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Victorian rainforest conservation. Part 3: First test case of Flora and Fauna Guarantee Act reveals a growing gap between the legislation and its implementation

DAVID DOWNIE: I think Victoria's shown leadership in the area of conserving its resources, identifying the rainforests, introducing the Flora and Fauna Guarantee Act, and I believe that there is no reason to suggest that we'll be undertaking activities which are at odds with the conservation philosophy that is embodied in the changes that Victoria has introduced in the last few years.

PETER HUNT: David Downie, the new Deputy Director General in the Victorian Department of Conservation and Environment. Welcome to an Earthworm that explores the growing gap between words and action in Victoria's remarkable rainforests.

Whoever first observed that words are cheap couldn't possibly have been a Victorian, at least if the words in question were those printed in the Victorian State conservation strategy. After years of discussion and negotiation, after endless committees, many thousands of hours work at a cost of no doubt millions of dollars, the Cain Government put in writing what's generally acknowledged as Australia's best policy on conservation. Even conservationists are happy - with the words.

GREG BARBER: There's nothing wrong with the process; there's nothing wrong with the strategy. The State conservation strategy is one of the best strategies I've ever seen. Now if we got half of what was in the State conservation strategy actually done, that'd be fantastic.

PETER HUNT: Greg Barber from the Conservation Council of Victoria. `Fantastic' is hardly the word one would choose to describe the way in which the State's rainforest policy is being implemented. In our last couple of shows, we've heard how the Department of Conservation doctored its own definition of rainforest, in breach of the State conservation strategy; how they removed key recommendations from a scientific study on an area of nationally significant rainforest; and how they ignored the code of forest practice in a place called Pioneer Creek. The end result of that last breach of policy was that a couple of sites containing one of Australia's rarest rainforest plants, the Astelia Lily, were bulldozed. But to be fair, we also heard the director of the division responsible for these environmental atrocities, Dr Bob Smith, admit the mistakes, spell out the processes entrained to resolve outstanding problems, and he also agreed that the doctored report would be released in its original form.

So this week's show was to have been a little different. Yes, Earthworm's dedicated audience of environmental masochists, you were going to hear some good news. The usual diet of forestry gloom and doom was to give way to a positive story about the revolutionary Flora and Fauna Guarantee, Australia's first endangered species legislation. But as I soon discovered where there are timber quotas to fill, even positive stories take on a different character. The Flora and Fauna Guarantee and the State Conservation Strategy both place great emphasis on preserving biodiversity. There's a commitment that all threatened species and biologically significant sites, even ones in State forests, will be preserved for nature conservation. And while this is certainly consistent with the forestry dogma of multiple-use management, like contraception for Catholics, forestry practice is another matter.

GREG BARBER: You just can't have your cake and eat it too, in forest management; that's what they're trying to tell us at the moment. It is not possible to extract all of the economically harvestable timber from an area and still have all the protection. There's going have to be a balance, right? At the moment, they don't have room for the balance in the central highlands forests. The reason is the timber harvesting commitments that they have made to supply X-volume of timber to sawmillers every year, and what they are finding is that there ain't that much timber out there; and so, they are either over that supply or else they are very close to it. Either way, it means there is not room to make these extra allowances. So, you might have Leadbeater's Possum in the area and the prescription for Leadbeater's Possum might be so much of an area to be set aside as refuge. It just doesn't add up because you can't afford to do it; and the problem has arisen because of the way they did their planning. First of all, they committed all the timber, then we go about doing surveys and drawing up forest management plans, and then when that's over, we then go and look at land use. You see, the whole process is completely arse about face.

PETER HUNT: The story of the Astelia Lily and its last remaining stronghold in the central highlands, is a classic illustration of all these problems. Early this century, it was relatively common in a very small area of the highlands. Today, after 80 years of clearing, logging and wildfire, there are less than a dozen sites remaining. All but one are concentrated in a few small catchments about two hours drive north-east of Melbourne. We know almost nothing about the ecology of this amazing lily.

Consultant botanist, Randall Robinson.

