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"...public opinion deserves to be respected as well as despised" G.W.F. Hegel, 'Philosophy of Right'

anti-democracy tendencies « Previous | |Next »
December 16, 2004

Gunns' is suing environmental activists opposed to its ecologically destructive logging practices in Tasmania.

Gunns has served writs on 20 individuals and groups, including Senator Bob Brown, Tasmanian Greens leader Peg Putt, the Wilderness Society and Doctors for Forests, citing their "ongoing damaging campaigns and activities" against the company.

The company has no commitment to arguing its logging case in public. It prefers using SLAPPS as a means of transforming public debate into lawsuits. Though this legal instrument fails legally, it ties people up because of the substantial investment of money, time, and resources to defend themselves. The resulting effect is a "chill" on public participation in, and open debate on, important public issues.

There ought to be a law that protects people from SLAPPs and defends the right of political speech of citizens in a liberal democracy. Gunn's anti-democratic response may well reflect the state of politics in Tasmania. Richard Flanagan writes:


"In Shakespearean terms, Tasmania is the play within the play; it always has been. Tasmania is now a corporate state. It has a supine government and an opposition that is an opposition in name alone. Its Labor Premier, Paul Lennon, demonstrated during the recent federal election campaign that his loyalty to the logging industry outweighed his commitment to a national Labor victory."


In the corporate state of Tasmania you are slapped down and punished for speaking out about the destruction wrought by logging the old growth forests.

What Gunns, as the SLAPPer, is trying to do in Victoria is to sue persons and groups in the green movement because they have communicated their views to government officials and tried to influence government action to stop the logging the old growth forests.

The concern about these kind of lawsuits is the negative impact they have on citizen participation and deliberatiion in our liberal democracy.

That does not concern Tim Blair. Both he and Steve Edwards over at the Daily Slander support Gunns in the power struggle to make Australia a more sustainable place to live. So they reject the notion that a healthy liberal democracy is based on the free exchange of ideas, and that citizens should be able to freely organise to influence public policy.

Steve Edwards says the Gunn SLAPP a good idea, since:


"keeping the Greens tied up in court will reduce their campaign funds, and therefore their ability to win Senate seats, hold the balance of power, and do untold damage to the Australian economy."

This is one indication of growing conservative intolerance for allowing dissenting voices to speak, let alone be listened to.

My judgement is that Gunns will lose in the national court of public opinion.That is where the battle for the forests will be decided.

| Posted by Gary Sauer-Thompson at 8:32 AM | | Comments (11)
Comments

Comments

Usually there is some provision in court to penalize the party bringing the suit should it prove to be unwarranted, sometimes just as a matter of requiring that all court and legal fees be paid by the plaintiff. This doesn't help recover the time lost defending the action or to reverse any negative publicity, although there can be counter-suits to address the latter. Luckily, most judges are capable of spotting a beat-up and acting accordingly.

Greg,
I agree.

The good news is that SLAPPs are legal "losers" in that almost all are eventually dismissed by the courts. The bad news is that SLAPPs are not designed to win in court. Even in losing, they do a lot of harm out of court, through "chillng" citizen participation in political life and the shaping of public policy.

SLAPP stands for strategic lawsuits against public participation in government.

Tasmania is a Australia's future.

A few dominant companies, effectively only one political party in the pockets of said companies.

It is pretty much a corporate state now.

Is there a difference in principle between making defamatory accusations against a person in order to cause them financial harm, and running a public campaign to destroy an industry? I would say they are two similar shades of grey.

The forests debate is founded upon the truism that logging is bad, and as Gary says, the forests debate will be decided in the court of public opinion. But surely there are good grounds to say that the forests debate should also be conducted on technical grounds. Logging is undeniably an ugly (as in lacking aesthetic values) practice, but is it the most destructive form of land use? In some instances it is very bad, but if logging is conducted properly and followed by successful regeneration, it is much less destructive than farming, where ecosystems are eradicated permanently.

