Brown v Forestry Tasmania - [2006] FCA 1729 - FCA 2006 case summary — Zoe

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Brown v Forestry Tasmania

[2006] FCA 1729

Federal Court of Australia|2006-12-19|Before: Marshall J

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Court

Federal Court of Australia

Decision date

2006-12-19

Before

Marshall J

Source

Original judgment source is linked above.

Judgment (134 paragraphs)

[1]

SUMMARY ROBERT BROWN v FORESTRY TASMANIA, COMMONWEALTH OF AUSTRALIA AND STATE OF TASMANIA TAD 17 OF 2005

[2]

1 In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the Court's reasons for judgment published today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authorative statement of the Court's conclusions is contained in the reasons for judgment which will be available on the internet at http://www.fedcourt.gov.au. This summary will also be available on the internet. 2 The proceeding involves an application by Senator Brown made under s 475 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ('EPBC Act') concerning alleged contraventions of s 18(3) of the EPBC Act by Forestry Tasmania. Senator Brown has alleged that Forestry Tasmania's forestry operations and proposed forestry operations in the Wielangta State forest are prohibited in the absence of approval by the relevant Commonwealth Minister. It is said that this is because the forestry operations have had or will have a significant impact on three threatened species. Those species are the Tasmanian wedge-tailed eagle, the broad-toothed stag beetle and the swift parrot. 3 The hearing took place over 33 sitting days in Hobart. In addition, the Court conducted site visits over one and a half days at Wielangta and Bruny Island. 4 The Court granted leave to intervene in the proceeding to the Commonwealth and the State of Tasmania, but only with regard to certain issues in an agreed list of issues filed by the parties. 5 The Court agreed that it would provide answers to the agreed issues in a judgment and then hear submissions later about the orders which should be made as a result of those answers. 6 In this judgment, the Court has set out the likely extent of forestry operations in the Wielangta area beyond August 2008 and identified which part of the Wielangta area will be, or is likely to be, subject to forestry operations by Forestry Tasmania in the next 15 years or so. 7 The Court has also identified the extent to which each of the beetle and the parrot is present, or is likely to be present, in the Wielangta area and the extent to which the eagle has nest sites in or adjacent to coupes within the Wielangta area. 8 The Court has found that the forestry operations and proposed forestry operations of Forestry Tasmania in the Wielangta area are likely to have a significant impact on all three species, having regard to their endangered status and all other threats to them. 9 The Court has also found that the Regional Forest Agreement ('RFA') between the Commonwealth and the State of Tasmania is an 'RFA' within the terms of the Regional Forest Agreements Act 2002 (Cth) ('RFA Act'). 10 However, the Court has found that Forestry Tasmania does not have an exemption from relevant provisions of the EPBCAct by virtue of exemption provisions in s 38 of that Act and s 6(4) of the RFA Act. This is because the Court has formed the view that the relevant forestry operations will be, and have been, carried out otherwise than in accordance with the RFA. 11 It will be necessary to allow the parties and the interveners time to reflect on the reasons for judgment and to program the hearing of any further submissions concerning the content of any orders the Court may make as a consequence of the reasons for judgment. For that purpose, a directions hearing will be held at 10am tomorrow, Wednesday, 20 December 2006.

[19]

34 Mr Michael Miller is employed by Forestry Tasmania as the Planning Co-ordinator for the Derwent District. Wielangta is within the Derwent District. Mr Miller acknowledged that the Three Year Wood Production Plans identify a series of contingency coupes which can be 'brought on line' at short notice if the need arises. Mr Miller also said that the Plans are the best prediction available for what will occur within a three year time frame. 35 Forestry Tasmania acknowledges there are areas of State forest within the Wielangta Forest Block, constituting about 10 per cent of the Block, which are potentially available for harvesting in the future. This is because there are unharvested areas within the Wielangta area which are referred to in relevant mapping as 'provisional coupes'. 36 The applicant points to 11 coupes provisionally planned for logging operations between 2008 and 2013. He also refers to many other provisional coupes which are available to be logged after 2013, or before then, if Forestry Tasmania varies its production plans. 37 The applicant submits there are 17 coupes in the Wielangta area that are provisionally scheduled for harvesting between now and 2013. He contends that while the total number of hectares for each coupe to be logged cannot be known until a Forest Practices Plan is certified by Forestry Tasmania, or even perhaps until the operations are completed, the history of logging in the area points overwhelmingly to the conclusion that provisional coupes will be logged over the next 10 years. 38 The Wielangta area has been a constant source of wood products for many years. There is no reason to suggest, particularly having regard to the evidence of Mr Kelley, that Forestry Tasmania no longer desires that it be a source of wood products. A map tendered in the proceeding and labelled exhibit BQ shows the scheduling of coupes in Wielangta until 2013. 39 Forestry Tasmania contends that in the absence of any current certified Forest Practices Plans, or other evidence of proposed forestry operations, it would be mere speculation to make any findings about the likelihood of forestry operations in the Wielangta area beyond August 2008. 40 To deal with an agreed issue titled 'the likely extent of forestry operations in the Wielangta area beyond August 2008', necessarily involves the Court looking to likely future conduct. The best guide to future conduct is past conduct. The past conduct of Forestry Tasmania in using the Wielangta area as a source of wood products and its planning to do so in the future makes it reasonable to predict that, in the ordinary course of events, forestry operations will occur in the Wielangta area beyond August 2008. In all likelihood, on current planning, this will extend to 2013 and perhaps beyond then.

