Kinglake vs. VicForests - Patagonia

Kinglake Friends of the Forest is a group whose unwavering pursuit to defend and preserve Victoria’s Central Highland forests has taken them all the way to the courtroom.

The Southern Greater Glider, an endangered mammal that resides in the Central Highlands is the focal point of Kinglake’s case. With VicForests’ ineffective survey methods, and poor protection for Greater Gliders once detected, the steadily declining population faces potentially irreversible harm.

With the help of a Patagonia environmental grant, Kinglake Friends of the Forest was able to engage expert witness on greater gliders Associate Professor Grant Wardell-Johnson. It was through his expertise that they could offer a legally relevant assessment of VicForests current methods, and a proposal for an enhanced protection of a 240m radius from the tree a greater glider was spotted in.

Together, with Rosemary and Gayle from Kinglake Friends of the Forests, we had a look through the court transcript of Wardell-Johnson’s testimony and discussed its impact on the case.

Charlie: The trial’s nearly over. How are you feeling in the leadup to the judgement? Hopeful?

Rosemary: I don’t think we’re allowed to comment, legally. I can tell you what happened last Wednesday, and you can draw your own conclusions.

On Wednesday, Vic Forests came back to the court saying ‘we really need more forests to log. There are greater gliders in them, but we’ll leave a 240-metre radius buffer around each glider’.

We did our own survey and found a heap of gliders that weren’t found originally.

Of the four coupes, the judge has agreed that they can log three of them as long as they leave a buffer around the gliders that have been identified.

Now the judge didn’t say that they must do a decent survey first, but she did say that they have to leave this buffer. Until this interim junction was in place the protection that was offered for gliders didn’t include protecting the tree that the glider was sitting in.

So, tying it back to the importance of your grant and the expert witness reports. It’s basically because of Grant Wardell-Johnson’s report that the court took on that protection. If it wasn’t for him, it wouldn’t have happened.

Charlie: Can you even commit to the trial without an expert witness?

Rosemary: No.

Charlie: Even if you have the evidence to support your case, you still need that expert to validate that evidence?

Gayle: My understanding about expert witnesses is that the judge won’t even consider evidence unless it’s by an expert authority.

Charlie: What’s it like facing up against such a well-resourced state-owned business.

Rosemary: (laughs) It’s really some David and Goliath stuff isn’t it.

VicForests have pretty much unlimited resources, if they’d had their expert witnesses and we didn’t, it would have been impossible. And, of course, that money is our taxes at work which is extra annoying.

So yes, when we realised we could actually do this case it was unbelievably exciting.

You pinch yourself. It’s wild.

Charlie: It seems that conservation has been taken out of the coupes and into the court. I mean, there’s a lot more legal disputes now than just blockading.

Rosemary: It seems to be harder to get the numbers into direct action than it used to be. You know, there used to be blockades of 100s of people, the Franklin River had 100s of people. Whereas now, direct action is happening, but it’s just with small numbers of people.

One argument against direct action is, by walking into a coupe and causing machines to stop, and locking on, you can stop a few hours of work in 50 acres. Whereas with this court case, and with the efforts of two other groups, we’ve prevented logging in 7000 hectares for nine months. But – just speaking personally now, not on behalf of KFF – there’s still very much a place for direct action and that’s because the law moves very slowly.

So, if you're like us and lucky enough to get someone like Patagonia to help pay for the hugely expensive expert witnesses, and some of the other unavoidable costs, you can be far more effective legally than just going in.

Charlie: I guess there’s also a link between the two, those blockades can lead to legal action.

Rosemary: And media too. It’s easier sometimes to get media from direct action. The thing is most people have no idea what’s going on in the forests. A lot of people don’t even realise we’re logging native forests.

HER HONOUR: The question is whether VicForests timber harvesting operations pose a threat of serious or irreversible environmental damage in respect of greater gliders and yellow-bellied gliders at the landscape level…

ASSOC. PROF. WARDELL-JOHNSON: Well, the answer to the question is yes, it does pose serious irreversible damage to the environment at the landscape level, the logging activities of VicForests… If you carry out that activity sequentially over a landscape over a period which is less than the return time for that forest, and then you return to do that activity again before that return time, then you have by definition caused serious and irreversible damage to the environment, at least for the hollow-dependent, mature dependent species that occur there.

Rosemary: Like koalas, greater gliders are very limited in the species of tree they can use. A certain tree at a certain time will be suitable but at others it won’t. Their survival is very touch and go even before you interfere with them. They’re on a knife edge getting the energy they need without having to expend it to go travelling. And obviously old trees are important to them because they have the hollows.

Gayle: Effectively the cumulative outcome of what is happening is that the overall age of the forest is constantly being reduced. It’s got younger growth in it.

What that leads to is an increase in fire severity. The older forests – the ones with bigger trunks, heavier canopies, are more wet – they’re more fire resistant than younger forests. So, the reduction of the age of the forests increases the fire severity, which reduces the age of the forests further. It’s a vicious circle.

ASSOC. PROF. WARDELL-JOHNSON: There is a clear problem that we need to address in regard to climate change, and if that’s the case, then we need to be managing our logging operations in a very conservative way. In other words, we shouldn’t be doing clear fell logging when we’re having a problem of likely 2 degrees of global warming which will increase the impacts of fire and the interactive effects of fire and logging, and climate change will be exacerbated…

Charlie: One thing Grant touches on is that VicForests doesn’t consider the synergistic effects of climate change, fire and logging. They simply view them as individual factors with varying impacts.

Gayle: I just had the opportunity to listen to a conversation that occurred about ten years ago. They had a task force that Daniel Andrews put together to see if we could get a consensus on logging.

VicForests in that meeting admit that they do not factor any fire risk in their modelling. The fire is only implemented into their modelling after it has occurred. Their logging plans don’t even factor it in.

HER HONOUR: …Now, does that answer hold for both greater gliders and yellow-bellied gliders?

ASSOC. PROF. WARDELL-JOHNSON: It holds most for greater gliders. But there is – they have different behaviours and ecologies as you would appreciate, Your Honour…

Charlie: The case is based around flagship species. Can you talk to me about what a flagship species is?

Rosemary: It’s also known as an umbrella species. It’s a species that, if you are protecting it, as a consequence you are also protecting a whole lot of other species. Often because they have a lot of similar needs…

It’s worth mentioning that Wardell-Johnson provided a really detailed protocol of how you should survey for greater gliders, and VicForests said, “No. We cannot. And we won’t, do this”. Basically, saying it’s too dangerous.

So that meant we had to get an OH&S expert to get his opinion – and you should know, expert witnesses don’t act for the party they have to be impartial – he said that the surveys could be done safely.

MR KORMAN: If the plaintiff were to succeed and get those orders, you’re telling the court that you will shut down VicForest’s Central Highlands and East Gippsland operation?

MS DAWSON (VicForests Chief Executive): Yes.

MR KORMAN: Permanently?

MS DAWSON: Well, yes, pending other response.

Rosemary: One of the ways that we tackled their claims that these surveys aren’t safe is that we did it. Just with volunteers.

There was a coupe that we chose. It was pretty rough, pretty steep. And we did the 50 metre transects all over that coupe and we did it on three different nights. The reports and the videos we sent were all presented in court.

It showed that a bunch of novices can do this, so you should be able to.

Gaye: One of the beautiful things that happened when they were surveying these coupes that Vic Forest wanted to log was that, not only greater gliders were found, but a koala with a joey on its back was found.

Rosemary: I’d sum it all up by saying, you can regrow trees, but you can’t regrow an eco-system.

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