FEDERAL COURT OF AUSTRALIA

Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704

ORDERS

THE COURT ORDERS THAT:

1.    On or before 4 pm on 10 June 2020, the parties file any agreed proposed minutes of orders, including the proposed form of declaratory relief, reflecting the Court’s reasons for judgment.

2.    In the absence of agreement, on or before 4 pm on 17 June 2020, the parties each file proposed minutes of orders, including the proposed form of declaratory relief, reflecting the Court’s reasons for judgment, together with submissions limited to 5 pages in support of the proposed minutes of orders.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Table of contents

MORTIMER J:

INTRODUCTION AND SUMMARY

1    This proceeding concerns forestry operations in 66 specified native forest coupes in the Central Highlands region of Victoria and the effect of those forestry operations on two native fauna species, the Greater Glider and the Leadbeater’s Possum. Both are listed as threatened species under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The Greater Glider is listed as “vulnerable”, and the Leadbeater’s Possum is listed as “critically endangered”. Some of the 66 coupes have already been logged, and some have not. Thus, the proceeding concerns both past and proposed forestry operations.

2    The case has been brought by Friends of Leadbeater’s Possum Inc, an environmental group, against VicForests, a Victorian statutory agency whose purpose is the management and sale of timber resources in Victorian State forests on a commercial basis. The native forest in question is included within the region covered by the Central Highlands Regional Forest Agreement (CH RFA), an intergovernmental agreement between the Commonwealth and the State of Victoria. The term “coupe” is a forestry term, referring to areas or patches of forest in which logging occurs.

3    The proceeding raises complex issues of law and fact about the operation of the EPBC Act on VicForests’ impugned forestry operations in those 66 coupes. It has already been the subject of two published decisions, the first of which in particular establishes the framework for the issues to be determined in these reasons: see Friends of Leadbeater’s Possum Inc v VicForests [2018] FCA 178; 260 FCR 1 and Friends of Leadbeater’s Possum Inc v VicForests (No 3) [2018] FCA 652; 231 LGERA 75. I shall refer to those two judgments as the “Separate Question reasons” and the “Injunction reasons” respectively. I also published reasons for judgment determining the form of answer to the separate question and addressing other matters relating to an amended statement of claim filed by the applicant in Friends of Leadbeater’s Possum Inc v VicForests (No 2) [2018] FCA 532. I will refer to that judgment as the “Relief reasons”. It will be necessary to refer to aspects of those three sets of reasons in this judgment, but it should be taken that I have generally adopted the reasoning I set out in those decisions in this judgment. In particular, my reasoning about the legislative scheme of the EPBC Act, and the way forestry operations as “actions” are dealt with in that Act, is set out in the Separate Question reasons at [123]-[135], [170], [195(a)], [197]-[198] and [223]-[226]. The core provisions of the EPBC Act are also set out in those reasons at [64]-[76].

4    Further, my reasoning on how the exemption conferred by s 38(1) might be lost can be found at [193]-[272] of the Separate Question reasons. While those findings may need to be developed somewhat, and applied to the evidence, the basic approach I have taken is set out in those passages.

5    These present reasons reflect the Court’s comfortable persuasion, on the balance of probabilities, that the applicant has made out its pleaded case. That pleaded case centres on allegations about the adverse impacts on the Greater Glider as a species and Leadbeater’s Possum as a species from VicForests’ past and proposed forestry operations in the 66 impugned coupes. The applicant’s pleaded case divides the 66 impugned coupes into a number of subsets, depending on whether they have been logged or are proposed to be logged, and depending on which coupes provide habitat for, and are used or occupied by, each of the two species. Thus, these reasons refer to the “Logged Coupes” (see [151] below); the “Scheduled Coupes” (see [152] below); the “Logged Glider Coupes”, the “Logged Leadbeater’s Possum Coupes” and the “Scheduled Leadbeater’s Possum coupes” (see [158] below).

6    In summary, the principal findings of the Court are as follows:

(a)    I have accepted VicForests’ submission that the applicant’s case as put in closing submissions is wider than its pleaded case. Accordingly, the Court confined itself to the applicant’s pleaded case.

(b)    In undertaking forestry operations in the Logged Glider Coupes, VicForests did not apply the precautionary principle to the conservation of biodiversity values in those coupes, as it was required to do by cl 2.2.2.2 of the Code of Practice for Timber Production 2014. Specifically, on the applicant’s case, VicForests did not apply the precautionary principle to the conservation of the Greater Glider as a threatened species present in, and using, the forest in those coupes. Accordingly, in relation to the forestry operations undertaken by VicForests in the Logged Glider Coupes, its conduct was not covered by the exemption in s 38(1) of the EPBC Act.

(c)    Where made out, the miscellaneous breaches of the Code alleged by the applicant result in the loss of the exemption under s 38(1) in respect of forestry operations undertaken in the coupes in which the breaches occurred.

(d)    In undertaking forestry operations in the Scheduled Coupes, VicForests is not likely to apply the precautionary principle to the conservation of biodiversity values in those coupes, as it is required to do by cl 2.2.2.2 of the Code. Specifically, on the applicant’s case, VicForests is not likely to apply the precautionary principle to the conservation of the Greater Glider as a threatened species present in, and using, the forest in those coupes. Accordingly, in relation to any forestry operations proposed to be undertaken by VicForests in the Scheduled Coupes, its conduct will not be covered by the exemption in s 38(1) of the EPBC Act.

(e)    The result of the Court’s findings on (b), (c) and (d) means that none of the 66 impugned coupes are subject to the s 38(1) exemption.

(f)    The findings in (b) to (d) do not result in only a qualified loss of the s 38(1) exemption, restricted to the impact of the forestry operations on the Greater Glider.

(g)    For the purposes of s 18 of the EPBC Act, each forestry operation in each of the 66 impugned coupes is an action; each series of forestry operations in each coupe group (see [155] and [162] below) is an action; the forestry operations undertaken in the Logged Coupes are, collectively, an action; the forestry operations proposed to be undertaken in the Scheduled Coupes are, collectively, an action; and the forestry operations in all of the 66 coupes are, collectively, an action.

(h)    In relation to each of the actions identified in (g), VicForests’ conduct of forestry operations is likely to have had, or is likely to have, a significant impact on the Greater Glider as a species and/or the Leadbeater’s Possum as a species. Accordingly, s 18 has been contravened and/or is engaged, depending on whether the action has been undertaken, or is proposed to be undertaken.

(i)    The evidence provides sufficient certainty for the findings in (g) and (h) to be made, on the balance of probabilities. It will be a matter for further argument if, and how, those findings can and should be translated into injunctive relief in respect of the Scheduled Coupes.

(j)    The consequence of these findings is that declaratory relief should be granted. The form of that declaratory relief will be determined after the parties have had an opportunity to consider the Court’s reasons and have attempted to agree on the form of declaratory relief or have made submissions about the appropriate form.

(k)    In relation to the Logged Coupes (that is, the Logged Glider Coupes and the other Logged Coupes), relief of the kind set out in s 475(3) of the EPBC Act may also be available, subject to the Court hearing the parties’ further submissions, based on the findings the Court has made.

7    It is appropriate to make four general observations at the start of these reasons.

8    First, what the evidence in this proceeding has demonstrated is that the protection and conservation of biodiversity values – in this case relevantly the two listed threatened species in issue – is essentially a practical matter. Although policies and planning are important precursors and elements in protection and conservation, what happens on the ground in the native forest which supports and encompasses those values is how protection and conservation are achieved. Relevantly to the issues in this proceeding (rather than the wider biodiversity values protected by other aspects of the EPBC Act), understanding a native forest as a living, changing, finely balanced and often vulnerable ecosystem, and understanding the way in which all flora and fauna species in fact (rather than theory) use and depend on that native forest, are what best informs protection and conservation of, and the avoidance of adverse impacts on, those species. The evidence demonstrates the need for this approach is acute when dealing with listed threatened species.

9    Second, it was a repeated theme of VicForests’ submissions that the applicant’s case and arguments invite the Court to intrude into spheres of decision-making which are properly seen as reposed in the legislature or the executive. For example, VicForests contended (at [12] of its closing written submissions) the applicant’s case was not “essentially one of factual questions about the threat posed by the impact of forestry operations on Greater Glider and Leadbeater’s Possum” at some general level, but that it primarily concerned legal questions about the construction of the Code and the EPBC Act “as applied to factual matters”. In other words, that the Court was not examining what were the appropriate protections, at a policy level, for each of the species, but what the specified protections were, and whether they had been observed by VicForests. Another example is at [230] of its closing written submissions, where VicForests contended the Victorian legislature and the executive “have struck a balance between conservation measures and those that relate to the commercial use and exploitation of forest resources in State forests”, and that where there were “value judgments” to be made about that balance, those judgments were the “province of the legislature or the executive rather than the judiciary”. The Court’s role does not, VicForests submitted, extend to “the substitution of the court’s view of a more reasonable balance for that which was struck by the legislature or the executive”. These submissions were primarily made in the context of the approach VicForests contended should be taken to the obligation imposed by cl 2.2.2.2 of the Code.

10    It is not unusual for a respondent in the position of VicForests to make submissions that seek to confine the Court’s role as narrowly as possible, especially in a public interest case, involving contested issues of fact as well as law, and with significant consequences for a respondent in the performance of its functions and duties. Likewise, it is not unusual for an applicant in a public interest case to encourage the Court to take an expansive view of what matters need to be determined.

11    The Court’s function is to determine, on the evidence, whether the applicant has proven, on the facts and on the law as applied to those facts, its allegations against VicForests in respect of its forestry operations in the Logged Coupes and the Scheduled Coupes. Contrary to VicForests’ submissions, there is a significant factual aspect to the applicant’s allegations, which as a trial court, the Court must decide. It necessarily involves examining the competing evidence (including expert opinion evidence) about topics which are the product of wider policies and practices, and factual topics of more general application. In performing its task, the Court acts on the evidence before it, taking account of the submissions made. In this case, both the evidence and argument adduced by both parties travelled well outside evidence about these 66 coupes, as it needed to. Where the legal and statutory framework which the Court must consider, by reason of the parties’ respective cases, includes matters of degree, or has some qualitative or evaluative element, the determination of those matters is part of the exercise of judicial power, and not outside it.

12    Third, and not unconnected to the second matter, the evidence revealed that VicForests is required to operate under demands and constraints which pose something of an inherent contradiction. On the one hand, it is required to conduct forestry operations in Victoria’s native forest, rather than only in plantations. That native forest is identified as an available timber resource, indeed a principal available timber resource in Victoria, for VicForests to perform its commercial forestry function, as conferred by statute. On the other hand, VicForests is required by law to conduct those forestry operations in a way which avoids and mitigates adverse impacts on a wide range of biodiversity values, a range that is much wider than listed threatened flora and fauna species, but includes them. As I explain later in these reasons and as both VicForests and various reviewing bodies have recognised, for listed threatened species which are highly dependent on the very native forest which is to be subject to forestry operations, and for whom recovery out of the status of being a threatened species is expressed to be an objective, the avoidance of adverse impacts in a real world sense (rather than just an aspiration) inevitably involves compromising available commercial timber resources. Hence the conflict, which may explain (but not necessarily justify) why the actual conduct of forestry operations on the ground often cannot meet the conservation and protection obligations imposed by law.