[25]

Are the relevant forestry operations capable of constituting an 'action' under the EPBC Act? 45 Chapter 8 of the EPBC Act is headed 'Definitions'. Sections 523, 524 and 524A deal with what is and what is not an 'action' for the purposes of the EPBC Act. 46 Under s 523, action 'includes' a project, a development, an undertaking, an activity or series of activities and any alteration of any of these things. There is no reason to doubt that forestry operations would fall within s 523. 47 Section 524 is headed, 'Things that are not actions' (original emphasis). Under s 524(2), a decision by a government body to grant 'a governmental authorisation (however described) for another person to take an action is not an action' (original emphasis). Section 524(1) defines 'government body', in s 524(1)(e), to include 'an agency of a State…'. 48 As Black CJ and Moore J said in Save the Ridge Inc v Commonwealth and Another (2005) 147 FCR 97 ('Save the Ridge'), 105 at [19]: 'The apparent purpose of s 524 is to take the process of authorisation by governments or government agencies outside the purview of the EPBC Act by excluding certain decisions by those bodies from the concept of relevant "action".' 49 Forestry Tasmania is an agency of the State of Tasmania. It submits that as such it has granted to Gunns Limited ('Gunns') a 'governmental authorisation' under s 524(2) to conduct forestry operations in coupes 17E and 19D. It relies on Save the Ridge where a Full Court of this Court held that Ministerial approval and gazettal of changes to the National Capital Plan of the Australian Capital Territory, necessary to permit the construction of a road, was a decision of a Commonwealth agency to grant a governmental authorisation to the Australian Capital Territory. Forestry Tasmania contends that an authorisation, when issued by a government body, will be a 'governmental authorisation when issued by the governmental body in its capacity as such' under s 524(2) of the EPBC Act. 50 Forestry Tasmania says the Forest Practices Plans for coupes 17E and 19D constitute the formal documents by which it authorised Gunns to conduct forestry operations. It submits that on this ground alone the application before the Court must fail. 51 The applicant contends that the submission of Forestry Tasmania referred to above depends on a characterisation of Forestry Tasmania's actions ('that is, logging, roading and the like') not as the physical activities involved, but as a product of a process where it authorises such activities to occur. 52 The applicant submits that his case is not directed to, and does not seek to impugn, the granting of any authorisation by Forestry Tasmania but is directed to the carrying out of forestry operations, which are actions within the EPBC Act and are not governmental authorisations. 53 On this aspect of the proceeding, I prefer the applicant's submission. Save the Ridge is distinguishable because the attack in that case was on the steps taken to amend a plan which would authorise the construction of a freeway extension. There was no attack on the construction of the freeway extension. Here, there is no attack on a Forest Practices Plan, but on the work which is planned to take place under a Forest Practices Plan. 54 Further, it is not to the point that the actual forestry operations will be undertaken by Gunns, or sub-contractors to Gunns, when s 8(1)(c)(i) of the Forestry Act vests in Forestry Tasmania exclusive management and control of all State forest. See also Coote v Forestry Tasmania (2006) 227 ALR 481 at 487, per Gummow J. 55 The Commonwealth, which was granted leave to intervene with respect to issue two, did not support the submission of Forestry Tasmania on the application of s 524(2) of the EPBC Act.

[26]

Should the Court decline to make findings about proposed forestry operations in coupes other than 17E and 19D? 56 Gunns completed harvesting in coupe 17E on 16 August 2005. Mr Alec Dean, the then supervising officer from Forestry Tasmania, signed the final Forest Harvesting Monitoring Report on 25 August 2005. There is a current certified Forest Practices Plan for coupe 19D. It estimates that harvesting would have been completed by 30 June 2006. This proceeding ensured that did not happen. The Forest Practices Plan for coupe 19D expires on 31 August 2008. Implementation of that Plan will see the completion of roading and the harvesting of trees in the coupe. Roading is intended to be carried out by Gunns and harvesting by a contractor engaged by Gunns. 57 Forestry Tasmania contends that the applicant does not allege any forestry operations, other than the harvesting of trees and road construction potentially conducted by it, as causing a significant impact on any of the species the subject of the proceeding. 58 Forestry Tasmania submits that no evidence has been led by the applicant concerning forestry operations undertaken by it at any other coupes at Wielangta. Consequently, Forestry Tasmania contends that the Court should not make any findings in relation to any coupes, other than 17E and 19D. 59 The applicant contends that Forestry Tasmania has misunderstood his case. He submits that apart from the effect of roading and harvesting, he has adduced evidence of the impact on the broad-toothed stag beetle of regeneration burns and machinery disturbance and the impact on the Tasmanian wedge-tailed eagle caused by general human activity associated with forestry operations. 60 The Commonwealth, supported on this aspect of the proceeding by the State of Tasmania, also contends there is no meaningful evidence before the Court concerning the precise scope, location or timing of any 'proposed forestry operations' except in respect of coupes 17E and 19D. 61 The Commonwealth submits that in the absence of sufficient detail about proposed forestry operations, it would be inappropriate for the Court to determine whether such proposed operations are actions for the purposes of s 523 of the EPBC Act. 62 This approach complicates a simple issue. The forestry operations in coupes 17E and 19D constitute an action for the purposes of the EPBC Act. Forestry operations conducted and to be conducted in those coupes fit within the definition of 'action' in s 523. When forestry operations which are proposed to be carried out in other coupes are actually carried out, those operations will also constitute an action within s 523. Additionally, insofar as coupes have been identified as available for harvesting in the medium term such as in exhibit BQ and exhibit S, such planning is 'a project' under s 523. 63 On one view, the actual or likely impact of any proposed forestry operations outside coupes 17E and 19D is a different issue from whether forestry operations in the 11 coupes planned provisionally for harvesting between 2008 and 2013 also constitute an action for the purposes of the EPBC Act. However, it is artificial to seek to break down the forestry operations of Forestry Tasmania in Wielangta into a series of individual actions and thereby avoid scrutiny under the EPBC Act. I accept the submission of counsel for the applicant that the relevant 'action' for the purposes of this proceeding is Forestry Tasmania's forestry operations in Wielangta. Although there are varying degrees of certainty concerning the extent of forestry operations in individual coupes, there is evidence that harvesting operations are planned for Wielangta up to and including 2013. 64 Areas of Wielangta which are planned to be harvested have been assigned provisional coupe numbers. As at 25 October 2005, Forestry Tasmania's 'current tactical plan' identified the following coupes as being available to be logged 'post 2007': 9F, 12C, 19B, 43E, 10G, 17D, 19C, 44A, 10B, 17F and 19E. Additionally, Forestry Tasmania's Three Year Wood Production Plans 2004-2005 to 2006-2007 refer to coupes including 19C, 19D, 42C, 44G and 43I. 65 I accept the submission of counsel for the applicant that the provisional couping of Wielangta is analogous to the concept of sub-dividing land for the purpose of performing work on that land. The activities in total constitute a 'project' for the purposes of s 523(1)(a) and/or an undertaking for the purposes of s 523(1)(c) and/or an activity or series of activities for the purposes of s 523(1)(d) of the EPBC Act.

