Tasmanian Oak, which is typically abbreviated as Tassie Oak, does not exist as a real tree, but as a contrived timber flooring brand marketed to household consumers by the timber industry.
The trees sourced to produce Tassie Oak Flooring are from old growth Tasmanian native forests that are either Eucalyptus delegatensis (Alpine Ash), or Eucalyptus obliqua (Stringybark or Messmate) or else Eucalyptus regnans (Mountain Ash or Swamp Gum).
Eucalyptus Regnans is the largest flowering plant and hardwood tree in the world. Historically, it has been known to attain heights over 100 meters (330 ft) and is one of the highest tree species in the world. The tallest measured living specimen, named Centurion, stands 99.6 meters tall in Tasmania.
Eucalyptus regnans
before becoming someone’s Tassie Oak floor
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Tasmania is well known to travellers looking for pristine beauty and unspoiled wilderness. Besides unique flora and fauna including the endangered Tasmanian Devil, it is also home to the giant Eucalyptus. Tasmanian Tourism is all about marketing spin hiding the clearfelled old growth just out of sight of the tourist road. Visit Mount Field and wonder over the majesty of the old growth, but dare not venture beyond to the tragic scale of wanton clearfell.
The reality is that Australian Forestry Standard (AFS) “Chain of Custody” eco-label is an exploitative con by the timber industry.
On Forestry Tasmania’s website ‘Island Specialty Timbers’ at Geeveston claims to be a licensed Chain of Custody member, FTT CoC 08005, “which is your guarantee that all our raw material and products are Tasmanian fine timbers sourced from forests whose management is certified to the Australian Forestry Standard”.
Only ‘sawlog’ sections of MATURE large hardwood trees are suitable for flooringIf there are no branch knots in the timber, then the timber has come from the trunks of mature large hardwood trees.Such trees are not from plantations, but from rare and disappearing forest habitat.
Forestry Standard AS 2796 ‘Sawn and Milled Native Hardwoods’ is the driving force for logging old growth habitat.
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The supplier ‘Fine Timber Tasmania Inc.’ sells Tasmanian Myrtle (Myrtle Beech), Southern Sassafras, Leatherwood, Cheesewood, Musk, Blackwood, Eucalypt Burl, Figured Eucalypt, Huon pine, Celery Top Pine and King Billy Pine as ‘certified’.
The products of these ancient tree species are timber beams, posts, slabs and even raw logs – which simply can only come from old growth Tasmanian native forests.
Certification is AFS (Australian Forestry Standard) which has two separate standards
Sustainable Forest Management (SFM) Certification – Australian Standard AS 4708
Chain of Custody Certification (CoC) – Australian Standard AS 4707
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The only benefit seems to be so that some developer and real estate agent can say hey your floorboards come from Tasmanian Old Growth and you are part of the problem; part of the Chain of Ecological Destruction, driving demand that sustains 20th Century Industrial Native Logging.
To all but the exploitation deniers, the demise of industrial logger Gunns this week was a fait accompli about a case of insular management obstinately pursuing an unsustainable business model.
Gunns plans for industrial deforestation have deservedly been condemned to civilised obsolescence like the Atlantic Slave Trade and the Fur Trade before it.
The industrial culture of taming Nature as if Man needed to compete
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Gunns employees, contractors, suppliers, investors and lenders have all been in denial – ‘market denial‘ – a story of “corporate arrogance, complacency, denial and hubris“.
And the Tasmanian and Australian parliaments have been equally negligent in delaying the implementation of their 2011 ^TasmanianForestsIntergovernmentalAgreement to transition Tasmanians out of this dying native timber industry, as well as shunning their broader social responsibilities to dependent communities.
Gunns Pulp Mill Site
Tamar Valley, Tasmania
(an ideal job for Planet Ark to make amends)
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They have allowed the problem to fester and to escalate. So now the inevitable crash has been all the more severe for all involved. This is a classic failure of leadership and of a parochial culture locked in 20th Century exploitism and despondently lost trying to find sustainable profit in a more complex and very different 21st Century.
A puppet passing the buck
Tasmanian Premier Lara Giddings tactically softens the crash: “this does not mean that the pulp mill project itself is dead”
(famous last words in Tasmania’s Parliament, last Tuesday)
[Source: ‘Giddings: Gunns ‘not the end’ of pulp mill project’, 20120925,
^http://www.abc.net.au/news/2012-09-25/giddings-not-the-end-of-pulp-mill-project/4279564]
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‘The story of Gunns is a parable of corporate hubris. You can, as they did, corrupt the polity, cow the media, poison public life and seek to persecute those who disagree with you. You can rape the land, exterminate protected species, exploit your workers and you can even poison your neighbours. But the naked pursuit of greed at all costs will in the end destroy your public legitimacy and thus ensure your doom. Gunns was a rogue corporation and its death was a chronicle long ago foretold. The sadness is in the legacy they leave to Tasmania—the immense damage to its people, its wildlands, and its economy.’