13    Fourth, and no less importantly than the other general matters, all counsel, their instructing solicitors and their clients invested enormous amounts of time and resources in the conduct of this proceeding and did so with commendable efficiency and cooperation, including coping with the Court’s management of this proceeding as a digital trial, conducted only with the resources of the parties and the Court and no external provider. The Court is grateful to them all.

THE HISTORY OF THE PROCEEDING

14    This proceeding was commenced by way of an originating application and statement of claim filed on 13 November 2017. On 17 November 2017, the Court made orders stating a separate question for hearing and determination, with the agreement of the parties. Prior to the hearing of the separate question, the Court issued rulings regarding the filing of an agreed statement of facts (on 1 December 2017) and the granting of leave to the State of Victoria and the Commonwealth to intervene (on 29 November 2017). The Separate Question reasons were delivered on 2 March 2018.

15    On 20 April 2018, the Court delivered the Relief reasons, which, as I have already noted, stated the answer to the separate question and addressed matters relating to the amended statement of claim filed by the applicant on 29 March 2018 (which amendments were generally summarised in those reasons at [30]-[33]). The amended statement of claim removed all references to cl 36 of the CH RFA, flowing from the Separate Question reasons, and instead put forward arguments relying on breaches of the Code. The Court concluded the operation of the Federal Court Rules 2011 (Cth) permitted the applicant to take this course.

16    On 23 April 2018, the applicant filed an application for an interlocutory injunction. Previous undertakings given by VicForests in relation to its timber harvesting operations pending the hearing and determination of the separate question had come to an end when the Court made its separate question orders on 20 April 2018. The Injunction reasons were delivered on 10 May 2018. On that date, the Court ordered that until the hearing and determination of the proceeding or further order, VicForests, whether by itself, its servants, agents, contractors or howsoever otherwise, be restrained from conducting forestry operations, felling, removing or damaging any trees or other substantial vegetation or widening the existing road line in certain specified coupes.

17    At the hearing of the injunction application, the proceeding was listed for trial commencing on 25 February 2019. On 11 February 2019, pursuant to leave granted by the Court on 7 February 2019, VicForests filed an affidavit of Mr William Edward Paul, which addressed “recent developments concerning VicForests’ silvicultural policies and practices” (at [5(a)]). At a case management hearing on 14 February 2019, both parties submitted that, as a result of the matters contained in Mr Paul’s affidavit, the trial dates should be vacated and the matter relisted for trial at a later date which could accommodate the developments to which Mr Paul’s affidavit adverted.

18    On 18 February 2019, the Court ordered, amongst other matters, that the trial be relisted to commence on 3 June 2019, and that the parties file proposed orders concerning the conduct of a joint experts’ conference and preparation of a joint report. The Court made further timetabling orders following a case management hearing on 25 February 2019, including orders for discovery of specified categories of documents by VicForests and the referral of other requests for discovery made by the applicant to Judicial Registrar Ryan for mediation and determination. Judicial Registrar Ryan conducted a mediation with the parties on 18 March 2019, following which he made orders for discovery of certain categories of documents and referred any outstanding discovery disputes back to the Court for hearing at a case management hearing on 16 April 2019. Following the filing of written submissions by the parties, the dispute concerning three remaining categories of discovery was determined by the Court in a ruling dated 17 May 2019.

19    On 22 March 2019, the Court made orders, with the agreement of the parties, in relation to the conduct of a joint experts’ conference and preparation of a joint report. The conference was scheduled to take place on 3 May 2019, facilitated by two Judicial Registrars. The parties were ordered to file an agreed list of questions for the experts (or separate proposed lists of questions) by 15 April 2019. Following further discussion with the parties at a case management hearing on 16 April 2019, and in written correspondence, it became apparent that the conference would be of little utility due to the divergence in the parties’ proposals regarding the approach to the conference. On 17 April 2019, the Court informed the parties that the joint experts’ conference and joint report orders would be vacated and the parties’ experts would be examined, cross-examined and re-examined at trial in the usual way. Although the Court left open the possibility of conducting a joint experts’ conference after the commencement of the trial, and VicForests again raised the possibility of a joint conference in its opening written submissions filed prior to trial, it did not eventuate. There remained no utility, in the Court’s opinion, in considerable resources and expense being applied to such a process, in light of the parties’ differing approaches to the proposed conference during case management and their considerably divergent approaches to how the experts should be asked to consider the complex factual issues in the proceeding.

Amendments just before trial

20    Late in the afternoon of the Friday before the trial was scheduled to commence, the Court was notified of some proposed further amendments to the applicant’s claim. The amendments, which were foreshadowed at [172] and [174] of the applicant’s opening written submissions, narrowed the case to be put and added an additional ground of relief. They were the subject of consent from VicForests. The Court granted leave to the applicant to file and serve a third further amended statement of claim and amended originating application. Those documents were filed on 3 June 2019. As a result of those amendments the applicant:

(a)    withdrew its allegations that forestry operations have had, are having, or are likely to have a significant impact on the Leadbeater’s Possum in the Ada River logged coupe 9.26 (Tarzan), Baw Baw logged coupe 9.32 (Rowels), Hermitage Creek scheduled coupes 10.14-10.16 (Drum Circle, Flute, San Diego) and the Torbreck River scheduled coupes 10.18-10.20 (Skupani, Splinter and Bhebe); and

(b)    sought a declaration of right pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) that VicForests has breached s 18(2) of the EPBC Act by reason of its forestry operations in the “Logged Leadbeater’s Possum Coupes” and has breached s 18(4) of the EPBC Act by reason of its forestry operations in the “Logged Glider Coupes” (as those terms are defined in the third further amended statement of claim).

The view

21    During the trial, the Court and the parties undertook an inspection or view of ten coupes in the Central Highlands pursuant to s 53 of the Evidence Act 1995 (Cth). The coupes inspected were Castella Quarry, Goliath, Shrek, Guitar Solo, Flute, Kenya, The Eiger, Mont Blanc, Hairy Hyde and Greendale, being a mix of Logged Coupes and Scheduled Coupes. Castella Quarry is not one of the 66 impugned coupes in the proceeding but was visited as an example of a coupe in which VicForests’ new silvicultural systems were being implemented. The Court expresses its gratitude to the parties for facilitating that inspection and in particular to the VicForests staff who assisted on the day.

THE SPECIES IN ISSUE

22    While there was a significant dispute between the parties about the effects of VicForests’ forestry operations on the two species, there was also a dispute between the parties about how perilous the circumstances of the Greater Glider are, as a species. There appeared to be less debate about the perils facing the Leadbeater’s Possum. In relation to that species, the area of debate in assessing the impact of VicForests’ impugned forestry operations was about whether the measures in place were effective enough to avoid a conclusion of significant impact and whether VicForests adhered to them.

23    Unsurprisingly, each of the parties relied on the opinions given by their respective experts as the basis for the Court’s fact-finding about the species. As I explain later in these reasons, I accept and prefer the opinion evidence of the applicant’s species experts, Dr Smith and Professor Woinarski, and where the evidence of VicForests’ experts such as Dr Davey or Professor Baker conflicts with the applicant’s species experts, I prefer the evidence of the applicant’s species experts. Both Dr Smith and Professor Woinarski gave detailed evidence in their reports about each of the Greater Glider and the Leadbeater’s Possum. In terms of the characteristics of the species and their habitats, some of the significant differences of opinion between the applicant’s species experts and Dr Davey were their opinions about:

(a)    the estimates of Greater Glider populations and their rates of decline;

(b)    how Greater Gliders might use logged forest, including retained habitat trees;

(c)    the effectiveness of the Comprehensive, Adequate and Representative (CAR) reserve system and existing management prescriptions; and

(d)    the movement patterns of the Leadbeater’s Possum.

24    I rely on the expert evidence to some extent in setting out my general findings about each of the species; however, the principal sources I have relied upon are the Conservation Advices for each species.

25    I have placed significant weight in my fact-finding in this proceeding on the Conservation Advices. I consider that in the context of a proceeding under the EPBC Act, it is appropriate to do so. They are the mandatory and foundational documents describing each threatened species, its characteristics and habitat, and the threats posed to it. A Conservation Advice must be prepared for each listed threatened species: s 266B(1). The Conservation Advice must include 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). Relevantly, it must also include “information about what could appropriately be done to stop the decline of, or support the recovery of, the species”: s 266B(2)(b)(i).

26    This document contains 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.

27    The Conservation Advice for each species is issued by the Threatened Species Scientific Committee. The Threatened Species Scientific Committee is established pursuant to s 502 of the EPBC Act and is referred to in the Act as the “Scientific Committee”: see the definition of “Scientific Committee” in s 528. Amongst other functions, it has the function of advising the responsible Minister on the amendment and updating of the lists of threatened species for which s 178 and s 179 of the EPBC Act provide: s 503(b). It is an expert committee whose members are appointed by the responsible Minister: s 502.

The Greater Glider

28    The Conservation Advice for the Greater Glider states that it is based on “‘The Action Plan for Australian Mammals 2012’ (Woinarski et al., 2014)”. One of the authors of that publication is Professor Woinarski, the applicant’s Leadbeater’s Possum species expert. The fact that the Scientific Committee is prepared, for the purposes of performing its functions under the EPBC Act, to rely on a publication of which Professor Woinarski is an author confirms to me that Professor Woinarski’s opinions, where otherwise rational and having a scientific basis, as I find they are and do, should be given substantial weight.

29    The taxonomy of the Greater Glider species is accepted to be Petauroides Volans. It is the only species in the genus, with two recognised sub-species: P. v. minor (found in north-eastern Queensland) and P. v. volans (found in south-eastern Australia). The Greater Gliders which are the subject of this proceeding are the second sub-species.

30    The Greater Glider was listed in the vulnerable category under the EPBC Act effective 5 May 2016 and in the Threatened List under the Flora and Fauna Guarantee Act 1988 (Vic) effective 14 June 2017.

31    The Greater Glider is the largest gliding possum in Australia. It is a member of the nocturnal and arboreal leaf eating Ringtail Possum family (Pseudocheiridae). Being an arboreal mammal, it rarely travels along the ground. Its head and body length can reach 46 cm. Its thick fur increases its apparent size. It has an especially prominent, long furry tail measuring 45-60 cm. Sexual maturity is reached in the second year, and females give birth to a single young from March to June. The longevity of the Greater Glider has been estimated at 15 years, so generation length is likely to be 7-8 years. The Conservation Advice states:

The relatively low reproductive rate (Henry 1984) may render small isolated populations in small remnants prone to extinction (van der Ree 2004; Pope et al., 2005).

32    It is a nocturnal marsupial, largely restricted to eucalypt forests and woodlands. In the CH RFA region its habitat is the Mixed Species and Ash forests, which serve as both a source of food and a source of denning and resting. Dr Smith gave evidence that:

The Central Highlands is an area of exceptional site quality that is likely to sustain higher than average densities of the Greater Gliders because of its high rainfall, low temperatures and high eucalyptus growth rates.

