Category Archives: Forests

Aila Keto & Keith Scott

There is a number of studies showing the impacts of selective logging on arboreal marsupials in southern Queensland. This paper presents a review of those studies. The purpose of the paper is principally to address the issue of 40 cm diameter limit harvesting (40 cm+) and its expected impacts on fauna. Hence, there is a focus on logging intensity. Overall, the paper focuses on impacts of logging on the Greater Glider (Petauroides volans) which in 2022 was declared endangered in Queensland and nationally. However, the Greater Glider has been identified as an indicator species of forest disturbance (Kavanagh and Stanton 2005) and if it is being impacted by 40 cm+ logging it is likely that other species are also impacted. A recent global assessment by a large number of herpetologists, including nine Australians, found logging to be high among the main threats to forest-dwelling reptiles (Cox et al. 2022).

Some history

In the final stages of negotiations that led to the 1999 South East Queensland Forest Agreement (SEQFA), Australian Rainforest Conservation Society (ARCS) put forward a proposal to phase out native forest harvesting in the area and transition to hardwood plantations over a 20-year period. The timber industry indicated a preparedness to accept the proposal but on the condition that the phase out occur over 25 years. It had been established that there was sufficient timber outside the proposed immediate additions to the protected area estate to supply the industry for 20 years under the standard harvesting regime current at the time. 

       In order to extend supply for a further five years, forestry officers proposed that 40 cm+ harvesting be applied to certain areas. Conservation representatives accepted the proposal on the grounds that the more intense logging would be over a limited area and the areas would never be logged again. A clause in the SEQFA defines Part A areas, high conservation value forests, where the standard logging regime would be applied.^[1]

       It would appear that the SEQFA was effectively abandoned by the Liberal National Party (LNP) government which was elected in 2012. We understand that shortly after taking office, the LNP government applied 40 cm+ logging across the region as standard practice, including in the Part A areas which were excluded from 40 cm+ logging in the SEQFA.

       When Labor returned to office in 2012, it did not reverse the LNP decision but continued to apply the more intensive 40 cm+ harvesting regime across the south-east Queensland supply zone including the Part A areas. Further, an even more intensive 30 cm diameter limit harvesting regime has apparently been used in some areas. ARCS has submitted a Right to Information request to try to establish when and why this regime was introduced and where it has been applied.

The Code of practice

Native forest logging in Queensland is subject to the Code of practice for native forest timber production on Queensland’s State forest estate 2020 (the Code). The Code requires retention of six live habitat trees and two recruitment habitat trees within the range of the Greater Glider and four live habitat trees and one recruitment habitat tree per hectare in hardwood forests outside the Greater Glider range.

       The Code refers to Species Management Profiles (SMP) as being designed to meet statutory requirements. The SMP for the Greater Glider does not provide any management provisions beyond those within the Code itself and notes that the Code “requires an increased retention and protection of large hollow-bearing trees as habitat and selective harvesting regime that retains structure and species mix of forest”. Whereas the Objective of the Code is to “ensure the forest can, in time, recover its pre-harvesting species composition, structure and function”, there is no specific provision to retain forest structure and species mix.

       We note that the SMP for the Greater Glider was prepared by the Department of Agriculture and Fisheries, presumably by Forest Products unit.

Statutory obligations

The Nature Conservation (Animals) Regulation 2020 (the Regulation) defines the management intent for endangered wildlife which includes (Schedule 1, section 26(i)) “to protect the critical habitat, or the areas of major interest, for the animal”. 

       The term ‘critical habitat’ is defined in the Nature Conservation Act 1992 as “habitat that is essential for the conservation of a viable population of protected wildlife” which can include areas where the wildlife is not currently present. An ‘area of major interest’ is defined as “an area that contains natural resources of significant nature conservation value”.

       The Queensland Herbarium has mapped modelled Greater Glider habitat in Queensland (Eyre et al. 2022). The map in Appendix 1 was prepared by ARCS from data provided by Queensland Herbarium and shows a significant area of habitat occurs within State Forests in southern Queensland.

