This portal looks at Greens Senator Bob Brown's legal challenge of timber harvesting in Tasmania's Wielangta forest.

The Wielangta forest is a precious area of ancient forest close to Hobart in Tasmania. It is home to over 30 endemic species, species that can be found no where else in the world. Since 2005 this unique and precious area has been targeted for logging.

When a forestry operation is acting 'in accordance with' an RFA there is an exemption from the requirement to obtain approval under the EPBC Act.

In the Wielangta series of cases, Senator Bob Brown challenged proposed logging operations by Forestry Tasmania in the Wielangta Forest in Tasmania.

Senator Brown's challenge was based on two major arguments:

1. First, he argued that the proposed logging operations would significantly impact on three species:
   • the Swift Parrot;
   • the Tasmanian subspecies of the Wedge tailed Eagle; and
   • the Broad-Toothed Stag Beetle.
2. Second, he argued that the Regional Forests Agreement (“RFA”) exemption under the Environment Protection and Biodiversity Conservation Act 1999 ("EPBC Act) did not apply, for one or both of the following reasons:

• That the logging operations were not conducted 'in accordance with' the Tasmanian RFA, because clause 68 of the Tasmanian RFA required the Tasmanian government to protect various identified species, including those harmed by the proposed logging operations.
• That the Tasmanian RFA was not an RFA as defined by the Regional Forest Agreements Act 2002 (Cth) (RFA Act), because it did not meet the requirements of that Act.

Initially Brown was successful. His success resulted in the halting of logging in the Wielangta Forest. Marshall J of the Federal Court found that the listed species would be significantly impacted by logging, and that the logging was not being conducted in accordance with the RFA.

His Honour ruled:

• That each of the three species identified by Senator Brown would be significantly impacted by the proposed logging operations; and
• That the RFA was an RFA within the meaning of the RFA Act, but because the logging operations were not being conducted 'in accordance with' the RFA, the RFA exemption did not apply.

• this decision can be viewed here: Brown v Forestry Tasmania (No. 4) 2006).

The court held that Forestry Tasmania was exempt from the requirement in the EPBC Act to take no action that was likely to have a significant impact on the threatened species.

Brown finally appealed to the High Court of Australia but was unsuccessful. The High Court held that, following the amendments to the RFA, the appeal had insufficient prospects of success.

• the transcript of the High Court can also be viewed: Brown v Forestry Tasmania 2008.

Forestry Tasmania then decided to pursue Senator Brown for costs, threatening bankruptcy proceedings if he was unable to pay over $200,000 within weeks. Bankruptcy would have meant Brown was disqualified from the Senate.

On 16 June 2009 Brown announced that he had raised the money required.

• You can also read - A legal summary of the Wielangta decision: Brown v Forestry Tasmania (No 4) [2004] FCA 1729 (19 December 2006) by Vanessa Bleyer provided through Lawyers for Forests.

• Forestry on trial - the website of Bob Brown provides a range of information on this case.

• A more in-depth analysis and summary of this series of cases will be available here shortly: Brown v Forestry Tasmania [2008] HCATrans 202 (23 May 2008)

If you require more in depth information on the legal issues covered in these cases you can find further information on this site;

You can find a broad range on information on this site which relates to the assessment of environmental impacts under the EPBC Act:

• Commonwealth environmental impact assessment
  • Likely to have a significant impact on a matter of National Environmental Significance
  • Referring actions to the Commonwealth Minister
  • Minister’s decision as to whether approval and assessment is required under the EPBC Act
  • Minister’s approval under the EPBC Act
  • Example EPBC Act fines, injunctions, compliance and enforcement

You can also find information on this site relating to habitat and biodiversity protection under the EPBC Act:

• environment_protection_and_biodiversity_conservation_act_1999
  • Listing species, communities and processes under the EPBC Act
  • The Permit system for exploiting biodiversity under the EPBC Act
  • Offences and penalties under the EPBCA
  • Example EPBC Act fines, injunctions, compliance and enforcement

Environment Defenders Office (Tasmania) maintains The Environmental Law Handbook (www.edohandbook.org), a practical guide to Tasmania's environmental protection and planning laws. It contains comprehensive information about Tasmania's forest practices system.

RFAs are long term plans for the management of Australia's forests. They are 20 year agreements between the Commonwealth and State Governments. RFAs establish areas for forest-based and industries, timber harvesting and conservation.

• More information on RFAs can be found in the Forest protection article.

Part 3 of the EPBC Act lays out the actions which may impact matters of national environmental significance will require approval. Section 38 of the EPBC Act exempts RFA forestry operations which comply with the RFA from the requirement in section 18(3) of the Act that it take no action likely to have significant impact on threatened species.

• More information on RFAs can be found on the Australian Government Department of Agriculture Forestry and Fisheries RFA website.

'Costs' in legal language means the costs incurred by a person in taking part in a case, such as, e.g., lawyers' fees and court fees.

Courts have the power to decide who, if anyone, will pay costs in a case and in what amount. Normally a court will order that the unsuccessful party must pay the costs of the successful party. One reason for not ordering the unsuccessful party to pay the other parties costs is where the case was brought in the public interest.

In Forestry Tasmania v Brown costs were awarded against Brown.

More information on costs is available from this this article on 'costs'.

• ABC News - Public donations pay Brown's legal bill

• The Age - Offers of help flood in for Greens senator

• Sydney Morning Herald - Donors rally to keep Brown in the Black

• The Mercury - Brown pays his debt - 11 June 2009

• Brendan Sydes (EDO) in the Age - Money should be no barrier to pursuing a worthy cause
• ABC's The Law Report - 20 February 2007 - Wielangta Forest Federal Court decision
• The Mercury - Cash pool call for public suits - Sally Glaetzer 11 June 2009
• ABC Online - Tasmanian forest judgment a milestone for the environment - Bob Brown
• Do Commonwealth environmental protection laws need to be changed? Australian Network of Environment Defenders Offices submission to EPBC Act 10 year review

• Forestry on trial - website of Bob Brown