Across the mountainous peaks of Victoria’s central highlands, alpine and mountain ash trees stretch as far as the eye can see.
Standing as high as 100 metres, Eucalyptus delegatensis and Eucalyptus regnans — as the trees are scientifically known — are a sight to behold. Mountain ash is the tallest flowering plant in the world.
But, here in the Thomson water catchment, north-east of Melbourne, it’s on the forest floor where these trees work their magic.
The ash trees play a crucial role in filtering drinking water that winds its way down the steep slopes, and into Melbourne’s largest reservoir.
Their trunks, roots and leaf-litter — as well as the understorey of ferns they support — slow the torrents of water that sometimes flow down the mountains, stopping soil from being washed into streams, rivers and dams.
When slowed, the water descends into the ground, where it is naturally filtered by the root-bound, compacted soil.
This complex process makes Melbourne’s water supply unique. Water from the Thomson catchment doesn’t require intensive, man-made filtering. And it’s one reason why laws exist to regulate logging on these steep mountain-sides, so that the water remains clean and uncontaminated.
However, high-resolution spatial data and information obtained as part of an ABC investigation have sparked allegations that the state-run timber corporation, VicForests, is putting this vital process at risk through widespread and systemic illegal logging of the region’s steepest slopes.
Further documents obtained by the ABC suggest the regulator, whose job it is to monitor VicForests, was alerted to the breaches but failed to properly investigate.
It’s not the first time VicForests has been accused of illegal logging, nor the first time the regulator has been accused of ignoring it.
According to leading ecologist Professor David Lindenmayer, it’s the story of Australia’s “lawless” loggers, and a regulator failing to regulate.
This is a remote section of state forest in Victoria’s alpine region.
Running through the middle is the border of the Upper Goulburn and Thomson water catchments — the latter providing about 60 per cent of Melbourne’s stored drinking water.
The catchments are listed as water supply protection areas, meaning there are strict rules governing where logging can occur.
VicForests must only log within clear boundaries known as coupes. The protection areas also mean they have been prohibited from logging slopes steeper than 30 degrees.
“If you remove trees and vegetation from the catchment, then you’re more likely to have overland flow of water instead of the water filtering through the soil,” says Professor Stuart Khan, an expert in water treatment.
He says that leads to soil eroding into the waterways, which can lead to all sorts of problems, including toxic algal outbreaks.
Dr Chris Taylor and Professor David Lindenmayer from the Australian National University had long suspected VicForests was illegally logging steep slopes, but their attempts to prove this were dismissed, partly because their research was not based on the same, high-resolution terrain data that the logging company uses.
Now the ABC has obtained that high resolution LiDAR data. It allows us to model the underlying terrain with incredible detail and investigate VicForests’ compliance with the law.
The researchers also obtained a copy of the data, and were able to calculate the gradient of the ground for every pixel in the model.
Every pixel in the hi-resolution model is 1 square metre.
Areas highlighted orange are logged regions that exceed 30 degrees.
The researchers, who conducted in-field measurements to confirm the modelled data, found up to 321.8 hectares logged from 2004-2019 had a slope of more than 30 degrees across the Upper Goulburn and Thomson catchments.
All but one of the 332 logged areas they analysed, had a slope of at least 30 degrees.
Calculating a slope for every pixel meant they could be detecting small steep bumps in the terrain as small as 1 metre — like a boulder — which would not count as a breach.
To avoid this, the researchers produced further findings that averaged slopes over circles with a 20-metre and also 40-metre diameter from a central pixel.
This roughly matches the distances used by the regulator when it assesses potential slope breaches when conducting on-the-ground investigations.
Using this method, they still uncovered widespread areas that had been logged over the legal slope limit.
This is Mount Matlock, near the border of the Thomson and Upper Goulburn catchments.
Researchers found a high concentration of steep slopes here that had been logged.
This coupe is called “Eddie Would Go”, a 35-hectare area of alpine ash.
