Another WIN against VicForests
Landmark court win upholds protection for Gliders and Victoria’s forests
(media release 27/6/23)
Environment groups are celebrating after the Victoria’s Supreme Court of Appeal today upheld a landmark ruling that found that state-owned logging agency, VicForests, had logged unlawfully.
The decisions set an important precedent and means that injunctions protecting native forests and species across Victoria from logging will be upheld.
In November 2022, VicForests was found to have logged unlawfully in breach of environmental protections in a landmark court win by Environment East Gippsland, Gippsland Environment Group and Kinglake Friends of the Forest.
The decisions halted logging operations in large swathes of Gippsland and the Central Highlands where endangered Greater Gliders and threatened Yellow-Bellied Gliders are found.
The appeal was heard in March 2023 but today the Victorian Supreme Court dismissed the appeal, affirmed the Greater Glider decisions, and awarded costs to the community groups.
Along with bushfires and unsustainable logging practices, six court cases by community groups against VicForests were a key factor in the Victorian Government’s decision to bring forward the end of native forest logging to 1 January 2024.
The community groups were represented by Barrister Jonathan Korman and Oakwood Legal.
Today’s judgement is being watched by Wildlife of the Central Highlands, represented by Environmental Justice Australia, who have also spent more than three years in the Supreme Court and are awaiting judgement on their fight to protect threatened species.
Quotes attributable to Jill Redwood, Environment East Gippsland
- “Litigation is an expensive and risky undertaking for small community groups, but our decision to turn to the law has been vindicated.
- This is another nail in the coffin of VicForests. For decades, VicForests has tried to write their own rules, but today’s decision shows they’re not above the law.
- Their own lawless logging and attitudes have stripped their credibility.
- The decision to enforce the original orders gives us faith in the justice system. Our forests now have some breathing space to finally regenerate after decades of destruction.
- The end of native forest logging has brought with it a sense of relief, but also grief, anger, and sadness for all that has been senselessly lost.
- We are determined to keep fighting for the forests that are still on the chopping block so places like the Wombat Forest and Mount Cole can’t be cut down by VicForests in the name of fire management.
- We hope to see public money, for so long wasted on propping up the logging industry, now invested in restoring the forests for our climate and wildlife. Our forests should be secured forever through the creation of national parks.”
HOW DID THIS COURT WIN FINALLY TIP THE SCALES?
In summary – it goes like this:
2009 – EEG decided to risk a new campaign tactic – suing the government’s logging arm over plans to log Brown Mountain’s old growth with is 5 threatened species. It was a major risk and very, very costly. With a brilliant legal team we won.
2009 onwards – there were many court cases against VicForests illegal logging by both EEG and other small regional groups – govt changed laws or VicForests continued to misinterpreted court findings. Governments excused and protected VicForests’ larikinism. Social licence was spent.
Gliders’ case (2021-22) – The three groups combined and stopped logging across East Gippsland right through to Central Highlands. The legal team secured injunctions on logging in forests that could support the two Glider species. The high quality ash log supply to Nippon’s pulp and paper mill stopped.
November 2022 – Justice Richards of the Supreme Court made orders that VicForests must properly survey for and properly protect the habitat of the rare Greater and Yellow-bellied Gliders. The CEO of VicForests declared she would shut down the whole industry if they were forced to do spotlight surveys. Logging remained mostly stopped.
December 2022 – Nippon closed down its loss-making Reflex paper factory in the Latrobe Valley – the CFMEU lost its stronghold – the Forestry union lost its power over govt.
Govt was finding it hard to keep changing laws to protect illegal logging.
March 2023 – VicForests appeal to our November win and Court orders, were heard in the Supreme Court by three Appeal judges.
Later, on budget day, Premier Andrews announced logging would stop after December 2023 (6 years earlier than planned). He acknowledged that our court cases were a problem. VicForests $54 million loss and illegal logging could not be covered up any longer.
June 2023 – The Supreme Court of Appeal president Justice Karin Emerton, alongside Justices Cameron Macaulay and Stephen Kaye, dismissed VicForests appeal and ordered VicForests to pay our legal costs.
This all poses the question, will logging still be viable for VicForests up until January???
Our sexy little fluff-bags up in the trees have become the precedent for all creatures rare and beautiful – from the Masked Owl to the Marsh Leek-orchid, from the Swamp Skink to the Mt Stirling Stone-fly.
If round 2 in the Courts is needed – we’re ready.
VicForests has a history of needing help to obey the law.
So, with 6 months of logging time remaining until 1st Jan 2024, we haven’t quite stopped all forest logging yet, but are closer than ever.
The area that this Supreme Court order covers now stretches from Mallacoota in the east to the Central Highlands in the west near Melbourne. What we started as an urgent injunction to save the gliders in a single stand of forest near Bendoc in March 2021, became a huge case with three groups – Environment East Gippsland, Gippsland Environment Group and Kinglake Friends of Forests. And of course, an amazing legal team that presented strong arguments along with top expert witnesses and evidence gathered by everyone.
