Friday, March 24, 2006

What's wrong with the Qld Forestry code of Practice?

Briefing to Private Forest Owners, And to the Premier of Queensland,
Ssubmission in respect of the Draft Code Applying to a Native Forest Practice on Freehold Land.
Prepared by Ian Mott, Secretary, The Landholders Institute Inc. 3rd March 2005

“Beware the Ides of March” Said the Oracle to Julius Caesar.

Executive Summary

The Code is not a regulation. It is a 15 page definition in the Vegetation Management Act with 37 prescriptions and none of the protections that are accorded to ordinary members of the community. It has been specifically structured to provide the Minister and the Department with the capacity to exercise power improperly.

The science and policy inputs that have been employed in developing the Code include false and misleading statements of fact and serious omissions of relevant considerations.

These misleading statements appear to have been made with the knowledge of their untruth and with the intention that they be acted upon by both the government and by private forest owners. Both the government and some forest owners have already voluntarily acted upon those misrepresentations to their detriment. And even if they only amount to innocent misrepresentations, they are most certainly negligent ones.

There are three flaws with the HTTAG assessment of the impact of Habitat Tree prescriptions on productive capacity. These flaws obscure the fact that the current prescriptions will effectively extinguish the forestry purpose within two harvest cycles.

There are 15 major points of issue with the science that has provided a tenuous plausibility for the Habitat Tree prescriptions. Foremost among them has been the blatantly false assumption that arboreal mammals do not form family units and the absurd belief that a modelled shortage of hollows for a good season population peak could produce species collapse in a much diminished population in drought.

The detriment that private forest owners may suffer as a result of the negligent consideration of the habitat tree issue is entirely foreseeable and is as high as $26,000 per hectare. And it may not deliver the desired habitat service for up to a century.

We urge the Minister to take all reasonable and practicable steps, including review of the need for, impact of, and alternatives to, habitat tree retention, to minimise any detriment that forest owners may suffer.

This submission includes detailed modelling of the impact of various habitat tree retention levels and seasonal population changes on the supply of tree hollows to the arboreal family units that need them.

We request a meeting with the Minister for Natural Resources and his advisors to demonstrate the model and impart the critical insights that it, alone, will provide.

We also request copies of, and right of reply to, any critiques of, or responses to, this paper that are input to this policy process.

Ian Mott

Habitat Hollow Science

“The world is full of intelligent, highly educated people who lack the ability to think”. Edward De Bono.

Regrettably, this is probably the best spin one could put on the mix of arrogance, voodoo science, rat cunning and substance impaired cognition that now comprises the modus vivendi of Queensland’s Department of Natural Resources, Mines & Energy. And their handling of the Code Applying to a Native Forest Practice on Freehold Land is no exception.

First, as the Director of the Centre for Public, International and Comparative Law at University of Queensland, Professor Suri Ratnapala (1) has pointed out, this and other codes under the Vegetation Management Act are deemed not to be subordinate legislation (s.10(7)). And the Professor has stated, “Since subordinate legislation requires parliamentary approval, the sole purpose of these exclusions is to remove these instruments from parliamentary scrutiny and hence public debate”. See

More importantly, he said, “…these instruments are not generally subject to judicial review”. Nor are they subject to regulatory impact assessment. And the gravity of this is only fully apparent when one examines the nature of the fundamental rights that, till now, have been protected by the Judicial Review Act 1991 (JR Act)(2) and the regulatory review process.

Along with sidestepping the principles of natural justice, procedural fairness, jurisdiction and authority, the Government has carefully and deliberately contrived to gain the capacity to exercise power improperly. The JR Act, through (s.23(a to i)) outlines the meaning of improper exercise of power. And by circumventing these constraints on both Ministerial and administrative authority, Minister Robertson and his department have taken to themselves the capacity to;

(a) take any irrelevant consideration into account in the exercise of their powers.
(b) fail to take any relevant consideration into account in the exercise of their powers.
(c) exercise their powers for purposes other than the purposes for which they were conferred.
(d) exercise their discretionary powers in bad faith.
(e) exercise their personal discretionary power at the direction or behest of another person.
(f) exercise their discretionary power in accordance with a rule or policy without regard for the merits of the particular case.
(g) exercise power in a way that is so unreasonable that no reasonable person could do so.
(h) exercise their power in such a way that the result of the exercise of power is uncertain.
(i) any other exercise of their power in a way that is an abuse of the power.

Examination of just two aspects of the Code applying to a native forest practice on freehold land, as outlined below, appears more than capable of establishing that Minister Robertson and his Department have already stooped to exercising (abusing) “all of the above”.

