Under the NSW Native Vegetation Act 2003 harvesting of timber for what government describes as “the purposes of private native forestry” will require approval through the preparation of a Property Vegetation Plan (PVP) or through an application for development consent. Both applications must be in accordance with a Code of Practice.
The draft code was recently released by government for public comment and there has been an outcry from landholders, foresters and academics. The bottomline appears to be that it spells the end of native private forestry in NSW?
Following is Jim Hoggett’s submission to the Minister:
“DRAFT CODE OF PRACTICE FOR PRIVATE NATIVE FORESTRY
It is difficult for private individuals to make judgements on a document of such extensive ramifications as this draft code (the Code). However, with combined experience of 60 years in public service, forestry and now farming we are perhaps well qualified to comment.
This submission falls into two parts. This letter contains our more general comments on the Code. The Attachment contains more technical but equally important comments.
Our central criticism of the Code is that it will prove unworkable over the bulk of the private native forest domain. It will therefore be an effective prohibition of most private native forestry. This is of serious concern, as most native forest is on private land and most publicly owned native forest is locked up in Parks with State Forests reduced to a shadow of its former operation. The Code is also a massive overkill when we consider that broad scale clearing has virtually ceased in NSW. Also production native forest is only one twelfth of total Australian native forest and. less than one per cent of production native forest is harvested each year
The prime reason for our criticism is apparent. The Code has been driven entirely by the existing environmental legislation rather than the need to devise an instrument that would marry and optimise environmental and forestry outcomes. The result is not just the effective loss of most private native forestry potential but a much worse environmental outcome than sustainable forestry would provide.
There are three principal reasons why the Code will not work as intended.
Firstly, it is incredibly voluminous and thus hard to comprehend. The code is an extremely detailed set of provisions for forestry operations. The numerous sections, subsections and tables will prove well beyond the comprehension of most landholders let alone their capability to satisfy them. It is a common failing of legislators and officials to assume that the average farmer will have the hours and expertise to actually give effect to complex legislation in the spare time from his daily work. Legislators have only to have a broad understanding of the legislation for a short period before they move on to the next regulation.
Beyond the Code is a wide spectrum of interlocking environmental legislation, regulations, guidelines and Scientific Committee determinations. These embody hundreds of further provisions and constantly expanding lists of prohibitions. The idea that a landholder can follow through all the additional legislative ramifications is fanciful. Its sheer volume will defeat him.
The loss of respect for a huge body of law that is patently unadministrable will have further perverse effects (see below).
Second, the Code is extremely restrictive. A concomitant of the volume of the rules is that it is very restrictive of private forestry activity.
The landholder will need to have regard to all the potential threatened species, populations and communities (at last count there were over 800 endangered or vulnerable flora and fauna). He will need to avoid, riparian zones (including unmapped drainage zones), aboriginal and other heritage sites, rocky outcrops, erosion areas and measure slopes. He will need to prepare and follow a very detailed harvesting plan and possibly a forest management plan. He will need to count and measure tree species, preserve certain species, retain a range of hollow bearing trees, feed trees, recruitment trees, roost trees, nest trees and food resource trees. He will have to observe close to 100 operational conditions. He will have to accept any directions by the Department. He will have to report on all this regularly.
He will be subject to a number of regeneration obligations that the Government does not even impose on its own forest operations.
It may be that there are some trees left to harvest and some capacity to do it after all this but the obstacles are formidable enough to amount to prohibition in most cases. There are so many hooks and traps in the legislation that the sovereign risk imposed by the State government renders it a most precarious venture. Certainly, in our own case, where we did have the capacity to engage in small scale, sustainable native forestry operations, that option has been closed off and part of the value of our property expropriated by the State.
The PVP process, assuming that individual landowners accept it, will complicate rather than simplify private native forestry operations. It will contain all the proposed restrictions and simply add another layer of offsets and bureaucratic intervention. As it stands, landowners would be foolish to contemplate such an enduring and restrictive covenant to their already seriously curtailed freehold.
Third, the Code will be environmentally perverse. The underlying purpose of the Code is to protect and improve the NSW forest environment. By making officially sanctioned private native forestry inaccessible to most landowners, two outcomes are most likely.
