Cathcart State Forest (NSW) being logged in 2011

[Source: Australian Forests and Climate Alliance ^http://forestsandclimate.net/newsouthwales]

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Most of Australia’s native vegetation cover, over 75% of that predating the 1788 Colonial Invasion, has been ‘cleared’ – a euphemism for deforested, logged, destroyed, killed.

Today, as one travels around Australia and sees vasts areas of unproductive, degraded, denuded and abandoned farmlands – one questions why destroy more fragile environment?  Yet the exploitative bastards are still hell bent on killing more native forest and bushland, even though they can’t properly manage the ‘already ‘cleared’ lands they’ve got.  It is a short sighted insatiability, harking to a 19th Century ‘old blighty’ mindset of taming the land.  It is deluded thinking that just because the native vegetation is green and looks fertile that it can be replaced for pasture and cropping and that new cleared land will be any different to that already cleared.

The Liberal-Labor governments and their rural National mates haven’t given a toss throughout the entire 20th Century and still couldn’t give a toss.

 Recent land clearing in the Daly River catchment area

Northern Territory, Australia.

Photo: Environment Centre NT

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Moree region New South Wales – mainly deforested

Visit Google Earth and zoom into any area of NSW and see that most of it has been deforested

(click image to enlarge)

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Still across Australia in 2011, thousands of hectares of native forests continue to be deforested – albeit for farming, logging and development, or just bizarre bushfire abandonment.  Not only is this occurring on private land, but in State Forests, which most people think are protected.  Native forests on land are being cleared branded by State governments as ‘State Forests’ are simply not protected.

The native trees, flora and fauna are not protected from logging, bushfire, State-sanctioned arson (aka ‘hazard reduction‘), State napalming (aka indiscriminate ‘hazard reduction‘), indiscriminate State aerial poisoning with 1080, wildlife poaching, 4WD hooning, trail bike hooning, or even backpacker murdering.  The watercourses (and the interconnected groundwater aquifers), that flow through State Forests are not protected from fishing, stormwater run-off, mine tailing contamination, farm pesticide and herbicide, industrial pollution.

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Helicopter Aerial Incendiary

Over Bindarri National Park, 20km south-west of Coffs Harbour, New South Wales

Yes, even our National Parks and Wildlife Service sets indiscriminate fires to National Parks!

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For the likes of taxpayer funded government industrial loggers ‘State Forest’ is a euphemism ‘for not logged yet‘.  This applies to the likes of Forestry Tasmania, VicForests, Forests NSW, Forestry SA (spot the naming trend), as well as the more aptly Queensland Department of Primary Industries and Fisheries, and likewise the Forest Products Commission of Western Australia.

It seems that doesn’t matter whether there is proof that there is an endangered and protected species such as the Long-Footed Potoroo in the Cann Valley State Forest or Drummer State Forest in Victoria, or protected Koalas in the Murrah/Mumbulla State Forests of New South Wales, or three identified endangered species, the wedge-tailed eagle, the swift parrot and the wielangta stag beetle in Tasmania’s Wielangta State Forests, the Liberal-Labor governments of those States turn a blind eye to deforestation.

It is only when self-funded local communities take the respective government logger to the Supreme Court and win that logging stops momentarily, such as in the recent Victorian Supreme Court case Environment East Gippsland Inc v VicForests [2010] VSC 335.   In 2006, the Victorian State Government committed to increasing the conservation parks and reserves within the broader Brown Mountain area.  Disregarding its elected master and ignoring any concerns for the ecological Precautionary Principle, State industrial logger VicForests, got stuck in with its mechanical clearfelling of old growth forests in the Brown Mountain area.

Not-for profit group Environment East Gippsland (EEG) self-funded and obtained 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, Spotted-tailed Quoll, Sooty Owl, Powerful Owl and Orbost Spiny Crayfish at Brown Mountain.  Even then, the Minister for Environment and Climate Chang did not grant a conservation order, but instead increased the conservation area surrounding Brown Mountain.    It took the overriding legal authority of the Supreme Court to stop the Victorian Government and its delinquent logger trashing protected old growth habitat.

Victorian Labor Minister for Environment (etc), 2007-2010

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In March 2010, Forests NSW began controversial logging operations in the Mumbulla State Forest, south of Bermagui on the state’s far south coast.  Despite being criticised, after a recent survey identified the forest as a key colony for the region’s remaining koala population, Forests NSW Regional Manager Ian Barnes says the logging must go ahead across 240 hectares of the forest, in order to satisfy a supply agreement with the timber industry.

