Will this be one of the last attempts available to communities seeking to legally curb rapacious loggers from destroying New South Wales koala habitat?

 

Clarence Valley Independent, 21 October 2020:

The NSW Environment Protection Authority (EPA) has commenced five prosecutions in the Land and Environment Court against Forestry Corporation of NSW (FCN) for allegedly breaching licence requirements in 2018.

Allegedly committed by FCN’s contractors, the offences – the felling of trees in exclusion zones and protected areas, some of which are specifically set up to protect koala habitat – took place in Wild Cattle Creek State Forest (west southwest of Glenreagh).

The FCN states in a media release that it had set aside “three times” the required kola habitat “under the rule set” and that the “EPA’s allegations relate to nine trees”, despite “protecting an additional 6,000 trees”.

The prosecutions follow the EPA issuing a stop work order on Saturday July 18, to cease tree harvesting, in compartments 32, 33 and 34 of the forest, where “serious breaches of forestry operations rules” were alleged to have been committed.

The EPA alleges that the current alleged breaches occurred in compartments 539 and 540 of the forest, in breach of Forestry Corporation’s licence.

The EPA’s acting chief executive officer, Jacqueleine Moore, said it was unacceptable to put vulnerable species, such as the koala, in danger by breaking the rules.

“We have strict procedures in place to protect wildlife, and if they are disregarded it can put these animals under threat,” Ms Moore said.

The EPA alleges that: Forestry Corporation’s contractors felled trees and operated snig tracks (tracks created by harvesting machinery) within a koala high use area exclusion zone located within Compartment 539 of the forest; and, contractors felled trees in protected rainforest areas and an exclusion zone around warm temperate rainforest.

Offences relating to koala exclusion zones carry a maximum penalty of $440,000 each; the other “three offences carry a maximum penalty of $110,000 each”.

“In this instance, after a long investigation process that involved interviews and a consultation process with Forestry Corporation, the EPA has decided that these actions warrant prosecution,” Ms Moore said.

“We’re sending a strong message that laws created to protect the environment, and in particular vulnerable species like the koala, must be adhered to.”…..

It should be noted that NSW state forests are exempt from the provisions of State Environmental Planning Policy (Koala HabitatProtection) 2019 (amended 3 September & 16 October 2020), as is private land being commercially logged under a private native forestry plan.

Exemptions go further and it appears all land now listed as "any area of the State" in Part 5A below (apart from certain land in Ballina, Coffs Harbour City, Lismore, Kempsey & Port Stephens local government areas) is no longer covered by the Koala Habitat Protection SEPP under amendments to NSW Land Services Act 2013 being rammed through state parliament by the NSW National Party. 

It seems that this may possibly only leave urban land already covered by a local government registered development control plan and the national park estate with a certain degree of protection

PART 5A - LAND MANAGEMENT (NATIVE VEGETATION)

This Part applies to any area of the State, other than the following--

(a) urban areas of the State to which State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 applies,

(b) national park estate and other conservation areas, namely--

(i) a wilderness area declared under the Wilderness Act 1987 , or

(ii) land reserved under the National Parks and Wildlife Act 1974 or acquired by the Minister administering that Act under Part 11 of that Act, or

(iii) land dedicated or set apart as a flora reserve under the Forestry Act 2012 (or any Act repealed by that Act), or

(iv) land to which an interim heritage order or listing on the State Heritage Register under the Heritage Act 1977 applies, or

(v) a declared area of outstanding biodiversity value under the Biodiversity Conservation Act 2016 , or

(vi) an area declared to be critical habitat under Division 3 of Part 7A of the Fisheries Management Act 1994 , or

(vii) a declared World Heritage property within the meaning of the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth, or

(viii) land dedicated or reserved under the Crown Lands Act 1989 for similar public purposes for which land is reserved, declared or listed under the other Acts referred to in this paragraph, or

(ix) land to which an interim protection order under Part 11 (Regulatory compliance mechanisms) of the Biodiversity Conservation Act 2016 applies, or

(x) Lord Howe Island,

(c) State forestry land, namely--

(i) land that is a State forest or timber reserve under the Forestry Act 2012 , or

(ii) land acquired under Division 4 of Part 3 of the Forestry Act 2012 for the purposes of a State forest (not being any such land acquired for the purposes of a timber plantation).

The regulations may amend this section for the purposes of adding or removing areas of the State to which this Part applies (or of revising references to areas of the State). [my yellow highlighting]

NSW Nationals MP Chris Gulaptis boasts of his betrayal of his electorate

Clarence Valley Independent, 20 October 2020:

Koalas will have more protection but farmers and foresters won’t be saddled with unreasonable red tape following the introduction of a much improved State Environmental Planning Policy (SEPP) into State Parliament last Thursday (October 15), according to Clarence Nationals MP Chris Gulaptis.

