into unlogged reserves from surrounding logged areas.
The Conservation Advice also states:
Kavanagh & Webb (1989) found no significant movement of greater gliders into unlogged reserves from surrounding logged areas.
The Greater Glider is restricted to eastern Australia, but occurs from the Windsor Tableland in north Queensland through to central Victoria, at elevations ranging from sea level to 1200 m above sea level. Dr Davey stated that the population in the Central Highlands region is at the limits of the species’ distributional range. Similarly, when discussing Greater Glider populations most likely to be of key importance to the species’ long-term survival and recovery, Dr Smith acknowledged that populations at the limits of the species’ geographic ranges are important populations. I find that is an important fact in assessing the impact of forestry operations on the species.
As to distribution, the Conservation Advice states:
The broad extent of occurrence is unlikely to have changed appreciably since European settlement (van der Ree et al., 2004). However, the area of occupancy has decreased substantially mostly due to land clearing. This area is probably continuing to decline due to further clearing, fragmentation impacts, fire and some forestry activities. Kearney et al. (2010) predicted a “stark” and “dire” decline (“almost complete loss”) for the northern subspecies P. v. minor if there is a 3° C temperature increase.
I return to the last point made in this extract at several sections in these reasons: it is well accepted on the scientific evidence, and in the expert opinion, that there are large and presently unaddressed risks to species such as the Greater Glider from climate change and the warming of the environments in which they live.
As a species, the Greater Glider is considered to be “particularly sensitive” to forest clearance and to intensive logging, although the Conservation Advice qualifies this statement by stating that “responses vary according to landscape context and the extent of tree removal and retention”.
The species is also described in the Conservation Advice as “sensitive to wildfire” and “slow to recover following major disturbance”. The Conservation Advice states:
In the Urbenville FMA of northern NSW, the abundance of greater gliders on survey sites was significantly greater in forests that were infrequently burnt (Andrews et al., 1994).
Population
The criterion which the Greater Glider met, and which was identified as justifying its listing in the vulnerable category as a threatened species under the EPBC Act, was Criterion 1, titled “Population size reduction (reduction in total numbers)”. Under this criterion, the Greater Glider was assessed by the Scientific Committee as experiencing:
(a)a population reduction observed, estimated, inferred or suspected in the past where the causes of the reduction may not have ceased or may not be understood or may not be reversible, based on an index of abundance appropriate to the Greater Glider, and a decline in area of occupancy, extent of occurrence and/or quality of habitat (Criterion 1 A2(b) and (c));
(b)a population reduction, projected or suspected to be met in the future (up to a maximum of 100 years), based on an index of abundance appropriate to the Greater Glider, and a decline in area of occupancy, extent of occurrence and/or quality of habitat (Criterion 1 A3(b) and (c)); and
(c)an observed, estimated, inferred, projected or suspected population reduction where the time period must include both the past and the future (up to a maximum of 100 years in the future), and where the causes of reduction may not have ceased or may not be understood or may not be reversible, based on an index of abundance appropriate to the Greater Glider, and a decline in area of occupancy, extent of occurrence and/or quality of habitat (Criterion 1 A4(b) and (c)).
The listing of the Greater Glider in the Vulnerable category by reference to Criterion 1 A2(b) and (c), A3(b) and (c) and A4(b) and (c) meant that the Greater Glider was assessed to be vulnerable to a reduction in population of more than 30%.
The Greater Glider was assessed by the Scientific Committee as not meeting listing Criteria 2, 3, 4 or 5: namely, geographic distribution as indicators for either extent of occurrence and/or area of occupancy, population size and decline, number of mature individuals or quantitative analysis indicating a probability of extinction in the wild.
In its closing submissions (at [310]-[322]), VicForests seeks to make something of the fact the Greater Glider’s EPBC Act listing was only under Criterion 1. The underlying theme appeared to be that the situation facing the Greater Glider was not the worst of the worst, and not – for example – as critical as that facing the Leadbeater’s Possum. I do not consider such a comparative approach assists the task the Court must perform. The fact is that the Greater Glider is a listed threatened species, and while it will be relevant in assessing both compliance with cl 2.2.2.2 of the Code and the issue of significant impact to bear in mind that the justification for its listing was its rate of population decline, there is no basis in the evidence or in the scheme of the EPBC Act for the Court to confine itself to any exact correlation between identified impacts or threats and the precise reason for the listing of the species. In relation to s 18, the question the statute relevantly asks is whether there is or will be a likely significant impact on a listed threatened species because of the actual or proposed conduct (here, of VicForests in its impugned forestry operations). In relation to cl 2.2.2.2 – as I explain below – the compliance question the Code asks of VicForests in its forestry operations is whether it has applied the precautionary principle to the conservation of the Greater Glider as a species (being a “biodiversity value”). The question is not as narrow as whether VicForests will, in its forestry operations, fail to apply the precautionary principle to conduct which may affect only the rate of population decline of the Greater Glider. An obvious reason for this is that threats to a listed species may increase or decrease over time, and they may alter in their significance because of particular events, such as climate change or wildfire. There is nothing static in assessing the nature of any threats and the range of impacts, and the scheme of the EPBC Act does not assume there is.
The Conservation Advice states that there “is no reliable estimate of population size” for the Greater Glider, by reference to a 2008 study which described the Greater Glider population as having a “presumed large population” and being “locally common”. In oral evidence Dr Smith appeared to disagree with this aspect of the Conservation Advice, saying that in 2008 not much was known about the Greater Glider population.
The Conservation Advice states that the estimate of the Greater Glider population across its range is in excess of 100,000 mature individuals. In oral evidence, Dr Smith considered this to be a reasonable estimate. To qualify under Criterion 4, relating to numbers of mature individuals, a species must have less than 1000 mature individuals to be characterised as “vulnerable”.
I note that Criterion 5 – the quantitative analysis of the probability of extinction in the wild – was not met in respect of the Greater Glider, but not because of any reliable estimate of the probability. Rather, the Conservation Advice indicates this criterion was not met (referring to the work of Professor Woinarski and others) because no population viability analysis had been conducted across the Greater Glider population as a whole, although some local analysis had been carried out.
In the section of the Conservation Advice explaining why the Greater Glider met the first criterion for listing, the Conservation Advice makes the following points relevant to the issues in this proceeding (with abbreviated citations as reproduced in the Conservation Advice):
(a)Despite the absence of robust estimates of total population size or population trends across the species’ total distribution, declines in numbers, occupancy rates and extent of habitat have been recorded at many sites, from which a total rate of decline can be inferred.
(b)The most comprehensive monitoring program for Greater Gliders is in the Central Highlands of Victoria, the region with which this proceeding is concerned.
(c)The Central Highlands region has been monitored annually since 1997.
(d)Over the period 1997-2010, the monitoring showed a population decline of an average of 8.8% per year.
(e)If that rate is extrapolated over the 22-year period relevant to this assessment, the rate of decline is 87% (citing a study by Lindenmayer et al., 2011).
(f)Higher rates of decline were recorded in forests subject to logging than in conservation reserves.
(g)Declines were also associated with major bushfires and lower than average rainfall.