[38]

Significant impact 91 Mr Mooney's evidence supports the view that the forestry operations in Wielangta in coupes 17E and 19D and the proposed forestry operations in Wielangta in coupes other than 17E and 19D are not likely to have a significant impact on the eagle, having regard to its endangered status and all other threats to the eagle. However, despite that view, a question arises about whether, as a matter of law, an impact may be significant because of its 'cumulative' or 'potential' impacts; see Minister for Environment and Heritage v Queensland Conservation Council Inc and Another ('Queensland Conservation Council')(2004) 139 FCR 24 at [60]. 92 As a Full Court said in Queensland Conservation Council at [53]: 'It is unhelpful, we consider, to attempt to paraphrase the expression "all adverse impacts" in s 75(2)(a) of the EPBC Actby recourse to phrases like "inextricably involved" or "natural consequence". "Impact" in the relevant sense means the influence or effect of an action: Oxford English Dictionary, [2nd ed] 5. As the respondents submitted, the word "impact" is often used with regard to ideas, concepts and ideologies: "impact" in its ordinary meaning can readily include the "indirect" consequences of an action and may include the results of acts done by persons other than the principal actor. Expressions such as "the impact of science on society" or "the impact of drought on the economy" serve to illustrate the point. Accordingly, we take s 75(2) to require the Environment Minister to consider each way in which a proposed action will, or is likely to, adversely influence or effect the world heritage values of a declared World Heritage property or listed migratory species. As a matter of ordinary usage that influence or effect may be direct or indirect. "Impact" in this sense is not confined to direct physical effects of the action on the matter protected by the relevant provision of Pt 3 of Ch 2 of the EPBCAct. It includes effects which are sufficiently close to the action to allow it to be said, without straining the language, that they are, or would be, the consequences of the action on the protected matter. Provided that the concept is understood and applied correctly in this way, it is a question of fact for the Environment Minister whether a particular adverse effect is an "impact" of a proposed action. However, we do not consider that the Environment Minister did apply the correct test in answering the question of fact which had arisen in the present case.' 93 Mr Mooney's definition of 'impact' as embracing effects 'significantly close to allow it to be said that they are the consequences of forestry operations' provides a more limited view of the word 'impact' than that adopted by the Full Court, that is, the influence or effect of an action. 94 Even though forestry operations in Wielangta (in coupes 17E and 19D) and the proposed forestry operations in coupes other than 17E and 19D will cause a loss of breeding and foraging habitat for the eagle which is relatively insignificant in the context of other factors causing loss to such habitat, that loss can still be considered 'significant' in the context of legislation which is designed 'to protect native species (and in particular prevent the extinction, and promote the recovery, of threatened species)…'. Loss of habitat caused by forestry operations, while small when compared to other causes, has a significant impact on a threatened species where 'to protect' is seen as a duty not just to maintain population levels of threatened species but to restore the species. 95 As the applicant submits in his written submissions: '…the ecology and biology of the eagle means that actions in a given area will contribute to a cumulative impact on the species but are highly unlikely ever, on their own, to be capable of affecting the population as [a] whole. To have its intended protective effect, s 18 [of the EPBC Act] must be able to deal with these differences in ecology and biology. It can only do that if the concept of impact includes not only indirect effects, as the Full Court has already found, but cumulative effects as well.' 96 According to Mr Mooney, at the minimum, one of the conservation aims for the eagle is to preserve those parts of its territories across the whole of Tasmania that deliver the best breeding success and that even those areas that are not the best for breeding success should be preserved. He also said: 'Remember that the aim of it should be to maintain an ecologically functioning species, not a museum piece. Not something that's just there to be ecologically functional. The species has to be very near its capacity to be carrying out its roles as an agent of evolution or preying on the sick and the deformed and all the rest of it. The species has to be near its carrying capacity.'

[39]

Mr Mooney acknowledged that the eagle's carrying capacity is 'very widely spread'. 97 In circumstances where the eagle is below its carrying capacity, any increase in disturbance to its nesting activities with resulting losses in fecundity will aid in the decline of a declining species. In context, that is a 'significant impact' in relation to legislation which is designed 'to protect native species (and in particular prevent the extinction, and promote the recovery, of threatened species)…'. 98 As Mr Mooney said, under cross-examination, protection of what is presently undisturbed ought to be given some priority. He went on to say: 'The area is about .5 of 1% of the area of Tasmania but it holds about 1.5% of eagles…measured as territories or nests. So what you have…[in] Wielangta on an average is…a very high value, it's a good spot for eagles.' 99 Mr Mooney considered it was important to minimise disturbance to the six breeding pairs in the vicinity of the Wielangta forest and agreed with the proposition that 'the more forestry operations that occur, the less likely you are to be able to minimise disturbance'. 100 Mr Mooney also gave evidence about 'disturbance creep', saying: '…as each year goes by more nests are disturbed and very, very few nests become undisturbed that were disturbed before so you have nests slipping steadily into increasing disturbance. There is a pool of nests in remote areas that were undisturbed and remain undisturbed. The problem with that is as they become more disturbed the breeding success inevitably slips.' 101 Disturbance to any eagle nesting areas in circumstances where population numbers are low and breeding success is fickle is a 'significant impact'. A draft recovery plan prepared for the eagle shows that breeding success for active eagle territories for the period 2000-2003 was a mere 0.5 offspring per active territory. This results in a fairly small number of new additions to the species in any year. It also must be borne in mind that the eagle relies, in part, for its breeding success on nesting at relatively long distances from other breeding pairs. Also, eagles are very shy nesters and are very fussy in their choice of nesting sites. 102 I agree with the submission of the applicant that the present and likely future forestry operations of Forestry Tasmania in Wielangta will, in the context of the EPBC Act, have a significant impact on the eagle, notwithstanding the presence of other impacts which may be even more significant, such as the factors identified at [85] above. The forestry operations of Forestry Tasmania will, as the applicant contends, 'have a significant impact on the eagle because they form part of the well established cumulative impact of native forest harvesting in Tasmania on the eagle'. This is in the context of such operations being controlled by one operator, Forestry Tasmania. Population decline caused by forestry operations in one area of the State impacts on the species generally by adding to its demise in circumstances where eagles have, as Mr Mooney said: '…very little flexibility built into their biology to allow them to compensate for an unnatural low productivity…' 103 The applicant also relies on the evidence of Dr Sarah Bekessy, a university lecturer and an expert on population viability issues, to the effect that, based on a study of the Bass District, the eagle will be extinct in that area in 200 years. Her 2002 study and 2005 revision support the view that habitat disturbance caused by timber harvesting means the eagle population would decline substantially. 104 Forestry Tasmania challenged the reliability of this evidence. Its written submissions point to some of the problems which underlie its theoretical nature. It is not necessary to make a finding about this evidence on the current issue. I prefer to rely on the evidence of the Court appointed expert, Mr Mooney, who the parties accepted as the pre-eminent authority on the eagle.

