typing is not activism….

environ mentalism, fresh articles, interviews & checkitouts from Sydney.

Another unappealing Australian forestry decision

with 6 comments

A crucial, complex, and under-reported court battle for Australian forests and endangered species came to a head in late November, as three judges of the Federal Court overturned a decision which had previously seen Greens Senator Bob Brown triumph over the state government of Tasmania, Forestry Tasmania, and the federal government.

Brown has been in court for the last two years, fighting to establish an important understanding of Australian environmental law by arguing about the way it should apply to endangered species in Tasmania’s Wielangta Forest.

The major piece of environmental legislation in this country – the Environment Protection and Biodiversity Conservation Act (EPBCA) – has, in practice, been excluded from all forests governed by Regional Forest Agreements (RFA) between the state and federal governments. In essence, this means that any forest being logged with state approval is exempt from the protections of this particular law.

Brown’s argument – previously upheld in December of 2006 – was that the EPBCA was only excluded because the RFA was meant to confer federal responsibilities for species protection to the state authorities, by virtue of the RFA. Where these responsibilities were not honoured in practice, Brown argued, the RFA was invalidated and endangered species provisions of the EPBCA must therefore be applied.

While the appeal judges seemed to agree that logging in Wielangta has a significant and unacceptable impact on endangered species, they overturned the key finding of last year’s decision, supporting instead the conclusion that areas of logging are exempt from protection other than that deemed necessary by departments of forestry under agreement with state and federal governments.

“It’s a case of the law intends to protect endangered wildlife but if Canberra and Hobart ignore logging which endangers their existence, they can,” Senator Brown said.

“I will ask both Prime Minister Rudd and Peter Garrett to put the Howard years of indifference behind and insist these habitats be protected as the law intends,” said Brown. “I have also asked my barristers to weigh up the obvious grounds for an appeal to the High Court – this nation’s natural heritage depends on us taking action.”

Bob Gordon, Managing Director of Forestry Tasmania took a different view of the decision’s significance.

“Propaganda put out by extreme elements in the anti-forestry movement claimed we were somehow acting outside the law,” said Gordon. “This has been an expensive, emotionally draining and time consuming exercise – but it has been worth it. There is now no doubt that our forest operations are legal.”

Of course, there is still doubt. Unlike Forestry Tasmania and the two governments they are joined by, Brown has not had the benefit of departmental budgets or tax moneys to fight his battle – a battle which is not yet over.


Written by typingisnotactivism

December 9, 2007 at 8:31 pm

6 Responses

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  1. “Emotionally draining” for Bob Gordon and his cohorts. Oh the poor dears! Doesn’t one’s heart bleed for them!

    Neil Smith

    December 13, 2007 at 10:14 pm

  2. Actually the appeal judges did not agree that “logging in Wielangta has a significant and unacceptable impact on endangered species” despite many claims that it did so or seemed to do so in various places. Rather, this was one of a number of issues the court declined to examine on the grounds that it was not relevant to the appeal as “Our conclusion on s 38 of the Act makes it unnecessary to examine the grounds of appeal disputing the primary judge’s findings about the degree of protection provided by CAR to the three species.” [103]

    The full bench goes on to severely criticise Marshall J for considering these issues in the first place:

    “[103]This aspect of the case at first instance occupied most of the 33 sitting days, together with views. In the events that have happened, a great deal of time and much expense has been devoted to investigating matters that have turned out not be determinative of any relevant issues. These include issues 1, 3 to 7 and 9(b). If there was any issue at all that was appropriate for preliminary determination, it was that turning on s 38. Instead many far-ranging issues were, in our view, wastefully explored.

    104 Courts have frequently stressed the caution that must be taken in deciding whether to determine separate questions and issues lest this course leads to increased cost and delay. No caution was on display in this case.”

    So while the courts did not overturn Marshall’s findings on these matters, they ruled that they should never have been examined in the first place and therefore declined to reexamine them. This cannot be spun as an endorsement of those original findings but that has not stopped some from trying!

