Bob Brown brought an application claiming that Foresty Tasmania had contravened the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The case concerned forestry operations in the Wielangta State Forest and the extent to which these operations might have an adverse affect on several threatened species.

At first instance, it was held that Forestry Tasmania had contravened the Act. Justice Marshall found the threatened species in the area were likely to suffer harm as a result of the forestry activities. Forestry Tasmania sought to eschew liability by relying the exemption found in s 38 of the Act. This exemption is available where the forestry is conducted in line with the Tasmanian Regional Forestry Agreement. Significantly, it was held that Forestry Tasmania had failed in this regard as they had not provided sufficient accommodation for or protection of the threatened species in the area. Forestry Tasmania had paid “mere lip service” to the Tasmanian Regional Forestry Agreement and this was not adequate. Further, it was stated that by the State agreeing to protect these species, but then not complying with this obligation it would be “to turn it into an empty promise”.

This decision was appealed in Forestry Tasmania v Brown [2007] FCAFC 186.

(Contribution:  Case provided by Friedrich Kuepper from the Queensland University of Technology)