Global Climate Change Action

The Background on the court battle to save three protected species:

Summary from Crikey today:
By Bernard Keane
(snip)
“The legal saga surrounding logging in the Wielangta Forest is lengthy and complicated (the Senate Environment committee has an excellent summary - see below notes) but revolves around a simple fact: John Howard and Paul Lennon changed the rules after Brown won in court to nullify his Federal Court win over Forestry Tasmania.

Brown took Federal Court action in 2005 to prevent logging in
the Wielangta Forest north-east of Hobart. Brown's case centred on
the interaction of the Environment Protection and Biodiversity
Conservation Act 1999 and Regional Forestry Agreements which allowed states and logging companies to avoid the impact of the EPBC if the Agreement provided for protection for significant species.

Brown argued that logging in the Wielangta Forest was not in accordance with the protection measures described in the relevant RFA.

...Federal Court Justice Marshall awarded a comprehensive victory to Brown, declaring that there was evidence the logging was harming three major protected species (the Tasmanian wedge-tailed eagle, the broad-toothed stag beetle and the swift parrot) and that the relevant
protective measures, based around a reserve system, did not comply with the RFA clause.

Forestry Tasmania immediately appealed and nearly a year later, three
Federal Court justices rules that the mere existence of a reserve system was sufficient to meet the requirements of the RFA, regardless of whether the reserve system actually protected any species or not. Marshall's findings that the logging had damaged the three protected species still stood (and stand).

Brown appealed to the High Court, but by then John Howard and Paul Lennon had conspired to remove the basis for the legal action. On 23 February 2007, Howard and Lennon had agreed to amend the relevant RFA so that:

*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* was removed and replaced with a simple statement that the reserve system protected threatened species.

In effect, Lennon and Howard were agreeing that black was white.

There was no Parliamentary scrutiny in either the Commonwealth or Tasmania of the amendment.

The High Court refused to grant Brown special leave to appeal because the new clause meant he had little chance of success. It refused to award costs against him, but Brown was still left the bill from the Federal Court appeal hearing.

Forestry Tasmania is owned by the Tasmanian Government and has
close links with logging company Gunns. Gunns unsuccessfully tried
to litigate Brown and other environmentalists out of the forestry
debate with a punitive lawsuit that has progressively collapsed, although the company is still pursuing seven individuals.

The Forestry Tasmania action, however, is a different matter. This is the
Tasmania Government pursuing Brown for daring to beat it in court to such an extent that it changed the rules to ensure victory.”

Details:

Senate Standing Committee on Environment,
Communications and the Arts

Footnotes

Regional Forest Agreements

http://www.aph.gov.au/senate/committee/eca_ctte/epbc_act/final_report/fo...

1.71 “The committee notes that in reaching its judgement, the Full Court did not rely on a variation to the Tasmanian RFA which was agreed by the then Prime Minister, the Hon John Howard MP, and the Hon Paul Lennon MP, the then Premier of Tasmania, on 23 February 2007.[94] The variation to the RFA was a new clause 68 whereby the Commonwealth and State of Tasmania agreed that the CAR reserves and management prescriptions provided for by the Tasmania RFA protected rare and threatened species and forest communities.[95]”

94. Mr Tom Baxter, Submission 65, p. 7; DAFF, Tasmanian Regional Forest Agreement, http://www.daffa.gov.au/rfa/regions/tasmania/rfa (accessed 20 March 2009).

95. DAFF, Tasmanian Regional Forest Agreement, http://www.daffa.gov.au/rfa/regions/tasmania/rfa (accessed 20 March 2009).