       The Regulation (section 26(j)) also proposes the following requirement:

• to monitor and review environmental impact procedures to ensure they —
  • accurately assess the extent of the impact, on the animal, of the activities to which the procedures relate; and
  • provide for effective measures to mitigate any adverse impact of the activities on the animal; and
  • o if there is an adverse impact of the activities on an area in which the animal normally lives, provide for the enhancement of other areas where the animal normally lives.

It is not clear that 40 cm+ harvesting meets the statutory obligations. This is discussed later in this paper.

Impacts of logging on Greater Glider habitat in southern Queensland

A range of studies has shown Greater Glider occupancy to be influenced by logging disturbance, particularly because of a reduction in hollow-bearing trees and the loss of old-growth forest e.g., Lunney et al. (1987) and Lindenmayer et al. (1990). Incoll et al. (2001) showed the abundance of greater gliders in the montane forests of the Victorian Central Highlands was significantly related to the overstorey basal area, a parameter that, in turn, relates to the intensity of logging.

       Eyre (2006) studied habitat selection of the Greater Glider in southern Queensland, specifically the South East Queensland and Brigalow Belt Bioregions. Eyre modelled Greater Glider habitat based on glider numbers and habitat attributes recorded at 428 sites across the study area. The most significant feature in habitat selection by greater gliders was found to be the number of live hollow-bearing trees. The model predicted that three hollow-bearing trees per hectare were required to maintain one glider per 3 hectares. However, the study found the mean number of live hollow-bearing trees in glider habitat types in southern Queensland was 2.2 ± 0.1. Eyre noted the difficulty in locating the number of hollow-bearing trees required by the Code to be retained during harvesting.

       The model predicted a negative response of greater gliders to more intensive logging. It also predicted that Corymbia citriodora (Spotted Gum) and Eucalyptus tereticornis (Queensland Blue Gum) were important in glider habitat selection. Both are favoured timber species.

       This study also concluded that at least 85% of the original basal area needs to be retained to maintain at least one glider per 3 hectares. We are not aware of the basal area retention limit currently applied under 40 cm+ harvesting but the Code envisages removal of greater than 50% of basal area.

       As a summary statement, Eyre concluded “The introduction of a new, more intensive harvesting regime in areas of greater glider habitat in south-east Queensland will therefore have a significant impact on glider populations, unless current habitat tree prescriptions are adjusted to specify the retention of large C. citriodora and E. tereticornis trees, and species that rapidly form hollows.”

Impacts of logging on Greater Glider habitat in the Western Hardwoods area

Eyre et al. (2010) studied the impacts of forest management on forest structure in the Brigalow Belt South Bioregion. This region includes the major part of the Western Hardwoods Area (Western Hardwoods Supply Zone). The study aimed to determine the response of a range of habitat features to variation in disturbance history and intensity at the stand scale. Timber harvesting was one disturbance considered. A total of 120 sites was studied.

       The mean number of live trees with hollows across the study area was 4.0 ± 0.4 per hectare. For harvesting in this area, the Code requires retention of six live habitat trees and two recruitment habitat trees per hectare.

       The study found that live trees of the five most common species were more likely to have hollows if the diameter at breast height (DBH) was greater than 60 cm.

       Disturbance variables selected for the study included time since logging and logging intensity. The latter was determined as the ratio of basal area removed (stumps) to total basal area (live trees plus stumps). Data from the sampled sites were used to model the response of habitat features to the disturbance variables. With respect to impacts of timber harvesting, logging intensity was the most important variable affecting the abundance of hollow bearing trees and large living trees. Time since logging was a very poor predictor of the abundance of the relevant habitat features. This can be explained by the extremely slow recovery of habitat features as a result of the slow growth rates in the region because of the low rainfall compared to coastal areas.

       The results of this study raise serious concerns about the impacts of 40 cm+ logging, and especially 30 cm+ logging, on habitat quality for the Greater Glider in the Western Hardwoods Area in particular but also in South East Queensland where 40 cm+ logging is being practised.

       It is noted that the Federal Government’s recently released 2022–2032 Threatened Species Action Plan — Towards zero extinctions includes Brigalow country, Queensland as a Priority Place.

Queensland Herbarium recommendations regarding habitat for the Greater Glider

In 2022 Queensland Herbarium published a report Guide to greater glider habitat in Queensland (Eyre et al. 2022)(the Guide) which was prepared for the federal Department of Agriculture, Water and the Environment.

