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The logging of native forest is set to resume next to world-famous mountain-biking trails in north-east Tasmania after the High Court dismissed a challenge from environmentalists.
An injunction, or halt, against logging in two coupes near Derby – alongside mountain bike trails that have held Enduro World Series events – was removed last week, and the High Court has this morning refused to grant leave to appeal.
It is the final hurdle for the resumption of logging, which has faced legal challenges since April 2022.
Environmental group Blue Derby Wild challenged the approval of the logging in the native forest coupes covering 80 hectares. One has already been fully harvested, the other has been 25 per cent harvested.
The legal challenge centred on how, and by whom, the logging was approved.
It was to be carried out by Tasmania's public forestry company, which trades as Sustainable Timber Tasmania (STT).
To log native forest, officers for the regulator – Forest Practices Authority (FPA) – must certify a forest practices plan, taking into account environmental and logistical matters for the site.
The FPA officers who certified the plans are also STT employees – a feature of Tasmania's "self-regulating" native forest logging sector.
Blue Derby Wild argued this system created "apprehended bias", because the regulator would have an unconscious tendency to facilitate, rather than refuse or limit, the logging.
It argued that rules against bias enhances the appearance of "impartial decision-making", and that the focus on self-regulating in Tasmania's laws governing native forest logging did not override this.
But the FPA stated that the laws expressly allow for a self-regulating system, and complying with the law cannot amount to bias.
In the original decision in the Supreme Court, Justice Robert Pearce agreed that self-regulation was a feature of Tasmania's native forestry sector.
"Systems which emphasise self-regulation inherently involve recognition of competing and not always consistent considerations and the potential for balancing conflicts of interest," he said.
The full bench of the Supreme Court ruled that Blue Derby Wild did not have standing to bring the appeal, because it could not prove that it held an interest in the specific logging operations, other than opposing logging and litigating.
Blue Derby Wild did not provide membership details or office-bearer elections, and gave "minimal" evidence of its community engagement or financial details.
The Supreme Court full bench was "far from satisfied" that Blue Derby Wild's activities were separate from those of its individual members or supporters in their personal capacities.
That does not mean community groups could not bring actions against logging activities, however.
The decision gave the example of Kinglake Friends of the Forest in Victoria, which demonstrated wildlife spotting, forest surveys, community engagement and notifying the regulator of alleged over-harvesting in the central highlands.
Today, High Court Justice Stephen Gageler agreed that Blue Derby Wild did not have standing to appeal.
"The obscurity of the evidence concerning the nature and extent of the applicant’s activities … would make an appeal in this matter an unsuitable vehicle in which to engage in a reconsideration of the principles of standing at general law," he said.
Because Blue Derby Wild did not have standing to appeal, the matter of apprehended bias was not considered by the High Court.
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