What is the Great Forest Case?
The Great Forest Case is a legal case by Bob Brown Foundation (BBF) challenging the regulation of native forest logging. We will argue that the Tasmanian Regional Forest Agreement (RFA) is invalid. If we succeed, forestry operations will need to be properly assessed under the Commonwealth EPBC Act for their impact on threatened and endangered species.
The RFA Act requires forestry operations to have enforceable environmental arrangements between Canberra and Hobart to ensure the protection of endangered species. BBF’s case is that the RFA is not legally enforceable, especially for the system of reserves and the requirement for ecologically sustainable forest management (ESFM).
The case will be against the Commonwealth of Australia, the State of Tasmania and Sustainable Timber Tasmania.
A more detailed description of the legal background of the case is available here.
What is an RFA?
Regional Forest Agreements (RFAs) are 23-year-old agreements which essentially exempt logging from national environment laws. There are ten RFAs across Victoria, New South Wales, Western Australia and Tasmania.
In 2017 the Tasmanian RFA was rolled over and entrenched logging permanently by extending the RFA indefinitely.
The Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act) is the national legislation that is meant to protect threatened species and the environment.
The Commonwealth exempted native forest logging ‘in accordance with’ regional forest agreements (RFAs) from its environment laws and devolved responsibility to the states. RFAs allow logging to take place without assessment or approval under the EPBC Act. Instead, RFAs give responsibility to the state governments to manage protection of endangered species and the environment. In Tasmania, the government is not interested in protection of species and habitat; it manages these forests for logging.
Logging is the only extractive industry which is exempt from the EPBC Act.
The RFA Act defines an RFA as an agreement in force between the Commonwealth and a state that includes provisions for a comprehensive, adequate and representative (CAR) reserve system, and for ‘ecologically sustainable forest management’ (ESFM). This intention sounds worthy but the outcome is an ongoing disaster for Australia’s forests and wildlife.
Do RFAs protect endangered species?
No. Regional Forest Agreements are outdated arrangements which are notoriously inadequate for protecting our threatened species. RFAs allow logging of nesting sites for some of Australia’s most critically endangered species, such as Leadbeater’s Possum and Swift Parrots.
What will a Great Forest Case win mean for Tasmania’s Forests?
We want to strike down the Tasmanian Regional Forest Agreement as it is not protecting endangered species. In 2015 the Swift Parrott was moved from Endangered to Critically Endangered.
If our case is successful, we will seek an injunction to stop Sustainable Timber Tasmania from carrying out any native forest logging without the Federal Environment Minister’s approval. We will also seek an injunction to repair any damage they have done, in breach of the EPBC Act.
This means that Sustainable Timber Tasmania will no longer be able to log threatened species habitat as it chooses and will have to gain approval under national environmental laws. This will be a big win for threatened species such as the Tasmanian Devil, Masked Owl and the critically endangered Swift Parrot.
What will a Great Forest Case win mean for the rest of Australia’s native forests?
If we win this case, it will be significant for other states in Australia, as it will set a precedent for other groups to undertake similar litigation. Currently, there is 6 million ha of Australia’s forests available for logging under the RFAs. If similar court cases were conducted in other regions, this could spell the end of RFAs and a significant win for Australia’s native forests.
Who has the Foundation engaged as their legal representation for this case?
Barristers Ron Merkel QC and Tom Wood will represent our Foundation in the Federal Court. Ron Merkel QC is a former Federal Court judge, known for taking on unusual but important cases. Ron represented Bob Brown and Jessica Hoyt in the successful High Court challenge to Tasmania’s anti-protest legislation in 2017.
Which court is the case being heard in?
This case will be heard in the Federal Court in Melbourne.
How much will the case cost Bob Brown Foundation?
We have launched a public appeal for $250 000 for our Great Forest Case. It is an enormous undertaking for a small environmental foundation. But the risks for life on Earth, if the destruction of Australia’s forests is not brought to an end, make these financial risks look puny. We have launched a public appeal to support the case which will be crucial to its success. You can make a donation here.
Are donations to support this case tax-deductible?
Yes, all donations are tax-deductible.
Haven’t there already been a similar court case? How will this be different from the Leadbeater’s Possums case?
The Victorian Possums Case (Friends of Leadbeater’s Possum v VicForests) has recently been in the news for their historic win. The Federal Court ruled that state-owned timber company VicForests had breached environmental laws by logging habitat of the critically endangered Leadbeater’s possum. The court found that VicForests was not following the forestry code and therefore was not in accordance with the Regional Forest Agreement. In essence, that case showed VicForests did not comply with the RFA.
Our case will assert the Tasmanian RFA is invalid, as it does not comply with the Commonwealth Parliament’s requirements.
Our court case will be different from the Possums Case as it will be challenging the RFA, rather than whether logging is being undertaken according to the RFA. Our case will be based on questions of law rather than evidence of breaches to logging forestry codes and policies.
How will this court case affect takayna / Tarkine?
takayna/Tarkine is home to Australia’s largest temperate rainforest and currently has over 28,958 ha of its pristine forests in “permanent logging zones”. If our case is successful, we will seek an injunction to stop Sustainable Timber Tasmania carrying out any logging without Commonwealth approval. This will be a big win for Giant Freshwater Crayfish, Tasmanian Devil, Masked Owl and all the other threatened species which live in the Tarkine.
