The Victorian government avoided any penalty for the “wanton destruction” of hundreds of trees that should have been protected to help save an endangered cockatoo species after the federal environment department decided against taking action.
Birdlife Australia said the breach, revealed in documents published under freedom of information, highlighted the failure of existing national conservation laws and the risk of leaving major environmental decisions to the states, as the federal government plans to do.
It also showed the need for an independent national environment regulator, such as an environment protection authority.
The documents show the federal department became aware of the alleged illegal clearing in 2015 after experts working on the recovery of the endangered red-tailed black cockatoo repeatedly warned the Victorian government that it should be seeking approval under federal law for its operations in the bird’s habitat.
The federal government launched an investigation and noted that two similar cases involving private landowners led to penalties of $220,000 and $70,000.
Despite this, it concluded its investigation without imposing a penalty on the state government.
BirdLife Australia, which sought the documents, said the case demonstrated the need for an independent regulator and the perils of devolving federal environmental approval powers to state and territory governments, as proposed under legislation before the federal parliament.
South-eastern red-tailed black cockatoos are listed as endangered under national laws and are found in only a small part of south-west Victoria and an adjoining area in South Australia.
The cockatoos eat the seeds of stringybarks and destruction of these trees is a major threat to their survival.
In February 2015, Tim Burnard, who was then the chair of the bird’s recovery team, was driving on the Casterton-Dartmoor Road in south-west Victoria when he discovered hundreds of trees, most of them stringybarks, cleared by workers for the Victorian environment, land, water and planning department.
State policy at the time was to clear trees that were potentially hazardous to crews conducting planned burns as part of bushfire management. A burn was planned for the area but was not due to occur for at least a year.
Burnard wrote to the department and the environment minister, Lisa Neville, alerting them that they should refer the clearing to the federal government. He said because it occurred without federal approval, the state was likely to have breached the Environment Protection and Biodiversity Conservation Act.
His letter noted the availability of stringybark fruit was already at its lowest point in seven years.
“It was just wanton destruction,” he told Guardian Australia.
Burnard told the department he counted 226 cleared trees, which was a fraction of the total cleared within an area covering about 323ha.
An assistant director in the federal department’s enforcement section emailed a colleague on the same day and asked them to look into the matter.
“This one will need some close and immediate attention as the potential impact on the species appears high,” the official wrote.
The department launched an investigation, with a site inspection by federal officials finding “areas that had been subject to removal of a large number of significant stringybark foraging trees”.
But the federal government took no action against the Victorian government, despite the compliance file noting courts had imposed large fines in other cases.
A department spokeswoman said it opted not to prosecute because the Victorian government was conducting a landscape-scale strategic assessment of its fire management – the same reason it had given when the recovery team raised questions over planned burns in previous years.
Most of the compliance file recently released to BirdLife Australia is redacted, making it unclear what the officers investigating the case recommended.
The establishment of an independent watchdog to enforce compliance with laws was one of the recommendations of an interim report of a recent review of the EPBC Act. The federal government has rejected the idea.
Its bill before parliament aims to devolve environmental approval powers to state and territory governments.
Jenny Lau, a program manager at BirdLife, said the case showed what could occur in the absence of proper oversight and enforcement, and highlighted failures at both levels of government.
“[The state department] was the perpetrator of the damaging clearing, and there was no incentive for them to take action without external pressure,” she said. “As the federal department did not intervene, no specific action was taken.”
A spokeswoman for the Victorian department said it did not believe its activities would have a significant effect on the cockatoo and therefore did not refer them to the federal department.
She said it took its management of habitat “very seriously” and worked closely with recovery team on plans for hazard reduction burning.
Neville did not respond to a request for comment.
Since the federal investigation, the Victorian government has not completed its strategic assessment for fire management, but it has made changes to policy that have reduced the amount of burning of the bird’s habitat to the agreed limit.