Ta Ann Tasmania now remains the major driver of logging operations that continue to destroy large areas of old growth and high conservation value forests in Tasmania. Ta Ann Holdings is a Malaysian-based multinational logging and timber products company.
The Ta Ann Group has a track record of rainforest destruction and human rights violations in the Malaysian state of Sarawak.
The Ta Ann Group’s operations began in 1985 when a subsidiary was granted a 257,604 acre concession to extract timber in the Kapit District, in the Malaysian state of Sarawak. In recent years the conglomerate has grown substantially to be among the top five timber groups in Sarawak. The Ta Ann Group includes many subsidiaries and is worth around $US1.6billion.
The principal activities of the Ta Ann Group are in oil palm, timber concession licenses, trading logs, and manufacturing as well as the sale of sawn timber and plywood products. Japan and Europe are the main markets for structural plywood and floor base boards produced by the company.
In January 2006, Ta Ann was welcomed to Australia’s island state of Tasmania with a golden political handshake and they have since established forestry operations to sell Tasmanian wood products to customers in Japan, China and Europe.
Ta Ann’s decision to commence operations in Tasmania was likely driven by two core objectives: they were offered hardwood by the state-owned forestry company, Forestry Tasmania, at lower rates than they could access in Malaysia or Indonesia and they needed Tasmania’s ‘clean, green’ brand to access an increasingly environmentally concerned and lucrative international market.
Ta Ann received timber from Old Growth Coupe HA045E
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Ta Ann Tasmania has rejected timber from plantations, staked its future on continued access to timber from native forests and has actively lobbied to stall an industry-wide transition to plantation harvesting. Ta Ann has received timber from the destruction of Tasmania’s world class forests, including timber from old growth forests, forests with recognised World Heritage values, threatened species habitat and other forests that are of high conservation value.
Malaysian-owned Ta Ann does not process old growth but accepts wood from forest coupes where some old growth, or forest regarded by green groups as of high conservation value, may be harvested. This has led conservation groups to attack Ta Ann’s two Tasmanian mills as the main “driver” of the destruction of many of Tasmania’s oldest and most environmentally significant forests.
Huon Valley Environment Centre (HVEC) and Markets for Change have pursued their advocacy campaign for the protection of high conservation value forests and a rapid transition out of native forests in Tasmania. This has included actually travelling to Japan to Ta Ann’s Japanese markets. They have exposed Ta Ann’s false claims of using only plantation timber. They have exposed Ta Ann’s sourcing of timber from high conservation value forests, accused Ta Ann of lying to their Japanese markets about timber certification, and directly lobbied Ta Ann’s Japanese customers to tear up their contracts with Ta Ann and instead seek timber supply that meets high environmental standards, that which the current industry in Tasmania does not meet.
‘Ta Ann’s veneer of truth‘
[Source: Huon Valley Environment Centre]
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So when it was discovered this week that The Wilderness Society (TWS) and Australian Conservation Foundation (ACF) on 20th August 2012 had unilaterally written a letter to the Japanese customers to ask these customers to continue to purchase timber from Ta Ann Tasmania, naturally HVEC and Markets for Change were appalled. The letter by ACF’s Don Henry and TWS Inc.’s Lyndon Schneiders requests the Japanese customers to continue to purchase the contentious wood supply that Ta Ann Tasmania is supplying.
TWS and ACF are accused of selling out Tasmania’s native forests by secretly undermining the market campaigns of fellow conservationists in Japan and Australia. TWS and ACF are accused of “treachery” and “betrayal”.
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Markets for Change and the Huon Valley Environment Centre yesterday expressed shock and dismay at the letter, accusing ACF and TWS of secretly undermining their campaigns, which had been blamed for some cancelled contracts.
“This is an act of treachery to the forests,” Markets for Change campaigner and former Tasmanian Greens leader Peg Putt told The Australian. “TWS and ACF never had the decency to inform us that they had done this.”
Huon Valley Environment Centre campaigner Jenny Weber said the letter, sent to Ta Ann customers on August 20, seriously undermined campaigning in Japan against the veneer maker.
“It’s unprecedented that TWS and ACF are prepared to support the forest industry and undermine not only our own campaign but that of Japanese campaigners,” Ms Weber said.
“We have felt that these organisations have worked against us in the Japanese markets, and worse still they have supported a forestry industry that is not yet sustainable, committed to a transition out of native forests, and continues to log world heritage value and high conservation value forests. A forestry industry where the biggest timber company is a Malaysian logging company with a record of displacing indigenous people and environmental desecration in their home state of Sarawak.