33    Its preference for a diversity of eucalypt species is due to the seasonal variation in its preferred tree species. Its diet mostly comprises eucalypt leaves, and occasionally flowers. The Conservation Advice states:

It is typically found in highest abundance in taller, montane, moist eucalypt forests with relatively old trees and abundant hollows.

34    During the day it shelters in tree hollows, with a particular selection for large hollows in large, old trees. As to the significance of these hollows, in re-examination, Professor Woinarski gave the following evidence, which is relevant to my findings about both the Greater Glider and the Leadbeater’s Possum:

So it’s in almost all parts of Australia, hollows – there’s no – unlike in North America where woodpeckers make hollows for many other trees – for many other hollow-dependant species, there are no fauna species that make hollows in Australia. But it depends upon the rot and decay and the senility of the trees themselves for the hollows to form. The exception is, of course, termites, but we won’t go there. There aren’t so many termites in these forests. So it’s a – it’s a finite resource, and it’s eagerly used. There’s about 30 per cent Australian vertebrates species depend upon hollows. So it’s a really large component of the forest fauna is totally dependent on naturally occurring hollows. Naturally occurring hollows occur, as we’ve talking about previously, sort of they – they become established after 100 years or so, so it’s a really slow process. And there’s much more likelihood of the hollow in any forest to be declining than increasing, simply because of that age – that age disturbance factor. There’s a range – we know Greater Gliders, Sugar Gliders, Squirrel Gliders, a whole lot of owls, Pardalotes, kookaburras, cockatoos, parrots, all of those species are dependent upon hollows in this mountain ash environment, and will compete aggressively with other species for those hollows where they overlap. Leadbeater’s Possums, probably there’s a range of bird species which may compete with them for hollows. So cockatoos, rosellas and the like, for example, could aggressively kick them out. Also, there’s also competition within Leadbeater’s Possum families or – or neighbouring groups for hollow availability as well. So if a suitable den tree for Leadbeater’s Possum colony A and Leadbeater’s Possum colony B is running out of den trees, then it will – they will fight over that availability.

35    The Conservation Advice states:

In Grafton/Casino, Urbenville and the Urunga/Coffs Harbour Forestry Management Areas (FMAs) in northern New South Wales (NSW), the abundance of greater gliders on survey sites was significantly greater on sites with a higher abundance of tree hollows …

36    The expert evidence about the optimal number and placement of suitable tree hollows per hectare for the Greater Glider, and the significance of these needs in assessing the impact of forestry operations, are matters I will address when dealing with the precautionary principle and with significant impact. However, as one of VicForests’ witnesses, Mr Timothy McBride, noted in correspondence included in his affidavit affirmed on 15 October 2018 (at [23]), the hollows needed for the Greater Glider have to be fairly large, because of the size of the (mature) animal.

37    Home ranges for the Greater Glider are, according to the Conservation Advice, “typically relatively small”, around 1-4 ha. Males visit around 22 trees per night and females around 14: Tyndale-Biscoe H, Life of Marsupials (CSIRO Publishing, 2005) p 240. Home ranges can be larger in lower productivity forests and more open woodlands; they are larger for males than for females. Male home ranges are largely non-overlapping. Despite having small home ranges, the Greater Glider has a “low dispersal ability”, making it sensitive to habitat fragmentation. The Conservation Advice states that Greater Gliders:

have relatively low persistence in small forest fragments, and disperse poorly across vegetation that is not native forest. Modelling suggests that they require native forest patches of at least 160 km² to maintain viable populations (Eyre 2002). Kavanagh & Webb (1989) found no significant movement of greater gliders into unlogged reserves from surrounding logged areas.

38    The Conservation Advice also states:

Kavanagh & Webb (1989) found no significant movement of greater gliders into unlogged reserves from surrounding logged areas.

39    The Greater Glider is restricted to eastern Australia, but occurs from the Windsor Tableland in north Queensland through to central Victoria, at elevations ranging from sea level to 1200 m above sea level. Dr Davey stated that the population in the Central Highlands region is at the limits of the species’ distributional range. Similarly, when discussing Greater Glider populations most likely to be of key importance to the species’ long-term survival and recovery, Dr Smith acknowledged that populations at the limits of the species’ geographic ranges are important populations. I find that is an important fact in assessing the impact of forestry operations on the species.

40    As to distribution, the Conservation Advice states:

The broad extent of occurrence is unlikely to have changed appreciably since European settlement (van der Ree et al., 2004). However, the area of occupancy has decreased substantially mostly due to land clearing. This area is probably continuing to decline due to further clearing, fragmentation impacts, fire and some forestry activities. Kearney et al. (2010) predicted a “stark” and “dire” decline (“almost complete loss”) for the northern subspecies P. v. minor if there is a 3° C temperature increase.

41    I return to the last point made in this extract at several sections in these reasons: it is well accepted on the scientific evidence, and in the expert opinion, that there are large and presently unaddressed risks to species such as the Greater Glider from climate change and the warming of the environments in which they live.

42    As a species, the Greater Glider is considered to be “particularly sensitive” to forest clearance and to intensive logging, although the Conservation Advice qualifies this statement by stating that “responses vary according to landscape context and the extent of tree removal and retention”.

43    The species is also described in the Conservation Advice as “sensitive to wildfire” and “slow to recover following major disturbance”. The Conservation Advice states:

In the Urbenville FMA of northern NSW, the abundance of greater gliders on survey sites was significantly greater in forests that were infrequently burnt (Andrews et al., 1994).

Population

44    The criterion which the Greater Glider met, and which was identified as justifying its listing in the vulnerable category as a threatened species under the EPBC Act, was Criterion 1, titled “Population size reduction (reduction in total numbers)”. Under this criterion, the Greater Glider was assessed by the Scientific Committee as experiencing:

(a)    a population reduction observed, estimated, inferred or suspected in the past where the causes of the reduction may not have ceased or may not be understood or may not be reversible, based on an index of abundance appropriate to the Greater Glider, and a decline in area of occupancy, extent of occurrence and/or quality of habitat (Criterion 1 A2(b) and (c));

(b)    a population reduction, projected or suspected to be met in the future (up to a maximum of 100 years), based on an index of abundance appropriate to the Greater Glider, and a decline in area of occupancy, extent of occurrence and/or quality of habitat (Criterion 1 A3(b) and (c)); and

(c)    an observed, estimated, inferred, projected or suspected population reduction where the time period must include both the past and the future (up to a maximum of 100 years in the future), and where the causes of reduction may not have ceased or may not be understood or may not be reversible, based on an index of abundance appropriate to the Greater Glider, and a decline in area of occupancy, extent of occurrence and/or quality of habitat (Criterion 1 A4(b) and (c)).

45    The listing of the Greater Glider in the Vulnerable category by reference to Criterion 1 A2(b) and (c), A3(b) and (c) and A4(b) and (c) meant that the Greater Glider was assessed to be vulnerable to a reduction in population of more than 30%.

46    The Greater Glider was assessed by the Scientific Committee as not meeting listing Criteria 2, 3, 4 or 5: namely, geographic distribution as indicators for either extent of occurrence and/or area of occupancy, population size and decline, number of mature individuals or quantitative analysis indicating a probability of extinction in the wild.

47    In its closing submissions (at [310]-[322]), VicForests seeks to make something of the fact the Greater Glider’s EPBC Act listing was only under Criterion 1. The underlying theme appeared to be that the situation facing the Greater Glider was not the worst of the worst, and not – for example – as critical as that facing the Leadbeater’s Possum. I do not consider such a comparative approach assists the task the Court must perform. The fact is that the Greater Glider is a listed threatened species, and while it will be relevant in assessing both compliance with cl 2.2.2.2 of the Code and the issue of significant impact to bear in mind that the justification for its listing was its rate of population decline, there is no basis in the evidence or in the scheme of the EPBC Act for the Court to confine itself to any exact correlation between identified impacts or threats and the precise reason for the listing of the species. In relation to s 18, the question the statute relevantly asks is whether there is or will be a likely significant impact on a listed threatened species because of the actual or proposed conduct (here, of VicForests in its impugned forestry operations). In relation to cl 2.2.2.2 – as I explain below – the compliance question the Code asks of VicForests in its forestry operations is whether it has applied the precautionary principle to the conservation of the Greater Glider as a species (being a “biodiversity value”). The question is not as narrow as whether VicForests will, in its forestry operations, fail to apply the precautionary principle to conduct which may affect only the rate of population decline of the Greater Glider. An obvious reason for this is that threats to a listed species may increase or decrease over time, and they may alter in their significance because of particular events, such as climate change or wildfire. There is nothing static in assessing the nature of any threats and the range of impacts, and the scheme of the EPBC Act does not assume there is.

48    The Conservation Advice states that there “is no reliable estimate of population size” for the Greater Glider, by reference to a 2008 study which described the Greater Glider population as having a “presumed large population” and being “locally common”. In oral evidence Dr Smith appeared to disagree with this aspect of the Conservation Advice, saying that in 2008 not much was known about the Greater Glider population.

49    The Conservation Advice states that the estimate of the Greater Glider population across its range is in excess of 100,000 mature individuals. In oral evidence, Dr Smith considered this to be a reasonable estimate. To qualify under Criterion 4, relating to numbers of mature individuals, a species must have less than 1000 mature individuals to be characterised as “vulnerable”.

50    I note that Criterion 5 – the quantitative analysis of the probability of extinction in the wild – was not met in respect of the Greater Glider, but not because of any reliable estimate of the probability. Rather, the Conservation Advice indicates this criterion was not met (referring to the work of Professor Woinarski and others) because no population viability analysis had been conducted across the Greater Glider population as a whole, although some local analysis had been carried out.

51    In the section of the Conservation Advice explaining why the Greater Glider met the first criterion for listing, the Conservation Advice makes the following points relevant to the issues in this proceeding (with abbreviated citations as reproduced in the Conservation Advice):

(a)    Despite the absence of robust estimates of total population size or population trends across the species’ total distribution, declines in numbers, occupancy rates and extent of habitat have been recorded at many sites, from which a total rate of decline can be inferred.

(b)    The most comprehensive monitoring program for Greater Gliders is in the Central Highlands of Victoria, the region with which this proceeding is concerned.

(c)    The Central Highlands region has been monitored annually since 1997.

(d)    Over the period 1997-2010, the monitoring showed a population decline of an average of 8.8% per year.

(e)    If that rate is extrapolated over the 22-year period relevant to this assessment, the rate of decline is 87% (citing a study by Lindenmayer et al., 2011).

(f)    Higher rates of decline were recorded in forests subject to logging than in conservation reserves.

(g)    Declines were also associated with major bushfires and lower than average rainfall.

(h)    The Conservation Advice quotes a finding from a study conducted by Lumsden and others (2013 p 3) that a “striking result from these surveys was the scarcity of the Greater Glider which was, until recently, common across the Central Highlands”.

(i)    Major bushfires in 2003, 2006-2007 and 2009 burnt much of the Greater Glider’s range in Victoria, and further fragmented its distribution.

(j)    Reoccupation of burnt sites in subsequent years is likely to be a slow process due to the small home ranges (1-2 ha) of the species and its limited dispersal capabilities.

