Since 2015, the Rubicon Forest Protection Group has engaged in good faith with DELWP as the regulator of timber harvesting in Victoria. However, it is increasingly clear that the principal function of the Office of the Conservation Regulator (OCR) is to protect VicForests from regulation rather than ensure that the principles of ecological sustainability are realised. It is increasingly apparent that participating in what is clearly a farce only serves to shore up its claim of legitimacy.

Unsustainable! Was RFPG’s first deep critique of excessive logging in the Central Highlands. The core argument of this paper was that the scale and speed of logging was destroying forests across vast areas much faster than they could be regenerated in any meaningful ecological sense.  In terms of sawlog supply the scale of logging was shown to be unsustainable but in terms of biodiversity and the prospects for forest-based tourism it was devastating. Our submission was ignored by VicForests and passed on to the ill-fated Forest Industry Taskforce by the Premier.

Over the next several years the RFPG has continued to publicise the unsustainable scale of logging (see for example the Rubicon Forest Movie, May 2018); has contributed to inquiries and consultations (see for example RFPG submission to the EPBC Act Review); and has proposed alternative economic development frameworks (see RFPG Tourism Development submission, 2019). (See RFPG Documents for a full listing of RFPG submissions and reports.)

Precautionary principle

In August 2019 RFPG published a major critique, structured in this case, around the ‘precautionary principle’. The precautionary principle is enshrined in the National Forests Policy (1992) and entrenched in the Code of Practice for Timber Production (Clause 2.2.2.2). (See overview of forest regulatory framework here.)

In its 2019 analysis RFPG highlighted the skewed age class distribution of the Rubicon Forest, with most of the forest under 40 years old whereas pre-colonisation, most trees were over 300 years old.  We reviewed the huge loss of ash forests from the 2009 fires and from logging using astonishingly detailed satellite imagery. We showed that accelerated logging in the remaining unburnt forest was causing lasting, in some respects irreversible, damage to biodiversity. Looming over the damage done by logging and fire we highlighted the looming threat of regional warming and rainfall declines associated with climate change.

Unfortunately, the law finds it easier to address local and specific threats than generalised indirect threats. In his first judgement in the 2012 My Environment case Justice Osborn opined (para 268) that “[T]he more generalised the threat and the more indirect and less immediate the damage to a sensitive aspect of the environment, the more difficult it will be [for the Court] to be satisfied that the precautionary principle requires abstinence from a particular action”. There is no better illustration of the ‘boiling frog’ situation.

Far from ensuring that VicForests properly apply the precautionary principle, DELWP’s Office of the Conservation Regulator (OCR) has repeatedly reiterated VicForests’ claim that is not required to consider landscape level conservation; that their responsibility is focused solely at the coupe level. The absurdity of this position was dramatically articulated in Justice Mortimer’s (May 2020) findings in the Leadbeaters Possum case. The court found that VicForests had failed to apply the precautionary principle to its logging operations (as it is required to do under the Code) and that, as a consequence, the exemption of VicForests from having to comply with Commonwealth environmental legislation (under the Commonwealth State Regional Forests Agreement) no longer applied.

Notwithstanding Justice Mortimer, the OCR has repeatedly rejected, usually without any formal assessment, RFPG allegations of breaches of clause 2.2.2.2 of the Code (which deals with the precautionary principle).

In correspondence to the RFPG (5 Jan 2021) the OCR claims that the precautionary principle only comes into play when “(i) there is a real threat of serious or irreversible environmental damage, and (ii) there is substantial material scientific uncertainty as to the environmental damage”.

In contrast to this 'two preconditions' interpretation the Glossary to the Code defines the precautionary principle as follows:

‘precautionary principle’ means when contemplating decisions that will affect the environment, careful evaluation of management options be undertaken to wherever practical avoid serious or irreversible damage to the environment; and to properly assess the risk-weighted consequences of various options. When dealing with threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

The 'two preconditions' interpretation is repeated in the OCR position statement on the application of the precautionary principle in relation to the East Gippsland fires of 2019/20 secretly issued on May 2020 and only brought to light by GECO through a Freedom of Information request:

The Conservation Regulator has formed the view that the precautionary principle is currently triggered by risks of serious and irreversible damage to Victoria's biodiversity posed by timber harvesting operations in light of the 2019/20 Victorian bushfires, and the significant scientific uncertainty about the status of Victoria's biodiversity from these operations in this context.