“The Local Land Services Amendment Bill 2020” is a vast improvement on what was proposed initially and a win not just for the Nationals, but also for farmers, the timber industry and indeed koalas,” Mr Gulaptis said.

“I was prepared to walk away from the Government over the original Liberal Party plan, but this is a terrific compromise secured by the Nationals in NSW Government, in which rural industries are protected but property developers will be banned from disturbing koala habitat.

“As I said before, the red tape stops at the farm gate and that is how it should be,” Mr Gulaptis concluded.

This is a précis the final 16 October 2020 version of the amended NSW SEPP, State Environmental Planning Policy (Koala Habitat Protection) 2019:

• Retains its new commencement date of 1 March 2020;

• Doesn’t apply to - (b) land dedicated under the Forestry Act 2012 as State forest or a flora reserve. An exemption also contained in the previous 3 September 2020 version of this SEPP;

• Only applies to 83 named local government areas out of a total of 128 local government areas and to - (a) in the koala management area specified in Schedule 1 opposite the local government area, or (b) if more than 1 koala management area is specified, in each of those koala management areas. Clauses also included in the previous version of this SEPP;

• Only applies to land classified as core koala habitat which is over 1 hectare in size. This applied to land in the previous version of the SEPP as well;

• Doesn’t apply to any land on which a development application has already been lodged, as was the case under the previous version of this SEPP;

• Tightens the definition of core koala habitat so that a higher level of proof is required at this clause - (a) an area of land which has been assessed by a suitably qualified and experienced person in accordance with the Guideline as being highly suitable koala habitat and where koalas are recorded as being present at the time of assessment of the land as highly suitable koala habitat;

• Made more land exempt from its provisions - (c) land on which biodiversity certification has been conferred, and is in force, under Part 8 of the Biodiversity Conservation Act 2016;

• Allows larger buildings or buildings on a different part of a post-bushfire residential lot by repealing - (b) the replacement dwelling house is within the existing building footprint;

• Removes this provision protecting koala habitat identified by a particular form of mapping - (i) is not identified on the Koala Development Application Map.

It should be noted that at no time did the 3 September 2020 version of this SEPP ever apply to agricultural land broadly. The existing rules for routine farming activity and rural land clearing did not change and, if farmers had koala habitat on their land they could still apply and get approval to clear koala habitat under existing land clearing laws.

Provisions in Local Land Services Amendment (Miscellaneous) Bill 2020 have little or nothing to do with protecting koalas or farmers with koalas on their land - despite the Nationals MP for Clarence Chris Gulaptis attempting to marry the Koala Habitation Protection SEPP and this Land Services amendment in the public's mind.

What the Local Land Services Amendment (Miscellaneous) Bill 2020 actually does is remove all local government areas from the protection of State Environmental Planning Policy (Koala Habitat Protection) 2019 with the exception of just five local government areas - Ballina, Coffs Harbour City, Kempsey, Lismore and Port Stephens.

The NSW Nationals wanted the bill to go forward using the Koala Habitat Protection SEPP as the excuse masking its real intent - to establish as law those clauses that (i) allow the commercial logging of native trees to continue unimpeded on private land by circumventing a government review of the private forestry system and (ii) to allow future clearing of native timber on farmland without the need for authorisation under other state legislation, including the Environmental Planning and Assessment Act 1979 and Biodiversity Conservation Act 2016 .

On 20 October 2020 the NSW Parliament’s Legislation Review Committee stated in part of the impending legislation of which Gulaptis now so proudly boasts:

The [Land Services] Bill seeks to remove several requirements for land owners to obtain development consent under Parts 4 and 5 of the Environmental Planning and Assessment Act 1979 (the EPA Act). In doing so, the Committee notes that the Bill would remove local councils' ability to assess development applications, engage with relevant neighbour and community stakeholders, and make recommendations regarding the proposed development changes. It may thereby impact on the rights of these stakeholders to participate in such processes and be consulted about issues that may affect them…... [my yellow highlighting]

Chris Gulaptis is boasting of bad law and misrepresenting exactly what is contained in the new legislation to residents and voters in his electorate.

This former surveyor, property developer and mining operations consultant voted for the extinction of a unique species, the Australian Koala, and for virtually unconstrained land clearance which will see many more native species at threat of extinction in New South Wales. 