If Bob Brown Foundation wins the case, will logging stop immediately?
If our case is successful, we will seek an injunction to stop Sustainable Timber Tasmania carrying out any logging without Federal Environment Minister approval. We will also seek an injunction to repair any damage they have done which breaches the EPBC Act.
What will this court case mean for our threatened species?
Several of our iconic species are seriously under threat from logging, including the critically endangered Swift Parrot, endangered species like the Masked Owl, Wedge-tailed Eagle and Tasmanian Devil and vulnerable species like Giant Freshwater Crayfish.
The most crucial species under threat from logging is the Swift Parrot. This charismatic bird is currently listed as critically endangered and is likely to go extinct in the next 10 years if its habitat is not protected in secure conservation reserves. The Tasmanian RFA currently allows Swift Parrot habitat to be logged.
Our case will be a major step towards protecting Tasmania’s forest-dwelling threatened species.
Will this case stop native forest logging in other Australian states or just Tasmania?
The court case is challenging the Tasmanian RFA, so we will only be able to stop native forest logging in Tasmania. However, our win will set a precedent for other groups who will be able to undertake similar litigation.
Will this case stop logging in plantations?
While RFA legislation covers logging in both native forests and plantations, our injunction will only cover areas of native forest.
Even if we win, won’t the government just change the laws to enable native forest logging to continue?
Given the failings of the RFAs as pointed out by previous court cases such as the Wielangta and Leadbeater Possums case, it is not a simple process to change legislation and agreements. Irrespective of this case, the native logging industry can no longer rely on made-to-order exemptions. The native forest logging industry has an atrocious record of protection of our iconic species. It’s time for these jobs to move into the tourism and plantation sectors.
What can people do to help and get involved?
You can help us by donating to The Great Forest Case.
Share this fight for native forests campaign on your social media channels.
Stay up-to-date with the latest news about the case on our Facebook page and website.
Our campaigns to defend and protect native forests will continue as the case proceeds, and you can join our Foundation’s campaign activities by contacting the campaign team.
How long will the court case take?
The court case will take approximately six months, from commencement to the verdict. Other court cases involving the Regional Forest Agreement have taken years, as they rely heavily on evidence and expert witnesses.
What will happen if the Foundation loses the case?
If the case is lost we will look at going to the High court.
What about the native forest loggers’ jobs?
Less than one per cent of Tasmanian jobs are in logging and most of the wood comes from non-contentious plantations. Tasmania’s native forest industry is in decline and those employed in native forest logging can use these skills in the plantation timber industry, restoration of native forests and reforestation. There are also opportunities to be retrained and with employment opportunities in elite firefighting with the increase in bushfires.
Native forest logging is a profit-driven non-necessity. The two million hectares of soft and hardwood plantations in Australia are enough to meet the nation’s needs.
How have RFAs failed?
Numerous assessments, inquiries, court cases and audits show that RFAs have failed comprehensively. They are an environmental debacle, a source of ongoing conflict and a never-ending drain on the public purse. Indigenous rights and interests have received scant attention.
RFAs are outdated and discredited. They cannot credibly be extended as the environmental, social and economic assessments that form the basis of these agreements dates back to the 1990s. Nor can they continue to accredit state government systems and processes that have demonstrably failed.
Do RFAs recognise climate benefits from intact native forests?
Regional Forest Agreements take no account of the colossal value of keeping native forests as carbon banks. Tasmania has the most carbon-dense forests in the world. Our forests not only store significant amounts of carbon, but they continue to draw carbon down from the atmosphere over time. In fact, Tasmania’s forests draw down a massive 7.5 megatonnes of carbon a year, which is enough to offset all of Tasmania’s emissions.
The RFAs have no provision for considering climate change implications in the forest management systems. Our forests are important carbon stocks and their potential of forests degraded by logging to sequester carbon is not addressed in the RFAs. This loophole ensures that the government is fixed on wood as the only use for our forests and fails to embrace any other uses such as a carbon trading scheme. It flies in the face of Australia’s international obligation to tackle global heating under the Paris Agreement. In Tasmania, native forest protection can make the largest contribution of any sector towards carbon emissions abatement.
What will happen to the funds that are raised if the Foundation wins the case and costs are awarded?
Any funds remaining after all costs are finalised will be used to support our ongoing campaigns to protect native forests in Tasmania and around Australia.
Why isn’t the case being heard in Tasmania’s Federal Court?
The court case has been lodged in Melbourne as this is where our barristers are located. The Federal Court is the same throughout Australia, with courts in each state.
Will it move from one judge to five judges?
We are aiming to have the case referred to a full-court of five judges. This will be decided at the initial directions hearing on the 23rd of September.
Why will it be heard in front of five judges?
We have requested a full court as we are looking to overturn an earlier judgement made during the Wielangta case (Senator Bob Brown v Forestry Tasmania 2005). A full court of five judges in needed to reconsider and overturn earlier judgements.
If you have any additional questions about the case, send us an email and we will answer as soon as we can.