Shifts in Victorian climate law and policy and the planning system

Since December 2008 Victoria’s climate policy framework has changed significantly. The changes have been driven by, and most readily observed within, the Victorian planning system. It has been these changes in Victoria and earlier elsewhere (particularly in NSW through decisions by the Land and Environment Court) that have given rise to a ‘new climate law’ in Australia.(1) In Victoria this new climate law especially prioritises consideration of all risks associated with coastal changes caused by global climate change.

Within Victoria a shift in the law can be traced to the decision of Justice Morris in the so-called Hazelwood case of 2004,(2) where Justice Morris held that greenhouse gas emission concerns raised by objectors could not be excluded from consideration by a panel inquiry. This decision was based firmly on a legalistic interpretation of the law, and not grounded in climate policy. Similarly, the landmark Gippsland Coastal Board decision in 2008(3) was based on a policy framework that did not appropriately deal with climate change risk. This is acknowledged by the Tribunal at para 35 where the members state that “the specific consideration of sea level rises, coastal inundation and the effects of climate change are not set out within the Victorian Planning Provisions”. At para 25 of the decision the Tribunal found no particular guidance on climate risks in the 2002 iteration of the Victorian Coastal Strategy.

These two decisions are especially celebrated because they were realised in the absence of planning policy dealing with climate change and because they have been instrumental in influencing the development of climate policy within Victoria generally and particularly in the planning system.

The changes to policy came with the December 2008 amendments to clause 15.08 of the Victorian Planning Provisions through planning scheme amendment VC52. These amendments give partial effect to the December 2008 Victorian Coastal Strategy, and are supported by other policy documents and Ministerial directions. With these new policy pronouncements Victorian decision-makers for the first time became required to think differently about coastal land decisions. Whereas in the past decision-makers had no obligation to factor in climate risks when faced with land use or development proposals by the coast, decision-makers must now countenance climate change risks and either attempt to protect development from those risks or “avoid development in identified coastal hazard areas”.(4) They cannot close their mind to the inevitability of erosion, inundation, landslip and geotechnical risk, and they must take a precautionary approach when evaluating risks and determining decisions.

These changes amount to a dramatic shift in approach, and their effect is apparent in the subsequent decisions of VCAT. Since 2008 there has been a series of VCAT decisions universally finding that proposed developments should not proceed because of climate risk, at least without coastal hazard vulnerability assessments first being undertaken. No case has found that development should proceed untested and uncertain as to risk. In one of the most recent cases Member Potts claimed that the broad sweep of policy that was instituted in late 2008(5) now means that decision-makers must be more cautious and mindful of the multiple impacts of climate change on coastal areas.

1 Tim Bonyhady, ‘The new Australian climate law’ in Tim Bonyhady and Peter Christoff (eds) Climate Law in Australia (2007) ch 2.
2 Australian Conservation Foundation v Latrobe City Council (2004) 140 LGERA 100.
3 Gippsland Coastal Board v South Gippsland Shire Council (No 2) [2008] VCAT 1545 (Unreported, Gibson DP and Potts M, 27 July 2008).
4 Clause 15.08-2 of the Victorian Planning Provisions.
5 See Taip v East Gippsland Shire Council [2010] VCAT 1222 (Unreported, Potts M, 28 July 2010) para 69.

Scarcity or plenty in Tasmania’s forests?

I gave this presentation at the Fifteenth Public Law Weekend at the ANU on 3 September. The conference theme was Scarcity, Sustainability and Public Law:

Scarcity or plenty in Tasmania’s forests? A clash of legal and scientific understandings in the Wielangta forest dispute

Tasmanian forestry has been the subject of politicisation and conflict for decades, especially since the mid-1980s after the High Court put a brake on the hydroelectric industrialisation of the state. From then there is a discernible change of conservation attention from rivers to forests. Nationally Tasmanian forestry has been contentious throughout the 1990s and the 2000s.

While most conflict has been centred around the so-called ancient forests in the Florentine, Tarkine, Styx, and Weld, it was only recently that Wielangta was introduced into the fray.

Wielangta is located on the east coast of Tasmania, approximately 50 kilometres north east of Hobart, close to the Triabunna woodchip mill. The forest is accessed from Sorell in the south and Orford in the north. The forest is a mix of dry and wet schlorophyll eucalypt.