(k)    Any reoccupation also depends on there not being further significant fires in the interim (citing Vic SAC 2015).

(l)    Since the 2009 fires, which burnt the Kinglake East Bushland Reserve and nearby areas, spotlighting records of Greater Gliders in these areas have significantly declined.

(m)    Preliminary results of an occupancy survey in 2015 suggest low occupancy rates in three of four survey areas in Victoria. Approximately 50% of the individual transects in this study incorporated sites of known previous occupancy by Greater Gliders based on systematic surveys in the 1990s.

(n)    Other evidence supports a decline in East Gippsland. In the Mount Alfred State Forest, roadside spotlighting on the same route over a 30-year period was used to record frequent sightings (10-15 animals on each occasion), but only a single Greater Glider was sighted in the 18 months leading up to November 2015.

(o)    There is evidence of some declines in occupancy in unburnt sites in the same parts of Victoria (and also at Booderee National Park in New South Wales), which the Conservation Advice took to suggest that factors other than fire are involved in the species’ decline. It nominated a lack of suitable browse due to water stress as a likely contributing factor, as central Victoria was significantly hotter and drier than normal during 2001-2009.

52    For many of its findings in relation to Criterion 1, the Conservation Advice relied on the work of Dr Lumsden in Victoria. The evidence suggests Dr Lumsden worked at the Arthur Rylah Institute in Victoria, an institute which on the evidence collaborates with the Department of Environment, Land, Water and Planning (DELWP) on many conservation-related projects. There is no evidence why VicForests, which also appears to have drawn on the work of the Arthur Rylah Institute from time to time, did not call Dr Lumsden. I note that Dr Smith’s opinion is that Dr Lumsden’s survey data is accurate, although her occupancy model is not.

53    After having noted the less comprehensive monitoring of Greater Glider populations which had been undertaken in New South Wales and Queensland, the Conservation Advice concluded that:

There is little other published information on population trends over the period relevant to this assessment (around 22 years), and the above sites are not necessarily representative of trends across the species’ range. However, they provide sufficient evidence to infer that the overall rate of population decline exceeds 30 percent over a 22 year (three generation) period (Woinarski et al., 2014), and indeed may far exceed 30 percent. The population of the greater glider is declining due to habitat loss, fragmentation, extensive fire and some forestry practices, and this decline is likely to be exacerbated by climate change (Kearney et al., 2010). The species is particularly susceptible to threats because of its slow life history characteristics, specialist requirements for large tree hollows (and hence mature forests), and relatively specialised dietary requirements (Woinarski et al., 2014).

The Committee considers that the species has undergone a substantial reduction in numbers over three generation lengths (22 years for this assessment), equivalent to at least 30 percent and the reduction has not ceased, the cause has not ceased and is not understood. Therefore, the species has been demonstrated to have met the relevant elements of Criterion 1 to make it eligible for listing as Vulnerable.

(Emphasis added.)

54    I note here the Scientific Committee’s clear opinion that the cause for substantial population reduction is “not understood”. Whatever legal approach is adopted, that clear opinion has considerable relevance for the obligation imposed on VicForests to apply the precautionary principle in its timber harvesting operations.

Threats to the sustainability and recovery of the Greater Glider as a species

55    The question of threats to the sustainability and recovery of the Greater Glider as a species occupied a great deal of the evidence, including the expert evidence, and I return to this topic at several points in these reasons. What I set out in this section is what might be described as the foundational points, without some of the nuances and detail, which may be important to the resolution of the issues in the proceeding, but about which more detailed findings will be made later in these reasons. As I have noted, the source of these facts, which I accept and adopt, is the Conservation Advice, which is of significant weight in my fact-finding.

56    The Conservation Advice identifies a number of key threats to the Greater Glider, as a species. It is appropriate to set out the table contained in the Conservation Advice in its entirety. Of particular importance for the issues in this proceeding is what is said about habitat loss, fire, climate change, and hyper-predation. The Scientific Committee’s summary of the “[c]umulative effects of clearing and logging activities, current burning regimes and the impacts of climate change [which] are a major threat to large hollow-bearing trees on which the species relies” is set out in Table 1 below.

Table 1: Extract from Greater Glider Conservation Advice

57    The applicant submits at [464] of its closing submissions, and I accept:

The rating of ‘catastrophic’ is drawn from the action plan for Australian mammals 2012 (CB 12.60 p256) which describes the “Threat factor” of “Habitat loss (through clearing) and fragmentation” as having a catastrophic consequence rating. The source of this descriptor is the article titled “Action plan for Australian mammals 2012” authored by Woinarski (et al.) which sets out at Table 1.3 the definition of catastrophic, being “likely to cause complete population loss, where operating” (CB 11.4 pdf p 22-23).

58    Although VicForests in its evidence and submissions sought to downplay both the threatened status of the Greater Glider and the role of timber harvesting in its threatened status, and although for many aspects of its submissions VicForests urged the Court to focus on State-based regulatory mechanisms and State-based instruments, some of the clearest statements about the role of timber harvesting in threats to the Greater Glider come from a Victorian document. The final recommendation for the nomination of the Greater Glider for listing as a threatened species under Victoria’s FFG Act in March 2017 states (with my emphasis):

While the Greater Glider is “well represented in a number of conservation reserves” (Menkhorst 1995), the bulk of its distribution remains in forest available for timber harvesting. Wood production practices are known to substantially deplete Greater Glider populations and gliders usually die if all or most of their home range is intensively logged or cleared (Menkhorst op. cit.). Unless they are linked as part of an interconnecting network of reserves, local populations risk extinction through catastrophe or by loss of genetic vigour through inbreeding. Again Menkhorst (1995) notes that agricultural development has already isolated populations in the Wombat Forest, Gippsland Highlands and Gelliondale Forest and in smaller areas on the fringes of the Eastern Highlands. McKay (1988) notes that conservation of the species “is utterly dependent on sympathetic forest management which retains buffer strips of old forest between coupes and preserves old ‘habitat trees’ and their potential successors in small unlogged areas.”

59    The statement that the “bulk” of the distribution of the Greater Glider in Victoria remains in forest available for timber harvesting (and not in conservation reserves) substantially contradicts one of the underlying premises of Dr Davey’s evidence, and of VicForests’ contentions. This document represents the formal, official reasons for listing of the Greater Glider as a threatened taxon under the Victorian regulatory scheme of which VicForests made much in this proceeding. This, like other documents on which VicForests relied, is a judgment made by the executive. The authority and accuracy of what is stated in it should be accepted.

60    Returning to the Conservation Advice, in terms of conservation actions which should be taken, the Scientific Committee recommended to the Minister that, as “primary conservation actions”, the following should occur:

1.    Reduce the frequency and intensity of prescribed burns.

2.    Identify appropriate levels of patch retention, habitat tree retention, and logging rotation in hardwood production.

3.    Protect and retain hollow-bearing trees, suitable habitat and habitat connectivity.

61    All three of those recommendations have a direct connection to forestry operations. The Conservation Advice goes on to make the following specific recommendations about the conduct of forestry operations in Victoria:

In production forests some logging prescriptions have been imposed to reduce impacts upon this species, however these are not adequate to ensure its recovery.

In Victoria, logging of areas where greater gliders occur in densities of greater than two per hectare, or greater than 15 per hour of spotlighting, require a 100 ha special protection zone (Vic DNRE1995). However, this threshold is quite high given that density estimates in Victoria range from 0.6 to 2.8 individuals per hectare (Henry 1984; van der Ree et al., 2004), and mature tree densities are declining meaning a lower probability that gliders will occur at higher densities (Gaborov pers. comm., 2015). This management requirement may therefore not adequately protect existing habitat and greater glider populations.

62    The Conservation Advice then sets out further tables summarising the management actions required to advance the conservation and protection of the Greater Glider. Again, these tables should be set out in their entirety.

Table 2: Recommended management actions

Table 3: Survey and monitoring priorities

Table 4: Information and research priorities

63    The following matters are of particular importance to my findings:

(a)    the recommendations for the active mitigation of threats and their specification as being of “high priority”;

(b)    the recognition by the Scientific Committee that more survey work was needed to “better define distribution and abundance” of the Greater Glider, and (I infer) therefore that there remained scientific uncertainty about those issues;

(c)    that there was a “medium to high” need to assess the impacts of a range of possible fire regimes on the species, again (I infer) indicating scientific uncertainty about this question;

(d)    the need – identified in the low-medium, medium and high priority range on matters relevant to forestry operations – to “assess relative effectiveness of threat mitigation options”. This is a matter to which I return later in these reasons, however I note here that, aside from the adverse opinion of Dr Smith and Professor Woinarski, there is little, if any, scientific evidence in this proceeding about the effectiveness of the prescriptions and other mitigations for which the policies of VicForests provide. As I explain later in these reasons, in the absence of any scientific evidence (by way of studies and monitoring) that existing prescriptions and mitigations are effective in reducing the population decline of the Greater Glider and assisting its recovery, I find the need, in forests where the Greater Glider may be present, for a complete application of the precautionary principle in VicForests’ forestry operations is imperative. The absence of such studies was a point repeatedly made by Dr Smith and Professor Woinarski. I also find the likely impact of forestry operations in forests where the Greater Glider may be present is significant.

64    Finally, the Scientific Committee made the following recommendation in the Conservation Advice:

The Committee recommends that there should be a recovery plan for this species.

65    Recovery Plans can be made pursuant to an exercise of a discretionary power conferred on the responsible Minister by s 269AA of the EPBC Act. No Recovery Plan has been issued for the Greater Glider; however, a document entitled “Draft National Recovery Plan for the greater glider (Petauroides volans)” was in evidence. That document is dated October 2016. The promulgation of a Recovery Plan under the EPBC Act seems to have stalled since 2016.

66    The Greater Glider Conservation Advice was approved by a delegate of the Minister on 25 May 2016. Its content should be taken to have been known to VicForests from a reasonable time after that date. In respect of the Logged Coupes, the table at [161] of Mr Paul’s second affidavit affirmed on 15 October 2018 indicates that in 17 of those coupes, harvesting commenced and completed on dates after 25 May 2016. In five coupes, harvesting operations were commenced prior to 25 May 2016 but completed after that date. In respect of the Camberwell Junction coupe, Mr Paul indicates at [178] of his second affidavit that harvesting was completed on 24 April 2018.

Dr Smith’s description of the Greater Glider

67    From Dr Smith’s first report (dated 7 January 2019), I consider the following additional characteristics of the Greater Glider and its habitat are important to note specifically.

68    Dr Smith explains why a single Greater Glider needs access to more than one suitable tree hollow:

Greater Gliders are predominantly solitary and each individual may occupy many different nest trees (habitat trees or trees with suitable hollows) within its home range which are about 1-3 hectares in size in the more productive forests (Kehl and Boorsboom 1984, Smith et al 2007). Nest sites may be changed frequently with individual gliders reported to use up to 18 den trees within their home ranges (Kehl and Boorsboom 1984, Comport et al 1996, Smith et al 2007). Frequent nest tree changes may be necessary for [temperature] control, avoidance of parasites and to reduce predation by Powerful Owls, Sooty Owls and Spotted Tail Quolls. Greater Gliders are an important (keystone) food resource for these large predators.

