Request for Interim Conservation Order to be made under the Flora and Fauna Guarantee Act 1988

Transcription

1 15 April 2014 Hon Ryan Smith Minister for the Environment and Climate Change Level 17, 8 Nicholson Street Melbourne VIC 3002 Dear Minister Request for Interim Conservation Order to be made under the Flora and Fauna Guarantee Act 1988 for urgent protection of critical habitat of the Leadbeater s Possum (gymnobelideus leadbeateri). Executive Summary The purpose of this letter is to urgently request that an interim conservation order ( ICO ) be made under section 26 of the Flora and Fauna Guarantee Act 1988 ( FFG Act ) to protect the critical habitat of the Leadbeater s Possum (gymnobelideus leadbeateri). Under subsection 26(1) the FFG Act, the Minister has a discretionary power to make an ICO in order to conserve the critical habitat of a listed taxon or community of flora or fauna on Crown or private land. Critical habitat refers to habitat that is critical to the survival of a listed taxon. 1 Nearly thirty years of rigorous research indicates that the Leadbeater s Possum is at serious risk of extinction and that the continued survival of the Leadbeater s Possum is directly linked to the preservation of its specialised and limited habitat. 2 In other words, preserving the critical habitat of the Leadbeater s Possum, as defined below, is necessary to ensure the possum survives in the wild. There is an Action Statement, prepared in 1995, in place, containing measures designed to protect the Leadbeater s Possum. The Action Statement is out-of-date and not working, as the possum is under greater threat than in 1995, and the Action Statement does not incorporate important research undertaken in the last 15 years. Updating the Action Statement is necessary. In the interim the Leadbeater s Possum requires additional, immediate protection in the form of an ICO. It is our submission that an ICO should remain in force until such time as a new Action Statement is developed. We request the Minister to make an ICO prohibiting any activity damaging to critical habitat of the Leadbeater s Possum, including timber harvesting operations, effective immediately. The suggested terms of the ICO are: All managed or commercial activities that may disturb, damage or destroy Leadbeater s Possum habitat are prohibited within the Leadbeater s Possum critical habitat. Leadbeater s Possum critical habitat comprises: 1 FFG Act, s.20 2 the Central Highlands of Victoria Fenner School of Environment and Society, ANU College of Medicine, Biology and Environment 2013; David Lindenmayer, Forest

2 Any area of forest of 3 hectares or more that supports eight or more living or dead hollow-bearing trees per 3 hectares, plus a 100 metre buffer around this area of forest Any site, plus a 1 kilometre buffer, where the Leadbeater s Possum has been recorded in the last 15 years A 100 metre radius around all and each living or dead hollow-bearing tree within the Central Highlands A 100 metre radius around all and each native tree within the Central Highlands that is 100 years old or more 100 metres either side of any and all permanent or temporary streams, pools or wetlands within the Central Highlands Region 50 per cent of the oldest forest within the Central Highlands region (which can include the areas of critical habitat described above) Background We act on behalf of The Wilderness Society (Victoria) Inc. Our client is one of Australia s oldest and most recognised environmental organisations, and has been actively involved in flora and fauna conservation issues for over three decades. The Wilderness Society (Victoria) Inc has been campaigning to save the Leadbeater s Possum from extinction for a number of years. The Leadbeater s Possum is listed as a threatened taxon under Schedule 2 of the FFG Act and endangered under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ( EPBC Act ). Without immediate and effective action the species is facing extinction within years. The survival of the species is directly linked to the preservation of its specialised and limited habitat, much of which is currently subject to timber harvesting operations. Operation of the FFG Act Under the FFG Act, an interim conservation order may be made to preserve the critical habitat of a listed taxon. We submit that the Minister has several key considerations when determining whether or not to make an ICO. These key considerations are discussed below. i. Critical habitat What is critical habitat for the purposes of the FFG Act? An ICO applies to protect the critical habitat of threatened flora, fauna and communities. Therefore, the first thing the Minister must determine is whether the habitat that is the subject of this request is critical. Critical habitat refers to habitat that is critical to the survival of a taxon or community. 