       Six tree species were identified as dominant or co-dominant in habitat of the Greater Glider — Corymbia citriodora(Spotted Gum), Eucalyptus moluccana (Gum-topped Box), E. tereticornis (Queensland Blue Gum or Forest Red Gum). E. crebra (Narrow-leaved Ironbark), C. intermedia (Pink Bloodwood) and E. portuensis (White Mahogany). All of these species are used for timber with Spotted Gum representing around 70% of hardwood log timber produced from State-owned forests (State of Queensland 2016).

       The Guide notes that trees preferentially selected by greater gliders for foraging are generally greater than 30 cm DBH and greater than 50 cm DBH for denning.

       Whereas hollow-bearing trees are an essential habitat feature for greater gliders, a review of the literature (Eyre et al. 2022) found there is high variability and low reliability in ground-based detection of tree hollows. In studies carried out in European forests, Cosyns et al. (2020) illustrated bias among observers. The researchers compared habitat tree selection by a group of foresters with that by a group of conservationists. Foresters typically chose smaller trees with low commercial value while conservationists chose large trees with high commercial value.

       It is now generally considered that tree size is a better indicator of habitat and the authors conclude that retention of an adequate resource of appropriately large sized trees is critical for maintaining populations of the Greater Glider. The authors note that the number of hollow-bearing trees is no longer accepted as an attribute in condition assessments in Queensland. This is also the case in New South Wales where the attribute ‘number of trees with hollows’ has been replaced by the attribute ‘number of large trees’ in determining native vegetation integrity benchmarks (Office of Environment and Heritage 2017).

       The Guide determined thresholds and benchmarks for large trees based on data for regional ecosystems considered to be habitat for the Greater Glider. Data for southern Queensland were considered adequate to determine thresholds and benchmarks. In South East Queensland, Brigalow and New England Tableland bioregions, the DBH threshold for large trees averaged around 46 cm, ranging from 35 to 61 cm. The average density of large trees varied between bioregions, being 32 per hectare in South East Queensland and 15 per hectare in the Brigalow Belt.

       The Guide provides a number of recommendations, two of which have implications for timber harvesting regimes:

• densities of hollow-bearing trees should not be used to define whether an area is greater glider habitat or not habitat,
• improve reliability for indicating greater glider habitat or potential habitat by measuring densities of ‘large trees’.

Victorian Supreme Court decision

Environment East Gippsland Inc and Kinglake Friends of the Forest Inc sought declarations and permanent injunctions in the Supreme Court of Victoria to enforce VicForests to identify and protect greater gliders and yellow-bellied gliders in State forests in East Gippsland and Central Highlands. On 4 November 2022, Justice Richards handed down her judgment based on the expert ecological evidence presented in the hearings. The judgment, which can be downloaded at https://arr.news/wp-content/uploads/2022/11/2022VSC668.pdf,  can be summarised as follows:

• VicForests must carry out surveys to detect the presence of the gliders in any coupe proposed for logging,
• harvesting operations must exclude from logging an area equivalent to the home range of the species (~3 ha) around the point of detection, and
• harvesting operations must retain at least 60% of the basal area of eucalypts in the harvested area.

Climate change

The Conservation Advice (Department of Climate Change, Energy, the Environment and Water 2022) considers climate change as a major threat to the Greater Glider. The species is vulnerable to high temperatures and low water availability (Rübsamen et al. 1984). The sensitivity of greater gliders to heat may explain the species preference for higher elevations (Moore et al. 2004).

       This sensitivity to heat and preference for higher elevations indicates the importance of areas such as Bigge, Expedition, Dawson and Coominglah Ranges and the State forests that occur on those ranges (Presho, Theodore, Belington Hut, Mt Nicholson, Expedition, Shotover, Arthurs Bluff, Dawson Range, Coominglah (northern part) and Grevillea State forests). All these areas are mapped, at least in part, as greater than 80% greater glider habitat (Eyre et al. 2022 and Appendix 1). These areas in the Western Hardwoods supply zone may have been subject to 30 cm+ logging.

The Precautionary Principle

The Precautionary Principle has been the subject of numerous discussions. The Queensland Planning Act 2016 defines the Precautionary Principle thus: “the lack of full scientific certainty is not a reason for delaying taking a measure to prevent degradation of the environment if there are threats of serious or irreversible environmental damage”.