69    Dr Smith goes on to expand on the relationship between the Greater Glider and species which prey on it:

The Spotted-tail Quoll, which is listed as endangered under the EPBC Act in south eastern Australia, is particularly dependent on Greater Gliders which it hunts by climbing trees and removing them from tree hollows (Belcher et al 2007). The importance of Greater Gliders to the Spotted-tail Quoll is such that timber harvesting regimes that reduce Greater Glider numbers is recognized as a key threat to this species (Belcher et al 2007).

Powerful Owls (Ninox strenua) have been associated with catastrophic (90%) population declines in local Greater Glider populations (Kavanagh 1988). Powerful Owls may consume approximately 80-250 large mammal prey like Greater Gliders every year within their home ranges which are about 300-350 hectares for breeding females (Higgins 1999). At this rate if [Powerful] Owls fed solely on Greater Gliders they would remove one Greater Glider in every two hectares within their home range each year. This rate of predation exceeds the population growth rate of the Greater Glider in many forests.

70    The issue of predation of Greater Gliders by other species, in particular Powerful Owls, as Dr Smith highlights, has considerable relevance to the operation of the precautionary principle in VicForests’ forestry operations, and to the question of significant impact under s 18.

71    As to the nature of the preferred habitat of the Greater Glider – an issue also of key relevance for the precautionary principle question and for s 18 – Dr Smith states:

The Greater Glider has generally been found to prefer tall more productive “old growth” eucalyptus forests with an overstorey of large old trees that provide hollows suitable for nesting and a high basal area of large trees (> 40 cm diameter) suitable for movement by gliding. These forests may be referred to as “old growth” because it takes 120 -300+ years for trees to become old enough to develop hollows and it takes about 40-80 years for trees to reach a diameter of about 40 cm. (Ambrose 1982).

72    Dr Smith explained that because the Greater Glider is such a large possum, the trees between which it glides have to be sufficiently robust to take its weight, and the force applied when it lands on the trees.

73    There follows a detailed description of the kind of tree species favoured by the Greater Glider, and the characteristics of such forest. Although lengthy, it is important to set this part of Dr Smith’s report out, as the characteristics of the forests in which the Greater Glider is found is central to both the precautionary principle issue and the s 18 issue:

In the Central Highlands the Greater Glider habitat is found in the following three broad forests types:

a)    uniform aged old growth Ash forests that have not been intensively burnt for more than 120 years,

b)    uneven-aged Ash forests with an overstorey of scattered old trees with hollows and an understorey of advanced regrowth or mature forest (> 40 years of age) that developed after infrequent low intensity wildfire; and

c)    uneven aged old growth Mixed Species (Stringybark) forests with an overstorey of scattered or abundant old trees with hollows and an understorey of trees of different sizes including abundant trees > 40 cm diameter.

Ash forest refers to tall open wet forests dominated by Mountain Ash (Eucalyptus regnans), Alpine Ash (E. delegatensis) and/or Shining Gum (E. nitens). They generally occur at high elevations in cooler, wetter more productive environments. Ash forests give way to Mixed Species forests at lower elevations. Mixed Species forests are commonly dominated by Messmate Stringybark (E. obliqua), Mountain Grey Gum (E. cypellocarpa) and other species of Stringybarks, Peppermints and Gums. Mixed Species forests extend to low elevations and are sometimes referred to as foothill forests. Trees in Mixed Species forests are much more likely to survive wildfires than trees in Ash forests and hence are typically found in uneven-aged stands (Victorian Environment Assessment Council 2017).

In Ash forests of the Central Highlands old growth commonly occurs in uniform aged stands regenerating after a single past intense wildfire disturbance or as uneven-aged stands with two or more distinct age classes of trees that regenerated after separate less intense fires. Ash old growth appears to be most prevalent in gullies, riparian zones and sheltered aspects that have been protected from intense fire for long periods of time (>120 years). In contrast, Mixed Species forests of the Central Highlands (and elsewhere in Victoria VEAC 2017) naturally occur as uneven-aged old growth because the dominant tree species are generally not killed by intense wildfire, recover rapidly by re-sprouting (coppice) and do not require fire for regeneration (Florence 1996, Lutze et al 2004,). Consequently, large old trees with hollows are common and persistent after wildfire in Mixed Species forests. Because the dominant trees species in Mixed Species forests (Stringybarks) are also generally shade tolerant (Florence 1996) they can regenerate under an existing tree canopies and do not require post logging burning or wildfire for regeneration.

…

The Greater Glider is not present in all old growth eucalyptus forests throughout its range. It is scarce or absent from old growth [eucalyptus] forests in hot and/or dry environments, in forests that are frequently burnt or have been intensively logged and in some parts of forests that have been subject to intensive owl predation. Physiologically the Greater Glider is unable to cool itself effectively at high temperatures (> about 20c) (Rubsamen et al 1984) which explains its restriction to cool, wet forests at higher elevations, especially in the tropics and sub-tropics.

The habitat requirements of the Greater Glider may be more specifically summarized as:

1.    scattered emergent (> 1/ha) to abundant (> 12/ha) large diameter living and dead trees with hollows suitable for nesting;

2.    a tall open forest structure with an abundance of large tree stems (> 25 /ha) in the mature size class (40 - 80 cm diameter at breast height (dbh) and a scarcity of dense young regrowth in the understorey, to provide an open structure suitable for movement by gliding;

3.    low maximum mean monthly temperatures that do not exceed about 20 degrees C and moderate to high rainfall (>[about] 400 mm /annum);

4.    infrequent disturbance by fire, >10 year intervals in Mixed Species eucalyptus forest and > 40 - 120+ year intervals in wet Eucalyptus forests;

5.    no recent history of high intensity logging (clearfelling) or timber harvesting that has removed more than about 33% (wet forests) to 15% (dry forests) of the natural tree basal area (Dunning and Smith 1985, Howarth 1989, Kavanagh 2000, Eyre 2006).

6.    no recent history of intensive Owl Predation.

74    As the Conservation Advice also notes, Dr Smith’s opinion is that the Greater Glider has low annual fecundity, and at best (fecundity sitting at about 0.5-0.9 young per female per year) raises a single young each year. It has a short reproductive lifespan (likely less than 10 years). Dr Smith’s opinion is that the low fecundity of the Greater Glider “makes it especially vulnerable to predation, and slow to recover after disturbance events such as clear-felling and intense wildfire”.

75    Having reviewed a number of surveys of Greater Gliders conducted in the Central Highlands (noted by the Conservation Advice to be the most comprehensive), Dr Smith identifies the population decline of the Greater Glider and its causes, in his opinion (which I accept):

Together these surveys suggest that Greater Glider numbers in the Central Highlands increased from moderate levels (32%) in 1983 to a peak of up to 60% in 1996 and then declined reaching a low of 10-16% of sites. This rate of decline (more than 50% reduction in 13 years) is consistent with the requirements for listing of the Greater Glider as vulnerable under the EPBC Act.

The pattern of decline is broadly consistent with what we know about changes in the geographic extent of potential Greater Glider habitat in the Central Highlands. It is consistent with an initial increase in the structural suitability of 1939 regrowth Ash Forest for Greater Gliders as these forests increased in age (from 44- 79 years of age), followed by a steady decrease in the overall extent of habitat caused by a combination of:

a)    ongoing clearfelling and post logging burning of 1939 regrowth and uneven-aged ash regrowth and particularly the loss of scattered living old growth trees with hollows during logging and post logging burning operations;

b)    ongoing natural decay and collapse of dead trees with hollows in 1939 regrowth Ash Forests (Smith 1982, Smith and [Lindenmayer] 1988, [Lindenmayer] et al 1990),

c)    ongoing clearfelling of old growth Mixed Species forests (largely found to be incorrectly mapped as 1939 regrowth by VicForests in this study);

d)    extensive wildfires in Ash Forests and Mixed Species forests in 2009;

e)    increased isolation and fragmentation of remnant habitat caused by excessive logging of old growth Ash and Mixed Species forests remnants in gullies and riparian zones and failure to maintain substantive corridor links between remnant old growth and uneven-aged habitats; and

f)    potential loss of habitat in the hotter and drier patches of Mixed Species and Ash Forest at lower elevations and on exposed aspects due to hotter and drier conditions than normal over recent years (Lumsden et al 2013).

76    A recurring theme in the evidence of both Dr Smith and Professor Woinarski, on which I have placed some weight, is the critical role played by the 1939 regrowth Ash forest in the habitat needs of both the Greater Glider and Leadbeater’s Possum in the CH RFA region. It is the 1939 regrowth which is also one of the targets of VicForests’ forestry operations.

77    Finally, I note some further evidence from Tyndale-Biscoe’s Life of Marsupials, which was a principal source relied on by Mr McBride for information about the characteristics of the Greater Glider. The author compares the Greater Glider to the Koala, in terms of its focus on eucalyptus foliage as a diet, and states (at p 240):

Greater gliders are at about the minimum size for an animal subsisting exclusively on Eucalyptus leaves and it is clear from the analysis of their energetics that they are only able to live on this diet by leading a slow life.

…

For a species living so close to the limits of sustainability the nutritional quality of the food, both its energy content and nitrogen content, are critical to survival.

78    As to breeding patterns, the author states:

They generally live alone except during the brief highly synchronised breeding season in April-June when the single young is born. Young lost prematurely are not replaced and there is no second peak of breeding because the males are no longer producing sperm (see Chapter 2).

…

More interestingly, the number of females with pouch young is about the same as the number of adult males, so that there is a pool of non-breeding females. This is because gliders form monogamous pairs (Henry 1984, Kehl and Borsboom 1984). In both studies the home ranges of adult females did not overlap in the forest but those of males were larger and overlapped the home range of one or two females, depending on the quality of the forest.

79    This text contains some important observations, including observations derived from a study of the effects of forestry operations on the Greater Glider in New South Wales, which are material to the findings I make about the application of the precautionary principle to the Greater Glider and to the question of significant impact. I extract those passages of the text later in these reasons. In substance, the text paints a gloomy picture of the capacity of the Greater Glider to survive forestry operations even in the short to medium term, if they are not killed by the logging event itself. It paints an equally gloomy picture of the capacity of the Greater Glider to move to unlogged forest, or to recolonise logged forest. I reiterate this was a key source of Mr McBride’s information about the Greater Glider.

The Leadbeater’s Possum

80    The Leadbeater’s Possum was initially listed as a threatened species under the EPBC Act in the endangered category, but was transferred to the critically endangered category, effective from 2 May 2015. There was less debate about the characteristics and habitat needs of the Leadbeater’s Possum. As well as the 2015 Conservation Advice for this species, setting out the justifications for its listing as critically endangered, there is an Action Statement published in 2014 by the then Victorian Department of Environment and Primary Industries. The Action Statement was made pursuant to s 19 of the FFG Act.