(h)The Conservation Advice quotes a finding from a study conducted by Lumsden and others (2013 p 3) that a “striking result from these surveys was the scarcity of the Greater Glider which was, until recently, common across the Central Highlands”.
(i)Major bushfires in 2003, 2006-2007 and 2009 burnt much of the Greater Glider’s range in Victoria, and further fragmented its distribution.
(j)Reoccupation of burnt sites in subsequent years is likely to be a slow process due to the small home ranges (1-2 ha) of the species and its limited dispersal capabilities.
(k)Any reoccupation also depends on there not being further significant fires in the interim (citing Vic SAC 2015).
(l)Since the 2009 fires, which burnt the Kinglake East Bushland Reserve and nearby areas, spotlighting records of Greater Gliders in these areas have significantly declined.
(m)Preliminary results of an occupancy survey in 2015 suggest low occupancy rates in three of four survey areas in Victoria. Approximately 50% of the individual transects in this study incorporated sites of known previous occupancy by Greater Gliders based on systematic surveys in the 1990s.
(n)Other evidence supports a decline in East Gippsland. In the Mount Alfred State Forest, roadside spotlighting on the same route over a 30-year period was used to record frequent sightings (10-15 animals on each occasion), but only a single Greater Glider was sighted in the 18 months leading up to November 2015.
(o)There is evidence of some declines in occupancy in unburnt sites in the same parts of Victoria (and also at Booderee National Park in New South Wales), which the Conservation Advice took to suggest that factors other than fire are involved in the species’ decline. It nominated a lack of suitable browse due to water stress as a likely contributing factor, as central Victoria was significantly hotter and drier than normal during 2001-2009.
For many of its findings in relation to Criterion 1, the Conservation Advice relied on the work of Dr Lumsden in Victoria. The evidence suggests Dr Lumsden worked at the Arthur Rylah Institute in Victoria, an institute which on the evidence collaborates with the Department of Environment, Land, Water and Planning (DELWP) on many conservation-related projects. There is no evidence why VicForests, which also appears to have drawn on the work of the Arthur Rylah Institute from time to time, did not call Dr Lumsden. I note that Dr Smith’s opinion is that Dr Lumsden’s survey data is accurate, although her occupancy model is not.
After having noted the less comprehensive monitoring of Greater Glider populations which had been undertaken in New South Wales and Queensland, the Conservation Advice concluded that:
There is little other published information on population trends over the period relevant to this assessment (around 22 years), and the above sites are not necessarily representative of trends across the species’ range. However, they provide sufficient evidence to infer that the overall rate of population decline exceeds 30 percent over a 22 year (three generation) period (Woinarski et al., 2014), and indeed may far exceed 30 percent. The population of the greater glider is declining due to habitat loss, fragmentation, extensive fire and some forestry practices, and this decline is likely to be exacerbated by climate change (Kearney et al., 2010). The species is particularly susceptible to threats because of its slow life history characteristics, specialist requirements for large tree hollows (and hence mature forests), and relatively specialised dietary requirements (Woinarski et al., 2014).
The Committee considers that the species has undergone a substantial reduction in numbers over three generation lengths (22 years for this assessment), equivalent to at least 30 percent and the reduction has not ceased, the cause has not ceased and is not understood. Therefore, the species has been demonstrated to have met the relevant elements of Criterion 1 to make it eligible for listing as Vulnerable.
(Emphasis added.)
I note here the Scientific Committee’s clear opinion that the cause for substantial population reduction is “not understood”. Whatever legal approach is adopted, that clear opinion has considerable relevance for the obligation imposed on VicForests to apply the precautionary principle in its timber harvesting operations.
Threats to the sustainability and recovery of the Greater Glider as a species
The question of threats to the sustainability and recovery of the Greater Glider as a species occupied a great deal of the evidence, including the expert evidence, and I return to this topic at several points in these reasons. What I set out in this section is what might be described as the foundational points, without some of the nuances and detail, which may be important to the resolution of the issues in the proceeding, but about which more detailed findings will be made later in these reasons. As I have noted, the source of these facts, which I accept and adopt, is the Conservation Advice, which is of significant weight in my fact-finding.
The Conservation Advice identifies a number of key threats to the Greater Glider, as a species. It is appropriate to set out the table contained in the Conservation Advice in its entirety. Of particular importance for the issues in this proceeding is what is said about habitat loss, fire, climate change, and hyper-predation. The Scientific Committee’s summary of the “[c]umulative effects of clearing and logging activities, current burning regimes and the impacts of climate change [which] are a major threat to large hollow-bearing trees on which the species relies” is set out in Table 1 below.
Table 1: Extract from Greater Glider Conservation Advice
Threat factor
Consequence rating
Extent over which threat may operate
Evidence base
Habitat loss (through clearing, clearfell logging and the destruction of senescent trees due to prescribed burning) and fragmentation
Catastrophic
Moderate-large
The species is absent from cleared areas, and has little dispersal ability to move between fragments through cleared areas; low reproductive output and susceptibility to disturbance ensures low viability in small remnants. Roadside clearing in state forests have destroyed many hollow-bearing trees previously left on the perimeter of logging coupes (Gippsland Environment Group pers. comm., 2015).
Too intense or frequent fires
Severe
Large
Population loss or declines documented in and after high intensity fires (Lindenmayer et al., 2013).
Timber production
Severe
Moderate
Prime habitat coincides largely with areas suitable for logging; the species is highly dependent on forest connectivity and large mature trees. Glider populations could be maintained post-logging if 40% of the original tree basal area is left (Kavanagh 2000); logging in East Gippsland is significantly above this threshold (Smith 2010; Gaborov pers. comm., 2015). There is a progressive decline in numbers of hollow-bearing trees in production forests as logging rotations become shorter and as dead stags collapse (Ross 1999; Ball et al., 1999; Lindenmayer et al., 2011).
The species occurs in many conservation reserves across its range. In NSW, 83% of the public forested lands (that lie within the Integrated Forestry Operations Approval regions) that coincide with the distribution of the greater glider are protected in formal or informal reserves (Slade & Law, in press). However, the fraction of protected areas is likely to be [lower] in Queensland and Victoria.
Climate change
Severe
Large (future threat)
Biophysical modelling indicates a severe range contraction for the northern subspecies (Kearney et al., 2010). Occupancy modelling indicates that the degree of site occupancy is associated with vegetation lushness and terrain wetness (Lumsden et al., 2013). Water stress affects growth in forest eucalypts (Matusick at al., 2013) and the availability of browse, and higher temperatures may cause heat stress and mortality (Vic SAC 2015).
Barbed wire fencing (entanglement)
Minor
Minor
There are occasional losses of individuals.
Hyper-predation by owls
Severe
Local
The greater glider forms a significant part of the powerful owl’s diet (Bilney et al., 2006). Powerful owl numbers have increased greatly in the Blue Mountains since 1990 and have been recorded at many sites with greater gliders (Smith pers. comm., 2015). Reduction in the stand density of hollow-bearing trees could increase predation threat whilst the species is moving between hollows.
Since the widespread decline of terrestrial species, the greater glider has become a significant part of the sooty owl’s diet – increasing from 2% of its diet at pre-European settlement to 21% (Bilney et al., 2010). The greater glider has significantly declined or become locally extinct in some intact forest, possibly due to owl predation (Lindenmayer et al., 2011; Lumsden et al., 2013; Rickards pers. comm., 2015). At Boodoree National Park, the increase in large forest owls coincided with a reduction in foxes, which may have reduced competition for prey with the powerful owl and sooty owl (Lindenmayer et al., 2011).