RANDAL ROBINSON: Like with most plants in Victoria, we know very little of the ecology and the effects of our activities on them. We know nothing of its pollination ecology. We don't know the animals that pollinate it, be it an insect or whatever. We don't know the dynamics of the male-female relationship of the plant because individual plants are either male or female. In a given population, we're not sure of how many plants are male and how many are female. We could be dealing with a population that's all female or all male. A survey of that has not been carried out. As well, we know very little about the seedling establishment. We don't know the conditions that need to prevail that would allow the seed to germinate and, indeed, how much seed is actually set in any given year.

PETER HUNT: Despite the depth of ignorance, the last Minister for the Environment, Kay Setches, approved logging in eight coops in these critical catchments, over the next 12 months. We can really only speculate as to how intensive logging in a catchment might affect the Astelia in the long term. All the botanists I spoke to, pointed out that the risk of fire would undoubtedly increase. They were also concerned about the adverse effects of changes in the micro-climate, in the groundwater flow and in the rate of sedimentation: effects which invariably follow extensive clear-felling in catchments - all have the potential to wipe out communities of Astelia.

RANDAL ROBINSON: Because we're dealing with so few small populations, it would be very easy to basically wipe out the plant's ability to reproduce. Say, two populations that may be affected by the logging are the only male populations that there are or the only female populations that there are, and we accidentally wipe them out, we could end up with a case like several examples throughout the world where we have plants that are only of one sex and, therefore, unable to reproduce.

PETER HUNT: In effect, they're extinct.

RANDAL ROBINSON: In effect, they're extinct.

PETER HUNT: Randall Robinson. The decision to approve logging was, of course, taken on advice of departmental bureaucrats. The issue was first discussed last March in the annual meeting of the Cutting Areas Review Committee or CARK. That's a public forum in which all the logging plans for the coming season can be reviewed in detail. Although departmental scientists expressed grave reservations about any logging in the Astelia catchments, they reluctantly agreed so long as an undisturbed buffer strip, at least 150 metres wide, was left between the Astelia and the nearest logging. A memo from the Committee lists this as an agreed condition for logging. But when I rang the Minister's office to find out exactly what advice had been given to the former Minister, I was surprised to learn from the senior responsible bureaucrat, a forester called Kevin Waring, that he'd dropped the recommendation so that now the regulation 40 metre buffer was all that would stand between Astelia and the bulldozers.

When I spoke to Mr Waring, he seemed a little embarrassed about this, but reluctantly agreed to send me a copy of the detailed advice he'd given to the Minister. I also asked him for an interview. He promised someone would speak to me. On the following day, the offer to send the ministerial advice was withdrawn and the newly appointed Deputy Director General, David Downie, informed me that he was thinking about doing the interview. This was a smart move. After all, he'd only been in the job a couple of weeks. He's a career public servant with no background in science, and so asking him to explain the ecological justification for dropping the recommended 150 metre buffer would be about as useful as asking the Federal Opposition for their health policy; indeed, the perfect choice, if the aim was to defend the indefensible. Here's a little of what happened:

Which departmental ecologists were actually consulted about the decision to abandon the 150 metre buffer?

DAVID DOWNIE: Well, I don't think it's a question of consulting departmental ecologists to abandon a 150 metre buffer. As far as I know, there wasn't any policy prescription of a 150 metre buffer.

PETER HUNT: Well, this specific site, what is the departmental expert advice that you've been given on an appropriate buffer in this case?

DAVID DOWNIE: Well, the minimum buffer is always going to be 20 metres, but the procedures for developing forest coop plans require that before any action is taken, that the areas are surveyed and an appropriate buffer zone is determined on the basis of the total characteristics of the area.

PETER HUNT: And what's the appropriate buffer for this site?

DAVID DOWNIE: Which particular site, Peter?

PETER HUNT: Well, the site with the five or six Astelia communities in Pioneer Creek.

DAVID DOWNIE: Well, I'm not sure exactly what the appropriate buffer for that area is but, as I said, before any action is taken, the regional areas, we'll survey it, and determine what is appropriate.

PETER HUNT: Were you aware that the departmental ecologist who was representing the Department on the Committee wanted the entire catchment protected for the Astelia communities?

DAVID DOWNIE: I was aware that some people, or one person, was endeavouring to ensure that the total catchment or subcatchment area of specific sites were to be protected or should be protected.

PETER HUNT: And this person you're aware of is David Cameron?

DAVID DOWNIE: That's a name that's been mentioned to me, yes.

PETER HUNT: I wasn't talking about David Cameron. I was talking about John Stoove's position at the CARK committee.

