Federal Court of Australia
Save Our Strathbogie Forest Inc v Secretary to the Department of Energy, Environment and Climate Action [2024] FCAFC 134
ORDERS
SAVE OUR STRATHBOGIE FOREST INC Appellant | ||
AND: | SECRETARY TO THE DEPARTMENT OF ENERGY, ENVIRONMENT AND CLIMATE ACTION First Respondent ATTORNEY-GENERAL FOR THE STATE OF VICTORIA Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. Subject to paragraph 3, the appellant pay the first respondent’s costs of the appeal, as agreed or taxed.
3. If either party seeks a different costs order, the party may within 3 business days file and serve a short outline of submission on costs. In that event, the other party may within a further 3 business days file a short outline of submissions in response, and the issue of costs will be determined on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THE COURT:
Introduction
1 In the proceeding at first instance, Save our Strathbogie Forest Inc (the appellant) applied under s 475 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) for an injunction to restrain the Secretary to the Department of Energy, Environment and Climate Action of the State of Victoria (the Secretary) from conducting proposed fuel reduction burns in four defined areas (referred to as “burn units”) in the Strathbogie State Forest, which is located approximately 120 kilometres north-east of Melbourne, Victoria. The Forest is home to an important population of the Southern Greater Glider (the Glider), which is a listed endangered species under the EPBC Act. The appellant’s contention was that the four planned burns were likely to have a significant impact on the Glider and, without approval of the Commonwealth Minister for the Environment (the Commonwealth Minister) under Pt 9 of the EPBC Act (which had not been sought or obtained), were prohibited by s 18(3) of the EPBC Act. The hearing before the primary judge took place in January and February 2024. At that time, the Secretary planned to carry out the fuel reduction burns in autumn 2024.
2 On 2 April 2024, the primary judge dismissed the application: Save Our Strathbogie Forest Inc v Secretary to the Department of Energy, Environment and Climate Action [2024] FCA 317 (the Reasons). In summary, his Honour was not satisfied that the four planned burns would have, or were likely to have, a significant impact on the population of Gliders in the Strathbogie State Forest or on the species as a whole within the meaning of s 18(3).
3 In the proceeding at first instance, the Secretary relied on s 43B of the EPBC Act, which exempts from the requirement for approval an action that is a “lawful continuation of a use of land, sea or seabed that was occurring immediately before the commencement of [the EPBC Act]”. Although not necessary for his decision (in view of the conclusion set out above), the primary judge concluded that s 43B did not apply in the circumstances of the case.
4 The Attorney-General for the State of Victoria intervened in the proceeding at first instance to raise a constitutional point. The Attorney-General contended that s 18(3) of the EPBC Act was invalid in its application to fire prevention and suppression works conducted by the Secretary under s 62(2) of the Forests Act 1958 (Vic) (or in its application to the four planned burns) on the basis of the implied limitation on Commonwealth legislative power recognised in Melbourne Corporation v Commonwealth [1947] HCA 26; 74 CLR 31 (Melbourne Corporation). The primary judge rejected this contention, concluding that s 18(3) of the EPBC Act validly applied to the Secretary in the conduct of works for the prevention of fire, including planned fuel reduction burns.
5 The appellant appeals from the whole of the judgment of the primary judge, relying on two grounds, which can be summarised as follows:
(a) On the facts found by the primary judge, his Honour should have concluded that the proposed action was likely to have a significant impact, within the meaning of s 18(3) of the EPBC Act, on the Glider (ground 1). At the hearing of the appeal, the appellant advanced two contentions in support of this ground. The appellant’s primary contention was that the primary judge’s findings as to the likely impact of the proposed action on hollow-bearing trees, being a habitat critical for the survival of the species, were sufficient to conclude (and should have led to the conclusion) that the proposed action was likely to have a significant impact on the Glider. In support of this contention the appellant relied, in particular, on the primary judge’s finding that there was “a real chance that the planned burns [would] cause some reduction in the abundance of hollow-bearing trees in the planned burn areas” (Reasons at [10]) and statements in the Australian Government’s Conservation Advice for Petauroides volans (greater glider (southern and central)) (as in effect from 5 July 2022) (the Conservation Advice) about habitat critical to the survival of the species. The appellant’s secondary contention relied on those findings in conjunction with the primary judge’s findings about the likely impact of the proposed action on the Glider.
(b) In the alternative, the primary judge erred in his approach to the application of s 140 of the Evidence Act 1995 (Cth) (ground 2). The appellant contends that, applying the correct approach, the primary judge should have made two particular factual findings that he did not make (set out later in these reasons).
6 By an amended notice of contention (the notice of contention), the Secretary contends that the judgment of the primary judge should be affirmed on the additional basis that the exemption in s 43B of the EPBC Act applies. Although the Secretary’s original notice of contention contained a contention that the primary judge erred in relation to the Melbourne Corporation issue, that contention is no longer pressed. Further, the Attorney-General for the State of Victoria, who is named as the second respondent to the appeal, has not participated in the appeal and has provided a submitting letter.
7 Since the decision of the primary judge, planned burns have been carried out in three of the four planned burn areas. In advance of the hearing of the appeal, the Secretary provided an affidavit of Kelly Crosthwaite, the Deputy Secretary, Bushfire & Forest Services Group within the Department of Energy, Environment and Climate Action, dated 8 August 2024. The affidavit provides a brief description of the three planned burns that have been carried out. At the hearing of the appeal, the affidavit was read by the Secretary without objection.
8 For the reasons that follow, we have concluded, in summary, as follows:
(a) In relation to ground 1 and the appellant’s primary contention, it is not established (on the basis of the primary judge’s findings) that there was a real chance that the proposed action would adversely affect habitat critical to the survival of the Glider as a species. In particular, there is no finding by the primary judge that the planned burn areas comprise or include habitat critical to the survival of the Glider within the description provided in the Conservation Advice. This is unsurprising in circumstances where there does not appear to have been expert evidence to that effect. We therefore reject the appellant’s primary contention. In relation to the appellant’s secondary contention, we consider that the primary judge was correct to conclude that the appellant had not established that it was likely that the reduction in abundance of hollow-bearing trees would have a significant impact on the abundance of Gliders in the planned burn areas. We therefore reject the secondary contention.
(b) In relation to ground 2, no error is shown in the primary judge’s approach to the application of s 140 of the Evidence Act. In any event, there was insufficient evidence to establish either of the factual propositions contended for by the appellant. We therefore reject ground 2.
9 In light of those conclusions, it is unnecessary to consider the notice of contention. Nevertheless, we make some observations about the issues raised by the notice of contention.
10 It follows that the appeal is to be dismissed.
Background facts
11 The following is a brief statement of the background facts, drawn from the Reasons, to provide context for the issues raised by the appeal.
The Strathbogie State Forest and the planned burns
12 The Strathbogie State Forest comprises an area of approximately 23,000 hectares within the Strathbogie Ranges in Victoria.
13 There was no dispute in the proceeding at first instance (and there is no dispute on appeal) that the Strathbogie State Forest, and in particular the four planned burn areas, include habitat suitable for the Glider and that some Gliders were likely to be present in the planned burn areas. (We note that the Secretary’s acceptance of this proposition was framed in terms of “suitable” as distinct from “critical”.)
14 As at the time of the hearing at first instance, as a part of the Victorian fuel management program to reduce bushfire risk in the Hume region, the Secretary proposed to conduct planned burns in four areas within the Strathbogie State Forest:
(a) Lima East – Mt Albert;
(b) Barjarg / Harpers Road;
(c) Strathbogie South / Ruoaks Road; and
(d) Tallangallook – Black Creek Track.
15 The planned burn areas are identified in the map set out at [16] of the Reasons.
The Southern Greater Glider
16 The Southern Greater Glider is one of two species of the Greater Glider. The Greater Glider is a large gliding possum, which has a head and body length of 35-46 cm with a long, furry, non-prehensile tail measuring 45-60 cm, and an adult weight range from 900-1,700 grams. There are currently two recognised species:
(a) Petauroides minor (Greater Glider (northern)), found in north-eastern Queensland; and
(b) Petauroides volans (Greater Glider (southern and central)) found in south-eastern Australia, which is generally referred to in Victoria as the “Southern Greater Glider” (and is referred to in these reasons as the “Glider”).
The proceeding at first instance was concerned with the latter species.
17 The Greater Glider was listed in the vulnerable category of the threatened species list under the EPBC Act effective from 5 May 2016. With effect from 5 July 2022, the Southern Greater Glider was recognised as a separate species and was listed in the endangered category following an assessment by the Threatened Species Scientific Committee (the Scientific Committee) against the applicable listing criteria. (The Scientific Committee is established under s 502 of the EPBC Act and comprises members appointed by the Commonwealth Minister.)
18 Under the applicable statutory definition, a native species is eligible to be included in the endangered category if it is “facing a very high risk of extinction in the wild in the near future, as determined in accordance with the prescribed criteria”, but is not critically endangered: see s 179(4) of the EPBC Act. The criteria are set out in the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) (the EPBC Regulations), reg 7.01, which relevantly provides that a native species is in the endangered category if it meets any of the criteria for the category mentioned in the table set out in that regulation. In relation to the endangered category, one of the criteria listed in the table (criterion 1) is that the species “has undergone, is suspected to have undergone or is likely to undergo in the immediate future: … a severe reduction in numbers”. It was determined that the Glider satisfied that criterion.
19 The Strathbogie State Forest supports a high density of the Glider, with the total population across the Strathbogie Ranges having been estimated to be approximately 69,000. The Strathbogie Ranges population is particularly important as it has not experienced the declines observed elsewhere in Victoria.
The Conservation Advice
20 The EPBC Act requires an approved conservation advice to be prepared for each listed threatened species: s 266B(1). An approved conservation advice must contain a statement setting out the grounds on which the species is eligible to be included in the category in which it is listed and the main factors that are the cause of it being so eligible: s 266B(2)(a). It must also set out information about what could appropriately be done to stop the decline of, or support the recovery of, the species: s 266B(2)(b)(i).
21 Conservation advices under the EPBC Act are provided to the Commonwealth Minister by the Scientific Committee. The functions of the Scientific Committee include advising the Minister on approved conservation advices and the amendment and updating of the lists established under Pt 13 of the EPBC Act (including the lists of threatened species for which ss 178 and 179 provide): s 503. A conservation advice must be approved in writing by the Commonwealth Minister, following consultation with the Scientific Committee, before its publication on the internet: s 266B(2)-(7).
22 The Conservation Advice states (on page 2) that “[t]he main factors that make the species [i.e. the Glider] eligible for listing in the Endangered category are an overall rate of population decline exceeding 50 percent over a 21-year (three generation) period, including population reduction and habitat destruction following the 2019–20 bushfires”. The supporting evidence on which the Scientific Committee relied was set out in Attachment A to the Conservation Advice.
23 The Conservation Advice describes the Glider as the largest gliding possum in eastern Australia (page 3). The advice states that the Glider has a broad distribution “from around Proserpine in Qld, south through NSW and the ACT, to Wombat State Forest in central Vic”, and that its area of occupancy has decreased substantially since European settlement, mostly due to land clearing, and is continuing to decline due to further clearing, fragmentation impacts, edge effects, bushfire, climate change and some forestry activities (pages 3-4).
24 The Conservation Advice states (on page 5) that the Glider is an arboreal nocturnal marsupial, predominantly solitary and largely restricted to eucalypt forests and woodlands of eastern Australia; it is typically found in highest abundance in taller, montane, moist eucalypt forests on fertile soils, with relatively old trees and abundant hollows.
25 The Conservation Advice states (on pages 5-6) that: during the day, the Glider shelters in tree hollows, with a particular preference for large hollows (diameter more than 10 cm) in large, old trees; both live and standing dead trees are used for denning, but the species prefers to use live hollow-bearing trees when adequate numbers are available; most hollow-bearing trees used for denning by arboreal and scansorial mammals are at least 100 years of age; however, the size and age at which suitable hollows develop depends on tree species and climate; multiple dens are used by each individual Glider, typically within a relatively small home range (1 to 4 hectares); densities of Gliders vary significantly across the Glider’s range, and average densities have been found to range from 0.6 to 2.8 individuals per hectare in Victoria.
26 The availability of tree hollows is identified in the Conservation Advice (at page 5) as a key limiting resource and the probability of the occurrence of the species is positively correlated with the availability of tree hollows. The Conservation Advice notes (on page 7) that “[l]arge hollow-bearing trees are in rapid decline in some landscapes … primarily due to timber production practices and bushfires that prevent trees growing to an age when they might produce hollows” (citation omitted), and that this is a concern for recovery of the species. The advice also states that abundance of hollow-bearing trees may be an overestimate of the actual number that are suitable for occupation by wildlife, as only one in every three to five hollow-bearing trees within montane ash forests is occupied by arboreal marsupials. The Conservation Advice states that “[a] decline or loss of hollow-bearing trees reduces the numbers of greater gliders in the landscape”.