Unlike those ancient forests that have acted as rallying points for conservationists, Wielangta has a long history of forestry, dating from the mid to late 1800s and only being gradually displaced by the creation of reserves in the late 1980s. Today, Wielangta comprises distinct pockets of never logged forest, an abundance of old-regrowth forest, ongoing logging coupes and vast areas of cleared land. As a conservation concern Wielangta only rose to attention because of the court cases championed by Senator Brown that we will discuss today.

Senator Brown’s articulated concern was for these three species:

  • the migratory swift parrot, which uses the Wielangta area’s hollowed trees as a preferred nesting and breeding habitat
  • the endemic Tasmanian wedge tailed eagle, which is very low in number and particularly threatened by human activities, like shooting and trapping, and by tall-tree habitat clearance or isolation; and
  • the incredibly rare broad toothed stag beetle, endemic to the local area and a nearby island reserve.

Each species is listed as threatened under the Commonwealth’s Environment Protection and Biodiversity Conservation Act 1999 (commonly known as the EPBC Act). By virtue of their listing under the EPBC Act these species are protected.

More than simply an altruistic attempt to preserve these species, the case was an opportunity for Senator Brown to argue that forestry activities in Tasmania are both environmentally harmful and illegal, and to undermine the protection regime that is so closely linked with resource use. As one of Senator Brown’s advisors noted “Bob wanted to challenge the EPBC Act [and wanted to show that] the 1990s inter-state agreement on forestry had failed to deliver the good outcomes that had been promised”; and as another noted “he wanted to bring about a fight”. It was a strategic, rather than emotive, case and Wielangta was convenient because of the presence of these three threatened species.

The legal issue centred on section 38 of the EPBC Act. That section exempts forestry activities from the Commonwealth’s environmental law that otherwise prohibits actions that are likely to have a significant impact on species protected under the Act. It is a law that is directed at protecting the environment from harm and conserving biological diversity; an object that Australia has international obligations to satisfy.

The exemption exists because forestry activities, management and conservation in a number of states are subject to agreement between the Commonwealth and the States. These Regional Forest Agreements (or RFAs) specify Commonwealth conditions to it forgoing its regulatory involvement in state-sanctioned forestry. The Agreements seek to balance the objects of surety of forest supply, regulatory simplicity, sustainable use of the forest resource, and conservation.

The Regional Forest Agreement and the EPBC Act have vastly different coverage. The Tasmanian Regional Forest Agreement applies to the entire state. It treats the state as one large forest region within which conservation occurs simultaneously with forestry.

By contrast, the EPBC Act only applies to Commonwealth protected areas, like the vast Tasmanian Wilderness World Heritage Area and the Rasmar Convention nominated wetlands of international importance, which are dotted mostly along the coast. The Act, as noted, also applies to species wherever they are located. The conservation focus is therefore narrower in scale.

In this series of cases the most relevant clause of the Tasmanian Regional Forest Agreement was clause 68. This is the clause that specifies how Tasmania will protect designated species in the state, species that include the swift parrot, the Tasmanian wedge tailed eagle and the broad-toothed stag beetle.

In its original form, and the form it was in for the trial, the clause stated in effect that: Tasmania agrees to protect the three species of relevance through a system of reserves or by applying management prescriptions.

The case was, from a legal perspective, rather straightforward. It ought to have been a question of statutory interpretation … of what is meant by s 38 of the EPBC Act? Does the exemption only apply if the RFA protects species? Or is it enough that a reserve system with the intention of conservation has been established? Either way, what is a forestry operation taken in accordance with an RFA?

This, however, was not how the case was run. Aside from the Commonwealth in its role as intervener, the parties saw this case as involving much more than the interpretation of legislation. Indeed, in the trial, the interpretation question was suffocated by the large amount of scientific evidence that was led, particularly by Forestry Tasmania.

One of Senator Brown’s lawyers, noted that Forestry Tasmania could have run a case on s 38, and its lawyers outlined that case in its opening submissions, but instead it quickly got engaged in a “battle of the hearts and minds that logging is a good thing”; that they couldn’t resist responding to the allegation of non-protection of the environment.

This was confirmed by a member of Forestry Tasmania, who told me that: “We needed to say the accusation that ‘you guys endanger species’ is wrong”.