81    There is no current Recovery Plan under the EPBC Act for the Leadbeater’s Possum, although there is a draft, dating from 2016, of which Professor Woinarski was one of the co-authors. There was an earlier Recovery Plan, which is now out of date. On 22 June 2019, shortly after this trial was completed, a new Conservation Advice for the Leadbeater’s Possum was issued. The parties and witnesses mostly relied on the 2015 Conservation Advice and I have done the same. However it is worth noting from the 2019 Conservation Advice, which was in evidence, that:

(a)    like the 2015 Conservation Advice, the 2019 Conservation Advice lists the Leadbeater’s Possum as critically endangered, although under a different criterion: namely, Criterion 1 A4(b) (“An observed, estimated, inferred, projected or suspected population reduction where the time period must include both the past and the future (up to a max. of 100 years in future), and where the causes of reduction may have ceased OR may not be understood OR may not be reversible” based on “an index of abundance appropriate to the taxon”);

(b)    the 2019 Conservation Advice lists the Leadbeater’s Possum as endangered under criteria not relied upon in the 2015 Conservation Advice: namely, Criteria 1 A2(a) and A2(b) (“Population reduction observed, estimated, inferred or suspected in the past where the causes of the reduction may not have ceased OR may not be understood OR may not be reversible” based on “direct observation” and “an index of abundance appropriate to the taxon”) and A3(b) (“Population reduction, projected or suspected to be met in the future (up to a maximum of 100 years) based on “an index of abundance appropriate to the taxon”); and

(c)    the 2019 Conservation Advice notes that, although, as a result of extensive work that has been undertaken “most notably by scientists from the Arthur Rylah Institute, as well as community groups and the logging industry”, large numbers of additional Leadbeater’s Possum colonies have been identified, reliable population estimates still cannot be generated from the data.

82    The Leadbeater’s Possum is a small, nocturnal, arboreal possum, with a dark brown stripe along its back and pale colour underneath. It grows up to 17 cm in length, with a thick tail about as long as its body. It is Victoria’s faunal emblem, and is endemic to that State.

83    Through genetic work, two genetically distinct subpopulations have been identified, occupying different habitats. There is what the 2015 Conservation Advice describes as an “outlier lowland population” at Cockatoo Swamp near Yellingbo, within 181 ha of lowland floodplain forest where less than 20 ha provides suitable habitat. The 2015 Conservation Advice states that the second, and major subpopulation is in a relatively small part of the CH RFA region:

The core location of the species is an area of approximately 70 x 80 km in the Central Highlands of Victoria at altitudes between 400–1,200 m above sea level (Lindenmayer et al., 1989) where it is patchily distributed (Macfarlane et al., 1997) and occupies alpine forest and subalpine woodland comprising Eucalyptus regnans (mountain ash), Eucalyptus delegatensis (alpine ash), Eucalyptus nitens (shining gum) and Eucalyptus camphora (snow gum).

84    Fossil and historical records indicate the species was once more widely distributed, although a scarcity of specimens combined with clearing of areas thought to be its only habitat in the late 19th century led to suggestions it was extinct. In the 1960s specimens were collected in new areas in the Central Highlands.

85    Unlike the Greater Glider, Leadbeater’s Possum live in colonies. Groups number between two to twelve individuals, including one breeding pair, although some studies have found colonies with two breeding females. They shelter in tree hollows during the day and occupy territories that contain multiple den sites. Female dispersal is greater than male dispersal and females are subject to higher rates of mortality. The general adult population is thought to have a sex ratio approaching three males to one female. Thus, breeding is limited by the number of mature females. It is thought Leadbeater’s Possum are “strictly monogamous”, and that only one adult male per colony is reproductively active. The 2015 Conservation Advice states that Leadbeater’s Possum nest trees are:

spaced close to the centre of a relative exclusive home range (Smith, 1984), and linear strips of habitat (e.g., 80 m) may be insufficient for their social and dietary requirements.

86    Again, quite differently to the Greater Glider, the Leadbeater’s Possum reproduces twice a year and has more than one young. The mean litter size is put at approximately 1.5.

87    Adult Leadbeater’s Possum live for approximately ten years and the first breeding age is typically two years. Generation length (described in the 2015 Conservation Advice as longevity plus age at maturity divided by two) for Leadbeater’s Possum is six years.

88    The species appears to have long-term site fidelity, and colonies live in territories of 1-3 ha that contain multiple den sites and which are actively defended from neighbouring colonies. The Leadbeater’s Possum is described in the 2015 Conservation Advice as:

typically sedentary and territorial, with resident animals travelling between den trees and feeding areas, or between alternative den trees (Lindenmayer and Meggs, 1996; Smith, 1984) with the distance between a set of nest sites used by a colony possibly exceeding 100 m (Lindenmayer and Meggs, 1996).

89    The 2015 Conservation Advice states that Leadbeater’s Possum habitat is usually defined as Montane Ash forest dominated by Mountain Ash, Alpine Ash and Shining Gum with a dense understorey of Acacia and an abundance of large hollow-bearing trees. Leadbeater’s Possum also inhabits sub-alpine woodland dominated by Snow Gum containing a dense midstorey of Mountain Tea Tree (Leptospermum grandiflorum) along drainage lines, or forest dominated by Mountain Swamp Gum (Eucalyptus camphora) with a dense midstorey of Melaleuca and Leptospermum species. It can be seen from this description that Leadbeater’s Possum habitat requirements are quite different to that of the Greater Glider, although both are hollow-dependent species.

90    The diet of the Leadbeater’s Possum is also quite different to, and broader than, that of the Greater Glider. The 2015 Conservation Advice describes its diet as consisting of carbohydrate-rich plant and insect secretions (eg sap, manna, honeydew) and invertebrates. It has also been observed to feed on an undescribed species of tree cricket. In Montane Ash forest, the species has been recorded incising Acacias and feeding on the gum that exudes into the wound. Paperbarks and Tea Trees may also be incised in lowland swamp forest.

91    In contrast to the Greater Glider, the hollows used by the Leadbeater’s Possum are predominantly in dead trees. It rarely makes use of the ground. The 2015 Conservation Advice describes Leadbeater’s Possum habitat requirements in the following way:

Tree hollows are a critical resource for Leadbeater’s possum and the species’ abundance is positively correlated with hollow availability (Lindenmayer et al., 1991b). The majority of trees occupied by Leadbeater’s possum are dead hollow-bearing trees. Living hollow-bearing trees are also used and become the next cohort of dead hollow-bearing trees in the future (Lindenmayer et al., 2013a). Leadbeater’s possum rarely descends to the ground and is highly reliant upon dense, continuous vegetation with interconnecting lateral branches and/or high stem density (Lindenmayer, 1996a).

The key attributes of Leadbeater’s possum across all forest types (LPAG, 2013) are:

•    Hollow-bearing trees (for nest sites and refuge) with large internal dimensions in the order of 30 cm in diameter are a critical habitat feature for Leadbeater’s possums (LPAG, 2013), particularly and almost exclusively large old trees (Lindenmayer et al., 2013a; Lindenmayer et al., pers. comm., 2014a).

•    Density of hollow-bearing trees is recognised as a critical habitat feature (e.g., DEPI, 2014). There are strong and quantified links between the abundance of hollow-bearing trees and the occurrence of Leadbeater’s possum (e.g., Lindenmayer et al., 1991b; Lindenmayer et al., 2013b; Lindenmayer et al., pers. comm., 2014a), with nest hollow availability the limiting factor to population size. Density of less than one hollow-bearing tree per hectare is considered to represent ecosystem collapse for the Mountain Ash Forest ecosystem (Burns et al., 2014).

•    predominance of smooth-barked eucalypts (with loose bark hanging in strips providing shelter for insect prey and material for nests) or gum-barked eucalypts (related to foraging behaviour) (Lindenmayer, 1996a; Harley, 2004a;b;c). Forest types of Leadbeater’s possum are most commonly ash forest typically dominated by mountain ash, alpine ash and shining gum but it is also known to occur in subalpine woodlands and lowland swamp forest dominated by snow gum or mountain swamp gum (Smith and Hartley, 2008)

•    a structurally dense interlocking canopy or secondary tree layer of continuous interconnecting structure (to facilitate movement) (Lindenmayer, 1996a; Harley, 2004a;b;c), and

•    a wattle [understorey] (providing food) (Smith and Lindenmayer, 1988; Menkhorst and Lumsden, 1995; DSE, 2013).

92    In terms of the fundamental habitat requirements for the Leadbeater’s Possum, the 2015 Conservation Advice describes those in the following way:

An optimum habitat is an uneven-aged ash forest with a dense [understorey] of wattle trees and a supply of hollow bearing trees of between 4.2 – 10 per 3 ha (Smith and Lindenmayer, 1988). Leadbeater’s possums appear to have critical minimum habitat size of around 12 ha (Lindenmayer et al., pers. comm., 2014b).

93    The 2015 Conservation Advice states unequivocally that Leadbeater’s Possum do not occur on burned sites, including those subject to low and moderate severity fire, clear-fell logged, or regenerated Montane Ash forest where hollow-bearing trees are largely absent, until the habitat conditions they need have returned.

94    The Leadbeater’s Possum’s listing as critically endangered was justified in the 2015 Conservation Advice because the Leadbeater’s Possum met a number of the criteria for the following reasons:

(a)    the species’ loss of population size, characterised by the Scientific Committee as “very severe”, justifying its listing under the Critically Endangered category;

(b)    it has a restricted area of occupancy and a geographic distribution that is precarious for its survival, justifying its listing under the Endangered category;

(c)    the number of mature breeding individuals is likely to be at least “limited” and is very likely to be “restricted”, with numbers likely to continue to decline, together with the precariousness of the species’ geographic distribution, justifying listing under the Endangered category; and

(d)    it has a probability of extinction of at least 10%, justifying listing in the Vulnerable category, given the estimate that the Mountain Ash Forest ecosystem on which the montane populations of Leadbeater’s Possum depend will become extinct within the next 100 years with at least a 10% likelihood, and that the only known population of the species outside of this habitat (being the lowland Yellingbo population) is also predicted to become extinct in the next 100 years, with a greater than 10% likelihood.

95    The 2015 Conservation Advice states, in the context of discussing the species’ eligibility for listing under Criterion 1 (reduction in numbers), that:

[s]uitable habitat at the baseline at 1989 is estimated to be 11,470 ha, which declines to only 2,225 ha by 2013 as a result of loss from fire, harvesting and loss in habitat quality from loss of hollow-bearing trees. This is a decline of over 80 per cent decline, which is considered to be very severe …

Threats to the sustainability and recovery of the Leadbeater’s Possum as a species

96    The 2015 Conservation Advice describes the threats to the Leadbeater’s Possum in the following terms:

The primary threats to Leadbeater’s possum are habitat loss and ongoing deterioration of habitat quality including loss of vegetation type and structure. These threats result in a loss in the species’ ability to shelter, breed, disperse, and feed. This situation has resulted in immediate population decline as well as ongoing decline in reproduction rates. Loss of habitat quality has resulted in complete abandonment of habitat in some instances, or reduction in population size and reproduction rate (e.g., at Yellingbo during the past nine years).

