Interesting Wielangta Forest decision in Federal Court

It's now quite well known that Bob Brown had a victory in his court battle with Forestry Tasmania, and effectively with the State of Tasmania and the Commonwealth. No doubt there are appeals to come, and who knows how it will end up.

More interesting for me than the actual decision, which could go either way after appeal, was the attitude of the respondents and interveners. Overall I get a clear picture of a government and government agency who are quite open about their disregard for the law and its requirements, and in particular the impact of environmental law, and the expectations of Australians, on the right of one large company to make profits.

The case was about the Wielangta Forest on the state's east coast, and whether Forestry Tasmania were adhering to the RFA. Bob Brown also challenged the actual validity of the RFA, but he lost this point. What he did establish was that Forestry Tasmania and the State government haven't been fulfilling their responsibilities under the RFA - they've been acting illegally. You really should read through the summary of the judgment. But just to whet your appetite, and make clear the tone of the response by Forestry Tasmania and the State government, here are some highlights:

Para 228 probably most clearly identifies the government's appalling attitude to environmental requirements - They have openly contended that their responsibility is not to actually ensure the protection of species, but merely to try to do so.

• "The State of Tasmania submits...The State’s obligation is satisfied, not through the actual protection of species...but through the employment of the CAR reserve system.."

Well I'll be hornswoggled! The State of Tasmania is playing semantics to try to wriggle out of the expectations we have of it. We expect the government to do something to preserve species that are threatened, and while many people might be unsure of the value of preserving a stag beetle, most would agree that the Wedge-Tailed Eagle is a pretty important animal to retain. So the State doesn't think it's actually obliged by the law to protect species, just to put in place a reserve system that ought to suffice.

As we see however, in great detail, they haven't even done this. Reading further, there are a series of marvellous observations by the judge, Justice Marshall. To start with he savages many of the expert witnesses appearing for Forestry Tasmania.

• On Mr Meggs' cross examination (para 117): "Mr Meggs was frequently evasive and appeared to me to be much more of an advocate for the cause of Forestry Tasmania than an independent expert."
• And (para 120): "Mr Meggs gave evidence that he changed no matter of substance in his affidavit in consequence of this ‘peer review process’. That evidence is false."
• On the independence and value of Dr Roberts' evidence (para 132): "I am not satisfied Dr Roberts is an independent expert witness. She was at the heart of guiding Forestry Tasmania’s overall strategy in this case. Her evidence does not assist me."
• And (para 161): "Unfortunately, Dr Shields appeared to me to be more concerned to be an advocate for Forestry Tasmania than being an independent expert assisting the Court."

Eventually we come to the judge's findings, especially about whether the three species in question have been adequately protected. As we see, the state doesn't think it has a responsibility to actually protect species, just to put in place a 'system'. The system doesn't work though, and quite frankly, should we be surprised, especially given the basic attitude, and the underlying incompetence of our state government?

Justice Marshall has this to say:

• "The State has failed to protect the beetle through the CAR Reserve System." (para 262); "...parrot..." (para 267); "...eagle..." (para 270)
• "I do not consider that the State has protected the eagle by applying relevant management prescriptions. Management prescriptions have helped to slow the eagle’s extinction but have not protected it in the sense of either maintaining existing numbers or restoring the species to pre-threatened levels." (para 281); beetle and parrot in paras 273 & 275.
• And I just love this (para271): In answer to the question, "Will the State protect the three species through the CAR Reserve System in the future?", the judge writes, "The best indicator of future behaviour is past behaviour. There is no evidence on which to conclude that the State can or will protect the species through the CAR Reserve System, in isolation, in the future."

Overall, the Judge found that the State wasn't fulfilling its obligations to protect threatened species, and as a result had failed to carry out forestry operations in accordance with the RFA.

What I find most appalling is the attitude the state and Forestry Tasmania were willing to display in court, in writing, in evidence, and firmly on the record. Not that this is really a surprise to anyone who has followed the environmental debates (or any other political events) in Tasmania over the years. Any appeal could be interesting, but the attitude of the government in this trial will stand in the record, exposing the protection of threatened species as a sham, designed to fulfil theoretical, legal obligations rather than achieve any concrete outcome.