Law and Litigation for the Conservation of Forest Communities

Authors

  • Laura Schuijers
  • Lee Godden

Abstract

Australia’s natural environment is in decline and under increasing threat. The extent and severity of biodiversity loss is highlighted by the second independent, 10-yearly review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’). The Review points to climate change as a critical compounding danger — one to which Australia and its unique flora and fauna are highly vulnerable. In this article, we discuss the role of law in protecting and extending the public interest in nature conservation, with special focus on the forest context. The term ‘public interest,’ while complex in meaning, typically refers to public or community values, as opposed to private interests such as those of property rights holders. We consider the recent judgments in Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704 (‘Leadbeater’s Possum’) and Bob Brown Foundation Inc v Commonwealth of Australia [2021] FCAFC 5 (‘Great Forest’) with respect to the ongoing function of the Regional Forest Agreements (‘RFAs’) in exempting the operation of the EPBC Act. In light of the Review’s comment that Australia’s federal environmental law is not fit for purpose, as well as the gaps and limitations in the law revealed by the two court cases, we conclude that legal reform is needed. Without legal reform, there can be no guarantee that cumulative threats to forest biodiversity will be adequately managed because although the relevant legislation appears to embody principles of ecologically sustainable development on its face, it also prevents key decision-makers and operators from being held to account. The inescapable dependency of humans on nature means the insufficiency of environmental laws fundamentally concern us all.

References

REFERENCE LIST

A Articles/Books/Reports

Australian Government, Department of the Environment and Energy, Australia State of the Environment 2016: Overview (Report, 2017)

Australia Institute, Polling – Bushfire crisis and concern about climate change (Report, January 2020)

Australian Sustainable Finance Initiative, Australian Sustainable Finance Roadmap: a plan for aligning Australia’s financial system with a sustainable, resilient and prosperous future for all Australians (Report, November 2020)

Barad, Karan, Meeting the Universe Halfway: Quantum Physics and the Entanglement of Matter and Meaning, Duke University Press 2007

Ceballos, Gerardo, Paul R Ehrlich and Peter H Raven, ‘Vertebrates on the Brink as Indicators of Biological Annihilation and the Sixth Mass Extinction’ (2020) 117 Proceedings of the National Academy of Sciences 13596

Commonwealth, Royal Commission into National Natural Disaster Arrangements (Report, 28 October 2020)

Cosens, Barbara, 'Resilience and Law as a Theoretical Backdrop for Natural Resource Management: Flood Management in the Columbia River Basin' (2012) 42 Environmental Law 241

Fitzsimons, James A, ‘Urgent Need to Use and Reform Critical Habitat Listing in Australian Legislation in Response to the Extensive 2019–2020 Bushfires’ (2020) 37 Environmental and Planning Law Journal 143

Godden, Lee, ‘Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment and Heritage and Others’ in H. Douglas et al (eds) Australian Feminist Judgments: Righting and Rewriting Law (Hart Publishing, 2014) 138

Godden, Lee, Jacqueline Peel and Jan MacDonald, Environmental Law (OUP, 2018)

Head, Lesley, ‘Grief, Loss and the Cultural Politics of Climate Change’ in H. Bulkeley, M. Paterson, and J. Stripple (eds) Towards a Cultural Politics of Climate Change: Devices, Desires and Dissent (Cambridge University Press, 1st ed, 2016) 81

Konkes, Claire, ‘Green Lawfare: Environmental Public Interest Litigation and Mediatized Environmental Conflict’ (2018) 12 Environmental Communication 191

Kotera, Yasuhiro, Miles Richardson and David Sheffield, ‘Effects of Shinrin-Yoku (Forest Bathing) and Nature Therapy on Mental Health: A Systematic Review and Meta-analysis’ [2020] (July) International Journal of Mental Health and Addiction 1

Lacey, Justine, Peter Edwards and Julian Lamont, ‘Social licence as social contract: procedural fairness and forest agreement-making in Australia’ (2016) 89(5) Forestry: An International Journal of Forest Research 489

Lindsay, Bruce and Hanna Jaireth ‘Democracy and the environment’ (2016) Australian Environmental Review 245

Martin, Rhett, ‘Victorian Ecological Sustainable Forest Management: Part VI – Identifying Change Mechanisms in Regulation and a New Model for Victorian Forestry Practice’ (2020) 37 Environmental and Planning Law Journal 18

Martin, Paul, and Mark Shepheard ‘What is meant by the social licence?’ in P. Martin and J Williams (eds) Defending the social licence of farming: Issues, challenges and new directions for agriculture (ProQuest Ebook Central, 2012) 17

McGlade, Christophe and Paul Ekins, ‘The geographical distribution of fossil fuels unused when limiting global warming to 2°C’ (2015) 517 Nature 187

McGrath, Chris, ‘Myth Drives Australian Government Attack on Standing and Environmental Lawfare’ (2016) 33 Environment and Planning Law Journal 3

McGrath, Chris, ‘Flying foxes, dams and whales: Using federal environmental laws in the public interest’ (2008) 25 Environment and Planning Law Journal 324

