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Save Sylvia Supreme Court Case

BL11301

summary

Legal Case:  Under state and federal legislation, VicForests must assess forests before logging to check if the area meets ‘zoning’ requirements for endangered species including the Leadbeater’s possum. The basis of our claim is that VicForests did not undertake adequate pre-logging surveys prior to logging in an area that we claim meets Leadbeater’s habitat and therefore should not have been logged. MyEnvironment Inc. is questioning the application of the precautionary principle.

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Leadbeater\'s poss

'MyEnvironment has demonstrated a strong case for the overall review of the adequacy of the reserve system intended to protect LBP habitat within the Central Highlands Forest Management Area. The [2009] bushfires have materially changed the circumstances in which the existing system was planned and implemented and there is, on the evidence, an urgent need to review it’ Justice Robert Osborn. 2012

Overview

MyEnvironment -v- VicForests

Following a community led blockade on Sylvia Creek Road, Toolangi State Forest in July – August 2011, MyEnvironment Inc. obtained an injunction in the Supreme Court, preventing logging in the subject coupes pending resolution of the allegation of unlawful logging.

The case was commenced on the basis that the logging of the three coupes,

    • would destroy high-conservation value forest, including Leadbeater’s Possum habitat, as defined in the relevant Action Statement, 
    • would be conducted by the clear-fell silviculture system, as indicated in the TRP, 25 September 2009, updated 24 August 2010 and again 15 June 2011
    • would be followed by a regeneration burn, as is established (effectively invariable) practice following clear-felling.

In late January 2012 MyEnvironment Inc. received an open offer to limit the area logged in the three subject coupes if the action was discontinued. The action proceeded.

The hearing 

The case before Justice Osborn opened on 6th February and lasted for two-and-a-half weeks.

ME called evidence from Professor David Lindenmayer (ANU), who has worked on Leadbeater’s Possum habitat in the Central Highlands forests for almost thirty years. He stated that, from his past knowledge of the animals in the area, it is very likely the possums are still present in all three coupes, that they would be killed by logging and that he would have serious concerns for their persistence if logging in the coupes was allowed. ME also called Economist, Dr J Ajani.

During evidence for VicForests Lachlan Spencer committed VicForests to not log areas of Zone 1A Leadbeater’s habitat identified on maps produced in evidence, to log a limited area of Gun Barrel (if permitted by the court), using Variable Retention Harvesting (VRH), as distinct from clear-felling, and not to conduct a regeneration burn following logging in Gun Barrel.

VicForests also called evidence from Michael Ryan (VF Forest Scientist) and Dr J Schirmer, Sociologist and Economist. In letters of instruction to Dr Schirmer, VicForests identified 168 other coupes in the Central Highlands, similar to Gun Barrel (including Freddo and South Col), that contain or are close to Leadbeater’s Possum habitat. 

The Judgment

Justice Osborn accepted VicForests interpretation that the primary instrument they are required to follow in logging is the Prescription in the Central Highlands Forest Management Plan. This says –

Include Leadbeater’s Possum Zone 1A Habitat (living mature and senescing trees – see Table 3.2) in the Special Protection Zone.

Table 3.2 defines Zone 1A as >12 Living Trees containing hollows per 3 hectares in patches greater than 3 hectares. A footnote further defines the trees as Mountain Ash, Alpine Ash or Shining Gum.

He did not agree with VicForests that the trees must be both mature and senescing but preferred the interpretation that both living mature and living senescing trees would be counted. He defined mature as more than 120 years old.

He also found the Action Statement under the FFG Act does not independently impose obligations on VicForests.

On this basis, Justice Osborn found that logging conducted in Gun Barrel prior to the injunction had not been unlawful, in that no Zone 1A (as now defined) had been logged.

He found that there is no Zone 1A (as now defined) in Gun Barrel and that the VRH logging now proposed will not be unlawful.

He also found that planning for Freddo and South Col coupes has not progressed to a point where it can be said that what is intended to be done would be unlawful; we don’t yet know what is intended.

He also found that VicForests is required to comply with the precautionary principle when conducting operations in the Toolangi coupes.

In the Judgment there are some other interesting comments.

Justice Osborn accepts that, “the zone 1A provision is open to MyEnvironment’s interpretation.” (para. 203)

He describes VicForests’ case in regard to the economic and social impacts of the grant of an injunction with respect to the consequences of restraining logging at Gun Barrel as “less than compelling.” (para. 337)

Perhaps most importantly, Justice Osborn accepts that there is a strong case for the overall strategic review of the current reserve/exclusion zone system as a result of the 2009 fires. (para. 299) 

Result

As a result of VicForests’ commitment to exclude all Zone 1A in the three coupes from logging, to log Gun Barrel by the VRH system and not to conduct a regeneration burn, the environmental damage done by this logging will be much reduced, if not entirely excluded, from the extensive clear-felling that would have occurred if the case had not been brought.