3 The Oxford English Dictionary defines critical to mean having a decisive or crucial importance in the success, failure, or existence of something. Leadbeater s Possum critical habitat The habitat of the Leadbeater s Possum is confined to a small area within Victoria s Central Highlands region measuring approximately 70 x 80 km in size. 4 Leadbeater s Possum habitat comprises montane ash forest, dominated by Montane Ash and Shining Gum, with a dense acacia understorey. Most pertinently, Leadbeater s Possum habitat requires an abundance of large, hollow-bearing trees. 5 3 FFG Act, s20(1) 4 Leadbeater s Possum Advisory Group, Fact Sheet Leadbeater s Possum, Threatened Species Nomination Form for the Assessment Period, submitted to the Threatened Species Scientific Committee under the EPBC Act

3 The survival of the Leadbeater s Possum is highly dependent on the existence of sufficient unlogged, unburned oldgrowth areas of mountain ash forest, 6 capable of supporting hollow-bearing trees between 150 and 500 years old. Leadbeater s Possum has been shown to occur more frequently in areas with high densities of hollow-bearing trees. 7 The species spends around 75 per cent of its time in hollow-bearing trees. 8 The species requires hollows of around 30cm in diameter, which provide crucial nesting sites and shelter. Younger and smaller trees are unable to provide equivalent habitat as hollows typically do not form within them. Old-growth stands of forest support the highest abundance of hollow-bearing trees. In the Central Highlands, oldgrowth stands are only a tiny fraction of what they were at the time of white settlement, primarily due to fire and logging. As a result, the abundance of hollow-bearing trees is in rapid decline and at risk of catastrophic collapse. 9 If the decline of hollow-bearing trees continues, and the catastrophic collapse in numbers of hollow-bearing trees occurs, then the Leadbeater s Possum could become extinct. 10 The continued existence of areas of forest that contain hollow-bearing trees, or trees that have the potential to be hollow-bearing in future, is critical to the ongoing survival in the wild of the Leadbeater s Possum. These areas of forest are, therefore, critical habitat of the Leadbeater s Possum. The terms of the proposed ICO, above, is based on the recommendations of David Lindenmayer, David Blair, Lachlan McBurney and Sam Banks, who, in 2013, prepared a document entitled New Restoration Forest Management Prescriptions to conserve Leadbeater s Possum and rebuild the Cover of Ecologically Mature Forest in the Central Highlands of Victoria. This document contains prescriptions designed to address the threats to the Leadbeater s Possum and hollow-bearing trees, described above, and prevent the Leadbeater s Possum becoming extinct. Critical habitat determinations and ICOs We note that the Secretary of the Department of Environment and Primary Industries is given the power under the FFG Act to make a determination of critical habitat. 11 In our view, the making of a critical habitat determination by the Secretary is not a necessary precursor to the making of an ICO by the Minister. Rather, the power of the Secretary to make a determination of critical habitat is a separate discretion available to the Secretary under the FFG Act to protect species, should he or she decide that making a determination is appropriate. The separate consultation and notification processes under the FFG Act for the making of a critical habitat determination and an ICO support the view that they are separate discretions and that an ICO is not dependent on a prior critical habitat determination. Therefore, if the Minister is of the view that the circumstances warrant the making of an ICO, and that the habitat to be protected by the ICO is critical, then a prior critical habitat determination is not required. ii. Nature Conservation Matters (subsection 26(5)(a) FFG Act) Under the Act, the Minister is required to consider relevant nature conservation matters in the exercise of the discretion about whether to make an ICO. 12 We submit the nature conservation matter of foremost relevance is the current state of the possum, and its likely continued decline and eventual extinction if current policies and actions relating to the possum remain in place. The Leadbeater s Possum is a nationally and globally endangered arboreal marsupial, facing a rapid trajectory towards extinction. It is estimated by the Arthur Rylah Institute that that between 3,750 and 11,250 individual Leadbeater s Possums remain. 13 The estimation of population by the International Union for the Conservation of Nature is more 6 Ibid 7 the Central Highlands of Victoria Fenner School of Environment and Society, ANU College of Medicine, Biology and Environment 2013, p. 3 8 MyEnvironment Inc v VicForests [2012] VSC 91 (14 March 2012) at [6] 9 the Central Highlands of Victoria Fenner School of Environment and Society, ANU College of Medicine, Biology and Environment 2013, p the Central Highlands of Victoria Fenner School of Environment and Society, ANU College of Medicine, Biology and Environment 2013, p FFG Act, s20 12 FFG Act, s26(5)(a) 13 Leadbeater s Possum Advisory Group, Fact sheet Leadbeater s Possum, 2013