Competition from sulphur-crested cockatoos
Minor-moderate
Local
Numbers of cockatoos in the Blue Mountains have increased significantly since 1990. They are likely to be competing with greater gliders for hollows and have been observed taking over nesting hollows of powerful owls (Smith pers. comm., 2015).
Phytophthora root fungus
Minor
Large
The fungus is known to impact on the health of eucalypts.
The applicant submits at [464] of its closing submissions, and I accept:
The rating of ‘catastrophic’ is drawn from the action plan for Australian mammals 2012 (CB 12.60 p256) which describes the “Threat factor” of “Habitat loss (through clearing) and fragmentation” as having a catastrophic consequence rating. The source of this descriptor is the article titled “Action plan for Australian mammals 2012” authored by Woinarski (et al.) which sets out at Table 1.3 the definition of catastrophic, being “likely to cause complete population loss, where operating” (CB 11.4 pdf p 22-23).
Although VicForests in its evidence and submissions sought to downplay both the threatened status of the Greater Glider and the role of timber harvesting in its threatened status, and although for many aspects of its submissions VicForests urged the Court to focus on State-based regulatory mechanisms and State-based instruments, some of the clearest statements about the role of timber harvesting in threats to the Greater Glider come from a Victorian document. The final recommendation for the nomination of the Greater Glider for listing as a threatened species under Victoria’s FFG Act in March 2017 states (with my emphasis):
While the Greater Glider is “well represented in a number of conservation reserves” (Menkhorst 1995), the bulk of its distribution remains in forest available for timber harvesting. Wood production practices are known to substantially deplete Greater Glider populations and gliders usually die if all or most of their home range is intensively logged or cleared (Menkhorst op. cit.). Unless they are linked as part of an interconnecting network of reserves, local populations risk extinction through catastrophe or by loss of genetic vigour through inbreeding. Again Menkhorst (1995) notes that agricultural development has already isolated populations in the Wombat Forest, Gippsland Highlands and Gelliondale Forest and in smaller areas on the fringes of the Eastern Highlands. McKay (1988) notes that conservation of the species “is utterly dependent on sympathetic forest management which retains buffer strips of old forest between coupes and preserves old ‘habitat trees’ and their potential successors in small unlogged areas.”
The statement that the “bulk” of the distribution of the Greater Glider in Victoria remains in forest available for timber harvesting (and not in conservation reserves) substantially contradicts one of the underlying premises of Dr Davey’s evidence, and of VicForests’ contentions. This document represents the formal, official reasons for listing of the Greater Glider as a threatened taxon under the Victorian regulatory scheme of which VicForests made much in this proceeding. This, like other documents on which VicForests relied, is a judgment made by the executive. The authority and accuracy of what is stated in it should be accepted.
Returning to the Conservation Advice, in terms of conservation actions which should be taken, the Scientific Committee recommended to the Minister that, as “primary conservation actions”, the following should occur:
1.Reduce the frequency and intensity of prescribed burns.
2.Identify appropriate levels of patch retention, habitat tree retention, and logging rotation in hardwood production.
3.Protect and retain hollow-bearing trees, suitable habitat and habitat connectivity.
All three of those recommendations have a direct connection to forestry operations. The Conservation Advice goes on to make the following specific recommendations about the conduct of forestry operations in Victoria:
In production forests some logging prescriptions have been imposed to reduce impacts upon this species, however these are not adequate to ensure its recovery.
In Victoria, logging of areas where greater gliders occur in densities of greater than two per hectare, or greater than 15 per hour of spotlighting, require a 100 ha special protection zone (Vic DNRE1995). However, this threshold is quite high given that density estimates in Victoria range from 0.6 to 2.8 individuals per hectare (Henry 1984; van der Ree et al., 2004), and mature tree densities are declining meaning a lower probability that gliders will occur at higher densities (Gaborov pers. comm., 2015). This management requirement may therefore not adequately protect existing habitat and greater glider populations.
The Conservation Advice then sets out further tables summarising the management actions required to advance the conservation and protection of the Greater Glider. Again, these tables should be set out in their entirety.
Table 2: Recommended management actions
Theme
Specific actions
Priority
Active mitigation of threats
Reduce the frequency and intensity of prescribed burns.
High
Constrain impacts of hardwood production through appropriate levels of patch and hollow-bearing tree retention, appropriate rotation cycles, and retention of wildlife corridors between patches.
High
Constrain clearing in forests with significant subpopulations, to retain hollow-bearing trees and suitable habitat.
High
Avoid fragmentation and habitat loss due to development and upgrades of transport corridors.
High
Restore connectivity to fragmented populations.
Medium
Captive breeding
N/a
Quarantining isolated populations
N/a
Translocation
Reintroduce individuals to re-establish populations at suitable sites.
Low
Community engagement
Develop conservation covenants on lands with high value for this species.
Low
Table 3: Survey and monitoring priorities
Theme
Specific actions
Priority
Survey to better define distribution and abundance
Assess population size (or relative abundance) and viability of populations across the species’ range, using standardised and repeatable methodology.
Low
Determine the distribution and abundance in relation to forest vegetation class, age class, and amount of old growth forest in the landscape to understand the pattern of occurrence.
Medium
Establish or enhance monitoring program
From existing monitoring projects, design an integrated monitoring program across major subpopulations, linked to the assessment of management effectiveness.
High
Monitor the abundance and size structure of critical habitat tree species, and their responses to management including before and after prescribed burns, and before and after logging.
High
Continue to model impacts of wildfire and logging on population viability.
Medium
Monitor the incidence of wildfire within the species’ range.
Medium
Table 4: Information and research priorities
Theme
Specific actions
Priority
Assess relative impacts of threats
Assess the impacts of a range of possible fire regimes on the species.
Medium-high
Assess the impacts of ongoing habitat fragmentation (e.g. through peri-urban expansion, coal seam gas mining activities, road networks).
Medium
Investigate the potential causes of recent declines, including cumulative impacts and impacts of owl predation.
Medium
Assess relative effectiveness of threat mitigation options
Assess the impacts of fire management (prescribed burning programs) on habitat, hollow availability, preferred tree species, and glider population size.
High
Assess responses to habitat re-connections (e.g. rope ladder crossings over transport corridors).
Medium
Continue to assess and monitor the species’ responses to logging regulations and conditions.
Medium
Investigate the practicality of supplementing hollow availability with artificial hollows.
Low-medium
Resolve taxonomic uncertainties
Assess the extent of genetic variation and exchange between subpopulations.
Low
Review taxonomic status.
Low
Assess habitat requirements
Investigate the numbers, densities and types of hollow-bearing trees that must be retained to ensure viable populations.