       Regarding the impacts of 40 cm+ logging on the endangered Greater Glider, it may be debated as to whether there is “full scientific certainty”. However, the evidence considered here clearly indicates a threat of serious damage to greater glider habitat. Whereas that damage may not be irreversible in the longer term, it is likely to persist for decades. Application of the Precautionary Principle requires measures to be taken to prevent further habitat degradation.

       The Precautionary Principle featured prominently in the Victorian Supreme Court case cited above. Justice Richards made the following judgment:

In order to apply the precautionary principle to the conservation of greater gliders and yellow-bellied gliders, VicForests must survey the whole of any coupe proposed for harvest which may contain glider habitat. It must do so using a survey method that is likely to detect any gliders that may be present in the coupe, so as to locate the gliders’ home ranges wherever practicable. This is necessary in order that their essential habitat can be excluded from timber harvesting operations, as the precautionary principle requires.

In contrast to the procedures now required to be followed by VicForests, in Queensland neither the Code nor the SMP for the Greater Glider require any assessment of the presence of the species prior to logging.

       It should be noted that VicForests has replaced clear-fell harvesting with variable retention harvesting which aims to retain key elements of stand structure in islands and patches. Justice Richards concluded that the available evidence is that variable retention harvesting is of no short- or medium-term benefit to the gliders.

Discussion

It is well established that the Greater Glider is sensitive to logging (Lunney 1987, Lindenmayer et al. 1990, Incoll et al. 2001). The Conservation Advice that led to uplisting of the Greater Glider to endangered status defines timber harvesting as a major threat (Department of Climate Change, Energy, the Environment and Water 2022).

       The studies reviewed here have findings directly relevant to the impact of 40 cm+ logging on habitat for the Greater Glider:

• in southern Queensland there is a deficit in hollow-bearing trees which are an essential habitat attribute for the Greater Glider,
• even where sufficient hollow-bearing trees can be retained to meet the Code requirements, 40 cm+ logging will deplete the resource of larger trees required to develop hollows in the future,
• greater gliders respond negatively to more intense logging,
• tree species that are important in habitat selection by greater gliders, particularly species favoured for foraging, are species sought by the timber industry,
• the Code does not include any specific provisions designed to maintain species mix,
• greater gliders preferentially select trees greater than 30 cm DBH for foraging,
• the foraging resource will be depleted by 40 cm+ logging (and especially by 30 cm+ logging).

The Guide makes a number of recommendations relevant to the issues being considered here. Whereas these recommendations are not directly related to logging, they define the habitat attributes that are necessary to maintain an area of forest as habitat for the Greater Glider.

       It can reasonably be concluded from available evidence that 40 cm+ logging in many areas will lead to a loss of essential habitat attributes for the Greater Glider and the species will no longer be able to occupy the logged forest.

       The recommendations in the Guide also have significant implications for the Code. It depends on assessment of tree hollows from the ground. Such assessment is shown to be unreliable and should not be used in assessing habitat attributes. Instead, the density of large trees (>46 cm DBH in southern Queensland) should be used. Given that 40 cm+ logging aims to remove all merchantable trees 40 cm DBH or larger (apart from the required number of habitat and recruitment trees), it is clear that the provisions of the Code will not maintain habitat for the Greater Glider where 40 cm+ logging occurs.

       Given that available evidence supports the conclusion that 40 cm+ logging is negatively impacting greater glider habitat, it can reasonably be considered that the Queensland Government is not meeting its statutory obligation regarding the management intent for endangered wildlife as defined in the Regulation (Schedule 1, section 26(i)), namely, “to protect the critical habitat, or the areas of major interest, for the animal”.

Conclusion

It is clear from the considerable volume of evidence available from studies in southern Queensland and elsewhere that 40 cm+ logging will have significant negative impacts on habitat of the endangered Greater Glider and the species is likely to become locally extinct in a significant part of its range in the Brigalow Belt South and South East Queensland bioregions.

       The evidence-based recommendations from the Queensland Herbarium require an urgent review of the Code of practice.

       The available evidence indicates that the State of Queensland is not meeting the statutory requirement “to protect the critical habitat, or the areas of major interest” in respect to the endangered Greater Glider.