DAVID DOWNIE: No, I don't know about that.

PETER HUNT: There seems to be evidence that your ecologists were taking a fairly strong view that more than the logging prescriptions in the code of practice were required.

DAVID DOWNIE: There seems to be information that one ecologist that I know of, and you're suggesting it may be two - I'm not sure of that - were taking a view that the definition of rainforest sites of significance ought to be extended beyond the 20 metres.

PETER HUNT: No, that's not what I'm suggesting at all. I'm suggesting that if the protection of the Astelia is of paramount importance, then the size of the buffer should be the whole catchment.

DAVID DOWNIE: Well, I understand that suggestions were made that the buffer zone ought to be increased beyond the 20 metres to, I think, figures of 150 metres were mentioned. I wasn't aware that it was suggested that the whole catchment be declared in relation to the Astelia issue, but as I said before, the question of what is the appropriate buffer zone will be determined after those surveys have been completed.

PETER HUNT: David Downie. But while our conversation to that point may not have been particularly illuminating, what followed really made the whole discussion nothing more than an irrelevant side-show. I raised the question of the new endangered species legislation, this so-called Flora and Fauna Guarantee. Although it's still not operational, Astelia has already been accepted for listing. This means that its critical habitat - in effect, the size of the buffer - will be determined by expert scientists and not by the regulations and regional foresters. I put that proposition to David Downie.

DAVID DOWNIE: Well, it may well be determined by the provisions of the Flora and Fauna Guarantee Act, if that's proclaimed at the time, but obviously the spirit and the intention of the Act will be observed.

PETER HUNT: So, you've got no doubts about that - the spirit and the intention are really determining departmental policy at the moment?

DAVID DOWNIE: I believe that's the case.

PETER HUNT: And so you won't go ahead with any logging plans knowingly in violation of the spirit and intention of the Flora and Fauna Guarantee?

DAVID DOWNIE: I believe that's correct.

PETER HUNT: The spirit and the intent of the Act will be observed. Those are powerful words. One clear intention of the Act is to preserve species or habitats on the edge of extinction and to allow the judgments about how that's done to be made by scientists, free from the pressure to produce a politically acceptable outcome. In this case, it means allowing the department's experts to determine where and how the logging would proceed in the critical Astelia catchments. The spirit and the intent of the Act means those same experts will be free to recommend that the ministerial decision to log the Astelia catchments be overturned. If they believed it was necessary, they could recommend closing the logging roads into the area. But is the spirit and the intent of the Act pulsating fervently in the hearts of the loyal servants of the peopl?. What about the advice to the Minister which overturned the 150 metre buffer? Did that decision, made barely three months ago, reflect the spirit and the intent of the Act? As I said before, I've been prevented from interviewing the responsible forester, Kevin Waring, but I was allowed to interview the head of the Flora and Fauna Guarantee unit, Dr Garth Newman.

So is reducing the 150 metre buffer to 40 metres consistent with the spirit and intent of the Guarantee?

GARTH NEWMAN: Well, whether it is within the spirit and the intent of the Guarantee really would depend on whether it provides effective protection.

PETER HUNT: And what do your experts say about that in your department?

GARTH NEWMAN: Well, our biologists have raised concerns about the size of the buffer and, in fact, this has led us to seriously consider an action statement which will in actual fact re-examine whether that buffer is adequate.

PETER HUNT: Why wasn't Kevin Waring advised of this before he advised the Minister that 40 metres was okay?

GARTH NEWMAN: Well, because he was .. I assume he was acting on the basis of applying - until such time as there is a review - the buffer which had applied until most recently.

PETER HUNT: But he was informed by John Stoove on that particular committee, that probably catchment boundaries would be more in line with ecologically sound decision making.

GARTH NEWMAN: Yes. Yes, Peter, well, the situation with regard to the buffer, it is complex. There are some people who feel that it is not adequate. Some of the staff in the region believe that it is adequate. I've discussed this issue with both botanists and regional staff, and the hard scientific information is in fact not really there, and I think both some of the regional people and some of our own scientists would recognise this.

PETER HUNT: What advice did your group give to the Dandenong region over an ecologically responsible buffer around Astelia?

GARTH NEWMAN: Well, they maintained at the meeting of CARK, that a buffer of 150 metres would be more appropriate than 40 metres.

