South Sister St. Marys, Tasmania
Mr G Wilkinson
Chief Forest Practices Officer
Forest Practices Board
30 Patrick Street
HOBART 7000
28/01/05
Dear Mr Wilkinson
I write to ask that the Board review the certification of the above Plan in light of the matters outlined below, and determine whether it will vary the provision of the Plan (Forest Practices Act s22(1)), or revoke the Plan (FPA s24A (1))
In varying the provisions of the Plan, it is requested that the following condition be attached to the Plan:
That Forestry Tasmania, its servants or agents, refrain from carrying out any forest operations under this plan relating to roading, harvesting or re-forestation until such time as it has undertaken such studies, research, surveys, investigations, monitoring, recording, assessments and appraisals over a sufficient time to have acquired the necessary knowledge of the hydrogeological conditions and circumstance in and around the coupe to allow an informed assessment of the land stability of the area and of the risk to the quantity and quality of water supplies of present and future residents surrounding South Sister and of present and future residents of the St Marys' Water District that would result from carrying out forest operations on the coupe, and that assessment be agreed by a panel of 5 independent professionals to be approved by the Resources Management and Pollution control Tribunal. This condition as far as it refers to roading to permit such routine maintenance of South Sister Road as is required from time to time to maintain it in a reasonable condition for light traffic, but such work to contain no element of widening, increasing load capacity or any other work that could be interpreted as relating to potential forest operations.
You are aware of the concern of residents around South Sister and within the St Marys' Water District regarding the potential impact of forest operations on the coupe on their water supplies, and of the continuing representations that have been made to Forestry Tasmania and the Forest Practices Board during 2003-2005. This concern was also expressed at the Annual General Meeting of the Break O'Day council on 6th December 2004 and at a Public Meeting called by the Council on 15th December 2004.
I refer to the report of Dr D E Leaman (22.11.03) Appraisal of Initial Forest Plan on South Sister - Nicholas Range: hydrological and landscape observations, supplied to you by Ms Julia Weston and Mr Frank Giles. I also refer to my letter (9.11.04) to Mr S Manson, Forestry Tasmania, a copy of which was provided to you, drawing attention to the inaccuracy of the Forest Practices code in relation to the St Marys Town Water Supply, the failure of the code to consider the assessment and protecting of groundwater, and the inadequate, flawed and defective planning by Forestry Tasmania in failing to collect site information to ensure the protection of water.
Your response of 28.11.03 to Ms Weston and Mr Giles in relation to Dr Leaman's report did not address any issues of substance raised by the report, but merely endorsed the dismissive and pedantic comments made by Dr P McIntosh (28.11.03) on the work of a qualified and experienced professional. A similar dismissive approach was adopted (7.1.04) in response to a rebuttal by Dr Leaman (4.12.03) of the comments of Dr McIntosh, with a continue failure to address the substantive issues raised in the initial report. You stated "we do not believe there are serious risks to your water supply, and we do not believe further assessments are required."
There has been no preparedness by the Board to consider any view other than that espoused by Dr McIntosh, no willingness to go outside the Board to seek other views or obtain other opinions, and no preparedness to undertake any risk assessment in respect of land stability and groundwater resources over and above the routine evaluations prescribed by the Code.
Your response to the notification by a qualified professional of reasonably foreseeable harm from a proposed course of action, drawn to your attention by people who believe that they are at risk from the proposed action, made without reference to any independent expert on land stability and groundwater systems, could be seen as a failure of the General Environmental Duty of Care set down on the Forest Practices Act, and as a failure of due diligence. Forestry Tasmania is the owner of the land in question, with exclusive control over the land, but subject to approval of forest operations by certification of a Forest Practice Plan by the Board. Both Forestry Tasmania and the Board have statutory responsibilities and powers to act in respect of forest operations to be carried out on the land, they have a Duty of Care and responsibility not to be negligent of the impact of those operations on others, which duties are not inconsistent with their statutory functions. There is a reasonable proximity in the relationship between Forestry Tasmania and the Board and those people who have made representations to them on this matter, and it would be fair and reasonable in the particular circumstances of this case for an additional duty of care to be imposed over and above that required by §23A of the Forest Practices Act. The response to the notification by Ms Weston and Mr Giles of reasonably foreseeable harm was negligent, given the potential magnitude of the risk advised which is certainly not small or negligible. Your response was contrary to the Objectives of the Environmental Management and Pollution Control System and to that of the Resources Planning and Appeals System which are based on the principles of Sustainable Development, and ignored the Precautionary Principle. The principles set out as §5 of the State Environmental Protection Policy (SEPP) Groundwaters of Victoria, under the Environmental Protection Act of 1970 of Victoria may not be legally applicable to the Board, but certainly state what a reasonable person would expect to be adhered to by a responsible agency in the circumstance of this matter.