27 The Conservation Advice states (on page 7) that the Glider is sensitive to bushfire and is slow to recover following major fires. Thus, “[o]ver the longer term, repeated disturbance such as intense or too-frequent fires degrades greater glider habitat by changing the composition, structure and nutrient profile of forests”, including the destruction of live and dead hollow-bearing trees, particularly in young forests. The advice states (at page 8) that, while unburnt areas provide critical refuges for gliders in regions heavily impacted by fires, Gliders have limited dispersal capabilities and are slow to recover and recolonise burnt sites following fire.
28 The Conservation Advice (at pages 8-9) describes habitat critical to the survival of the Southern Greater Glider as follows:
Habitat critical to the survival
Within the same forest type (with similar habitat structure and tree species composition), the species’ occurrence is positively correlated with levels of foliar nutrients …, amount of foliage …, canopy productivity …, stand age …, overstorey basal area …, tree hollow abundance …, patch size … and connectivity ….
Habitat critical to survival for the greater glider (southern and central) may be broadly defined as (noting that geographic areas containing habitat critical to survival needs to be defined by forest type on a regional basis):
• large contiguous areas of eucalypt forest, which contain mature hollow-bearing trees and a diverse range of the species’ preferred food species in a particular region; and
• smaller or fragmented habitat patches connected to larger patches of habitat, that can facilitate dispersal of the species and/or that enable recolonization; and
• cool microclimate forest/woodland areas (e.g. protected gullies, sheltered high elevation areas, coastal lowland areas, southern slopes); and
• areas identified as refuges under future climate changes scenarios; and
• short-term or long-term post-fire refuges (i.e. unburnt habitat within or adjacent to recently burnt landscapes) that allow the species to persist, recover and recolonise burnt areas.
Habitat meeting any one of the criteria above is considered habitat critical to the survival of greater glider (southern and central), irrespective of the current abundance or density of greater gliders or the perceived quality of the site. Forest areas currently unoccupied by the greater glider (southern and central) may still represent habitat critical to survival, if the recruitment of hollow-bearing trees as the forest ages could allow the species to colonise these areas and ensure persistence of a subpopulation.
No Critical Habitat as defined under section 207A of the EPBC Act has been identified or included in the Register of Critical Habitat.
(Emphasis added; footnote omitted.)
29 Under the heading “Important populations” (on page 9), the Conservation Advice states:
Given its Endangered status, all populations of the greater glider (southern and central) are important for the conservation of the species across its range. Due to the species’ low fecundity and limited dispersal capabilities, areas where the species has become locally extinct are not readily recolonised. Coastal populations may be important for maintaining genetic diversity, as they are geographically distinct from inland populations (DoEE 2016b).
30 The Conservation Advice identifies (at page 9) the key threats to the Glider as frequent and intense bushfires, inappropriate prescribed burning, climate change, land clearing and timber harvesting – noting that “[t]here are synergies between these threats, and their combined impact needs to be considered in the recovery of the species”.
31 The threat arising from “inappropriate fire regimes” is addressed in the Conservation Advice (at pages 9-10) as encompassing both extensive severe bushfires and high frequency fires. Dealing with the former, the Conservation Advice states: “Substantial population losses or declines have been documented in and after high severity bushfires … Losses can occur as a result of direct mortality due to lethal heating or suffocation from smoke, or indirect mortality due to the loss of key habitat features and resources”. As to “high frequency fires”, the Conservation Advice notes that “[f]requent fire can decrease the availability of hollow-bearing trees in the landscape, and change the floristic composition and nutritional profile of glider habitat”. In that context, the Conservation Advice specifically addresses planned burning (at page 10):
Too intense or frequent planned burning may contribute to population losses or declines in the southern part of the greater glider’s range. Bluff (2016) reported that hollow-bearing trees (HBTs) affected by fire during planned burns were 28 times more likely to collapse than HBTs that were not burnt. Parnaby et al. (2010) found that following low intensity prescription burns in the Pilliga forests (NSW), mean collapse rates for burnt HBTs were 14-26%. This was consistent with the collapse rate of 25.6% found by Bluff (2016). A survey following a planned burn at Tallarook Range in the Central Highlands (Vic) in 2021 found that a large number of potential greater glider habitat trees were burnt, with “many destroyed” (N. Stimson 2021, pers. Comm. 26 June).
There is increased pressure from some parts of the community to undertake more hazard reduction burning, follow[ing] the severe bushfires of 2019-20.
(Emphasis added.)
32 The Conservation Advice also refers (at page 11) to physical disturbances associated with firefighting operations, including the construction of roads and control lines, earthworks, tree removal and backburning. In relation to planned burning, the Conservation Advice relevantly notes (at page 11):
In Vic, loss of HBTs due to mechanical site preparation works associated with prescribed burning (which primarily occurs in foothill forests close to settled areas) may reduce suitable habitat for the greater glider (southern and central). Trees that are assessed as potentially hazardous (if they were to catch fire) are routinely removed from the perimeter of planned burns on public land in Vic. They are also removed from bushfire control lines during and after bushfire suppression activities (DELWP n.d). Although not all hazardous trees are hollow bearing, many are, or are likely to be trees that form hollows more quickly (J Nelson 2021. pers comm 16 April).
33 The conservation and recovery actions recommended by the Conservation Advice relevantly include the following (at page 18):
• Re-assess and revise current prescriptions used for prescribed burning to ensure that the frequency and severity of fires in greater glider habitat are minimised, in order to mitigate the risk of further population declines and loss of hollow-bearing trees. Measures to reduce risk from future bushfires should be strategic, incorporate adaptive management, and include a risk assessment that considers trade-offs between fire control efficiency and environmental damage.
• Implement and enforce measures to reduce direct mortality and loss of hollow-bearing trees during site preparation and execution of prescribed burns, including rake hoeing around the base of trees.
• Ensure that eucalypt forests and the impacts of disturbance (including fire) are managed to prevent them transitioning to less nutritious, hotter, and/or more fire-prone plant communities, and to ensure that food tree species preferred by the greater glider (southern and central) continue to be the dominant canopy trees.
• Protect and maintain sufficient areas of suitable habitat, including denning and foraging resources and habitat connectivity, to sustain viable subpopulations throughout the species’ range.
(Emphasis added.)
34 The Conservation Advice addresses (at pages 20-21) survey and monitoring priorities both in relation to Gliders and hollow-bearing trees, as well as information and research priorities including “the development of guidelines for fire management by assessing the impacts of fire management and different fire regimes (including frequency and intensity) on habitat, subpopulation size and hollow availability”.
35 Attachment A to the Conservation Advice (pages 35-49) contains the Scientific Committee’s listing assessment for the Glider. It is noted at page 35 that the assessment used the criteria set out in the EPBC Regulations. In summary, the Scientific Committee’s assessment was that the Glider met criterion 1 in relation to the endangered category. The Committee concluded that the Glider was not eligible under criteria 2, 3 or 4 and that there was insufficient data in relation to criterion 5.
36 At pages 39-42 of the Conservation Advice, there is discussion of the position of the Glider prior to the 2019-2020 bushfires. In relation to Victoria, there is first discussion about the Central Highlands, where in the period 1997-2010 there was a decline of 8.8 percent per year. It is stated that, in 2018, a broad-scale survey of 80 sites spread across central and north-eastern Victoria found low numbers of Gliders at the majority of sites. It is then stated:
In contrast, surveys using the same broad-scale survey methodology in the Strathbogie Ranges in north-eastern Vic found relatively high densities of gliders, with 4.92 gliders detected on average per transect (range 0−14; …). Analyses of the survey data estimated the number of greater gliders (southern and central) within the Strathbogie Ranges to be 69 000, although with relatively broad confidence intervals (95 percent confidence interval 3000−121 000 individuals). A comparison of data from three surveys conducted in the Strathbogie Ranges in 1983 (Land Conservation Council 1984), 1997 (Downes et al. 1997) and 2017 (Nelson et al. 2018), suggests that the subpopulation in the Strathbogie Ranges has not declined over a 34 year period to the extent that has been observed elsewhere in Vic …(Nelson et al. 2018).
37 There is discussion of the position after the 2019-2020 bushfires at pages 42-45. This includes (at page 42):
The full impact of the 2019-20 bushfires on the greater glider (southern and central) has yet to be determined but the population is likely greatly reduced. The fires may have accelerated any ongoing population decline, with approximately 40 percent of the species’ distribution overlapping with the fire-affected areas … These fires covered an unusually large area and, in many places, burnt with an unusually high intensity. Its pre-fire imperilment, together with the extent of mortality as a result of fire and the unfavourable post-fire conditions (loss of hollows, increased susceptibility to predators, and loss of food resources), as well as a reduction in future recruitment, led to the greater glider (southern and central) being identified as one of the highest priority species for urgent management intervention by the Wildlife and Threatened Species Bushfire Recovery Expert Panel …
38 The Scientific Committee’s conclusion in relation to criterion 1 is set out at page 46 of the Conservation Advice:
Given the uncertainty in the estimates of overall decline, the Committee considers that the species has undergone a severe reduction in numbers of at least 50 percent over the past three generation period (21 years for this assessment) (Criterion 1A2), and over a three generation period that includes both the past and the future (Criterion 1A4). The reduction has not ceased and the cause has not ceased. Therefore, the species has met the relevant elements of Criterion 1 to make it eligible for listing as Endangered.
The key relevant provisions
39 The key relevant provisions of the EPBC Act are as follows. The version of the EPBC Act provided by the parties is compilation No. 62, which has a compilation date of 15 December 2023. We set out the provisions as they appear in that version of the Act.
40 Section 18 (located in Ch 2, Pt 3) prohibits a person from taking an action that has or will have, or is likely to have, a significant impact on a listed threatened species that is included in the “extinct in the wild”, “critically endangered”, “endangered” or “vulnerable” categories, and imposes civil penalties for contravention by an individual or a body corporate. Section 18(3) provides:
Endangered species
(3) A person must not take an action that:
(a) has or will have a significant impact on a listed threatened species included in the endangered category; or
(b) is likely to have a significant impact on a listed threatened species included in the endangered category.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
(Emphasis added.)
41 The word “action” is relevantly defined to include “an activity or series of activities”: s 523(1)(d).
42 The word “impact” is relevantly defined by s 527E as follows:
527E Meaning of impact
(1) For the purposes of this Act, an event or circumstance is an impact of an action taken by a person if:
(a) the event or circumstance is a direct consequence of the action; or
(b) for an event or circumstance that is an indirect consequence of the action—subject to subsection (2), the action is a substantial cause of that event or circumstance.
(2) For the purposes of paragraph (1)(b), if:
(a) a person (the primary person) takes an action (the primary action); and
(b) as a consequence of the primary action, another person (the secondary person) takes another action (the secondary action); and
(c) the secondary action is not taken at the direction or request of the primary person; and
(d) an event or circumstance is a consequence of the secondary action;
then that event or circumstance is an impact of the primary action only if:
(e) the primary action facilitates, to a major extent, the secondary action; and
(f) the secondary action is:
(i) within the contemplation of the primary person; or
(ii) a reasonably foreseeable consequence of the primary action; and
(g) the event or circumstance is:
(i) within the contemplation of the primary person; or
(ii) a reasonably foreseeable consequence of the secondary action.
43 Section 18A creates criminal offences that correspond to s 18. Section 18A relevantly provides:
(2) A person commits an offence if:
(a) the person takes an action; and
(b) the action is likely to have a significant impact on:
(i) a species; or
(ii) an ecological community; and
(c) the species is a listed threatened species, or the community is a listed threatened ecological community.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2A) Strict liability applies to paragraph (2)(c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(Emphasis added.)
44 Section 19 provides a range of exceptions or defences to the civil penalty and offence provisions. These include if an approval is in operation under Pt 9 of the EPBC Act.
45 Section 43B (located in Ch 2, Pt 4) provides as follows:
43B Actions which are lawful continuations of use of land etc.
(1) A person may take an action described in a provision of Part 3 without an approval under Part 9 for the purposes of the provision if the action is a lawful continuation of a use of land, sea or seabed that was occurring immediately before the commencement of this Act.
(2) However, subsection (1) does not apply to an action if:
(a) before the commencement of this Act, the action was authorised by a specific environmental authorisation; and
(b) at the time the action is taken, the specific environmental authorisation continues to be in force.
Note: In that case, section 43A applies instead.
(3) For the purposes of this section, neither of the following is a continuation of a use of land, sea or seabed:
(a) an enlargement, expansion or intensification of use;
(b) either:
(i) any change in the location of where the use of the land, sea or seabed is occurring; or
(ii) any change in the nature of the activities comprising the use;
that results in a substantial increase in the impact of the use on the land, sea or seabed.