The interesting issue arising from this situation is whether the Minister, his Director General and all his policy staff and advisers acted lawfully in organising an arrangement and drafting legislation that deliberately, and in a discriminatory fashion, circumvented peoples fundamental legal safeguards. For all of them are bound by the Ethics Principles and Obligations that are set out in the Public Sector Ethics Act 1994 (3) which, under (s.4(1)), “are declared to be fundamental to good public administration”. These obligations include;

Respect for persons.

8.(1) A public official should treat members of the public and other public officials –
(a) honestly and fairly; and
(b) with proper regard for their rights and obligations.


9.(1) In recognition that public office involves a public trust, a public official should seek –
(a) to maintain and enhance public confidence in the integrity of public administration, and
(2) Having regard to the obligation mentioned in subsection (1), a public official –
(a) should not improperly use his or her official powers or position, or allow them to be improperly used; and
(c) should disclose fraud, corruption and maladministration of which the official becomes aware.

Forgive my ignorance, but it was my understanding that having proper regard for a persons rights and obligations has never included working with other persons to develop a back-door means for depriving them of those rights. It was my, possibly mistaken, understanding that working on such arrangements did not constitute ‘consultation’ but, rather, by way of their lack of lawfulness, clearly fell within the spirit, if not the definition, of conspiracy.

And many ordinary men and women could be forgiven for thinking that one of the attributes of the diligent exercise of a Director General or Senior Advisor’s duties would be the ability to recognise that carrying out work for the purpose of circumventing fundamental rights and protections in law;
(a) neither maintains nor enhances confidence in the integrity of administration, and
(b) amounts to allowing improper use of powers, and
(c) could give rise to a perception that maladministration has not been disclosed.

And these apparent multiple breaches of the ethics obligations are not breaches of obscure, isolated or newly established community expectations. Indeed, the Criminal Code Act 1899(4) also has quite a bit to say about community expectations of honesty and integrity in general and the actions of public officials in particular.

There amongst the fraudsters, procurers and abusers are provisions such as (s.92(1)) dealing with public servants doing or directing, in abuse of their authority, any arbitrary act prejudicial to the rights of another (Up to 2 years in prison). There is (s.200) dealing with public servants who, perversely and without lawful excuse omits or refuses to do an act which is his or her duty to do by virtue of their employment (up to 2 years in prison).

And in the case of legislation like the Public Sector Ethics Act that prescribe no specific penalty, there is (s.204) which covers any person, without lawful excuse, the proof of which lies on the person, does any act that they are forbidden to do, or omits to do any act that they are required to do under any statute (Up to 1 year in prison).

So while the process of drawing up legislation and regulations were fully authorised under legislation, it is clearly the community’s fundamental expectation that the processes involved, and the work carried out, must be fully compliant with all existing legislation. And the more conversant reasonable men and women become with the facts in this matter, the more likely they are to conclude that this has not been the case. And this is especially so with the Code applying to a forest practice on freehold land.

Flaws in the Code of Practice

Part 1: The understated impact of excessive HBT retention prescriptions.

The attribute of this code (5) that has the most significant impact on forest owners are the provisions relating to habitat tree retention. The objective of this provision is to ensure that, “Required Outcome (RO2) The wildlife habitat values of the forest stand are maintained”. But this worthy objective comes with Required Practices (RP2 that go far beyond the stated objective. It stipulates that the number of habitat trees (HBTs) and recruitment habitat trees as specified in Table 3 are retained as well as all feed, nest and shelter trees.

The Table gives the impression of being a scaled prescription for forest type but close inspection reveals that most Coastal or Inland Dry Sclerophyll forests have the same prescriptions as those applying to Rainforest due to the listing of shires deemed to be within the “preliminary predicted range of the Greater Glider”. This means that most farmers from Boonah, Goondiwindi and Atherton must satisfy the prescriptions for the wettest forest types.

Furthermore, where the existing forest has less than 6 HBTs then a greater than commensurate number of recruitment trees must be retained up to a total of 11 trees if there are no HBTs present. This clearly passes beyond the meaning of ‘maintaining wildlife habitat values’ to now encompass very significant ‘restoration’ and penalty components.

It looks benign to the ill-informed. But most private remnant forest has been allowed to re-establish on extensively cleared land (often by compulsion) and this means that most private forests will, entirely lawfully, only have 1 or less habitat trees (with at least one 10cm hole) per hectare. These regrowth remnant forests (unlike their market competitors the native species plantations) are being compelled to set aside very significant additional portions of their productive capacity. It is clearly an environmental tax, of an in-kind nature, levied on capital, not income, in a discriminatory manner and for which no credit is given when other taxes are assessed.