4 dire: it estimates that there are approximately 2,200 individuals left and that the population is expected to decline by 90 per cent in the next 30 years. 14 The dire state of the Leadbeater s Possum is reflected by the fact that the Federal Minister for Environment has directed the Scientific Committee to consider amending the listing of the Leadbeater s Possum under the Environment Protection and Biodiversity Conservation Act 1999 to critically endangered. Critically endangered is defined under the EPBC Act as facing an extremely high risk of extinction in the wild in the immediate future. 15 Approximately 65% of Leadbeater s Possum critical habitat is currently protected through a combination of national parks and formal reserves, Special Protection Zones and areas excluded from timber harvesting for biodiversity, regulatory and operational reasons. 16 Additionally, under the FFG Act, hollow-bearing trees are also listed as a threatened community of flora. However, despite an Action Statement also having been prepared for hollow-bearing trees in 2003, loss of critical habitat is continuing to occur. In 1995 an Action Statement was prepared in accordance with section 19 of the FFG Act. However, extensive research into critical habitat of Leadbeater s Possum has been undertaken since 1995, superseding the data underpinning the 1995 Action Statement, which remains in force. Present research suggests a number of the measures recommended by the Statement are no longer adequate to ensure the survival of the species, due to further reduction in the remaining habitat of Leadbeater s Possum. 17 In the 15 years since the development of the Leadbeater s Possum Action Statement, research has revealed a substantial loss of hollow-bearing trees 18 across all areas of critical habitat, with current projections suggesting a catastrophic collapse in numbers of hollow-bearing trees, falling from an average of 5.1 trees per hectare in 1998 to just 0.6 trees per hectare in These projections do not include the losses of hollow-bearing trees that occur on logging sites, or unlogged areas adjacent to logged sites. The expected consequences of such habitat loss on Leadbeater s Possum numbers are severe. DEPI Population Viability Analysis for Leadbeater s Possum suggests that the population of Leadbeater s Possum will fall to very low levels within the next 70 years, with the chance of the entire female population falling below 500 individuals highly probable. Typically, once populations drop below this level, extinction is likely. 20 In addition, loss of hollow-bearing trees leads to isolated populations, which in turn can lead to reduced genetic diversity on a landscape scale. The primary causes of hollow-bearing tree loss are timber harvesting operations and fire. Impact of fire Extensive fires in 2009 damaged 42 per cent of the Leadbeater s Possum s known habitat and almost half of the 30,500 ha permanent reserve created for the species protection. Leadbeater s Possum is absent from sites burned in the 2009 fire and the abundance of the species is significantly reduced on unburned sites surrounded by burned areas. 21 Logging is continuing in the remaining Leadbeater s Possum habitat that was not burnt by the 2009 fires. This continued logging is compounding the devastating impact of the fires. 14 International Union for the Conservation of Nature, The IUCN Red List of Threatened Species: Gymnobelideus leadbeateri, download on 3 April EPBC Act, s179 (3) 16 Leadbeater s Possum Advisory Group, Fact sheet Leadbeater s Possum, Lindenmayer and Wood, Long term Patterns in the Decay, Collapse and Abundance of Trees with Hollows in the Mountain Ash (Eucalyptus regnans) Forests of Victoria, South Eastern Australia (2010 Canadian Journal of Forest Research 40, 48 54; Lindenmayer et al. 2012a, Interacting Factors Driving a Major Loss of Large Trees with Cavities in a Forest Ecosystem PLOS One 7, e Leadbeater s Possum Advisory Group, above n 5, Lindenmayer et al. Novel Fire Severity and Fire Derived Landscape Context Effects on Arboreal Marsupials ( 2013) Biological Conservation.