A copy of my letter of 9.11.2004 was forwarded to you, and annotated by you 'noted, no response sought: 17.11.04'. I wrote further to you (25.11.04), and received no acknowledgment or response. Given that I was alleging that the Code was inaccurate, that planning by Forestry Tasmania for the coupe was defective, and that there was a risk to community water supplies from the proposed forest operations, and that I supported my claims by specific allegations within the framework of the provisions of the Code, I believe that your failure to respond within a reasonable time was a continuation of the failures stated above, as well as a failure of administrative responsibility. It should be noted that I eventually received a reply on 22.12.2004, 2 days before Christmas, and 3 working days before the FPP was certified.
In this reply, you advised that you saw 'no reason why the quality of groundwater derived from the coupe should be affected in any way'. It is notable that you were not prepared to make the same assurance regarding the quantity of water. You based your assertions on several authorities, notable P McIntosh, S Roberts and D J Weldon.
In my letter of 9.11.04 you were advised of the report St Marys Water Supply Strategy (SKM) available from the Break O'Day Council. This report contains as attachments two reports by Sloane and Weldon. You have chosen to selectively refer to part of one report, while ignoring the other which substantiates the claims regarding the connection between the coupe area and the town water supply. Under the Oaths Act a Statutory Declaration would require you to affirm that you made adequate enquiry and omitted nothing of relevance. Additionally, you may have misinterpreted the significance of the bore flow information to which you refer.
The Review by McIntosh 2004 is simply that, a summary of the report by S Roberts 2004. It adds no new facts, and is so heavily qualified as to suggest that McIntosh has little belief in the report, "of course the above calculation is an over simplification", "there are several factors whose influence on the supply of water at the bore is not known", "the effects of these factors is impossible to quantify", "given the present state of our knowledge, it is pointless to try to model the exact effects of harvest on the water supply", etc., but which nevertheless allow Dr McIntosh to reach an unsustainable conclusion, upon which the Board can rely. These qualifications and uncertainties are best summarised by Roberts, "the best we can do is speculate" (Roberts 2004 p8).
Your letter FO 13/04 of 23.2.2004 states "the Code takes a systemic or catchment approach to the management of water, recognising that groundwater and surface water (in its various forms) are interconnected, and therefore have to be managed in an integrated manner". It would be appreciated if you could provide the references within the Code to sustain this claim, as they do not immediately strike the casual reader.
Your letter 23.12.04 provided a copy of a study as an example of how the Board considers groundwater as one of the environmental effects of forestry, Estimated effects of potential forest operations on water quality, Koonya District (P D McIntosh). This report consists of 210 lines of text within 8 pages. In order to reach a qualified conclusion "It appears unlikely", Dr McIntosh used a chain of logic and a sequence of inter-dependent arguments based on assumption, supposition, and qualified assertions, such as "may", "it should not", "will depend on", "suggests", "may not", "unlikely", "likely", etc, in total 73 such qualifications, including "assume" 21 times, representing an average of 1 qualification every 3 lines. Conclusions reached on the basis of such a "predictive modeling approach", dependent on assumptions and qualifications, in a chain of connective reasoning must be rendered null and void by the failure of any of the assumptions. Were Dr McIntosh to leave Melbourne in the direction of Sydney and make 73 assumptions as to which road to take each time he reached a fork in the road, "it is likely" that he "may" end up in Alice Springs. This is not scientific method, deductive or inductive; this is a chain of syllogisms of the sort that lead Dr Faustus to reach the wrong conclusion.
Given the concern regarding the potential for landslip on and around the coupe, it would seem that objective, independent evidence and opinion should be sought, given the fluctuating views expressed by Dr McIntosh on the subject. His email 16.7.03 to Andrew Crowden states "this coupe has all the components for landslide - thin dolerite talus over sst and coal measures", but by 20.10.03 (to Crowden) "as with most coupes on dolerite, the risks are few", following Mr Crowden's view (email 22.7.03) that he 'thinks' that the proposed exclusions will exclude the 'majority' of the 'potential' landslip problems. Your own advice (6.1.05) in respect of landslide potential, erosion and water supplies made no reference to the potential impact on recharge and transmission of harvesting on the coupe.