High
Assess diet, life history
N/a
The following matters are of particular importance to my findings:
(a)the recommendations for the active mitigation of threats and their specification as being of “high priority”;
(b)the recognition by the Scientific Committee that more survey work was needed to “better define distribution and abundance” of the Greater Glider, and (I infer) therefore that there remained scientific uncertainty about those issues;
(c)that there was a “medium to high” need to assess the impacts of a range of possible fire regimes on the species, again (I infer) indicating scientific uncertainty about this question;
(d)the need – identified in the low-medium, medium and high priority range on matters relevant to forestry operations – to “assess relative effectiveness of threat mitigation options”. This is a matter to which I return later in these reasons, however I note here that, aside from the adverse opinion of Dr Smith and Professor Woinarski, there is little, if any, scientific evidence in this proceeding about the effectiveness of the prescriptions and other mitigations for which the policies of VicForests provide. As I explain later in these reasons, in the absence of any scientific evidence (by way of studies and monitoring) that existing prescriptions and mitigations are effective in reducing the population decline of the Greater Glider and assisting its recovery, I find the need, in forests where the Greater Glider may be present, for a complete application of the precautionary principle in VicForests’ forestry operations is imperative. The absence of such studies was a point repeatedly made by Dr Smith and Professor Woinarski. I also find the likely impact of forestry operations in forests where the Greater Glider may be present is significant.
Finally, the Scientific Committee made the following recommendation in the Conservation Advice:
The Committee recommends that there should be a recovery plan for this species.
Recovery Plans can be made pursuant to an exercise of a discretionary power conferred on the responsible Minister by s 269AA of the EPBC Act. No Recovery Plan has been issued for the Greater Glider; however, a document entitled “Draft National Recovery Plan for the greater glider (Petauroides volans)” was in evidence. That document is dated October 2016. The promulgation of a Recovery Plan under the EPBC Act seems to have stalled since 2016.
The Greater Glider Conservation Advice was approved by a delegate of the Minister on 25 May 2016. Its content should be taken to have been known to VicForests from a reasonable time after that date. In respect of the Logged Coupes, the table at [161] of Mr Paul’s second affidavit affirmed on 15 October 2018 indicates that in 17 of those coupes, harvesting commenced and completed on dates after 25 May 2016. In five coupes, harvesting operations were commenced prior to 25 May 2016 but completed after that date. In respect of the Camberwell Junction coupe, Mr Paul indicates at [178] of his second affidavit that harvesting was completed on 24 April 2018.
Dr Smith’s description of the Greater Glider
From Dr Smith’s first report (dated 7 January 2019), I consider the following additional characteristics of the Greater Glider and its habitat are important to note specifically.
Dr Smith explains why a single Greater Glider needs access to more than one suitable tree hollow:
Greater Gliders are predominantly solitary and each individual may occupy many different nest trees (habitat trees or trees with suitable hollows) within its home range which are about 1-3 hectares in size in the more productive forests (Kehl and Boorsboom 1984, Smith et al 2007). Nest sites may be changed frequently with individual gliders reported to use up to 18 den trees within their home ranges (Kehl and Boorsboom 1984, Comport et al 1996, Smith et al 2007). Frequent nest tree changes may be necessary for [temperature] control, avoidance of parasites and to reduce predation by Powerful Owls, Sooty Owls and Spotted Tail Quolls. Greater Gliders are an important (keystone) food resource for these large predators.
Dr Smith goes on to expand on the relationship between the Greater Glider and species which prey on it:
The Spotted-tail Quoll, which is listed as endangered under the EPBC Act in south eastern Australia, is particularly dependent on Greater Gliders which it hunts by climbing trees and removing them from tree hollows (Belcher et al 2007). The importance of Greater Gliders to the Spotted-tail Quoll is such that timber harvesting regimes that reduce Greater Glider numbers is recognized as a key threat to this species (Belcher et al 2007).
Powerful Owls (Ninox strenua) have been associated with catastrophic (90%) population declines in local Greater Glider populations (Kavanagh 1988). Powerful Owls may consume approximately 80-250 large mammal prey like Greater Gliders every year within their home ranges which are about 300-350 hectares for breeding females (Higgins 1999). At this rate if [Powerful] Owls fed solely on Greater Gliders they would remove one Greater Glider in every two hectares within their home range each year. This rate of predation exceeds the population growth rate of the Greater Glider in many forests.
Another factor which emerges from the draft Recovery Plan is that some of the conservation work to date has focused on small numbers of individuals of the species. On p 41 of the plan, there is discussion about various captive breeding and translocation programs. The numbers of individual Leadbeater’s Possum involved were small: recruiting three to six individuals per year for captive breeding, translocating five unpaired wild caught individuals. The point of relevance to the assessment of significant impact is that with a species at this level of risk of extinction, individual members of the species do matter: they matter for alternative methods of arresting the decline of the species, and if that is so, then it seems counterintuitive and irrational to discount or dismiss the potential effects of individual members of the species from forestry operations. As Professor Woinarski’s reports made clear, individual Leadbeater’s Possum or colonies caught in forestry operations have little or no prospects of even short-term survival, let alone long-term survival. Without concluding such a factor is decisive one way or the other, it is also not irrelevant in a species at this level of risk of extinction.
The effects of fire
The 2019 Conservation Advice notes the dramatic effects of fire on the population of Leadbeater’s Possum and identifies it as one of the major causes of the observed, and predicted, population decline of the species. Whether or not there are longer-term changes which could reduce the frequency and intensity of fires in native forest occupied by species such as the Leadbeater’s Possum, the occurrence, location, frequency and intensity of wildfire is not a matter humans can directly control. That is in contrast to timber harvesting, which is entirely susceptible to direct human control. Where it is clear that timber harvesting increases estimates of population decline of Leadbeater’s Possum (as the Conservation Advice states and I accept), and where it is clear (as I am satisfied it is in this proceeding) that particular native forest is in fact occupied and used by Leadbeater’s Possum, then the removal of that forest as current habitat for the Leadbeater’s Possum, and the removal of native forest which will otherwise provide hollow-bearing trees in the medium term (eg the 1939 Ash regrowth) is an impact that is of considerable consequence for the maintenance of the Leadbeater’s Possum as a species, let alone for its recovery. The context of the impact of VicForests’ forestry operations is the presence of a serious threat (fire) over which humans have no control.
The CAR reserve system and its capacity to mitigate or ameliorate the effects of forestry operations on the Greater Glider and the Leadbeater’s Possum
The 2015 Conservation Advice for the Leadbeater’s Possum notes that much of forest in the reserve system is not suitable for the Leadbeater’s Possum:
Lindenmayer et al. have undertaken large scale vegetation surveys in the central highlands of Victoria since 1987 (e.g., Lindenmayer, 1989; Lindenmayer et al., 1990; 1991a, b; 2000). Their data layers indicate that at 1987 and 1989 montane ash forest was represented by 171,200 ha, but of this only 6.7 per cent was predicted to support suitable habitat for Leadbeater’s possum. Lumsden et al. (2013) also note that while there are 43,501 ha of unburnt ash forest protected in parks and reserves within the Central Highlands at 2013, not all this area is likely to be suitable and occupied by Leadbeater’s possum, with modelling based on post-2009 fire surveys estimating that the possum is likely to only occupy 15,000 ha.