Deforestation is all about lining ones pockets out of ecological wanton exploitation

It’s a ‘wam bam thank you mam’ approach no different to what the Vikings did to the British in the eight Century.

Colonial Australians and their descendants are doing the same to Australian ecology in the 19th, 20th and 21st Centuries.

 

Mr Barnes says the logging will not affect the koala habitat.  “We’ve taken quite some effort to avoid any possible conflict there,” he says.  “As anybody who reads the recent report will know, the koalas have been found in the eastern side of the forest, and our logging is planned for the western part, as far away as we can get from the koalas.”

Despite assurances, anti-logging campaigners have organised a vigil in the forest in an attempt to stop the logging. Conservationist Prue Acton says the activity will devastate the koala population.

“Why risk the only healthy koala colony left in the far south coast. For what? “ she said.  “95% of what is going to be logged is going to end up at the Eden woodchip mill, be shipped to Japan for cheap copy-paper. What a disgrace.”

The Greens MP Lee Rhiannon says the Premier should put the protection of koalas ahead of the interests of logging companies.  “The New South Wales Government has refused to end logging in the south east native forest but they should step in and stop the destruction of the koala habitat,” she said.

[Source: ‘Logging begins near key koala habitat‘, ABC, 20100330, ^http://www.abc.net.au/news/stories/2010/03/30/2859615.htm?site=southeastnsw]

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‘Loggers are clearing bushland at rising rate‘

[Source:  ‘Loggers are clearing bushland at rising rate’, by Ben Cubby, Sydney Morning Herald, 20111221, ^http://www.theherald.com.au/news/national/national/general/loggers-are-clearing-bushland-at-rising-rate/2399764.aspx?storypage=0]

The amount of bushland being cleared by logging in NSW soared last year to the highest level since state-wide records began in 1988.  An area equivalent to 138,400 football fields was cleared for crops, forestry or infrastructure, says a government report.

The Office of Environment and Heritage said the rise in logging was probably cancelled out by regrowth, leading to no net loss of trees, though its most recent survey took place in 2008, before the land clearing spike. It said the reasons for the logging increase were unclear.

”[The] most likely factors relate to market demand and favourable climatic conditions and [they] can be expected to fluctuate over time,” a department spokesman said. ”It is also possible that recent changes in forestry methods are more readily detectable by satellite monitoring.”

Environment groups said the annual vegetation report was evidence that logging companies were operating in an unrestrained manner.

Bushfires remain the biggest destroyer of forests in the state, leading to a net loss of 48,300 hectares in 2010, the report said.

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But logging activities now come a close second, accounting for the removal of 42,700 hectares of trees in 2010. This is up from 31,000 hectares the previous year, and an average of about 21,000 hectares a year since 1988.

About 21,200 hectares of bushland was cleared in 2010 to make new areas for crops and grazing, while 5300 hectares were cut down to make way for roads, factories and housing.

”The NSW government is currently conducting a review of native vegetation controls,” said the chief executive of the Nature Conservation Council of NSW, Pepe Clarke. ”They should take this report as a warning – what is required are stronger land- clearing laws that do more to protect the environment, not weaker ones.”

The Wilderness Society said the government had ”failed in its promises to restrain land clearing, resulting in rapid and accelerating degradation of wildlife habitat and water catchments.”

The most recent State of the Environment report found that there had been no net loss of ”woody cover” across NSW between 2003 and 2008.

”This is because, although clearing has occurred over that period, there has also been an equivalent amount of regrowth including government sponsored environmental and forestry planting programs conducted by private landholders and state forests, within crown forests areas,” the department said.

”Notwithstanding no net loss over the whole state, some regions have experienced net declines in woody cover.”

The report uses the international definition of ”woody cover”, which includes land at least 20% covered by the crowns of trees higher than 2 metres, a description which would include relatively open country.

The introduction of a satellite monitoring system for land clearing last year appears to have increased the level of prosecution for illegal land clearing on private property. On crown lands, the number of prosecutions has increased threefold, from a low base, since 2007.

In 2010, the government received 471 reports of suspected illegal land clearing.

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‘Landowners sent satellite images identifying land clearing‘

[Source: ‘Landowners sent satellite images identifying land-clearing’, NSW Department of Environment (etc), Media release: 14 May 2010, ^http://www.environment.nsw.gov.au/media/DecMedia10051404.htm]

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NSW Department of Environment Climate Change and Water (DECCW) today began a high tech education campaign to encourage compliance with native vegetation laws by sending letters to landholders including before and after satellite pictures identifying land clearing.