46 The date of the commencement of the EPBC Act, as referred to in s 43B, was 16 July 2000.
47 Chapter 4 of the EPBC Act sets out processes for environmental assessments and approvals by the Commonwealth Minister. These processes generally involve three stages: deciding whether approval is needed and identifying the applicable “controlling provisions” (Pt 7); assessing the relevant impacts of the action (Pt 8); and deciding whether or not to approve the action, and on what conditions (Pt 9).
48 The environmental assessment and approval process contained in Ch 4 of the EPBC Act is generally enlivened by a referral to the Commonwealth Minister by the proponent (generally the person proposing to take the action, or a party to a contract or agreement under which the action is proposed to be taken) or by a State or an agency of a State that is aware of the proposed action. A proposed action is a “controlled action” if the taking of the action by the person without approval under Pt 9 would be prohibited by a provision of Pt 3, which is referred to as a “controlling provision” for the action: see s 67. Section 68(1) provides that a person proposing to take an action that the person thinks may be or is a controlled action must refer the proposal to the Minister for the Minister’s decision as to whether or not the action is a controlled action. A proponent may refer the proposed action to the Commonwealth Minister for this purpose even if the proponent does not think that the action is a controlled action: s 68(2).
49 Section 475 of the EPBC Act relevantly provides:
475 Injunctions for contravention of the Act
Applications for injunctions
(1) If a person has engaged, engages or proposes to engage in conduct consisting of an act or omission that constitutes an offence or other contravention of this Act or the regulations:
(a) the Minister; or
(b) an interested person (other than an unincorporated organisation); or
(c) a person acting on behalf of an unincorporated organisation that is an interested person;
may apply to the Federal Court for an injunction.
Prohibitory injunctions
(2) If a person has engaged, is engaging or is proposing to engage in conduct constituting an offence or other contravention of this Act or the regulations, the Court may grant an injunction restraining the person from engaging in the conduct.
…
Meaning of interested person—organisations
(7) For the purposes of an application for an injunction relating to conduct or proposed conduct, an organisation (whether incorporated or not) is an interested person if it is incorporated (or was otherwise established) in Australia or an external Territory and one or more of the following conditions are met:
(a) the organisation’s interests have been, are or would be affected by the conduct or proposed conduct;
(b) if the application relates to conduct—at any time during the 2 years immediately before the conduct:
(i) the organisation’s objects or purposes included the protection or conservation of, or research into, the environment; and
(ii) the organisation engaged in a series of activities related to the protection or conservation of, or research into, the environment;
(c) if the application relates to proposed conduct—at any time during the 2 years immediately before the making of the application:
(i) the organisation’s objects or purposes included the protection or conservation of, or research into, the environment; and
(ii) the organisation engaged in a series of activities related to the protection or conservation of, or research into, the environment.
The proceeding at first instance
50 In the proceeding at first instance, the appellant sought an injunction under s 475 of the EPBC Act to restrain the Secretary from conducting planned burns in the Strathbogie State Forest. The appellant contended that the Secretary was required to follow the approval processes set out in Pt 9 of the EPBC Act before carrying out the proposed planned burns, in order to avoid a contravention of s 18(3) of the EPBC Act.
51 In its amended statement of claim (in paragraph 10), the appellant alleged that the planned burns in the Strathbogie State Forest constituted an action that would have, or was likely to have, a significant impact on the Glider, in that fire:
(a) leads to a long-term decrease in the size of an important population of the Glider;
(b) reduces the area of occupancy of an important population of the Glider; and
(c) adversely affects habitat critical to the survival of the Glider.
52 The case presented by the appellant at first instance had two distinct aspects. The first was concerned with the direct impacts of the planned burns on the Glider. That part of the case, which occupied a large part of the hearing at first instance, is not pursued on appeal. The second part of the case concerned whether the planned burns were likely to have a negative effect on habitat critical to the survival of the Glider, with consequential negative effects on the Glider. The appeal is related to that part of the case, but there is an issue (discussed below) whether it is being presented in a significantly different way.
53 The parties called a number of expert witnesses to give evidence in the proceeding at first instance. Of relevance for present purposes, the appellant called Dr Charles Meredith and the Secretary called Dr Matthew Swan. Their background and expertise are as follows:
(a) Dr Meredith is a scientist who specialises in forest and fire ecology, with particular experience in the management of endangered species. He has been involved as a consultant in multiple ecological and impact assessments of forest sites in Victoria, New South Wales and Tasmania, including many within the range of the Glider. Dr Meredith was asked to provide his expert opinion on questions relating to the characteristics and distribution of the Glider, including its presence in the Strathbogie State Forest, and the likely impact of planned burning on the Glider.
(b) Dr Swan is a Senior Research Fellow at the School of Agriculture, Food and Ecosystem Sciences at the University of Melbourne, whose field of research is the effects of fire on animals, plants and forest structure. He was instructed to provide his expert opinion on questions relating to the impact of the planned burns on Gliders, including direct mortality and indirect effects on habitat and food resources.
The reasons of the primary judge
Introduction
54 The primary judge summarised his conclusions in the Introduction to the Reasons at [1]-[13]. This section included the following statement in the last sentence of [10]:
… there is a real chance that the planned burns will cause some reduction in the abundance of hollow-bearing trees in the planned burn areas, but the evidence does not establish that this is likely to lead to any significant reduction in the abundance of gliders in the planned burn areas, nor in the Strathbogie State Forest.
Background and factual matters
55 The primary judge set out background factual matters at [14]-[75] of the Reasons.
56 In that section of the Reasons, the primary judge referred in detail to the Conservation Advice. His Honour noted, at [23], that in Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704; 244 LGERA 92 (Friends of Leadbeater’s Possum) at [25]-[26], Mortimer J (as her Honour then was) described such conservation advices as “the mandatory and foundational documents describing each threatened species, its characteristics and habitat, and the threats posed to it”, and as containing “the formal recognition, for the purposes of the EPBC Act, of why the listed threatened species has been determined to need protection and what measures need to be taken to ensure its conservation and recovery”.
57 At [24], the primary judge noted that the appellant placed considerable reliance on the Conservation Advice. His Honour stated that, although the Secretary accepted that the Conservation Advice was an “authoritative document”, the Secretary submitted that it should not be “used as a proxy or surrogate for expert evidence in the case”. His Honour then observed: “While that may be so, the Conservation Advice is nevertheless itself in evidence and was referred to and relied on by several expert witnesses.” The primary judge stated at [25]:
There does not appear to be any dispute about the correctness of the contents of the Conservation Advice in so far as it has any bearing on the issues for determination in this case (although counsel for the Secretary noted that the contents of the Conservation Advice had not been specifically pleaded). I note that Mortimer J, in her fact-finding in Friends of Leadbeater’s Possum, considered that it was appropriate to place “significant weight” on the conservation advice for each of the species addressed in that case (which included an earlier iteration of the Conservation Advice for the Greater Glider, prior to the elevation of the Southern Greater Glider from the vulnerable category to the endangered category). As an instrument that has been approved by the Commonwealth Minister and published under the EPBC Act, the Conservation Advice is especially relevant to any assessment of whether an action will have or is likely to have a significant impact on a listed threatened species for the purposes of 18(3) of the EPBC Act. In the absence of any directly conflicting evidence or specific disagreement, I will proceed on the basis that the Conservation Advice is a reliable and accurate source of general information about the Southern Greater Glider, including its taxonomy, biology and ecology, distribution, and threats to its survival.
(Emphasis added.)
Overview of the evidence
58 At [143]-[330] of the Reasons, the primary judge provided an overview of the evidence. Much of this evidence is not relevant to the appeal, as the appeal concerns only the second aspect of the appellant’s case at first instance (see [52] above). Of relevance for present purposes, the primary judge’s summary of Dr Meredith’s evidence included:
222 In relation to hollow-bearing trees, Dr Meredith did not agree that it was difficult to predict the rate of collapse as a result of fire, noting that it was clear from existing research that there will be an increase in the rate of collapse of both dead and live trees, but probably more in relation to dead trees. Dr Meredith expressed the view that a collapse rate of 25% was “probably unusually high”, but surmised that there would be a collapse rate of between 15% and 20% from a particular planned burn. Dr Meredith accepted that he was not in a position to make a quantitative assessment of the impact on the Southern Greater Glider, in circumstances where he did not have information about the amount of suitable habitat (including the abundance of hollow-bearing trees) or the effects of past planned burning in the Strathbogie State Forest. Although hollow-bearing trees are a scarce resource that cannot be quickly replaced, Dr Meredith agreed that a single fire would not on its own have a significant impact if there were a surplus of habitat trees relative to need. However, multiple fires including planned burns could give rise to cumulative losses that would become important. The rate of loss of hollows would be far higher than the creation of new hollows that are habitable for Southern Greater Gliders.
223 Dr Meredith considered that a “conservative approach” would be not to burn areas that had not been previously burned, on the basis that “[l]ong-unburned areas are now very rare in the Victorian environment”. However, Dr Meredith gave evidence that most Australian forests “can cope with one fire within its normal fire regime”, which in the case of the Strathbogie State Forest was in the order of 20 to 60 years on average (although Dr Meredith considered this was “overly optimistic” and should be a longer period), and the concern was with cumulative impacts from more frequent fires.
(Emphasis added.)
59 The primary judge’s summary of Dr Swan’s evidence included the following:
308 Dr Swan did not consider that the planned burns were likely to change the Southern Greater Glider’s area of occupancy, which was reportedly extensive in the Strathbogie State Forest. He considered it unlikely that there would be local extinction within the planned burn areas, noting that there is good evidence that populations of Southern Greater Gliders persist in areas subject to low intensity fire. While there is likely to be a short-term reduction in the abundance of available hollow-bearing trees in each of the planned burn areas, Dr Swan considered that any potential effect on the local abundance of Southern Greater Gliders is unlikely to result in an overall change in its area of occupancy or to threaten the persistence of the population in the short term. Dr Swan noted unburnt areas, especially south facing slopes and gullies, would provide refuge from the effects of fire.
…
321 Dr Swan was asked about the abundance of hollow-bearing Mountain Gums in the Strathbogie State Forest. He considered that it was possible that there would be around 20 such trees per hectare, but that 50 trees per hectare would be “pretty high” and he could rule out 100 trees per hectare. Dr Swan noted that Mountain Gums were not the only hollow-bearing habitat tree, and that all of the Eucalypts in the area would form hollows that would be habitable. Dr Swan considered that it was reasonable to assume that there was a correlation between the number of hollow-bearing trees and the number of gliders in an area. He stated that a loss of hollow-bearing trees would not necessarily lead to a reduction in the density of Southern Greater Gliders, as it would depend on how dense the population was and the magnitude of the loss of hollow-bearing trees. However, he accepted that there was a real chance of a reduction in glider density.
…
329 Dr Swan was taken to a draft of his initial report in which he had referred to a “worst case scenario” of a reduction in abundance of Southern Greater Gliders due to a reduction in hollow-bearing trees, although stating that this was “far from certain”. This sentence was changed in Dr Swan’s final report as filed, which relevantly stated that “[a] decrease in hollow availability could potentially affect local abundance of SSGs within the planned burns, but this would be unlikely to threaten the persistence of the population in the short term”. Dr Swan confirmed that the reference in the draft report to a “worst case scenario” was not addressing an extreme or implausible outcome such as an uncontrolled bushfire, and he accepted that there is a real chance of a reduction in the abundance of gliders in the planned burn areas as a result of the planned burns. In re-examination, Dr Swan could not recall why he removed the reference to “worst case scenario” from his final report. However, he noted that he had accepted in his final report that a decrease in hollow availability could potentially affect local abundance of gliders, which was what he regarded as the worst case scenario, but he compared that to a loss in the area of occupancy which he considered was “very” unlikely.
(Emphasis added.)
60 The primary judge ordered that the appellant’s originating application be dismissed. Subsequently, he ordered the appellant to pay the Secretary’s costs.
The primary judge’s reasoning
61 The balance of the Reasons (commencing at [331]) was structured under the following headings:
(a) Issue 1: Will the planned burns have, or are the planned burns likely to have, a significant impact on the Southern Greater Glider within the meaning of s 18(3) of the EPBC Act?
(b) Issue 2: Do the planned burns fall within the exemption in s 43B of the EPBC Act?
(c) Issue 3: Is s 18(3) of the EPBC Act invalid in its application to the Secretary’s conduct?
