EEG v VicForests In Court

December 2, 2014

The Brown Mountain landmark trial has concluded in the Supreme Court on Thursday 25th March – after a 16 day trial.

Justice Osborn has reserved his decision. It could take anywhere from one month to six months to hand down a finding, but of course we are hoping sooner.

The four week trial has been marked by finger-pointing between government logging bodies VicForests and DSE about who is responsible for endangered species. The behavior of those charged with protecting our wildlife has been exposed to public scrutiny and the Supreme Court’s enquiry.

We believe the government doesn’t survey for endangered wildlife before they log old growth forest, because they don’t want to find anything that would prevent logging. The Court heard that VicForests doesn’t employ wildlife experts, and EEG has argued that both VicForests and the DSE sideline the opinion of the government’s biodiversity unit.

We hope the Minister is now fully informed about the very high conservation value in this area.

EEG presented evidence of a new species of crayfish in Brown Mountain Creek, plus experts claiming the stands of old growth are high quality habitat for two species of rare frogs, and the Spot-tailed (Tiger) Quoll. The evidence for the Tiger Quoll was heart-breaking – the three last remaining viable colonies are in East Gippsland.

This case has been all about whether irreversible damage would be caused by logging. And as our legal team stated “ You can’t get damage that is more irreversible than extinction.”

The outcome of this case is important for the protection of wildlife in other stands of high conservation value native forests under threat of clearfelling.

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Court case finishes – summary of the final 3 days.

The final days of summing up both VicForests’ and EEG’s arguments were heard in the Melb Supreme Court on Tuesday, Wednesday and Thursday (23rd-25th March). These were the last submissions presented to Justice Osborn who heard the 17 day trial that started on the 1st March.

In summary – both sides presented their condensed arguments from the past 3 weeks. Early in the case, the economic claims were not allowed as VF had not made any allegations in its defence about economic impact, and there was only summary evidence supplied by VF, without details. The arguments focused on the laws covering protection of threatened species and how VF did or didn’t abide by them. Justice Osborn has reserved his decision . Our legal team have said he could hand this down in a month or two or three … Despite some fairly revealing and insightful evidence being given and some quite startling information to come out of cross examination of witnesses, the decision will be looking at the complexities of the laws governing forests and wildlife management.

A support team of about 45 people attended the Melbourne start of the case to show that there was widespread interest in Brown Mountain (see pics). Thanks everyone who came along and who sat through the proceedings.

1st Day (Tues) – the defence (VicForests) lawyers had the stage on day 1 and delivered their case.

To those who hadn’t heard the facts, arguments and cross examinations of the previous 3 weeks, it could have sounded fairly reasonable and even worrying. Read our responses to their arguments below. VF lawyers’ arguments consisted of the following:

  • EEG didn’t have standing to take the case to court as we are too small a group, don’t have a special interest in Brown Mountain, only an emotional or intellectual interest. The fact that we didn’t apply to be on the local Shire environment committee, and the claim that we didn’t take part in the Nat Estate study on 1990 – (but we actually did) and various other arguments were used to attempt to argue we shouldn’t be able to sue VicForests.
  • It was DSE that should have looked out for threatened species, not VicForests. VF can’t change zonings.
  • The Potoroo wasn’t ‘detected’ within the meaning of the action statement (FFG Act) – although the animals and the sites were confirmed, the full two weeks of footage was withheld by EEG (under instruction from our lawyers) until late 2009 – making the authorities suspicious of possible tampering and was the reason given by VF for not protecting the area.
  • Language in the FFG Act and Sustainable Forests (Timber) Act, is not enforceable.
  • VF noted that the Forest Management Plan was out of date (ended in 2006), which generated much discussion. Justice Osborn pointed out that if it was no longer applicable, then all logging in EG was illegal as the FM Plan is needed before forest can be logged. That point was then quickly resolved.
  • The Precautionary Principle, which was a major argument in the whole case. It was first claimed by VF not to give rise to any legally enforceable obligation against it, and even if it did, VF claimed it had observed the PP even if it wasn’t thought to be regarded as enough precaution.
  • VF claim Potoroo wasn’t ‘detected’ to their or DSE’s satisfaction,
  • On Quolls – there are 75 already protected in EG and that was enough,
  • For the new species of crayfish – it’s still being named and so doesn’t have a prescription for protection and the 100 metre buffer around the creek will protect it
  • Sooty and Powerful Owls – only dusk calls detected but no confirmed nesting or roosting sites so no need to protect. Plus there are enough Sooty Owls Management Areas and Powerful Owl Management Areas, despite some evidence from DSE suggesting the protection zone targets had not been reached.
  • Giant Burrowing Frogs – even if it is high quality and likely habitat, none have yet been detected.
  • Hollow Bearing Trees – logging prescriptions are claimed to look after them.
  • Gliders are there in high numbers, yes – but it’s not for VF to protect them and 100 mts along creek should do anyway.
  • The Precautionary Principle requires caution, but not total infallibility. Actions to express adherence to the PP can be many. VF argued that a 100 metre buffer along the creek was caution enough for all the species.

2nd day of summing up (Wed) –EEG, the plaintiff’s case was presented.