It goes far beyond the stated objective of merely maintaining existing habitat values, seeking to restore wildlife habitat values to approach the pre-clearing condition. And the scaled additional recruitment trees, at almost double the replacement rate, will mean, for most remnant forests on private land, the complete extinguishment of the productive capacity of the existing use in as little as 15 years.

And it is in the departmental community’s attempts to obscure this fact that the official information dives into the murky end of the pond. The DNRM’s Habitat Tree Technical Advisory Group, (HTTAG) (6) based estimates of the impact on productive capacity on extraordinarily unreasonable, and inappropriate assumptions and plain gonzo science.

To begin, they only analysed for one point in time, not for the reasonably foreseeable future, as they are obliged to do. This enabled the assumption that retained HBTs don’t grow and allowed the implication that recruitment HBTs had the same, or lesser, effect on site occupancy as actual HBTs.

Two scenarios were plotted (7) (p38) which appear to have calculated the proportion of HBT canopy for a range of assumed canopy covers from 100% down to 40%. The first scenario employed “current silvicultural standards” (i.e., the ones that were ignored under the SEQFA) while the second was based on ‘more intensive silvicultural standards”.

The ‘current’ case assumed that each hectare already had 5 unmerchantable trees/ha or 25% of total area and that the HBTs would all come from them first. This would be consistent with an assumed 40% (4000m2/ha) normal canopy cover with each tree covering 200m2, a crown diameter of 16metres, a crown to stem ratio of 15 to 1, and DBH of 1.06 metres. And this enabled them to conclude that retaining 8 HBTs/ha would only require another 3 trees which would only involve a 0% to 15% loss of site occupancy.

The ‘intensive’ case assumed that all large trees were potentially merchantable so all HBTs would need to come from productive stock. It projected a loss of site occupancy of between 14% (for a closed 100% canopy with slightly smaller trees) and 40% (for a 40% canopy).

Three major problems with DNRM modelling

But there are three very significant problems with this modelling. The first is that the on-going productive capacity of a forest is primarily determined by the stems that are retained after a selective harvest, not before it. The essence of native forest harvesting is the removal of mature and undesirable stems so that the remaining (usually 50%) stems can fully utilise the productive capacity, the soil nutrients, water and sunlight, of the site. So any loss of productive capacity must be calculated as a proportion of the remaining canopy cover, not the potential canopy cover. Site occupancy is not a surrogate for productive capacity.

Consequently, a forest that is at full capacity at 80% or 8000m2/ha canopy cover will normally be selectively harvested to produce a retained canopy of 40% or 4000m2/ha. These retained trees will be fully capable of utilising all of the site’s growth potential. And in this circumstance, 8 HBTs of 200m2 each will occupy 1600m2 of canopy and amount to 40% of 4000m2 rather than 20% of 8000m2.

The second significant problem with the modelling is that the stem to crown ratio (1:15) that appears to have been used mostly applies to closed forest ecosystems. The dry sclerophyll RE’s that make up most of the forest resource that is subject to the Code of Practice exhibit larger ratios (up to 1:20). And this has a major bearing on the modelled result.

A tree in a closed forest with a 1.06 metre DBH and a stem to crown ratio of 1:15 will have a crown area of 200m2. But a tree in a natural or man-made open woodland with the same DBH may have a stem to crown ratio of 1:18 and would have a crown area of 286m2.

So in the example given 3 paras above, 8 HBTs of 286m2 each will occupy 2288m2 of canopy, 43% more than the 1600m2 predicted under a 1:15 ratio. Under even more open conditions (i.e., 1:20) the same 1.06 metre DBH would produce a crown area of 353m and eight such trees would cover 2825m2/ha.

And this brings us to the third significant problem with the modelling. Most of the Regional Ecosystems (RE’s) that are subject to the Code of Practice have ‘normal extents’ or normal canopy cover that is less than the minimum 40% cover that was used in the model.

The DNRM/Qld Herbarium’s(8) “Coreveg” data set outlines the deemed canopy cover that has been used to determine the boundaries of each mapped remnant polygon. It is, therefore, the primary determinant of whether forest is deemed to be remnant, and subject to the Code of Practice, or non-remnant, and not subject to the Code.

And farmers all over Queensland would be very surprised to learn that the percentage canopy cover used in the mapping process is often well below the actual canopy cover that is exhibited on the ground by their mapped remnant forest.

