EEG sues VicForests for not protecting rare Glider habitat
IN THE SUPREME COURT OF VICTORIA AT MELBOURNE
Update – 23rd June 2022
The last day of the trial saw both parties present their final submissions or arguments to Her Honour, Justice Richards.
We are quietly confident of some sort of positive outcome for the Gliders of Gippsland and the Central Highlands, but it’s always difficult to predict legal findings.
Justice Richards made pointed comment that she was becoming frustrated with government changing the logging laws while cases were in mid-stream, wasting valuable court time.
Environment East Gippsland began this legal case in early 2021. Soon after Kinglake Friends of Forests joined the case as they were also needing to protect their own Gliders using the very same arguments against the threat of logging. Both cases were able to gain injunctions against logging forests where Gliders had been identified. This has protected large areas of critical habitat for over a year now.
But between East Gippsland and the Central Highlands, there is a lot of other important high quality forest habitat for Gliders. Central Gippsland then became targeted by VicForests logging contractors and some exceptionally exquisite old ash forests were destroyed.
Gippsland Environment Group were then also forced to take legal action to protect these known Glider habitats. This case will also be using the very same legal arguments as we have used.
As of late June 2022, there are many people anxiously awaiting the court’s decision on the protection of rare Gliders.
Update 4th June 2022
“The Glider Case” as it’s now known, heard evidence in the Supreme Court over 7 days from 9-17 May. Both EEG and the KFF are having our cases heard concurrently. We were told by those watching the week long trail, that it did not leave VicForests looking very credible.
The temporary injunction preventing VicForests from logging known Greater Glider habitat across the Central Highlands and East Gippsland still stands and is currently protecting about 5,500 hectares.
During the hearings, our Glider expert, Associate professor Grant Wardell-Johnson, detailed the more thorough survey methods and the protection areas that should be applied to ensure the Greater Gliders survive. VicForests Glider expert, Ben Wagnell, agreed on much of his evidence, with slight variations. Basically, both agreed that survey methods could be improved and better protection offered where they are detected.
VicForests CEO, Monique Dawson claimed that our more thorough survey techniques meant more time walking through forests at night and was far too dangerous. Our very highly regarded OH&S expert analysed the safety of night-time spotlight surveys and concluded that measures could easily be put in place to avoid risks.
VicForests’ OH&S expert David Bennett, agreed that night time spotlight surveys could be carried out safely. But the CEO’s opinion was that they couldn’t be. She maintained that stance, despite these two experts in risk assessment and OH&S providing detailed evidence that they could.
Despite both of the Glider experts (theirs and ours) also agreeing that surveys could and should be undertaken to properly identify Gliders, she made the call that spotlight surveys were still far too dangerous and ‘are not perfect’. VicForests’ evidence was that due to night time driving, falling branches, pokey sticks, trippy ground and man-eating dingoes, it was unacceptably dangerous (even though VicForests carries out some of this work to a lesser degree anyway). Dawson stated that she would make the call on her own reckoning, to close the entire show down if forced to look properly for endangered Gliders or provide decent protection (as our expert showed was needed). Instead, she pulled out of her … ummm… hat, that surveyors could instead look for tree hollows and glider poop during the day.
VicForests’ Jason Hellyer (General Manager People, Safety and Culture), Michael Ryan (Forest Scientist) James Gunn (Manager Forest Policy and Compliance) along with VicForests’ expert witnesses also spoke. The evidence and cross-examination of these witnesses was at times, very entertaining.
During cross-examination, Michael Ryan’s sensibilities were offended by the assumption that Gliders were actually killed by logging their habitat.
Jonathon Korman (our barrister) – I think that’s the point we made earlier on, that the only focus of this (VicForests) research project was to show that greater gliders can be found, not the effect of timber harvesting on them except that it doesn’t kill them all?
Michael Ryan – I’m not even sure you can say … It doesn’t kill them. I’m not quite sure why you use that wording... I’m not quite sure why you keep using these terms that all these things are being killed. I’m just – it’s curious language.
HER HONOUR – Mr Ryan, could you just listen to the question and answer the question?
MR – It immediately just puts me off.
HH – If Mr Solomon (VF barrister) considers the question to be objectionable he will object.
