Introduction
The judgement by Justice Mortimer in Friends of Leadbeater’s Possum Inc v. VicForests showed that existing logging laws and operations are sending threatened species to the brink of extinction. It also showed that the provisions of logging laws under the Regional Forest Agreements (RFAs) are not working to protect threatened species. Subsequently, the independent review of the Environment Protection and Biodiversity Conservation Act 1999 also recognised that current logging laws, including RFAs, are not sustainable.
Since the public hearing on this bill, the decision of the full bench of the Federal Court, despite finding for Vicforests, confirmed many of the key findings in the original decision by Justice Mortimer. As summarised by Environmental Justice Australia, these include findings that:
... logging is permanently destroying habitat critical to the survival of the Leadbeater’s Possum and Greater Glider, is a cause of the decline of important populations necessary for their long-term survival, and that current reserves are inadequate to protect the species from their high risk of extinction.
The original judgment also found that logging in the 66 areas subject to the case was in breach of Victorian environment law, and in just 17 of the areas investigated, up to 600 Greater Gliders may have been impacted and killed by the state’s logging agency. All appeal grounds relating to those findings were dismissed.
As The Wilderness Society noted:
The one ground that the Federal Court has upheld relates to whether it believes it has the jurisdiction to intervene when a state logging agency damages the environment where a Regional Forest Agreement is in place.
The decision by the Full Federal Court indicates they do not believe the Court has the jurisdiction to intervene when a state logging agency damages the environment where a Regional Forest Agreement is in place. This essentially means that the RFA exemption is functionally an exemption, rather than a conditional approval via s38(1) of the EPBC Act. This means that VicForests aren’t obliged to adhere to state environment laws in order to enjoy an effective exemption from national environment laws. As such, the court’s findings in this case clearly indicate that Australia’s environmental laws are broken and must be strengthened. There has been clear, consistent evidence for decades that native forest logging is destroying critical habitats and driving endangered species towards extinction.
Despite these clear indictments of native forest logging, a small number of companies have continued to advocate for their destructive practices, while failing to plan for the inevitable transition to plantation forestry. This private members bill represents a final attempt by a small, unsustainable sector to lobby for additional exemptions from basic environmental protections that are needed to prevent further devastation and extinctions.
The failure of the main Committee’s report
The recommendations in the main Committee report indicate a clear, deliberate decision by the Liberal party to prioritise a dying industry over responding to an environmental crisis. The small number of remaining native forestry operators have consistently refused to heed the environmental warnings, or support their workers by planning for the inevitable transition to plantation forestry.
Adopting the recommendations in the main Committee report would indicate a deliberate decision to shift from environmental protections based on environmental outcomes, to prioritising the profits of a small number of corporations, at any cost in terms of damage to the environment.
What the committee report fails to mention is that most of the wood products industry in Australia is already plantation based, with 90 per cent of the wood products being produced in Australia coming from plantations. Native forest logging is the rump of the industry with dire ecological consequences. It is also severely affected by increasing risk of fire due to climate change. Governments state and federal should be planning for the urgent transition of the remaining 10% of the industry to plantations, not propping up and economically unsustainable environmentally destructive relic of the past.
Leadbeater’s Possum Federal Court decision
Leadbeater’s Possum is the faunal emblem of the state of Victoria, and as outlined by Friends of Leadbeater’s Possum Inc., the extinction crisis it faces is symptomatic of a broader ecosystem crisis:
Our group, whilst advocating primarily for Leadbeater’s Possum, sees it as a 'flagship' species. Decline in its habitat is decline in an entire ecosystem and affects all the other species that rely on the forest for survival, including listed threatened species such as the Greater Glider.
Despite its significance, multiple levels of government have failed to act for years on end, leaving this precious species facing extinction:
The species is now listed in the top 10 mammals in the world requiring conservation intervention and the Australian mammal most in danger of extinction within twenty years.
