Posted on 16 December 2013.
By KATH GANNAWAY
ENVIRONMENT group MyEnvironment has lost its appeal against a 2012 Supreme Court decision that found in favour of State Government logging arm VicForests.
The decision paves the way for logging to resume in three Toolangi coupes that have been subject to an injunction for the past two years.
It took just minutes on Tuesday, 10 December, for Appeal judges, Honourable Chief Justice Warren, Justice Tate and Associate Justice Garde to deliver their decision to the packed courtroom.
In dismissing the appeal, they said Supreme Court Justice J. A. Osborn got it right when he ruled VicForests was operating within the law in its logging operations in Toolangi.
VicForests and other forest industry groups welcomed the dismissal, saying it showed their operations complied with the legislative requirements around logging.
Environment groups, however, say it shows only that the Flora and Fauna Guarantee Act has failed to guarantee protection for threatened species, including the Leadbeater’s Possum, which is at the heart of the matter.
In a summary of judgement the justices said the proper interpretation of the regulatory instruments was that the zoning for the Leadbeater’s Possum habitat consisted of areas containing mature trees with hollows.
They said the instruments were formulated to achieve a balance between multiple objectives including the competing interests of environmental protection and the continuation of a sustainable timber industry.
“The interpretation urged by MyEnvironment fails to acknowledge that the stringent zoning classification in question is not designed to capture all suitable habitat, but only that which is optimal or with presently existing potential.
“Accordingly, there was no error in the judgment of Justice Osborn and the appeal must be dismissed.”
VicForests General Manager, Nathan Trushell said they had always believed that their operations complied with the legislative requirements and that the findings validated VicForests’ actions under the Central Highlands Forest Management plan and the Leadbeater’s Possum Action Statement.
He said they were committed to assisting in the recovery of the possum as a member of the Leadbeater’s Possum Advisory Group (LPAG), co-chaired by Zoos Victoria and the Victorian Association of Forest Industries (VAFI) which is about to hand down its recommendations to the State Government.
Healesville-based Friends of Forestry and VAFI called on environment groups to stop campaigning and work with the government and the industry to save Leabeater’s Possum.
FoF president Brett Robin said they were “totally supportive of the timber industry efforts to ensure logging operations did not impact on Leadbeater Possum habitat”.
VAFI CEO Lisa Marty said the decision was good news for the thousands of workers employed in the forest and wood products industry and the many communities that relied on it for their livelihoods.
Ms Marty said the decision indicated forests needed to be managed on a landscape scale, rather than looking at individual parts of the forest in isolation.
She said the rigorous and complex regulatory framework included no harvesting of old growth forest in Central Highlands and no harvesting of areas that met the criteria for Leadbeater’s Possum habitat.
My Environment said the Flora and Fauna Act had never before been tested at the level of appeal, and had been found wanting.
In a statement on Wednesday, they said: “This judgement gives the green light to ongoing destruction of Leadbeater’s Possum habitat in Toolangi State Forest” and called on the State Government to urgently review the Flora and Fauna Guarantee Act which they said was incapable of guaranteeing the protection of threatened and other species.
They called on VicForests and its contractors to properly protect all sites in logging coupes that contained known colonies of the possum, including the three Toolangi coupes around which the case was brought, and where they say there is recent film and photographic evidence of LBP activity.
Spokesperson Steve Meacher said live video taken near the Gun Barrel and Freddo coups in recent months was not part of the appeal, but would be a test of VicForests’ commitment to protecting proven Leadbeaters’ habitat.
“Under the current legislation the animal itself is not protected; it’s the habitat that’s protected and then only if it meets the current interpretation of the definition.
“We now have this (decision) that all Leabeater’s habitat does not have to be protected, only the optimum habitat,” he said.
VicForests spokesperson David Walsh told the Mail on Thursday however that while they were aware of the claims of new evidence, they had not seen it.
“We are very keen to understand where these locations are,” he said.
“It’s very disappointing that they seem to have had it (photos and film) for some months, but despite having actively asked for this we are having trouble accessing it.”
MyEnvironment has said it would take time to study the implications of the judgement for the organisation and its members and take advice on future action.
A link to the Court of Appeal decision can be found on the Mail’s website at Starcommunity.com.au