The letter states; “As a buyer of Tasmania forests products we continue to respectfully request that you not make any decisions that could adversely affect Tasmanian suppliers during the current negotiations that are now closer to achieving a sustainable future for the forest industries in Tasmania. Far from giving peace a chance, the letters have reduced pressure for the forestry industry to come to an agreement. There is still no final forest agreement in Tasmania and the outlook is bleak as forestry industry representatives have now suspended their participation in the talks,” Ms Weber continued.
“At best the ACF TWS letters are grossly misguided, at worst they are a capitulation to industry. In either case these peak bodies have shown they are willing to support the forestry industry and deliberately undermine our campaign in secret. They have endorsed the ongoing logging of high conservation value forests for Ta Ann and their Japanese customers by making this communication with the markets.”
“This is not a time for these environment groups to lose their way and become the green tick for an unsustainable native forest logging industry in Tasmania. This is one step too far for these groups who have been waylaid by a long drawn out process that has not delivered any conservation gains and these conservation groups are endorsing the very company that contributes to the devastation of the forests for which they are trying to secure protection,” Ms Weber concluded.
“This act is undermining the chances of achieving protection of magnificent forests in Tasmania, and also the campaigns of Tasmanian, Australian and Japanese groups who have been participating in a successful markets campaign for the past twelve months”, said Peg Putt of Markets for Change.
“We have consistently asked companies receiving Ta Ann product to call for an immediate stop to logging the conservation claim in Tasmania whilst negotiations over the future protection of these forests take place, and to refuse to take wood product coming from inside this area.
“The ACF and TWS letters are clearly designed to counteract this campaign and to appease the forest industry. They repeatedly express concern for “a sustainable future for the forest industries in Tasmania”, but not for the fate of the magnificent forests under the chainsaw. We do not believe that their members and supporters are aware of or would condone their actions” Ms Putt said.
“The Australian Conservation Foundation (ACF) and The Wilderness Society Inc. (TWS Inc) have sent false confidence to the Japanese customers of Ta Ann. This miscommunication in the markets will increase uncertainty. The fact remains that Ta Ann is shipping high conservation value forests to Japan, and these environment groups have endorsed this controversial product in the international market,” said Jenny Weber of the Huon Valley Environment Centre.
No organisation is so big that it cannot fail. It is recent logging industry appeasement that since last month has seen Planet Ark lose its environmental credibility with many.
Planet Ark was formed in 1992 and is well known for having established ‘National Tree Day’ across Australia – ‘Australia’s largest community nature event’. Planet Ark claims to be “an environmental organisation committed to encouraging positive behaviour change… We guard our independence and reputation fiercely.” ~ Planet Ark.
Yet just last month (August 2012) Sydney-based environmental not-for-profit organisation, Planet Ark, has been found out allowing its Planet Ark logo to be used on advertisements for timber, paid for by Forest and Wood Products Australia (FWPA). It is part of a sponsorship deal in which Planet Ark gets $700,000 from the timber industry. The deal involves Planet Ark’s public endorsement in the ‘Make It Wood’ advertising campaign which promotes the increased use of certified, responsibly sourced wood as a building material, along with the organisation’s decision to join the timber industry’s certification system for wood products, called the Australian Forestry Standard (AFS).
Yet the AFS Scheme has been found to have allowed timber to be sourced from high conservation value native forests. A timber company ticked off by the AFS was last year fined for illegal logging. AFS board member, the Victorian Government’s industrial logger, VicForests, was fined more than $200,000 by the Victorian Government’s Department of Sustainability and Environment for logging over allocation. ViCforests has also lost a Supreme Court case for planning to log threatened species habitat in East Gippsland and is being taken to court this year over alleged rainforest logging.
Australian environmental groups claim that the AFS Scheme is dodgy and approves “the most appalling logging practices like we see in Indonesia and Malaysia. AFS is endorsed by the Programme for the Endorsement of Forest Certification (PEFC), which has also been condemned globally for endorsing the certification of forest operations that destroy biodiversity, revoke human and community rights, and fail to undertake adequate engagement with key stakeholders.”
Reflex (copy paper) lost its Forestry Standard Certification by using native forest timber supplied by VicForests, yet retains AFS certification. The Tasmanian Government’s industroial logger, Forestry Tasmania, had its AFS certification renewed in July 2012, despite its ongoing clearfelling of high conservation forests and scorched earth practices that permanently destroy forest ecology and replace it with plantation timber, which it then calls ‘sustainable timber’.
So Planet Ark is not in good company. Planet Ark’s endorsement of AFS would seem to be contrary to Planet Ark’s key objective – ‘to protect and enhance the natural environment‘. It would be interesting to learn how FWPA answered Pkanet Ark’s Prospective Partners Questionnaire question #6:
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‘What is the environmental advantage and rationale/justification for this partnership?‘
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Conservationists have accused Planet Ark of having gone over to the ‘darkside’.