References

Cox, N., Young, B. E., Bowles, P., Fernandez, M., Marin, J., Rapacciuolo, G., Böhm, M., Brooks, T. M., Hedges, S. B., Hilton-Taylor, C., Hoffmann, M., Jenkins, R. K. B., Tognelli, M. F., Alexander, G. J., Allison, A., Ananjeva, N. B., Auliya, M., Avila, L. J., Chapple, D. G., Cisneros-Heredia, D.F., Cogger, H.G., Colli, G.R., de Silva, A., Eisemberg, C.C., Els, J., Fong G, A., Grant, T.D., Hitchmough, R.A., Iskandar, D.T., Kidera, N., Martins, M., Meiri, S., Mitchell, N.J., Molur, S., Nogueira, C. de C., Ortiz, J.C., Penner, J., Rhodin, A.G.J., Rivas, G.A., Rödel, M.O., Roll, U., Sanders, K.L., Santos-Barrera, G., Shea, G., Spawls, S., Stuart, B.L., Tolley, K.L., Trape, J-F., Vidal, M.A., Wagner, P., Wallace, B.P. and Xie, Y. 2022. A global reptile assessment highlights shared conservation needs of tetrapods. Nature 605, 285–290.

Cosyns, H., Joa, B., Mikoleit, R., Krumm, F., Schuck, A., Winkel G., and Schulz, T. 2020. Resolving the trade-off between production and biodiversity conservation in integrated forest management: comparing tree selection practices of foresters and conservationists. Biodiversity and Conservation 29, 3717–3737.

Cosyns, H., Kraus, D., Krumm, F., Schulz, T. and Pyttel, P. 2018. Reconciling the tradeoff between economic and ecological objectives in habitat-tree selection: a comparison between students, foresters, and forestry trainers. Forest Science 65, 223-234

Department of Climate Change, Energy, the Environment and Water 2022. Conservation Advice for Petauroides volans (greater glider (southern and central)).

Eyre, T.J. 2006. Regional habitat selection of large gliding possums at forest stand and landscape scales in southern Queensland, Australia I. Greater glider (Petauroides volans). Forest Ecology and Management 235, 270–282.

Eyre, T.J., Butler, D.W., Kelly, A.L. and Wang, J. 2010. Effects of forest management on structural features important for biodiversity in mixed-age hardwood forests in Australia’s subtropics. Forest Ecology and Management 259, 534–546.

Eyre, T.J., Smith, G.C., Venz, M.F., Mathieson, M.T., Hogan, L.D., Starr, C., Winter, J. and McDonald, K. 2022, Guide to greater glider habitat in Queensland, report prepared for the Department of Agriculture, Water and the Environment, Canberra. Department of Environment and Science, Queensland Government, Brisbane. CC BY 4.0. Available at https://www.awe.gov.au/environment/epbc/publications.

Incoll, R.D., Loyn, R.H., Ward, S.J., Cunningham, R.B., Donnelly, C.F. 2001. The occurrence of gliding possums in old-growth forest patches of mountain ash (Eucalyptus regnans) in the Central Highlands of Victoria. Biological Conservation 98, 77–88.

Kavanagh, R.P. and Stanton, M.A., 2005. Vertebrate species assemblages and species sensitivity to logging in the forests of north-eastern New South Wales. Forest Ecology Management 209, 309–341.

Lindenmayer, D.B., Cunningham, R.B., Tanton, M.T., Smith, A.P., Nix, H.A. 1990. Habitat requirements of the mountain brushtail possum and the greater glider in the Montane Ash-type eucalypt forests of the Central Highlands of Victoria. Australian Wildlife Research 17, 467–478.

Lunney, D. 1987. Effects of logging, fire and drought on possums and gliders in the coastal forests near Bega, NSW. Australian Wildlife Research 14, 263–274.

Moore, B.D., Wallis, I.R., Marsh, K.J. and Foley, W.J. 2004. The role of nutrition in the conservation of the marsupial folivores of eucalypt forests, in D. Lunney (ed) Conservation of Australia’s Forest Fauna. Second edition. pp 549–575.

Office of Environment and Heritage 2017. Native Vegetation Integrity Benchmarks: An information sheet.