(Mr Solomon didn’t object)
Later, when Michael Ryan complained of being “rattled” by JK’s questioning style, Her Honour kindly advised “Just take a deep breath, let me know if you would like a break and let’s just resume?“.
Another interesting line of questioning brought out the fact that VicForests CEO believed if the court decided on better survey methods and greater protection, then she could present ideas on how the government could ‘clarify the law’.
If the plaintiff were to succeed and get those orders, you’re telling the court that you will shut down VicForests’ Central Highlands and East Gippsland operation?
Monique Dawson: Yes.
MD: Well, yes, pending other response... Or unless Government takes other action… Government can use its accountability to potentially clarify the law if it was thought necessary to do so… I would put to Government decisions that Government could take that might ameliorate that decision to meet Government’s policy objectives.
The last day of evidence was an on the ground “view”. Her Honour, Justice Richards visited the Central Highlands with VicForests’ large legal team plus two employees along with one of EEG and KFF’s barristers and solicitor and two members of Kinglake Friends of Forests. Her Honour was shown a number of logged areas where the barristers of both sides spoke to points relevant to the case.
Her Honour saw plenty of logging and also how much (or little) useful Glider habitat still existed.
Closing submissions are to be heard on 23rd June 2022. Then we wait for Justice Richards to hand down her decision.
This has been an exhausting and expensive undertaking for two community groups taking on VicForests, a government body with seemingly unlimited resources. The stakes are high though and a win will have huge implications for our native forests and the creatures that depend on them.
There are still large bills coming in so if you’re able to support us in our battle for the Gliders that would be amazing. You can donate here.
Update 8 May 2022
EEG has been preparing for months for another legal battle and our Supreme Court case is to start on 9th May 2022. It argues for effective Glider detection and protection. It’s scheduled to go for between 6-9 days and will be heard before the Honourable Justice Richards.
People can watch this remotely. The hearing will be live streamed from 10.30 am each day to enable the public to observe remotely. The link will remain the same for each day of the trial.
Link to view hearing: https://vimeo.com/event/2088433
Please note that it is an offence to record, rebroadcast, screenshot, place on social media or otherwise use any audio and video from this live stream.
EEG argues that VicForests (the government’s logging arm) should stop all logging in the forested habitats of Greater Gliders and Yellow-bellied Gliders by properly surveying for, interpreting and applying the laws designed to protect them. Where the gliders are protected, it will also protect hundreds of other species, including everything from owls and quolls, to echidnas, skinks and rare plants.
For the last 14 months EEG and our indefatigable lawyers (Jonathan Korman and Kwabena Larbi) have been prepping for this day. Meanwhile, we had the Supreme Court agree to injunctions on every planned logging coupe in East Gippsland where Gliders have been detected. As their quality habitat coincides with the wet, rich forests targeted by VicForests, the injunction has halted the logging of about 60% of forests that were on the chopping block. Relevant section of the Court order is below.
The court will ultimately decide how the law is to be correctly applied to protect these threatened animals. The situation for all of East Gippsland’s rare plants and wildlife is far more precarious now since the horrific bushfires that incinerated almost 80% of the region.
After our injunctions were granted last year, Kinglake Friends of Forests also joined the fight for their Gliders and the two cases will be heard concurrently.
This has all taken a lot of time, much mapping, reading, late nights and early mornings – especially for the amazing legal minds who’ll be speaking for the Gliders – and of course it takes a lot of … money.
Update 8th September 2022
On 31st August the Supreme Court found that EEG had a serious case against VicForests for trial and that VicForests supposed ‘suitable’ protection zone for gliders was likely to NOT be suitable (but the planned logging area was suitable). VicForests then went into damage control. Another group called their planned logging illegal and VicForests pouted on this point, claiming they adhere to every regulation and environmental standard. VicForests website story made the point that the logging in this glider rich forest (our term not theirs) was to help train up people to cut down trees in an emergency. This is despite the larger area being full of logging regrowth that could be used.
COURT HALTS LOGGING in UNBURNT GLIDER REFUGE
Environment East Gippsland is currently conducting a proceeding against VicForests alleging that VicForests have been logging habitat that they were required by law to set aside for Greater Gliders and Yellow bellied Gliders known to exist in the immediate vicinity.
