Law and Litigation for the Conservation of Forest Communities

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.