[44]

Mr Meggs 113 Forestry Tasmania relied on the expert evidence of Mr Meggs, a Consultant Biologist and former employee of Forestry Tasmania. 114 Mr Meggs gave evidence that partial harvesting, of the sort which has occurred and is proposed within Wielangta, has never been identified as a specific threat to the beetle. He also identified coupe 17E as part of the species' range. Mr Meggs opined that within the species' range, potentially 'threatening processes' are not occurring at a sufficiently high rate to suggest that the beetle is facing a very high risk of extinction in the near future. Mr Meggs said there was 'some limited evidence' that the beetle may be able to survive in or recolonise areas previously subjected to partial harvesting. 115 Mr Meggs considered that harvesting in coupe 17E would only have a minor and short term impact on the species and that 'sufficient habitat will be available throughout the silvicultural cycle to maintain the local population in the area'. He also said, 'WT019D largely constitutes unsuitable habitat', so the harvesting of that coupe will have 'minimal, if any impact' on the beetle. That is notwithstanding his concession in cross-examination that the beetle can exist in dry forest, of which coupe 19D is an example. 116 The applicant relied on the evidence of Dr McQuillan and Dr Karyl Michaels. Dr Michaels is a Project Officer with considerable experience in the study of various beetles, including the broad-toothed stag beetle. Like Dr McQuillan, Dr Michaels noted that the beetle had been found in areas of dry forest. Dr Michaels also differed from Mr Meggs in her consideration of the effect of partial harvesting on the beetle. She considered such forestry operations cause fragmentation of beetle habitat as well as constituting a danger to the beetle. She also considered that streamside reserves and wildlife habitat clumps were not suitable areas of habitat for the beetle. Dr McQuillan's evidence was consistent with the summary contended for by the applicant and referred to at [107] to [111] above. 117 Where the evidence of Mr Meggs differs from that of Dr McQuillan and Dr Michaels, I prefer the evidence of Dr McQuillan and Dr Michaels. Under cross-examination, Mr Meggs was frequently evasive and appeared to me to be much more of an advocate for the cause of Forestry Tasmania than an independent expert. I accept the applicant's submission that Mr Meggs was a 'partisan polemic' and a 'so-called independent expert'; see Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 220 ALR 1 at [26], per Wilcox J. 118 The worst aspect of Mr Meggs' lack of independence was his preparedness to alter his affidavit evidence based on 'suggestions' by senior employees of Forestry Tasmania. 119 Mr Meggs gave evidence that his affidavit received 'peer review' from the following people: · Dr Sarah Munks from the Forest Practices Authority; · Dr Stephen Read, the Chief Scientist of the Division of Forest Research and Development from Forestry Tasmania; · Dr Hans Drielsma, the then General Manager of Forestry Management for Forestry Tasmania; · Mr John Hickey, the Manager of the Planning Branch (formerly the Principal Research Officer of the Native Forests Branch) of Forestry Tasmania; and · Dr Marie Yee from Forestry Tasmania. 120 Mr Meggs gave evidence that he changed no matter of substance in his affidavit in consequence of this 'peer review process'. That evidence is false. Mr Meggs did change matters of substance as a result of the peer review process. He excised parts of his draft affidavit which were helpful to the case of the applicant but unhelpful to Forestry Tasmania. 121 At the urging of an officer or officers of Forestry Tasmania, Mr Meggs deleted the following sentence from his affidavit: 'The longer the status quo of conservation management for this species is maintained the higher the risk of extinction to the species based on current knowledge.' 122 Mr Meggs claimed he excised that sentence because he made the point elsewhere in his affidavit. After trying to avoid answering the question, when asked where else in his affidavit he made the point, Mr Meggs was not able to identify where he had done so. 123 Mr Meggs denied deleting the sentence because Dr Drielsma and Mr Hickey wanted it deleted. I do not accept that denial. 124 Also, at the urging of Dr Read, Mr Meggs omitted sections from his draft affidavit which referred to the inadequacy of existing monitoring programs and the 'somewhat patchy' implementation of 'adaptive management strategy for conservation' of the beetle. 125 The manipulation of Mr Meggs' expert evidence is regrettable. In light of the above, I do not accept the evidence of Mr Meggs where it conflicts with that of Dr McQuillan and Dr Michaels. I accept the evidence of these two witnesses which supports the summary of 'significant impact' contained in the submission of the applicant and summarised at [107] to [111].

[45]

Dr Roberts 126 Dr Sandra Roberts is a Research Officer in the field of forest hydrology employed by Forestry Tasmania. She sought to contradict Dr McQuillan's evidence about, among other things, the edge effects in forests and about areas of dry forest being in transition to wetter forest types. Where her evidence conflicts with Dr McQuillan, I prefer his evidence. 127 Dr Roberts' role in the proceeding was as an advocate for her employer. She said she was approached to give evidence to respond to Dr McQuillan's evidence but agreed she had been approached because, as an employee, she could provide cost free services to Forestry Tasmania. Dr Roberts also admitted to taking on other roles in the case. For example, she assisted with finalising 'the preparation of affidavits by Forestry witnesses' at the request of Dr Yee from Forestry Tasmania. Dr Yee was in court throughout most of the proceeding, but did not give evidence. 128 Dr Roberts described her other role as: '…to really be the final proof reader, to collate the attachments, prepare the certificates for the exhibits, to provide assistance with researching materials and obtaining documents, and I took on a role in photocopying and preparing the documents.' 129 Dr Roberts said she: '…was also involved in preparing some materials for Marie Yee, obtaining reference materials for her. For example, I went through all of the applicant's affidavits reference lists and I talked to the librarian in obtaining those reference materials.' 130 Dr Roberts gave evidence of proof reading affidavits filed on behalf of Forestry Tasmania and, in one case, rearranging the chronological sequence of events in an affidavit of a Forestry Tasmania witness. 131 Dr Roberts said her role included providing advice to Forestry Tasmania as to how its case may be researched and structured. She agreed she had a role 'in assisting in the formulation of aspects of the case'. She said she attended meetings at which discussion occurred about the progress of the preparation of affidavits and which counsel and the instructing solicitor attended. 132 I am not satisfied Dr Roberts is an independent expert witness. She was at the heart of guiding Forestry Tasmania's overall strategy in this case. Her evidence does not assist me.

