You better get a lawyer Victoria’s forest biodiversity. You’re gonna need a real good one!

Threatened Victorian forest-dependent species may soon find themselves with almost no legal protection from logging, outside of the state’s national parks and conservation reserves, if the State Government goes ahead with proposed changes to the Code of Practice for Timber Production 2007.

Many species, such as the Leadbeater’s Possum (Gymnobelideus leadbeateri), one of Victoria’s faunal emblems, and the Spotted Tree Frog (Litoria spenceri) areSpotted Tree Frog restricted to the forests of South-eastern Australia and have, in the past, enjoyed the protection of both the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 and Victoria’s Flora and Fauna Guarantee Act 1988. The Regional Forest Agreements of the late 90’s and early 2000’s removed the protection afforded by the EPBC Act quicker than the Democrats could say “GST”. Now the proposed changes to the Code of Practice for Timber Production 2007 could all but do the same to the FFG Act.

Leadbeater’s Possum

As it currently stands (pun intended) the Code is the primary instrument making FFG Action Statements enforceable, with the Code itself made binding under the Sustainable Forests (Timber) Act 2004. There is an FFG Action Statement for each species listed under the FFG Act, and the statements outline what can and can’t be done by loggers in Victorian State Forests. For instance, the Action Statement for Leadbeater’s Possum stipulates that logging cannot occur in areas of critical habitat, deemed Zone 1A.

But if the changes to the Code are implemented, then a proponent could lobby the Secretary to the Department of Sustainability and Environment to have an FFG Action Statement not apply. The proposed variations to the Code are vague, to say the least, stipulating that the Secretary to the DSE should consider seven factors when deciding whether the requirements of an FFG Action Statement should apply to a logging coupe or group of contiguous coupes:

  1. The known listed taxa or communities identified at the proposed location or coupe(s).
  2. The known range of the listed taxa or communities identified at the proposed location or coupe(s).
  3. The known habitat type(s) required by the listed taxa or communities identified at the proposed location or coupe(s).
  4. The amount and quality of suitable habitat for the listed taxa or communities identified at the proposed location or coupe(s) that is already protected from timber harvesting in national parks and other conservation reserves.
  5. The population size required to maintain the viability of the listed taxa or communities identified at the proposed location or coupe(s) (i.e. to prevent extinction of the taxon or community at the species and landscape level).
  6. The amount, quality and connectivity of habitat that is required to provide for the viability of the listed taxa or communities identified at the proposed location or coupe(s) at the species and landscape level.
  7. The results of any threatened species surveys undertaken at the location or coupe(s) in the past 18 months that have been verified by the Secretary to the Department of Sustainability and Environment.

Not to mention the lack of clarity around the actual process whereby the Secretary considers these factors, there are serious holes in the list itself. There is no scope in the proposed variations to the Code for the Secretary to consider genetic factors, the dynamism of critical habitat distribution, and other threatening processes such as climate change and disease that may act synergistically with habitat loss due to forestry. There is also no mention of uncertainty – it reads as if they think someone will be able to easily quantify these factors with high precision.

But perhaps most worrying of all is the lack of any transparency or public accountability in the process. It seems that it may be possible for a proponent to make an application to have an FFG action statement not apply, and for the Secretary to make a decision, with only those two parties ever knowing the application was made.

The proposed changes to the Code come on the back of findings by Supreme Court Judge Justice Robert Osborn that the current reserve system and the regulations, which are supposed to protect listed species like Leadbeater’s Possum, may be inadequate. In the recent case MyEnvironment v Vicforests, Justice Osborn found that the 2009 Black Saturday bushfires had affected Leadbeater’s Possum habitat to such a degree as to raise questions over the adequacy of their protection and cause him to call for a review of the adequacy of the reserve system:

“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”

The changes to the Code do the opposite of what is obviously needed to protect threatened Victorian forest-dependent species. Rather than strengthen the legal protection and status of the state’s reserve system, the changes will very likely weaken them and may lead to the further decline of many forest-dependent species.

The proposed changes were open for public comment until 2 Feb 2012. The final approval of the variations to code is expected to be made public any day now.

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