Skip to main content

  MyEnvironment Inc / Opinion / Appeal 2013 Leadbeater's Possum  

Appeal 2013 Leadbeater's Possum

In 2011, after the worst fires since European settlement razed more than a million hectares of forests and farms, MyEnvironment Inc., with the support of local communities and conservation groups, applied for an injunction to stop logging of three sites spared the fires in the Toolangi state forest - and were successful. The three areas buffered a small reserve in Toolangi for the states faunal emblem - the Leadbeater’s Possum. The total area applied for amounted to 100 hectares, equal to around 0.06% of the 158,000 hectares of Ash forest open to logging by VicForests.

Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it's the only thing that ever does. Margaret Mead

 

LbP

In 2011, after the worst fires since European settlement razed more than a million hectares of forests and farms, MyEnvironment Inc., with the support of local communities and conservation groups, applied for an injunction to stop logging of three sites spared the fires in the Toolangi state forest - and were succesful. The three areas buffered a small reserve in Toolangi for the states faunal emblem - the Leadbeater’s Possum. The total area applied for amounted to 100 hectares, equal to around 0.06% of the 158,000 hectares of Ash forest open to logging by VicForests.

The court case was a long and expensive affair and after strong arguments were made by both sides, VicForests were allowed to log part of each coupe but with considerable changes to their approach. MyEnvironment were successful in the ruling of habitat definition that both ‘mature hollow bearing trees’ and ‘senescent hollow bearing trees’ should be protected where 12 exist in area’s greater than 3 hectares in regrowth forests ( 'regrowth' forest age of around 15-50 years BAER). Interestingly, the main habitat type for old growth dependant wildlife is permitted for logging. Indeed, this was VicForests main argument. The first dot point definition of habitat listed under the Federal Recovery Plan can be logged as agreed in theState's Forest Management Plan - the planning framework the loggers use, and this does not include this habitat type for protection;

 • mature ash forest (>120 years old) and mixed aged ash forest where the oldest age class is mature (>120 years old).

The judgement was ultimately a tragic one for listed wildlife as logging would invariably remove more habitat in an already heavily degraded forest system.

The judgement resulted in a dark precedent for Australian species, that industry, with the support of government, can construct an operational framework that undermines both state and federal environment laws. For the Leadbeater’s (fairy) Possum, it translates to extinction because there is a creeping reduction of hollow bearing trees and without new area's of land being protected and brought into 'successional old growth', the reserves will fail to protect wildlife. The reserves were built on the assumption that loggers were abiding by the FFG Act and the EPBC Act, what is happening today contravenes those provisions.

Projected hollow loss

But this is not news. The State and Federal government developed the laws in the 1990's because they recognised this bottleneck in habitat and the consequent downward trend of the threatened the Leadbeater's Possum. The Commonwealth plan was to reverse the downward trend of the Possum however the system of protection was corrupted as the Forest Management Plan or Logging plan has dropped a critical habitat off by way of a devious circumvention of the interpretation by VicForests, and possibly intended by Victoria's Forestry department in it's drafting. The Logging plan has never been reviewed since it was developed in 1998 - this has led to over logging and unchecked impacts.

The ash forests face depletion over the next decade, sooner with fires. With  only 1% un logged and unburnt old growth remaining, the system is in collapse. Logging ecologically mature forests is not renewable on a timescale relevant to human life nor wildlife. It takes more than 100 years, unless earlier disturbance starts a hollow prematurely, to produce a Leadbeater's hollow and 100 years to produce ecologically mature forests. Logging operates on a 50-80 year rotation so whilst the tree's regrow, the forest, as a complex whole, is never allowed to to redevelop. This is why it is not renewable by a good forest standard that acknowledges the habitat must be maintained and encouraged.