Sarah Rees from My Environment has said, “What in effect Planet Ark is doing today is endorsing logging in the Styx Valley (South West Tasmania). This is a very confusing message for consumers, given Planet Ark has such an important role to play in advising people on best brands and good wood.”
Greens Leader Christine Milne agrees. “What Planet Ark has done is they have undermined the rest of the environment movement by effectively trying to give some green wash to the native forest logging industry,” she said. “The AFS has no credibility at all. It was only dreamt up in response to the FSC standard and Australia couldn’t meet that standard. Next thing we knew we had this dodgy standard which no-one has any respect for.”
Independent Senator Nick Xenophon says Planet Ark’s deal with the timber industry is a conflict of interest. “There could be a perception that who pays the piper calls the tune. And when you’re getting $700,000 in donations from the industry and part of the review of the forest standard, then it raises some serious questions of a potential conflict of interest,” he said.
“The AFS scheme concerns many environmentalists. Clear felling, environmental destruction, death of native forests,” said environmentalist Jon Dee who helped found Planet Ark twenty years ago. “We believe this campaign, tied up with the forest industry, is one step too far.”
Joint founding member, Australia’s tennis great, Pat Cash, issued a statement to ABC TV’s 7.30 programme stated:
“The deal with the forest industry and the controversy around the Peter Maddison TV advert has eroded Planet Ark’s credibility as an environmental organisation. The Planet Ark board and management team should be held accountable for this decision to work with the forest industry…Planet Ark needs to return to the values that once made it such a great organisation and withdraw from their association with the AFS and the FWPA.”
The Director of environment group My Environment, Sarah Rees, says these are confronting issues for big NGOs who traditionally don’t come out against each other. “Discussions with Planet Ark with organisations including the Wilderness Society and Greenpeace over 14 months have failed to get Planet Ark to amend its attitude to the issues of clear-fell logging.
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“Planet Ark has dug its heels in with its message that all wood is good wood and this is just not right. The role of the environmental organisations is to ethically educate the public on forestry issues but Planet Ark has muddied that message.”
The Australian Forestry Standard provides certification for logging in extensive areas of native forests across Australia, and for wood products arising from such logging.
Watch the new promotional video ‘The Facts’ right now to see what sort of assurance the standard provides to retail customers and the Australian consumer about the forest and wood products they are purchasing.
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The Wilderness Society says Australian Paper cannot meet environmental standards. The manufacturer of Reflex paper has lost part of its international environmental certification, after withdrawing from an audit of its wood supplies.
The Forest Stewardship Council was auditing Australian Paper, to check that the wood used to make Reflex paper is not sourced from high conservation value forests.
Luke Chamberlain from the Wilderness Society says the company withdrew from the process, because it cannot meet environmental standards.
“The makers of Reflex paper get their wood from the Victorian State Government native forest logging arm VicForests,” he said.
“VicForests log in endangered species habitat. They log old growth forests in East Gippsland and the central highlands”
Australian Paper says its products are not sourced from high conservations value forests threatened by logging.
Shaun Scallan from Australian Paper says they withdrew because the audit process changed while it was underway.
“We pulled out because of a change in the definition of part of the standard late in the piece, which did not allow us enough time to then satisfy that changed definition,” he said.
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Meanwhile the same Shaun Scallan of Australian Paper just the day prior on Monday 22 August 2011 posts his media release:
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‘Australian Paper retains FSC Chain of Custody Certification’…?
‘Australian Paper has successfully retained Forest Stewardship Council (FSC) Chain of Custody certification (FSC-C002059) in its latest audit. Auditor Rainforest Alliance confirmed that under the certification Australian Paper may continue to produce FSC-certified product based on sourcing of material from FSC-certified operations and recycled content, as allowed under the FSC rules for Mixed and Recycled product.
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“We are pleased to have retained our FSC Chain of Custody certification,” Australian Paper CEO Mr Jim Henneberry said.
“Australian Paper has held Chain of Custody certification since 2006. However, we have decided to remove the Controlled Wood component from our certification at this time as there has been uncertainty around the interpretation of key elements of the standards.”
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“Advice received by Rainforest Alliance from FSC International around the interpretation of the Standard was received after the physical audit had been completed. This left insufficient time for us to address and so we elected to withdraw Controlled Wood from our certification.” Mr Henneberry said.
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Australian Paper remains committed to ensuring that fibre supplies come from internationally recognised, third party certified sources and also regards the Australian Forestry Standard and PEFC as benchmark certifications under this policy. The majority of wood supplied to Australian Paper is certified to the Australian Forestry Standard.
