Philip Hopkins
VICFORESTS has rejected claims by Bunnings and environmentalists its native forest harvesting operations still breach environmental laws.
Last month, the full bench of the Federal Court overturned a decision made last year by the Federal Court’s Justice Mortimer that VicForests broke Commonwealth environmental laws because its harvesting harmed the critically endangered Leadbeater’s possum and threatened greater glider.
The full bench found that Victoria’s native timber industry is covered by Regional Forest Agreements, which provide all the protections required by the Commonwealth Environment Protection and Biodiversity Conservation Act.
The appeal set aside the orders made by Justice Mortimer.
“As all findings by Justice Mortimer that VicForests’ operations were conducted unlawfully were based on her incorrect finding that the EPBC Act applied, any continued suggestion that this case has found that VicForests’ activities are unlawful have no legal foundation,” VicForests said in a statement on its website.
Hardware giant Bunnings, however, has since reaffirmed its boycott of VicForests timber despite the Federal Court ruling.
Bunnings merchandise general manager Toby Watson told the Gippsland Farmer that Bunnings had reviewed the court decisions.
“Our timber policy requires our suppliers to source from legal, responsibly sourced and well
managed forest operations,” he said.
Mr Watson said the court had only reversed a single finding relating to the EPBC Act and upheld the judge’s 21 other findings.
“As such, Bunnings continues to lack confidence that VicForests’ forestry practices meet the requirements of our policy, and we won’t be reversing our decision at this time,” he said.
In its online statement, VicForests said of its 23 grounds for appeal, ground one — relating to the EPBC act — was the main ground.
“Most of the time spent in arguing the appeal was on this ground alone,” the state’s commercial forestry agency said.
Success on ground one decided the whole appeal, with all remaining 22 grounds alternatives in case ground one was unsuccessful.
“Public claims that VicForests was only partially successful because the Full Court did not ‘reverse the trial judge’s 21 other factual findings’ misrepresent the nature of the appeal and the findings of the Court,” VicForests said.
“There were 22 additional grounds – and only four related to findings of fact on past timber harvesting by VicForests.”
VicForests was unsuccessful on these four grounds, but “it is important to note that very little time was spent in court arguing these grounds,” VicForests said.
“Further, the full court itself noted that because of its decisions to uphold the appeal on the basis of ground one, the remaining grounds of appeal were dealt with in a summary way. Ultimately, VicForests’ failure to succeed on the alternative 22 grounds is not relevant to the outcome of the appeal,” it said.
VicForests said the RFA obligations did not mean that harvesting in state forests did not need to comply with environmental laws.
“In fact, the legal requirements for forestry operations in Victoria are very strict and include
the need to comply with a comprehensive set of rules designed specifically for timber harvesting, all overseen by the Victorian Chief Conservation Regulator,” VicForests said.
VicForests chief executive Monique Dawson recently told the Senate that Victoria’s strict code of forestry practice consisted of two documents 278 pages long.
Speaking to Senator Bridget McKenzie’s private members bill on the Federal Court case, Ms Dawson said with audit compliance targets from the independent regulator at 60 per cent to 100 per cent, “we’re at 98 per cent or 95 per cent, so we do very well on our audits”.
Ms Dawson said the Commonwealth had the capacity, through the RFAs’ legal framework, to take action against Victoria if the state was not meeting its obligations.
“To the best of my knowledge,” she said, there had been no dispute raised about prescriptions for the Leadbeater’s possum and greater glider.
Greens Senator Janet Rice said the crux of the issue was whether the code of forestry practice, or compliance with the RFA, was being met.
It appeared there was no ability, other than for the Commonwealth or the state, to take legal action under Commonwealth laws, she said.
Ms Dawson said that was correct.
“We would argue that’s the intent – that the jurisdiction would quickly be the state Supreme Court. And certainly, there have been cases brought in the state Supreme Court,” she said.
“In this case, it was no doubt brought in the Federal Court because there was very strong precedent for those cases lost in Victoria. So I imagine the applicants realised they would be unlikely to be successful if they brought an action in the state Supreme Court.”
Last week, VicForests was ordered to pay the costs of the Friends of Leadbeater’s Possum’s case, and half the cost of its the environmental group’s appeal case, after the state-owned logging agency was still found to have breached the law.
The costs judgment found the environmental group was “overwhelmingly successful at trial in establishing, as matters of fact, that VicForests contravened state legislative instruments with respect to the endangered greater glider and Leadbeater’s possum species.”
VicForests released a statement saying it was surprised and disappointed by the Full Federal Court’s decision on costs, “as costs are not ordinarily ordered against the successful party”, and indicated it was considering its position.