62 The primary judge considered Issue 1 at [331]-[431] of the Reasons. His Honour discussed general principles at [331]-[353]. No issue is taken on appeal with his Honour’s discussion of the applicable principles relating to the words “significant impact” and “likely” in s 18(3) of the EPBC Act. Although at first instance the Secretary raised an issue about the meaning of “likely” (contending that it should be construed as “more probable than not”), the Secretary does not re-agitate that point on appeal. The primary judge’s discussion of the applicable principles relating to “significant impact” and “likely” included:
335 The EPBC Act does not define the term “significant impact”. In the present case, the parties accepted that a significant impact is one that is “important, notable or of consequence having regard to its context or intensity”: Booth at [99]-[100] (Branson J); VicForests v Friends of Leadbeater’s Possum Inc (2021) 285 FCR 70 at [62] (Jagot, Griffiths and SC Derrington JJ) (Friends of Leadbeater’s Possum FC). In a related context under s 139(2)(b) of the EPBC Act, the term “significant” has been taken to operate as a limitation to “exclude impacts which are minor or negligible on a listed threatened species”: Northern Inland Council for the Environment Inc v Minister for the Environment (2013) 218 FCR 491 at [92] (Cowdroy J). As Dowsett J observed in Krajniw v Brisbane City Council (No 2) [2011] FCA 563 at [10], the purpose of the EPBC Act “would not be achieved if any possibly adverse effect upon a species, however minor and however unlikely, was sufficient to engage either of ss 18 and 18A”.
336 Whether a proposed action is likely to have a significant impact under s 18 of the EPBC Act is a question of fact: Greentree at [192] (Sackville J); Australian Brumby Alliance at [230] (O’Bryan J). Importantly, assessing whether an impact is significant “is not a mathematical exercise, but rather a matter of considering the evidence as a whole”: Friends of Leadbeater’s Possum at [1308] cited with approval by the Full Court in Friends of Leadbeater’s Possum FC at [267].
337 The text of s 18(3) refers to a significant impact on a “listed threatened species”. It has been accepted that this requires demonstration of a significant adverse impact on the relevant species as a whole: Krajniw at [10]. However, this does not necessarily preclude assessment of impacts on individuals of a listed threatened species of fauna, or on localised populations of that species: see Friends of Leadbeater’s Possum at [1304]; Friends of Leadbeater’s Possum FC at [267]. Although the term is not itself used in s 18, a “population” of a species is defined in s 528 of the EPBC Act to mean an occurrence of the species or community in a particular area. While the statutory question remains one of impact on the species, evidence of impacts or effects on individuals or local populations “is capable of being probative of impact on the species as a whole”: Friends of Leadbeater’s Possum at [1308]. This can encompass consideration of the long-term survival of the species “at sufficient and sustainable levels of abundance, with sufficient and sustainable genetic diversity and across the species’ natural range”: Friends of Leadbeater’s Possum at [1304].
338 The term “likely” is also not defined in the EPBC Act. The weight of first-instance decisions in this Court supports a conclusion that “likely” in s 18(3) refers to “a real or not remote chance or possibility”, in the sense of “prone” or “with a propensity” or “liable”, as distinct from a test of “more probable than not”: Polaris Coomera Pty Ltd v Minister for the Environment [2021] FCA 254 at [226] (Rangiah J); Friends of Leadbeater’s Possum at [1298]; Northern Inland Council at [91]-[92]; Booth at [97]-[98]; see also Environment Council of Central Queensland Inc v Minister for the Environment and Water (No 2) [2023] FCA 1208; 413 ALR 318 at [58]-[59] regarding s 78(1)(a) (McElwaine J).
…
343 … I propose to adopt a construction of s 18(3)(b) of the EPBC Act that is consistent with the conclusion reached by Rangiah J in Polaris at [226], namely that the phrase “is likely to have” refers to “a real or not remote chance or possibility”. Although this formulation is expressed in disjunctive terms, I do not consider that there is any material distinction in this context between a “real” chance or possibility and a “not remote” chance or possibility, nor that there is any material distinction between a “chance” and a “possibility”. In other words, the phrase in s 18(3)(b) is directed to a real (in the sense of not remote) possibility of an impact of the relevant kind.
(Emphasis added.)
63 After that passage, the primary judge made the following statements, which are relevant to ground 2 of the appeal:
344 Nevertheless, the applicant bears the onus of establishing on the balance of probabilities that the proposed action will have or is likely to have a significant impact on the Southern Greater Glider as a species. In other words, the applicant must establish on the evidence as a whole that there is a real (in the sense of not remote) possibility that the planned burns will have an impact on the species that is important, notable or of consequence having regard to its context or intensity.
345 For such purposes, in deciding whether or not the applicant has proved its case on the balance of probabilities, s 140 of the Evidence Act requires the Court to take into account the nature of the cause of action, the nature of the subject matter of the proceeding, and the gravity of the matters alleged: see generally Booth at [69] ff. Section 140 reflects the common law as explained by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336: see e.g. Employment Advocate v Williamson (2001) 111 FCR 20 at [65]-[67] (Branson J); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at [31]-[32] (Weinberg, Bennett and Rares JJ). Accordingly, “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities in a case of this kind [that is, involving an alleged contravention of a statutory prohibition] might, depending on the nature of the particular fact or facts, be greater than would be required to establish a fact in issue on the balance of probabilities in a proceeding of a different kind”: Booth at [70].
346 In the present case, the applicant seeks injunctive relief pursuant to s 475(2) of the EPBC Act to restrain the Secretary from carrying out the planned burns, alleging that the planned burns would constitute an action that is prohibited by s 18(3) of the EPBC Act. Such an allegation is serious – in addition to injunctive relief, conduct in contravention of s 18(3) attracts a civil penalty and can constitute a criminal offence under s 18A of the EPBC Act. On the other hand, the proceeding seeks to restrain future conduct and does not allege that the Secretary has engaged in any past conduct in contravention of the EPBC Act. The granting of an injunction may nevertheless have significant consequences for the Secretary, and its ability to carry out planned burns as part of its fuel reduction program in the Hume region. If the matter were required to be referred to the Commonwealth Minister for assessment and approval, there is likely to be consequential impacts on the timing of the planned burns, although the applicant submitted that such processes are capable of being accommodated in the Secretary’s planning processes and suggested that it was likely that the Commonwealth Minister would ultimately grant approval on appropriate conditions.
347 In relation to the nature of the subject matter of the proceeding, I take into account that the objects under s 3(1) of the EPBC Act include the protection of the environment, especially matters of national environmental significance, and the conservation of biodiversity by including provisions to protect native species and to prevent the extinction, and promote the recovery, of threatened species. To that end, the EPBC Act requires the assessment and approval of actions that have, will have, or are likely to have a significant impact on listed threatened species, and confers standing on a wide class of interested persons to apply for injunctions to restrain actions in contravention of those requirements. This proceeding involves an assessment of the impact of the planned burns on the Southern Greater Glider as a listed threatened species in the endangered category under the EPBC Act. As will be discussed further below, I accept that the Strathbogie State Forest, including the planned burn areas, contain suitable habitat for a population of Southern Greater Gliders that is important to the conservation of the species.
(Emphasis added.)
64 The primary judge next described the question of significant impact on a species as involving a “single evaluative judgment” (at [348]). No issue is raised on appeal regarding that description.
65 The primary judge noted at [349] that it was accepted by the parties that the “precautionary principle” (see s 391(2) of the EPBC Act) did not itself have any direct application in the present proceeding. That remains the parties’ positions on appeal.
66 In the last paragraph of his discussion of general principles, the primary judge stated:
353 In the present case, in circumstances where the Strathbogie State Forest contains a population of Southern Greater Gliders that is important to the conservation of the species, it may be accepted that there would be a significant impact on the Southern Greater Glider if it were established that the planned burns were likely to result in a long-term and significant decrease in the size of the population of Southern Greater Gliders in the Strathbogie State Forest, or to cause a significant reduction in the area of occupancy of Southern Greater Gliders in the Strathbogie State Forest, or to have a significant adverse effect on habitat critical to the survival of the Southern Greater Glider in the Strathbogie State Forest.
While the above paragraph was criticised in the appellant’s outline of submissions on appeal, it did not receive much attention in the appellant’s oral submissions.
67 The primary judge considered the “Direct impacts of planned burns on the Gliders” at [383]-[419]. While that aspect of the appellant’s case is not pursued on appeal, that section of the primary judge’s reasons contains certain findings that are relied on by the appellant on appeal. The appellant relies on findings set out in the following passages:
387 … while the aim of each planned burn is to use low-intensity fire to reduce surface, near-surface and elevated fuel without significantly impacting on the overstorey or canopy, I find that there is a real chance that some areas or patches within the planned burn areas might burn with higher intensity than planned, and may experience high-severity fire leading to high canopy scorch. The evidence suggests that the areas in which there is high scorch or fire in the canopy are likely to be in the vicinity of 1 to 2%, or perhaps as high as 2.5%, of the planned burn areas. …
…
406 … I … find that there is a real chance that Southern Greater Gliders will be killed if they are present in areas that are affected by high severity fire resulting in high canopy scorch or crown fire. On the evidence, this is likely to be no more than between 1% to 2.5% of the planned burn areas.
…
409 In the circumstances, I accept that there is a real and not remote possibility that one or more individual Southern Greater Gliders in any areas affected by high canopy scorch or crown fire may be directly killed from the effects of heat or smoke.
…
411 It is not in dispute that hollow-bearing trees in the planned burn areas may collapse during or after the fire, and that the collapse rate may be higher than would generally apply in the absence of the planned burns. In other words, I accept that the planned burns may bring about the collapse of some hollow-bearing trees or render them more vulnerable to collapse, and that there is therefore a real chance that there will be some reduction in the abundance of hollow-bearing trees in the planned burn areas at least in the medium term. It is difficult to estimate the precise rate of collapse of hollow-bearing trees following a planned burn. There is one study (Bluff 2016) which found a collapse rate of up to 26%, while another study (Cowie 2016) estimated a collapse rate of around 15%. Dr Meredith considered that a collapse rate of 25% would be “unusually high”, and instead suggested a collapse rate of between 15% and 20%.
…
414 For the reasons set out above, I find that there is a real chance that a relatively small number of Southern Greater Gliders may be killed by the direct effect of the planned burns, whether by the effects of high severity fire or by the resulting collapse of hollow-bearing trees. …
68 The primary judge considered the “Effects of planned burns on hollow-bearing trees and habitat” at [420]-[431]. This section is central to the appeal. We therefore set it out in full:
Effects of planned burns on hollow-bearing trees and habitat
420 The next question is whether the planned burns are likely to have a negative effect on habitat in the planned burn areas that amounts to a significant impact on the Southern Greater Glider.
421 The applicant submitted that the Court should accept that there is a real chance that 26% of hollow bearing trees reached by fire will collapse after the four planned burns are conducted. The applicant relies on a study conducted by Bluff (2016) who found that, following a planned burn in Eucalypt forest, approximately 26% of hollow bearing trees reached by fire collapsed (being 20% of hollow bearing trees in the planned burn area). The applicant submits that the expert evidence in the present case essentially did not improve on this study of the effects of planned burns “presumably under low intensity conditions”. The applicant submits that such a rate of collapse is substantial, resulting in the loss of more than a quarter of the habitat trees in the area of 1,290 hectares that will be reached by fire under the planned burns. The applicant further submits that these areas represent “perhaps 10% of the best quality habitat” for the Southern Greater Glider in the Strathbogie State Forest, and that suggested mitigation measures in relation to the protection of hollow-bearing trees from fire are not sufficient to bring the impact beneath the threshold of “significant impact”.
422 The applicant submitted that Dr Swan had accepted there was a real chance that the planned burns might result in a reduction in the abundance of the Southern Greater Glider in the planned burn areas. The applicant submitted that such a reduction in abundance is a significant impact on the Southern Greater Glider in the Strathbogie State Forest and on the species as a whole, given that it is facing a very high risk of extinction in the wild in the near future based on an overall decline in its population.
423 The Secretary submitted that the applicant had failed to lead sufficient evidence to enable the Court to be satisfied that the collapse of hollow-bearing trees during or after the planned burns is likely to have a significant impact on Southern Greater Gliders, particularly in the absence of evidence in relation to the local abundance of Southern Greater Gliders relative to the local abundance of hollow bearing trees. The Secretary submitted that any hypothesised collapse rate of hollow-bearing trees was “a poor predictor” of the impact on Southern Greater Gliders in the circumstances of the present case, noting that:
(a) Southern Greater Gliders prefer to use live hollow-bearing trees, which have a far lower collapse rate than dead hollow-bearing trees;
(b) the preferred habitat of Southern Greater Gliders is around south-facing slopes and moist areas associated with drainage lines or creeks, and these areas are more likely to remain unburnt; and
(c) the severity of fire is important to the collapse of hollow-bearing trees, and there was evidence the effect that some portions of the planned burn areas are long unburnt and less flammable.
424 In respect of Dr Swan’s acceptance that there might be a reduction in the abundance of Southern Greater Gliders as a result of the collapse of hollow-bearing trees, the Secretary submitted that any such possible reduction in abundance was no more than an abstract proposition that was not tied to any predicted effect on the population or its area of occupancy, let alone an extrapolation to the population in the Strathbogie State Forest or the species as a whole.