Further, I was told, Forestry Tasmania was not going to concede that it has a significant impact on species under the EPBC Act and then rely on the s 38 exemption in that Act. Moreover, it was going to argue that its management approach did in fact protect species as contemplated by the RFA.

And so the case took on extra meaning to the two sides. And their arguments about the law were based not simply on what the laws meant in a legal sense, particularly drawn from legal tradition of precedent and tools of interpretation aided by scientific understanding. Rather, the scientists framed the laws in light of their views about whether Tasmania’s forests were being managed by foresters in a way to preserve species or whether forestry was further endangering protected species. For instance, two of Senator Brown’s experts articulated concerns about the replaceability of old-growth forests with plantations and the loss of species refuges, while one of Forestry Tasmania’s witnesses noted that the organisation’s research funding improved conservation outcomes.

The starting point for each side was scarcity or plenty. Forestry Tasmania’s scientists went so far as to devise a controversial (and ultimately detrimental) process of scientific peer review of all the science it prepared for the case. It did so in order to ensure coverage: to offer more science than the other side; and depth: to outdo the other side on complexity and detail. To the judge the process appeared a bit like collusion. To Senator Brown’s expert witnesses they saw Forestry Tasmania as getting ‘waylaid on the trivial’. The Forestry Tasmania scientists were very much in control of their organisation’s case.

Both sides presented their own version of what it meant to protect species. Senator Brown’s scientists did so simply and forcefully. Witness evidence was directed and formulaic and less concerned by scientific uncertainty. Witnesses were very much guided by the EPBC Act notion of significant impact, and saw the role of legislation to maintain species; to not allow any activities that would further threaten those species already under threat.

It was an approach to science dismissed by Forestry Tasmania as simplistic, narrow and emotive.

Forestry Tasmania’s view was much more pragmatic and guided by the notion that conservation does not occur in pockets, rather ought be judged across the state. In this instance the State is subject to one RFA that balances conservation and resource use. Forestry Tasmania found it more difficult to position a scientific view within the legal regime because the RFA lacks the legal status of the EPBC Act. In its view, not all places are of equal value – certainly not a long-term logged area; and not all impacts on species threaten the integrity of the ecosystem or population persistence – and these were the test for protection and impact. Forestry Tasmania’s scientists were much more cautious and their witness statements complex and cross-dependent. They read and were presented like scientific papers. The overriding message, while not clear, was that forestry management could and did protect species within a dynamic ecosystem that allowed for the exploitation of plentiful resources.

Justice Marshall made his decision on the basis that the parties wanted. He was asked to determine whose science was right and he chose Senator Brown’s. Threatened species, he concluded, could not be further threatened under the law, which is what forestry activities did.

His decision, very light on legal reasoning, was criticised and overturned by the Full Federal Court based on its interpretation of the statute. The EPBC Act exemption applied, the court said particularly relying on the extrinsic materials that accompanied the inclusion of s 38 in the EPBC Act, if Tasmania had created a series of reserves under the RFA with the intention of preserving species. Unfortunately for Forestry Tasmania, still smarting from the trial decision, the Court declined to revisit the question of what it meant to protect species, and whether Forestry Tasmania was a protector of or threat to endangered species.

In 2007 a varied clause 68 was introduced into the RFA making abundantly clear that the conclusion of the Full Federal Court reflected the parliament’s intention.

It was a move by the executive that frustrated a challenge to the High Court, which gave the impression that it is awaiting a case to comment on the EPBC Act for the first time, and encouraged proposals for legislative reform.

In the end, both sides are claiming victory in the science debate that this case became. Arguably, Forestry Tasmania’s view of the science of forestry and conservation has prevailed on the executive. However, this overlooks the very political nature of the changes made to the RFA, a political and economic interest in perceiving Tasmania’s forests as a plentiful resource, and changes the context that existed when the RFA exemption was included in the EPBC Act. Forestry Tasmania also maintains, in a form of legal revisionism, that Justice Marshall’s findings of fact have been overturned by subsequent events.

Meanwhile, Senator Brown got his finding in the court of the country, not simply in the court of public opinion, that Tasmanian forestry does threaten the environment; that the forests are not plentiful, rather a scarce habitat for endangered species. That the law ultimately proved unhelpful to his cause will likely embolden him and his supporters for reform. You should stay tuned.