Here, even applying the most lenient analysis, Dr Taylor and Professor Lindenmayer found 7 hectares of land — about 3.5 times the size of the MCG — that had been cleared had a slope greater than 30 degrees.
In the neighbouring coupe, called “The Wolfman”, 12 per cent of the logged area was on slopes greater 30 degrees.
In total, applying the most conservative assumptions, the researchers say they found almost 66 hectares of forest across the Thomson and Upper Goulburn water catchments that should not have been logged by VicForests, an area 33 times the size of the MCG.
If too much soil runs into the waterways, water quality expert Professor Stuart Khan said it can lead to problems with its taste and smell.
“The forests are essential in making sure that the water is of high quality before it comes into the reservoir and into the distribution system to provide that water,” he said.
Vegetation also lowers the risk of algal blooms that make the water temporarily unusable.
It’s particularly important for Melbourne, because 60 per cent of its stored drinking water comes from the Thomson catchment. And that water is delivered to households with relatively little filtration.
“It would be a disaster if Melbourne lost the great value that it gets for protecting drinking water from its catchments and had to, instead, invest in cleaning up that water and removing the soil,” Professor Khan said.
VicForests strongly denied allegations that they had breached the slope limits in a widespread way, noting in a statement that the regulator never substantiated the allegation.
Allegations go uninvestigated
The Office of the Conservation Regulator (OCR) is the body tasked with enforcing Victoria’s logging laws, and sits inside the Victorian Department of Land Water and Planning.
Professor Lindenmayer and Dr Taylor first went to the OCR in 2019, alleging hundreds of instances of illegal logging.
At that time, the scientists didn’t have access to the high-resolution LiDAR data, so they used publicly available data with a 10th the resolution to examine the logging activity.
However, their 2019 results were very similar to their 2021 findings, and were published in a peer-reviewed journal.
“We expected when we handed our results to the regulator that there would be significant action,” Professor Lindenmayer said.
There was not. The OCR assessed more than 500 logged areas, and made the decision to fully investigate just two.
In both cases, it found VicForests conducted illegal logging but declined to take any regulatory action, in part because they didn’t find any evidence of mass soil movement.
Now, the ABC can reveal how the OCR made those assessments, in documents laid bare under Freedom of Information laws.
Despite having access to both the high resolution LiDAR data, as well as the lower resolution satellite data used by the scientists, the OCR instead used data 30 times less accurate than the LiDAR, and only one-third as accurate as the data used by the scientists.
The OCR found evidence of slope limit breaches in more than 95 per cent of areas assessed, but told the ABC the allegations of widespread and systemic logging “could not be substantiated”.
In a press release at the time, VicForests said it believed it was allowed to log over slope limits in up to 10 per cent of any one coupe.
While in some areas, logging beyond the slope limits was allowed in up to 10 per cent of any one coupe, the law explicitly prohibited the practice in water-supply protection zones.
The ABC can reveal analysis by Professor Lindenmayer and Dr Taylor suggests VicForests breached even that rule, and the OCR itself found some slope breaches covered areas bigger than entire suburban blocks.
“They’ll do anything to make sure that they don’t find a problem,” Professor Lindenmayer said.
Lindenmayer and Taylor found that, across the important Thomson catchment, up to 20 per cent of coupes had more than 10 per cent of their area logged on slopes greater than 30 degrees.
In the Upper Goulburn it was even worse: The analysis suggests nearly a third of coupes analysed had more than 10 per cent of their area logged on slopes steeper than 30 degrees.
When the scientists applied a generous smoothing function to avoid counting small, steep slopes in the landscape as breaches, there were at least 10 coupes across the two catchments that had more than 10 per cent of their area logged beyond the slope limit.
That damning analysis fits with VicForests’ own internal workings. The researchers obtained VicForests’ analysis of their compliance with the law in the Upper Goulburn Catchment through Freedom of Information laws.
VicForests’s analysis suggests they breached the legal limit in more than half the coupes in the Upper Goulburn catchment.
In 11 coupes, it found that they cleared more than 10 per cent of logged area beyond the slope limit.
In some coupes, they cleared nearly 30 per cent beyond the slope limit.
