Why did we lose?
The verdict ruled against us as the Federal Court Judges decided that our logging laws don’t ‘have’ to protect wildlife.
The Judges stated that the purpose of the RFA Act was not to protect the environment, but its purpose was to ensure the Commonwealth’s obligations. They claimed that the protection of Tasmania’s forests and wildlife was ensured by the Forest Practices Code and other policies, which are written by the Tasmanian Government.
However, these codes and policies are not legally enforceable and the court has ruled that there is no need for them to be so. This is a sad day for our wildlife, as when it comes to logging, there is no laws that are protecting their habitat from destruction.
What does apply for ‘special leave of appeal’ mean?
This means that we are asking for an appeal on the decision in the High Court. We are not guaranteed a hearing in the High Court, therefore we need to apply. Not all cases get heard. A case usually has to be of high public importance to be accepted into the high court, and we believe our case is.
We are very aware that there are no guarantees of success of being granted a hearing in the High Court.
How much will the High Court Appeal cost?
This is a risky, expensive strategy, with legal costs which could reach $140,000 just to apply to the High Court and cover costs if we lose. But the cost of doing nothing - of giving up now - is ultimately far, far greater.
What does the Samuel’s Report say about the RFA’s?
The Samuel’s report is a ten-yearly review of the Environmental Protection and Biodiversity Conservation Act (EPBC Act). If has found that the Regional Forest Agreements are ineffective at protecting threatened species. They have recommended a complete overhaul of the agreements. This shows just how important our case is, as the RFA’s are not protecting our threatened species
How did the December hearing go?
The Great Forest Case hearing was on the 2nd of December in front of full bench of the Federal Court. The hearing came to an early conclusion, with the hearing lasting only one day, rather than the scheduled two days.
Our barrister Ron Merkel has put forward a strong case. He argued that the intention of the Regional Forest Agreements are to protect rare and endangered species. He said protections should be provided against harm being caused, rather than to provide a remedy only after the harm has been done.
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 argued that the Tasmanian Regional Forest Agreement (RFA) is invalid.
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 was that the RFA is not legally enforceable, especially for the system of reserves and the requirement for ecologically sustainable forest management (ESFM).
The case was 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 application for appeal in the High Court is successful and we win, 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 our application for appeal in the High Court is successful and we win, the result 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 did the Foundation engaged as their legal representation for this case?
Barristers Ron Merkel QC and Tom Wood represented 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 was the case heard in?
This case was heard in the Federal Court. The case was online and was before three Federal Court Judges: Justice Griffiths, Justice Derrington and Justice Moshinsky. We are currently in the process to apply for special leave to the High Court.
How much did the case cost Bob Brown Foundation?
We launched a public appeal for the Great Forest Case and we raised $250 000. This was enough to cover the costs of the Federal Court hearing. It was an enormous undertaking for a small environmental foundation, which highlights how much public support there is for our case and how many people want our forests protected.
We are now in the process of applying for special leave to the High Court. The costs for this could reach $140,000 just to apply to the High Court, and to cover costs if we lose.
You can make a donation here.
Are donations to support this case tax-deductible?
Yes, all donations to the Bob Brown Foundation 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 asserted the Tasmanian RFA is invalid, as it does not comply with the Commonwealth Parliament’s requirements.
Our court case is different from the Possums Case as it is challenging the RFA, rather than whether logging is being undertaken according to the RFA. Our case is 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 application for appeal in the High Court is successful and we win, 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 application for appeal in the High Court is successful and we win, 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.
If our application for appeal in the High Court is successful and we win, it 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 if our appeal is successful, we will only be able to stop native forest logging in Tasmania. However, a 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 planned injunctions 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.
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.
How many judges were there for the December hearing?
Our hearing was in front of three judges: Justice Griffiths, Justice Derrington and Justice Moshinsky.
Why was the case heard before three judges?
We 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 in needed to reconsider and overturn earlier judgements.
On the 2nd of October there was an injunction to protect Swift parrot habitat. How many coupes are included in the injunction and where are they located?
During our initial hearing, Forestry Tasmania agreed to the injunction which immediately protects the most important Swift parrot breeding habitat. The injunction is for 19 coupes, which covers over 850 hectares. Fifteen of these coupes are located in the Southern Forests, two are in the Eastern Tiers and two are in Wielangta.
This may not be the only injunction in the Great Forest Case. There are 213 coupes on Forestry Tasmania’s logging schedule which contain habitat for the critically endangered Swift parrot. The Bob Brown Foundation will continue to monitor logging operations and take action if logging commences in any of this habitat.
This may not be the only injunction in the Great Forest Case. If our Federal Court challenge to the Tasmanian Regional Forest Agreement is successful, we will also seek an injunction to stop Sustainable Timber Tasmania carrying out any logging without Federal Environment Minister approval. We would also seek an injunction to repair any damage Forestry Tasmania has done which breaches the Environmental Protection and Biodiversity Conservation Act. This will help to protect other nationally listed threatened species.
If you have any additional questions about the case, send us an email and we will answer as soon as we can.