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“We are also continuing to consult with a wide range of stakeholders as part of our Future Fibre Strategy review,” Mr Henneberry said.
“It is vital that we achieve the best balance between the environment, the health of regional communities and our ongoing competitiveness. We look forward to sharing outcomes from this review in due course.”
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Meanwhile, we have the boss of Nippon Paper (the Japanese company that owns the misnomer ‘Australian Paper’) declaring Nippon Paper is going gang-busters to become a top global pulp and paper company…(at any cost?)
‘Since I was appointed president of Nippon Paper Group, Inc. in 2008, I have been pursuing “growth-oriented management.” This means exploring every possibility with a consistently positive stance, actively seizing opportunities, achieving the growth needed to become one of the top pulp and paper companies worldwide, as set out in the Group Vision 2015, and developing corporate value that meets the expectations of all stakeholders.’ ~ President of Nippon Paper Group, Yoshio Haga. [Source: ^http://www.np-g.com/e/about/president.html]
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Meanwhile, the stated Charter of Nippon Paper Group includes:
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‘6. Active involvement with environmental issues assures that…’
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‘We shall promote afforestation projects, to create and make effective use of sustainable forest resources.’
‘We shall promote energy conservation, the use of wastepaper and other measures to effectively use resources that are limited in quantity.’
‘We shall manage and reduce all types of discharge and waste generated in the course of corporate activities.’
‘We shall research and develop manufacturing technologies, and products and services that are in harmony with the environment.’
Editor: It is suspicious when a Japanese company is more than content to log and irrevocably destroy another country’s old growth forests, while Japan’s own old growth forests around Mt Fuji remain sacrosanct.
‘In spite of the abundant natural resources, logging is not commonly practiced in the forests of Japan. Japan Forests are venerated and protected since they provide essential soil cover and help in water conservation. All Species are encouraged to grow in the Forests in Japan , from the broad-leaved deciduous to the evergreen coniferous types. There are also many forests which grow near volcanic areas, destroyed and then rejuvenated every time an eruption occurs. The Aokigahara Forest at the base of Mount Fuji is one such forest. Locals as well as tourist camp, trek and hike through these dense forests of Japan to explore their unusual natural beauty.
‘Some Japan Forests are designated as Sacred Forests . These forests generally contain an ancient religious Shrine, usually worshiping the Shinto religion and are protected from trespassing and destruction. These forest shrines are still venerated as national treasures.
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Some of the sacred forests in Japan are-
The Forest of the Yahiko Jinja has many trees like the Cedar, Cypress and Oaks. The Shrine has a sacred Chinquapin tree as well.
The Forest of Atsuta Jinja is an important Shinto Shrine, housing one the three important Shinto relics – the holy sword of Kusanagi-no-tsurugi. The forest has evergreens like the Japanese Camellia Sakaki, camphor trees, Ilex and Japanese Honeysuckle.
The Forest of Kashima Jingu has over 800 species of trees like varieties of Cedar, Fir and Oak. The Kashima Jingu is an important shrine of the Kanto Area. The forest has been designated as a Wildlife Protection area for the rare birds in the region.
The Forest of Shimogamo Jinja covers over 495 hectares and has many different species of deciduous trees like the Zelkova, the Elm and the Hackberry. The Shrine itself has 53 buildings which have been designated as National Heritage Architecture.
The Forest of the Kirishima Jingu covers and area of 887 hectares. Located near the Mount Kirishima Volcano, the forest has been destroyed and then recovered for over 60 times.
The Forest of the Kasuga Taisha is home to the beautiful podocarpus Nagi. The forest also contains many species of evergreens and shrubs. Trees like the Kasuga, the Andromeda and the Ichii also grow there. People from all over Japan visit the venerated shrine in the quarterly pilgrimages.‘
Ethics question for Yoshio Haga (President of Nippon Paper Group):
What moral right do the Japanese have to consider their own native old growth Aokigahara Forest more sacred than Australia’s sacred native old growth forests such as those across East Gippland?
Stump of Brown Mountain’s sacred 600 year old Mountain Ash old growth tree.
It was logged by VicForests in November 2008 for Nippon Paper’s Reflex Paper.
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In light of VicForests recent civil prosecution in the Victorian Supreme Court, Nippon Paper Group’s association with VicForests calls into question the reputation of Nippon Paper Group and its brand Reflex Paper:
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‘VicForests has been stopped from harvesting certain coupes in the Brown Mountain forest in East Gippsland containing old growth forest
– habitat for rare and threatened species – until the completion of steps implementing the precautionary principle.’
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‘Environment East Gippsland Inc v VicForests – The precautionary principle in action’
‘The Victorian Supreme Court decision in Environment East Gippsland Inc v VicForests firmly embeds the approach to the precautionary principle laid down in Telstra Corporation Limited v Hornsby Shire Council (2006).’
