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Native forest logging may be near the end thanks to historic court decisions, ‘Precautionary Principle’

by Suzanne Arnold | Aug 5, 2023 | Comment & Analysis, Latest Posts

Due more to the courts than politicians, native forest logging may be nearing an end. Recent court judgements in Victorian Supreme and and Federal courts don’t augur well for the logging industry. Sue Arnold reports.

Legal battles waged by Victorian grassroots conservation organisations have brought the Precautionary Principle (PP) out of the political closet. It is a principle that has long been ignored by governments as it gets in the way of forestry and development projects.

Put simply, the PP means that if logging is likely to cause serious or irreversible harm then it should not happen. Any harvest planning has to take the PP into account. They haven’t to date but the courts are forcing their hand, at least in Victoria, and federally, if not in NSW as yet.

Experts commissioned by conservation organisations in the most recent case against VicForests’ failure to comply with the PP in certain forest compartments with habitats of greater and yellow belly gliders, didn’t mince words in their recent evidence. 

“[Yellow-bellied] Gliders living in coupes harvested in accordance with VicForests’ current practices will probably die as a result of the harvesting operations.” 

Victorian decision resonates

Justice Richards of the Supreme Court found VicForests timber operations did not comply with the PP and threatened the gliders’ survival. An appeal by VicForests was dismissed in June.

It was an historic judgement; legal recognition of a critically important principle, and setting precedents for other legal challenges in Victoria and potentially in NSW.

In July 2022, Justice Mark Moshinsky upheld the Bob Brown Foundation’s (BBF) challenge to a decision made by former environment minister Sussan Ley, finding her department hadn’t applied the precautionary principle critical to the environmental assessment of projects.

The case was based on the federal government’s failure to consider the PP in assessing the environmental impacts of a Chinese mining waste dam project in Tasmania’s Tarkine rainforests.

The BBF says the decision is one of the most significant in environmental law since the inception of the Environment Protection and Biodiversity Conservation (EPBC) Act in 1999.

Justice Moshinsky found that the minister did not properly consider whether there were threats of serious or irreversible environmental damage.  

“This is a huge decision for the environment,” said Brown. “It means that wherever there isn’t sufficient evidence to say that species aren’t going to be driven closer to extinction by a project, that project should wait until that evidence is available.”

NSW handicapped against Victoria in forest stakes

Meanwhile, New South Wales conservation groups and the government are closely watching the increasing number of legal judgements relevant to the timber industry. However, the NSW Forestry Corporation (FC) may feel more comfortable than its Victorian counterparts. 

Victorian state legislation has a mandatory code of practice requiring the application of the Precautionary Principle. This provision opened the door to legal action, allowing VicForests logging of endangered species to be challenged.

NSW groups face stumbling blocks. The principle isn’t mentioned in any approvals of forestry operations. NSWFC has a code of practice for koalas, dated 2014 with no mandatory provisions.   

Last year, former Minister for the Environment, Sussan Ley upgraded koalas in NSW, Queensland and the A.C.T to endangered under the Environment & Biodiversity Conservation Act (EPBC) threatened species lists.  

Has Tanya Plibersek watered down Scott Morrison’s already weak koala protection policy?

No changes in either state or federal legislation resulted in increased protection for koalas and their habitat. A few months later, Ley upgraded the greater glider to endangered, yet another forest fauna species facing extinction.

Logging operations in NSW continue to target forest compartments with known koala hubs and glider habitats. Experts say forest biodiversity hasn’t had time to recover from the Black Summer fires.

A review commissioned by the Environment Protection Agency on the impacts of timber harvesting after the fires estimated it would take 45 years for koalas to recover, noting that 32% of their habitat was burnt at high intensity. 

Significantly increased precautionary measures were recommended by the review. None have yet been implemented. 

NSW forest ecologist David Milledge describes the current ongoing threats to fauna:

“Intensive logging not only threatens biodiversity but also large hollow-bearing trees crucial for the conservation of the threatened Glossy Black-cockatoo, Barking Owl, Powerful Owl, Sooty Owl, Masked Owl, Greater Glider and Yellow-bellied Glider. 

“Smaller hollow-bearing trees are similarly crucial for Little Lorikeet, Turquoise Parrot, Brush-tailed Phascogale, Squirrel Glider and a number of microchiropteran bat species.”

Labor’s splits

But there is little indication of intent to upgrade Labor’s forestry policies at federal or NSW state level. The Guardian reports Labor’s Environment Action Network has pushed for policies in the draft national platform to end native forest logging and broad-scale clearing with the support of 294 branches of the party.   

However, the draft removes a reference in the 2021 platform to addressing the “environmental and climate change impacts of land clearing in the nation’s environmental laws in order to address biodiversity loss and climate change”.

ANU’s Professor David Lindenmeyer says only native forests can remove carbon from the atmosphere at the scale and time required.   In an opinion piece in the Canberra Times Professor Lindenmeyer and co-authors say that “ full protection of native forests – by this we mean a rapid exit from native forest logging – is a critical mitigation action in terms of carbon abatement.“

Dire day for NSW forests as logging monitoring program hit by funding crisis

Sue Arnold is a former Fairfax investigative journalist. Her speciality is environmental issues and she is a regular contributor to Australian and international publications. Sue heads up Australians for Animals Inc., a 32-year-old wildlife charity and is Founder and CEO of the California Gray Whale Coalition based in San Francisco.

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