VicForests makes the following submission:
Given the significant amounts of Leadbeater’s possum habitat that are excluded from timber harvesting, the small areas of harvesting involved in the Scheduled Coupes, the fact that there is a sophisticated surveying regime for Leadbeater’s Possum in the Central highlands together with detailed prescriptions based on actual presence of Leadbeater Possum or presence of habitat, the Court cannot be satisfied that any forestry operations in the Scheduled Coupes would pose a significant impact on Leadbeater’s Possum.
What this allows is a chipping away at Leadbeater’s Possum habitat, with no consequence (other than for the Leadbeater’s Possum). When will the threshold change and when will there not be “significant amounts” of native forest that is Leadbeater’s Possum habitat that is excluded form harvesting? What is the tipping point on VicForests’ arguments? The reality is there isn’t one, because this is what the slice and dice approach of coupe-by-coupe approach encourages.
As I have explained, the overall context in which significant impact must be assessed for this species is that it is on a path to extinction, with the effects of wildfire exacerbating how endangered it is. In 2013, in an article in evidence, Professor Lindenmayer and his co-authors explain the situation in the following way. The Court expressly invited the parties to address it in final submissions on whether there were any limits on the use which the scientific articles in evidence could be put. The applicant addressed this in closing submissions, contending it could be treated as other expert evidence. VicForests does not appear to have addressed the matter. Where there are no restrictions on admissibility, the Court is free to give the opinions such weight as it considers appropriate. Less weight might be attributed if there are other reasons in the evidence to do so (eg Dr Lumsden’s modelling, which was criticised by Dr Smith). Here, the article is written by a scientist of whom Professor Woinarski and Dr Smith both expressed the highest opinion. In those circumstances, I am prepared to accept what is said by Professor Lindenmayer as relevant, and to give it weight.
In the 15 years since the last major strategies for the conservation of Leadbeater’s Possum were developed (Macfarlane et al. 1998) considerable new research has been conducted. This work has demonstrated:
ŸThere have been significant losses of large old (hollow-bearing) trees which are nesting sites for Leadbeater’s Possum (Lindenmayer and Wood 2010; Lindenmayer et al. 2012a).
ŸOld growth stands – which support the highest abundance of hollow-bearing trees (Lindenmayer et al. 1991a, 2000) – are a tiny fraction (1/30th-1/60th) of what they were at the time of white settlement. This is the result of a century of logging (including the deliberate past conversion of old growth forest into regrowth stands), 40 years of intensive and extensive clearfelling, and repeated wildfires (Lindenmayer et al. 2012a).
ŸLeadbeater’s Possum is absent from sites burned in the 2009 fire and the abundance of the species is significantly depressed on unburned sites where the surrounding landscape has been burned (Lindenmayer et al. 2013a).
ŸExtensive fires in 2009 have damaged almost half of the known habitat of Leadbeater’s Possum and the species appears to be on an extinction trajectory. Indeed, populations of Leadbeater’s Possum have been lost from extensive areas such as the Lake Mountain region.
As the evidence demonstrates, in particular the draft Recovery Plan and the 2019 Conservation Advice, the circumstances have not improved, and the population decline continues. That is why the reserve system provides no panacea, and nor do the prescriptions and measures which have been introduced since 2013. The destruction of any habitat occupied and used, or likely to be occupied and used, by Leadbeater’s Possum will have an impact on the Leadbeater’s Possum as a species that can be described as significant.
Conclusion: the Leadbeater’s Possum
For a species in the perilous state of the Leadbeater’s Possum, removal of habitat at the scale of native forest of 5 ha to 34 ha is an impact which can readily be described as significant. Especially so when each colony only occupies, on the evidence 1-3 ha. If the inevitable inference to draw from these findings is that native forest of sufficient quality to be occupied and used by Leadbeater’s Possum, or reasonably predicted to be occupied and used by Leadbeater’s Possum, should not be subject to timber harvesting, then that is an inference which in my opinion emerges with clarity on the evidence. However, that is not part of the necessary findings for the Court on the question of contravention, or likely contravention, of s 18 of the EPBC Act.
I am satisfied the applicant has established on the balance of probabilities that VicForests’ forestry operations (at each of the three levels I have described) are likely to have had (for the Logged Leadbeater’s Possum Coupes) and are likely to have (for the Scheduled Leadbeater’s Possum Coupes) a significant impact on the Leadbeater’s Possum.
Findings on significant impact: the Greater Glider
The evidence I have described in these reasons, and the findings I have made, establishes that on the balance of probabilities there is likely to have been, and is likely to be in the future, an impact from VicForests’ forestry operations on the Greater Glider as a species.
One important component of assessing whether the impact can properly be characterised as significant is to consider the threatened status of the species concerned. The more precarious the status of the species, the more likely it is that once an impact is established, it may be characterised as significant. That is the case with the Leadbeater’s Possum. The threatened status of the Greater Glider is not as extreme, and therefore closer attention needs to be paid to the factual question whether the established impact can properly be described as significant. In my opinion, it can.
Although its threatened status is not categorised as being as dire as the Leadbeater’s Possum, the definition of “vulnerable” should be recalled: the Greater Glider faces a high risk of extinction in the wild in the medium-term future. As I have explained, the basis for its classification is its population decline. The key feature to note about this decline, as the Conservation Advice does, is that the rate of decline is extremely high in the Central Highlands. The decline is extrapolated over the relevant 22-year period to be at a rate of 87%. As I have also explained earlier, the population of Greater Glider in the CH RFA region is an important population, at the southern edge of the national range of the Greater Glider and for this reason plays a critical role in the maintenance of genetic diversity of the species.
Many of my general findings, and my findings about why VicForests was required to comply with cl 2.2.2.2 in the Logged Glider Coupes and the Scheduled Coupes in respect of the Greater Glider are relevant to my conclusion of significant impact. That includes the findings I have made about my lack of persuasion that VicForests’ proposed adoption of new and supposedly less intensive silvicultural methods in an unspecified proportion of the Scheduled Coupes will make any substantive difference on the ground to threats posed to the Greater Glider from timber harvesting. I adopt those findings in my consideration of this aspect of the applicant’s case: see in particular [987]-[1076].
What I set out below are some further particular matters which have contributed to my conclusion on significant impact.
One matter which informs or underlies many of the more specific aspects of the evidence is the proposition in the Conservation Advice that “[p]rime habitat [for the Greater Glider] coincides largely with areas suitable for logging”. For this species, there is a direct conflict between the conduct of forestry operations and preservation of its habitat which it occupies and uses, or which is suitable for it to occupy and use.
It is common ground there is no Code prescription for the Greater Glider in the CH RFA Area. While, as I have discussed earlier, VicForests contends there are some protective measures applied (such as retention of further habitat trees if Greater Glider are detected), for the Greater Glider in the Central Highlands there has been no concentrated effort to improve conservation measures for the species regulating the conduct of forestry operations – in contrast to the Leadbeater’s Possum. There are no effective, obligatory and consistent measures for the Greater Glider applicable to VicForests’ forestry operations which could even be weighed in the balance against a conclusion of significant impact.
In relation to the Logged Glider Coupes, based on detections and his observations and research in the coupes, Dr Smith’s opinion was, using his own modelling (which was not challenged):
Greater Gliders in logged coupes are predicted (from the model) to have an average density of 1.1 per hectare. As logged coupes varied in size from around 18-70 ha. they are likely to have supported maximum populations of up to 20 -77 individuals per coupe.
