Brown v Forestry Tasmania (No 4) [2006] FCA 1729

Procedural Posture

Application Under S 475 of the Environment Protection and Biodiversity Conservation Act 1999 (cth) for Injunction and Declarations Concerning Forestry Operations in the Wielangta Forest / Reasons for Judgment on Amended Agreed Issues Before Final Orders; Proceeding Adjourned for Directions Hearing on Consequential Orders

Legal Issues

1. 1 ['The likely extent of forestry operations in the Wielangta area beyond August 2008.' 'Whether forestry operations in WT017E and WT019D and proposed forestry operations in other coupes are actions for the purposes of the EPBC Act.' 'The extent to which the broad-toothed stag beetle is present or likely to be present in the Wielangta forest area.' 'The extent to which the Tasmanian wedge-tailed eagle has nest sites in or adjacent to coupes within the Wielangta forest.' 'The extent to which the swift parrot is present or likely to be present in the Wielangta forest area.' 'What part of the Wielangta forest will be, or is likely to be, subject to forestry operations in the next approximately 15 years.' 'Whether the forestry operations are likely, having regard to the endangered status of the three species and all other threats to them, to have a significant impact on the species.' 'Whether the Tasmanian Regional Forest Agreement 1997 is an RFA within the terms of the RFA Act.' 'Whether Forestry Tasmania has an exemption under s 38 of the EPBC Act and s 6(4) of the RFA Act, including whether forestry operations have been or will be carried out in accordance with the RFA by reference to cl 68.']

Ratio Decidendi

The forestry operations and proposed forestry operations of Forestry Tasmania in Wielangta constitute an action for the purposes of the EPBC Act and are likely to have a significant impact on the broad-toothed stag beetle, Tasmanian wedge-tailed eagle and swift parrot when the endangered status of each species, cumulative effects and other threats are considered. Although the Tasmanian RFA is an RFA within the RFA Act because it provides for a CAR Reserve System and ecologically sustainable forest management, the s 38 EPBC Act and s 6(4) RFA Act exemption is unavailable because the operations have not been carried out, and the Court was not confident they would be carried out, in...

Court Disposition

Agreed issues answered substantially in favour of the applicant on action, significant impact and absence of exemption; RFA held to be an RFA within the RFA Act; only order made was an adjournment for submissions on consequential orders.

Orders

• ['The proceeding be adjourned to 10am on Wednesday, 20 December 2006 for a directions hearing to allow submissions to be made on the orders which the Court should make as a consequence of the accompanying reasons for judgment.']