[52]

Mr Peter Brown 140 Mr Peter Brown is widely acknowledged as the leading expert on the species. In his expert report, he provided the following important information: · the swift parrot breeds mainly in eastern Tasmania, usually within 10 kilometres of the coast; · during breeding season, two eucalypt species provide the majority of its nectar food source. They are eucalyptus globulus (blue gum) and eucalyptus ovata (black gum). Blue gum nectar is the parrot's primary food source from October to December. Black gum flowers in August and September and provides a food source at that time when the blue gum is not flowering; · the coastal area of Tasmania between Marion Bay near Dunally and Orford, which includes Wielangta, is 'a particularly important breeding area for the species'; · after breeding, other eucalypt species commence to flower and the parrots then disperse within Tasmania until migrating to the mainland in March/April; · the key to the long term survival of the swift parrot is the availability of feeding and nesting habitat during the breeding season, particularly in primary or optimal habitats, including Wielangta; · swift parrots require tree hollows of a certain diameter in mature eucalypt species in which to nest. It is important that nesting sites contain appropriate hollows. For this purpose, the trees have to be old enough for the requisite hollows to have formed; · swift parrots regularly nest close to each other; · the best breeding habitat is in forest that has not been logged or has not been subject to logging within the last 50 years, and then only selective logging; · the first survey undertaken in 1988 estimated 1320 breeding pairs. The 2001 survey estimated 1000 breeding pairs. 141 Mr Peter Brown gave evidence that: 'Timber harvesting activities within the breeding range of the Swift Parrot has (sic) the potential to impact greatly on the Swift Parrot. Any food resource trees harvested reduces that resource and old growth forest harvesting reduces the nest sites available to all hollow nesters.' 142 Mr Peter Brown also said: 'In all the swift parrot nests I have seen I have never found one in a forest which has been harvested in the past 10 years that I can recall.' 143 On the topic of partial harvesting, Mr Peter Brown said: 'Swift Parrots have been shown to prefer to nest in areas of continuous forest and I believe that leaving individual trees, small clumps or copses will not retain breeding habitat.' 144 Mr Peter Brown also said: 'I would find it difficult to argue that forestry operations in individual Wielangta coupes would cause a significant impact on the Swift Parrot, but the cumulative impacts of ongoing timber harvesting throughout the area will in my view significantly impact on the species.' 145 In support of that statement, Mr Peter Brown said 'at best' the current population of swift parrots is stable, with the possibility of it 'undergoing a decline'. He also described the population of the swift parrot in the area between 'Marion Bay and Orford' (which includes Wielangta) as 'the most dense and secure throughout its breeding range'. He stated further: '…although there have long been forestry activities to parts of the area, there are still large tracts of prime undisturbed habitat. I believe the long term security of this species lies in its maintenance as prime habitat and minimizing any threats to it. As such, ongoing destruction of habitat will constitute a "significant impact" on the species.' 146 The evidence of Mr Peter Brown, set out above, was not subject to any serious challenge. I accept it. It leads to the conclusion that the cumulative effect of logging in the coupes in Wielangta, taking into account the endangered status of the parrot and all other threats to it, is likely to have a significant impact on the species by removing progressively part of its prime breeding habitat; being habitat which it will use when blue gum nectar is available. This has occurred in the past and there is no reason to suppose that it will not occur in the future. Mr Peter Brown also gave evidence, under cross-examination, that the swift parrots come back to areas including Wielangta, 'time and time again'.

[53]

Mr Kennedy 147 Mr Simon Kennedy is a GIS Analyst employed by the Environmental Protection Authority of Queensland and has had considerable experience in observing swift parrots and taking part in swift parrot surveys. He studied the swift parrot between 1998 and 2001, on the mainland and in Tasmania. He has published papers on the swift parrot and is a co-author of the Swift Parrot Recovery Plan 2001-2005. 148 Mr Kennedy largely agreed with Mr Peter Brown, but gave the following important evidence about the swift parrot on behalf of the applicant: · seventy five per cent of all recorded swift parrot nests have been found on Bruny Island, Maria Island, in Wielangta and the Fern Tree/Mt Nelson area; · south-eastern Tasmania within five to 10 kilometres of the coast supports almost the entire wild population of swift parrots during the spring, with large numbers going elsewhere in Tasmania during summer; · it is projected that the population of swift parrots will decline unless action is taken to address threats to the species. 149 Mr Kennedy also gave evidence that: '…the Wielangta operations are likely to impact on the Swift Parrot population. Large numbers of mature trees will be removed from areas of Swift Parrot nesting habitat and reducing habitat quality across broad areas.' (original emphasis) 150 Mr Kennedy said further, 'Wielangta is the site of more than 20% of all recorded Swift Parrot nests'. If forestry operations are conducted in the same manner as those carried out in coupe 17E in winter 2005, Mr Kennedy estimated that '80% of potential Swift Parrot nesting trees…will be removed in each coupe'. 151 Mr Kennedy also noted: 'The number of Swift Parrots visiting Wielangta changes from year to year according to flowering events in the nearby foraging sites in the lowlands. Therefore the number of nests used varies. If the site is surveyed in a below average year of Swift Parrot activity when few nests are occupied, there is a risk that many nests not used in that year will be destroyed.' 152 Further, as Mr Kennedy said, it is important to bear in mind: 'Not all retained hollow-bearing trees will be suitable for Swift Parrot nests. The hollow may be too wide, shallow, facing the wrong way [towards the prevailing winds] or occupied by other fauna.' 153 Mr Kennedy gave evidence that in coupe 17E, some 80 per cent of large trees had been removed. He said that he visited coupe 19D on 16 October 2005 and 'found it to be high quality old growth habitat with high densities of tree hollows' (original emphasis). He said: 'Two Swift Parrots were observed. I observed no eucalypt flowering here or in the immediate area at the time. It is therefore probable that Swift Parrots were nesting in northern Wielangta in spring 2005, as they are only likely to be in an area for foraging or nesting during mid October…' 154 Mr Kennedy estimated that after logging in coupes 17E and 19D, 'Swift Parrot nesting habitat in these coupes will be reduced by more than 70%' (original emphasis). He went on to say: 'Swift Parrots may continue to use the remaining habitat, but are likely to do so in reduced numbers for the next 100 years until the regrowth areas begin to produce hollow-bearing trees. This does not equate to "protection" of Swift Parrot populations, but rather the result will be a less severe decline than applying no prescriptions.' (original emphasis) 155 Mr Kennedy considered: '…the net effect of the logging operations [in Wielangta] will be a significant reduction in Swift Parrot nesting habitat for the next 100 years.' (original emphasis) 156 I accept the above evidence of Mr Kennedy. Save for an attack on his formal qualifications, and his concession that Mr Peter Brown had greater expertise on the swift parrot in Tasmania, his evidence was largely unchallenged by Forestry Tasmania.