Forestry Corporation of NSW ordered to cease tree harvesting at Wild Cattle Creek State Forest

The EPA says this is one of two 'giant' trees felled in the Wild Cattle Creek State Forest.(Supplied: EPA) - ABC News, 19 July 2020

NSW Environment Protection Authority (EPA), media release, 18 July 2020:

EPA orders Stop Work on forestry operations in Wild Cattle Creek State 

Forest The NSW Environment Protection Authority has today issued Forestry Corporation of NSW with a Stop Work Order to cease tree harvesting at Wild Cattle Creek State Forest inland from Coffs Harbour. 

 The NSW Environment Protection Authority has today issued Forestry Corporation of NSW with a Stop Work Order to cease tree harvesting at Wild Cattle Creek State Forest inland from Coffs Harbour. 

EPA Executive Director Regulatory Operations Carmen Dwyer said EPA investigations into operations in Compartments 32, 33 and 34 of the forest had revealed serious alleged breaches of the rules that govern native forestry operations, set out in the Coastal Integrated Forestry Operations Approval (IFOA), in relation to the protection of trees that must not be felled. 

“To maintain biodiversity in the forest, the Coastal IFOA rules require loggers to identify giant trees (over 140cm stump diameter) and ensure they are protected and not logged. The EPA alleges that during an inspection on 9 July 2020 EPA officers observed two giant trees which had been felled. 

“Any trees except Blackbutt and Alpine Ash with a diameter of more than 140cm are defined as giant trees and must be retained under the Coastal IFOA,” Ms Dwyer said. 

“As a result, the EPA has issued a Stop Work Order under the Biodiversity Conservation Act to stop Forestry Corporation logging in the forest. The order ensures that no further tree harvesting takes place in the area where the trees were felled for 40 days, or until the EPA is confident that Forestry Corporation can meet its obligations to comply with the Coastal IFOA conditions to protect giant trees.” 

This is the first time the EPA has issued Forestry Corporation with a Stop Work Order under new laws which came into effect in 2018. 

“These two old, giant trees have provided significant habitat and biodiversity value and are irreplaceable. Their removal points to serious failures in the planning and identification of trees that must be retained in the forest. 

“These are serious allegations and strong action is required to prevent any further harm to giant or other protected trees which help maintain biodiversity and provide habitat for threatened species like koalas.” 

This action follows the recent issue of two Penalty Notices totalling $2,200 to Forestry Corporation for non-compliances associated with an alleged failure to correctly identify protection zones for trees around streams and for felling four trees within those protected zones in Orara East State Forest near Coffs Harbour. The penalties were issued under previous rules when the penalties were lower. 

“The EPA continues to closely monitor forestry operations despite the current COVID-19 restrictions, to ensure compliance with the regulations,” Ms Dwyer said.  

“The community can be confident that any alleged non-compliance during forestry operations will be investigated by the EPA and action taken if the evidence confirms a breach.” 

Stop Work Orders and penalty notices are examples of a number of tools the EPA can use to achieve environmental compliance including formal warnings, official cautions, licence conditions, notices and directions and prosecutions. A recipient can appeal and elect to have the matter determined by a court. 

For more information about the EPA’s regulatory tools, see the EPA Compliance Policy at www.epa.nsw.gov.au/legislation/prosguid.htm

ABC News, 19 July 2020:

The Gumbaynggirr Conservation Group's Zianna Fuad said the group wanted the forest protected and she was extremely relieved the stop work order was in place. 

"It's devastating that we have lost these old-growth trees that we can never get back," she said. 

"Wild Cattle Creek is especially important — it's the second largest koala hotspot in NSW. 

"We have amazing koala forests up here that we would love to see protected as The Great Koala National Park."

BACKGROUND

BuzzFeed, 1 July 2020:

Sandy Greenwood, a Gumbaynggirr custodian and spokesperson, is in the process of taking Forestry Corporation to court. 

Her statement about the events reads: “We have given our notice of Trespass to the Forestry Corporation and demanded they stop the logging of all Gumbaynggirr Country for lack of jurisdiction and no conciliation or consent. 

The NSW Government and Forestry Corp are breaching international and domestic law under the international declaration of Indigenous Peoples' rights. 

"We are the Gumbaynggirr people, sovereign custodians of Gumbaynggirr Country, land and waters and we demand an end to logging in these irreplaceable and incredibly ancient publicly-owned forests. 

Logging must be stopped immediately and they must be conserved for all beings to enjoy.” 