DECCW Director-General Lisa Corbyn said the letters were part of an ongoing education program to encourage compliance with the laws and inform landowners of the proper channels available to them if they want to clear native vegetation.

“We’ve been using satellite technology for some time to identify changes in vegetation cover that may warrant further investigation,” Ms Corbyn said.

“Now we are also using the technology as an education tool. From today, advisory letters will be sent to landowners including before and after satellite pictures showing that vegetation has been cleared on their land.”

Ms Corbyn said the letters aim to inform to the landowner that the satellite imagery has picked up that vegetation had been cleared and highlight the proper channels available to them under the legislation to allow clearing of native vegetation, such as property vegetation plans.

The letters support other tools used by DECCW to encourage compliance with the legislation, including strategic investigations, prosecutions, penalty notices, stop work orders, remedial directions, warning and advisory letters.

The letter also alerts landowners to incentive funding available to restore and protect native vegetation on their properties.

The Native Vegetation Act was introduced in 2003 to bring an end to broadscale land-clearing in NSW. Since then, more than 400,000 hectares of native vegetation has been conserved or rehabilitated on private land through property vegetation plans (PVPs) and 1.6 million hectares has been managed for thinning and invasive native scrub management.

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Over 60 % of the native vegetation in NSW has been cleared, thinned or substantially disturbed.

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The impacts of native vegetation clearing have included the extinction of 77 plant and animal species, soil erosion, increased dryland salinity and a decline in water quality.’

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2003:   ‘Clearing rate in NSW 116,000 to 216,000 hectares per year: NSW Govt report’

[Source: ‘Clearing rate in NSW 116,000 to 216,000 hectares per year: NSW Govt report’, by Stephanie Peatling, Environment Reporter, Sydney Morning Herald, 20031117, ^http://www.sydneyalternativemedia.com/id64.html]

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The equivalent of up to 200,000 football fields may be illegally stripped of native trees and grass each year in NSW, figures suggest.

The first estimates on the extent of the clearings, which the Department of Natural Resources field staff prepared for the Government’s vegetation taskforce, suggest the figure could be as high as 100,000 hectares a year.  The figures show between 150,000 hectares and 560,000 hectares were illegally cleared between 1997 and 2002.

The advice is the first official guess at NSW’s illegal clearance levels. The highest rates are in the Barwon, Central West and Far West regions where much of NSW’s remaining native vegetation is located.

The figures have shocked environmentalists, who stress the urgency of making changes to the state’s natural resource management system, which Parliament is debating this week.
A Wilderness Society campaigner, Francesca Andreoni, said: “The new system needs to be fair to everyone, particularly farmers doing the right thing.

“The shocking extent of illegal clearing confirms the urgent need for the Government to implement its decision to end broadscale clearing.”

Figures recording the rate of illegal land clearing each year are almost impossible to compile because it so hard to charge people who breach native vegetation laws. There is also a complicated system of exemptions which allow people to clear land for purposes such as maintaining fire access trails.

Monitoring illegal clearing is potentially dangerous for departmental compliance officers. After reports of illegal clearing earlier this year on a property near Nyngan, in the state’s west, department officers were prevented from entering the property by an angry crowd of up to 150 people.

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When the amount of land illegally cleared is added to land that is legally approved for clearance, the department estimates between 700,000 hectares and 1.3 million hectares of land were cleared between 1997 and 2002.

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The figures suggest clearing was faster than the Department of Natural Resources’ previously admitted figure of about 60,000 hectares a year. That figure would give NSW the second-highest clearing rate in the country behind Queensland.

Debate on the Government’s package to overhaul native vegetation laws, based on an election promise to end broad-scale clearing, will take place this week. Last month the Premier, Bob Carr, announced a $406 million deal between farmers and environmentalists to end broad-scale clearing.

Most of the money is expected to go towards such things as tree planting and fencing waterways to help counter salinity and erosion. But local authorities may also compensate farmers for not clearing land.  Clearing will still be allowed where it is deemed environmentally necessary.

Under the new system, natural resource management is being overhauled. Thirteen catchment management authorities will replace 19 catchment management boards, 20 regional vegetation committees and 33 water management committees.

Scientists often name land clearing as one of Australia’s most urgent environmental concerns. It contributes to soil salinity, loss of biodiversity and greenhouse gas emissions because carbon dioxide is released into the atmosphere when the cleared timber is disposed of, usually through burning.