5 The combination of timber harvesting operations and fire has lead to a dramatic reduction in viable Leadbeater s Possum habitat since the creation of the Action Statement in The adoption of new conservation strategies is urgently required if the species is to survive. Impact of timber harvesting operations The Royal Society of Victoria has called for an end to all forest practices that are steadily reducing remnant old growth forests in the Central Highlands, to save the Leadbeater s Possum. 22 This demonstrates the Royal Society s deep concerns for the impact of timber harvesting on the Leadbeater s Possum. Their call is in line with the ICO called for in this submission. Tracts of old-growth forest, which support the highest abundance of hollow-bearing trees, 23 have dramatically reduced since European settlement. This is the result of a century of logging (including the deliberate past conversion of old growth forest into regrowth stands) [and] 40 years of intensive and extensive clear-felling. 24 Currently, old-growth ash forest comprises just 1.16 per cent of all ash forest within the Central Highlands region. 25 Contemporary timber harvesting in the region involves clear-felling practices occurring on an 80-year rotational basis, meaning trees are unable to reach full ecological maturity and cannot provide suitable habitat for Leadbeater s Possum. Clear-felled areas do not support viable populations of large old trees. These trees are typically destroyed in logging operations or, if retained, they die or collapse soon after logging. Logging areas therefore do not support habitat for Leadbeater s Possum. 26 In fact, clearfell logging renders a forest unsuitable as habitat for the Leadbeater s Possum for as long as 150 years. 27 Approximately 35 per cent of Leadbeater s Possum critical habitat falls outside the permanent reserve system and is scheduled for timber harvesting and subsequent regeneration in coming years. 28 For example, under the Victorian Government s Timber Release Plan, 412 coupes, comprising 17,640 hectares of Mountain Ash, will be logged to Given the recent and significant loss of Leadbeater s Possum habitat resulting from the 2009 bushfires, we submit that allowing current levels of logging to continue in habitat and potential future habitat of the possum will ensure that objectives of the FFG Act, insofar as they relate to the Leadbeater s Possum, are contravened. 30 Conversely, the making of an ICO in the terms described above is entirely consistent with the objectives of the FFG Act. iii. Economic and Social Consequences (FFG Act, subsection 26(5)(b)) The native timber industry currently directly employs approximately 500 people in VicForests Central Highlands region. 31 This represents less than 1.0 per cent of the region s employment, and a relatively small proportion of the wider Victorian forestry industry. An ICO prohibiting forestry operations in the critical habitat of the Leadbeater s Possum would not necessarily result in the job losses of all those currently employed. A change in the conservation 22 The Royal Society of Victoria Inc., Royal Society fo Victorian wants action to save Leadbeater s Possum, 15 February 2014, %2Fwp content%2fuploads%2f2013_nov_leadbeaters.pdf&ei=yno8u4ntcoi1kgxj1idgcw&usg=afqjcnf4frcjqizwu_jxai4c2lxjwyjvfq&bvm=bv ,d.dgi, as at 3 April Lindenmayer et al, Predicting the Abundance of Hollow Bearing Trees in Montane Ash Forests of South Eastern Australia (1991) Australian Journal of Ecology 16, 91 98; Lindenmayer et al, Structural Features of Old Growth Australian Montane Ash Forests (2000) Forest Ecology and Management 134m Leadbeater s Possum Advisory Group, Fact sheet Leadbeater s Possum, Lindenmayer, Sending the Leadbeater s Possum down the road to extinction, The Conversation, 14 December 2012, possum down the road to extinction Lindenmayer, David P. and Possingham, Hugh P., No Excuse for Habitat Destruction 10/05/13, Vol 340, Published by AAAS 28 Leadbeater s Possum Advisory Group, Fact Sheet Leadbeater s Possum Conservation and Land Management Frameworks 29 Lindenmayer, Sending the Leadbeater s Possum down the road to extinction, The Conversation, 14 December 2012, possum down the road to extinction FFG Act, s 4 31 VicForests, Central Highlands Region Factsheet < Central Highlands Region fact sheet.pdf>