Kate Gavens is the chief conservation regulator, and heads up the OCR. She said that desktop analysis was just one part of its assessment.
“What’s really important in investigating the law, is doing field assessment,” she said.
“That’s really critical … to establishing where potential non-compliance has occurred, and that’s what we did,” she told the ABC.
After much probing, Ms Gavens admitted that, of the 500 logging areas assessed, in-field investigations were only completed at two locations. Both investigations found the law had been breached.
A third coupe, “Eddie Would Go”, was visited by the OCR, but the investigation was abandoned, it said, because the logging there would fall outside the two-year statute of limitations for criminal prosecution.
However, satellite imagery shows it was logged virtually simultaneously with an adjacent area, which the OCR did investigate, and found a breach.
“This whole thing is now a charade,” Professor Lindenmayer said.
“It’s bordering on corruption from the agency that is meant to be doing the regulation.”
Despite multiple requests, including under Freedom of Information laws, the OCR has not provided details about what it found at Eddie Would Go.
In that location, analyses the ABC has obtained suggest nearly a quarter of the coupe — an area three and a half times the size of the MCG — was logged beyond the slope limits.
Dr Taylor found some slopes logged in that area were as steep as 42.8 degrees.
When VicForests’ CEO Monique Dawson appeared before a federal parliamentary inquiry, she was asked about the researchers’ allegations.
In written answers to those questions, she said VicForests’ LiDAR data showed only 2 per cent of the logged area in the Upper Goulburn catchment breached the 30-degree rule.
“And this includes very small patches as small as 1 square meter,” she said.
But the analysis VicForests completed actually smooths out the terrain to 10-metre squares, erasing any small, steep patches from the analysis.
Using VicForests’ own data, and including all those small patches down to 1 square metre, Professor Lindenmayer and Dr Taylor found more than 7 per cent of the area logged was in breach of the slope limits.
The ABC asked VicForests why Ms Dawson misrepresented VicForests’ findings in that way but received no response.
“Even 2 per cent is still a lot of country,” Professor Lindenmayer said, “[but] we discovered that it was actually almost four times that.”
“You would have to describe VicForests as an outlaw organisation,” he said.
Professor Stuart Khan said it was precisely these sorts of widespread alleged breaches that could cause problems for water quality.
“It’s very much a cumulative problem,” he said. “The more logging you have … the more likely that you’re going to tip over that balance, where you no longer can say this is high-quality drinking water.”
Professor Stuart Khan runs a small experiment showing the impact vegetation can have on water quality.
ABC News: Niall Lenihan
Investigations ‘bungled’ until it is too late
When Taylor and Lindenmayer obtained the higher-resolution data, the scientists updated their analysis and submitted it again to the OCR.
This time, the OCR declined to investigate.
The OCR said the alleged breaches were now more than two years old and, so, outside of the statute of limitations.
“We’ve got to recognise where we can take enforcement action based on statute,” Ms Gavens said.
That response frustrated Dr Taylor.
“It makes me furious, because the regulator has access to this information … and it had access back then when we raised these complaints,” Dr Taylor said.
“We had to undertake a costly Freedom of Information request to get this data. That took nearly a year. And, when we got it, we were then told that we should have presented it earlier.”
Lawyer Danya Jacobs from Environmental Justice Australia knows a thing or two about forestry laws in Victoria.
She’s represented clients who have won injunctions stopping VicForests from conducting illegal logging.
And last year she established in the Federal Court that VicForests had been breaching the law in six different ways.
Ms Jacobs said the two-year statute of limitations was no excuse to avoid taking enforcement action as it only applied to criminal prosecution, which the OCR has never pursued against VicForests.
According to the OCR’s own “Compliance and Enforcement Policy”, there are 10 non-criminal enforcement options open to them, including civil proceedings, injunctions and infringements.
“Most obviously, the OCR could bring civil cases before the courts, which is exactly the type of proceeding that the community is now bringing because of the OCR failure to,” Ms Jacobs said.