[67]

183 Clause 51 provides: 'The Parties agree that they will each take appropriate action: · to establish the CAR Reserve System on the Public Land described in Attachment 6 and, where appropriate, shown on Map 1; and · to manage that system to maintain CAR Values of that land in a regional context consistent with the management objectives for each element of the reserve system as specified in Attachment 7.' 184 Under cl 62 of the RFA, ESFM is referred to as an objective requiring 'a long term commitment to continuous improvement', with the establishment of the CAR Reserve System as a key element for achieving it. 185 In cl 64 of the RFA, the State of Tasmania agrees, in providing for ESFM, to amend its 'Forest Management Systems' to reflect certain undertakings and in particular those undertakings 'specified in Attachment 10'. Clause 13 of Attachment 10 commits Tasmania to: 'Ensuring that management plans for Formal Reserve and Informal Reserve elements of the CAR Reserve System clearly identify the CAR values identified in the CRA [Comprehensive Regional Assessment process] and the actions being taken in each reserve to appropriately manage those values.' 186 Clause 68 is under the heading 'Protection of priority species' and provides: 'The State agrees to protect the Priority Species listed in Attachment 2 (Part A) through the CAR Reserve System or by applying relevant management prescriptions.' Each of the species the subject of the proceeding is listed in Attachment 2 (Part A). 187 Clause 70 provides: 'The Parties agree that management prescriptions or actions identified in jointly prepared and agreed Recovery Plans or Threat Abatement Plans will be implemented as a matter of priority.' 188 Clause 71 provides: 'The Parties recognise that Priority Species may change and that new or altered management prescriptions may be needed during the term of this Agreement to take account of changes in the status of species, additional information and evolving forest management practices. Alterations in prescriptions will be in accordance with processes described in Clause 96.' 189 Clause 96 states: 'The State agrees that any changes to the Priority Species in Attachment 2 including new or altered management prescriptions developed over the terms of the Agreement will: (a) be adequate to maintain the species identified;

[75]

Does the RFA plan for or make arrangements for a CAR Reserve System? 199 The recitals to the RFA refer to the establishment of a CAR Reserve System. 'CAR Reserve System' is defined in cl 2. The RFA refers to the JANIS Report and defines it. The JANIS Report contains agreed criteria for the establishment of a CAR Reserve System. Clause 48 of the RFA commits the parties to the establishment of a CAR Reserve System by reference to JANIS Reserve Criteria. Clause 49 (and the attachments it refers to) goes into some detail about how the CAR Reserve System will be established by referring to different types of reserves and the protection of CAR Values by prescription. Clause 51 refers to an agreement to take appropriate action to establish a CAR Reserve System on Public Land described in an attachment and by reference to a map. It also commits the parties to manage that system and maintain CAR Values consistent with expressed management objectives. Clause 68 contains an agreement to protect Priority Species through the CAR Reserve System or by applying relevant management prescriptions. 200 Given the above, and in the context of the meaning of 'provides for' contained in Stocks and Parkes Investments, I consider the RFA meets the definition contained in subparagraph (b) of the definition of RFA in s 4 of the RFA Act, in that it 'provides for a comprehensive, adequate and representative reserve system'. 201 The provision for a CAR Reserve System does not mean that legally enforceable rights to the creation of such a system must be available. That may be the case if there was an obligation to 'provide' a CAR Reserve System, but that is not the obligation contained in the RFA Act. The same may be said of the lack of a legally enforceable obligation to provide ESFM. 202 The applicant's reference to s 3(c) of the RFA Act concerning the Forest and Wood Products Council is of no assistance. But for the obligation in s 11 of the RFA Act, it would be difficult to see any enforceable obligation on any person to ensure that such a body is set up. If s 11 is considered to be the partner of s 3 in compelling the establishment of the Council, no counterpart to s 11 is aligned to subparagraphs (b) or (c) of the definition of RFA in s 4 of the RFA Act to enforce any obligation referrable to a CAR Reserve System or ESFM.

[83]