    The full grounds can be found here: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCAFC/2007/186.html?query=title(forestry%20tasmania%20v%20brown)

    Kevin Bonham

    January 7, 2008 at 10:23 am

  3. Hi Dr. Kevin

    I’m genuinely delighted that you not only swung by but also threw in your 2 cents worth. But the summary, as you know, does not necessarily reflect or include detail of discussions in court prior to the determination. Court reportage at the time, as far as I was aware, indicated that some of the honourable judges indicated that logging in Wielangta etc… but that it was not relevant etc…

    If the Minister is not going to do their job in relation to detailed and thorough consideration of complex matters, and forestry regulation in Australia is going to continue with the pedantic folly of CAR systems managed and allocated by people with no field experience guided by outdated and inappropriately applied JANIS criteria for conservation by acceptable percentage, then I think that Justices like Marshall who actively honour the principle of separation of power are to be commended – rather than derided for having the nerve to give a damn and make a difference.

    I find it interesting and irksome that you are more triumphant over your debunking of the supposed green spin than outraged over the horrific games played by politicians legislating to annull court findings and original legislative intent.


    January 9, 2008 at 12:37 am

  4. I saw very little court reportage of the appeal, and this is even though I have access to a daily compilation of reprints of articles concerning environment/forestry issues from Australian metro papers. However, if there was something casting any further light on the full bench’s views of the logging itself, I’d be interested to see it.

    As for legislative intent, Marshall J seems to reckon you can work out what a law means using constructions of language abstracted from ideological agreements Australia has decided to pay lip service to. A better test of original intent is: “if the pollies who originally passed legislation X had forseen interpretation Y, would they have run a million miles from it?” And in this case I’m sure they would, so the patch-up job seems a lot closer to “original legislative intent” than was Justice Marshall’s findings. Hence I feel no outrage at the current state of play – at most bemusement at the clumsy inability of lawmakers to make the law say what they mean it to say the first time round.

    As for CAR, any notion that it has anything to do with threatened species (beyond the serendipity that if you reserve enough of anything you’ll pick up the habitat of quite a few allegedly-at-risk critters) has always been a fiction, and I’ve said so, now and then, right from the start. The question then is whether the state threatened species systems are doing the Commonwealth’s job for it to the Commonwealth’s satisfaction. And over time, it will be the Commonwealth and not the judges who determine that – whatever the outcome of the appeal v the appeal.

    (Usual boring disclaimer as frequently seen on TT applies.)

    Kevin Bonham

    January 11, 2008 at 9:32 pm

  5. It’s an interesting line to take.
    ——- A better test of original intent is: “if the pollies who originally passed legislation X had forseen interpretation Y, would they have run a million miles from it?” ——-
    While I can certainly see how this would be a useful test to apply, I think that in the majority of likely applications in situations involving environmental law, the answer will be ‘yes’. This is in part due to the discipline’s youth – 40 years since Silent Spring, roughly 60 years since the first big decisions about transboundary pollution and dumping at sea. So these jokers in Canberra write the EPBC Act by amalgamating a number of international treaty obligations into one piece of overarching and somewhat enfeebled legislation – as was intended. If the outcome of that law being interpreted – as Marshall accepted – is that state-level practices must honour international obligations or else be deemed unacceptable, then the law works. The Administrators had a go. The Executive failed. The Judiciary steps in. Problem solved. But when an issue is finally addressed, as was the case in Wielangta, if the Administrative branch just pulls up stumps and says that’s it for this pitch, we’re going to play somewhere else, then justice itself is a farce of greater proportions than the writers of the Magna Carta intended and THAT is something we should run a mile from.
    The Nathan Dam Case, for example, created perfectly acceptable case law. Yet the possibility of that valuable finding ever being applied again in future was extinguished under the orgy oof amendments pushed through by Campbell shortly before he got the arse over his choice of conversation partners.
    The Commonwealth takes longer to scratch its head than reefs take to bleach. Screw that for a joke. There are a number of perfectly effective tools in place so that people with greater concern and knowledge and integrity than the state or commonwealth can step into some of the voids created by the whorish jalopies of state level maladministration. To watch those tools dismantled and damaged beyond use while sitting back and calmly dismissing the whole thing as a matter to be resolved in time by the great human-decreed powers seems like a less than titty-throbbing course of action.


    January 12, 2008 at 2:47 am

  6. It’s interesting to see that it didn’t take Forestry Tasmania long to open up some of the more sensitive parts of the Wielangta’s to the loggers’ chainsaws and coups. I wonder if there’ll be additional areas opened up for the new pulp mill.

    Alex Schlotzer

    July 30, 2008 at 2:51 pm

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