Your email 22.12.04 (to Clement) relies in part upon the Roberts 2004 report for your assertion that "the planning and associated assessments for this coupe appear to be very thorough:". Regarding the hydrological assessment you request, you may be unaware of the report of Roberts (2004). You were of course correct to refer to this as a 'hydrological' assessment, rather than the hydrogeological assessment needed to assess the potential impact of forest operations on groundwater. Roberts states (email to Rosevear) 4.11.04 in response to his request 4.11.04 "could you please investigate to ensure that the operation at South Sister will not affect the bore water:"
"Aaaaaaaaaaaagggggggghhhhhhh!!! I will see what I can do. I never pretended to be a geohydrologist".
Ms Roberts is aware of the difference, and her limitations, but the response from Mr Rosevear (Coordinator Planning) was 4.11.04 "see how forestry in Tasmania broadens your horizons, takes you out of your comfort zone".
On 10.11.04 Roberts advises Rosevear "I spoke to Miladin Latinovic (MRT) about methods for identifying groundwater impacts and he suggested ... 'an even better approach would be to employ someone to set up a 10-15 year study in the area'. I think this is a ridiculous expectation, given that the results obtained would only be applicable to the locality of the study and not useful for broader application - I think this means that some sort of estimate in changes in forest water use is probably our best approach".
In response to a request by Roberts to Rosevear 9.11.04 "if you know what the approximate rainfall is that would be useful", the reply from the Planning Coordinator (Fax 12.11.04) in forwarding data in respect of Cullenswood, near St Marys, is "Give me a call if you can't find it on the map - it is down in the valley so you might expect the top of South Sister to be a little wetter - an interesting pattern, fairly uniform throughout the year, April-Aug = average 80mm approx, Sept-Mar = average 65mm approx", a statement unquestioningly repeated in the Roberts 2004 report (pg 1).
"Rainfall at the nearest bureau of meteorology rain gauge (at a lower altitude) average 836 mm/yr. It is fairly evenly distributed through the year". Given that Roberts report is rainfall driven, more care may have been expected. Mr Rosevears statistical analysis overlooks the fact that the mean annual rainfall at Cullenswood over 102 years is invariably higher than the median, indication that the mean is pulled up by isolated high values in the distribution - the pattern is not uniform, it is characterised by intense rainfall events in several isolated months, a pattern with implications for runoff. This is well explained in 'The Rain at St Marys' published in The Tasmanian Naturalist 123:5-11 (2001). Additionally, the rainfall figures show the influence of climate change over recent years, with the mean annual rainfall of the past 10 years being only 701 mm compared with the 102 year figure of 836mm. Furthermore, rainfall figures for Germantown are available from the Bureau of Meteorology.
Ms Roberts states (email 21.12.04) to the Assistant District Forest Manager, Andy Corbould, Dr Peter McIntosh, and Mr Andrew Crowden "I have repeated calculations for different rainfall scenarios - the period of the reduced water yields uncertain as the Picaninny data only extends to age 25 - so I have assumed linear increases which may or may not reflect reality." Everybody associated with the planning of this coupe knew the basis on which it was being carried out, the "very thorough planning". The report itself follows in the same vein, "given the uncertainty", "it is impossible to know", "the best we can do", "speculate as to how that may or may not contribute", "yields are assumed", "assuming that the impact is directly proportional", etc.
Within this context, the report "South Sister and harvesting in coupe NI114A" is irrelevant to the issues of concern, of landslip and of the impact on groundwater. Of the 10 pages, 6 pages are simple statements of fact about the coupe, largely a reproduction of the MRT Geological Atlas of St Marys and a listing of property owners around the South Sister. Pages 7-9 are a regurgitation and attempted refitting of an evapotranspiration model based on a defective understanding of local rainfall. Page 10 is comment on issues raised in my letter of 9/11/04.
The most significant statement in the report is the conclusion "it is impossible to know without an in depth study of the permeability/transivity/direction of flow/fracture planes and faults of the various strata, exactly how groundwater moves through the landscape to the water supply bores". This represents an expression of scientific honesty. By contrast, the review of the Roberts report by Dr McIntosh concludes "the harvest is unlikely to adversely affect water yields at the St Marys Railway Station Bore, and the proposition to the contrary is unproven and has no scientific justification".