TOO GOOD TO BE TRUE?
Yes, we have stopped logging in many forests for now. But despite the Daniel Andrews announcement and admission that ongoing legal cases were a problem (in Senate Estimates) it has also been stated by Minister Gayle Tierney, that logging isn’t going to stop everywhere. How so?
1. Like Monty Python’s Black Knight VicForests refuses to give up. They are continuing logging in the west of the state (Wombat Forests, Cobbobonee, Cobaw, Mt Cole). We fear they may resume in some other forest areas as well.
They are using a logging scheme known as a ‘Timber Utilisation Plan’, trying to thwart challenges to illegal logging. TUPs allow VicForests to avoid public scrutiny by hiding information about planned logging and threatened species surveys. This may also be one for another legal case.
2. VicForests plans to move logging contractors into ‘fire management’ **. This means cutting down swathes of forest to create huge ‘fire breaks’, ‘thinning’ and ‘hazardous tree’ removal. ‘Fire management’ will be a guise for looting the healthy, commercially profitable trees. ‘Fire management’ has few if any legally enforceable environmental protection rules. What’s more, this sinister plan means they can smash through National Parks and Reserves without any controls.
The effectiveness of burning, thinning and fire breaks has never been assessed or proven – in fact the opposite is now being shown (but that’s another big story and another).
By confusing this destruction with ‘fire management’ loggers will be painted as heroes!
3. The Wombat Forest appears to be the trial run of another new method of continuing logging by stealth. Euphemistically called ‘Forest gardening’, commercial logging may be carried out via a joint management plan between the state government and local indigenous corporation DJAARA.
To kickstart it, DJAARA has been awarded a grant of almost $1.5 million to develop “Djaara Timbers” via a brand-new saw mill.
The government agreed this area should be declared a National Park in 2021 but VicForests has been logging these areas under the guise ‘storm damage clean up’ ever since.
A Saturday Paper article quoted Lidia Thorpe, “… a Gunnai, Gunditjmara and Djab Wurrung woman, tweeted: “Don’t try to Green-wash native logging and deforesting by calling it ‘forest gardening’. That’s rubbish. Native logging is Destruction of Country. It’s cultural genocide.”
To counter all of this skulduggery over the next 6 months and beyond, we have our legal ducks lined up on several fronts… quack quack.
Dan Andrews was right about one thing – Environment groups will continue litigating, if VicForests keeps logging illegally.
We need your help to ensure the logging zombie is not resurrected.
Thanks everyone for your support over many years.
What we need now is lobbying pressure from voters.
There are a number of things that remain hanging.
The Federal Government must be part of this new era for forest-reverence.
Could you please email:
Federal Environment Minister Tanya Plibersek Tanya.Plibersek.MP@nullaph.gov.au and Chris Bowen, Minister for Climate Change and Energy Chris.Bowen.MP@nullaph.gov.au
Mention the fantastic Victorian decision. Then urge them to:
* Immediately abolish the Regional Forest Agreements
* Strengthen the EPBC Act
* Properly fund and resource the Env Dept so that it can again do its job.
* Stop handing enviro protection obligations to the states for federally listed values and species.
* Ensure previous logging areas are reafforested and not left as gaping wounds on the landscape.
* Take seriously, the strong science that links forests with effective climate moderation, carbon capture and safe storage, flood mitigation and helping to meet our climate targets.
THEN to the State government:
Dan Andrews daniel.andrews@nullparliament.vic.gov.au
Gayle Tierney Minister for Agriculture (logging) Minister.Agriculture@nullecodev.vic.gov.au
Ingrid Stitt – Environment Minister Ingrid.Stitt@nullparliament.vic.gov.au
Tim Pallas – Treasurer (owner of VicForests) tim.pallas@nullparliament.vic.gov.au
Congratulate their acknowledgment that forests need protecting and urge them to:
* Rescind the RFAs,
* Disband VicForests.
* Disband the Office of the Conservation Regulator.
* Establish truly independent and credible regulators at arm’s length from government and logging interests.
* Invest substantial funds in the restoration of failed logging regeneration back to natural forests and overseen by ecologists.
* Abandon plans to allow logging to continue under any false label or guise, in particular ‘Fire management’.
* Sell off the government share of the Heyfield mill so as to ensure no conflicts of interest.
* Review all current fire management practices and invest existing fire funding to prioritise rapid attack and immediate asset zone protections.
Gliders have their day in court – and WIN
November 2022
Supreme Court rules in favour of effective detection and protection – with scathing comments on VicForests’ logging.
UPDATE – MARCH 2023
As anticipated, VicForests appealed the Court Orders made by Justice Richards. EEG and KFF also lodged a counter appeal. These were heard on 23rd March. At the time of writing there has not been a decision handed down.