Rübsamen, K., Hume, I.D., Foley, W.J. and Rübsamen, U. 1984. Implications of the large surface area to body mass ratio on the heat balance of the greater glider Petauroides volans. Journal of Comparative Physiology, B-Biochemical, Systemic, and Environmental Physiology 154, 105–111.

State of Queensland 2016. Queensland Forest and Timber Industry. An overview.

Smith, G.C., Mathieson, M. and Hogan, L. 2007. Home range and habitat use of a low-density population of greater gliders, Petauroides volans (Pseudocheridae: Marsupialia), in a hollow-limiting environment. Wildlife Research 34, 472–483.

Appendix 1

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^[1] Part A areas were initially considered for inclusion in the protected area additions. Conservation representatives accepted their exclusion given the ‘safeguards’ incorporated in the Agreement including the first-right-of-refusal for the State to buy out sawmills that came up for sale and a ‘logging as a last resort’ condition.

In Rainforest News 68, we reported the decision of the Federal Court that logging in the Central Highlands of Victoria required approval of the Federal Minister for Environment. The decision was handed down in May 2020.

The agency responsible for management and sale of timber resources in Victoria, VicForests, appealed the decision. On 10 May 2021, the Full Bench of the Federal Court handed down its decision upholding VicForests’ appeal ruling that forestry operations in the Central Highlands did not require Federal approval.

Central to the issues are (1) the fact that logging is being carried out under the Central Highlands Regional Forest Agreement (CH RFA), and (2) the impact of logging on the Greater Glider and Leadbeater’s Possum. The Greater Glider is listed as ‘vulnerable’ and Leadbeater’s Possum as ‘critically endangered’ under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

The figure below illustrates the decline in the populations of Greater Glider in the Central Highlands.

Section 38(1) of the EPBC Act requires that forestry operations must be undertaken “in accordance with an RFA” in order to be exempt from the provisions of the Act requiring approval by the Minister, including Section 18 which relates to listed threatened species and endangered ecological communities. In the original court proceeding, the parties agreed to consider the question whether forestry operations in the Central Highlands were being carried out “in accordance” with the CH RFA and therefore were exempt from Section 38 of the EPBC Act.

The CH RFA states “The Parties agree that State Forest outside the CAR Reserve System is available for timber harvesting in accordance with the Central Highlands Management Plan and the Code of Forest Practices for Timber Production.”

The Federal Court action was taken against VicForests by Friends of Leadbeater’s Possum. In her decision, Justice Debra Mortimer SC found that “in accordance with an RFA” as required by Section 38(1) of the EPBC Act included conforming with the Forest Management Plan and the Code of Forest Practices for Timber Production which are accredited by the Commonwealth under the RFA. Clause 2.2.2.2 of the Code, which is a Mandatory Action under the Code, refers to application of the precautionary principle:

The precautionary principle must be applied to the conservation of biodiversity values. The application of the precautionary principle will be consistent with relevant monitoring and research that has improved the understanding of the effects of forest management on forest ecology and conservation values.

Judge Mortimer considered that VicForests should have, but did not, apply the precautionary principle with respect to the impact of logging on the Greater Glider and Leadbeater’s Possum. Hence, she concluded that the forestry operations were not carried out in accordance with the RFA and therefore were not exempt from Section 38(1) of the EPBC Act.

The judges determined that the words “in accordance with” were meant to be descriptive of the forestry operations and that as long as the forestry operations were carried out within the RFA area they would be “in accordance with an RFA”.

That is to say, a contravention of a condition of permissibility of the conduct of the forestry operation does not mean that the operation is prohibited by the RFA. Again, the focus of the statutory text is on the geographical area on which the RFA permits forestry operations and not the restrictions, limits, prescriptions, or contents of the Code or an RFA.

In light of these reasons, the primary judge’s finding (Separate Question reasons at [155]) that the actual conduct of forestry operations (being an action for the purposes of the EPBC Act) must be undertaken in accordance with the contents of the CH RFA – that is, in accordance with any restrictions, limits, prescriptions, or contents of the Code – in order to secure the benefit of the exemption in s 38(1) cannot be sustained.