Montreal Process Implementation Group for Australia and National Forest Inventory Steering Committee, ABARES, Australia’s State of the Forest Report 2018 (Report, 2018)

Olson, Erica R Timko, Margaret M Hansen and Amber Vermeesch, Mindfulness and Shinrin-Yoku: Potential for Physiological and Psychological Interventions during Uncertain Times’ (2020) 17(24) International Journal of Environmental Research and Public Health 9340: 1-13

Peel, Jacqueline, ‘Ecologically sustainable development: More than mere lip service?’ (2008) 12 Australasian Journal of Natural Resources Law and Policy 34

Preston, Brian J, ‘Contemporary Issues in Environmental Impact Assessment’, Climate Impact Seminar, ‘Are Climate Impacts Impacts? Climate Science in the EIA and Judicial Review’ (27 February 2020, Helsinki, Finland)

Preston, Brain J, ‘The Role of Public Interest Environmental Litigation’ (2006) 23 Environmental and Planning Law Journal 337

Report of the United Nations Conference on the Human Environment, UN Doc A/CONF.48/14/Rev.1 (1973, adopted 5-16 June 1972)

Samuel, Graeme, Independent Review of the EPBC Act: Final Report (Report, October 2020) 16

Schuijers, Laura, ‘Environmental Decision-Making in the Anthropocene: Challenges for Ecologically Sustainable Development and the Case for Systems Thinking’ (2017) 34 Environmental and Planning Law Journal 179

Schuijers, Laura, ‘Compelled by the Court to Act on Climate Change: Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92’ (2022) Journal of Environmental Law

UNEP, Global Biodiversity Outlook 5 (Secretariat of the Convention on Biological Diversity, 2020)

United Nations Green Climate Fund, GCF Annual results report - Climate action during the pandemic 2020 (Report, March 2021) 6

Wilson, E O, The Future of Life (Vintage, 2003); K R Shivanna, ‘The Sixth Mass Extinction Crisis and its Impact on Biodiversity and Human Welfare’ (2020) 5 Journal of Science Education 93

World Economic Forum, Nature Risk Rising: Why the Crisis Engulfing Nature Matters for Business and the Economy (January 2020)

World Economic Forum, The Global Risks Report 2021 (16th ed, 2021)

B Legislation/Treaties

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Commonwealth of Australia Constitution Act 1900 (Cth)

Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015 (Cth)

United Nations Framework Convention on Climate Change, opened for signature 20 June 1992, 1771 UNTS 107 (entered into force 21 March 1994)

C Cases

Bob Brown Foundation Inc v Commonwealth of Australia [2021] FCAFC 5

Bob Brown Foundation Inc v Commonwealth of Australia & Ors [2021] HCASL 125 H4/2021

Booth v Bosworth [2001] FCA 1453

Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92

McVeigh v Retail Employees Superannuation Pty Ltd (Federal Court of Australia, NSD1333/2018, commenced 21 September 2018)

O’Donnell v Commonwealth (Federal Court of Australia, VID482/2020, commenced 23 December 2020)

Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 604

VicForests v Friends of Leadbeater’s Possum Inc [2021] FCAFC 66

D Other

Australian Government, ‘Amendment to the Register of Critical Habitat pursuant to section 207A of the Environment Protection and Biodiversity Conservation Act 1999’, Federal Register of Legislation (Web page)

Blakers, Margaret and Brendan Sydes, No longer tenable: Bushfires and Regional Forestry Agreements (Report, Environmental Justice Australia, 27 March 2020) 4 [6]

‘Bunnings Ends Sourcing Timber from VicForests’ (Media Statement, 1 July 2020)

Commonwealth, Parliamentary Debates, Senate, 14 September 2015, 6722 (Scott Ryan)

Cox, Lisa, ‘Coalition proposes to scrap recovery plans for 200 endangered species and habitats’ The Guardian (online) 18 September 2021

Ecologically Sustainable Development Steering Committee, National Strategy on Ecologically Sustainable Development (Australian Govt. Pub. Service, 1992) and the Intergovernmental Agreement on the Environment (1 May 1992)

Field, Emma, ‘Native forest logging support low in regional Australia, leaked report shows’ ABC News (Live Blog, 9 December 2018, updated 15 February 2019)

French, Ricky, ‘Possum Magic Could Fell an Industry’, The Australian (Sydney, 19 September 2020)

High Court of Australia, ‘Results of Applications Listed at Canberra Friday 10 December 2021’ (10 December 2021)

Legislative Council Environment and Planning Committee, Inquiry into Ecosystem Decline in Victoria (Parliament of Victoria 2021) tabled 2 December 2021

National Forest Policy Statement – A New Focus for Australia’s Forests (Commonwealth of Australia 1992, 2nd ed 1995)

The Australian Panel of Experts in Environmental Law, The Foundations of Environmental Law: Goals, Objects, Principles and Norms (Technical Paper 1, 2017)

The Human Right to a Safe, Clean, Healthy and Sustainable Environment, UN HRC, 48th sess, Agenda Item 3, UN Doc A/HRC/48/L.23/Rev.1 (5 October 2021)

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Published

03/26/2022

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