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Senator Brown has applied to the High Court for special leave to appeal in the Wielangta Forest case. He won at trial but the Full Court overturned the decision. Now it is up to the High Court, if it decides to take on the case. The Court hears very few cases each year but Senator Brown has put a strong argument as to why this should be one. The High Court has never considered the construction of the Commonwealth’s premier environmental legislation, the Environment Protection and Biodiversity Conservation (EPBC) Act, which is at the heart of the Wielangta case. Furthermore, as our application says:
If the Regional Forest Agreement only required …that plans be made [to protect listed threatened species]…then the EPBC Act fails wholly to achieve its objects in this respect and Australian native species whose habitat, survival and population recovery happen to be affected by the forest industry rather than another kind of development are relegated to lesser forms of protection than that enjoyed by other native species.
There will be a short hearing in the High Court before it decides whether to hear Senator Brown’s appeal. This is likely to be before mid-year.
Read the submissions to the High Court here: [link to each of the attached pdfs]
This epic case has been before the courts for nearly three years and in preparation for two years before that. At stake is the survival of wildlife threatened by logging and the reach and effectiveness of the federal government’s environmental laws.
Is it the case, as Justice Marshall concluded at the end of the trial, that ‘protect’ in the Regional Forest Agreement (RFA) means really protect. Or is it the case as the Full Federal Court decided, on appeal, that the RFA was not intended to guarantee that the environment, including threatened species, would not ‘suffer’ as a consequence of continued logging.
In legal terms, the issue comes down to the words ‘in accordance with’ in s 38 of the EPBC Act. This is the section that exempts RFA forestry operations from federal environmental scrutiny if they are carried out ‘in accordance with’ the RFA. The question is: should the phrase be read as meaning ‘does not apply’ (as the Full Court held) or ‘consistently with’ (as the trial judge held). If the latter, RFAs can impose requirements as to how forestry operations must be conducted.
The fate of the three species at the centre of this case hangs in the balance. The Tasmanian Wedge-tailed Eagle, the Swift Parrot and the Wielangta Stag Beetle are all federally listed endangered species living in the Wielangta Forest on Tasmania’s east coast. The trial judge found that all were significantly impacted by Forestry Tasmania’s current and planned logging. This decision stands, as does the finding that Forestry Tasmania manipulated the evidence before the court.
This case, brought by Senator Brown as an individual, has only been possible with the support of hundreds of generous donors, the dedication of expert witnesses, and a brilliant legal team. It has exposed Forestry Tasmania to unprecedented scrutiny and put the Commonwealth’s environmental laws on trial.
Now the High Court must decide whether to grant special leave for an appeal.
30 May 2005
Senator Brown applies to the Federal Court for an injunction to prevent logging in two Wielangta coupes to protect the Wielangta Stag Beetle
June 2005
Injunction refused (logging began in coupe 17E at 4 am the following morning) but Forestry Tasmania agreed to defer other logging until after the court case
August 2005
Federal and state government apply to intervene in the case in support of Forestry Tasmania
December 2005
Trial begins (followed by 33 days of hearings finishing in May 2006)
August 2006
Final submissions
December 2006
Justice Marshall rules the logging illegal because of the impact on endangered species and orders that no forestry operations be undertaken in Wielangta unless the court permits
February 2007
Forestry Tasmania appeals to the Full Federal Court against virtually the entirety of the trial judgment. The state and federal governments again intervene to support Forestry Tasmania
February 2007
The Tasmanian RFA is amended by agreement between Prime Minister Howard and Premier Lennon in response to the Wielangta decision. In particular, cl 68 in which the state agreed to protect endangered species is re-written
August 2007
Full Federal Court appeal hearing (five days before three judges)
November 2007
Full Court judgment overturns the trial decision saying that RFAs give no guarantee that the environment including endangered species would not ‘suffer’ as a result of logging. Moratorium on logging in Wielangta removed.
January 2008
Senator Brown applies to the High Court for special leave to appeal
February 2008
High Court submissions lodged
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