The applicant's contentions 215 The applicant submits 'agrees to protect' means 'deliver protection of' and not 'agrees to try and protect' or 'consider protecting'. He contends that 'in accordance with an RFA' should be construed strictly. That is because it is part of a provision that provides an exemption from a statutory prohibition. 216 The applicant says that s 38 of the EPBC Act should be construed strictly as it exempts forestry operations from a stringent, time consuming, expensive and complicated environmental approvals process. He contends the by-passing of such a process is a privilege available only where there is strict compliance by those undertaking the forestry operations with the obligations provided in an RFA. 217 The applicant submits that the Court's task is to decide whether the forestry operations of Forestry Tasmania in Wielangta are regulated in accordance with (as in precisely as prescribed by) the RFA. To do so, he submits the Court must construe what the RFA requires and assess whether the forestry operations, controlled by Forestry Tasmania on behalf of the State of Tasmania, are consistent with or comply with those requirements. This, in turn, necessitates an assessment and determination of what cls 68, 70 and 96 of the RFA each require and of whether the relevant action or actions taken by Forestry Tasmania have complied with each of those clauses. 218 Senior counsel for the applicant said in her oral submissions: 'If the RFA requires forestry operations to be done in a certain way, through clauses 68, 70 and 96…and forestry operations are not being regulated, controlled and conducted in that way in this State, then they are not being conducted in the way the RFA requires, and they are not in accordance with the RFA.' 219 The applicant submits the RFA is a parallel process to provide environmental protection to that otherwise provided directly by the EPBC Act. It is a process permitted by Pt 4 of that Act. Accordingly, so the argument runs, the RFA must deliver protection which prevents the occurrence of a significant impact on the relevant environment and the species which inhabit it. In that regard, he refers to the relevant portion of the Explanatory Memorandum accompanying the Bill which became the EPBC Act where it said: 'The objects of this Act will be met through the RFA process for each region and, accordingly, the Act does not apply to forestry operations in RFA regions.' 220 The applicant submits that, to meet the objects of the EPBC Act, the RFA must provide real, practical protection to threatened species and facilitate their recovery to appropriate and sustainable population levels. 221 Otherwise, the applicant contends, the EPBC Act will fail to implement the international obligations on which it is founded. Accordingly, he contends, the RFA must be interpreted as a method of securing the aims of the EPBC Act which, in turn, implement international obligations, such that the approach to the interpretation of the EPBC Act and hence the RFA must not conflict with international law, as far as the language permits. 222 The applicant also submits that the interpretation of the EPBC Act and the RFA are informed by the precautionary principle. He says it is a principle which is fundamentally enmeshed in Australia's environmental policies. He traces the commitment to the precautionary principle from the Intergovernmental Agreement on the Environment, the NFPS (which is expressly stated to reflect resolutions from that Agreement) and the EPBC Act which states in s 391(2): 'The precautionary principle is that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage.' (original emphasis) He also refers to s 3A of the EPBC Act which sets out the principles of ecologically sustainable development and includes at (b):

[87]

Is this issue justiciable? 233 Counsel for the applicant described this question correctly as a 'red herring'. The applicant does not seek enforcement of the RFA against the Commonwealth or the State of Tasmania. The applicant contends that the RFA is not being complied with, in material respects, in order to make good a submission that no relevant exemption is available under s 38 of the EPBC Act for Forestry Tasmania's forestry operations in Wielangta. 234 This proceeding is distinguishable from South Australia v The Commonwealth where a party to an inter-governmental agreement sought to enforce it against the other party. The relevant obligation sought to be enforced did not contain a precise time for its enforcement. The High Court considered the matter to require political rather than judicial resolution. 235 The State of Tasmania refers the Court to Re Ditfort; ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 ('Ditfort') where Gummow J said at 370 there would be no 'matter' before the Court if it was required to consider 'undertakings and obligations depending entirely on political sanctions'. His Honour described such 'non-justiciable issues' as including 'agreements and understandings between governments within the federation'. It is noteworthy that in Ditfort, Gummow J held, at 373, that the non-justiciable principle did not apply because the Court had jurisdiction to deal with the matter in question and the issue of inter-governmental relations arose in the course of dealing with issues which were elements of the matter within jurisdiction. 236 I am not required to consider undertakings and obligations which depend entirely on political sanctions. I am required to consider whether s 38(1) of the EPBC Act applies and to perform that task properly I am required to consider whether Forestry Tasmania's forestry operations in Wielangta are conducted 'in accordance with' the RFA. If, in completing that task, this Court finds the RFA is not being applied to Forestry Tasmania's forestry operations in Wielangta, that does not mean the Court must cease dealing with the application, which is unquestionably within jurisdiction. 237 For the above reasons, I reject the contention that the Court cannot consider whether Forestry Tasmania's forestry operations in the Wielangta area will, or have been, carried out in accordance with the RFA by reference to cl 68. It is wrong to say that issue is non-justiciable. It is an issue on an amended agreed list of issues that the parties filed in the proceeding. It is an issue central to the proceeding, in that it must be answered in order to determine whether the s 38 exemption applies under the EPBC Act. I answer it below.

[92]

The CAR Reserve System 243 As its definition suggests, the CAR Reserve System involves the setting aside of public lands, in the current context, through dedicated and informal reserves. The CAR Reserve System flowed from the NFPS (see [171] above). 244 Dr Rhonda Dickson is an Assistant Secretary, Infrastructure and Regional Policy Branch with the Department of Prime Minister and Cabinet. She has substantial experience in the area of developmental implementation of forest policy on behalf of the Commonwealth. 245 Dr Dickson gave evidence that NFPS 'specifically envisaged that a comprehensive, adequate and representative…network of dedicated and secure nature conservation reserves for forests and reserves for protecting wilderness would be set aside'. 246 Dr Dickson also gave evidence that: 'As required by the NFPS, National Forest Reserve Criteria were agreed upon which set out the criteria for the creation of CAR reserves. These criteria are commonly known as the "JANIS criteria" and were documented in a report which was prepared jointly by the Australian and New Zealand Environment and Conservation Council and the Ministerial Council of Forestry, Fisheries and Aquaculture in 1997 - the Nationally Agreed Criteria for the Establishment of a Comprehensive, Adequate and Representative Reserve System for Forests in Australia.' 247 Dr Dickson referred to the following 'two key principles' as underlying the CAR reserve criteria: '(a) species with known distributions should be adequately reserved at the regional level; and (b) …known species with unknown distributions are addressed through reservation of broad "surrogates" of biodiversity such as forest types (or forest ecosystems) which are mapped out at an appropriate scale.' 248 Dr Dickson said the CAR Reserve System also envisaged, where possible, conservation of old-growth forest and wilderness in a dedicated reserve system on public land. Alternative approaches were described (in a public land context) as: '(a) the establishment of informal reserves on public land, set aside specifically for conservation purposes and reserved under a secure tenure or management arrangement such as approved forest management plans; (b) protecting values through prescription - where the nature of the forest value that is required to contribute to the CAR reserve system makes inclusion in a dedicated or informal reserve impractical (for example, very rare values, values with fragmented distributions, or values naturally occurring in linear form), then protection may be prescribed in codes of practice or management plans…'

[95]