In my home state, there is strident opposition to logging, but not a word of opposition from anyone about broad-scale strip-mining of the same forest, which involves logging, clearing and burning of the residue vegetation, removal of 3-4 metres of bauxite ore, replacement of 0.5m of topsoil and revegetation. The soil profile is substantially and irreversably changed by mining due to the removal of most of the well-structured soil, leaving a shallow topsoil on top of a kaolin clay. The fact that logging is not opposed when it is followed immediately by mining, but is opposed if followed by conventional forest regeneration, suggests to me that much of the forests debate is about emotive responses stimulated by some politicians and a number of unelected activits for their own personal benefit.

Perhaps Gunns will be able to force their opponents to have their assertions about the impacts of logging tested in court, or perhaps they are as you say, just forcing defendants to expend their resources in legal defence. I'm sure there will be a number of lawyers who have strong opinions about forestry, something that they know almost nothing about, who will provide a defence pro bono.

If the purpose is to force the matter to a head, it could be seen as a test case for the question, is it legal to conduct forestry in Australia? If the decision is no, or if as you say the court of public opinion decides no and overrules the legal court in any case, where should Australia gets its wood? Wood and wood products are already our third largest import, and much of it comes from forests being cleared to palm oil plantations in Asia. Substitute materials such as plastics and steel are heavy net emitters of carbon dioxide (construction wood sequesters more CO2 than it emits).

It is understood that forestry is perceived to be the worst form of land use known to man, but good forest practice is not. Let's see this tested in a court, where simple slogans and hysterical claims (from either side) can be exposed to some rigorous analysis.

If people elect to continually slander others for personal gain (whether the gain is in the form of a sense of self-worth, prestige, power, or political influence), then they must appreciate that at some point the subjects of their attack may seek to defend themselves. The reason why some argue that Gunns should not be permitted to defend themselves is that forestry is believed to be morally indefensible, even by the public who use the fibre it produces. Furthermore, it is assumed that Gunns' opponents are morally pure and not tainted by vested interest. This is a charmingly naive assumption.

Richard,
good comments.

Like you I would make a distinction between the logging of old growth native forests and plantations; and between bad forms of forestry pratice and good forms. There needs to be a shift from the former to the latter in Tasmania.

We agree on that as you say "but if logging is conducted properly and followed by successful regeneration it is much less destructive than farming, where ecosystems are eradicated permanently."

Gunns do come across as cowboys with a state government unwilling to prevent bad logging practices. My judgement is that Gunns have also lost their case in Canberra.

If you take the much aligned ALP Tasmanian forests policy it was not about destroying an industry: it was about enabling the forestry industry to make a shift to more sustainable practices with compensation built in.

The debate is not about logging or no logging. That's a furphy.

I'm looking at it from a Canberra perspective not a Tasmanian one. It is no longer a Tasmanian issue--it became a national issue in the last federal election. There is no going back from that.

What that shift means is a new perspective on the debate: that the transition out of all native old growth forests is doable option.This perspective highlightlights the limitations of the RFAs, which are still about woodchipping old growth. So the RFAs now start to look a bit limited.

That is where the debate is going to be increasingly focused: on ways to show that the switch is achievable.That is the new policy agenda in formation.

So both timber industry and the green movement will need to debate the ways to exit all native forests in exchange for a transition to plantations.

Gary

I will need a bit more time than I have now to respond to your comments. I think this is an interesting and important issue combining the rights of free speach and the right to legally conduct business. Forestry just adds the spice.

Richard,

This op.ed piece in The Age may be of some use.It is by Peter Bartlett, national head, of the media and communications group, of the law firm Minter Ellison.

He thinks the Gunns case is going to be similar
to the McDonalds.It will be conducted in the glare of the media spotlight, which will only work to the disadvantage of Gunns.

Gary

The problem with this debate is that I have to venture into perhaps too much detail in order to argue that Gunns have a legitimate right to defend themselves. Please bear with me.