This crisis prompted legal action by Friends of Leadbeater’s Possum Inc.:
Regrettably, in 2017, we felt the only remaining option was to initiate a legal challenge to the ongoing unsustainable logging of Leadbeater’s possum’s critical forest habitat. This was not a “radical” act but one of desperation. Our case in the Federal Court, Friends of Leadbeater’s Possum Inc. -v- VicForests, was heard in June 2019 with Judgment delivered on 27 May 20205 and Final Orders pronounced on 24 August 2020.
As summarised by the Environmental Defenders Office in its submission:
In the final decision in the Leadbeater's case, the Court found that certain forestry operations undertaken by VicForests were not being, and would not be, conducted in accordance with the Code of Practice for Timber Production 2014 - in particular the requirement to apply the precautionary principle pursuant to clause 2.2.2.2 of that Code. For this reason, those forestry operations were not protected by the exemption in subsection 38(1) EPBC Act. It was also found that those operations had, or would have, a ‘significant impact’ on the Greater Glider, the Leadbeater's Possum, or both, and without approval under the EPBC Act, were unlawful.
The Federal Court’s decision, which was under appeal during the public hearing, had implications for other jurisdictions. As noted above, the full Federal Court upheld all but one finding of the original decision, showing that:
logging is permanently destroying habitat critical to the survival of the Leadbeater’s Possum and Greater Glider, is a cause of the decline of important populations necessary for their long-term survival, and that current reserves are inadequate to protect the species from their high risk of extinction.
The decision by the Full Federal Court indicates they do not believe the Court has the jurisdiction to intervene when a state logging agency damages the environment where a Regional Forest Agreement is in place. This essentially means that the RFA exemption is functionally an exemption, rather than a conditional approval via s38(1) of the EPBC Act.
This decision shows the danger of the Liberal party’s determination to abrogate their responsibility for environmental protection at the Commonwealth level. At every turn, the Liberal party has attempted to use delegation of environmental approvals to state governments as a tool to weaken environmental protections. This decision shows that where those powers are delegated, or operations are exempted from environmental protections, it has devastating consequences, and leaves no avenue for appeal at the Federal level. As the Federal Court has found, native forest logging in Victoria has had catastrophic environmental impacts, but the Victorian state government has taken no action. By attempting to further weaken Commonwealth oversight, the Liberal party is seeking to use a back door to undermine the already weak Commonwealth environmental protections.
The bill
As outlined in the second reading speech tabled in the chamber, the Environment Protection and Biodiversity Conservation Amendment (Regional Forest Agreements) Bill 2020 is explicitly intended to protect the native forest logging industry from the consequences of the Federal Court’s decision. Senator McKenzie stated in her second reading speech:
I introduce this Bill to make changes to the EPBC Act following the recent finding of Justice Mortimer's Federal Court decision in Friends of Leadbeater's Possum Inc v VicForests (No 4) [2020] FCA 704 that logging operations in certain areas of forest in Victoria's Central Highlands failed to comply with the Victorian Code of Practice for Timber Production, a requirement under the Regional Forest Agreement, and therefore that the exemption under the EPBC Act no longer applies.
The decision of Justice Mortimer has created ambiguity with respect to the provision of the EPBC Act that this Bill seeks to amend. This must be addressed expeditiously or else we will see continued uncertainty for forestry operations.
While Senator McKenzie has attempted to frame her proposed amendments as ‘clarifying’ the legislation; in fact, it would represent one of the most significant and devastating changes to the EPBC Act since its passage. As Friends of Leadbeater’s Possum noted, this 'amounts to nothing less than abrogation of the Commonwealth’s duty to protect Matters of National Environmental Significance (MNES)'.
Similarly, the Environmental Defenders Office noted multiple reasons why the description of the bill provided by Senator McKenzie is not accurate, and why it would in fact create a significant loophole in Australia’s already too-weak environmental protections:
An exemption from the requirement to obtain approval under the EPBC Act is contingent upon certain assurance to the Commonwealth that an certain or equivalent standard of environmental protection can be met. Therefore, subsection 38(1) is intended to require compliance with an RFA as assurance for providing an exemption to the requirement to seek approval under the EPBC Act.