425 Taking into account all of the evidence, I find that there is a real chance that a proportion of hollow-bearing trees in the planned burn areas will collapse during or after the planned burns. While I understand that there is a pre-existing “background” rate of collapse of hollow-bearing trees in eucalypt forests, the collapse rate is increased following fire events, including planned burning. As there are only a few published studies, it is difficult to estimate the collapse rate with any precision, but the evidence suggests that it is likely to be somewhere between 15% and 25% of the hollow-bearing trees in areas that are reached by fire, with dead hollow-bearing trees having a higher risk of collapse. As a consequence, the conduct of the planned burns is likely to lead to an overall decrease in the abundance of hollow-bearing trees in the planned burn areas.
426 In this regard, while the Delivery Plans for each of the planned burns include some mitigation measures directed to the protection of hollow-bearing trees, including raking around or wetting the base of such trees, those measures will largely be limited to hollow-bearing trees that are along the perimeter of the planned burn areas or adjacent to control lines or patrol lines. Those measures will not protect the majority of hollow-bearing trees that will be reached by fire within the planned burn area.
427 However, the evidence does not establish on the balance of probabilities that there is a real chance that such a reduction in abundance of hollow-bearing trees will have a significant impact on the Southern Greater Glider population in the Strathbogie State Forest, or on the species as a whole.
428 There is no evidence as to the number of hollow-bearing trees (whether live or dead) present in any of the planned burn areas, nor as to the distribution of hollow-bearing trees within those areas. Nor is there any evidence as to the number of hollow-bearing trees that might be in use by individual gliders in the planned burn areas at any particular time. In the absence of such evidence, it is a matter of speculation as to whether the reduction in the abundance of hollow-bearing trees will have any impact, let alone a significant impact, on the abundance of gliders present in the planned burn areas. Even if it is accepted that there might be some reduction in the abundance of gliders in the planned burn areas (which was accepted by Dr Swan but is not otherwise definitively established by the evidence), it is not clear that any such reduction would be substantial. The planned burns are less likely to reach areas that are not intended to be burnt, or that are unlikely to be burnt because they have a higher fuel moisture content, including areas around south-facing slopes, gullies or drainage lines, which would remain suitable and perhaps preferred habitat for Southern Greater Gliders.
429 Further, and in any event, it cannot be concluded that any reduction in the abundance of gliders in the planned burn areas from the reduction in available hollow-bearing trees might be such as would constitute a significant impact on the population of gliders in the Strathbogie State Forest, and thereby a significant impact on the species. This is consistent with the evidence that, notwithstanding the conduct of several planned burns over past decades in different areas within the Strathbogie State Forest, there has continued to be a robust population of Southern Greater Gliders that appears so far to have resisted the declines that have been observed in other regions. On the other hand, I am careful not to place too much weight on the past conduct of planned burns, in circumstances where large parts of the areas in question in the present case have remained relatively unburnt by either planned or unplanned fires.
430 Nevertheless, having regard to the burn history in the Strathbogie State Forest and in the burn areas, together with my findings about the likely behaviour and effects of the planned burns, none of the four planned burns is likely to involve fire that is either “too intense” or “too frequent”, in the terms referred to in the Conservation Advice when addressing the threats to the Southern Greater Glider.
431 Finally, while there was some evidence directed to the risk that hollow-bearing trees in the planned burn areas might be scarred by fire, causing structural damage that rendered those trees more vulnerable to future collapse in the event of a subsequent planned or unplanned fire, this was never pleaded or particularised by the applicant as a significant impact for the purposes of s 18(3) of the EPBC Act, and was not independently relied on in closing submissions.
(Emphasis added.)
69 In summary, in relation to Issue 1, the primary judge was not satisfied that the four planned burns that the Secretary proposed to carry out in the Strathbogie State Forest would have, or were likely to have, a significant impact on the population of Gliders in the Strathbogie State Forest or on the species as a whole within the meaning of s 18(3) (see the Reasons at [9]).
70 The primary judge considered Issue 2 (Do the planned burns fall within the exemption in s 43B of the EPBC Act?) at [432]-[464] of the Reasons. For the reasons there given, his Honour concluded that the exemption in s 43B did not apply. Given that this part of the Reasons is relevant only to the amended notice of contention, we will refer to it to the extent necessary later in these reasons.
71 The primary judge considered Issue 3 (Is s 18(3) of the EPBC Act invalid in its application to the Secretary’s conduct?) at [465]-[506] of the Reasons. That issue is not relevant for present purposes.
The appeal
72 The appellant’s notice of appeal contains two grounds. Sub-paragraphs (a), (b) and (c) of ground 2 are not pressed. The two grounds (omitting those sub-paragraphs) are as follows:
1. On the facts as found by the primary judge, the primary judge should have concluded that the proposed action is likely to have a significant impact, within the meaning of s 18(3) of the [EPBC Act], on the Southern Greater Glider, a listed threatened species included in the endangered category. He erred by incorrectly reaching the opposite conclusion.
2. The primary judge erred in his approach to the application of s 140 of the Evidence Act 1995 (Cth) to an application under s 475(2) of the EPBC Act to restrain the [Secretary] from engaging in conduct in which he proposed to engage, on the basis that such conduct would constitute the taking by the [Secretary] of an action in contravention of s 18(3)(b) of the EPBC Act. Applying the correct approach, the primary judge should have found, on the evidence led at trial, that there was a real and not remote possibility that the proposed conduct would result in:
…
d. decreases in the abundance of hollow-bearing trees of 26% or more;
e. substantial or material reduction in the abundance of Southern Greater Gliders from collapse of hollow bearing trees,
and would constitute the taking of an action that is likely to have a significant impact, within the meaning of s 18(3) of the EPBC Act, on the Southern Greater Glider, a listed threatened species included in the endangered category.
73 As noted above, the Secretary has filed the notice of contention, which raises the issue whether the exemption in s 43B applies. We will set out the Secretary’s grounds later in these reasons.
Consideration
Ground 1
74 The way in which this ground was presented orally differed from its presentation in the appellant’s outline of submissions for the appeal (and from the way the relevant part of the case was run below). In oral submissions, senior counsel for the appellant started with the primary judge’s finding in the last sentence of [10] of the Reasons that “there is a real chance that the planned burns will cause some reduction in the abundance of hollow-bearing trees in the planned burn areas”. Senior counsel embraced that part of the sentence, but said that the primary judge fell into error in the balance of the sentence, where he stated: “but the evidence does not establish that this is likely to lead to any significant reduction in the abundance of gliders in the planned burn areas, nor in the Strathbogie State Forest”. Senior counsel submitted that the last part of the sentence was an unnecessary part of the inquiry as to likely significant impact. Senior counsel described this as the “primary part” of the appellant’s case on ground 1. We will refer to that contention as the appellant’s primary contention in relation to ground 1.
75 Senior counsel said that, if that is not sufficient, the “next step” in the appellant’s case on ground 1 is to rely on the finding referred to above “in conjunction with the other findings about two types of what was described by experts and in the case generally as direct impacts”, that is, “a real chance that planned burns may kill or injure some individual gliders and a real chance that the collapse of hollow-bearing trees may kill or injure individual gliders that are present in those trees when they collapse”. We will refer to that contention as the appellant’s secondary contention in relation to ground 1.
76 Senior counsel also said that “we embrace the primary judge’s analysis of the need to take a conjunctive or cumulative approach to different effects in assessing whether there’s significant impact”. Senior counsel made clear that ground 1 relies “just on the facts as found” to contend that his Honour reached the wrong conclusion.
77 As we understand it, the difference between the appellant’s primary and secondary contentions is as follows. The appellant’s primary contention relies on the primary judge’s findings as to the likely impact of the proposed action on hollow-bearing trees (having regard to statements in the Conservation Advice that areas of forest containing hollow-bearing trees are critical habitat for the Glider as a species). On this contention, it was sufficient for the appellant to establish that the proposed action was likely to impact hollow-bearing trees (to establish that the proposed action was likely to have a significant impact on the Glider as a species). The appellant’s secondary contention relies on the same matters as the primary contention and the primary judge’s findings as to the negative effects of the proposed action on individual Gliders or the Glider population.
78 While both contentions are covered by ground 1 as formulated in the notice of appeal (which is expressed in general terms), the appellant’s primary contention did not form part of its outline of submissions for the appeal. The appellant’s outline of submissions presents only the secondary contention. Further, the appellant’s primary contention is different from the way the relevant part of the case (that is, the part of the case relating to hollow-bearing trees and habitat) was run at first instance, which was consistent with the secondary contention. This explains why the primary judge does not deal with a contention along the lines of the primary contention in the relevant part of the Reasons (at [420]-[431]). We will refer to the issue whether the appellant should be permitted to advance the primary contention later in these reasons.
79 The appellant’s submissions in support of the primary contention and the secondary contention can be summarised as follows.
80 In support of the primary contention, senior counsel for the appellant referred in oral submissions to a document published by the Commonwealth Department of Environment in 2013 entitled “Matters of National Environmental Significance: Significant impact guidelines 1.1” (Significant Impact Guidelines) (referred to by the primary judge at [350] of the Reasons). A copy of the Significant Impact Guidelines was provided to us during the hearing of the appeal. As noted by the primary judge, this document states that the purpose of the guidelines is to assist the proponents of an action to decide whether or not the action should be referred for assessment and approval by the Commonwealth Minister pursuant to the EPBC Act; for that purpose, the Significant Impact Guidelines set out criteria for determining whether an action is likely to have a significant impact on a listed threatened species. The appellant’s senior counsel noted that, in relation to critically endangered and endangered species, the Significant Impact Guidelines relevantly state:
An action is likely to have a significant impact on a critically endangered or endangered species if there is a real chance or possibility that it will:
…
• adversely affect habitat critical to the survival of a species …
81 Senior counsel for the appellant submitted that this was a “helpful indication of the types of matters that may be relevant to determining significant impact”. Senior counsel referred to Mortimer J’s discussion in Friends of Leadbeater’s Possum as to the use that can be made of the Significant Impact Guidelines (see at [1310]ff). Senior counsel also said that it was not an essential part of the appellant’s case to invite the Court to apply the guidelines.
82 Senior counsel for the appellant submitted that, in determining whether an event or circumstance has a significant impact on a listed threatened species in a particular category, it is useful to understand why the species is listed in that category. Relevantly for present purposes, the Conservation Advice refers to loss of habitat, including due to fire, as a threat to the Glider (at, eg, pp 9-10). He submitted that, in that regard, the EPBC Act has provided for a “very important yardstick”, which is the conservation advice, and the conservation advice properly informs the question whether an event or circumstance resulting from an action is a significant impact on the matter protected. Senior counsel relied on Friends of Leadbeater’s Possum at [24]-[27] per Mortimer J (a passage that was relied on by the primary judge – see [56] above). Senior counsel submitted:
the way we would explain it is that [the conservation advice is] a yardstick created and required under the Act by reference to which significant impact can be measured and, for example, it would be sufficient for an applicant to come under section 475 and put on evidence about the characteristics of a proposed action, measure that proposed action against the yardstick of the conservation advice, and persuade the court that there was a likely significant impact. It would not be necessary for an applicant to establish by expert evidence all of the elements of the conservation advice.
83 Senior counsel for the appellant made submissions about the structure and scheme of the EPBC Act, referring in particular to ss 19, 67, 68(1) and 75. He submitted that these provisions “drive” a proponent – that is, a person proposing to take an action – into the scheme of assessment and approval in Pts 7, 8 and 9 of the Act, whereby a decision whether to approve a proposed action is to be made by a Minister with expert advice in a politically accountable way. He submitted that s 475 contemplates the “feeding” of proposed actions into the scheme of Pts 7, 8 and 9 of the Act, and this affects the Court’s approach to proof and what is required to be shown.
84 In oral submissions, senior counsel for the appellant submitted:
… by way of example, once one knows that there’s [a] real chance of 25 per cent of hollow bearing trees in a 1290 hectare area being destroyed, that is sufficient to give rise to a real chance of a significant impact. It’s not, obviously, necessary to go on to ask, “Am I satisfied on the balance of probabilities that there will be a decline in abundance?”; it’s sufficient that there’s a real chance. And all the applicant needs to do is prove the facts that give rise to the real chance, not to prove on the balance of probabilities that it will occur.