At [107] of his second report, Dr Davey accepted Dr Smith’s estimates were reasonable, and explained that the high numbers were due to “[s]ite and stand productivity, scatterings of living habitat trees in Ash forest and mix of age class in Mixed Species forest”. He also agreed (at [108]) that Greater Glider could be killed during forestry operations.
There were 17 Logged Glider Coupes. According to my calculations, the combined gross area of those coupes is approximately 540 ha. Therefore, based on Dr Smith’s estimates, there may have been populations of up to around 600 affected by the forestry operations in those coupes, and it can be inferred a not insignificant proportion of them may have been killed, especially given they are nocturnal and forestry operations occur during the day, therefore they were more likely to be in their dens. While there may be a point at which the impact of an action on individual members of a listed threatened species is so negligible as not to be capable of contributing, at a factual level, to a finding of significant impact, these numbers are beyond negligible. They are a notable effect. They are material – not so much as individual members of the species, but because losses of that number of individuals is capable of affecting genetic diversity, the density levels of the Greater Glider in particular areas of forest and what might then occur as they come together from their otherwise rather isolated existence to breed. Effects on this number of individual animals is capable of further weakening the Central Highlands population as a whole. Further, the fact of such considerable numbers illustrates the actual – not potential – value of the habitat in the impugned coupes to the Greater Glider. These matters support a conclusion of significant impact.
The next matter is the habitat value in a qualitative sense of the Logged Glider Coupes and the Scheduled Coupes. In Appendix 1 to his first report, the descriptions applied by Dr Smith, in relation to the native forest in the Logged Coupes and Scheduled Coupes, based on his own observations, included, consistently, “high quality”, “important and critical”, “exceptionally abundant large old senescent trees with hollows”, “abundant pole sized stems (40 – 80 cm diameter) ideal for glider movement and feeding”, “high quality mixed species uneven aged old growth”, “structurally suitable habitat for Gliders feeding above the understorey”, “unusual abundance of dead stags”, “suitable structure for gliding and feeding and abundant hollows”, “uneven aged old growth on both coupes with abundant large old senescent Gums and Stringybarks scattered across the coupes”, “important fire refuge areas”, “[o]ld growth habitat is particularly abundant in the general area making it an important fire refuge area”, “open grown Ash with early hollow development” and “uneven-aged old growth with living senescent old growth trees with hollows”.
I am comfortably persuaded on the basis of Dr Smith’s evidence that the predominant quality of the habitat for Greater Glider in the Logged Glider Coupes, and in the Scheduled Coupes, was and is high. The habitat was therefore important. It can be justifiably described as “critical”, given the evidence about the diminution of old-growth forest, the slow development of Mixed Species forest with sufficient hollows, and the numbers of hollow-bearing trees per hectare required for high densities (and therefore more robust populations) of Greater Glider. Destruction of this kind of habitat, combined with the removal of it as potential habitat critical for the Greater Glider in the future (see below) is a contributing factor to my conclusion of significant impact.
The forestry operations will, on the evidence, remove the habitat in the impugned coupes from regrowing to the same level of suitability for and use by the Greater Glider, because, as Dr Smith pointed out many times in Appendix 1, the harvesting rotations (of 80 years or less) are too short to allow that to occur. Thus the quality of this habitat to support Greater Glider is unlikely to be regained. That is a factor which contributes to the significance of the impact of the forestry operations, particularly in circumstances where, as noted by Dr Smith and supported by Tyndale-Biscoe’s Life of Marsupials (on which Mr McBride relied), there is no guarantee that Greater Glider will move into new areas of habitat or recolonise coupes post-harvesting.
The CAR reserve system does not ameliorate the impact from forestry operations to bring it below significant
As it did with the Leadbeater’s Possum, VicForests (relying on Dr Davey’s opinions) contended that the amount of habitat available for the Greater Glider within the reserve system rendered any impact from its forestry operations in the impugned coupes (and, it seemed to be contended, more generally from its forestry operations in the Central Highlands region) not a significant one. I do not accept that contention. First, it is inconsistent with the Conservation Advice, on which I place weight. In particular, I note again that the Conservation Advice identified the need to assess the relative effectiveness of threat mitigation options as a priority and certainly did not take the approach that, because of the CAR reserve system, that need was somehow diminished.
Second, if it were correct, the Greater Glider population would not be experiencing the population decline it is, because (on this hypotheses) the robust and non-impacted populations in the reserve system would be growing so much that there was no concerning level of population decline. Neither VicForests nor its experts made any such suggestion. Thus, the premise of the contention (that there are stable and robust populations in the reserve system) is not made out on the evidence. A proposition to this effect was put to Dr Smith in cross-examination:
I want to suggest to you that the conservation advice does not mention, in the evidence upon which it relies, the known regions and sites where greater glider populations are relatively stable and not in decline, many of which are now in the reserve system. Do you disagree with that proposition?---I am not aware of any surveys which have identified stable large populations which are not in decline. You would need to point me to that reference.
No reference was provided. While Dr Smith did not dispute – and I accept – that there are populations of Greater Glider within the reserve system in Victoria, there is no evidence to suggest they are not experiencing any population decline. Indeed, since as the evidence demonstrates huge swathes of the reserve system have been burned in wildfires, it is something of an illogical proposition. This line of argument is another example of VicForests’ case failing to take into account the whole of the ecological context in which the Greater Glider as a species exists, including its extreme susceptibility to destruction and decline by wildfire. That is an important part of the context of assessing significant impact from forestry operations. These matters cannot be compartmentalised.
A further factor affecting the capacity of the reserve system to be a panacea for the impact of forestry operations in native forest on the Greater Glider (and indeed on hollow-dependent species) is the manner in which the conduct of forestry operations fragments the reserve system and isolates Greater Glider populations from one another. Dr Smith explained this in his oral evidence:
So absent fire or predation, there’s no reason why the population of greater gliders within the reserve system should be vulnerable in any way?---No, I don’t entirely agree with that because the reserve system is isolated and fragmented, so that if you remove the habitat in the matrix that the reserve system is embedded in, you remove the capacity for genetic exchange between glider populations within those isolated reserves. And in the event of, say, climate change, cooling or warming, and you need to maintain full genetic diversity in your populations, you may lose that capacity, and some of those populations may die out through inbreeding or loss of genetic diversity in the long term. So in my view, it is a risk to rely totally on a fragmented reserve system for conservation.
I note again the flaw in the line of argument underpinning the cross-examination. To commence with “absent fire or predation” (the other recognised threats to the Greater Glider) is to remove the question of significant impact from its proper context, which is native forest as a functioning ecosystem.
For completeness, as Dr Smith also pointed out in cross-examination, several surveys undertaken by him and Dr Lumsden included areas within national parks.
Conclusion: the Greater Glider
One of the observations made by Dr Smith in his first report is:
We are now at the point where the same mistakes that were made with respect to Leadbeater’s Possum can and are being made with respect to the Greater Glider, potentially driving it from vulnerable to endangered.