‘The case makes it clear that the precautionary principle can be the subject of an enforceable obligation.’
‘The case also makes it clear that the precautionary principle applies both at the strategic and operational stages of a project or undertaking.’
‘The fact that VicForests complied with its forestry approvals was not enough to satisfy the Court that it had met its obligations with regard to the precautionary principle.’
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‘In Environment East Gippsland Inc v VicForests [2010] VSC 335 conservation group Environment East Gippsland (EEG) won a landmark injunction against VicForests, a state-owned timber business with responsibility for commercial timber harvesting in Victoria’s state forests.
VicForests has been stopped from harvesting certain coupes in the Brown Mountain forest in East Gippsland containing old growth forest – habitat for rare and threatened species – until the completion of steps implementing the precautionary principle.
In this case, Justice Osborn of the Supreme Court of Victoria undertook a thorough analysis of the application of the precautionary principle in the context of a detailed legislative regime aimed at balancing biodiversity protection and commercial timber harvesting. The case embeds the approach to the precautionary principle laid down by Chief Justice Preston of the Land and Environment Court of New South Wales, in Telstra Corporation Limited v Hornsby Shire Council (2006) 67 NSWLR 256.’
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The lead-up to the litigation
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‘The Brown Mountain forests in Victoria’s East Gippsland contain old growth forests and provide habitat for rare and threatened species such as the Powerful Owl, the Spotted-tailed Quoll (mainland Australia’s largest marsupial carnivore) and the Long-footed Potoroo. However, these areas are also amongst the most productive timber harvesting forests in Victoria and play a crucial role in Victoria’s sustainable timber industry.
In 2006, the Victorian State Government committed to increasing the conservation parks and reserves within the broader Brown Mountain area. Nevertheless, in 2008 commercial logging in the Brown Mountain area began.
After numerous studies of the area indicated the presence of important threatened and rare species, EEG requested the Minister for Environment and Climate Change, Gavin Jennings, to make an interim conservation order to conserve critical habitat of the endangered Long-footed Potoroo, Spot-tailed Quoll, Sooty Owl, Powerful Owl and Orbost Spiny Crayfish at Brown Mountain. The Minister did not grant a conservation order, but instead increased the conservation area surrounding Brown Mountain.
Having failed to obtain undertakings from VicForests that it would not proceed to log the Brown Mountain coupes, EEG sought interlocutory injunctive relief. An interlocutory injunction restraining logging was granted by Justice Forrest on 14 September 2009 (see our article Environmental litigation heats up with some significant wins for public interest litigants in our 2 October 2010 edition of Environment Matters ), pending the outcome of the full proceedings before Justice Osborn in the Supreme Court of Victoria.’
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The legislative regime
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‘Logging of state forests in Victoria is regulated by a complex scheme of legislation, codes of practice, management plans and procedures, described by Osborn J as “labyrinthine”. The principal legislation includes the Forests Act 1958 (Vic) (Forests Act), Sustainable Forests (Timber) Act 2004 (Vic) (SFT Act), Flora and Fauna Guarantee Act 1988 (Vic) and Conservation, Forests and Lands Act 1987 (Vic).’
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Responsibilities for timber harvesting and forestry management
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‘VicForests is a state-owned corporation, established in 2004 to undertake the harvesting of timber in Victoria’s state forests. The Secretary to the Department of Sustainability and Environment (DSE) has overarching responsibility for managing state forests and timber harvesting within forests under the Forests Act.’
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Legal challenge
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‘EEG sought an injunction restraining VicForests from harvesting four coupes at Brown Mountain containing old growth forest. It also sought declarations that timber harvesting within the coupes by VicForests in accordance with the current forestry regime would be unlawful.
EEG argued that the current conservation measures for the Brown Mountain coupes did not meet the requirements of the regulatory system, which addresses the preservation of conservation values and in particular the protection of endangered species. EEG also argued that VicForests had failed to implement the precautionary principle.
VicForests took issue with EEG’s standing to sue. Further, it denied the presence of a number of endangered species and argued that the logging of the Brown Mountain coupes would take place under a legislative framework that adequately protects endangered species and would, therefore, be lawful. It also argued that it was DSE’s responsibility to stipulate any further requirements for habitat protection in accordance with the regulatory regime.’
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EEG’s standing
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‘Following the settled High Court authority that standing to bring such proceedings depends on the plaintiff’s “special interest” in the subject matter of the litigation (Australian Conservation Foundation v Commonwealth (2000) 200 CLR 591), Osborn J was satisfied that EEG had a relevant “special interest” because:
EEG uses the coupes to a greater degree than the general public (for example, the group has a “Valley of the Giants Old Growth Forests Walk” through the affected coupes);
EEG’s predecessor was involved in the consultative process for the formulation of the applicable forest management plan; and
the government has previously recognised EEG’s status as a body representing this sector of the public interest.’