We note that the reference to 25% should more accurately be a reference to a figure somewhere between 15% and 25% (this range was referred to by senior counsel for the appellant on other occasions). The finding made by the primary judge (at [425] of the Reasons) was that “the evidence suggests that the collapse rate is likely to be somewhere between 15% and 25% of the hollow-bearing trees in areas that are reached by fire”. We also note that there was no finding that an area of 1,290 hectares would be reached by fire. The primary judge referred to that figure at [421] of the Reasons, but that paragraph was merely summarising a submission made by the appellant. It seems that the figure of 1,290 hectares is an extrapolation from evidence filed by the Secretary to the effect that each planned burn had a target coverage (eg, 50% to 70%) of the planned burn area (see the affidavit of Shaun Lawlor dated 19 December 2023, AB Pt C, tab 20, paragraphs 92-94). The figure of 1,290 hectares appears to be the sum of the upper end of the ranges provided for each planned burn area (T148).
85 Senior counsel for the appellant referred in detail to the Conservation Advice, focussing on the numerous references to hollow-bearing trees. Senior counsel submitted that “[in] the decided cases … it has never been the approach under this Act to require a further inquiry once the Minister has been satisfied of destruction of important habitat. That has always been enough for a significant impact.” Senior counsel submitted that loss of hollow-bearing trees is an impact on the species because “either it’s going to result in a reduction of the actual number of species, or it’s going to prevent the recovery of the species”.
86 Senior counsel for the appellant took the Court to parts of the written and oral evidence of Dr Meredith and Dr Swan. The focus was on the evidence underpinning the findings relied on by the appellant. In the course of going through Dr Swan’s evidence, in an exchange with the Court, senior counsel said: “our primary point is you don’t even need to go as far as a decline in local abundance [of the species]. It’s enough that there’s the destructive effect on hollow-bearing trees.”
87 Senior counsel for the appellant relied on the primary judge’s findings at [387], [406], [411] and [425] (see [67] and [68] above). After referring to the primary judge’s statement in the last sentence of [425] that “[a]s a consequence, the conduct of planned burns is likely to lead to an overall decrease in the abundance of hollow-bearing trees in the planned burn area”, senior counsel submitted: “We say that should have been sufficient having regard to the conservation advice.”
88 We turn now to the appellant’s submissions in support of its secondary contention. The appellant’s submissions in support of that contention rely on the matters set out above and certain additional findings relating to the likely impact of the proposed action on individual Gliders or the Glider as a species. The appellant relies on the following additional findings:
(a) At Reasons, [409]: “there is a real and not remote possibility that one or more individual Southern Greater Gliders in any areas affected by high canopy scorch or crown fire may be directly killed from the effects of heat or smoke”.
(b) At Reasons, [414]: “there is a real chance that a relatively small number of Southern Greater Gliders may be killed by the direct effect of the planned burns, whether by the effects of high severity fire or by the resulting collapse of hollow-bearing trees”.
89 The appellant highlights the following aspects of the Conservation Advice. The advice notes that “[l]arge hollow-bearing trees are in rapid decline in some landscapes primarily due to timber production practices and bushfires that prevent trees growing to an age when they might produce hollows”, and that this is a concern for recovery of the species. In addition, the abundance of hollow-bearing trees may be an overestimate of the actual number that are suitable for occupation by wildlife, as only one in every three to five hollow-bearing trees within montane ash forests is occupied by arboreal marsupials. The Conservation Advice states that “[a] decline or loss of hollow-bearing trees reduces the numbers of greater gliders in the landscape”.
90 The appellant submits that expert evidence from Dr Swan established: (i) that there would be less than 50 hollow-bearing trees per hectare, and perhaps around 20 hollow-bearing trees per hectare; and (ii) a correlation between the number of hollow-bearing trees and the number of gliders in an area (Reasons, [321]).
91 The appellant submits that Dr Swan accepted that “there is a real chance of a reduction in the abundance of gliders in the planned burn areas as a result of the planned burns” (Reasons, [329]).
92 The appellant submits that the evidence accepted by the primary judge was to the following effect:
(a) the proposed action was likely to cause up to 25% of the hollow-bearing trees reached by fire (about 1,290 hectares of the 23,000 hectare forest) to collapse;
(b) the availability of hollow-bearing trees is a key limiting resource for the abundance of the Glider, and the probability of occurrence of the species is positively correlated with the availability of tree hollows; and
(c) the proposed action carried a real chance of causing a reduction in the abundance of Gliders in the planned burn areas.
In relation to (a), as noted at [84] above, the primary judge did not make a finding that about 1,290 hectares would be reached by fire; this appears to be an extrapolation from the evidence. Further, the primary judge’s finding was that the evidence suggested a collapse rate somewhere between 15% and 25% (rather than “up to 25%”) of the hollow-bearing trees in areas that are reached by fire.
93 The appellant submits that, on the facts as found, the primary judge should have been satisfied that there was a sufficient threat (to grant an injunction) that the proposed action was likely to have a significant impact on the Glider.
94 The Secretary contends that aspects of the appellant’s case on appeal are significantly different from the case run below. Senior counsel for the Secretary said that: “We don’t say that, by advancing an independent case … based on hollow-bearing trees, the appellant is advancing an entirely new case which could not be now advanced, because it was not advanced below. But what we do say is that the way it is now being put is different, and different in a way that matters.” Senior counsel contended that there were three differences. Senior counsel submitted that the first difference is the “controlling effect” now sought to be given to the Conservation Advice. Senior counsel submitted that, while it was accepted by the primary judge and accepted by the Secretary below that the Conservation Advice was an accurate source of general information about the Gliders, the case was run on extensive expert evidence. Secondly, senior counsel submitted that the proposition that the planned burn areas comprised or included habitat critical to the survival of the species was not part of the appellant’s case below. Accordingly, it was submitted, this matter was not the subject of expert evidence or findings. Thirdly, senior counsel submitted that cumulative impacts, which assumed some significance in the appellant’s oral submissions at the hearing of the appeal, were not part of the case below; they emerged in the context of evidence given by Dr Meredith, when he was seeking to explain his concern about planned burning. Senior counsel submitted that it would be unfair for these matters to become part of the case now because both the question of habitat critical to the species and the question of cumulative impacts are questions about which the Secretary would have wished to have the opportunity to put on evidence.
95 We will address each of the appellant’s contentions in turn.
96 In relation to the appellant’s primary contention, we prefer to deal with this contention on its merits rather than to decide whether it constitutes a new case on appeal in respect of which the appellant requires leave.
97 In our view, there are a number of difficulties with the appellant’s primary contention.
98 First, although the primary contention is premised on the planned burn areas comprising or including habitat critical to the survival of the species (as indicated by the submissions based on the Significant Impact Guidelines referred to at [80] above), it is not suggested that the habitat in the planned burn areas is “critical habitat” in the sense in which that expression is used in the EPBC Act (see s 528 (“critical habitat”) and s 207A(4)), which refers to listing in a register of critical habitat. There is no suggestion that the habitat in the planned burn areas has been listed in that register. The appellant appears to be using the expression “critical habitat” in a more general, non-statutory sense. However, the sense in which the appellant uses the expression is not clear. We note that the Significant Impact Guidelines contain a definition of “critical habitat” (which was referred to in the appellant’s closing oral submissions before the primary judge at trial transcript, pp 626-627). That definition (appearing at page 10) is as follows:
What is habitat critical to the survival of a species or ecological community?
‘Habitat critical to the survival of a species or ecological community’ refers to areas that are necessary:
• for activities such as foraging, breeding, roosting, or dispersal
• for the long-term maintenance of the species or ecological community (including the maintenance of species essential to the survival of the species or ecological community, such as pollinators)
• to maintain genetic diversity and long term evolutionary development, or
• for the reintroduction of populations or recovery of the species or ecological community.
Such habitat may be, but is not limited to: habitat identified in a recovery plan for the species or ecological community as habitat critical for that species or ecological community; and/or habitat listed on the Register of Critical Habitat maintained by the minister under the EPBC Act.
It may be that the Conservation Advice (upon which the primary contention heavily relies) uses the expression “critical habitat” in the same sense. We will proceed on this basis.
99 Secondly, the Conservation Advice, in its description of what constitutes habitat critical to the survival of the Glider, contains a number of qualifications. The most relevant section of the advice is the section headed “Habitat critical to the survival”, which has been extracted in full at [28] above. For ease of reference, we set out again the key part of that section for present purposes:
Habitat critical to the survival
…
Habitat critical to survival for the greater glider (southern and central) may be broadly defined as (noting that geographic areas containing habitat critical to survival needs to be defined by forest type on a regional basis):
• large contiguous areas of eucalypt forest, which contain mature hollow-bearing trees and a diverse range of the species’ preferred food species in a particular region; …
(Emphasis added.)
100 As is apparent from the above quotation, the description is qualified in three ways: it is said to be a “broad” definition; it notes that geographical areas containing habitat critical to survival “[need] to be defined by forest type on a regional basis”; and it relevantly captures only “mature” hollow-bearing trees. These qualifications make it necessary for there to be some expert evidence on the issue of whether a particular area is “critical habitat” before a finding to that effect can be made.
101 Thirdly, although ground 1 of the appeal depends entirely on the primary judge’s findings, there is no finding by the primary judge that the planned burn areas comprise or include habitat critical to the survival of the Glider within the description provided in the Conservation Advice. This is unsurprising in circumstances where there does not appear to have been expert evidence to that effect. We note that, in the proceeding at first instance, the Secretary accepted that the planned burn areas contained suitable habitat for the Glider, as did the rest of the Strathbogie State Forest (see the Secretary’s opening oral submissions at trial transcript, p 35, and the Secretary’s closing oral submissions at trial transcript, p 693). However, there is an important distinction between critical habitat and suitable habitat. The discussion in the expert evidence (both written and oral) about the impact of the planned burns on hollow-bearing trees (eg, the evidence about the collapse rate) took place in a context where it was accepted by the Secretary that such trees provided suitable habitat for the Glider; there was no acceptance that the trees in the planned burn areas were critical habitat for the Glider.
102 Fourthly, and in any event, the evidence relating to the number of hollow-bearing trees in the planned burn areas and the likely impact of the planned burns on such trees was not very developed and was somewhat imprecise (which is reflected in the findings made by the primary judge). Neither Dr Meredith’s report nor Dr Swan’s report addressed the number of hollow-bearing trees in the planned burn areas. In the cross-examination of Dr Swan (trial transcript, p 572), the following exchange took place relating to the number of hollow-bearing trees:
Are you in a position to give evidence about the maximum possible occurrence of hollow-bearing mountain gums per hectare in the Strathbogies?---No.
Are you in a position to rule out some possibility – so if I put to you could there be 100 hollow-bearing mountain gums per hectare in the Strathbogies, is that plausible?---Can I rule out if there’s 100 hollow-bearing mountain gums? I could – I’m pretty sure I could rule that out, to be honest. It’s very high.
Yes. Okay. 50?---Mountain gum specifically?
Yes?---That seems pretty high, I would say.
20?---Possible
HIS HONOUR: Mountain gums are not the only hollow-bearing tree that might be habitat trees?---No. All of the eucalypts in this area will be habitable, will form hollows.
103 This passage is accurately reflected in the primary judge’s summary of the evidence of Dr Swan at [321] of the Reasons (see [59] above). We were not referred to any other evidence about the number of hollow-bearing trees in the planned burn areas. The appellant’s submission (referred to above) that expert evidence from Dr Swan “established … that there would be less than 50 hollow bearing trees per hectare, and perhaps around 20 hollow bearing trees per hectare”, seems to overstate the evidence.
104 In relation to the likely impact of the planned burns on hollow-bearing trees in the planned burn areas, Dr Swan’s report included the following (at pages 7-8):
The most robust study of HBT collapse rates in Eucalypt forests in planned burns is from East Gippsland in drier, but similar forests to the SSF (Bluff 2016). This study found approximately 20% of HBTs in plots that were burned, collapsed (some trees didn’t experience fire within plots) and 26% of trees that were directly reached by fire, collapsed. A smaller study in a single fire in the Strathbogie Ranges in similar forest types to the proposed burns estimated 15% overall collapse (and 10% live HBT collapse) (Cowie 2016).
The exact collapse rates that are likely to be experienced in the four planned burns are difficult to predict. It will depend on the tree species, fire intensity, amount of fuel at the base of the trees and the status of the trees present (Likelihood of collapse is significantly higher in dead HBTs and trees with the presence of basal scars than for healthy live trees).
The 30-50% of the area of each burn that will remain unburnt will not see any change to tree collapse or SGG habitat as a result of the burns. There would be background levels of senescing tree collapse which is 1-4% per annum in other forest landscapes in Victoria (Lindenmayer and Wood 2010; Bennett et al. 2013). Typically, the areas that remain unburnt would include south facing slopes and moist areas associated with drainage lines or creeks. These parts of the landscape are also typically highest quality habitat for SGGs given these areas contain larger trees, more sheltered microclimate and are more productive (Nelson 2022).