Based on the views I have formed of the evidence, that observation has force. The evidence of Professor Woinarski paints a grim picture for the Leadbeater’s Possum: if the present trajectory continues, it may well become extinct in the wild. The statutory concept of significant impact in Pt 3 is not limited to avoiding, or attempting to mitigate the likelihood of, such extreme situations. It is a flexible and adaptable concept, designed to be applied in particular factual circumstances to advance the relevant objectives of the EPBC Act, which as I have explained are not restricted to ensuring that a listed threatened species does not move from one threatened category to a worse one.
Thus, there is room for more optimism for the Greater Glider if the threats to its survival and recovery in the wild are mitigated. There can be no doubt that forestry operations are one of the key threats. The forestry operations impugned in this proceeding are geographically and numerically extensive, covering 66 coupes and, by my calculations, approximately 2,400 ha. At that landscape level, VicForests’ forestry operations are likely to have had, and to have, a significant impact on the Greater Glider for the reasons I have explained. It is also the case that, because of the particular qualitative characteristics of the native forest in the Logged Glider Coupes and the Scheduled Coupes, an impact of that nature is also likely to have occurred, or likely to occur, at a coupe-by-coupe level.
CONCLUSION ON SIGNIFICANT IMPACT
As I have found, in relation to the Logged Coupes, the undertaking of forestry operations in each coupe constituted the taking of an action for the purposes of s 18 of the EPBC Act. At that level, in each of the Logged Glider Coupes and the Logged Leadbeater’s Possum Coupes, I am satisfied those forestry operations are likely to have had a significant impact on the Greater Glider as a species and the Leadbeater’s Possum as a species. Further, at that level, in each of the Scheduled Coupes, I am satisfied those forestry operations are likely to have a significant impact on the Greater Glider as a species; and, at that level, in each of the Scheduled Leadbeater’s Possum Coupes, I am satisfied those forestry operations are likely to have a significant impact on the Leadbeater’s Possum as a species.
The intensity of the impact is magnified if the matter is assessed at the geographical coupe group level, or at the totality of the impugned coupes level. I have explained why that is so.
I rely upon the findings I have made on various aspects of the evidence for my conclusion at the individual coupe level. However, it is appropriate to set out those findings at the individual coupe level, as the parties addressed the matter in detail at that level. I do so in Table 14 below. In general, I have accepted the contentions of the applicant and the evidence on which they are based. That includes giving significant weight to the opinions of Dr Smith and Professor Woinarski, including what they said about individual coupes. The fact that there were a small number of coupes which either they did not visit, or about which they did not express an opinion of significant impact, does not persuade me no findings of significant impact should be made in those coupes. The more general level findings I have made are in my opinion equally applicable to such coupes, and I have – as I have indicated – given weight to the fact that there are detections of one or both species in or close to each of the 66 impugned coupes, as well as clear evidence about the nature of the suitable habitat present in all of the coupes. It is not the case that any of the 66 impugned coupes has been established to have been included by mistake, or to have some defective evidentiary basis.
Table 14: Summary of findings
Coupe Group
Coupe Number
Coupe Name
Logging Status
Reason s 38 exemption lost
GG SI
LbP SI
Acheron
309-507-0001
Mont Blanc
Logged
Clause 2.2.2.2 (PP)
Failure to screen
Yes
No
Acheron
309-507-0003
Kenya
Logged
Clause 2.2.2.2 (PP)
Failure to screen
Yes
No
Acheron
307-507-0004
The Eiger
Logged
Clause 2.2.2.2 (PP)
Failure to screen
Yes
No
Acheron
309-507-0007
White House
Scheduled
Clause 2.2.2.2 (PP)
Yes
No
Ada River
348-517-0005
Tarzan
Logged
Clause 2.2.2.2 (PP)
Yes
No
Ada River
348-518-0004
Johnny
Scheduled
Clause 2.2.2.2 (PP)
Yes
Yes
Ada River
348-519-0008
Turducken
Scheduled
Clause 2.2.2.2 (PP)
Yes
Yes
Ada Tree
344-509-0009
Ginger Cat
Logged
Clause 2.2.2.2 (PP)
Failure to screen
Failure to keep gaps under 150 m
Yes
Yes
Ada Tree
348-506-0003
Blue Vein
Logged
Clause 2.2.2.2 (PP)
Failure to protect Zone 1A habitat
Yes
Yes
Ada Tree
344-509-0007
Blue Cat
Scheduled
Clause 2.2.2.2 (PP)
Yes
Yes
Baw Baw
483-505-0002
Rowels
Logged
Clause 2.2.2.2 (PP)
Yes
No
Baw Baw
483-505-0018
Diving Spur
Scheduled
Clause 2.2.2.2 (PP)
Yes
Yes
Beech Creek
300-524-0002
Waves
Scheduled
Clause 2.2.2.2 (PP)
Yes
Yes
Beech Creek
300-539-0001
Surfing
Scheduled
Clause 2.2.2.2 (PP)
Yes
Yes
Big River
290-527-0004
Camberwell Junction
Logged
Clause 2.2.2.2 (PP)
Failure to screen
Yes
No
Big River
290-525-0002
Vice Captain
Scheduled
Clause 2.2.2.2 (PP)
Yes
No
Cambarville
312-510-0007
Bromance
Logged
Clause 2.2.2.2 (PP)
Yes
No
Cambarville
312-510-0009
Lovers Lane
Logged
Clause 2.2.2.2 (PP)
Yes
No
Coles Creek
297-538-0004
Home & Away
Scheduled
Clause 2.2.2.2 (PP)
Yes
Yes
Hermitage Creek
307-505-0011
Guitar Solo
Logged
Clause 2.2.2.2 (PP)
Failure to screen
Yes
Yes
Hermitage Creek
307-505-0001
Drum Circle
Scheduled
Clause 2.2.2.2 (PP)
Yes
No
Hermitage Creek
307-505-0009
Flute
Scheduled
Clause 2.2.2.2 (PP)
Yes
No
Hermitage Creek
307-505-0010
San Diego
Scheduled
Clause 2.2.2.2 (PP)
Yes
No
Kalatha Creek
298-509-0001
South Col
Scheduled
Clause 2.2.2.2 (PP)
Yes
Yes
Loch
462-507-0008
Estate
Logged
Clause 2.2.2.2 (PP)
Failure to screen
Yes
No
Loch
462-506-0019
Brugha
Scheduled
Clause 2.2.2.2 (PP)
Yes
No
Loch
462-507-0009
Jakop
Scheduled
Clause 2.2.2.2 (PP)
Yes
No
Matlock
317-508-0010
Swing High
Logged
Clause 2.2.2.2 (PP)
Yes
Yes
Mount Bride
345-526-0003
Louisiana
Scheduled
Clause 2.2.2.2 (PP)
Yes
Yes
Mount Bride
345-526-0004
Bourbon Street
Scheduled
Clause 2.2.2.2 (PP)
Yes
Yes
Mount Despair
298-516-0001
Glenview
Logged
Clause 2.2.2.2 (PP)
Failure to screen
Yes
No
Mount Despair
298-519-0003
Flicka
Logged
Clause 2.2.2.2 (PP)
Failure to screen
Yes
No
Mount Despair
298-502-0003
Chest
Scheduled
Clause 2.2.2.2 (PP)
Yes
No
Mount Despair
298-510-0003
Bridle
Scheduled
Clause 2.2.2.2 (PP)
Yes
No
New Turkey Spur
348-515-0004