Ms Gavens said that some of the other possible regulatory actions weren’t appropriate in this case.
She said that, in this case, investigating two of the more than 300 alleged breaches was all they could do.
“We determined, consistent with our compliance enforcement policy, that the most appropriate way forward was the action that we took,” Ms Gavens said.
The regulator took no enforcement action in any of the cases where it found breaches of the slope laws.
Victoria’s Environment Minister Lily D’Ambrosio said she takes allegations of non-compliance seriously, and asked for an independent review into the OCR’s investigations.
“The panel found the OCR operated within the regulatory framework and policy settings in place at the time of the investigations,” she said in a statement.
The ABC has obtained that review. It didn’t assess whether the OCR’s decisions were correct, but instead focused on whether it conducted its investigations adequately.
When it came to investigating the systemic and widespread nature of the breaches, the report concluded the OCR “did not demonstrate a strong, strategic, preventative and intelligence-led approach”.
Changing the law ‘so VicForests can survive’
Professor Lindenmayer says he thinks illegal logging has become VicForests’ business model and the regulator is facilitating it.
“There are some fundamental reasons why we’re seeing such widespread breaching of forest laws, and that is that VicForests is running out of timber,” he said.
“VicForests would not be able to survive without continuing to log illegally and continuing to log important areas for biodiversity.”
In May this year, the Federal Court found VicForests was breaching the law in a range of ways that endangered threatened animals and plants, as well as the aesthetic value of forests. That case was led by Ms Jacobs.
After that case, conservation groups say both types of activity continued to occur, unchecked by the regulator.
There are now multiple court cases running in Victoria, some of which Ms Jacobs says should be unnecessary after her win in the Federal Court.
“We’re seeing the regulator refuse to take action in response to situations that are substantially the same as those that the Federal Court has found constituted a breach of Victoria’s environment protection laws,” she said.
“It’s the role of the courts to interpret the law, and it’s the role of the regulator to enforce the law,” Ms Jacobs said.
The OCR said it took care to apply court findings to similar circumstances.
“Authorised officers ensure that principles of any court case are applied, consistent with the facts of the relevant case, and aligned with the burden of proof required in criminal matters,” a spokesperson for the OCR said.
When Professor Lindenmayer was collecting the evidence of slope breaches, he thought the government might act if enough evidence was presented.
And now the government has acted, but not in the way he hoped.
This month, Ms D’Ambrosio changed the legal protections for Victoria’s important water catchments, allowing previous slope limits to be breached for up to 10 per cent of any coupe.
The government said it was “clarifying” the existing law.
A spokesperson for Ms D’Ambrosio said “the 2014 version of the code has caused legal uncertainty and, therefore, it was clarified in the recent code amendment”.
Professor Lindenmayer said government officials are more blunt when they speak to him.
“Senior government officials have told me directly, on more than one occasion, that this is about access to resources [for VicForests]. It’s not about simplifying the code,” he said.
As a result of the change, most of the alleged breaches identified by the researchers would no longer be illegal were they to happen in the future, including one of the two breaches previously reported by the OCR.
However, the worst allegations would remain unlawful.
According to VicForests’ own analysis, nearly 30 per cent of some coupes were logged beyond the slope limit.
Conservationists described the move as “making illegal logging legal”, while VicForests welcomed the “clarification”.
“This clarification now reflects the understanding that has existed for many years in regard to the interpretation of the relevant code rules,” a VicForests spokesperson said.
Professor Stuart Khan described the move as “madness”.
“It’s important that you put tight regulations in place if you want your catchment to be managed properly. And Melbourne relies more heavily on good catchment management than pretty much any other major water supply in Australia,” he said.
Ms Gavens said the move had brought “clarity” to the law.
“And clarity in the law, for us, means it’s easier to monitor compliance and it’s easier to enforce compliance.”
Professor Lindenmayer isn’t holding his breath.
“I’m not optimistic that there’ll be a change, but there needs to be.”
Digital production, mapping, 3D animation: Mark Doman
Design: Alex Palmer
Posted , updated