…
The planned burns will likely lead to short-term a reduction in the abundance of HBTs in areas of each burn. However, in my view this is unlikely to result in an overall change in the area of occupancy. A decrease in hollow availability could potentially affect local abundance of SSGs within the planned burns, but this would be unlikely to threaten the persistence of the population in the short term. Furthermore, substantial areas of the planned burns, especially parts of south facing slopes and gullies will likely remain unburnt providing substantial refuge from any fire effects.
105 Dr Meredith was taken to the second paragraph in the above quotation in cross-examination and gave the following evidence (trial transcript, p 381):
You would agree with that?---Not entirely. I think he’s being a little Jesuitical there in saying it’s hard to predict. It’s pretty clear that there will be an increase. Okay. It’s hard to predict whether it will be 11, two or nine or whatever number of trees, but it is pretty clear from the existing data from Bluff and Cowie that there will be an increase.
Thank you?---And will probably be more in dead trees but live trees also.
All right?---And both those papers found an impact on live trees.
106 In re-examination, Dr Meredith gave the following evidence (trial transcript, pp 403-404):
You were asked questions about collapse of trees after prescribed burns. And you gave evidence to the effect of cumulative losses are important, and questions were asked of you in relation to in relation to percentage of trees being lost and whether you said anything about that in – you will recall. And then you said that you’ve been thinking about that since writing your report?---Yes.
What did you mean by that?---Thinking about the cumulative impact. So if you’ve got any other workers – Cowie and Bluff and other work by Bennett and Lyndameyer and so one – comes up with rates of between 15 and 25 per cent tree loss. I think 25 per cent is probably unusually high. So let’s say it’s 15 to 20 per cent from lighter level fires such as planned burns. Then you only need five fires and you’ve lost nearly all if not all your [hollow] bearing trees. So the cumulative effects are very, very significant.
107 This appears to be the extent of the expert evidence relating to the likely impact of the planned burns on hollow-bearing trees in the planned burn areas. The above evidence is accurately reflected in the primary judge’s findings at [425] of the Reasons (see [68] above).
108 For the reasons set out above, it is not established (on the basis of the primary judge’s findings) that there was a real chance that the proposed action would adversely affect habitat critical to the survival of the Glider as a species or that the likely effect on hollow-bearing trees is otherwise likely to be a significant impact on the Glider. This is not to say that the approach underpinning the appellant’s primary contention (namely, reliance on a real chance that an action would adversely affect habitat critical to the survival of a species) is not an available approach in an appropriate case. Our conclusion is based on the particular circumstances of this case, where the appellant seeks to rely (entirely) on findings of the primary judge, which do not include any findings, or refer to any evidence, that would enable the primary judge (or this Court) to conclude that there is a real chance that the burn areas are critical habitat. For the reasons we have given, we do not consider there to be sufficient findings to support the primary contention. We therefore reject the appellant’s primary contention.
109 We now turn to consider the appellant’s secondary contention. As discussed above, this relies on the same matters as relied on for the primary contention and the findings of the primary judge relating to the likely impact of the planned burns on Gliders. As indicated above, this contention is consistent with the way the relevant part of the case was run below.
110 As with the appellant’s primary contention, the secondary contention relies entirely on the primary judge’s findings.
111 It was common ground below (and remains common ground on appeal) that the appellant needed to show that the proposed action was likely to have a significant impact on the Glider as a species. This reflects the principles discussed by the primary judge at [337] of the Reasons (see [62] above). The primary judge held (at [413]) that, in order to establish this, it was sufficient for the appellant to show that the proposed action was likely to have a significant impact on the Glider population in the Strathbogie State Forest, this being an important population of the Glider species. There is no contention to the contrary in this appeal.
112 The chief difficulty with the appellant’s secondary contention is that the findings made by the primary judge do not provide a sufficient basis to conclude that the proposed action, and the likely reduction in abundance of hollow-bearing trees in the planned burn areas, were likely to have a significant impact on the Glider population in the Strathbogie State Forest.
113 To the extent that the appellant submits that “expert evidence from Dr Swan established … a correlation between the number of hollow-bearing trees and the number of gliders in an area”, the evidence referred to is of limited utility. All Dr Swan accepted during cross-examination was that it was “reasonable to assume” that there was a correlation (trial transcript, p 573). This is accurately reflected in the primary judge’s summary of Dr Swan’s evidence at [321] of the Reasons. Dr Swan gave no evidence about the extent or strength of any such correlation.
114 To the extent that the appellant relies on the concession made by Dr Swan during cross-examination that there was a real chance of a reduction in abundance of Gliders as a result of the planned burns (trial transcript, pp 607-608) (which is accurately reflected at [329] of the Reasons), this evidence did not extend to what proportion of the Glider population of the Strathbogie State Forest might be affected by the proposed action. Likewise, the primary judge did not make any findings as to the proportion of the population that might be affected. The findings that the appellant relies on at [409] and [414] of the Reasons (see [67] above) did not go that far.
115 As the primary judge stated at [428] of the Reasons, there was no evidence as to the number of hollow-bearing trees (whether live or dead) present in any of the planned burn areas, nor as to the distribution of hollow-bearing trees in those areas. Further, as the primary judge stated in the same paragraph, there was no evidence as to the number of hollow-bearing trees that might be in use by individual Gliders in the planned burn area at any particular time. Accordingly, the primary judge did not make findings about these matters.
116 In [428] of the Reasons, the primary judge stated that, in the absence of evidence about such matters, “it is a matter of speculation as to whether the reduction in the abundance of hollow-bearing trees will have any impact, let alone a significant impact, on the abundance of gliders present in the planned burn areas”. The appellant submitted that the use of the word “speculation” indicated that the primary judge had applied too high a threshold; in other words, that he had not applied the “real chance” test. We do not accept that submission. The primary judge correctly stated the applicable principles relating to the words “likely” and “significant impact” in an earlier section of his judgment (see [62] above). No criticism is made on appeal about that statement of the applicable principles. We do not accept that the primary judge failed to apply those principles when it came to the resolution of this part of the case. Further, we consider that the primary judge was correct to conclude that the appellant had not established that (and therefore it was a matter of speculation as to whether) it was likely (in the sense of a real chance) that the reduction in abundance of hollow-bearing trees (which he accepted) would have a significant impact on the abundance of Gliders in the planned burn areas. Such a finding could not be made in the absence of any evidence as to the number of Gliders that might be affected by the proposed action.
117 In summary, the findings made by the primary judge (upon which the appellant relies) do not bridge the gap between: (a) the likely reduction in abundance of hollow-bearing trees in the planned burn areas; and (b) any likely significant impact on the Glider population in the Strathbogie Forest.
118 For these reasons, we reject the appellant’s secondary contention. It follows that ground 1 is rejected.
Ground 2
119 By this ground, the appellant contends that the primary judge erred in his approach to the application of s 140 of the Evidence Act to an application under s 475(2) of the EPBC Act. The appellant contends that, applying the correct approach, the primary judge should have found, on the evidence led at trial, that there was a real and not remote possibility that the proposed action would result in:
(a) a decrease in the abundance of hollow-bearing trees of 26% or more (paragraph (d) of ground 2);
(b) a substantial or material reduction in the abundance of Gliders from collapse of hollow-bearing trees (paragraph (e) of ground 2),
and would constitute the taking of an action that is likely to have a significant impact, within the meaning of s 18(3) of the EPBC Act, on the Glider.
120 The key passage of the Reasons for the issue relating to s 140 of the Evidence Act is at [345]-[347] (see [63] above). In particular, at [345]-[346], the primary judge, relying on s 140 of the Evidence Act as discussed in Booth v Bosworth [2001] FCA 1453; 114 FCR 39 (Booth), stated that the allegation against the Secretary was “serious” because “conduct in contravention of s 18(3) attracts a civil penalty and can constitute a criminal offence under s 18A of the EPBC Act”. His Honour noted that, on the other hand, the proceeding sought to restrain future conduct and did not allege that the Secretary had engaged in any past conduct in contravention of the EPBC Act. His Honour stated that “[t]he granting of an injunction may nevertheless have significant consequences for the Secretary” and outlined those consequences. His Honour also discussed the nature of the subject matter of the proceeding at [347]. In that paragraph, his Honour stated that he took into account that the objects of the EPBC Act include protection of the environment and the conservation of biodiversity.
121 In the circumstances of this case, where an injunction was sought under s 475(2) of the EPBC Act to restrain future conduct, and the Secretary evidently considered that the conduct did not require approval because it fell within an exemption, it is open to question whether the aspect of s 140(2) of the Evidence Act concerned with the “gravity of the matters alleged” had much of a role to play. As Branson J stated in Employment Advocate v Williamson [2001] FCA 1164; 111 FCR 20 at [65]-[67] (in a judgment with which in this regard Kenny J agreed), s 140(2) of the Evidence Act is intended to reflect the common law position as to the strength of evidence necessary to establish satisfaction on the balance of probabilities. Branson J quoted the following passage from the judgment of Mason CJ, Brennan, Deane and Gaudron JJ in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; 110 ALR 449 (Neat Holdings) at 449-450, which helpfully explains the common law position:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved …”
(Footnotes omitted.)
122 In the present case, the conduct that was sought to be restrained (the planned burns) had not yet occurred, and the Secretary evidently considered that the conduct was covered by an exemption in the EPBC Act and therefore that approval under Pt 9 of the Act was not required. The central issue to be determined was whether the proposed action was likely to have a significant impact, within the meaning of s 18(3) of the Act, on the Glider. In these circumstances, the “conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct” did not assist in the process of fact-finding. We consider that his Honour appreciated this point, as indicated by his statement that, “[o]n the other hand, the proceeding seeks to restrain future conduct and does not allege that the Secretary has engaged in any past conduct in contravention of the EPBC Act”. Further, his Honour specifically cited Booth at [70] in which Branson J quoted the passage from Employment Advocate v Williamson in which the above extract from Neat Holdings was set out. Accordingly, we are not satisfied that his Honour erred as alleged.
123 Further and in any event, we do not accept the appellant’s contention that the primary judge should have made findings in terms of paragraphs (d) and (e) of ground 2 in the notice of appeal. We will consider each in turn.
124 By paragraph (d) of ground 2, the appellant contends that the primary judge should have found that there was a real and not remote possibility that the proposed action would result in a “decrease in the abundance of hollow-bearing trees of 26% or more”. Although the ground does not make this clear, it appears that this is a collapse rate for trees reached by fire (rather than for all trees in the area of the planned burn), having regard to the submissions put by the appellant at first instance as recorded in the Reasons at [421]. The figure of 26% (as a collapse rate for trees reached by fire) was supported by one study (Bluff) referred to in Dr Swan’s report (see the extract at [104] above). Another study referred to by Dr Swan (Cowie) put the figure much lower (15%), but it is not clear whether that study provided a collapse rate for trees reached by fire or for all trees in the area the subject of the planned burn. During re-examination, Dr Meredith was asked a question about his earlier evidence about cumulative impacts. He referred to the studies by Cowie and Bluff, and other studies, and said that one “comes up with rates of between 15 and 25 per cent tree loss”. He said “I think 25 per cent is probably unusually high. So let’s say it’s 15 to 20 per cent from lighter level fires such as planned burns …”. It is unclear whether Dr Meredith was referring to collapse rates for trees reached by fire or for all trees in the area the subject of a planned burn. Given that he referred to Bluff (which had a collapse rate of 26% for trees reached by fire) and he referred to the figure of 25% (which is close to Bluff’s 26% figure), it is open to interpret Dr Meredith’s evidence as referring to collapse rates for trees reached by fire. This appears to be what the primary judge did at [425] of the Reasons, where he refers to a collapse rate somewhere between 15% and 25% of the hollow-bearing trees in areas that are reached by fire. In oral submissions, senior counsel for the appellant submitted that the evidence of Dr Meredith in re-examination was based on the balance of probabilities rather than on a “real chance” basis. It is unclear whether that is correct. We consider it was open to the primary judge to make the finding that he did at [425] having regard to the evidence to which we have referred. We are not satisfied that there was sufficient evidence to support the factual proposition in ground 2(d). Accordingly, we do not accept that the primary judge should have made a finding to the effect of ground 2(d).