The section of the report 'vegetation and water yield' focuses on evapotranspiration, a theme expanded by Ms Roberts in her Monthly Luncheon Talk for Forestry Tasmania staff entitled 'Understanding the water demands of forests' in which she states "there is a need to understand the models that are being applied and the specific site conditions of the site being studied when models are utilised on sites other than where they were developed" and "outcomes will be entirely dependent on the specific site characteristics", and "Forestry Tasmania commenced research into the impact of native forest harvesting on water quality and yield at Warra in 1998. It will take many more years to obtain the results."
Ms Roberts' comments on the issues raised in my letter 9/11/04:
The Forest Practices Plan based in part on the Soil and Water Evaluation prepared against the above background and relying upon the evidence and views submitted in the context of the above background was certified on 5/1/05. At the very least the plan is defective in that the planning and collection of site information in respect of the protection of water from the impact of the proposed forest operations was inadequate, and there has been a fundamental failure in risk assessment. This failure could be considered of such a degree as to constitute negligence and failure of duty of care and due diligence, having regard to the foreseeable risk being consistently drawn to the attention of FT and the Board in respect of the need to protect water quality and quantity.
As late as 17/12/2004, internal discussion between officers of the Board (Chris Mitchell) and FT (Paul Rosevear) in an email was still based on how to equivocate with regard to whether the operation is within a town catchment, having regard to the issue of whether the town water supply may derive from the coupe. The Plan claims that the operation is not within a town water catchment, despite the assertion (Wilkinson 23/12/04) that the Code takes a catchment approach to the management of water, recognising that groundwater and surface water are interconnected and have to be managed in an integrated manner.
The circumstances outlined above would seem to justify a review of the certification of the Plan for this coupe. Additional information received seems to go to the heart of the issue of risk assessment for this coupe, particularly having regard to the Precautionary Principle within the context of a self-regulating forest practices system.
I enclose for your attention:
You are also aware of the report held by the Break O'Day Council, (SINCLAIR KNIGHT MERZ) "St Marys Water Supply Strategy" 1998, and the attached report Sloane Weldon Pty Ltd SW 1997/87 "Groundwater Prospects: St Marys Township".
I draw to your attention: A review of groundwater in Tasmania, C A Bacon and M Latinovic MRT Tasmanian Geological Survey Record 2003/01
I also draw to your attention a meeting with officers of DPIWE at Seaview Farm, Germantown, on Monday January 24, 2005 at which was present Mr Andy Corbould, Assistant District Forest Manager, Bass District. The meeting was addressed by Mr J C McGiveron, previously Operations Manager, Cornwall Coal Co., born at Mt Nicholas and working for Cornwall Coal for 41 years. Mr Corbould may confirm the remarks of Mr McGiveron regarding faulting, landslip and water infiltration in the area, sufficient reason alone for a detailed risk assessment before any operations are allowed to proceed in this area. A written statement from Mr McGiveron will be forwarded in due course.
The comment of Dr Stapledon above will also be amplified and a more detailed report provided. We have also obtained a further opinion that "it is impossible to comment on the assertion by P D McIntosh 'that all parent materials in Tasmania have formed in part by previous erosion under a different climate from that prevailing now, and past 'failure' or erosion is not necessarily an indication of present risk' the problem with the assertion is that it fails to recognise that the shear strength of soils will often be substantially reduced by the sliding action. The surface on which the slide occurs can become distinctly polished, and possess a residual shear strength sometimes well less than half the original peak strength. In consequence small increases in groundwater levels within an existing slide or disturbance of the toe of the slide may reactivate it. The initial environments that activate the initial movements do not need to reoccur".
I also advise that detailed field studies on the coupe have located a number of springs and seepages not noted by FT. A map with GPS positions will be made available to you shortly.
I would ask for an early acknowledgment of my request for a review of this Harvest Plan; given the potentially severe impacts on water supplies of both residents about South Sister and the town supply, it would be expected that you will discuss this as a matter of urgency with FT to ensure that they proceed with no road or harvest operations on the coupe until the Board have been able to fully address the issues raised herein.
Yours faithfully,
(Mr) D W Clement
cc letter only - no attachments:
Mr K Evans
Mr M Leech
Dr H Elliott
Mr R Chalk
Mr R Waining
Mr E Rolley
Mr S Manson
5775 (1, 3, 14, 197)