This reading of the Code reflects the findings of Justice Osborn in the Brown Mountain case (see para 187 et seq). In the Leadbeater's case VicForests advanced this 'two preconditions' interpretation of the Code but Justice Mortimer ruled that this interpretation varied too far from the legislative context and wording of clause 2.2.2.2 in the Code. Justice Mortimer found against VicForests - they had failed to properly apply the precautionary principle - and clearly rejected their reliance on the Brown Mountain interpretation (see May 27 Judgement, para 800 et seq).  

Notwithstanding the judgement of Justice Mortimer, the DELWP report of October 2020 on Threatened Species and Communities Risk Assessment under Victoria's Regional Forest Agreements again advances the Brown Mountain ('two preconditions') interpretation of the precautionary principle (p23): 

The precautionary principle is a free-standing and overarching obligation within the Code, which must be considered when there is a threat of serious or irreversible environmental damage and substantial scientific uncertainty as to the environmental damage.

In the 'two preconditions' interpretation, adopted by both VicForests and DELWP 'lack of full scientific certainty is not a reason for postponing measures' (in the Code) has been replaced by 'significant scientific uncertainty' as a necessary condition for ‘triggering’ the PP. Adopting the 'two preconditions' interpretation significantly limits the application of clause 2.2.2.2 of the Code. 

In sharp contrast to the 'two preconditions' interpretation is the 'three steps' interpretation advanced by Friends of Leadbeater's in the Leadbeater's Possums case (Judgement of 27 May para 828): 

The correct approach to the application of cl 2.2.2.2 is to apply that clause in its terms. The clause is engaged where a person or entity is considering “decisions” that will “affect the environment”. Where the provision is engaged, the obligation is upon VicForests to:

a.         “carefully” evaluate management options;

b.         “properly” assess the risk weighted consequences of “various options”;

c.         in a manner so as to “wherever” practicable avoid serious or irreversible damage to the environment.

…

The factual question for determination is whether, on the balance of probabilities, the Court is satisfied that VicForests, in identifying forests for harvesting and designating silvicultural methods for those coupes, carefully evaluated management options to wherever practical avoid serious or irreversible damage to the Greater Glider and properly assessed the risk-weighted consequences of those options.

This interpretation was accepted by Justice Mortimer (para 831). 

The adoption by the OCR and DELWP of VicForests' preferred interpretation of the precautionary principle is extraordinary in view of the fact that it was rejected by Justice Mortimer. Likewise the failure of DELWP to adopt the 'three steps' interpretation as elaborated by Friends of Leadbeater's is telling. 

The OCR and DELWP are going out of their way to protect VicForests from the application of clause 2.2.2.2 of the Code. 

Cumulative impact

In 2020 the RFPG re-focused its advocacy around ecological sustainability and the precautionary principle to include a focus on the concept of cumulative impact.  

Cumulative impact is not a new idea. Its importance is highlighted in the 2006 Ministerial guidelines for assessment of environmental effects under the Environment Effects Act.

An EES should identify the potential for cumulative effects, i.e. where a project, in combination with one or more other proposed projects, or existing activities in an area, may have an overall significant effect on the same environmental asset. A regional perspective can be helpful in this regard, by putting the potential effects of a project in a wider context.

A more recent analysis is provided by the Great Barrier Reef Marine Park Authority in their 2018 Cumulative Impact Management Policy in which cumulative impacts are defined as

the interaction of effects between one or more impacts and past, present and reasonably foreseeable future pressures. Cumulative impact assessment takes into account direct, indirect and consequential impacts and the incremental and compounding effects of these impacts over time, including past, present and reasonably foreseeable future pressures.