VicForests presented a number of (what we considered were) weak arguments. One that the three Judges in the court of appeal took interest in, was the question of whether Justice Richards had the right to make administrative or legislative decisions that are normally the role of government. Our Barristers presented a very good argument, saying that VicForests have been found to have broken the laws many times over many years and have also just admitted in court that they’d keep breaking the law. The court needs to do more than simply point out that they must abide by the law – again. The court must interpret the law for them and ensure VicForests works within it. They have been told how they must ensure Gliders are searched for, and when found, the type of protection measures they must provide. These protections are based on the expert evidence and advice presented in court (see below article for more details and the reasons and orders).
The cross-appeal by EEG and KFF argued that the Judge had neglected to include in her orders, that the surveys should also extend for a distance beyond the coupe boundaries. This is where Gliders’ territories might part-straddle the intended logging area, but not be found by simply surveying inside the planned forest for logging.
While the three Court of Appeal judges deliberate, the original orders stand.
Drone surveys
While the orders stand, VicForests aren’t able to legally log unless they carry out thorough surveys for Gliders. But in court, the CEO stated categorically that she would shut down the entire industry if they must undertake dangerous night time surveys. The court didn’t flinch at that threat and ordered they do thorough surveys across all planned logging areas.
This has forced them to look at the other option – night flying drones with heat sensing cameras. Despite them being hi-tech and expensive, they still have limitations. VicForests is trialing them currently, to compare their effectiveness against using ground surveys with spotlights.
LOGGING STOPPED
THE SUPREME COURT FAVOURS GLIDERS OVER LOGGING
On 4th of November 2022 Justice Richards handed down her judgment in our case for the Greater and Yellow-bellied Gliders. This is an incredible ruling that will have far reaching consequences for the government’s logging agency. VicForests must now protect these endangered animals in forests targeted for logging, and across all logging areas, not just East Gippsland.
Environment East Gippsland and then Kinglake Friends of Forests brought the case in 2021, to protect endangered Greater Gliders and the rare Yellow-bellied Gliders in East Gippsland and the Central Highlands.
VicForests had conveniently never surveyed for threatened native animals before EEG’s landmark court win in 2010. That Supreme Court case, known as the Brown Mountain case, made it clear that VicForests must look before it logged. But it still hadn’t been looking very carefully and when it couldn’t avoid finding rare wildlife, it wasn’t putting in effective protections measures. Over that 12 years it must have knowingly killed and destroyed thousands of animals and biological values it was legally meant to survey for and protect.
What started off as a protest to save a small stand of beautiful wet, Glider-rich forest near Bendoc, became EEG’s legal case in the Supreme Court, which became a precedent that now applies to all logging in Victoria, not just East Gippsland. We knew those forests supported a healthy population of the endangered Greater Gliders. VicForests understands English as well as anyone and knew their legal obligations. We knew they were illegally logging – again.
After 18 months, hundreds of hours and many late nights by our amazing legal team (3 cheers for Jonny, Kwabena and Kylie!), evidence prepared and hearings, Justice Richards handed down a Judgement. That clarified the existing law. There were not many kind words directed at VicForests (see selected quotes below).
The two arguments we put concerned the meaning of the Precautionary Principle – also referred to as section 2.2.2.2 of the Code, and the need to carry out surveys to identify biological values – referred to as section 2.2.2.4 of the Code.
The clarification of these 2 important sections now means that whether VicForests is planning to log the ash forests of Mt Stirling, the tall glider forests around Swifts Creek or the Wombat forests in the west, they MUST carry out effective surveys first and if gliders are found, provide effective protections – now detailed by the court. The orders and the judgment are below as PDFs.
…logging in East Gippsland and Central Highlands presented “a threat of serious and irreversible harm to both the greater glider and the yellow-bellied glider as a species”.
Justice Richards
“The ecological evidence was that those gliders living in coupes that are harvested in accordance with VicForests’ current practices will probably die as a result of the harvesting operations.”
Justice Richards
Greater gliders are under serious threat of extinction. Their populations in some areas having dropped 80% in the last 20 years. This decline has been further exacerbated by the 2019-20 bushfires.
VicForests must be wound up now, not after another 8 years’ of destructive, lawless logging.
At the time of writing, VicForests is considering whether to appeal this decision, or how they’ll interpret the judgment.
See the Guardian’s coverage here
the ABC’s coverage here
and The Age story here
You can read the full judgment and Orders below. Scroll through or download as a PDF file.
Here are some choice quotes – “The Best of ” the 161 page judgment :
The orders – in simple language – require VicForests to not log, unless it has carried out effective surveys across the entire stand of forest it intends to cut down. Where a Greater or Yellow-bellied Glider is found, it must protect the home range of the Greater Glider (3-4 ha). All forests supporting gliders are to have 100m buffers along waterways (50m each side), leave identified hollow bearing and feed trees, and leave 60% of eucalypts (by stem mass). However, the exception is where forests have previously been clearfelled. Her Honour accepted that such regrowth forest would have no old hollow bearing trees which Gliders need for nesting.
VicForests is claiming this order will make forests unviable to log. It plans to appeal.
The final judgment and orders are below.