“Recently, VicForests announced that it was about to commence logging in an area of healthy forest just north of Lakes Entrance, where a high density of Yellow-bellied gliders had been detected”, said Jill Redwood from EEG. “We were left with no option but to seek an urgent injunction to protect this important unburnt refuge.”
EEG applied to the court for an injunction to prevent the logging until the main proceeding was heard and decided. It argued that although VicForests maintained it had set aside 100 ha of habitat, the forest set aside was in fact unsuitable for Yellow-bellied Gliders. EEG told the Court VicForests was required to set aside 100 ha of ‘suitable habitat’, and that suitable habitat was precisely the forest planned to be logged.
“VicForests argued that EEG’s case was so weak that no injunction should be granted”, said Ms Redwood “but the Supreme Court didn’t agree.”
The court held that EEG was raising a serious question for trial, and logging in the affected forest should not proceed until the case was decided, or until the court ordered otherwise.
“VicForests is claiming this forest is necessary to log in order to train DELWP and emergency services workers how to cut down trees” said Ms Redwood. “But there are large areas of regrowth forests nearby with far less environmental importance than this very special area which supports not only Yellow-bellied Gliders but also the threatened Greater Glider and Masked Owl”.
For comment: Jill Redwood (03) 5154 0145
Background – https://eastgippsland.net.au/featured/back-to-court/
UPDATE – 31/8/21 – Injunction granted for glider habitat
When we noticed one of our Glider-rich forests that is listed in our Statement of Claim (for the main court case) was in danger of imminent clearfelling, we immediately sought to have VicForests give an undertaking that they wouldn’t log it. Our lawyers wrote to theirs. No undertaking was received so an urgent injunction was applied for. This was to stop all plans for logging this particular forest. Our main case is challenging the inadequate interpretation of protections for Greater Gliders and Yellow-bellied Gliders, which is what was happening here on a small scale.
This forest area was given a coupe logging number of 801-511-0006 and the name of Tiger. It was also given a public prohibition zone VicForests calls a “Timber Harvesting Safety Zone”. This means it is illegal for any member of the public to go within 150m of its boundaries.
Our fantastic lawyers worked hard and we had our request for an injunction heard before her Honour Justice Richards on 31st August.
Our argument was that the so called protection area that VicForests had mapped was inadequate. Our expert witness provided a preliminary report which argued that in order to qualify as “suitable habitat”, an SPZ should be square or round in shape, not long and narrow (as in a stream buffer) as mapped by VicForests. It should also include the populations of Yellow-bellied Gliders inside the Tiger coupe (and in the neighbouring coupe). If not it was likely to have “serious consequences” for the yellow-bellied glider populations and so cannot constitute “suitable habitat” for these gliders.
After a two hour hearing, her Honour ordered in favour of the Gliders. This is a stop-work order while the case is heard on the correct application of glider protections in East Gippsland.
UPDATE – 2/7/21 – injunction granted for buffers
Good news. EEG had no option but to seek an urgent injunction to stop VicForests from clearing forests up to the roadside. This is despite the Code clearly stating that it must leave a 20m buffer between a logging area and roads and tracks. This is part of our larger case. Such shameful looting of protected public forest has been happening for years. The injunction stops them logging these zones until the trial next year.
The arguments were heard by the Honourable Justice Incerti who handed down her decision on Friday 2nd July. The crux of the orders are below:
UPDATE – The Andrews government passed changes to the logging Code of Practice that came into effect on 17 November 2021. These changes were claimed to ‘clarify’ the requirements, but in reality weakened the laws. Previously the law required all tracks and roads to be given a 20m buffer from logging. Now VicForests can log right to the bitumen to glean those additional few trees, destroying the meager habitat corridors that are critical for what remains alive after VicForests’ smash and grab operations.
The same has happened with illegal logging of steep slopes. Rather than prosecute VicForests, the Andrews government changed the law.
June 25th 2021
After the bushfires destruction must end – but it continues.
In May 2021, Environment East Gippsland inc. launched another legal case against the state-owned logging monopoly, VicForests. This means VicForests is currently facing eight legal challenges to its logging operations (one of them soon to be heard in the High Court we’re hoping).
While we prepare a case to argue in court, EEG and its lawyers have managed to stop logging machinery from doing extensive damage to some of the best, unburnt Greater Glider habitat remaining in East Gippsland. As well as these forests SW of Bendoc, (where a blockade camp had been for months), we are also hoping to extend VicForests legal undertaking to not log in all other glider-rich, unburnt or lightly burnt forests in East Gippsland.