97    The two relevant causes of habitat loss and loss in habitat quality identified in the 2015 Conservation Advice are, in the order in which they appear in the 2015 Conservation Advice:

(a)    Loss through fire. While the 2015 Conservation Advice recognises fire as a natural disturbance, it notes that prior to European settlement “the fire regime was less frequent than at present, and occurred in late summer (citing Lindenmayer et al., 2013b)”. It also notes, presciently:

[O]ver the last century, bushfires have occurred in the Central Highlands on average every ten years, and that the frequency and intensity of wildfires are likely to increase under climate change scenarios, which predict increased rates of extreme climatic events (Lumsden et al., 2013). The last decade has seen a significant and measurable increase in the number, intensity and area burnt by bushfires and projections suggest that this will continue to escalate (DSE, 2008).

(b)    Critically, the 2015 Conservation Advice notes the effect of the 2009 fires, where of the 195,000 ha of Ash forest and Snow Gum woodlands considered to be potential habitat of Leadbeater’s Possum at that point, 68,000 ha (35%) was burnt and 45% of the best Leadbeater’s Possum habitat within Montane Ash forest was burnt. The 2015 Conservation Advice states that after these fires, the species has not been detected at burned sites regardless of the fire severity.

(c)    The 2015 Conservation Advice includes some stark numbers on the effects of fire, by reference to a monitored site at Lake Mountain, which was thought to contain up to 300 individual Leadbeater’s Possums prior to the 2009 fires, with only four individuals recorded since the fires.

(d)    In this part, the 2015 Conservation Advice also notes the adverse effects on the species from post-fire salvage logging and the regeneration burning after clear-fell harvesting.

(e)    The second relevant identified threat is loss through harvesting and lack of habitat quality in regrowth forest. The 2015 Conservation Advice notes clear-felling as a predominant method of logging in the Central Highlands, and then states:

Hollow-bearing trees retained for ‘wildlife habitat’ are of little immediate habitat value to Leadbeater’s possum when there is no surrounding foraging habitat, but may be used when surrounding foraging habitat vegetation and structure is regrown (i.e. 20 years (LPAG, 2013)).

(f)    In the context of timber harvesting, the 2015 Conservation Advice notes:

Old-growth ash forest is prime habitat for Leadbeater’s possum. It is estimated that old-growth or multi-aged mountain ash forest comprised 30–60 per cent of the current ash forest estate in the Central Highlands of Victoria prior to European settlement. Old growth ash forest now comprises 1.15 per cent of this mountain ash forest estate (Lindenmayer et al., 2013a).

(g)    As I will discuss later in these reasons, what a forester describes as “old growth” and what a conservation biologist or conservation ecologist describes as “old growth” might differ. For the purposes of my fact-finding, the material issue is that this Conservation Advice highlights the dramatic decline in forest of that type, indicates that forest of that type is the prime habitat for the Leadbeater’s Possum, and finds that the Leadbeater’s Possum population has only 1.15% of Mountain Ash forest of this kind left in the Central Highlands.

(h)    The Leadbeater’s Possum’s dependence on dead hollows also has consequences for the effects of timber harvesting, according to the 2015 Conservation Advice. The 2015 Conservation Advice states that while hollows begin to develop in dominant eucalypts in Montane Ash forest after 120 years, hollows suitable for Leadbeater’s Possum are not present until trees attain 190 years of age. In many areas, the 2015 Conservation Advice states that standing dead trees have provided the majority of dens for Leadbeater’s Possums.

(i)    The difficulty is that standing dead trees are subject to a high rate of collapse resulting from natural decay and while loss due to decay is a natural process, the 2015 Conservation Advice states that the loss of hollows has occurred and now occurs at a greater rate than they are formed, due to a reduction in equivalent replacements as a result of clear-felling, fire, and in some cases, altered succession (eg Yellingbo). Further, short-term intervals between fire events and timber harvesting on short rotation cycles do not provide for formation of replacement hollows. Therefore, the availability of suitable hollows for denning is a limiting factor across much of the range of the Leadbeater’s Possum. Regrowth trees in areas burnt during the fires in the 1930s may not develop hollows suitable for Leadbeater’s Possums for more than a century.

(j)    The 2015 Conservation Advice then describes the effect of logging rotations and other effects of forestry operations:

Clearfell logging on 80–120 year rotations means that large old trees never develop on logged and regenerated sites. Selective clearfelling removes targeted existing large trees (including nest hollows), but also accelerates the decay and collapse of non-targeted hollow bearing trees, (Lindenmayer et al., 2013b). The rate of tree fall exceeds recruitment of new hollow-bearing trees within montane ash forests (Lindenmayer et al., 1997).

The impacts of fire go beyond the areas directly burned. Hollow-bearing trees adjacent to areas of logged forest have been found to suffer from accelerated rates of collapse (Lindenmayer et al., 1997).

In existing forests, the quality of Leadbeater’s possum habitat may be reduced by:

•    loss of hollow bearing trees without equivalent replacement hollows as a result of earlier harvesting;

•    habitat fragmentation as a result of timber harvesting or fire,

•    altered habitat structure due to altered fire regimes, harvesting regimes or altered hydrology.

98    It will be necessary later in these reasons to address in detail one of VicForests’ principal submissions in response, being that it intends to reduce clear-fell logging as a timber harvesting method, and therefore, that much of what is said in documents such as the 2015 Conservation Advice cannot be applied to its forestry operations in the future, including those in the Scheduled Coupes. In summary, I do not accept that submission.

99    The 2015 Conservation Advice identifies as “important habitat for the survival of the species”, the following:

The key habitat attributes of Leadbeater’s possum across all forest types (LPAG, 2013), and therefore important habitat for the survival of the species, are:

•    Hollow-bearing trees (for nest sites and refuge) with large internal dimensions in the order of 30 cm in diameter are a critical habitat feature for Leadbeater’s possums (LPAG, 2013), particularly and almost exclusively large old trees (Lindenmayer et al., 2013a; Lindenmayer et al., pers. comm., 2014a).

•    Density of hollow-bearing trees is recognised as a critical habitat feature (e.g., DEPI, 2014). There are strong and quantified links between the abundance of hollow-bearing trees and the occurrence of Leadbeater’s possum (e.g., Lindenmayer at al., 1991c; Lindenmayer et al., 2013c; Lindenmayer et al., pers. comm., 2014a), with nest hollow availability the limiting factor to population size. Density of less than one hollow-bearing tree per hectare is considered to represent ecosystem collapse for the Mountain Ash Forest ecosystem (Burn et al., 2014).

•    Predominance of smooth-barked eucalypts (with loose bark hanging in strips providing shelter for insect prey and material for nests) or gum-barked eucalypts (related to foraging behaviour) (Lindenmayer, 1996a; Harley, 2004a;b;c).

•    Forest types of Leadbeater’s possum are most commonly ash forest typically dominated by mountain ash, alpine ash and shining gum.

•    The species is also known to occur in subalpine woodlands and lowland swamp forest dominated by snow gum or mountain swamp gum (Smith and Hartley, 2008) with Melaleuca spp or Leptospermum spp in the [middlestorey] (Harley et al., 2005).

•    A structurally dense interlocking canopy or secondary tree layer of continuous interconnecting structure (to facilitate movement) (Lindenmayer, 1996a; Harley, 2004a;b;c), and

•    A wattle [understorey] (providing food) (Smith and Lindenmayer, 1988; Menkhorst and Lumsden, 1995; DSE, 2013).

100    The Scientific Committee then notes, and I attribute considerable weight to this statement:

Leadbeater’s possum colonies are territorial, defending areas of 1–3 hectares (Smith, 1984). Leadbeater’s possums appear to have critical minimum habitat size of around 12 ha (Lindenmayer et al., pers comm., 2014b). As the species indicates long-term site fidelity (Lindenmayer et al., 2013a), habitat where the species currently occurs is important habitat to maintain.

101    In other words, conservation and recovery of this species are unlikely to be achieved if a premise of conduct in relation to their habitat is that they must relocate.

102    The Scientific Committee ended the 2015 Conservation Advice with the following statement, to which I have also given some weight:

The Committee considers the most effective way to prevent further decline and rebuild the population of Leadbeater’s possum is to cease timber harvesting within montane ash forests of the Central Highlands.

103    This Court is not determining in this proceeding whether timber harvesting should cease in the CH RFA region in which the Logged Coupes and Scheduled Coupes are located. Its task is narrower than that. However, I consider it to be a factor of some weight that the expert committee established under the EPBC Act recommended, for the conservation and recovery of the Leadbeater’s Possum, a total cessation of timber harvesting in the Montane Ash forests of the region. The severity of that recommendation indicates the severity of the situation facing the Leadbeater’s Possum as a species.

Additional biology/ecology points made by Professor Woinarski

104    Professor Woinarski makes the following observation in his first report about the ecology of the Leadbeater’s Possum, after noting that there is “general agreement about most aspects of its biology”:

However, although Leadbeater’s possum is amongst the most intensively studied native animal species in Australia, there are important aspects of its ecology that are unknown or poorly known: these include its home range size and dispersal, the minimum area of habitat fragments that can sustain a viable population, its overall population size, the extent to which it can reside within regrowth vegetation, and factors that influence its reproductive success.

105    Professor Woinarski also makes the following general points in his first report, to which I have given weight (quoting directly from Professor Woinarski’s report, with emphasis in the original and footnotes omitted):

(a)    The Leadbeater’s Possum is now restricted to Victoria, with almost all of its distribution and population within the Central Highlands region. Its extent of occurrence is about 4000 km².

(b)    Leadbeater’s Possum is essentially entirely arboreal. Because it rarely comes to the ground, its movements around its home range (eg for foraging and social reasons) are dependent upon a continuous spatially interconnected network of woody vegetation (branches, trunks and foliage of trees and tall shrubs).

(c)    In high quality habitat, its home range size (ie the area in which a colony lives and defends) is 1 to 3 ha, but this estimate is based on few data, and home range size is likely to need to be larger in poorer quality habitat.

(d)    Family parties of Leadbeater’s Possum typically use, and rely on, multiple den sites within their territory, so the abundance and juxtaposition of tree hollows is especially important in determining habitat suitability and persistence and viability of colonies.

(e)    With a few notable exceptions, Leadbeater’s Possum occurs almost entirely in Montane Ash forests, especially those dominated by Mountain Ash Eucalyptus regnans trees of suitable age and stature (with appropriate hollows) and with suitable understorey. The minority exceptions comprise (i) a very small population (around 40 individuals) in a small strip of remnant lowland swamp forest (mostly dominated by Eucalyptus camphora) at Yellingbo; (ii) some small populations in sub-alpine Snow Gum Eucalyptus pauciflora woodlands within the Central Highlands; and (iii) some small populations in mixed-species eucalypt forests in and near the Central Highlands.

(f)    Recent technical advances – most notably the use of remote cameras (camera traps) and thermal imagery – have allowed for much recent increase in knowledge of the distribution and habitat use of the species. As a result of these breakthroughs, there has been a significant increase in the number of sites from which Leadbeater’s Possum has been recorded. This increase reflects an increase in survey effort and efficacy rather than any expansion in the possum’s distribution or increase in its population size.

(g)    Nonetheless, there has been no appropriate sampling effort in much of the possum’s putative range, and even surveys using camera traps and thermal imagery may fail to detect possums that are present in an area.