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‘Green groups attack logging growth’

[Source: ‘Green groups attack logging growth’, by David Bancroft, My Daily News, 20111229, ^http://www.mydailynews.com.au/story/2011/12/29/green-groups-attack-logging-growth/]

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Environment groups have banded together to criticise the level of logging occurring in New South Wales.  The Nature Conservation Council, The Wilderness Society, National Parks Association, the Northern Inland Council for the Environment and the North Coast Environment Council have issued a joint warning that iconic and endangered species are being threatened by land clearing.

Illegal deforestation for fire wood, near Taralga, on the western edge of the Blue Mountains

Source: ^http://www.orchidsaustralia.com/article_%20conservation_no3.htm

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In a joint press release, the groups said the NSW annual report on native vegetation released by the Office of Environment and Heritage (Ed. yet another money wasting name change) this month showed 2009/10 was the “worst year on record for clearing of native bushland”.

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The Wilderness Society campaigns manager Belinda Fairbrother said the report showed that in 2009/10 an area equating to 138,400 football fields was cleared for crops, forestry or infrastructure.

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“This is higher than any other year since records commenced in 1988 and shows the NSW Government has failed in its promises to restrain land clearing, resulting in rapid and accelerating degradation of wildlife habitat and water catchments,” she said.

North Coast Environment Council president Susie Russell said the report made a sad end to the International Year of Forests.

“The area cleared for forestry in 2009/10 was almost five times greater than it was in 1988/89,” she said.

“It reveals a massive increase in the rate and intensity of logging in NSW, which will be causing untold damage to the extraordinary high diversity forests of north-east NSW.”

Nature Conservation Council chief executive officer Pepe Clarke said land clearing was recognised as the single greatest threat to wildlife in Australia.

“It causes the death of birds and animals, the extinction of species, leads to the poisoning of soils from salinity and makes a major contribution to global warming,” he said.

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The Liberal-Labor Party ‘Island Vision’ for Australia’s State Forests

‘The Hill’ (Penrose State Forest, NSW) 2007, drawing by James King
^http://www.jamesking.com.au/drawings.html

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Who does one believe?…

 

 

 

 

 

Greenwash Tick

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Tuesday 23-Aug-2011:

‘Paper manufacturer loses green credentials’

by Liz Hobday, ABC News, 20110823, ^http://www.abc.net.au/news/2011-08-23/paper-manufacturer-loses-green-credentials/2851982/?site=melbourne, accessed 20110825]

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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’…?

by Shaun Scallan, Australian Paper, 20110822, ^http://australianpaper.com.au/media/2478/AP%20FSC%20audit%20release%20FINAL%20Aug%2022_2011.pdf, accessed 20110825

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‘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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1. ‘We shall promote afforestation projects, to create and make effective use of sustainable forest resources.’
2. ‘We shall promote energy conservation, the use of wastepaper and other measures to effectively use resources that are limited in quantity.’
3. ‘We shall manage and reduce all types of discharge and waste generated in the course of corporate activities.’
4. ‘We shall research and develop manufacturing technologies, and products and services that are in harmony with the environment.’

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[Source: ^http://www.np-g.com/e/about/charter.html#shead2]

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.‘

[Source:  ^http://www.mapsofworld.com/japan/japan-tourism/forests-in-japan.html]

Japan’s sacred Aokigahara Forest

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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’

22 November 2010:

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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 stressed that 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 can be 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 can be 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.’

 

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Further Reading:

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[1] >Vicforests’ Ecological Genocide

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[2] ‘Nippon buys Maryvale mill‘, by Ian McIlwraith, The Age newspaper, 20090217, ^http://www.theage.com.au/business/nippon-buys-maryvale-mill-20090216-89bu.html, accessed 20110826]

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‘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/

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[4] Nippon Paper’s Maryvale Mill Upgrade, ^http://www.reflex.com.au/2008-Maryvale-Mill-Upgrade/

‘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.’

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[5] ‘Loggers, activists clash over forest‘,  by Adam Morton, The Age newspaper, 20110817,  August 17, 2011, ^http://www.theage.com.au/victoria/loggers-activists-clash-over-forest-20110816-1iwew.html
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‘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.

[6]   Ethical Paper website,  ^http://www.ethicalpaper.com.au/

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[7] My Environment website, ^http://www.myenvironment.net.au/

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– end of article –