3rd May, 2008
In a 2 - 1 split judgement (Crennan, Hayne - Kirby) the High Court has rejected Greens Leader Bob Brown's application to appeal against the full Federal Court's decision which overruled Justice Marshall's 2006 ban on logging in Tasmania's Wielangta Forest.
Justice Marshall found that logging under Forestry Tasmania's management damaged the habitat of 3 nationally-listed endangered species, the Swift Parrot, Wielangta Stag Beetle and giant Tasmanian Wedgetail eagle.
Two months after Justice Marshall's ban, then Prime Minister Howard and Premier Lennon altered the Regional Forest Agreement to agree that, despite the court, it did protect the rare species. The High Court effectively ruled today that this alteration, which has no parliamentary approval, overrode Justice Marshall's judgement.
"Today's ruling failed the nation's environment. Prime Minister Rudd should revoke the Howard-Lennon change to the RFA which pulled the rug from under the court process," Senator Brown said.
"Prime Minister Rudd and his Environment Minister can and should save the species being hounded to extinction by the logging and burning of Australia's wild forests," Senator Brown said.
The Court, citing the public interest, did not award costs against Senator Brown. However he now faces costs of some $200,000 from the Federal Court proceedings in 2007.
Further Information: Ebony Bennett 0409 164 603
High court submissions, click to download the Pdf documents below:
2008 Initial submissions
2008 Forestry Tasmania 's response
2008 Bob Brown's submissions in reply
A SHORT HISTORY OF THE WIELANGTA FOREST CASE
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
|