Greendale
Logged
Failure to screen
Failure to keep gaps under 150 m
No
Yes
New Turkey Spur
348-504-0005
Gallipoli
Scheduled
Clause 2.2.2.2 (PP)
Yes
Yes
Nolans Gully
297-505-0001
Goliath
Scheduled
Clause 2.2.2.2 (PP)
Yes
Yes
Nolans Gully
297-509-0001
Shrek
Scheduled
Clause 2.2.2.2 (PP)
Yes
Yes
Nolans Gully
297-509-0002
Infant
Scheduled
Clause 2.2.2.2 (PP)
Yes
Yes
Nolans Gully
297-511-0002
Junior
Scheduled
Clause 2.2.2.2 (PP)
Yes
Yes
Noojee
462-504-0004
Skerry’s Reach
Logged
Clause 2.2.2.2 (PP)
Failure to protect mature Tree Geebung
Failure to screen
Yes
Yes
Noojee
462-504-0009
Epiphanie
Scheduled
Clause 2.2.2.2 (PP)
Yes
No
Noojee
462-504-0008
Loch Stock
Scheduled
Clause 2.2.2.2 (PP)
Yes
Yes
Rubicon
288-516-0007
Golden Snitch
Logged
Failure to keep gaps under 150 m
No
Yes
Rubicon
288-516-0006
Hogsmeade
Logged
Failure to keep gaps under 150 m
No
Yes
Rubicon
287-511-0006
Houston
Logged
Failure to keep gaps under 150 m
No
Yes
Rubicon
287-511-0009
Rocketman
Logged
Failure to keep gaps under 150 m
No
Yes
Salvage Creek
463-504-0009
De Valera
Logged
Failure to screen
Failure to keep gaps under 150 m
No
Yes
Snobbs Creek
288-505-0001
Dry Spell
Scheduled
Clause 2.2.2.2 (PP)
Yes
No
Snobbs Creek
288-506-0001
Dry Creek Hill
Scheduled
Clause 2.2.2.2 (PP)
Yes
No
South Noojee
462-512-0002
Backdoor
Scheduled
Clause 2.2.2.2 (PP)
Yes
No
South Noojee
463-501-0005
Lodge
Scheduled
Clause 2.2.2.2 (PP)
Yes
No
Starlings Gap
345-503-0005
Bullseye
Logged
Failure to screen
No
Yes
Starlings Gap
345-505-0006
Hairy Hyde
Part logged, part scheduled
Clause 2.2.2.2 (PP)
Failure to identify Leadbeater’s Possum colony
Yes
Yes
Starlings Gap
345-506-0004
Opposite Fitzies
Logged
Failure to screen
No
Yes
Starlings Gap
345-504-0003
Smyth Creek
Scheduled
Clause 2.2.2.2 (PP)
Yes
Yes
Starlings Gap
345-504-0005
Starlings Gap
Scheduled
Clause 2.2.2.2 (PP)
Yes
Yes
Starlings Gap
345-505-0009
Blacksands Road
Scheduled
Clause 2.2.2.2 (PP)
Yes
Yes
Sylvia Creek
297-526-0001
Gun Barrel
Scheduled
Clause 2.2.2.2 (PP)
Yes
Yes
Sylvia Creek
297-530-0001
Imperium
Scheduled
Clause 2.2.2.2 (PP)
Yes
Yes
Sylvia Creek
297-530-0002
Utopia
Scheduled
Clause 2.2.2.2 (PP)
Yes
Yes
The Triangle
317-508-0008
Professor Xavier
Logged
Failure to screen
Failure to keep gaps under 150 m
No
Yes
Torbreck River
312-007-0014
Skupani
Scheduled
Clause 2.2.2.2 (PP)
Yes
No
Torbreck River
312-508-0002
Splinter
Scheduled
Clause 2.2.2.2 (PP)
Yes
No
Torbreck River
312-503-0002
Bhebe
Scheduled
Clause 2.2.2.2 (PP)
Yes
No
Torbreck River
312-002-0006
Farm Spur Gum
Scheduled
Clause 2.2.2.2 (PP)
Yes
No
THE SCOPE OF S 475(2)
The debate between the parties about s 475(2) of the EPBC Act is not engaged by reason of the findings I have made about the Scheduled Coupes, and also because I have rejected VicForests’ submissions that its proposed forestry operations in the Scheduled Coupes are too uncertain and speculative to be the subject of any findings either in relation to s 38 or in relation to s 18.
However, I do accept the thrust of VicForests’ contentions about s 475(2). I accept the Act intends there to be a correlation between offence or other contravention and the injunctive relief granted. That is apparent from at least two textual matters: first, the use of the phrase “conduct constituting” and second the use of the phrase “the conduct” at the end of s 475(2). The conduct said to be the contravention is the conduct the Court has power to restrain. That is not to say that in certain factual circumstances, the Court is limited to granting injunctive relief which precisely correlates with the conduct constituting the contravention. However, the premise of s 475(2) is that there must be substantial equivalence before the power arises.
I do not accept the applicant’s contention that the use of “has engaged, is engaging or is proposing to engage” supplies an alternative construction. The use of the past tense indicates that the taking of an action may be incomplete, or may be undertaken in stages. There must nevertheless still be conduct in the future which is sought to be restrained, and that conduct must (relevantly) be the conduct said to constitute the contravention. That conduct will, under the scheme of the Act, be framed by reference to the taking of an action. Therefore the scope of s 475(2) will depend on how the action is described or characterised.
So, relevantly here, as VicForests submits, if there was only a finding of contravention of s 18 as to the taking of an action in each of the individual Logged Coupes, the power in s 475(2) would not arise in relation to the individual Scheduled Coupes, or the Scheduled Coupes as a whole. There would be no correlation between the action which is the contravention and the action sought to be restrained.
However, where there are (as here) findings that the forestry operations in each, some or all of the Logged Coupes, and forestry operations in each, some or all of the Scheduled Coupes, have contravened or are likely to contravene s 18, there is no impediment to the power under s 475(2) arising. The question of whether it is appropriate to exercise it, and if so how, are matters on which the parties will be heard in due course.
I also accept VicForests’ contention that s 475(3) is an ancillary power, and the power arises if (and only if) an injunction has been granted under s 475(2). That is not to say, however, that the Court may not have the power to grant ancillary relief of the same kind under s 23 of the Federal Court Act. It would also not prevent an application for a remediation order under s 480A of the EPBC Act. If that matter arises in this proceeding the parties will have an opportunity to address the Court on it if the applicant seeks any such orders, once a concrete form of any such proposed orders is articulated.
SUBMISSIONS ON ORDERS
The Court will give the parties an opportunity to attempt to agree on the appropriate orders the Court should make, given the conclusions it has reached. If there is no agreement, the parties will be able to file short submissions on appropriate orders.
I certify that the preceding one thousand, four hundred and sixty-four (1464) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer. Associate:
Dated: 27 May 2020
ATTACHMENT A
A high resolution PDF of this map can be downloaded from the judgments page on the Federal Court of Australia website.ATTACHMENT B
A high resolution PDF of this map can be downloaded from the judgments page on the Federal Court of Australia website.
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