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The precautionary principle [Ed: once again]
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‘The VicForests case firmly embeds in Australian environmental jurisprudence the approach to the precautionary principle laid down by Chief Justice Preston of the Land and Environment Court of New South Wales, in Telstra Corporation Limited v Hornsby Shire Council (2006) 67 NSWLR 256 (Telstra). Justice Osborn’s decision in VicForests is the first Supreme Court application of the Telstra principles.
The precautionary principle is integrated throughout the Victorian forestry regime’s many instruments.
Following Preston CJ’s two-fold test in Telstra, Osborn J stressedthat the precautionary principle is a test of common sense. There must be:
a threat of serious or irreversible environmental damage; and
scientific uncertainty as to the environmental damage.
Justice Osborn stated:
Once both of these conditions or thresholds are satisfied, a precautionary measure may be taken to avert the anticipated threat of environmental damage, but it should be proportionate … [The] degree of precaution appropriate will depend on the combined effect of the seriousness of the threat and the degree of uncertainty.
It is a “wherever practicable” test.
In practice, this meant that once the two-fold test was satisfied by EEG, VicForests had the onus of proving that the threat posed by logging the coupes did not exist or was negligible. Because it could not do this, the question then became:
whether the threat was able to be addressed by adaptive management measures (in this case the requirement for surveys and management zone reviews); and
whether the measure alleged to be required (here the permanent injunction against logging the coupes) was proportionate to the threat in issue.
Justice Osborn carefully examined the legislative regime and held that it is not intended that VicForests only apply the precautionary principle at the strategic planning stage:
VicForests is specifically required to apply it [the precautionary principle] having regard to the results of monitoring and research as they come to light during operations. … The requirements of the precautionary principle fall to be considered in the light of the whole of the evidence bearing on these matters as it now is and not as it was at the time VicForests completed planning.
Justice Osborn stressed, however, that the precautionary principle sits within a wider statutory regime that takes into account principles of sustainable development.
He held that unless VicForests complied with the requirements of the applicable Flora and Fauna Guarantee Act Statements and with conditions stated in the relevant allocation order (under the Forests Act) and the Timber Release Plan (under the SFT Act), logging at Brown Mountain would be unlawful.
This meant that VicForests could not rely on its current approvals to log the coupes because DSE had not, for example, changed zonings in the coupes to reflect the presence of threatened species. VicForests had an ongoing, active duty to apply the precautionary principle, which included responding to new information as it became available.
Importantly, Osborn J stressed that the precautionary principle canbe the subject of an enforceable obligation.’
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Outcome
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‘Justice Osborn ordered that VicForests stop harvesting until various measures had been completed to respond to the detection of endangered species and to implement a precautionary approach with respect to their potential extinction. The required measures included:
creating or amending special management zones, special protection zones and retained habitat areas to protect the Long-footed Potoroo, Greater Gliders and Yellow-bellied Gliders (as relevant);
undertaking further surveys for the Giant Burrowing Frog, Large Brown Tree Frog and Spotted-tailed Quoll; and
completing a current review of the Powerful Owl and Sooty Owl Management Areas,
to the satisfaction of the Director, Biodiversity Policy and Programs, DSE.
The difficulty for the Court in formulating its orders was that the power to act on the evidence of rare and endangered species and implement the required legislative and policy changes lies not with VicForests, against whom the injunction was sought, but with DSE.
Justice Osborn overcame this difficulty by stopping VicForests from logging until certain actions are undertaken, these actions being DSE responsibilities. VicForests had maintained throughout proceedings that it would comply with any changes to the regulatory regime made by DSE, and this was accepted by the Court.
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Significance of the decision
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This case firmly embeds the approach to the precautionary principle laid down by Chief Justice Preston in Telstra Corporation Limited v Hornsby Shire Council (2006) 67 NSWLR 256.
Justice Osborn’s decision makes it clear that:
The precautionary principle canbe the subject of an enforceable obligation.
Parties having an obligation to apply the precautionary principle cannot demonstrate compliance with the principle solely through departmental approval of their actions or relevant approvals under the regulatory regime; the precautionary principle is an active obligation that applies throughout operations, requiring parties to respond to new information as it arises.
The precautionary principle applies throughout all stages of operation, not just the strategic planning (or approvals) stage.
The decision has broader implications because:
The precautionary principle is embedded in many other statutory regimes in Victoria and around Australia, apart from the Victorian legislative regime for forestry and the protection of endangered species. The decision has implications for any statutory regime in which the principle is enshrined.
Although VicForest is a state-owned enterprise operating within a highly regulated environment, there is scope for the decision to be applied to other types of entities operating within industries where the precautionary principle is relevant.