PETER HUNT: No, I'm talking about specific advice from your department to the Dandenong region.

GARTH NEWMAN: Well, I don't know what advice .. I mean, they give advice .. they often give advice in their various forms of advice.

PETER HUNT: Well, this is the advice that Jill Earl suggested that a 250 metre buffer around either side of Seven Acre Creek was an absolute minimum to be in line with the Flora and Fauna Guarantee.

GARTH NEWMAN: Yes, well, that advice she may well have given, but where those issues are discussed is at the the CARK committee.

PETER HUNT: No, I'm sorry. This isn't a CARK issue. This is simply an issue of your survey people advising the regions on the ash roading program, and as I understand it, their advice has to be followed and will be acted upon without any qualification.

GARTH NEWMAN: No, I don't think that is strictly true. What I really need to explain to you is that how we deal with a situation where advice has been acted upon in the past - and we are really operating in very complex areas, and we're getting new information continually, and we really need to review the measures we take to conserve important species on opportunities.

PETER HUNT: Well, could I suggest that that specific recommendation that's been made by Jill Earl covered a section of the upper Bunyip River and that, in fact, is a site of national significane which, according to State Government policy, should be protected entirely from logging.

GARTH NEWMAN: Well, that is a state of national significance for rainforest.

PETER HUNT: No, I'm sorry. This is defined by OPIE et al - 1984. If you look in their report, you'll find the map on page 167.

GARTH NEWMAN: Well, the way in which we have to deal with these bufferes, Peter, is as they relate to the Flora and Fauna Guarantee, is through the action statement. We really need to look at the mechanisms by which the buffer operates and determine whether they are effective before we make our decisions, and that is the process that we've set in place.

PETER HUNT: And presumably there'll be a moratorium on all logging in the catchments, until that question is resolved?

GARTH NEWMAN: No. No that moratorium, I'm not aware of that, and I don't think that's the intention of the Department.

PETER HUNT: But shouldn't there be a moratorium until this question is resolved?

GARTH NEWMAN: No, I think the issue is we've used these 40 metre buffers for a number of years. We now need to quickly review the situation and then revise the management of the situation accordingly.

PETER HUNT: But aren't we talking about a threatened species listed under the Flora and Fauna Guarantee?

GARTH NEWMAN: We're talking about a species which is listed and it is important, but the point is this that we really need to determine what buffer is required to protect the species. I mean, there are people in the Department who maintain....

PETER HUNT: Sorry - but you're happy to go ahead with logging while you figure this out?

GARTH NEWMAN: Well, the action statement does not have to take a long period of time.

PETER HUNT: But if the action statement says in the end that a catchment size buffer is appropriate and you've gone and logged, then what's the point of the Flora and Fauna Guarantee in the action statement?

GARTH NEWMAN: Yes, but we would be hoping to review this position before the logging commences in the next season.

PETER HUNT: But that's what I'm saying: are you guaranteeing that you will not log until this issue is resolved?

GARTH NEWMAN: No, I can't give that guarantee.

PETER HUNT: Well, do you think that guarantee should be given?

GARTH NEWMAN: Well, I think what we need to do is reveiw the situation quickly and find out what are the arguments for different size buffers.

PETER HUNT: Why are you worried about stopping the logging until the issue is resolved scientifically?

GARTH NEWMAN: Well, because I think that it's the .. when we do take a drastic action, we need to be sure that what we're doing is correct, and what I'm saying is that I think there's a need to review the situation quickly.

PETER HUNT: Why is stopping logging temporarily a drastic action?

GARTH NEWMAN: Well, there's no logging taking place at the moment in that area.

PETER HUNT: But it will be approved as of the beginning of next month.

GARTH NEWMAN: It'll be commencing in September-October, depending on the weather.

PETER HUNT: Is your Flora and Fauna Guarantee worth anything at all, if you can't actually stop a government department potentially compromising the existence of a species?

GARTH NEWMAN: Well, the Guarantee is worth .. well, worthwhile, and in fact it has the potential to stop processes which are threatening species, but as I have explained, there's a debate at the moment as to what is the most appropriate buffer. Now, I believe that we have to review that situation and make our decision in the light of that.

PETER HUNT: Garth Newman. Is this issue of the size of the buffer simply a disagreement between experts? I put that suggestion to Randall Robinson, a botanist who worked in the Department for many years and resigned only recently.