The importance of considering cumulative impact was also recognised in 2019 amendments to Victoria’s Flora and Fauna Guarantee Act, following the 2017 Review of the FFG Act. In new Section 4B the Act provides that Ministers and public authorities must give proper consideration (ie not simply cursory dismissal) to the objectives of the FFG Act and must give consideration to potential impacts on biodiversity including (a) long and short-term impacts; (b) beneficial and detrimental impacts; (c) direct and indirect impacts; (d) cumulative impacts; and (e) the impacts of potentially threatening processes. 

More recently the Samuels report (2020) on the Environment Protection and Biodiversity Conservation (EPBC) Act has sharply criticised Commonwealth and State regulators for not effectively addressing cumulative impacts of environmental threats.

Samuels urges a greater emphasis on regional planning in environmental regulation in order to shift the focus from project-by-project assessments, to effectively planning at the right scale for a sustainable environment and for sustainable future development.

Regional plans would consider cumulative impacts and key threats and build environmental resilience in a changing climate by addressing cumulative risks at the landscape scale. Managing these threats to matters of national environmental significance (MNES) at the regional scale will have flow-on benefits for more common species and biodiversity more broadly.

Samuels recommends a new regime based on environmental standards. The overarching MNES Standard would include: “use all reasonable efforts to prevent actions contributing to detrimental cumulative impacts or exacerbation of key threatening processes.”

Notwithstanding Samuels and the provisions of the FFG Act DELWP’s OCR deploys tortuous sophistry to avoid considering the cumulative impacts on biodiversity in Victoria’s native forest of logging, fires past, climate change, and the threat of future fires. The OCR sees its responsibility as applying coupe level prescriptions on a coupe by coupe basis and having no regard to the cumulative impact of coupe upon coupe upon coupe.

In relation to cumulative risk, THCU has advised RFPG that “DELWP assesses cumulative risk to threatened species through the development of Flora and Fauna Guarantee Act 1988 Action Statements”. By omission it appears that cumulative risk to forest ecosystems is not considered to lie within the remit of the THCU.

Rather, the THCU suggests that the cumulative impact of timber harvesting on ‘threatened species and communities’ has already been adequately addressed by the creation of 96,000 ha of immediate protection areas (largely in areas that were already protected); by the decision to end harvesting in old growth forests (using the very narrow definition that OCR has adopted, which is at odds with the National Forest Policy Statement); and by the promise to phase out native forest timber harvesting by 2030 (by which stage there will be no commercially harvestable forest left).   

The proposition that the landscape level provisions of the Code do not apply to VicForests and thus are not subject to the compliance regulation of the THCU, has been firmly and repeatedly advanced by both VicForests and DELWP and equally firmly rejected by Justice Mortimer.

The significance of cumulative impact has been underlined by the Samuel Report on the EPBC Act and by the new provisions of the FFG Act.

Unsustainable timber supply commitments

In September 2020 RFPG wrote to the Victorian Auditor General in connection with his audit of the Government’s Biodiversity 2037 plan. The core argument of this submission was that there are impossible contradictions between the State Government’s forest conservation responsibilities and its timber supply commitments.  The scale of timber harvesting required to meet VicForests’ supply contracts is simply incompatible with maintaining the biodiversity of Victoria’s native forests as the Sustainable Forests (Timber) Act and the Code require.

Owing to the State Government's unsustainable timber supply commitments, VicForests is required to breach code provisions. However, the conservation regulator has a choice: to turn a blind eye to such breaches and ensure the Government's timber supply contracts are fulfilled or to follow their ethical and statutory obligations to ensure the Code is observed.

Regulatory failure

Not only is the regulator being widely criticised for its abject failure to ensure compliance with the Code but the State Government’s forests regulation framework more generally is facing extreme stress.

The mooted legislation to protect VicForests from conservation litigation has not seen light of day and the scheduled review of the Code keeps disappearing into the never-never. 

Public recognition of regulatory failure in relation to Victoria’s native forests is having a cumulative impact on the political cost of propping up the Premier’s friends in the logging industry. It might be time for the Labor Government to call on the precautionary principle if they are to survive the next election.

5 Feb 2021
Updated 14 Feb, 15 Feb