The sections of the forest that were scheduled to be logged at Wild Cattle Creek are critically important. Not only are they unceded Gumbaynggirr Country, but the forest remains a piece of unburnt refuge for koalas in the area, as it was narrowly missed by the Liberation Trail bushfire last November.

Sydney Criminal Lawyers, 3 July 2020:

The anti-logging campaign the Gumbaynggirr Conservation Group has recently launched in northern NSW is doing exceedingly well. And the word is that the model it’s using to gain all the traction may soon be mirrored across the continent. 

Back in April, by cover of COVID, the construction of roads into the Nambucca State Forest commenced, with a view to opening up the area for logging. 

This native forest escaped the wrath of last summer’s unprecedented bushfires, but evidently not that of the Berejiklian government. 

The Forestry Corporation of NSW then moved in to commence logging in May. The state-owned company has said it’s only conducting “low intensity thinning” of “regrowth” forest, however local custodians, the Gumbaynggirr people, assert that this isn’t the case. 

But, despite loggers having moved in with machinery, the traditional owners and their allies have had them on the run. A series of lock-ons in Nambucca last week saw them scamper over to the Wild Cattle Creek State Forest this week, where further lock-ons have seen operations halted there. 

Sign of the times 

The Gumbaynggirr people were handed back their land through the native title process in 2014. And today, it’s the native title holders and conservation organisations that have joined together to form the Gumbaynggirr Conservation Group (GCG). And it’s been running quite a campaign of firsts. 

NSW Forestry announced it was pausing operations in Nambucca State Forest on 5 June for five days, to allow the GCG to undertake an independent cultural heritage survey. 

This was the first time logging had ever been halted since the NSW regional forestry agreement came into play 20 years ago. 

And further, the Gumbaynggirr people are taking the NSW Forestry Corporation to the state Land and Environment Court, which is the first time it has been taken to court by an individual organisation in decades. 

Then there’s the Gumbaynggirr Conservation Group itself. Having established the Gumbaynggirr Tent Embassy in Nambucca in mid-May, the GCG is an alliance that’s forging a new type of activism, which organisers maintain will soon be replicated at other sites nationwide. 

GCG spokesperson Sandy Greenwood has said that if NSW Forestry isn’t stopped “deeply significant cultural heritage will be desecrated, our beautiful old growth trees will be logged, rare flora will become extinct and our koalas and endangered species will literally have nowhere else to go”....

Wild Cattle Creek State Forest. Image: Dean Tresize 

Nationals MP for Clarence Chris Gulaptis: a portrait of political ignorance

Extract from an email sent by NSW Nationals MP for Clarence Chris Gulaptis (former surveyor, property developer, local government councillor) on 20 May 2020:

Timber harvesting operations take place in around one per cent of State forests each year, which is around 0.1 per cent of forested land in NSW.

Well managed, sustainable timber harvesting operations provide the essential renewable building products our communities need to rebuild following the recent fire season, from power poles, to timber bridge and house frames.

By ensuring an ongoing wood supply, we will help maintain local jobs when they are most needed and meet the critical timber supply needed to rebuild our local communities.

Our forests have been harvested and regrown many times over the past 100 years. Importantly, they have also successfully recovered from bushfires before.

A small number of selective harvesting operations that commenced prior to the fires have continued under the strict regulations governing native forestry in NSW.

These rules require Forestry Corporation to set aside large areas of habitat in every operation they carry out. These rules have been developed by expert panels of scientists to ensure wildlife populations continue to thrive alongside sustainable timber harvesting.

However, the primary focus is on salvaging what timber can be recovered from those badly burnt parts of the forest. These are areas so severely affected by fires they are largely devoid of any habitat. Forestry Corporation is also preparing to embark on a massive re-planting program to recover this estate.

Well, how does one reply to a pottage of misleading statements about a timber industry rife with rule breaking and environmental vandalism?

Firstly the Forestry Corporation of NSW controls more than two million hectares of native and planted state forest in New South Wales and, annually it takes an est. 2.5 million m³ of sawlogs and around 2 million tonnes of pulpwood from these forests, which means it supplies an est 14% of Australia's timber product. This year to date the Forestry Corporation has harvested est. 1.21 million m³ of timber product.

Secondly, on a regular basis the timber industry racks up warnings and fines. As little as four weeks ago the NSW Environment Protection Authority announced that the Forestry Corporation had been fined $31,100 for failure to abide by conditions immposed concerning avoidance of environmentally sensitive areas and retention of habitat trees.

Thirdly, perhaps a few images will clearly show that even after severe bushfires, in the absence of chainsaws and logging trucks, trees will begin to recreate "habitat".

All photographs found at Google Images

And then there is this aspect.....