6 strategies may provide alternative forms of employment for forestry workers, through increased levels of forest and habitat assessment and monitoring. 32 Under s 43 of the FFG Act, VicForests is likely to be entitled to compensation if their activities are suspended as a natural direct and reasonable consequence of an ICO. 33 Compensation could be utilised to minimise impacts on forestry workers. Furthermore, the Victorian forestry industry is making a loss, and is kept viable by an effective subsidy from the Victorian Government. 34 Therefore, the economic consequences of a reduction in timber harvesting to the state as a whole are neutral. On the other hand, preserving the area may deliver particular economic and social benefits to the region. Studies have been undertaken into the economic value of tourism, stored carbon and water yield which can flow from increased protection of wilderness areas 35 such as the forests of the Central Highlands. The Draft Regional Growth Plan for the Central Highlands region also suggests that the protection and enhancement of the environmental assets of the Central Highlands presents many opportunities within the region. 36 On balance, the negative social and economic consequences for the forestry industry of making an ICO are likely to be confined and offset by compensation and positive flow-on effects in other sectors. iv. Other relevant matters (FFG Act, subsection 26(5)(c)) The Minister must consider any other relevant matters. We submit that the fact that existing controls are not protecting the Leadbeater s Possum is relevant to your decision about whether to make an ICO. Current regulatory responses to the risk that the Leadbeater s Possum will become extinct are out of date and failing. In accordance with the FFG Act, an Action Statement was developed in 1995 following the listing of the Leadbeater s Possum as a threatened species. The current zoning system contained in the Action Statement is based on research from , when both Leadbeater s Possums and hollow-bearing trees were considerably more abundant 37. Since the Action Statement was prepared, considerable new research has been conducted into conservation strategies for Leadbeater s Possum. The current Action Statement fails to take into account the emergence of a number of significant new threats to the species which have developed over the past 15 years. 38 Updating the Action Statement is necessary and may well be underway. In the interim the Leadbeater s Possum requires additional, immediate protection in the form of an ICO. It is our submission that an ICO should remain in force until such time as a new Action Statement is developed and implemented, and Leadbeater s Possum populations have been shown to have begun recovering. Therefore, we ask that you respond to this request within 30 days of receipt, advising if and when the Minister will make a decision on this request. If we do not receive a response our client will consider avenues for taking this matter further FFG Act (Vic) s Lindenmayer, Sending the Leadbeater s Possum down the road to extinction, The Conversation, 14 December 2012, possum down the road to extinction PriceWaterhouseCoopers for Victorian National Parks Association, the Wilderness Society and Tourism Alliance Victoria, August 2008, Economic Value of River Red Gum National Parks FINAL 15%20aug%2008.pdf 36 Department of Planning and Community Development, Central Highlands Draft Regional Growth Plan (June 2013) data/assets/pdf_file/0005/151898/central Highlands Draft Regional Growth Plan PDF 5.7MB.pdf 37 38

7 Conclusion We request the Minister make an ICO under s 26 of the FFG Act as soon as possible. Under the Act, the Minister is entitled to make a discretionary interim order for the conservation of a listed taxon. S 26(5)(b) of the Act allows the Minister to order the immediate cessation of forestry operations within critical habitat for the Leadbeater s Possum. Under s 27, in exercising his or her discretion the Minister must consider any nature conservation matters and the social and economic consequences of making an ICO. As noted above, we submit the urgency of conservation outweighs the economic and social consequences of prohibiting timber harvesting operations in the limited critical habitat areas of the Leadbeater s Possum. If you wish to discuss any aspect of this matter, please do not hesitate to telephone me on Yours sincerely Felicity Millner Principal Solicitor CC: The Hon Greg Hunt MP Minister for the Environment PO Box 6022 House of Representatives Parliament House Canberra ACT 2600