In the knowledge that the law will be almost impossible to administer, the more “enterprising” will conduct forestry operations while observing the minimum or no obligations on the ground. They will either “tick boxes” or just ignore the whole legislative mess. They will bank on the knowledge that if they do not have the time to identify and tape measure every tree on their property, the official tree auditors will be unable to do so over the millions of hectares of private native forest.
Many will just give the whole idea up and set aside the land in the hope that the Government will see sense in the end. They will adopt a policy of neglect. To avoid further expropriation or government imposed obligations, they will not report environmental features or endangered species. They will minimise pest and weed control. They will endure the inevitable periodic fires, which will be the more serious and cause greater damage to the forest than would be the case if sustainable forestry were permitted (vide destruction of the National Park estate in 2003). This will maximise forest green house emissions. In short, landholders will not become unpaid rangers in the “parks” created by government on their land.
More fundamentally the legislation once again ignores the dynamic of the natural environment. Forest regions change over time in area and composition. The NPF legislation, like the PVP concept and other NSW laws for the natural environment, is based on the false notion and unattainable objective of a stable existing and future environment that can be centrally planned in detail by government. Like all central planning it is doomed to failure.
This is unfortunately another chapter in the gradual quarantining of productive NSW rural land dressed up as environmental policy.
It could have all been so much better. Instead of importing increasing volumes of timber of dubious provenance we could have developed a code that encouraged the sustainable use of our extensive native forest resource with positive effects on our economic performance and environment and a greater contribution to lowering greenhouse effects. We ask you to look again at this Code as more than a dependent adjunct of “green” policies; in short, as a forest policy with its own imperatives.
Aled Hoggett Jim Hoggett
Draft Code of Practice for Private Native Forestry
• The code is sloppily written. It has numerous ambiguous statements, a number of inconsistencies, numerous undefined terms, and could be accused of being technically inept, glib and disingenuous.
• Implementation of the technical aspects of this code, and the costs of its implementation are beyond the resources of the average farmer hoping to conduct small scale logging operations. It will prevent owners of small areas of forest (e.g. <100 ha net harvesting area) undertaking logging. We are one farming operation that will be directly affected in this way. • For managers of large forest areas, the costs of implementing the requirements of CoP will significantly reduce financial returns. The requirements of the CoP are similar to those imposed on public forest, with no compensation for what are Community Service Obligations. Forests of NSW receives funding for its CSOs, has efficiencies of scale and still does not make money on its native forest operations due largely the cost of meeting similar requirements to those listed in the CoP. • Limiting the choice of silvicultural systems and imposing very high overstorey retention rates will impose significant silvicultural difficulties. They will o work against achieving rapid regeneration of pre- existing overstorey species in many forest types (particularly moist and tall forests) o favour an accumulation of advance growth that is incapable of rapid growth and is of poor quality for timber production (stagnate timber productivity) o favour species that are more shade tolerant and may lead to significant shifts in forest composition (change biodiversity profile). • The regeneration and stocking requirements are unreasonable considering current State Government practices on public land, onerous to implement in a meaningful way, and entirely unnecessary given the ecology of native forests and the limits on harvesting activities embodied in the CoP. • Three systems of describing trees have been adopted in the code. They are the canopy class (crown dominance), age structure and cohort systems. Each system has a well accepted technical definition. In this document the authors seem to see them as interchangeable. They are not. The use of all three with no definition for any of them is confusing. Given that standard application of these systems causes much debate even among professionals, it is likely that their use in the CoP, even under tight definition, will be a major cause of confusion and mistakes. Comments by section 1.1 • Forestry is classified as broad-scale clearing. The Government has a policy to end all broad-scale clearing throughout the state. This code, by sanctioning what the legislation defines as broad-scale clearing, runs counter to clearly and frequently articulated Government policy. PNF is not, and should not be classified as broad-scale clearing. Nowhere else in the world is sustainable forestry classed as broad-scale clearing. • Definition of PNF is not consistent with the rest of the document. Native forests can be sustainably managed for timber production (a “sustainable yield”) without