(c) the construction of a road in connection with an activity referred to in paragraph…(b) or (ba) …' 254 Under s 25A of the Forest Practices Act, a responsible person for a certified Forest Practices Plan is obliged to provide Forest Practices Plan compliance reports to the Forest Practices Authority and lodge a final forest practices certification report stating whether or not the Plan has been complied with. 255 As the applicant submits at [88] of his closing written submissions: 'The [Forest Practices Plan] is the principal mechanism for delivery of management prescriptions at a coupe level. The process of developing the FPP is designed to embrace all relevant information, and is to accord with the Forest Practices Code…The Code itself does not deliver any prescriptions relevant to threatened species but instead provides that management of threatened species in wood production areas is to be in accordance with procedures agreed between FPA and DPIW. The agreed procedures are at Exhibit MW3 to the affidavit of Mr Wapstra at CB 2011-2013.' 256 In the procedures document, cl 3.1 deals with 'endorsed management prescriptions' for fauna. It refers to the 'Threatened Fauna Manual for Production Forests in Tasmania' ('Manual') and the 'Threatened Fauna Adviser Expert System program' ('Adviser') as 'the basis for providing management prescriptions at the operational (coupe) scale'. 257 The Manual and the Adviser are required to be updated regularly as new information becomes available and should be reviewed at least every five years to coincide with reviews under the RFA. For that purpose, consultation is expected between specialists within the Forest Practices Authority, DPIW, Forestry Tasmania and Forest Practices Officers, and any changes are subject to formal endorsement by bodies established under the Threatened Species Protection Act and the Forest Practices Act and further subject to assumed endorsement in the event of a lack of response by such bodies within three months. 258 Forest Practices Officers are compelled to consult the Manual 'to determine whether an operational area contains or is likely to contain threatened species'. They are required also to consult the Adviser 'to determine the appropriate endorsed management prescription' and to 'seek further specialist advice' from the Senior Zoologist of the Forest Practices Authority where required by the provisions of the Adviser. There is a further requirement to notify the Senior Zoologist 'where an operational area contains or is likely to contain threatened species'. 259 Under cl 3.1.6 of the procedures, where a Forest Practices Officer seeks further advice in accordance with the Adviser, or where endorsed prescriptions are not appropriate, the Senior Zoologist is to consult with DPIW 'to determine an appropriate management prescription…advice will be provided within six weeks, otherwise the Forest Practices Officer may proceed on the basis of best available information'.

[104]

Has the State protected the eagle by applying relevant management prescriptions? 276 Mr Mooney's gave evidence that: 'CAR Reserves and Management Prescriptions can both prevent extinction in the short to medium term (up to 50 years) and buffer some deleterious effects of development but alone they cannot protect the Tasmanian Wedge-tailed Eagle. … CAR Reserves and Management Prescriptions are vital to reduce…attrition and allow the population to stabilise at a point above that which would otherwise happen but as they stand, they alone cannot protect the Tasmanian Wedge-tailed Eagle.' 277 Management prescriptions prevent forestry activities within one kilometre of the line of sight of a known active eagle nest. However, as the applicant submits in his written submissions: '…the restriction of nest searches "adjacent" to the coupe areas to within 500m leaves a significant chance of nests within the 1 km line of sight not being found. Operations then might proceed in the breeding season well inside the 1 km limit that would otherwise apply to known nests.' 278 The management prescriptions for the eagle refer to the breeding season as August to January. Mr Mooney considered the breeding season should really be July (or even earlier) to January and that the official dates (August to January) are 'a compromise with industry'. This demonstrates a further deficiency with the management prescriptions. 279 Importantly, Mr Mooney gave evidence that the following proposition put to him was inevitable: '…there are a host of risk factors introduced for eagles from forestry operations even with management prescriptions…'. 280 Mr Mooney also questioned the thoroughness of the searches for nests during logging. 281 I do not consider that the State has protected the eagle by applying relevant management prescriptions. Management prescriptions have helped to slow the eagle's extinction but have not protected it in the sense of either maintaining existing numbers or restoring the species to pre-threatened levels.

[122]

(g) to promote the use of indigenous peoples' knowledge of biodiversity with the involvement of, and in co-operation with, the owners of the knowledge.' 296 In Booth v Bosworth (2001) 114 FCR 39 at [115], Branson J states: 'In weighing the factors which support an exercise of the Court's discretion in favour of the grant of an injunction under s 475(2) of the Act against those factors which tell against the grant of such an injunction, it seems to me that it would be a rare case in which a Court could be satisfied that the financial interests of private individuals, or even the interests of a local community, should prevail over interests recognised by the international community and the Parliament of Australia as being of international importance.' 297 The Biodiversity Convention referred to by the Full Court in Queensland Conservation Council underpins the EPBC Act. It obliges Australia to take steps to promote conservation and the recovery of threatened species; see Arts 8(d), (e) and (f). 298 Australia is also a signatory to the Convention on Conservation of Nature in the South Pacific (done at Apia, Western Samoa on 12 June 1976), otherwise known as the Apia Convention. Australia acceded to the Apia Convention on 28 March 1990 and it came into force in Australia on 26 June 1990. It requires Contracting Parties to: '1. … in addition to the protection given to indigenous fauna and flora in protected areas, use their best endeavours to protect such fauna and flora (special attention being given to migratory species) so as to safeguard them from unwise exploitation and other threats that may lead to their extinction. 2. ... establish and maintain a list of species of its indigenous fauna and flora that are threatened with extinction. Such lists shall be prepared as soon as possible after this Convention has come into force and shall be communicated to the body charged with the continuing bureau duties under this Convention. 3. ... protect as completely as possible as a matter of special urgency and importance the species included in the list it has established in accordance with the provisions of the last preceding paragraph. The hunting, killing, capture or collection of specimens (including eggs and shells) of such species shall be allowed only with the permission of the appropriate authority. Such permission shall be granted only under special circumstances, in order to further scientific purposes or when essential for the maintenance of the equilibrium of the ecosystem or for the administration of the area in which the animal or plant is found. 4. ... carefully consider the consequences of the deliberate introduction into ecosystems of species which have not previously occurred therein.'

Brown v Forestry Tasmania

At a glance

Court

Decision date

Before

Source

Judgment (134 paragraphs)

Parties

Legislation Cited (10)

Cases Cited (7)

Cited By (1)