Friends of Leadbeater's Possum Inc v VicForests (No 4)

Friends of Leadbeater's Possum Inc initiated proceedings against VicForests regarding the conduct of forestry operations in the Victorian Central Highlands Regional Forest Agreement region, which involved the potential impact on listed threatened species, specifically the Leadbeater’s Possum and the Greater Glider. The Federal Court was tasked with determining whether VicForests' forestry operations contravened section 18 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) by having a significant impact on these species. The court also had to decide whether the exemption in section 38(1) of the Act was lost due to non-compliance with the Code of Practice for Timber Production 2014 (Vic).

The legal issues at hand included the interpretation of the term "significant impact" and whether VicForests' operations had or were likely to have such an impact on the Leadbeater’s Possum and the Greater Glider. The court considered evidence from experts and various reports, including the draft Recovery Plan and the 2019 Conservation Advice, to assess the impact of forestry operations on these species. The court found that VicForests' forestry operations were likely to have a significant impact on both species, despite measures taken to mitigate these effects. The reasoning emphasised the precarious status of the Leadbeater’s Possum, which, due to its small population size and limited habitat, was significantly affected by even small-scale timber harvesting. For the Greater Glider, although not as critically endangered as the Leadbeater’s Possum, the court found the impact significant given its high risk of extinction and the rapid population decline.

The court concluded that VicForests' forestry operations were likely to contravene section 18 of the EPBC Act by having a significant impact on the Leadbeater’s Possum and the Greater Glider. The court did not find it necessary to determine if the exemption in section 38(1) was lost due to non-compliance with the Code of Practice for Timber Production 2014 (Vic), as the primary issue of significant impact had already been resolved. The court ordered the parties to file agreed proposed minutes of orders by a specified date, with submissions limited to 5 pages in support of the proposed minutes of orders.