The Court noted the Objects of the EPBC Act are, inter alia, “to provide for the protection of the environment, especially those aspects of the environment that are matters of environmental significance” and recognised that the Greater Glider and Leadbeater’s Possum are “matters of national environmental significance”. These species therefore should be protected by provisions of the EPBC Act. However, the Court noted another of the Objects of the Act is to “to assist in the co-operative implementation of Australia’s international environmental responsibilities”. They argue that it is the responsibility of the Victorian Government to ensure that it complies with the expectations of the Commonwealth. The conclusion is that compliance with the Code of Forest Practices is not a matter for the Federal Court.

Friends of Leadbeater’s Possum are considering appeal to the High Court.

Prior to the decision of the Full Bench, Senator Bridget Mackenzie introduced a Bill into the Senate which proposes to remove the words “in accordance with an RFA” from both the EPBC Act and the Regional Forests Agreements Act (2002).

 On 27 May, the Federal Court handed down a decision that could have very significant implications for native forest logging in Australia. The case was brought by Friends of Leadbeater’s Possum against VicForests, the agency responsible for management and sale of timber resources in Victorian State Forests. 

The legal action related to the impact of forestry operations on the Greater Glider and Leadbeater’s Possum in 66 coupes in the Central Highlands. The Greater Glider is listed as ‘vulnerable’ and Leadbeater’s Possum as ‘critically endangered’ under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). 

The areas in question are covered by the Central Highlands Regional Forest Agreement (RFA). 

 Background to RFAs 

There are 10 RFAs around Australia, five in Victoria, three in New South Wales, one each in Tasmania and Western Australia. They are agreements between the Commonwealth and the State Governments and were signed between 1997 and 2001. There was an RFA process for South East Queensland but it did not end in an agreement— conservation groups led by ARCS rejected the Federal Government’s proposal and persuaded the Beattie Government to develop a State agreement which eventuated as the South East Queensland Stakeholder/Government Forests Agreement. 

The RFAs came out of the National Forest Policy which was agreed between the Commonwealth and the States in 1992. The 1980s and 90s were the times of the “forest wars”. In 1995, a convoy of logging trucks blockaded Parliament House.

Prime Minister Paul Keating was determined to get the Commonwealth out of the picture and instituted the RFA process. The intention was that these agreements would put an end to the “forest wars”. That was not to be. 

The EPBC Act 

A contentious component of the agreements was that forestry operations carried out under an RFA would be exempt from provisions of the Federal Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) including provisions relating to the protection of threatened species. Such species were supposedly to be protected by provisions within the RFAs. These matters were central to the Federal Court’s deliberations. 

 The decision 

Presiding over the Federal Court case was Hon. Justice Debra Mortimer SC. The case involved numerous hearings and stages. In 2018, Judge Mortimer set up a “Separate Question” which was whether VicForests’ forestry operations had the benefit of the exemption in section 38(1) of the EPBC Act. Under the RFA, the Commonwealth accredits the forest management system which includes the Forest Management Plan and the systems and processes established by the Code of Forest Practices for Timber Production. This is the basis for the exemption from section 38(1) of the EPBC Act. 

In relation to the Separate Question, Friends of Leadbeater’s Possum argued that the five-yearly reviews required by the RFA had not been carried out and therefore the exemption did not apply. VicForests argued that as long as forestry operations are conducted within the RFA region the exemption of s 38(1) applies. 

Judge Mortimer rejected both arguments noting in regard to VicForests’ argument that, for the exemption to apply, forestry operations must be undertaken in conformity with the systems of forest management accredited by the RFA. 

A significant focus of the court proceedings was the Code of Practice for Timber Production. Clause 2.2.2.2 of the Code states “The precautionary principle must be applied to the conservation of biodiversity values.” 

For the purposes of the court process, the 66 coupes were divided into Logged Coupes and Scheduled Coupes. Judge Mortimer made the following decision: 

In undertaking forestry operations in the Logged Glider Coupes, VicForests did not apply the precautionary principle to the conservation of biodiversity values in those coupes, as it was required to do by cl 2.2.2.2 of the Code of Practice for Timber Production 2014. Specifically, on the applicant’s case, VicForests did not apply the precautionary principle to the conservation of the Greater Glider as a threatened species present in, and using, the forest in thosecoupes. Accordingly, in relation to the forestry operations undertaken by VicForests in the Logged Glider Coupes, its conduct was not covered by the exemption in s 38(1) of the EPBC Act.

