Kinglake Friends of the Forest v VicForests and
Environment East Gippsland v VicForests
What these cases are about
These cases are about the alleged effect of forestry operations by VicForests on two native species, the Southern Greater Glider and the Yellow-Bellied Glider. The cases were brought separately by two different organisations – Kinglake Friends of the Forest (Kinglake) and Environment East Gippsland (EEG) - but were considered together as the cases were largely identical.
The cases are about the steps required to be taken by VicForests in deciding whether to take specific measures to protect these species from the effects of timber harvesting, and the measures that should be taken.
How native forestry is regulated
The Commonwealth Government manages Australia’s international environmental obligations through the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). This includes the management of activities that are of national significance, including activities that might affect specific threatened species.
VicForests is regulated through a forest management system established under Victorian legislation. Through Regional Forest Agreements (RFA), the Commonwealth and Victorian Governments have agreed that the Victorian system appropriately manages environmental risks in forest areas, providing for a sustainable forest management system. This means that forestry conducted under the Victorian system in areas covered by an RFA are managed under the Victorian legislative and regulatory system instead of the Commonwealth environmental approval system.
This does not mean that forestry operations in State Forests do not need to comply with environmental laws – in fact, the legal requirements for forestry operations in Victoria are very strict and include the need to comply with a comprehensive set of rules designed specifically for timber harvesting, all overseen by the Office of the Victorian Conservation Regulator.
Findings about survey standards
Kinglake and EEG claimed that VicForests needs to conduct surveys across every proposed harvest operation area before determining the measures that should be put in place. Specifically, that surveyors need to conduct night-time spotlight surveys across the entire operational areas that are no more than 50 metres apart and in fact extend beyond the boundary of the area, and that these need to be repeated over 3 nights.
VicForests responded that most surveys are conducted by the Department of Environment, Land, Water and Planning (DELWP) through the Forest Protection Survey Program and that any surveys conducted by VicForests, particularly spotlight surveys, are in accordance with the official survey standards set by the Office of the Conservation Regulator.
The Regulator has explained the purpose of the survey program as follows:
“Our Forest Protection Survey Program (FPSP) aims to detect conservation values such as animals and plants and their habitats that are either threatened or of high conservation value in areas of state forest that are scheduled to be harvested.”
“We can’t expect these measures to protect every individual threatened animal or plant. Instead, the program ensures enough protection of habitat to allow populations to persist in perpetuity.”
This official survey standard for night surveys is to use one pathway across a coupe to assess the relative density of the species. This methodology is not designed to count the absolute number of animals in an area (i.e. a census), it is designed to assess the likely density to determine the relative value of that area to the species (i.e. a sample).
These night surveys are not the primary method used by VicForests to determine the conservation values of a local area. VicForests predominantly uses daytime surveys, particularly focusing on the suitability of vegetation to support threatened species – particularly areas favoured by gliders like gullies and creeks.
VicForests explained that it applies the measures determined appropriate by the Victorian Government and the Regulator whenever these species are likely to be present based on the assessment of the nature of the specific forests area, regardless of detection. VicForests does this because detection surveys, particularly spotlight surveys are imprecise. VicForests explained that this approach will, in the opinion of VicForests, lead to the retention of suitable habitat in areas not currently containing gliders supporting the increase in their population and distribution.
VicForests explained that it also looks for and retains all hollow-bearing trees in habitat clusters that are close enough to other canopy trees to enable gliders to glide to other forested areas.
VicForests further explained that the intensive night surveys of the nature proposed by Kinglake and EEG would unreasonably expose surveyors to physical harm due to the difficult nature of conducting work at this intensity in a forest environment in the dark.
Justice Richards decided that timber harvesting operations cannot be conducted unless the operational area:
"has been surveyed using a reasonably practicable survey method that is likely to: (a) detect any greater gliders that may be present in the coupe and, so far as is reasonably practicable, locate their home ranges; and (b) detect any yellow-bellied gliders that may be present in the coupe and identify their feed trees and hollow-bearing trees in the coupe."
While her Honour did not find that these surveys should necessarily be conducted at night, gliders are nocturnal and sleep inside hollows during the day.
This means that the official surveys done by the Conservation Regulator and the standard developed by the responsible Government agency can no longer be relied on by VicForests. VicForests will be seeking guidance from the Regulator about the survey standard that should now be used.
VicForests will continue to meet its occupational health and safety requirements in the conduct of its operations.
Findings about the actions that should be taken
VicForests’ position is that it follows the legal rules and guidance set by the Victorian Government to manage threats to the Southern Greater Glider and the Yellow-Bellied Glider as a minimum. This includes formal prescriptions in the Code of Practice for Timber Production as well as other Government policy statements (particularly the Greater Glider Action Statement).
VicForests’ also produced a great deal of evidence about the additional measures that VicForests has developed and implemented following the 2019-20 fires. This detailed approach was formally endorsed by the Regulator as meeting the Code requirements. This evidence was not refuted by Kinglake or EEG.
Justice Richards decided that VicForests needs to apply a set of 10 rules, developed by the expert witness engaged by Kinglake and EEG, to decide where this habitat should be. These rules are different to the approach taken by DELWP, the responsible Government agency.
The effect of this is that VicForests cannot rely on compliance with the formal rules set by the Victorian regulator or the policies of the Victorian Government to demonstrate that it is complying with Victorian law.
As the rules set through the Court Orders require a significant level of interpretation, VicForests will be working with the Regulator and relevant experts to attempt to clearly define how the rules might be applied in practice.
As Greater Gliders and Yellow-Bellied Gliders are abundant throughout much of the forest allocated for timber harvesting, most harvest operations are impacted by the Orders, which are outlined below.
VicForests has commissioned experts to develop a new survey method that addresses the requirements of the Court's Orders. This work is nearing completion. In the meantime, we continue to provide compensation to impacted contractors and sawmills and are exploring all avenues to address the supply impacts.