Supreme Court Case
EEG’s history of taking legal action has become legendary. We are now progressing another legal case to protect some of East Gippsland’s most beautiful stands of forest in an area known as the Kuark (koo-ark). This began in January 2016, with a successful injunction to stop logging granted in February 2016 (until the case is finalised). We argue that VicForests failed to properly look for and protect threatened wildlife, native plants and rainforest.
How it began
There had been a number of other areas in East Gippsland where the citizen science work of GECO and FFRC had identified wildlife such as Greater Gliders and Yellow-bellied Gliders in areas planned for logging. With the evidence of these species and the help of EEG’s lawyers at EJA writing to VicForests, several forest stands were protected or partly protected. The combination of volunteer survey findings and legal assistance were very effective.
However, after the survey crews and our lawyers had informed VicForests of findings in three particular coupes in the Kuark forests, it refused to do what we believed they were obliged to, as they had in the other areas. Despite relevant legislation, the EG Forest Management Plan, Management Procedures, Planning Standards and the Code of Practice for Timber Production, logging continued.
EEG applied for and was granted an urgent interlocutory injunction on 13th February 2016. We are now seeking orders declaring that the logging in these coupes is unlawful and to continue this injunction until VicForests comply with their legal obligations.
The three forest stands in dispute
There are three logging coupes in dispute. VicForests named one ‘Tin shed’, coupe number 830-507-0023, which was half logged (early January) but had not been surveyed despite the likely presence of rare species.
One to its south is called ‘Webbed feet’ coupe no 507-0020 (late Jan/Feb), and has a substantial area of rainforest within it. This coupe has had major disturbance from snig tracks across half the area but with only a relatively small part of it logged. The injunction prevented further damage.
The third coupe is called ‘Drop Bear’, numbered 507-0021 and was marked as ‘in progress’. It is an untouched stand of rich forest to the north west adjoining Webbed Feet that VicForests now claim it has no intention to log this year.
The values VicForests overlooked
We are arguing that before starting to log, VicForests failed to survey for, properly protect and prepare a Forest Coupe Plan for some or all of the coupes that accurately identify areas that need protecting.
This was despite the presence or likely presence of:
(a) Long-Footed Potoroo;
(d) Blackfellow's Hemp;
(e) Slender Tree-Fern;
(g) Rainforest and
(h) Crayfish species
in some or all of the areas. VicForests is legally obliged to plan for and describe management actions where these occur.
The Potoroo must be given a 50 ha full protection zone and 150ha Special Management Zone that doesn’t exclude logging.
Yellow-bellied Gliders found in high densities must be given a 100ha protection zone of suitable habitat.
Blackfellows Hemp plants must be given a 250m Special Management Zone and adequate protection from logging.
Slender Tree ferns should be given the same protection as Blackfellows Hemp.
Large Brown Tree Frogs must be given a 30ha protection zone.
Rainforest must not be logged and must be protected by certain buffer areas.
Some protection zones were put in place by DELWP, after logging had already started, for some Potoroos, Gliders, Blackfellows Hemp, crays and galaxias, but we are also arguing that some identified species have not been protected or protected adequately.
Of these three coupes, VicForests only surveyed Webbed Feet. This is because VicForests will only survey if a planned coupe has over 1ha of modelled old growth within it. We believe this is an inappropriate and inadequate trigger for surveys. We also have little faith in the accuracy of DELWPs old growth mapping. It’s also clear that even these ground surveys carried out by environmental consultants are too limited and inadequate, because so many species have been missed.
The fact that GECO-FFRC survey teams have been finding previously un-detected protected species both in areas that don’t meet VicForests’ narrow criteria and in areas that have been surveyed by VicForests, shows that the self-tailored 1ha of old growth criteria overlooks many rare and threatened species as well as rainforests, and that VicForests’ surveys are not good enough.
Legal protection requirements
Even when VicForests was notified of glider detections with detailed third party reports, they failed to wait for DELWP verification and protection measures, and failed to draw up new logging plans to protect gliders before continuing to log. VicForests is obliged to protect high densities of gliders, as a legal requirement under the SFT Act, the Code, the Management Procedures and the Planning Standards.