 

Judge Mortimer made a similar decision regarding the Scheduled Coupes arguing that VicForests “is unlikely to apply the precautionary principle to the conservation of biodiversity values in those coupes”. 

Based on those arguments, Judge Mortimer concluded that each forestry operation in each of the 66 coupes is an “action” under the EPBC Act. That means that the forestry operations require the approval of the Federal Minister for Environment, presently Hon. Sussan Ley MP. 

Judge Mortimer has given the parties an opportunity to agree on the appropriate orders the court should make. If there is no agreement, the parties may make short submissions and the court will decide on the final orders. 

Other observations by the Judge 

Judge Mortimer made some general observations that illustrate common issues with native forest logging. At the risk of boring readers with details, they are reproduced below. 

First, what the evidence in this proceeding has demonstrated is that the protection and conservation of biodiversity values – in this case relevantly the two listed threatened species in issue – is essentially a practical matter. Although policies and planning are important precursors and elements in protection and conservation, what happens on the ground in the native forest which supports and encompasses those values is how protection and conservation are achieved. Relevantly to the issues in this proceeding (rather than the wider biodiversity values protected by other aspects of the EPBC Act), understanding a native forest as a living, changing, finely balanced and often vulnerable ecosystem, and understanding the way in which all flora and fauna species in fact (rather than theory) use and depend on that native forest, are what best informs protection and conservation of, and the avoidance of adverse impacts on, those species. The evidence demonstrates the need for this approach is acute when dealing with listed threatened species. 

The second observation addressed the argument put by VicForests that their decisions had “struck a balance between conservation measures and those that relate to the commercial use and exploitation of forest resources in State Forests” and that where there were “value judgments” to be made about that balance, those judgments were the “province of the legislature or the executive rather than the judiciary”. The judge responded arguing that 

the Court’s function is to determine, on the evidence, whether the applicant has proven, on the facts and on the law as applied to those facts, its allegations against VicForests …. Contrary to VicForests’ submissions, there is a significant factual aspect to the applicant’s allegations, which as a trial court, the Court must decide. It necessarily involves examining the competing evidence (including expert opinion evidence) about topics which are the product of wider policies and practices, and factual topics of more general application. In performing its task, the Court acts on the evidence before it, taking account of the submissions made. Where the legal and statutory framework which the Court must consider, by reason of the parties’ respective cases, includes matters of degree, or has some qualitative or evaluative element, the determination of those matters is part of the exercise of judicial power, and not outside it. 

The third observation related to the inherent contradiction in the role of VicForests — and all other forestry agencies. 

On the one hand, it is required to conduct forestry operations in Victoria’s native forest, rather than only in plantations. That native forest is identified as an available timber resource, indeed a principal available timber resource in Victoria, for VicForests to perform its commercial forestry function, as conferred by statute. On the other hand, VicForests is required by law to conduct those forestry operations in a way which avoids and mitigates adverse impacts on a wide range of biodiversity values, a range that is much wider than listed threatened flora and fauna species, but includes them. As I explain later in these reasons and as both VicForests and various reviewing bodies have recognised, for listed threatened species which are highly dependent on the very native forest which is to be subject to forestry operations, and for whom recovery out of the status of being a threatened species is expressed to be an objective, the avoidance of adverse impacts in a real world sense (rather than just an aspiration) inevitably involves compromising available commercial timber resources. Hence the conflict, which may explain (but not necessarily justify) why the actual conduct of forestry operations on the ground often cannot meet the conservation and protection obligations imposed by law.” 

Broader implications of the decision 

Implications for forestry operations in other RFA areas in Victoria, New South Wales, Tasmania and Western Australia arise from the finding that where forestry operations do not conform with management prescriptions included in the RFA, they could be found to be “actions” under the EPBC Act and require approval of the Federal Minister, Sussan Ley. 

According to The Guardian, a spokesman for Minister Ley said the Department would “carefully consider the Federal Court’s 450 page judgment, noting that formal orders are yet to be made” and that the findings “will require detailed consideration before the department can discuss possible implications”. 

Keith Scott