Gliders have suffered an 80% reduction in their population in some areas over the last 20 years of logging and bushfires. Then the 2019-20 Black Summer fires burnt 80% of East Gippsland, the stronghold for the species. This alone illustrates the desperate need to urgently protect all Glider habitat. It has been 18 months since the devastating bushfires, yet no added protection or recognition of now imperiled wildlife like the Greater Glider is, has been formalised.
Protests and wildlife surveys by GECO and others helped to keep logging contractors at bay for a few months until VicForests engaged extremely expensive 24/7 security guards to camp on site and prevent tree sits and lock-ons being set up at night. VicForests then managed to chainsaw and bulldoze a few ha of forested habitat over about four days while the urgent injunction was prepared for the Supreme Court by our sharp shooting lawyers.
On 12th May our injunction was granted and the logging was stopped.
The 2020 summer bushfires impacted about 80% of EG.
Only around 37% of known Glider habitat remains unburnt across the East Gippsland, Tambo and North East FMAs. Just over half of that area is unprotected and still available for logging despite supporting significant populations and containing some of the best habitat for the species.
VicForests is planning to clearfell (under names such as ‘variable retention’ and ‘adaptive silvicultural system’) the best forests that remain. These high-value conservation forests are also targeted for their wood values.
VicForests argues that it only logs a tiny percent of forests every year. This is like a museum manager claiming he only shreds one art piece in 100 – these just so happen to be Rembrant’s masterpieces.
What we claim
Our basic argument in this case is that:
“VicForests has failed to apply management actions (protections) in respect of greater gliders and yellow bellied gliders and unless restrained will continue to do so.“
These documents say where a certain number of the Greater Gliders or Yellow-bellied Gliders are found, either in a hectare, along a kilometre, after an hour of spotlighting or where there are substantial populations in isolated habitats, that 100ha of suitable habitat MUST be protected. As a logging coupe can be 30ha on average, 100ha protects a reasonable area of forest, but VicForests’ or DELWP’s definition of ‘suitable’ is not always the same as the gliders. Any nearby north-facing, dry or ridgetop forest can be unsuitable or useless. VicForests also has a habit of mapping ‘glider habitat’ along existing thin stream buffers. So despite legal requirements for detection and protection – it hasn’t been happening.
VicForests appears to be putting its own interpretation on the English language. A new office which the government set up in early 2019 called the Office of the Conservation Regulator or the OCR (some say it’s a fancy name for a brick wall) seems to interpret the wording differently as well.
There is also reluctance by all of these bodies to apply the Precautionary Principle. This is another legal obligation, but conveniently considered discretionary. However, both the Supreme Court and the Federal Court have clarified its meaning. It is also clear that it is not optional. This is another part of our argument.
Roadside buffer breaches
The other breach we claim has been happening for years is the disregard for the clause in the Standards which states there must be a 20m forested buffer left unlogged along all roads and tracks.
As these legal cases require a lot of preparation of evidence, arguments, swapping documents, requesting information from the other side, various preliminary hearings and so on, this process will take time. However, we’ll be adding regular updates to this page as they happen. The court hearing could be early 2022 and we hope to secure interim protection for important glider habitat in East Gippsland meanwhile.
We are also hoping to force VicForests to respect its legal obligations to leave a 20m forested buffer between roads and tracks and its logging exploits.
(Update – the government allowed the Code of Forest Practices to be revised so as to remove this requirement, around Sept 2021. The Andrews Government appears to simply solve the problem of illegal destruction of protected areas, by changing the law to allow it!)
This case will be costly, but we intend to pursue this and force the Andrews government’s lawless and immoral logging entity to keep these beautiful forests standing.
Tax-deductible donations to help us see this case through will be extremely valuable – and greatly appreciated both by us – and the Greater Gliders.
The other cases are, Warburton Environment’s two case, including the protection of rare Geebungs Friends of Leadbeaters possum case, WOTCH’s case against post-fire logging, Kinglake Friends of Forests, on lack of 20m roadside buffers and overlogging its quota in bushfire management zones and lastly, the old growth case brought by the FFRC.