forestry

It has been more than two years since Environment East Gippsland began legal action to sue the government’s logging monopoly, VicForests. In August 2009 we applied for an injunction for an immediate stop to logging at Brown Mountain. A year later, on 11 August 2010, the ruling was handed down. We had won our case! This is a report from Environment East Gippsland.

Not only did Environment East Gippsland win the case for Brown Mountain, but we successfully set three major precedents for other community groups:

1. it was the first time any environment group had been granted standing[1] to take the government (or one of its agencies) to court,

2. we were granted an injunction against logging for the first time in Victoria and possibly Australia, and

3. We did not have to provide ‘security’ a type of ‘bond’ incase we lost (VicForests put in what turned out to be a fairly bodgie claim that we should put up $60,000).

The case was set down to be heard in the Sale Court over two weeks, but it stretched out to four weeks through March 2010. Although we were successful, and although the ruling should alter the way VicForests and the government looks after public forests, we are still seeing them disregard the same laws and regulations over which they were sued. Their reasoning? The ruling technically only applied to Brown Mountain. So if we want to show that the law applies across the state, it might take another court case! They are gambling that we won’t resort to this. But to ensure that any further plans to challenge them are stymied, VicForests is refusing to pay our court costs as ordered. EEG and our lawyers have sent reasonable requests for the money owed. After months of letters, VicForests offered us HALF of our costs! This insult means that the case will now be handed over to official auditors to draw up the bill of costs and if not paid, it heads back to the court. More costs and more time wasting.

Left in limbo

Brown Mountain’s 600 year old trees are still firmly in the ground but remain like a ‘hole in a donut’, surrounded by reserved forest and National Park. Despite its values having been well and truly proven in court, it is still mapped as a logging zone and under the control of VicForests. The surveys ordered by the court have not been carried out. We suspect they see this area as symbolic of the battle between ‘government and greenies’. We saw the length and cost the DSE went to in order to gut the heart from Goolengook’s forests. Let’s hope they are simply cooling their heels rather than plotting its annihilation. Being legally trounced by EEG must have hurt. We know that the 1995 Forest Management Plan is considered redundant and in need of rewriting, and we know there are plans of weakening the Flora and Fauna Guarantee Act; both documents helped our court win.

Pre (or Pro)-logging surveys

One outcome of the court case is that VicForests have set up very poorly funded Mickey Mouse pre-logging surveys in some forests. Consultants are hired that employ others to carry out wildlife surveys for some species. The consultants are given minimal time and resources, making the results totally invalid. We are currently applying under Freedom of Information to obtain details of these survey methods and results.

VicForests hired Chela Powell, a young forester with a PhD on the study of beetles in blue gum plantations. They call her their ‘conservation biologist’. She devised some survey methods that seem to us to explain how to look for certain animals in the wrong forests and then frighten them away with the wrong methods. VicForests also decides which forests might be deemed worthy of a survey. It is they who decide if a stand of forest is old growth, and it is they who give themselves the option of including forests that might be considered to be High Conservation Value (HCV). We have reason to suspect that they are doing pre-logging surveys in about half of the old growth they should, and almost no HCV, as this one is optional. There are some low quality forests surveyed that will most likely result in no finds. We also know they have logged old growth forest since the court ruling and are also clearfelling Potoroo habitat where their own contracted survey teams discovered them!

What does this all mean on the ground?

The legal finding for Brown Mountain should mean that logging agencies and land managers have to be cautious in regards to the possible existence of threatened species where they plan to destroy or alter their habitat. This can be extrapolated to every other forest, meaning cautionary management must be shown (as in the Precautionary Principle, much debated to in court) when planning to destroy or modify likely habitats of threatened species. This could include areas in which the DSE plans to carry out roading or prescribed burns, as well as clearfell logging. DSE is stating this isn’t the case, but provides no explanation. Surveys should happen across all forests – regardless of their age or conservation value. But it’s not.

VicForests have a few options:

· Honour this ruling and pay for decent, credible surveys in every planned logging coupe. Don’t log where rare species exist.

· Honour this ruling but do the cheapest possible ineffective surveys that cover minimal forest areas.

· Accept that the logging industry and its shrinking markets are in terminal decline and wind down operations to suit.

· Influence the revision of the Forest Management Plan to remove prescriptions to protect rare wildlife.

· Push to have the Flora and Fauna Guarantee Act watered down to make current mandatory actions ambiguous or ‘flexible’.

Greg Barber, MP for the Greens, asked a question of the then ALP Environment Minister the day after the September judgement. Minister Jennings said he would honour the decision. The Shadow Minister for the environment, Liberal member Mary Wooldridge, also promised to honour the court ruling. Now that a Liberal-National party is in Government, we see a clear attempt to take no action while planning changes of environmental legislation.

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The court ruling

It was August11 and everyone stood as Justice Robert Osborne entered and took his seat. Throughout the March case, he always seemed to have a quizzical, bemused look on his face as he bowed to us on entering and leaving. Again he bowed and so did we. We had been anxiously waiting months for this moment. He began to read his findings. The court room booked for the judgement had to be changed to accommodate the one or two hundred supporters. When Liz and I walked into the upstairs gallery there was a sea of friendly faces and standing room only. In one corner was a very small huddle of grey suits representing VicForests.

Our hearts sank to the floor as he acknowledged some points which VicForests had made, and our points on the crayfish and kite that weren’t strong. But then he uttered the word “Nevertheless ...” and our hearts jumped back into place as we anticipated his next words. Basically he told VicForests that they can’t log the old growth forests of Brown Mountain until VicForests had:

1) put in place protection zones for the Potoroo in three of the four planned logging coupes,

2) had qualified people survey in the correct season for Giant Burrowing and Large Brown Tree Frogs as well as the Spot-tailed Quoll, in all four coupes,

3) created a 100 ha zone to protect the gliders of coupe 15 and,

4) reviewed the protection measures offered to Powerful and Sooty Owls in East Gippsland.

But he didn’t go far enough to say they must do this to the satisfaction of the court, only to the satisfaction of the Director of Biodiversity Policy and Programs within DSE. That was the weak point.

He also ordered that we:

· give DSE copies of all photographic evidence we have of the presence of the Long-footed Potoroo in the area (our lawyers told us not to provide this once the case had started); and

· show DSE the precise location of where one of the Potoroo images was captured as used in our evidence by one of the surveyors.

Our lawyers argued that a ‘compliance in an unsupervised fashion’ and a ‘self-executing injunction is not appropriate’ given VicForests’ past record of strong resistance to compliance and an ‘ineffective regulator’ (DSE). They said that the history of this matter showed that there was no transparency or honest dialogue from DSE/VicForests towards EEG.

However the judge claimed it shouldn’t need to go back to court for tick-off when there’s already a DSE statutory framework in place to resolve habitat protection (which we just proved wasn’t working). As DSE wasn’t part of the dispute, he considered them as apart from it. But we showed they were as good as compliant with VicForests’ refusal to properly protect the wildlife. Still, if given the legally correct reserves, these logging coupes should all receive protection, even if vulnerable to being moved and swapped as Special Protection Zones.

To ensure proper transparency, Justice Osborn ruled that VicForests should give EEG:

· relatively detailed maps of the protection zones for the Potoroos and owls within 14 days of their creation.

· details of any survey results of the Giant Burrowing Frog, Large Brown Tree Frog and Spot-tailed Quoll.

· 28 days notice in writing of plans to log any of the four coupes.

We have received nothing to date.

More on Brown Mountain

NOTES

[1] Editor: "Standing" is the legal right to initiate a law suit. Yes, if you thought that anyone could initiate (via a lawyer) or as themselves, a complaint of a failure to abide by regulations or laws in an Act, think again. Usually this right is very much reserved, with the effect of protecting vested interests and specialists. Not only did EEG set a precedent in getting standing, but I think they set a precedent in using the Flora and Fauna Guarantee Act 1986 in court! I believe that no action had previously ever been made using its powers!

Proposed revisions to the Code of Practice for Forestry in Victoria Australia could adversely impact Victoria's threatened species. As many candobetter.net readers know, the Victorian Auditor General found last year that Victoria has utterly failed in its objectives under the Flora and Fauna Guarantee Act (1986) to measure and protect unique species from threat and endangerment. These changes also follow Environment East Gippsland's historic win in court against VicForests last year, where EEG sought protection under this Act for endangered species. With these changes, loggers could seek exemptions from state environment laws protecting endangered species. Victorians (and people all over the world) need to be aware of these proposed changes and to make comments. You can make a submission via this article

Main Points

According to comments reported in the Age, 3 November 2011:

The Secretary of the Department of Sustainability and Environment would be able to exempt a logging project from the requirements of the Flora and Fauna Guarantee Act, which protects the state's endangered and threatened species.

"The proposed changes follow a landmark ruling in the Supreme Court last year banning VicForests from logging old-growth forest at Brown Mountain in East Gippsland, after an endangered long-footed potoroo was filmed in an area to be felled."

"The secretary will consider, among other things, the numbers required to maintain a viable population of a listed species in the area to be logged, and the amount of habitat near the proposed coupe already protected in national parks."

''The objective of the variations is to achieve a better balance between the protection of threatened species and sustainable timber production from public native forests.'' Source: Tom Arup, "New state law in the pipeline to aid loggers."

How to make a submission and how to get more information on-line

The Code of Practice for Timber Production 2007 (the Code) is a key regulatory instrument that applies to commercial timber production in both public and private native forests and plantations in Victoria. It is a statutory document prepared under Part 5 of the Conservation, Forests and Lands Act 1987. Compliance is required under the Sustainable Forest (Timber) Act 2004 and via its incorporation into the Victoria Planning Provisions.

The purpose of the Code is to ensure that commercial timber growing and timber harvesting operations are carried out on both public land and private land in such a way that:

Code of Practice for Timber Production 2007

[PDF File - 2.1 MB]

Proposed variations to the Code of Practice for timber production (October 2011)

Members of the public are invited to provide comment on a number of proposed variations to the Code of Practice for timber production to improve certainty of timber supply to the native forest timber industry, while balancing the needs of the environment.

Document explaining the proposed variations

The following document outlines the proposed variations to the Code of Practice for timber production.

Proposed variation to the Code of Practice for Timber Production 2007

[PDF File - 162.3 KB]
Proposed variation to the Code of Practice for Timber Production 2007

[MS Word Document - 60.0 KB]

If you have problems downloading this document, please contact the Customer Service Centre on 136 186 for assistance.

Summary

The proposed variations change the wording in relation to the application of Flora and Fauna Guarantee Action Statements. This aims to introduce more flexibility and allow further consideration of the importance of Victoria’s national parks and conservation reserves in the protection of threatened species.

The variations will improve the focus of conservation for threatened flora and fauna species to be applied at landscape level, and allow for a reduced focus at the individual animal or plant level.

Factors needing to be considered by the Secretary to the Department of Sustainability and Environment in determining the application of a Flora and Fauna Guarantee Action Statement are also being considered for inclusion in the Code.

Submission of comments

Anyone interested in making a submission on the proposed variations should provide their comments to DSE in writing by:

Mail:

Review of the Code of Practice for Timber Production
Forests and Parks Division
Department of Sustainability and Environment
PO Box 500
East Melbourne, VIC, 3002

Email:
[email protected]

Closing date: submissions must be provided by Wednesday 1 February 2012. Submissions received after this time may not be able to be considered.

Compliance with the Code of Practice

The department ensures that all timber harvesting operations are undertaken in compliance with relevant legislation and with the Code of Practice. Find out more about timber harvesting compliance.

Related Links

The Code refers to various laws and policies that may be subject to change. Links to state policies and other information relevant to the Code are provided below.

• Management Procedures for Timber Harvesting, Roading and Regeneration of Victoria's State Forests 2009 - Provides detailed prescriptions for forest timber harvesting operations, road construction operations, significant road improvement operations, site rehabilitation, forest regeneration and associated administrative processes.
• Native Forest Silviculture Guideline series - Provide information and recommendations on the best available practice for basic silvicultural operations carried out in Victoria's native State forests, that may be applicable to other native forest areas.
• Timber Production in the Rural Zone - Provides guidance to planning authorities about the preparation of a schedule to the Rural Zone as it relates to timber production.
• www.legislation.vic.gov.au - Victorian Legislation and Parliamentary Documents.
• Safety in Forest Operations (Harvesting and Haulage) Industry Standard (July 2007) - Provides practical advice about working safely in Victorian forests.

Last Monday week, 1st February 2010, conservationists down the NSW south coast temporarily stopped logging in South Brooman State Forest, situated between Ulladulla and Batemans Bay.

They have called on the NSW Premier, Kristina Keneally, to halt the destruction. Assurances were given by the NSW Government's deforester 'Forests NSW' to the local community that Forests NSW would ensure damage to threatened species habitat is mitigated.

Endangered Grey-headed Flying Foxes in South Brooman Forest

These assurances are signed off in a Regional Forest Agreement (RFA), yet RFA's have become regarded as logger speak for deferred right to log.

The evidence of habitat destruction in logger 'Compartment 62 and 63', that were earmarked for protection by the community, clearly shows the law is not being implemented.

Spotted-tailed Quolls are escaping to nearby private properties as their habitat is being destroyed, which is particularly alarming as Forests NSW pre-logging fauna surveys failed to identify these animals as being present in the area.

Spotted-tailed Quoll rescued from South Brooman Forest

"Forests NSW are breaching native forest management strategies and wilfully ignoring their own legislated regulations," said Lisa Stone from South East Forest Rescue.

"We are sending a clear message to the NSW and Federal Governments that they must fulfil their international obligations on climate change by protecting their remaining carbon sinks," said Ms Stone. "Forests NSW have fudged the books when it comes to reporting their greenhouse gas emissions. We call on the State and Federal Governments to prove that political will is not extinct and put an end to native forest logging, for us and our children's future."

Neanderthal logger culture in Forests NSW try to justify that many native trees are just too big and mature and so have to be chopped down for their own good, or else because previous logging didn't do good enough job, they're contractors are sent back in to finish it off, or simply the standard crap that logging is good for forest health.
Such a bizarre evil mindset is equivalent to Sr Lanka's President Rajapaksa's genocide of the ethic Tamils last May, whom he finished off quite effectively.

RFAs are no more than a bastard fork tongue instrument - one side used by immoral pollies to spin motherhood environmentalism to the public and 'yes' media, the other side that orders in the heavy artillery for the loggers.

Unlike National Parks which are protected under federal conservation legislation, a 'State Forest' is no more than a timber reserve for loggers to log whenever Forestry NSW says it is ok. A 'State Forest' is logger speak for 'virgins of the vanquished' to rape at will by the 'dogs of logging'.

RFA's may as well stand for Rape Forests Anytime.

And Forests NSW justifies its logging as 'education' to children from kindergarten age to "provide interesting and relevant information about the forest environment, in a stimulating and fun way."

Forestry Minister Tony Burke and Premier Bartlett may be rejoicing that Gunns has a joint venture partner, the Swedish company Sodra, for Tasmania's pulp mill. It would be "good" for jobs and for the Tasmanian economy!

Swedish company Södra stated that it would only be involved in a pulp mill in Australia if it was Forest Stewardship Council (FSC) certified, totally chlorine-free (TCF) and 100% plantation-based.

The Wilderness Society

So-called "sustainable" forestry has perpetuated the myth that primary and old growth forests can and should be harvested using "Sustainable Forest Management" (SFM) techniques.

However, forestry has transformed most of Sweden’s forests into plantations and young forests. Sweden's forestry corporations are quickly turning a once a beautiful land of old-growth forests full of life and diversity into clearcuts. Nearly all Sweden's virgin forests are gone. What is left is the old growth forests, and those are being erased now.

Over 1,800 animal and plant species in the Swedish forests are red-listed and many of them are dependent on old trees, dead wood and old-growth forests deciduous trees to survive. This is despite Sweden's example of "good" and "sustainable" forestry industries!

Gunns will still have to pass the final stage of an assessment by the Environment Minister, Peter Garrett, before the mill can operate, but is allowed to begin construction of the project!

Could this be the price that Tasmanians, and Australians, are willing to pay for what is "good" for jobs and the economy?