If the same limitations are imposed on the logging of the other 168 “Similar coupes” identified by VicForests, the implications for protected habitat could be very significant.

MyEnvironment is currently considering several options in response to the Court’s decision.

Additional Background

After the Black Saturday fires  in 2009, TRP amendments  were put through to enable VicForests to meet commercial obligations. Recovering communities had no opportunity to respond to the amendments, which introduced a number of new coupes including Gun Barrel, Freddo and South Col.

In 2010 another TRP amendment was announced, community members (including the Shires of Yarra Ranges and Murrindindi) made submissions and 33 coupes in Toolangi State Forest were withdrawn.

In 2011 another amendment was proposed, including some of the coupes withdrawn in 2010. In spite of numerous submissions (including from both Councils), all coupes were approved.

Preliminary works started on Gun Barrel in March 2011 and it was clear the coupe included some exceptional forest, in an area that had escaped the 2009 fires and was known to have historical records of Leadbeater’s Possum.  On 4th July a notice appeared In Toolangi advising the closure of Sylvia Creek Rd for logging from 18th July.

MyEnvironment coordinated a professional survey supported by number of community volunteers, with a view to assessing whether the area met the standards in the Leadbeater’s Possum Action Statement for Zone 1A or Zone 1B, which may not be logged. Initial, incomplete, results indicated that there were sufficient large and old trees present to warrant further surveys.

A community protest at the coupe was arranged at short notice for 17th July and was very well attended (80 -100). People were amazed to see the quality of the forest that was about to be logged and a community-based action emerged. By the end of the month forest activists, supported by local community members, were conducting direct action to disrupt and slow logging at Gun Barrel. This action continued every day at the coupe, becoming the most sustained protest ever in the Central Highlands and ending only when My Environment obtained an injunction in the Supreme Court, preventing logging until the case was resolved.

The Costs Order

MYENVIRONMENT Inc  v  VICFORESTS [2012] 

Justice Osborn has announced his decision on costs in  My Environment -v- VicForests.

He has awarded costs against My Environment, but not on the higher scale (indemnity).

We don't yet know how much this will be but can safely say it is a very substantial amount of money.

In announcing his decision, Justice Osborn made a number of observations, mostly in regard to his reasons for not awarding VicForests the higher scale. 

* The 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. 

* The Proceedings are fairly characterised as having been pursued in the public interest.

* The case brought about a material refinement of Vicforests' timber harvesting proposal with respect to Gun Barrel [coupe].

*  The case raises questions of the construction of 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. 

* On the question of whether the words 'mature and senescing' should be construed cumulatively or as alternatives, MyEnvironment Inc. was successful.

* MyEnvironment Inc has no motive of private gain.

* The interpretation of the provisions at issue has particular practical significance, and is of general public importance, because of the destruction and damage to large parts of the montane ash forests in the Central Highlands by the 2009 Black Saturday Fires.

* The construction of the legislation is not free from difficulty and falls to be interpreted within a series of overlapping complex and labyrinthine controls.

Given all the above you may wonder why he awarded costs against My Environment. In short, the reasons were that VicForests was successful in its defence and that its offer of settlement (27th January 2012) was considered entirely reasonable.

Our Reason:  an acceptance of the settlement would not have resolved the definition matter and would have had MyEnvironment agreeing to logging in area’s we fundamentally do not think should be logged as it qualifies as habitat in accordance with the Commonwealth approved Action statement.

Finally, Justice Osborn removed the interlocutory injunction but granted a further limited restraint of timber harvesting within Gun Barrel for 14 days, in order to protect such appeal rights as MyEnvironment Inc. may have.

Logging in small parts of Gunbarrel can commence after the 12th of April 2012. The attached is the Supreme court lodged and approved plan for Gun Barrel coupe.

Logging plan for Gun Barrel

BL11301

Legal Team:

The legal challenge has been prepared by solicitors from Bleyer Lawyers with barristers, Kristen Walker and Emrys Nekvapil, with support from Debbie Mortimer SC. Ms Mortimer SC was involved in a similar Brown Mountain Forest case in 2009 for East Gippsland, which resulted in the Court restraining VicForests from logging at Brown Mountain, and the recent successful High Court injunction to export refugees to Malaysia. Bleyer Lawyers acted for Environment East Gippsland Inc in the Brown Mountain case.

Kristen Walker SC is a powerful yet sensitive barrister with a broard history in social and environmental law

Emrys Nekvapil is the junior barrister on the case and a man that has extensive experience in commercial, social and environmental law.

Vanessa Bleyer  is the firm who has taken the case on our behalf. Vanessa comes to the case with a broad range of legal experience and success behind her. Bleyer law firm are one of Australia's few conservation directed law firms.

