the wilderness society is not an endangered species

Australia’s federal environmental law requires active measures to prevent the decline and extinction of listed threatened species. Central to that framework is the obligation to prepare and implement recovery plans under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Recovery plans are intended to identify threats to species survival and set out legally operative actions for their protection and recovery.

Background

Between 2013 and the early 2020s, concerns arose that recovery plans for listed threatened species were not being prepared or updated within the statutory timeframes required by the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Multiple species remained without current plans despite ministerial determinations that such plans were required.

These systemic delays and gaps in recovery planning formed the factual and legal basis for proceedings commenced in March 2025 by The Wilderness Society against the Commonwealth and the Environment Minister, challenging the failure to comply with mandatory recovery plan obligations.

The action alleged that successive Environment Ministers had failed to comply with mandatory statutory duties to prepare and maintain recovery plans for threatened species where such plans were required.

The case concerned multiple listed species, including the greater glider, ghost bat, Australian lungfish, sandhill dunnart, and others. It also raised questions about the legal status of existing recovery plans that had expired or been allowed to lapse.

Statutory Framework

Under Part 13 of the EPBC Act, when a species is listed as threatened, the Environment Minister must decide whether a recovery plan is required. Once determined to be required, a recovery plan must ordinarily be made within three years of that decision.

Recovery plans set out the actions necessary to support survival and recovery of listed species and constrain ministerial discretion in environmental decision making.

An Auditor‑General report in 2022 found that since 2013 only a small proportion of required recovery plans had been completed within statutory timeframes, identifying systemic delays and gaps in recovery planning.

Issues Before the Court

While settled before final judgment, the case raised key legal questions, including:

• Whether the statutory obligation to prepare a recovery plan, once required by the Minister, constitutes a mandatory duty rather than a discretionary power.

• Whether prolonged failure to prepare a required recovery plan, or failure to replace an expired plan, constitutes a breach of the EPBC Act.

• Whether such a failure is amenable to enforcement through civil proceedings in the Federal Court, including declaratory relief and mandatory orders.

• Whether recovery plans remain in force until the species is no longer listed, or whether they can lawfully lapse through administrative inaction.

Factual Context

Evidence presented to the Court included the 2022 Australian National Audit Office report demonstrating that recovery plans were generally not completed in accordance with statutory timeframes, leaving many threatened species without current plans despite decisions that they were required.

At the time the proceedings were commenced, several threatened species either never had a recovery plan prepared despite a determination that one was required, or were subject to plans that had expired without replacement.

Outcome

The matter did not proceed to a final contested judgment; in September 2025 it was resolved by settlement with agreed orders made by the Court. The Environment Minister conceded that recovery plans for multiple species, including the greater glider, ghost bat, Australian lungfish and sandhill dunnart, had not been prepared within the timeframe required by the EPBC Act.

The Federal Court made orders requiring that legally binding recovery plans for those species be prepared and delivered by July 2026. Recovery plans for a further set of species, including the Tasmanian wedge‑tailed eagle, red goshawk, Carnaby’s black cockatoo and long‑footed potoroo, were confirmed to remain in force and must continue to be implemented.

The settlement also clarified that recovery plans do not automatically expire; once made, they remain in force until the relevant species is no longer listed as threatened under the EPBC Act.

Legal considerations

Although resolved by settlement without contested judgment, the case established important legal principles through agreed Court orders and concessions:

Mandatory nature of recovery plans – Recovery plans under the EPBC Act are not discretionary policy instruments; where the Minister has determined a plan is required, failure to prepare the plan within statutory timeframes constitutes non‑compliance with the Act.

Enforceability of statutory duties – Ministerial inaction in failing to prepare or update required recovery plans is amenable to civil enforcement in the Federal Court, including orders compelling preparation of those plans.

Continuing operation of recovery plans – Recovery plans remain legally operative until the species is delisted, and do not lawfully lapse solely through administrative inaction.

These principles affirm that statutory environmental protections in the EPBC Act depend not only on legislative design but on active and timely execution by decision makers.

Professional Significance

Regulators and advocates must now treat recovery planning obligations as substantive, enforceable statutory duties rather than aspirational or purely policy commitments. The outcome places renewed emphasis on confirming the existence and status of recovery plans as part of environmental risk assessment and compliance strategy.

The case also underscores that litigation targeting regulatory omission (the failure to act) can be an effective mechanism to enforce statutory environmental protections, particularly where systemic delays undermine legislative objectives.

For the broader regulatory landscape, the case highlights ongoing governance challenges in federal biodiversity protection and may shape future reform discussions about the operationalization of the EPBC Act’s recovery planning regime.