There is a very common belief that Gunns are cowboys, vandals etc. It’s not Gunns in particular, but forestry in general, that is under scrutiny and at present the national debate happens to be about Tasmania. In other states this debate has been run and the foresters have generally lost. I maintain that the foresters are losing on emotive and political grounds, not on environmental or technical grounds. I would prefer to see natural resource management and resource consumption debated on rational grounds, so as to minimise the net impact of our consumption upon the global ecosystem. For example, it is quite immoral in my view to simply stop harvesting our own trees so we have more of them to look at, if we consequently consume more wood from old growth forests in developing nations. That is what is happening now; go down to your local timber merchant and look at where the wood comes from. “Product of Malaysia” can mean many things and much of the global wood supply comes from illegal logging which is not followed by forest regeneration or subject to any control at all. By drawing on wood from other nations we are directly or indirectly encouraging illegal logging and the conversion of rainforest to palm oil plantations, neither of which are forestry.

Now an example, by which I hope to demonstrate that Gunns, as our representative forest company, are entitled to make their own defence. I know very little about the details of Tassie forest practice, but I know that there is a strong possibility that Gunns are condemned by misunderstanding more than fact.

There are many complex issues in forest management and not all forests are the same. Tasmanian forests could be generalised as wet sclerophyll forests; others are the WA karri and the Victorian and NSW ash forests. These forests attract the most public attention because they are the most aesthetically spectacular, the trees have pale smooth bark, they are taller, they occur near large populations of humans and so on. They are not the most biologically diverse Australian forests but they are wonderful to look at.

The wet sclerophyll forests regenerate as even aged stands following cataclysmic events, which naturally would have been the most extreme wildfires, perhaps on a frequency of a couple of centuries or so. The result of these fires would have been the loss (burnt down or killed standing) of most trees, and there are forests in southern Victoria that can be aged back to known extreme fire events. If you selectively log a forest of this kind, it is very difficult to achieve regeneration of the dominant tall tree species because the understorey is dense and several metres tall. Eucs produce very small seed and their seedlings are shade intolerant, so seedlings trying to establish in these conditions will almost invariably fail. The trees are adapted to cataclysmic collapse by prolific seeding into ashbeds and then very dense seedling establishment. Thousands of saplings per hectare race for dominance and after a century or so there will only be a couple of hundred surviving co-dominant survivors per hectare. This tall forest is regarded as old growth forest by most of us. Where this re-establishment follows logging, foresters call it regrowth forest and greens call it “high conservation value” forest if they accept that it has been logged before.

Selective logging has been conducted in these tall wet forests during periods of the 20th century and it has led to decline of the forest overstorey, so this method has generally been abandoned in the wet forests. Selective logging is superficially better as there is no ugly clear-felling, but foresters want to grow tall trees for wood (amongst other things) and coincidentally, most people would rather look at a tall productive forest than a declining forest of porrly formed trees. To demonstrate this, I have read that most of the photos used for promotion of Tasmania’s old growth forests are in fact regrowth forests approaching maturity, because a one hundred year old forest is more aesthetically appealing than a true old growth forest with a high proportion of senescing old trees. Having led school groups on forest tours in the distant past, I can vouch for the fact that people are commonly disappointed when you say “... and this is a stand of old-growth forest” after you have walked through regrowth forest to get there.

So the commonly accepted truism that selective logging is more benign than clear-felling is, in some forests, quite wrong. You may reject this, but I invite you to read the forest science. I have had a few long conversations with some deep greens, including a publicly prominent one, and I can tell from their arguments that it’s not that they have read the science and disagree with it, they just haven’t read it.

So if the tall wet forests have to be regenerated as even-aged stands, what happens after you have harvested the trees that contain sawlogs? Not all logs are economical to saw. In the past, a lot of the trees were left, either standing or fallen, if they didn’t contain a sawlog. Many forest industries used herbicides to kill the unharvested trees that were undesirable as seed sources, because forest regeneration includes selecting well-formed trees as parents for the next generation. Tree form is strongly heritable. Much of the residue from tops and culled trees was burnt on the forest floor. Wood chipping opened the opportunity to utilise logs that didn’t make the saw grades. It is not uncommon for a coupe to yield more chip wood than sawlog simply because there is a lot more low grade than high grade logs. The accusation that chipping drives the forest harvesting process needs to be considered seriously, and it may be true never, in some cases, or in most cases – I don’t know. One would need to critically examine each industry to determine this, but simply talking about the total yield of sawn wood (about 30-60% of a log becomes sawn product) compared to the total yield of chipwood is simplistic. As a general principle, as a sawlog is worth more per cubic metre than a chiplog, it would seem irrational for an industry to deliberately forego additional revenue just to give the greens the shits. However market forces can distort rational behaviour and I think a detailed examination of this matter would be more productive than the more common rejection of wood chipping in total. We all consume paper and cardboard.