EEG also has serious concerns regarding the non- detection of Blackfellow’s hemp by VicForests and then the lack of protection offered to those plants which GECO and FFRC had identified and reported, and further plants found since. We believe VicForests similarly disregarded the very clear obligations it must follow as spelled out in the legislation, Procedures and Standards.
The very rare Slender Tree Ferns as well as the full extent of a not insignificant stand of rainforest were not identified or managed properly before logging started.
Galaxias fish and a new, undescribed Euastacus Crayfish were overlooked when logging started, and were reported by FFRC surveys as logging was underway. Protection for these species is still incomplete.
A second, possible new species of unusual burrowing crayfish was discovered as part of EEG’s crayfish expert carrying out surveys in the area for this case. This Engaeus species lives away from streams and excavates tunnels in the forest. Most Engaeus species in Australia are endangered or critically endangered. This cray was found on the mountain-side, between 160 meters and 230 meters away from the nearest stream. This is a prime example of how VicForests is not detecting new and undiscovered species.
The threatened Large Brown Tree Frog also lives away from streams in the forest. It relies on pools of water retained in bark ‘bowls’ or where fallen trees’ root balls have left depressions that hold water, and so on. It’s extremely rare these days and threatened by ongoing logging in its habitat. This species is also listed under the FFGA but not under the Management Procedures as yet. For this and all other environmental values, VicForests should apply the Precautionary Principle as cited under clause 184.108.40.206 of the Code and any relevant Action Statement.
The role of DELWP in all of this is as the environmental regulator. It is DELWP which is meant to verify third party findings of rare species and rainforests. It is DELWP which should determine protection zones.
Currently there are two outstanding DELWP investigations in the Kuark coupes; one is looking into the new species of burrowing crayfish and the other is carrying out their own investigation into the rainforest present in Webbed Feet. DELWP is also still in the process of putting crayfish protection zones in place in the coupes. While these matters are being investigated, and as VicForests were still supplying EEG’s lawyers with requested documents, EEG sought an adjournment of the case. DELWP’s findings may impact on the case and VicForests discovered documents could also be crucial. DELWP has given no indication when it might finish its investigations and finalize any resulting protection zones needed.
December 5th 2016 – 8 day trial
The honourable Justice Emerton handed down the order on 21st September for the trial to be adjourned until 5th December for an estimated eight day trial at the Melbourne Supreme Court.
Members of the public are welcome to attend.
Taking these issues to the Supreme Court to deliberate on and make a ruling may have a significant future impact on forest dependent species and rainforests.
EEG has engaged lawyers to help us challenge the government’s interpretation of or disregard for their own laws many times now. This will be our 5th Supreme Court case. Two other legal disputes have settled without the need to start Court cases. Taking legal action is never a decision we take lightly, but with the help of Bleyer Lawyers in the Brown Mountain, rainforest and owls cases and the EDO/EJA for the others, we feel that legal action is the most effective way our group can protect the forests and our wildlife. We would much prefer the Government to enforce their own laws. But when that does not happen and threatened species are put at risk, your continued support is crucial to us being able to ask the Courts to step in!
Many people who love forests and our wildlife often ask what they can do to help. One way is to support those who take this bold action to sue the government.
Tax deductible donations can be made here
To see more pictures of the beautiful Kuark Forests visit the photo gallery
EEG Environment East Gippsland
EJA / EDO Environment Justice Australia (formerly Env Defenders Office)
GECO Goongerah Environment Centre (office)
FFRC Fauna and Flora Research Collective
DELWP Department of Environment, Lands, Water and Planning
SFT Act Sustainable Forest Timber Act
FFGA Flora and Fauna Guarantee Act 1988
 The landmark 2010 Supreme Court ruling stated that VicForests should protect the species found at Brown Mountain before logging, and survey for other values. This has seen VicForests carry out some pre-logging surveys but only in areas that meet their 1ha MOG criteria.
 The precautionary principle means that, when contemplating decisions that will affect the environment, careful evaluation of management options must be undertaken to wherever practical avoid serious or irreversible damage to the environment; and to properly assess the risk-weighted consequences of various options. When dealing with 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.