consideration of a range of other values that the code concentrates on. PNF under this code means something other than “The practice of sustainably managing a native forest for long term timber production”. A definition that reflects the rest of the CoP needs to be up front. • Why, if a Harvesting Plan (and Forest Management Plan) is to be compiled, and the CoP is so prescriptive, is a PVP required. Does Forests of NSW require a PVP for its harvesting activities? Does National Parks require PVPs for its operational plans where they will impact on native vegetation? One layer of planning is clearly redundant. Our understanding was that PNF conducted under this code was exempt from the provisions of the Native Vegetation Act – that was the whole point of the code. It can only be assumed that this is ploy to boost the number of PVPs issued, and artificially inflate the apparent success of the Government’s Native Veg Act. 2.1.6.a) • How accurately do all of these features have to be mapped? The level of accuracy that the CMA will accept will determine the cost of this mapping exercise. Mapping is not a trivial undertaking. • For ii), what constitutes due diligence in identifying these species? Will informal or formal survey work be necessary? What are the consequences for not identifying individuals? • For ii), will the approved Harvesting Plan and PVP constitute a license to take or kill under the Threatened Species Act, or will individual farmers have to seek a license from the National Parks service to protect them from prosecution in the event of accidental take or kill. What will happen when a threatened species is accidentally killed despite adhering with all the CoP provisions? • For iii), what will be required in identifying and mapping dispersible and erodible soils? Will informal or formal soil survey work be necessary? 2.1.6.b) • For iv), why do they need to be described in the HP when the CoP describes them and they are included on the map? • For vii-x), all of these are silvicultural activities, not simply those listed in x). Any standard contemporary silviculture text will define silviculture as the art and science of managing a forest community in order to produce desired ends (see comment of Glossary). Those ends may be timber, biodiversity conservation, clean water production, soil protection or visual amenity. Defining silvicultural activities simply as those associated with timber production is incorrect. 2.1.8 • What will the life of the PVP be? Will the Government hold a covenant over the property beyond the life of the harvesting operation? Will it extend until regeneration has been demonstrated to be achieved? 2.2.2 • What is the approved form? Is its format available and will it change? Why isn’t what is required by the CoP sufficient to constitute an approved form? 2.2.5 • Long-term planning objectives for what? Presumably the forest, rather than the whole property. 2.2.6.b) • For ii), what does this mean? Does the PVP cover the FMP or simply the HP. In other words is a new PVP required for each HP under an FMP? Of is it assumed that the FMP and HP cover identical areas? If so, what is the difference between the FMP and HP. The relation between the various planning instruments is not clearly defined. The opportunity for redundancy, inefficiency, conflict and confusion is obvious. • For v-vii), see comments on the definition of silviculture above. 2.2.7 • How will the landholder amend the FMP if the PVP has already been issued and a condition of the PVP is that the landholder comply with the existing FMP. This seems to imply that the landholder can amend the FMP without seeking consent from the consent authority. 2.3.2 • Why is this necessary? The operations are tightly constrained by the PVP, HP and FMP all of which are approved by the CMA and open to inspection at any time. Reporting is just another administrative process that will cost both landholders and the bureaucracy time and money. It serves no useful purpose for auditing regulatory compliance. What will the Government do with the information? It is possibly commercially sensitive. Reporting production volumes is not a requirement for other products that farmers harvest from their land. 3.1.3 • Why are BA retention standards necessary. The silvicultural objectives of biodiversity protection and retention of a high proportion of overstorey cover have been met other ways. There are strict retention standards for habitat/feed trees, clear maximum gap sizes and percentages limits on gap formation per harvesting operation. There is also a clear definition of what comprises a gap. No doubt, the CMA will have to approve subsequent harvesting activities preventing re-harvesting at short intervals. The minimum BA figure is redundant, its use akin to wearing a belt and braces. • These constraints coupled with other retention requirement will mean that the intensity of tree removal will be low across the net harvesting area. It will be much lower again when considered against the backdrop of the gross harvesting area or the area covered by the FMP. It will be insignificant when considered on a landscape scale, and infinitesimally small when considered on State scale. At the local level, tree removal standards are not only unnecessarily low, they are counterproductively so for both timber production and long-term ecological outcomes. It is an accepted ecological fact that disturbance to ecosystems at a range of spatial and temporal scales is crucial in maintaining ecosystem diversity and resiliency. Systematic limiting and homogenising of disturbance effects is just as ecologically risky as imposing no limits. Table A Note • This note is patently absurd. There is no meaningful relationship between BA retention and the maintenance of forest biodiversity. 