In other forest types, different stories, different practices and problems. This has been merely one example.

Plantations, yes by all means. But there is not enough plantation resource to provide all our needs. Anyone who has expended a lot of money establishing a plantation is not going to delay final harvest any longer than necessary – this industry is feeding wood into the market as quickly as economically possible. The cost of the interest on the funds for establishment make plantations an unattractive investment unless you subsidise it with generous tax breaks. My assertion here is in contradiction to the common green argument that we have more plantation resource than we need and there is a conspiracy to withhold plantations from harvest and so on and on. If this is true, they should tell the forest industries where all these extra plantations are hiding out, because someone is still paying for the establishment. Government departments are paying plenty of interest on public pine plantation establishment costs from the 60’s on.

Modern plantations are sanctified by the fact that they are proceded by agricultural clearing, with the consequent loss of nearly all species present. Maybe a farm plantation is not the cause of the clearing in the first place, but on first principles, if biodiversity is your concern, is it better to harvest and regenerate a native forest, or clear it, farm it and then put a plantation on it? In the south western regrowth forests there are some remnant fauna species that previously covered a large part of the continent. Why is all the public concern focussed on the land use, that is, 19th and 20th century commercial native forestry, that has allowed these remnant populations to survive? Are we looking in the wrong direction? If so, why? Because it makes us feel that our profligate middle-class lifestyles are okay. We have “saved the forests”.

Apologies for being long-winded, but I’ve left out most of the stories I could have told. Gunns may be guilty as charged, but they are entitled to argue their defense in a rational arena. The public debate on forestry is mostly bullshit and completely ignores the downstream environmental consequences of locking up an increasing proportion of Australian native forests. As an example of mass public self-delusion, it is an interesting, if comparatively benign, analogy of the popular rise of the Third Reich in the 1930’s. In a democracy we can choose to be emotive and irrational in the administration of our nation and its resources, but it suggests an appalling lack of maturity.

Notice I didn’t say anything about jobs?

I've just pasted this in from a document and haven't read the item in the Age as yet. This is too long already, so I'll post now and get back after I've seen the Age.

Gary

I read The Age article and it is a valid argument. Gunns may win a battle and lose the war, or it may be a PR disaster and they lose the battle and the war. Perhaps Gunns are hoping to simply drag the debate out of the gutter where it resides at present, because in the court of public opinion, the verdict is in – import more from Asia.

But bear in mind the development of the forest debate over the past few decades. Claims at first were for modest reserves, increasing to “half the forest, for a start” according to a prominent public activist I spoke to for half a day at one stage in the early 90’s. Recent experience in WA would suggest that this trend continues, as the native forest industry dwindles to the level of a large cottage industry. This may be good in public opinion circles, but I simply suggest that we do a comprehensive analysis of the net global environmental effect of this national strategy. (This has already been done, but at the behest of the industry, so I know the result and I know that the general public will believe the greens when they dismiss it).

Take it further. When Paul Keating called for nominations for interim heritage listing of coupes in line for logging back about a decade ago, guess what? The nominations included a pine plantation and several hardwood plantations on private property. And there are pines in the south west of WA that cannot be logged now, specifically because of the aesthetic impact. People fought against the pines when they were planted; they ruined the soil, took farms out of production (this is in the 1960s and 70s) and all the rest; and now people get excited when foresters turn up to harvest the same pines. There are anecdotes very like this from all over the world.