Debbie Mortimer SC argued that:

  • The standards and conditions in the FFG Act Action Statements, Forest Management Plan and the Code of Forest Practices hasn’t been and can’t be complied with by VicForests.
  • VicForests was the “agent of harm” about to begin clearfelling when we applied for the first injunction, and VF was as obliged to adhere to the law for threatened wildlife as was DSE.
  • VF don’t need to have DSE declare a conservation zone for VF to adhere to the law or decide not to log.
  • The Allocation Order (giving forests to VicForests from DSE), Timber Release Plan and the Code (for logging) all mention adhering to the Forest Management Plan.
  • The issue of whether EEG has legal standing to bring the case to court was argued well for showing we did have standing. It had not been objected to by VF strongly before we embarked on the 17 day trial.
  • If various surveys had not have been carried out (owls, Gliders, Crayfish and Potoroos), the court case would not have commenced. Surveys show a genuine interest.
  • Obligation on VF are mandatory – they don’t allow them to ‘duck and weave’ around these obligations.
  • The main law is the Flora and Fauna Guarantee Act – it deals directly with Threatened Species, and binds the state/crown to protect endangered wildlife. The FM Plan and the Code both refer to it.
  • Forests are a community property. Managed for common good into future. DSE’s position in the evidence given by Lee Meizis was that the Timber Release Plan gave ownership of forests to VF to exploit, but with the right to exploit comes responsibilities for conservation.
  • FFG Act has strong ‘must do’ language and is imposed on government authorities. Important objectives of FFGA disregarded by VF. Action Statements within the FFGA are enforceable.
  • Debbie Mortimer said “In every way, VicForests pushed away from its conservation duties” to benefit its access to forests for logging.
  • VF is not abiding by the law by merely reading the Action Statements.
  • Logging high quality Quoll habitat is endangering the animal’s survival. At odds with the Precautionary Principle because this species is only found at a functional level in East Gippsland now.
  • Sustainable Forests (Timber) Act directly forced VF to adhere to the Code. Allocation Order also states VF MUST comply with CFP, PP, AS and FMP.
  • Not complying with the Code was a breach. Acts refer to the Code being adhered to.
  • VF must consider advice from relevant experts in Flora and Fauna. The advice of these internal DSE experts were ‘completely sidelined’ during the process that lead to the decision to clearfell Brown Mountain. It was also claimed that the Minister was not given important information on these species.
  • The 100 mt buffer offered by VF would not protect the Gliders, Quoll, owls, Potoroo and Large Brown Tree Frog and was unknown if it would adequately protect the Giant Burrowing Frog, Brown Mt Crayfish and Square-tailed Kite. Leaving additional large trees while logging and burning the remainder would be unlikely to protect the habitat values of hollow bearing trees (85 out of 207 was all that survived the logged and burnt coupe across the creek in April 2009).
  • The guideline to protect 100 ha for rich populations of gliders is self-regulating and doesn’t need major fuss – just needs to be mapped and complied with.
  • Justice Osborn discussed decent reserve designs and ‘whacking in’ some reserve along the creek.
  • The oft-cited ‘risk-weighted consequences’ of the precautionary principle the VF lawyers used daily, does not mention social or economic ‘balance’ and in context is only about conservation risks and consequences.
  • We are dealing with some species in a demonstrable state of decline. Failure to halt damage is serious. There is lack of scientific certainty as there is no research or info on impact of logging.
  • New reserves mean nothing unless we assess the quality and type of the habitat, logging history etc.
  • BHP was used as an example of a company which must employ specialist ecologists/biologists if it plans to carry out potentially damaging work. VF either needs to employ biodiversity staff, or get in consultants to survey and advise forest planning.
  • Potoroo detections 100% authentic – no questioning by VF of witnesses – fully accepted, yet despite 3 verified detections, VF made no attempt to consult with DSE biologists or protect 50 ha for each as stated in the FFGA.
  • DSE set up its own ‘rules’ outside of existing legislation.
  • DM asked for full injunction to logging.

Day 3 – Thursday – response from Defendant (VF)

  • Having to abide by the SFT Act could mean that every logger, truckie, contractor, roading operator must comply with these laws as well. Does that mean every worker has to set up a biodiversity unit and consult biologists?
  • Argues again, it’s all DSE’s responsibility.
  • Argues that the words for Greater Glider protection in the FMP says “approximately 100 ha” is unenforceable – how much is ‘approximately’?
  • VicForests Lawyers couldn’t find any expert biologists to speak for them. They tried.
  • Not being given the entire potoroo footage was the whole problem.
  • The 400 ha reserve to the (drier, steeper) west is a benefit for all the species.
  • Crays were found in the creek next to a previously logged forest so therefore they can survive OK.
  • Potoroo no 2 (on camera) wasn’t used in original evidence (it was actually discovered after writ was served but this was overlooked by VF lawyers).
  • The hair tube evidence of the Potoroo near proposed coupe 19 didn’t come with a copy of the note when it was sent off for analysis – so how do we know where it really was?

This ended the long trial for the wildlife of Brown Mountain. We await Justice Osborn’s final decision …