18 m2/ha may be retained in a handful of large trees or hundreds of small trees. It may be retained in one species or canopy class group or across all. Biodiversity also includes much more than just retained trees. BA retention is far to blunt an instrument to be meaningful in biodiversity conservation. • The authors once again appear ignorant of the internationally accepted definition of silviculture. The maintenance of forest biodiversity is a legitimate silvicultural consideration. It does not exist either separate or in opposition to “appropriate silvicultural practices”. Rather there are silvicultural practices that are appropriate for the maintenance of biodiversity. Unfortunately, the constraints on silvicultural practices inherent in this CoP are unlikely to maintain biodiversity. 3.2 • Forest NSW do not undertake systematic regeneration surveys following their harvesting operations. Nor do they rehabilitate areas that are not sufficiently restocked (even when they are aware of them). Forests NSW has not done this at any point in its 100-year history. This has been a conscious decision on Forests NSW’s part as both surveys and rehabilitation work are expensive. It is also clearly acknowledged that even if adequate regeneration is not achieved in the short term (years rather than decades), longer-term processes will ensure adequate regeneration. This is especially the case with high overstorey retention rates. The only cost of a regeneration delay will be reduced annual timber production (i.e. a cost to the landholder). Why should the standards imposed on private landholders be any more stringent than those that the public authority is practicing? • 5. suggests that landholders, if they report regeneration failures may be made responsible for rehabilitation or replanting work. Rehabilitation or replanting work is potentially very expensive. • Table B heading says “Elsewhere in the forest” – does this mean in the area logged under the HP or in the gross HP area. • Explanatory Note: suggests that guidelines will enable people to undertake a valid survey. After studying statistics and survey techniques for 8 years at university and drafting and testing Forests NSW regeneration survey techniques I can confidently state that the results of most surveys conducted pursuant to this code would produce results that were not statistically valid, and in many cases would be worse than useless (provide misleading information). 4.1 • Old growth is defined three times and each time differently (see 4.1.4, 4.1.4.e and the glossary). Which definition should the landholder adopt? Are the agreed protocol and glossary definition the same? 4.4.3 • This suggests that PVP and HP process are not interlinked. If the PVP approval is contingent on the prior preparation of an HP and the PVP provides the authority for the HP, then surely HP would not be approved under the PVP process without all the extant regulatory requirements being met? Can an HP be prepared after a PVP is issued? The whole of 4.4 is ambiguous. Its intent needs to be much more concisely stated. 4.5.4 • The use of topographic map data as a basis for identifying features on the ground is problematic. Some streams on maps are simply not of the significance suggested by the map. There needs to be some allowance for misleading or incorrect map data. Maps are models of reality, they are not reality itself. If the model does not represent reality it is the model that should be jettisoned. 4.5.17 • Why not? Machinery is excluded in all cases and these areas will need to be regenerated (gaps created) at some time. Particular attention to canopy disturbance levels will be required if tree regeneration representative of existing overstorey species is to be expected adjacent to drainage features in moist forest type. Tables F, G and H • Because of the limits on harvesting, particularly in protection zones, the distances for higher order streams and for the western forests as a whole are ridiculously large. They cannot be justified in erosion mitigation terms and are unnecessary and potentially counterproductive for maintaining the unique ecological characteristics of riparian vegetation. Tree falling should be allowed in protection zones providing that machinery does not enter the zone. Zone widths should be reduced to levels necessary to ensure soil does not move into the stream. Glossary • The definition of Silviculture is simply incorrect. Ralph Nyland, Professor of Silviculture at New York State University defines silviculture in Silviculture: Concepts and Applications (1996, Macgraw-Hill) as “The science, business, art and practice of purposefully organising and managing forest resources to provide continuing benefits for people…These include benefits derived either directly or indirectly from the trees themselves, other plants, water, wildlife and minerals found in forest areas – and also a host of intangible benefits that people realise through recreation and other noncommodity uses”. Similar definitions can be found in all contemporary Silviculture textbooks."