Indeed, this was the position argued by the Commonwealth in Friends of Leadbeater's Possum Inc v VicForests (2018) 260 FCR 1, when the Court first considered the circumstances in which the EPBC Act exemption would cease to apply. The Commonwealth submitted – and the Court accepted – that the EPBC Act ‘carve out’ was to operate by reference to two factors: first, that there is an RFA in force; and second, that the particular RFA forestry operation is taken ‘in accordance with', or ‘consistently with’ that agreement. VicForests on the other hand contended that the exemption applies to all forestry operations that fall within the statutory definition of an RFA forestry operation. That is the position being pursued by the EPBC Amendment (RFA) Bill, and one that the Commonwealth argued against in Leadbeater's Possum v VicForests (2018) 260 FCR 1.
We do not agree that the court’s interpretation of section 38(1) in Friends of Leadbeater’s Possum Inc v VicForests is incorrect. The case was an opportunity to test the operation of subsection 38(1) (albeit with respect to a particular set of circumstances), and the Court construed the proper and intended operation of s38(1), including by reference to the text, context and purpose of the EPBC Act and the RFA Act. The Court’s findings should be accepted.
Similarly, Lawyers for Forests noted that:
Removing the words “that is undertaken in accordance with an RFA” from section 38(1), as proposed in the Bill, removes a critical requirement and environmental protection for logging in RFA areas.
The NSW Young Lawyers Environment and Planning Committee echoed those concerns:
The Committee considers that the outcome of the Leadbeater’s Possum case does not provide a justification for the proposed amendments. Contrary to the stated intention of the Bill, the amendments would not “remove the legal uncertainty surrounding Australia’s native forestry industry”. Under the existing law, forestry operators can continue to benefit from the section 38 exemption so long as their activities are undertaken “in accordance with” the relevant RFA. As it stands, the Leadbeater’s Possum decision may prompt forestry operators to review their compliance to ensure that they are meeting their obligations and do not ‘lose’ their exemption.
In its current form, the Bill would only serve to weaken the level of environmental protection of Australian forests and wildlife, as it would exempt forestry operations from federal environmental controls, irrespective of whether they are being undertaken in accordance with the applicable RFA or not.
A need for greater environmental protections
Senator McKenzie and the native forestry industry are seeking to weaken environmental laws that are already failing to protect precious species and ecosystems. This was recognised in the final report of the Independent Review of the EPBC Act. As the final report concluded:
The Review considers that the environmental considerations under the RFA Act are weaker than those imposed elsewhere for MNES and do not align with the assessment of significant impacts on MNES required by the EPBC Act. Submissions from stakeholders indicated concern around the effectiveness of the RFAs to protect threatened species that rely on the forest areas covered by RFAs. There is also great concern that the controls on logging within forests have not adequately adapted to pressures on the ecosystem such as climate change or bushfire impacts (WS 2020).
There is insufficient Commonwealth oversight of RFAs and the assurance and reporting mechanisms are weak. The RFA Act requires agreements to be subject to a 5-yearly review process but those reviews have been consistently late by an average of approximately 3 years. The first RFA to be signed was not reviewed until 13 years after the commencement date. All RFAs have been progressively extended as their initial 20-year term came to an end, rather than renegotiated from scratch. The extended RFAs included some incremental improvements, including mandating annual meetings between State and Commonwealth officials responsible for administering the RFA Act, to consider compliance issues and the overall performance of the RFAs. The outcomes of each meeting are released via a public communiqué.
The RFAs rely solely on the States to undertake surveillance, compliance and enforcement … The EPBC Act does not require reporting on the environmental outcomes of activities conducted under RFAs. The Review considers that Commonwealth oversight of environmental protections under RFAs is insufficient and immediate reform is needed.
That review specifically recommended that the government should 'Increase the level of environmental protection afforded in Regional Forest Agreements'.
