In this respect, Professor Vanclay and Dr Turner agreed with the submissions made by Lawyers for Forests, (LFF); refer LFF submission to the Victorian Government on the Timber Licence Renewal Project, December 2001 <www.lawyersforforests.asn.au/lawpolicy.html>
13.
Although in separate policy announcements the Victorian Government has committed to phasing out logging in the Otways and the Wombat State Forests, and taken steps to create an expanded Otways National Park. It appears, however, that as a result logging in the Central Highlands and Gippsland regions has increased to meet the shortfall created.
14.
Vicforests was established by an Order of the Governor in Council under the State Owned Enterprises Act 1992 (Vic). The Order was published in the Government Gazette, 28 October 2003, Special Publication 198.
15.
The FNPAA Act s 18. This is confirmed by the Order (above n 14) which provides that the purpose of the Order is ‘to create a statutory body to undertake the management and sale of timber resources in Victorian state forests on a commercial basis’.
16.
EPA Act ss 1B-1E and EPBC Act s 3A. Section 1B of the EPA Act states that it is the intention of Parliament that the principles of environment protection (that is the ESD Principles outlined in s 1B-1E of the EPA Act should be taken into account in the administration of the Act.
17.
In the case of Sustainability Indicators, to jointly develop with the Commonwealth Government.
18.
See for example the Gippsland RFA clauses 46(c), 49, 51 and Attachments 4,10.
19.
The Victorian Government has also indicated that it is in the process of developing what it calls an Environmental Management System, which will presumably incorporate the IFPS, SFRI and the Sustainability Indicators. See <www.dse.vic.gov.au/web/root/domino/cm_da/nrenfor.nsf/frameset/NRE+Forestry?OpenDocument>. I have also been advised that the Victorian Government will adopt ESD principles and criteria and develop a suite of indicators against which Vicforests will report, with a consultation process in relation to the criteria planned for 2004: Letter from the Minister for the Environment to LFF, 30 December 2003.
20.
For example, the loss of hollow bearing trees and myrtle wilt.
21.
Section 48(3) of the FFG Act provides that the Governor in Council may authorise the taking (which arguably includes the destruction and disturbance of) protected flora, on terms and conditions set out in the Order. The conditions, to the extent that they are enforced, are inadequate, and do not ensure the objectives of the FFG Act and in particular listed taxa are adequately protected.
22.
See Lawyers for Forests, ‘Review of the Flora and Fauna Guarantee Act 1988 (Vic)’, November 2002 <www.lawyersforforests.asn.au/lawpolicy.html>. The review outlines the operation of the Act and discusses the deficiencies in the Act and its implementation. See ss 4.3 and 4.4 for a critique of the preparation, content and implementation of Action Statements.
23.
As an example of the flaws in the RFA process, the West Victoria ‘Comprehensive Regional Assessment’ contains an acknowledgment of its deficiencies. Volume 2 of the report at page 26 lists 38 endangered taxa. For five (or 13.2%) of these, it is stated that the Department had insufficient data to establish whether the taxon was critically endangered, endangered, vulnerable, or at lower risk. As an example of the failure to update the Victorian Forestry Controls following the RFA process, a number of FMPs (the East Gippsland, Midlands and Otways FMPs) were prepared before the ‘Comprehensive Regional Assessment’ for the relevant region and have not been updated to incorporate any additional information obtained.
24.
Nor, as noted above, has it developed an ESFM System for the RFA areas.
25.
Compare, eg, s 2.3.5 of the Code with the Local Prescription for the Central Highlands in relation to logging on slopes greater than 30 degrees.
26.
For example, when the Department undertook the audits, the auditing process was not conducted annually for each FMA and so some FMAs were unaudited for years.
27.
In particular the EPA failed to audit active coupes. Accordingly the EPA acknowledged events which occurred during the coupe operation stage may not have been evident at the time of coupe inspection, particularly if the audit was undertaken after the regeneration burn. There are a number of other Code compliance issues which were not addressed and these are listed in Appendix F. EPA ‘Timber Production on Public Land — Findings and Recommendations’, December 2003 <www.epa.vic.gov.au/EnvAudit/reporting.asp>.
28.
For example, s 2.3.6 of the Code deals with the conservation of flora and fauna. However this section refers to conservation ‘guidelines’, which in turn refer to ‘approaches’ that should be ‘considered’ making enforcement unlikely. A rare example of a ‘mandatory’ prescribed requirement is the obligation to provide stream buffers in logging areas. However, the 2002–03 EPA audit (above n 27) found numerous examples where this requirement had not been complied with.
29.
For example, the Central Highlands FMP states, in Appendix E: ‘To be considered rainforest a stand of trees meeting the above criteria should be at least 0.4 hectare or linear strips along streams should be at least 20 m wide and not less than 100 m long’.
30.
Mandatory triggers should apply where a certain action is likely to have a significant effect on the environment. Examples of mandatory triggers are found in the EPBC Act.
31.
For example, rules, standards and procedures should be set out in regulations, and not in internal or administrative guidelines, or by orders published in the Government Gazette.
32.
The Victorian Government recently passed the Commissioner for Environmental Sustainability Act 2003 (Vic), creating and outlining the objectives and powers of that Commissioner. Review of annual reports fits squarely within the objectives and powers of the Commissioner.
33.
For example where a WUP is inconsistent with the relevant FMP, or the FMP inconsistent with the ESFM System.
34.
For further explanation of the reasons why I believe VCAT is the appropriate forum and the restrictions on standing that could be introduced to allay concerns that the ‘floodgates could be opened’ refer to the LFF ‘Review of the Flora and Fauna Guarantee Act 1988 (Vic)’ (above n 22) 33–34.
35.
Sections 475-80 of the EPBC Act restrict standing to ‘an interested person’, where an ‘interested person’ is a person who has been involved in activities for the protection and conservation of, or research into, the environment in the two years preceding the proposed conduct.
36.
Particularly the Conservation Forests and Lands Act 1987 (Vic) and the Forests Act 1958 (Vic).
37.
For example, the creation of VicForests has the potential to prejudice the successful development, implementation and enforcement of an appropriate ESFM System.
38.
– developing and managing an open competitive sales system for timber, which should include designing, promoting and implementing auctions or tender processes, setting reserve prices, and managing existing licences and agreements.
39.
Although the mechanism for calculating the value of the environmental costs is a difficult question.