Due to the scientific nature of this case, our legal team have retained expert witnesses to qualify the levels of threat to endangered species;

Professor David Lindenmayer BSc, DipEd, PhD, DSc, FAA Professor, The Fenner School of Environment and Society ANU College of Medicine, Biology and Environment

Professor David Lindenmayer is a Research Professor at the Australian National University.  He completed his PhD in 1990 with his thesis titled “The Ecology and Habitat Requirements of Leadbeater's Possum”.  Since that time, he totals 753 publications.  He is the preeminent expert on the Leadbeater’s Possum and Hollow-bearing Trees in the Central Highlands.

VicForests have added economic arguments so our legal team have retained;

Dr Judith Ajani  Judith Ajani is an economist based at the ANU’s Fenner School of Environment and Society. She has nearly 30 years of forestry industry research and policy experience in both government and academia. Judith is the author of the well respected book 'Forest Wars' and has a background in advising the Victorian Government.

Judgement

Judgement.pdf 6.57 MB

  Justice Robert Osborn - Please read the transcripts and then read the judgment to gauge a feeling for the case.

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Beaten Leadbeater's?

Leadbeaters drawing

A pretty little possum with a black stripe down its back,

It darts throughout the forest tops through depths of darkest night.

It forages for sugars, grabbing insects for a snack,

Then slips back to its hollow with arrival of the light.

 

It was named 'Leadbeater's Possum' for a past museum worker,

A famous taxidermist (little creatures he would stuff),

But the story of this possum is a genuine tear jerker.

Oh, life has not been easy for this precious ball of fluff.

 

It thrives, you see, on forests, but its habitat is narrow.

From Marysville to Baw Baw, thereabouts, denotes its range.

It's Victoria's state emblem so, in part, we push its barrow,

But we challenge without mercy its capacity for change.

 

For we chopped and hacked the forest lands that were its sole dominion.

We plundered and we butchered and we put it on the run.

We reached the point where scientists were of the broad opinion

It was done for. Then it re-emerged in 1961.

 

Though we scarcely did deserve it, we'd been granted a reprieve,

A chance to right a wrong, to mend the errors of our ways

But, alas, we mended nothing, so we?re forced once more to grieve,

And face the harsh reality that crime just never pays.

 

A crime? Am I mistaken? You can check the regulations

And the statutes in the law books on the dim and dusty shelves.

You will never find it mentioned, though you search through many nations.

It's a crime against sweet Nature. It's a crime against ourselves.

 

For it seems we've missed our moment. It would seem Leadbeater's Possum

Is living now on borrowed time, it's fate forever sealed.

We could have ceased all logging and allowed the beast to blossom,

But a vision such as this, alas, shall never be revealed.

Then let us throw the dice once more. The odds, it's true, aren't pretty.

Let us do at last what's right, and put an end to crime.

The human soul needs more than just the bright lights of the city.

Let us let the forests stand, and leave the rest to time.

 

Who knows what magic beckons if we put aside our blunders,

If we down the screaming chainsaws and revert to Nature's dance?

What panoply awaits us, what array of shining wonders?

Perhaps Leadbeater's Possum, too, still has a fighting chance!

 
© Stephen Whiteside 26 July 2011

Daily Transcripts

TRANSCRIPT OF PROCEEDINGS
____________________________________________________________
SUPREME COURT OF VICTORIA
COMMON LAW DIVISION
MELBOURNE
BEFORE THE HONOURABLE JUSTICE OSBORN
B E T W E E N:
MYENVIRONMENT INC Plaintiff
- and -
VICFORESTS Defendant

MS K. WALKER, with MR E. NEKVAPIL, appeared on behalf of the
Plaintiff.

MR I.G. WALLER SC, with MR H. REDD and MR N. KASKANI,
appeared on behalf of the Defendant.

Defendant's Exhibits

The Defendant's exhibits from the court case

Plaintiff's Exhibits

The list of plaintiff's of exhibits. 

Appeal Hearing Transcript

The court transcript from the MyEnvironment vs VicForests appeal hearing.

SUPREME COURT OF VICTORIA

COURT OF APPEAL                                              

CIVIL DIVISION

RED COURT

MELBOURNE

FRIDAY 08 JUNE 2009

 

BEFORE THE HONOURABLE JUSTICE OF APPEAL BUCHANAN AND THE HONOURABLE JUSTICE OF APPEAL NETTLE

B E T W E E N

MY ENVIRONMENT INC                  Applicant

- and –

VICFORESTS                      Respondent

MR WALKER SC appeared with MR RED on behalf of the Applicant.

MR WATTERS appeared on behalf of the Respondent.

Correspondance

Correspondence leading up, during and after the Gun Barrel Injunction.

Read more