Justice Osborn, ruled that the Flora and Fauna Guarantee Act, in and of itself, does not protect the Leadbeater’s Possum against industrial logging, even though logging is noted as one of the Possum's most significant threats. Industrial logging for products like Ash hardwood and Reflex paper is taking place in threatened species habitat.  An entire sub-clause of habitat where the Leadbeater's is most prolific, has been permitted for logging since the RFA commenced in 1998. This has been in contravention of the objectives of the EPBC Act 1999 Recovery Plan and Flora and Fauna Guarante Act 1988 Action Statement. This is why the Recovery Plan doesn't things for the little endangered Possum.

LAW: Leadbeater's Possum Action statement (LBP AS)

The court loss was tantamount to legally sanctioned extinction of the Leadbeater’s as the power to protect the animal, outside of National Parks, is entirely transferred to forestry agencies who want to log it's habitat for pulp wood. Court documents reveal that the Dept. of Sustainability and Environment, who are empowered to keep wildlife from harm, were complicit in it’s extermination on forestry sites. If the community didn’t step in, the authorities would not have acted. So, although we were bruised and broke we were far from finished.  After brushing ourselves off, legally challenging the Victorian Agriculture Minister Peter Walsh over his defamatory attacks on our group...and succeeding, we got back to the task.

Toolangi's last green forest

Last unburnt forest of Toolangi

On July 29, 2012 MyEnvironment Inc. won the right to appeal.  The judges stated that the case was a ‘public interest case’ and on the question of the judgement the judges declared that,  “these are the sorts of questions on which reasonable and informed minds might possibly differ?” So, with the help of the community and environment groups, MyEnvironment raised more money to pay the next phase of the legal inquiry. Today we face the last leg of the race. We will test to the laws to see if they can protect what they were intended to do; 'guarantee the ongoing survival of wildlife' in our forests. We need $50,000 by June, this is an enormously reduced rate by the barristers and Environment Defenders Office for our charity. We will pay in three installments over the coming months to the trial date in June. 

2012-06-13 10.04.01 pm

People who speak for the trees

It is our opinion, tried and tested, that nothing else will guarantee the future of the Central Highlands wildlife than getting behind this legal push. The Multi-National woodchip industry are simply too powerful and wealthy to achieve the protection of our wildlife using the the science alone. It was only when our supporters funded the legal challenge did the plight of this tiny fairy possum start to matter. It is an ethical issue as much a legal one. Without the looking glass on this remarkable and ancient marsupial, many other wildlife will face equally doomed futures, lost in legislative frameworks that serve to lynch them rather than the life-line they promise.

The Appellant submission here

Some of the comments about the case and MyEnvironment Inc. from the trial judge at the costs hearing:

“[8] … I accept that the present proceedings were brought in good faith for the purpose of seeking to protect and conserve the habitat of an endangered species, the Leadbeater’s Possum (LBP). They are fairly characterised as having been pursued in the public interest. Further, the case brought about a material refinement of VicForests’ timber harvesting proposal with respect to [the] Gun Barrel [coupe].
[15] I accept that the present case both raises issues of public importance and questions of the construction of the subsidiary legislation intended to protect the LBP, which apply not only to the three coupes in question but to the timber harvesting of regrowth montane ash forests within the Central Highlands generally.
[22] … The proceedings were of a public interest character and raised a question of interpretation of the relevant controls having broader implications beyond the three coupes in issue. Moreover, in one respect at least, MyEnvironment was successful, namely the question whether the words “mature and senescing” should be construed cumulatively or as alternatives.
[23] The present proceeding... was motivated by the desire to preserve the habitat of an endangered species; was brought by a plaintiff which has no motive of private gain; was concerned with questions of public interest; raised arguable questions as to the interpretation of the relevant controls and resolved significant issues as to the interpretation and future administration of statutory provisions relating to the protectionof endangered fauna.
[24] The interpretation of the provisions in issue in the present case has particular practical significance, and is of general public importance, because of the destruction and damage to large parts of the montane ash forest in the Central Highlands by the 2009 Black Saturday fires.”We need to keep our challenge going. Please help us raise the last 50k to have the matter appealed.