A joint submission by multiple environmental groups highlighted that RFAs have failed on multiple fronts; both to provide adequate environmental protections, as well as failing to guarantee job security. Any pretense of Commonwealth oversight has completely vanished:
…since RFAs commenced 20 years ago:
12 forest vertebrate fauna species have been up-listed to the ‘Endangered’ or ‘Critically Endangered’ categories;
More than a quarter Federally-listed forest dependent species that were listed when the RFAs were signed have moved closer to extinction;
15 forest vertebrate fauna species have been listed as threatened for the first time; and
The CAR Reserve System is based on outdated science and technology. Additionally, many of the accredited CAR reserves (‘informal reserves’) lack any secure protection.
In addition, major oversight and accountability mechanisms of the RFAs have repeatedly failed:
Five-yearly reviews have been consistently late by three years on average. The first RFA to be signed in 1997 was not reviewed until 2010, 13 years after it was signed; and
The recent Federal Court ruling that found that state-owned logging agency VicForests breached the code of practice under the Central Highlands RFA and therefore was not exempt under the EPBC Act 1999, has profound implications for the RFAs. It throws into doubt the legality of the exemption for all RFAs.
The needs of the industry have not been met, with sawmill closures, job losses, and a reduction in wood volume availability (due to mismanagement and the impacts of successive bushfires, which in themselves are now more frequent and severe due to the impacts of logging). Certainty for the industry in the publicly-owned native forest estate has proved elusive despite more than two decades of RFAs and an unnecessary and environmentally damaging exemption from national environment law—which is provided to forestry, unlike any other industry, on a rolling, decades-long basis.
The scientific evidence
Evidence was presented by key experts in the field that the activity of VicForests clearly breached the RFAs governing it, and that it had devastating environmental impacts. As Professor Lindenmayer summarised in his testimony:
Today I want to present evidence that VicForests has been illegally logging forests on steep slopes since 2004. Here is the paper that has just been published on this in an international journal. In fact, 75 per cent of logging coupes in the upper Goulburn catchment exceed the 30-degree slope limit. That is 160 coupes out of 214, including the photograph of the coupe that I showed before. This logging coupe comes in at 37 degrees in slope. That is confirmed in that paper. Seventy-two per cent of logging coupes also have extensive breaches of codes of practice because logging exclusion zones have been cut. That is documented in that paper. The Office of the Conservation Regulator examined the set of breaches of the case, and it indicates that these are breaches of the law and therefore breaches of the RFA …
These breaches are not minor. In the upper Goulburn catchment, we have assessed 214 cut blocks since 2004. Of those, 74.7 per cent had slopes exceeding 30 degrees, and 15.4 per cent of logging coupes—that's 33 logging coupes—had more than 10 per cent of their cut area exceeding 30 degrees. The Office of the Conservation Regulator has indicated that that kind of logging is illegal. It breaches the codes of practice and it threatens the integrity of the water supply in those important water catchments, for human consumption and for agriculture and the like. We also see extensive—72 per cent of logging coupes have logging exclusion zones that have actually been logged. Sometimes those areas exceed more than 10 hectares in size, or 33 per cent of the cut block. So it's clear that VicForests is not adhering to the codes of practice, and that's not only in the context of steep slopes breaches, which are widespread; that has also been ruled on by the Office of the Conservation Regulator. VicForests is supposedly implementing variable retention harvesting, but most of the coupes do not conform to what is considered to be variable retention harvesting.
Similarly, Professor Lindenmayer summarised in his submission:
The Regional Forest Agreements were designed to protect Australia’s forest biodiversity. They have clearly failed to do this (Lindenmayer et al. 2015) (Lindenmayer 2018). This is highlighted by significant declines in a large number of Australian forest-dependent threatened species. For example, populations of Leadbeater’s Possum and the Greater Glider have declined by 50% and 80% in the past 20 years. The extent of logged forest in the landscape has been demonstrated to be a key driver of decline in both species (Lindenmayer et al. 2020a). At the same time there has been major declines in an array of forest-dependent bird species (Lindenmayer and Sato 2018).
