Biodiversity in court: will the Regional Forest Agreements (RFAs) make the EPBC Act irrelevant?

Abstract

Two key pieces of Australian legislation regarding the protection of biodiversity and forest management are the federal Environment Protection and Biodiversity Conservation (EPBC) Act 1999 and the Regional Forest Agreements (RFA) Act 2002. Both have significant deficiencies. A Federal Court ruling associated with a challenge to the Victorian Government-owned logging company, VicForests, by a community environmental group (Friends of Leadbeater’s Possum Inc.) found that RFAs are exempt from the EPBC Act. There was an argument of legal interpretation concerning the exemption in the EPBC and RFA Acts relating to RFA forestry operations that are conducted ‘in accordance with’ an RFA. The Court held that ‘in accordance with’ only required that forestry operations be ‘conducted under’ an RFA rather than ‘in compliance’ with it. Therefore, the mere existence of the RFA is enough to exclude the biodiversity protections of the EPBC Act, even where there are extensive breaches of codes of practice for logging operations and logging is demonstrably unsustainable in terms of its environmental impacts. This amounts to the loss of the ‘safety net’ provided by EPBC Act to protect threatened forest-dependent species. The decision in the Federal Court highlights how deficient Australia’s environmental laws are in conserving the nation’s biodiversity, especially for forest-dependent threatened species. The ruling serves to further weaken already very weak legislation. Major reforms to the EPBC Act are urgently required.