ABC News, 29 January 2020:

Research has also shown forests that are logged post-fire and then regenerated have an increased risk of burning in high-severity crown-scorching fires. 

This extra fire risk lasts for about 40 years after logging. That is, a burnt forest which is logged tomorrow will still carry an elevated fire risk in 2060. 

A global review published in 2009 showed that links between logging and elevated fire risk is a problem seen in wet types of forests worldwide. 

In 2016, an Australian study published by the Ecological Society of America found tree fern populations crashed by 94 per cent after post-fire logging..... 

Many burnt trees that look dead now will re-sprout in the next few weeks or months. This is already occurring in the burnt coastal forests of NSW. 

These recovering trees must not be logged. They are essential for the survival of animals like gliding possums — research shows that these animals are unlikely to return to forests that are logged immediately after burning for 180 years (if they can return at all). 

Heavy logging machinery will kill many of the plants that germinate in the nutrient-rich bed of ashes on the forest floor. 

Animals that have miraculously survived in burnt areas can also be killed in logging operations. 

Pioneering research from southern Australia has shown that fungi and nutrients in soils can take up to a century or even longer to recover from salvage logging. 

Mass movement of soils in areas logged post-burn can choke rivers and streams and trigger fish kills as well as kill many other kinds of animals....

The Guardian, 6 May 2020:

A group of senior Australian scientists have warned in an international journal that logging native forests makes fire more severe and is likely to have exacerbated the country’s catastrophic summer bushfires. 

In a comment piece published in the journal Nature Ecology and Evolution, the scientists call for a clearer discussion about how land management and forestry practices contribute to fire risk. 

The article by the scientists David Lindenmayer, Robert Kooyman, Chris Taylor, Michelle Ward and James Watson comes amid intense debate about the resumption of logging in Victoria and New South Wales in bushfire hit regions..... 

In the comment piece, the scientists say much of the conversation in the aftermath of the spring and summer bushfires had rightly focused on climate change, but the impact of land management and forestry on fire risk was often neglected in these discussions. 

They highlight this as a concern because land management policy was “well within the control of Australians” and the fires had been used by some sectors of the industry to call for increased logging in some areas. 

The paper says industry data showed that some 161m cubic metres of native forest was logged in the period from 1996 to 2018. 

“Beyond the direct and immediate impacts on biodiversity of disturbance and proximity to disturbed forest, there is compelling evidence that Australia’s historical and contemporary logging regimes have made many Australian forests more fire prone and contributed to increased fire severity and flammability,” the scientists write. 

This occurs because logging leaves debris at ground level that increases the fuel load in logged forests. It also changes forest composition and leaves these areas of forest both hotter and drier, they say. 

The article says during the bushfire season fire had spread from logged areas adjacent to old growth eucalypts and rainforests in the Gondwana world heritage reserves..... 

The Daily Examiner, 25 May 2020: 

The public was recently invited to comment on a draft code of practice – the “rule book” – for private native forestry. 

The CoP has been in place for about 15 years, with the current draft resulting from the mandatory five-yearly review. 

With the stated aim of ensuring ecologically sustainable forest management, one would expect any review to focus on that aim but unfortunately that has not been the case. 

Ecologists and conservationists have two major concerns, the first being that, while there are provisions to protect threatened flora and fauna that are known to inhabit the proposed logging areas, there is no requirement to actually look for them. 

In fact, unless there is an ­official record of a threatened species on the property, it is assumed they don’t occur there. 

The second concern is a lack of compliance monitoring and enforcement, for which there is certainly a wealth of evidence. 

Although it’s difficult to pinpoint a reason, possibly it relates to a lack of political will to take action against the industry at large. 

Perhaps it is a case of under-resourcing, poorly drafted legislation open to interpretation or all of the above but the fact remains that flouting of the code’s regulations is widespread. 

Two years ago, the Clarence Environment Centre reported one local case where a PNF ­operator broke virtually every rule in the book – literally hundreds of breaches. 

Logging on creek banks, in swamps, on rocky outcrops and on cliff edges. 

Snigging tracks were constructed on excessive slopes and across gullies, erosion control measures were inadequate, threatened species had been trampled by machinery and rubbish such as oil drums and tyres were left littering the landscape. 

The investigators spent days on site confirming the ­reported breaches and finding additional ones, yet almost two years later no action has been taken against the culprits and with the two-year statute of limitations looming, the case will likely be dropped. 

Unless operators are held to account, how can we have any faith in the supposed aim of Ecologically Sustainable Forest Management? 

John Edwards, Clarence Valley Conservation Coalition