(h)    The Australian conservation status of Leadbeater’s Possum was reviewed in 2014-15 and it was uplisted to Critically Endangered in 2015, in recognition of its increasing extinction risk. As assessed by the independent Threatened Species Scientific Committee, and accepted by the Australian Minister for the Environment, it was found to qualify as Critically Endangered (the highest threatened category) on the basis of a reduction in its total population size of at least 80% over the previous three (possum) generations (ie 18 years: 1997-2015) (criterion A2(c)) and also on a projected decline in its population size of at least 80% over the next three (possum) generations (ie 2016-2034) (criterion A3(c)).

(i)    This assessment of the rate of likely future decline incorporated due consideration of the array of timber-harvesting regulations and extent of reservation in operation in Victoria at the time: ie Leadbeater’s Possum was assessed by the Threatened Species Scientific Committee and the Australian Minister for the Environment to be likely to experience a decline of at least 80% in population size over the 18 year period from 2016 to 2034 even allowing for that set of then-existing timber harvesting regulatory provisions.

(j)    The assessment of rate of population decline was informed largely by data from one of Australia’s most substantial and long-lasting biodiversity monitoring programs undertaken by Professor David Lindenmayer and colleagues from the Australian National University. Those studies have reported a substantial and ongoing chronic decline in occupancy by Leadbeater’s Possum in monitoring sites widely spaced across the Central Highlands, with episodic periods of acute decline associated with recent severe and extensive wildfire events.

(k)    It is challenging to quantify the risk of extinction, or the likely number of years to extinction for Leadbeater’s Possum. This is partly because there are some gaps in knowledge, notably in relation to the species’ total population size, and partly because population trajectory is substantially influenced by stochastic events, notably the incidence and extent of severe wildfire. A recent expert elicitation evaluated the extinction risk for Australian bird and mammal species, and estimated that, on the assumption of continuation of current management, there was a 29% chance of extinction for Leadbeater’s Possum within 20 years.

THE FEDERAL AND STATE REGULATORY FRAMEWORK IN SUMMARY

106    Much of this framework and my analysis of it, especially the EPBC Act, the background to the conclusion of the Regional Forest Agreements and the provisions and operation of the Regional Forest Agreements Act 2002 (Cth) (RFA Act), is set out in the Separate Question reasons. I adopt and rely upon what I said in those reasons at [64]-[190].

107    In relation to the interaction between s 38 of the EPBC Act and the Victorian regulatory framework, at [148]-[149] of the Separate Question reasons, I said:

Clause 40 in Pt 2 [of the CH RFA] records the parties’ agreement that Victorian processes and systems existing at the time of the Central Highlands RFA “provide for ecologically sustainable management of forests in the Central Highlands and that these processes and systems are accredited in clause 47 of this Agreement”. There are four components of the Victorian regulatory system which are accredited under cl 47. It is worthwhile noting them, in particular because some of them directly affect the conduct of forestry operations and are the subject-matter of the RFA that the Commonwealth contends is (at least) capable of affecting the operation of the exemption in s 38(1) of the EPBC Act. The four components of the accredited Victorian system in cl 47 are:

•    the Forest Management Plan and the process for its review;

•    the Flora and Fauna Guarantee Act 1988 [(Vic)];

•    the process for forecasting sawlog sustainable yield in the Central Highlands; and

•    the systems and processes established by the Code of Forest Practices for Timber Production and the Code of Practice for Fire Management on Public Land.

The last component bears directly on the conduct of forestry operations in the Central Highlands RFA region. The provisions of the Flora and Fauna Guarantee Act are also capable of having a direct bearing on the conduct of forestry operations.

108    Thus, the Code is a key component of the substituted system accredited by the Commonwealth under the CH RFA.

109    I set out the key elements of the Victorian regulatory framework, and the parties’ arguments about it, in the Injunction reasons at [28]-[48]. At [29], I noted that for the purpose of the interlocutory application, VicForests did not dispute that non-compliance with the Code, or with the “Management Standards and Procedures for timber harvesting operations in Victoria’s State forests”, was capable of depriving a person or entity who conducted a Regional Forest Agreement forestry operation of the protection afforded by the exemption in s 38(1) of the EPBC Act. That concession was made again in VicForests’ closing written submissions: see [61]-[62], [94]-[96], [98]-[99], [131] and [134]. The critical question is whether the circumstances alleged by the applicant have that result, and VicForests contended they did not.

110    Notwithstanding that it may involve some repetition of parts of both the Separate Question reasons and the Injunction reasons, the key aspects of the Victorian regulatory framework which bear on the resolution of this proceeding should be set out.

Allocation orders and Timber Release Plans

111    As property of the Crown in right of the State of Victoria, timber resources are allocated to VicForests under Pt 3 of the Sustainable Forests (Timber) Act 2004 (Vic), through publication of an Allocation Order. The Allocation Orders relevant to this proceeding were in evidence at Court Book references 6.4-6.5A. Allocation Orders can include conditions, limitations, matters or specifications: see s 15(2). Allocation is by way of gross area and the Allocation Order 2013, which was also in evidence as Court Book item 6.4, expressly states:

No adjustments have been made for areas that are not available for harvesting under relevant Codes of Practice relating to timber harvesting.

112    Taking the Allocation Order 2013 as an example (which was amended by subsequent orders published in 2014 and 2019), the following clauses should be set out:

OBJECTIVES

2.    The objectives of this Order are to:

a.    Allocate specified timber in State forests to VicForests for the purposes of harvesting and selling, or harvesting or selling, timber resources;

b.    Permit VicForests to undertake associated management activities in relation to that allocated timber and additional activities in the areas to which this Order applies; and

c.    Specify the conditions and limitations that apply under this Order.

…

ALLOCATION TO VICFORESTS

…

7.    Pursuant to section 13(a) of the SFT Act, timber in the forest stands described in Item 4 of Table 1 and the map at Appendix l of this Order is allocated to VicForests for the purposes of harvesting and selling, or harvesting or selling, timber resources (subject to the conditions and limitations in this Order).

…

AUTHORISED ACTIVITIES

9.    Pursuant to section 13(a) of the SFT Act. VicForests is permitted to harvest and sell, or harvest or sell, the timber allocated by this Order.

10.    Pursuant to sections 13(b) and 15(1)(b) of the SFT Act, VicForests is permitted to carry out associated management activities in relation to that allocated timber and additional activities in coupes described in any timber release plan (TRP) as defined in the SFT Act, including:

a.    preparation of sites for timber harvesting;

b.    construction of access roads to coupes;

c.    site rehabilitation;

d.    forest regeneration;

e.    seed collection;

f.    harvest of non-eucalypt species (such as Acacia species);

g.    monitoring; and

h.    tending or forest stands (e.g. thinning).

…

SPECIFIED CONDITIONS

12.    Pursuant to section 15(2), (3) and (4) of the SFT Act, VicForests is required to comply with the following conditions:

Legislative and regulatory obligations

13.    VicForests must comply with all relevant laws including, but not limited to, the Sustainable Forests (Timber) Act 2004, the Forests Act 1958, the Conservation, Forests and Lands Act 1987, the Flora and Fauna Guarantee Act 1988, the Road Management Act 2004 and the Traditional Owner Settlement Act 2010.

14.     VicForests must comply with all relevant Codes of Practice and other relevant documents as determined by the Secretary to the Department of Environment and Primary Industries (DEPI) (and any predecessor or successor thereto) and as prepared and amended from time to time, including, but not limited to, the Code of Practice for Timber Production 2007, the Code of Practice for Bushfire Management on Public Land 2012, and the Management Procedures for Timber Harvesting, Roading and Regeneration in Victoria’s State Forests 2009.

(Original emphasis.)

113    Thereafter VicForests must prepare a Timber Release Plan: see s 37 of the SFT Act. A Timber Release Plan must be consistent with the Allocation Order to which it relates (including any conditions, limitations, matters or specifications), as well as with any relevant Code of Practice relating to timber harvesting: s 37(3).

114    In the present case, a Timber Release Plan for the Logged Coupes and Scheduled Coupes was gazetted in January 2017, although itself a modification to an earlier Timber Release Plan. Then in April 2019 – during the currency of this proceeding – the Timber Release Plan was gazetted again, without any significant change to the silvicultural methods designated for the Scheduled Coupes. The text of the 2017 Timber Release Plan relevantly states:

Timber Release Plan

VicForests has prepared a Timber Release Plan as contemplated in Part 5 of the Sustainable Forests (Timber) Act 2004 (Vic) (the SFT Act). Section 37 of the SFT Act requires VicForests to prepare a plan in respect of an area to which an Allocation Order applies for the purposes of:

(a)    harvesting and selling, or harvesting or selling, timber resources; and

(b)    undertaking associated management activities in relation to those timber resources.

With respect to Section 43 of the SFT Act, VicForests is permitted to review and change the Timber Release Plan at any time if the change is not inconsistent with:

(a)    the allocation order to which the plan relates, including any condition, limitation, matter or specification in the order; and

(b)    any relevant Code of Practice relating to timber harvesting.

Specified conditions

VicForests recognises that all planning and operations of VicForests must:

(a)    comply with all relevant laws including, but not limited to:

i.    the Forests Act 1958 (Vic);

ii.    the Conservation, Forests and Land Act 1987 (Vic);

iii.    the Flora and Fauna Guarantee Act 1988 (Vic);

iv.    the Road Management Act 2004 (Vic); and

v.    the Traditional Owner Settlement Act 2010 (Vic); and

(b)    comply with all conditions, requirements and limitations in the Allocation Order 2013 as amended.

(Original emphasis.)

115    The text of the 2019 Timber Release Plan, after repeating the above text, then states:

Approved Changes to Timber Release Plan

The VicForests Board has approved a Change to the Timber Release Plan in accordance with Section 43 of the SFT Act, causing notice in the Government Gazette published on 24 April 2019 (S 154).

The Approved Changes were necessary to:

•    Maintain a flexible 2-3 year rolling operation schedule (coupes that have been harvested need to be replaced with new coupes for the future);

•    Maintain consistency of the TRP with any changes made by Department of Environment, Land, Water and Planning (DELWP) to the Forest Management Zoning Scheme;

•    Modify boundaries and silviculture based on improved planning information gathered on existing approved TRP coupes;

•    Removal of coupes which have been successfully regenerated;

•    Removal of coupes following stakeholder consultation;

•    Incorporation of selected Timber [Utilisation] Plan coupes into the TRP;

•    Facilitate improved access to existing TRP coupes.

116    There follows in each Timber Release Plan a table setting out on a coupe-by-coupe basis the forest stands which are scheduled for harvesting in the nominated period of harvest in the Timber Release Plan. It is not necessary to set out the entire content of the Timber Release Plan, but it is necessary to understand the form in which it appears, especially as to its nomination of the period for scheduled harvesting and the silvicultural system to be used. The below excerpt from the 2019 Timber Release Plan shows Turducken (coupe number 348-519-0008) in bold, which is one of the Scheduled Coupes in the proceeding in which the Greater Glider has been detected.

Table 5: Excerpt from 2019 Timber Release Plan