Other considerations
In addition to the profound environmental issues raised by the proposed bill, a number of other concerns were also raised.
Health impacts
In their submission, Doctors for the Environment Australia noted that:
As medical doctors, we know that protection of our forests is essential for health. Forests release oxygen to the atmosphere and draw down pollutants to maintain our air quality. They also act as vital carbon sinks in the face of climate change with Australia having some of the most carbon-dense forests on Earth. Climate change has been recognised as the greatest health threat facing us this century.
In addition, forests increase the amount of water entering the soil, thereby regulating the water table…
Preservation of native habitat is also important for highly mobile pollinators such as birds and bats that disperse pollen over large areas, thereby increasing genetic variation in plant populations. This builds resilience in ecosystems, increasing their capacity to adapt to pressures from anthropogenic change…
Forests also serve as vital places for recreation and physical and psychological restoration…
Moreover, protected forests provide places for healthy long-term jobs in the spheres of eco-tourism, recreation, education, research and health interventions.
As they concluded, 'Replacing the vast array of ecosystem services forests provide to our health would be extremely costly, if not impossible'.
A just transition for forestry workers
The industry’s failure to plan for a just transition for forestry workers has devastating implications for workers in the sector, given the current approach is not ecologically sustainable. As the Rural Futures Taskforce Report (2018) noted:
The Agriculture, Forestry and Fisheries (AFF) sector is one of the most important in Australia … [and] will experience significant changes in the number and types of jobs available over the next decade … For this sector to continue sustainably into the future, additional support, funding and regulation is needed …'
A just transition must ensure that forestry workers are able to transition to secure, well-paid roles in plantation forestry, or other similar roles. This can ensure sustainable jobs are available in activity that boosts local economies, protects the environment, and sustains regional communities. For example, in NSW the National Parks Association has proposed a plan titled Forests For All, setting out an 'alternative approach to forest management':
It seeks to promote increased public access to forests to realise and share the economic, social and health benefits from greater access to and use of public native forests, including opportunities for new tourism and recreation industries, within primarily NSW regional communities.
Despite the need for this transition, key leaders in the sector have failed to plan for it. In fact, a number of witnesses were unable to differentiate between employment in native forestry logging and plantation forestry, a crucial distinction for understanding the genuine impact of employment in native forestry logging (Transcript p. 54 onwards). Rather than the massively inflated claims that tens of thousands or even hundreds of thousands of jobs were potentially being impacted by stronger environmental protections, which were quoted in the Committee’s report , the best evidence in relation to Victoria indicate that native forest logging (as distinct from plantation forestry) employed only around 1639 people in 2017.
Australia’s international reputation
In addition to the significant concerns raised above, a number of witnesses highlighted that the destruction of environmental protections in the bill, if passed, would significantly damage Australia’s international reputation.
As Professor Lindenmeyer noted, passage of the bill: '...would be a massive own goal for the industry, because what will happen is that the environmental credentials internationally of the forest industry will be savagely eroded. We have already seen Australia as a pariah in the carbon space, and the next cab off the rank will be our appalling record on biodiversity decline, and that's a huge concern'.
The Department of Agriculture, Water and the Environment also noted that:
Legal challenges of the nature of FOLP v Vicforests may be brought under the current RFA framework. However, the alternative, as proposed by the McKenzie Bill, may bring into question the environmental legitimacy of the RFA framework and give rise to greater risks, such as reputational risks to Australian forest management at the domestic and international level.
Recommendation
That the bill not be passed.
Recommendation
That the Australian Government implement the recommendation of the Independent Review of the EPBC Act, to increase the level of environmental protection afforded in Regional Forest Agreements.
Recommendation
That the Australian Government abandon attempts to delegate environmental protection to state governments.
Recommendation
That the Australian Government take urgent action to end native forest logging, and protect Australia’s precious native forests, and to complete the transition of the wood products industry in Australia to be 100 per cent plantation based.
Senator Sarah Hanson-YoungSenator Janet Rice
Deputy ChairParticipating Member