Furthermore, a decision of the Supreme Court of Victoria has strong precedent value, and is likely to be adopted by the Supreme Courts of other States, and perhaps even higher courts or courts with federal jurisdiction.
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Action points
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Parties under an obligation to apply the precautionary principle need to be aware that:
to implement the precautionary principle as per the principles laid down in Telstra, parties need to ask:
is there a real threat of serious or irreversible damage to the environment?
if yes, is it attended by a lack of full scientific certainty (in the sense of material uncertainty)?
if yes, is the threat non-existent or negligible?
if no, is the threat able to be addressed by adaptive management and is the measure alleged to be required proportionate to the threat in issue?
the principle must be applied at both the strategic decision making stage of a project, and throughout the operational stage; and
it may not be sufficient to simply obtain and comply with project approvals – parties need to proactively respond to new information as it arises throughout the operational stage.’
‘Paperlinx will take a $600 million hit on its half year results and the future of its Tasmanian operations is under review after last night unveiling the partial sale of its Australian papermaking business.
Japan’s Nippon Paper Group will buy most of Australian Paper, which includes the Maryvale pulp mill in Gippsland, for more than $700 million, including taking on attached debt and a three-year profit share agreement.
Money from the sale, expected to be completed in June, will go to reducing PaperlinX’s debt burden to about $340 million…’
[Editor: So Paperlinx was in debt to the Australian Tax Office by over a billion dollars? How can Australia’s pulp industry be profitable then?]
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[3]Australian Paper Watch website (providing information about the logging of Victoria’s forests to make paper products such as Reflex by Nippon Paper and their ‘subsidiary’ Australian Paper), ^http://www.australianpaper.forests.org.au/
‘Australian Paper has a long history in the La Trobe Valley in Gippsland, Victoria, dating back to 1937 when established. Today, the Mill is Australia’s largest integrated pulp and paper operation. In response to global paper trends and changing consumer expectations for our products, Australian Paper (Nippon Paper subsidiary) embarked on a major upgrade of the Maryvale Pulp Mill in 2006 which was completed in December 2008. With an investment of $350 million, the upgrade significantly expanded the Mill’s production of bleached pulp capacity and delivered a range of safety, health and environmental benefits.’
‘Conservationists have held up timber workers in a fiercely contested area of native forest on Melbourne’s fringe for nearly a month, chaining themselves to bulldozers and climbing trees scheduled for logging.
The protest, which has led to at least 10 arrests, is expected to reach a climax today as activists and local residents march into the logging coupe outside Toolangi in Victoria’s central highlands.
Protest organisers claim they have evidence the coupe is home to the endangered Leadbeaters Possum, which scientists say is under threat after Black Saturday bushfires wiped out up to half its habitat. But the Department of Sustainability and Environment says there has been no sign of live possums. Department spokeswoman Kim Payne said one tree in the coupe had hollows that showed evidence of possum use. That tree would be left standing, but the coupe did not meet the legal criteria of prime possum habitat and could otherwise be logged.
Sarah Rees, director of Healesville-based group My Environment, said it was cruel to think a possum could be protected by retaining a single tree while taking away the forest around it. She said logging was hurting central highlands communities.
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”Tourism based on the state forest is far more important to the local economy than forestry and the two cannot co-exist,” she said.
The conflict over the Toolangi State Forest was the focus of a public meeting in the area late last week when logging opponents verbally clashed with forestry workers, who accused the activists of restraint of trade. One contractor said he had lost about $80,000 due to the protests.
David Walsh, spokesman for state commercial timber agency VicForests, said the Toolangi protests had cost forest workers significant time. Only about a quarter of the 19-hectare coupe had been harvested. He said gates raised to ensure public safety had been damaged. ”VicForests believes these are legal harvesting operations which comply with the detailed legislative framework governing native timber harvesting in Victoria,” he said.‘
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Editor: The legal doctrine of ‘restraint of trade’ sought to be applied in the commercial exploitation and destruction of old growth forests, is an invalid excuse. It is a contemptible euphemism for a ‘right to rape’ old growth ecology that is being contrived by commercial lawyers profiting from the exploiters ~ a case of the morally bankrupt collaborating with the damned.
New house for sale on the Blue Mountains Escarpment
featuring “Tasmanian Oak hardwood flooring” as a key selling point.
[Photo by Editor, 20120111, Photo © under ^Creative Commons]
Eucalyptus regnans
before becoming someone’s Tassie Oak floor
Only ‘sawlog’ sections of MATURE large hardwood trees are suitable for flooring
If there are no branch knots in the timber, then the timber has come from the trunks of mature large hardwood trees.
Such trees are not from plantations, but from rare and disappearing forest habitat.