For example, inquiries in respect of a polygon mapped as RE 12.11.5a Mixed tall open forest, with mostly Spotted Gum (E. citriodora) and Grey Ironbark (E siderophloia) revealed that the ‘normal’ canopy cover for this RE was only 40% and, consequently, any paddock with more than 20% canopy cover (50% of normal extent) was deemed remnant. This forest was in Brisbane’s East side with annual rainfall of 1250mm so one can reasonably assume that even lower canopy percentages have been used for remnants in dryer parts of the state (i.e., most of it).

The implications of this are that if the ‘coreveg’ percentages are used to determine the applicability of the Code of Practice to a forest then the same percentages must be used as the basis for assessing the impact of HBT retention prescriptions under that same Code. This has clearly not been the case in any known DNRM assessment.

So what does this mean on the ground?

Under a standard 50% harvest of the above mentioned RE 12.11.5a polygon, the canopy would be reduced from a ‘normal extent’ of 4000m2/ha to 2000m2/ha. If six HBTs of 286m2 each, totalling 1716m2 and 2 recruitment trees (sawlogs 60cm DBH, 10.8m crown & 92m2 ea) covering 184m2 for a total of 1900m2 were retained on each hectare then the Code of Practice has occupied 95% of the productive capacity of the site.

And contrary to widely held departmental assumptions, these trees will continue to grow and utilise the productive capacity of the site. Their DBH may not increase by much over the following growth cycle but the same growth increment will be ‘attached’ to the tree in the form of wider upper stem (reduced taper) and larger limbs or in diminished growth through shading. In 20 odd years time the volume and crown area of the retained recruitment stems will have doubled and any residual growth will be in a very slow growing understorey with a lead-time to harvest of such length that it is effectively irrelevant.

At that second harvest only 5 to 10% of standing volume will be harvested. There will be no retained production stems and the retained recruitment and HBT stems will occupy more than 100% of the original productive capacity. The forestry purpose will be completely extinguished and we will still have another 120 years to wait before the recruitment trees form an acceptable hollow.

If there are no HBTs in that forest, due to past lawful clearing or generally accepted forestry practice at the time, then the Code of Practice will require not just the 6 trees needed to produce 6 HBTs in 140 years time. Consistent with normal departmental practice of allowing themselves the extremely liberal margins of error that they would never allow the public to enjoy, a total of 11 recruitment trees (sawlogs) must be retained to cover any anticipated mortality prior to the year 2145 when the first Possum takes up residence.

Assuming these 11 sawlogs are also the only feed or nest trees on site, the total canopy area captured under the code will still amount to 1012m2 or 51% of productive capacity on the day after the first harvest. Over the next cycle these trees will grow to cover 2024m2. (i.e., circa 75cm DBH with less taper) They will enable a 49% harvest at year 20 but after that harvest the Minister’s trees will account for 102% of the retained stand volume and productive capacity. There will be no 3rd harvest in year 40, the forestry purpose will be extinguished and the translation of the homeless fauna’s opinion of the Minister’s environmental credentials would be unprintable.

But even this scenario understates the conditions found in most of the forests in Queensland. Most graziers recognised the contribution that timber could make to their integrated agricultural use. So instead of complete clearing, as their cropping neighbours had done, they maintained artificial open woodland that fluctuated in density below the ‘normal extent’. So while the fully stocked canopy cover may have been 40%, they maintained forest cover between 15% and 30% to promote better pasture growth while maintaining a contributive forest. It is the natural equivalent to the plantation based wide agro-forestry model that is widely promoted in the name of sustainability by governments all over the world.

But this range of forest cover within the existing agricultural use would ensure that it would fall within the remnant threshold in the later half of each harvest cycle. And rest assured, if there was any hint of ambiguity in status, it would be mapped as remnant anyway. Even a regrowth flush after a good wet season would be sufficient to add the paddock to the remnant map. But the Code of Practice makes no allowance for variations in existing use.

In such a case the Code will still require the above mentioned 11 recruitment habitat trees. Their 1012m2 of canopy would occupy 67% of the retained 1500m2 canopy stand on the day after the first harvest. At the second harvest in year 20 only a 32% canopy removal (976m2) will be possible and the Minister’s trees will then occupy 135% of the normal retained area. The forest owner will then have no choice but to watch the Minister’s forest expand at the expense of his grazing operation and abandon any hope of a third harvest.

The existing forestry use will be effectively extinguished by year 20 and over the following 20 years any remaining profits from the grazing operation will be absorbed by higher overheads that had formerly been covered by the forestry element of his use. The grazing operation will shrink and losses will accumulate as the Minister’s trees continue to grow and retake or even exceed the ‘normal extent’ of the RE.

And it is all done in the name of ecologically sustainable land use, one of the main principles of which is, wait for it, intergenerational equity!

Continued next post. IM


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