125 By paragraph (e) of ground 2, the appellant contends that the primary judge should have found that there was a real and not remote possibility that the proposed action would result in a “substantial or material reduction in the abundance of Gliders from collapse of hollow-bearing trees”. The appellant relies principally on evidence given by Dr Swan during cross-examination in two passages: trial transcript, p 573, and trial transcript, pp 607-608. These passages of his evidence are accurately summarised by the primary judge at [321] and [329] of the Reasons (see [59] above). In the first passage, Dr Swan considered that it was “reasonable to assume” that there was a correlation between the number of hollow-bearing trees in a particular region and the number of Gliders. Dr Swan was asked whether, if there were a loss of hollow-bearing trees, there would be a loss of density of Gliders. He responded not necessarily. However, he accepted that this was a real chance, and it would depend on how much of a loss of hollow-bearing trees there was and how dense the population was. In the second passage of evidence, Dr Swan accepted that there was a real chance of a reduction in the abundance of Gliders in the planned burn areas as a result of the planned burns. The appellant submitted that Dr Swan accepted that there was a real chance of decline in abundance and the “spectrum of possibility of decline in abundance from a loss of hollow-bearing trees necessarily must run the full gamut of real possibility, real chance, in order to fulfil the function of that criterion of the Act”. We do not accept that submission. The evidence of Dr Swan that is relied on by the appellant was of a general and qualified nature. He accepted that there was a real chance of “a reduction in abundance”, but expressly did not opine on the “quantity” of any possible reduction in abundance. Dr Swan’s evidence does not provide a sufficient evidentiary foundation for the proposition contended for by the appellant in ground 2(e). None of the evidence addresses whether any reduction in abundance of the Glider would or might be “substantial or material” as a result of the loss of hollow-bearing trees. Accordingly, we do not accept that the primary judge should have made a finding to the effect of ground 2(e).
126 For these reasons, ground 2 is not made out.
Notice of contention
127 In light of the above conclusions, it is unnecessary to consider the notice of contention. However, given that the matter was fully argued, and the issues have practical significance, we consider it appropriate to make some observations about the issues raised by the notice of contention.
128 The relevant part of the Reasons is at [432]-[464]. As summarised in [432], the Secretary submitted at first instance that, irrespective of whether the planned burns were likely to have a significant impact on the Glider for the purposes of s 18(3) of the EPBC Act, the planned burns would involve the lawful continuation of a use of land that was occurring immediately before the commencement of the EPBC Act on 16 July 2000 within the meaning of s 43B of the EPBC Act. The Secretary contended that planned burning had long been a major and important part of the State’s work to protect Victoria from bushfires, and that planned burning had been carried out in the Strathbogie State Forest (including the planned burn areas) since the 1960s.
129 In the proceeding at first instance, the appellant accepted that fuel reduction burning could be regarded as a use of land: Reasons, [440].
130 The primary judge’s reasoning and conclusions can be summarised as follows:
(a) The primary judge stated that, at a general level, it could be accepted for present purposes that a “use” of land for the purposes of s 43B might include a “passive” use of land in some circumstances, or an intermittent or variable use at different times or over different parts of the land: Reasons, [452]. His Honour stated that, to establish a current use that was occurring immediately before the commencement of the EPBC Act, it would not necessarily be essential to show that physical activities were taking place on the land, or on all parts of the land, on 15 July 2000: Reasons, [452].
(b) The primary judge identified a threshold issue, namely identification of the relevant “land” which was said to have been used for the purposes of planned fuel reduction burning immediately before the commencement of the EPBC Act: on what land was such a use “occurring” at that time? See the Reasons, [454].
(c) The primary judge considered that the land in question was that comprised in the four planned burn areas; he did not consider it appropriate to treat the whole of the Strathbogie State Forest as land that was being used for planned burning immediately before the commencement of the EPBC Act: Reasons, [456]. His Honour reasoned at [456]:
Among other things, the land that comprises the Strathbogie State Forest is too large and ill-defined for the requirements of s 43B to be capable of any sensible application in relation to the whole of that area, at least in relation to activities such as planned burning (cf. less intensive activities carried out as part of the ordinary day-to-day management of a State forest). Accordingly, the history of planned burning in the Strathbogie State Forest is not directly relevant to the application of s 43B, except perhaps in so far as it demonstrates that the nature of the activities involved in planned burning has not changed since the commencement of the EPBC Act.
(d) The primary judge then considered the burn history in relation to each of the planned burn areas, in order to determine whether the proposed planned burns could be regarded as a lawful continuation of the use of that land for the purposes of planned burning: Reasons, [457]. The primary judge found that the evidence established that, at various times in the decades prior to July 2000, planned burns had been carried out in some parts of each of the planned burn areas; however, the frequency and extent of such burns was relatively limited: Reasons, [461].
(e) The primary judge was not satisfied that the fire history, whether alone or taken together with the broader context of fuel reduction burns in the Strathbogie State Forest, established that the planned burn areas were used for planned burning immediately before the commencement of the EPBC Act, or that the four proposed planned burns were properly characterised as a lawful continuation of any such use: Reasons, [462].
(f) The primary judge stated at [463]:
In any event, even if the planned burn areas or the Strathbogie State Forest more generally could be regarded as being used for the purposes of planned burning immediately prior to 16 July 2000 (or perhaps being used as State forest including any proper and sufficient work for the prevention of fire), the conduct of the proposed planned burns will involve a change in the location of where that use is occurring within the meaning of s 43B(3)(b)(i), and that change will result in a substantial increase in the impact of the use on that land. Alternatively, the conduct of the proposed planned burns could be regarded as an enlargement or expansion of use, in so far as the planned burn areas are concerned. I make these findings based on the evidence adduced by the applicant and the Secretary, without needing to resolve any question as to where the onus of proof lies in relation to the requirements of s 43B(3). In circumstances where large parts of the planned burn areas had not been subject to fuel reduction burns prior to 16 July 2000, the subsequent introduction of fire to those areas has physical impacts on that land. It makes no difference that planned burning of a similar nature and scale may have been previously conducted in other parts of the Strathbogie State Forest.
(g) Accordingly, the primary judge concluded that s 43B of the EPBC Act did not exempt the Secretary from the requirements of Pt 3 of the EPBC Act in conducting the proposed planned burns: Reasons, [464].
131 By the notice of contention, the Secretary contends that the judgment of the primary judge should be affirmed on grounds other than those relied on by the Court. The notice of contention contains the following two grounds:
1. The primary judge erred in law in holding that section 43B of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) did not exempt the [Secretary] from any requirement to obtain an approval under Part 9 of the EPBC Act in conducting the four planned burns the subject of the proceeding (J[464]).
2. The primary judge ought to have held that the four planned burns the subject of the proceeding would be a lawful continuation of a use of land that was occurring immediately before the commencement of the EPBC Act and were therefore permitted, pursuant to s 43B of the EPBC Act, without an approval under Part 9 of that Act.
132 The Secretary’s submissions in support of the notice of contention rely on cases from the town planning context. It should be noted that these cases were not cited to the primary judge.
133 The Secretary’s submissions include the following:
(a) The primary judge adopted an unduly narrow approach to “land” in holding that the Strathbogie State Forest was “too large and ill-defined” to be the land on which the continuation of the prior use was to be assessed: Reasons, [456]. In particular, his Honour’s approach renders redundant what is implicit in s 43B(3), that a use of land may be a continuation of a use of the same land despite a change of location.
(b) The word “land” is of general meaning and does not “of itself suggest any specific limitation of size or measurement or any specifically identifiable area”: Scully v Leichhardt Council (1994) 85 LGERA 109 at 110-111. No narrow approach to delineating land is indicated by the statute (see the broad definition of “land” in EPBC Act, ss 528 and 345(2)), particularly having regard to the controls on otherwise eligible continuous uses imposed by sub-section (3).
(c) The identification of the location of the pre-commencement use may proceed by reference to land which, from a practical point of view (Steedman v Baulkham Hills Shire Council (No 1) (1991) 87 LGERA 26 at 27), is “rightly regarded as a unit” (Eaton and Sons Pty Ltd v Council of the Shire of Warringah [1972] HCA 33; 129 CLR 270 (Eaton) at 281-282 per Gibbs J) or which should otherwise be regarded as an “integrated whole”, and always in light of the nature of the use at issue: see Council of the City of Parramatta v Brickworks Limited [1972] HCA 21; 128 CLR 1 at 21-24 per Gibbs J; Eaton at 274-275 per Barwick CJ, 281 per Gibbs J; City of Nunawading v Harrington [1985] VR 641 at 645.
(d) Land can be treated as an integrated whole for these purposes even if not entirely contiguous: City of Nunawading v Harrington; Penrith Rugby League Club Ltd v Commissioner of Land Tax (NSW) [1983] 2 NSWLR 616 at 622 per Hunt J.
(e) Here, it was accurate to say the Strathbogie State Forest had been used for planned burning immediately before the commencement of the EPBC Act, because the use was one that had occurred consistently across the whole of that forest since at least the 1960s (changing location from year to year, for the purpose of managing risk over the larger area). The Strathbogie State Forest was the natural area of focus for the proceeding at first instance, which had been centrally concerned with the Strathbogie State Forest conceived of as a whole, and the Secretary’s duty with respect to State forests under s 62(2)(b) of the Forests Act.
(f) The only reasons the primary judge gave for rejecting the Strathbogie State Forest as being the “land” against which to assess prior use was its being “too large and ill-defined”. As for size, the Strathbogie State Forest is approximately 23,000 hectares. There is no reason why, for example, a sheep station of that size should be excluded from the benefit of s 43B for that reason alone. As for being “ill-defined”, precise definition of boundaries is not required. The approach to identifying the “land” in each case is an essentially practical exercise, and there were clear characteristics which lent the Strathbogie State Forest to being identified as the relevant area of land.
(g) In relation to [463] of the Reasons, the primary judge apparently assumed, even on an alternative analysis that took the Strathbogie State Forest as the relevant land for understanding pre-commencement use, that the question of any substantial increase in the impact of the use on the land (s 43B(3)(b)), and the question of any enlargement/expansion (s 43B(3)(a)), was to be assessed against the land comprising the planned burn areas (and not the Strathbogie State Forest as a whole). That discordancy is intuitively problematic, and is in contradiction with his Honour’s earlier holding (at [455]) that the “land” in s 43B(3)(b) “must [be] taken to refer back to the land … referred to in subs (1)”.
134 The appellant submitted in response that:
(a) The Strathbogie State Forest is very large, not continuous, and its boundaries have changed over time. To treat the forest in its entirety as the relevant land is at odds with the subject matter, scope and purpose of the EPBC Act.
(b) The exercise contemplated by s 43B(1) – i.e. the identification of the use of the land – requires that the boundaries of the relevant land be identified with more precision than the whole of the Strathbogie State Forest.
(c) Section 62(2)(b) of the Forests Act refers to “State forests, national parks and protected public land” – if that is to be the basis on which the relevant “land” is to be identified, the s 43B exemption would be so broad that it would undermine the purpose of the EPBC Act.
(d) In any event, s 43B(3)(a) and (b)(i) preclude reliance on the s 43B exemption.
135 In our view, the Secretary’s submissions as to the appropriate approach to the identification of the relevant “land” for the purposes of s 43B should be accepted. In particular, we accept that a practical approach should be taken, having regard to the nature of the “use” in issue for the purposes of s 43B. While the town planning cases are from a different context, and it is necessary to keep in mind the objects of the EPBC Act, we nevertheless consider those cases to be of assistance in identifying the relevant land for the purposes of s 43B. However, even adopting that approach, we are not satisfied that the evidence was sufficient to establish that the Strathbogie State Forest was the relevant land for the purposes of considering whether the exemption in s 43B applied to a use comprising fuel reduction burning. It is true that, as at the commencement of the EPBC Act (in 2000) and for many years before, the relevant duty imposed on the Secretary (to conduct proper and sufficient work for the planned prevention of fire) was cast in terms of (among other things) “State forests”: see s 62(2) of the Forests Act. However, the evidence of Mr Hardman (which appears to be the main relevant evidence) does not establish that, as at the commencement of the EPBC Act, from a practical point of view, the Strathbogie State Forest was treated as a unit for the purposes of fuel reduction burning. The section of Mr Hardman’s affidavit relating to the history of planned burning in Victoria (paragraphs 30-64), insofar as it deals with the period up to 2000, does not make this clear. Insofar as Mr Hardman provides maps and figures as to the approximate total area subject to planned burns in the Strathbogie State Forest in the period up to 2000 (see paragraph 54 and Exhibit R27, being a higher resolution version of Annexure CH-17), these figures were extracted from a larger dataset (see paragraph 52 of the affidavit) and do not establish that the Strathbogie State Forest was treated as a unit for the purposes of planned burning; they merely establish how much of the forest was the subject of planned burning.
136 It follows that we are not persuaded that the primary judge erred in his identification of the relevant land for the purposes of s 43B. It is unnecessary to consider the other aspects of the question whether s 43B applies.
Conclusion
137 For the reasons set out above, the appeal is to be dismissed.
138 Given this outcome, it is unnecessary to consider an issue that would have arisen regarding the appropriate relief, had the appeal been allowed. Briefly, the issue was whether it would have been appropriate for this Court to grant an injunction under s 475(2) in circumstances where three of the four planned burns have now taken place.
139 In relation to costs, we will make an order that the appellant pay the Secretary’s costs, but we will give the parties the opportunity to file submissions if either party seeks a different costs order. In that event, we will decide the issue on the papers.
I certify that the preceding one hundred and thirty-nine (139) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Moshinsky, Charlesworth and Kennett. |
Associate:
