Tuesday, July 16, 2024

Decision upheld

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Latrobe Valley Express, 4 July 2023, Gippsland Times, 3 July 2023

The future of Victoria’s forests has been captured by political ideology and complex legalities rather than being determined by science and professional expertise, according to Forestry Australia.

Forestry Australia, which represents Australia’s forestry scientists, forestry managers and timber growers, was commenting on the appeals court’s dismissal of the appeal by VicForests against Supreme Court Justice Melinda Richards’ initial ruling from November last year, that the forestry company failed to adequately survey for two protected glider species.

The appeals court found that the trial judge had correctly interpreted the requirements of the timber code of practice and that the declarations and injunctions were lawful.

The case centred on the regulatory framework, where the ‘Precautionary Principle’ in the code requires VicForests, during timber harvest operations, including planning, to assess “if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation”.

This is the case even where there are already specific protections in place for those species.

Sixty to 80 per cent of pre-harvest surveys were conducted by DELWP staff, and the rest by VicForests.

The president of Forestry Australia, Dr Michelle Freeman, said all should be concerned that lawyers had become key decision makers in forest management, causing the disempowerment of forest management professionals who had dedicated their lives to caring for forests.

“We must now ask: what impact will this decision have on our active management of forests going forward and therefore on regional communities more broadly?” she said.

Forestry Australia noted that when DELWP incorporated the Precautionary Principle into the code, they shifted it from being a concept to guide management to a hard and fast rule that had to be applied, as it is an offence not to comply with the code.

“The problem is, there has been no universally accepted definition or clarity regarding how key components of the principle should be interpreted or applied in practice,” Forestry Australia said.

Dr Freeman said it was not appropriate to consider the Precautionary Principle as a hard and fast rule.

“That’s why it is termed the Precautionary Principle…not the Precautionary Rule. In other jurisdictions, the intent of the Precautionary Principle is embedded indirectly into regulatory instruments, guiding how the rules and approaches for values management are constructed, rather than the Principle being a rule in its own right (as it is in Victoria), working at an operational level,” she said.

“Hence why the challenge around this issue seems to be unique to Victoria.The court and experts for the complainants seem to have taken a view that an impact to a single individual of a threatened species represents “serious and irreversible damage”.

“We all know that the approach in forestry is to take a landscape-wide view … so there is a clear mismatch here in terms of how scale is considered. There is a real risk that this interpretation of ‘serious and irreversible damage’, or ‘significant impact’ may flow through into the EPBC Act and Nature Positive reforms, which could completely tie up the ability to conduct other active management in the landscape.”

Nationals Member for Eastern Victoria Region, Melina Bath said the state government had failed Victorians by failing to close loopholes in the timber code of practice, wiping out a billion dollar industry that employed thousands of Victorians.

“A change to the timber code of practice would have allowed Victoria’s sustainable native timber industry to continue without the constant threat of green lawfare. I completely reject the Andrews Government’s assertion its hands were tied on native timber harvesting,” she said.

Ms Bath, who is the Shadow Assistant Parliamentary Secretary for Public Land Use, said the Precautionary Principle should be removed as a mandatory action in the timber code of practice.

The code should be treated as a general goal to support the industry operations.

“Every single animal and tree species should not be named when it’s a designated rotational harvesting area. The timber code of practice should be designed to enable harvesting, not a document that acts as a blueprint to shutdown harvesting operations,” she said.

Ms Bath said the appeal court’s decision was bitterly disappointing.

“I am deeply saddened for thousands of lives and livelihoods this decision destroys. Daniel Andrews will forever be remembered as the Premier who failed to put people and jobs before political ideology,” she said. 

“Legislation could have been introduced and the loopholes should have been closed – instead the Premier has hidden behind secret legal advice that he refuses to release, allowing it to play out in court.

“The hypocrisy of Labor has no bounds – it’s happily delivered the death knell for Victoria’s sustainable native industry and sided with activists – all while turning a blind eye to the importation of hardwood from countries devoid of the same stringent environmental standards. 

“My thoughts remain with workers – direct and indirect, and their families who have had their lives turned into a political football by this disgraceful Andrews Government.”

VicForests said it was disappointed with the appeal outcome and would review the decision in full before making any further comment.

Costs of the appeal were awarded to the community group respondents, Environment East Gippsland and Kinglake Friends of the Forest.

Both groups welcomed the outcome of the appeal.

Jill Redwood from Environment East Gippsland said the verdict “was another nail in the coffin of VicForests”.

“Our decision to turn to the law has been vindicated,” she said.

Kinglake Friends of the Forest said the decision gave endangered forest species a fighting chance of survival.

A state government spokesman said the government acknowledged the Supreme Court’s decision and would continue to support timber workers during the transition out of native timber harvesting on January 1, 2024.

“Forestry workers, their families and communities are our immediate priority,” the spokesman said.

The native timber harvesting industry is set to close from 1 January next year after the Victorian Government’s decision to cut short its 2030 phase out. When handing down the 2023-24 state budget Treasurer Tim Pallas said: “The courts have taken the decision out of our hands.”

VicForests has released an amended Timber Release Plan to support the new transition time frame out of native harvesting. The approved TRP changes include 184 new coupes, 12 coupe boundary changes and two coupe driveway additions for previously approved coupes.

VicForests said they had opened the new coupes to create flexibility in the coupes available for harvest to provide supply and employment for industry during the government’s managed transition to 1 January 2024.

“In light of court orders, new reserves and species detections, there are currently significant constraints that limit the ability to plan a coupe to harvest stage,” VicForests said in a statement.

Related stories: Kinglake Friends of the Forest v VicForests – appeal decision: KFF; Blackwood attacks Andrews Government after timber ruling; Gliders win in Victorian Supreme Court: Environment East Gippsland; Glider crisis; Log crisis; Citizen scientists find 60 endangered gliders in forest slated for logging: Kinglake Friends of the Forest; Gliders back in court: Kinglake Friends of the Forest

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