RANDALL ROBINSON: No, I don't, Peter. Different criteria have been set for the various buffers that people have come up with. The original buffer, so to speak, of the whole catchment is based purely on ecological grounds and has no other considerations. With the smaller buffers of 250 and 150 metres, these would have had other influences on their determination, such as timber harvesting.

PETER HUNT: So, you're suggesting the differences don't in fact represent any kind of debate amongst the ecologists as to what's necessary to really guarantee the long-term security of these plants; it simply represents the fact that they're having to all the time deal with foresters who want to harvest timber?

RANDAL ROBINSON: That's correct, Peter. If it was based solely on an ecological basis, on the scientific basis, I'm sure that most would determine that it would have to be the whole catchment, so to speak. The other ones obviously have other considerations.

PETER HUNT: It's been suggested that some ecologists would think that 40 metres was an adequate buffer for the protection of Astelia based on ecological criteria. Do you think that fairly represents any ecologists, botanists that you know in the Department?

RANDAL ROBINSON: I would have to question very severely the relevance of a determination so small as 40 metres, considering the lack of knowledge we have on the biology and full ecology of Astelia.

PETER HUNT: Given that this will be the first test case of the real worth of the Fauna and Flora Guarantee, what does that say to you about the intent of the Department to implement it?

RANDAL ROBINSON: It would appear as if their hearts are not in the legislation, and I can't explain what's holding them back from following the intent of the law.

PETER HUNT: Under what circumstances would recommendations, ecologically based recommendations, be rejected under the Guarantee?

GARTH NEWMAN: I think that there may be a situation where the conservation measures, where there would have to be a balance struck between the conservation measures and the impact on their social and economic impacts.

PETER HUNT: But if this is legislation designed to protect species from extinction, then surely the conservation questions are absolutely paramount?

GARTH NEWMAN: Oh, I would agree with you there, and I think that if there is a definite threat of extinction, then that really would be paramount in terms of the Act. I think that would be an important factor.

PETER HUNT: Isn't that the point of listing a species, that it's threatened with extinction?

GARTH NEWMAN: Well, the point of listing a species is to draw attention to the fact that if the species is not managed properly, then it could become extinct.

PETER HUNT: And so therefore managing it properly requires sound ecological and scientific decisions?

GARTH NEWMAN: That's right, yes.

PETER HUNT: And therefore any political interference in that process could potentially compromise the existence of a species?

GARTH NEWMAN: Well, you know, I can't comment on that, but, I mean, I would assume that this is the Act; it is a very important piece of legislation and it is there to protect species and that is what we would be doing.

PETER HUNT: Garth Newman. There's one final twist to this story that I have a feeling we'll need another program and some more digging to uncover. Several of the Astelia populations are in a site of botanical significance that was defined in a comprehensive study done six years ago. Tht was the reference I made earlier OPIE et al, 1984. However, on advice from the Department, three logging coops have been approved within the site, which on the face of it seems to be a clear breach of the State conservation strategy. Well the Department's just told me that they believe in this case they're entitled to ignore, because of a disclaimer which says the study doesn't reflect government polilcy. They've made no comment as to whether it is nationally significant site or whether they'll postpone logging until they find out. The pattern continues.

I'll leave the last word to Greg Barber.

GREG BARBER: There are all these great initiatives in the State Conservation Strategy and they're just being whittled away or dropped off one by one. You know, there's a commitment to protect rainforests as defined by the rainforest technical committee. That initiative is under threat. There's a commitment to develop a management plan for Leadbeater's possum by 1988, and that hasn't happened, and it's two years overdue. There's a commitment to protect sites of State significance and here we are and it's not going to happen. So the State Conservation Strategy which is the Labor Government's major sort of policy response on the environment, is just getting whittled away.

Now, last election, the then Minister for Conservation, Forests and Lands, Ms Kirner, stood up at a conservation election forum and held up a copy of the State Conservation Strategy, and she said: `You don't have to ask us what our policy is because there's the State Conservation Strategy'. Now in the 1992 election, Mr Crabb's probably going to be up on that platform and I'm going to stand up with a copy of the State Conservation Strategy, and I'm going to say: `If you want to know what the Labor Government's policy on the environment is, just look in the State Conservation Strategy, and that is a document full of broken promises.