And more. Bob Brown was reported in the media (so this may be a complete fabrication) a year or two back saying that too much “prime farmland” was being lost to the rapacious bluegum industry. You need to ask, what does this man want? Your vote of course! Any bandwagon will do. What does someone like Bob, who goes almost as much as I do about forests and biodiversity, think prime farmland is? My suggestion is that it is an environmental disaster in terms of biodiversity, BUT it is a change of land use which puts food on my table. Milk does not, absolutely does not ever, and will never in the future, come from bottles. It comes from cleared forest, like every morsel that passes your lips.

So this IS about to log or not to log, at all. Every time an inch is given, another mile is demanded. The fact that Alcoa can continue to strip mine the forest with impunity (and, it must be said, contribute significantly to the wealth of the nation in the process) demonstrates that this has very little to do with forest ecosystems and a lot to do with the psychology of power and personal significance. And there is no limit to our need for significance. If ever you try to get the greens to the table, to thrash out a compromise, they stand back in righteous indignation, refuse to participate. Then when the agreements are signed up, they are free to cry foul, demand public participation and have the RFA’s torn up. They step forward a bit more.

Don’t think for a moment that this will stop when the timber industry is entirely plantation based. We already have increasingly strong criticism of plantations for being monocultures, plus the question of “prime farmland”. Any simple consideration of the economics of plantations leaves little choice about monocultures, you either have them or you don’t compete with cheap rainforest wood. And as evidenced by the previous observations about some plantations already being considered worthy of conservation, a mixed-species plantation, of local species (to keep the weed trees out of the ecosystem), will become, in about 50 years, you guessed it – an old growth forest. London to a brick.

I suspect, but I have no knowledge on this, that Gunns may be saying “put this to the test, can we conduct this business or not?”

The fundamental problem here is that we are not yet willing to do comprehensive audits of the environmental consequences of us eating, buying books, running our printers, driving our cars or anything else. We just pick on some token issue, be it forests, whales, local wetlands, other people’s use of 4 wheel drives or whatever, and use it to bolster our sense of moral worth, our sense of purpose. We’re all riddled with guilt (with some justification) about the environment, and belief in some point of view can help us live with that guilt. Or if you become an activist or politician, your campaign brings power and influence. There is very little effort going towards actually managing the environmental damage to minimise it the impact of us simply existing in the numbers we do.

Richard,
Two points. The first. Your concerns are about democracy and a business making money. Gunns says that it has suffered serious damage against it from environmenalists. Yet, as a shareholder says in the Australian Financial Review (Letters, 17 Dec. p.59), things are otherwise.

1 .there is no mention of the loss in its half-yearly and its yearly reports of 2004.These refer to bouyant trading conditions and returns.

2.At the Annual General meeting on October Gay referred to excellent results. No mention was made of the damage caused by environmentalists.

3. For the finanical re year 2004 Gay reported a 42% increase in proft after tax and a 25% increase in dividends compared to 2003.

4. Gunns market capitalisation is now more than $1.5 billion, having more than tripled in the last year.

6.Gay did not disclose to the ASX and its shareholders any serious damage loss.

Seems like Gunns has a big credibility problem in suing the environmentalists and green groups.

The second point is that your posts are too long for the comments and for me to respond to them. The issues raised by you, and your insights, are too important and valuable to be left hidden away in comments.

I am more than happy to post them as entries on the main blog under your name as a guest blogger.

What say you?

Rick,
Your give a good account of forestry practices then dump in this quote below which seems to be dealing with poltiics. So I'm going to separate them.

I will deal with your politics quote. You write:


"Gunns may be guilty as charged, but they are entitled to argue their defense in a rational arena. The public debate on forestry is mostly bullshit and completely ignores the downstream environmental consequences of locking up an increasing proportion of Australian native forests. As an example of mass public self-delusion, it is an interesting, if comparatively benign, analogy of the popular rise of the Third Reich in the 1930’s. In a democracy we can choose to be emotive and irrational in the administration of our nation and its resources, but it suggests an appalling lack of maturity."


My reponses:
1. Gunns are entitled to argue their defense in a rational arena. But they choose to use SLAPPS instead.

2. The public debate on forestry is mostly bullshit.It has two dimensions political and policy. You refer to the political (emotion and rhetoric) and ignore the policy that I mentioned above---to debate the ways to exit all native forests in exchange for a transition to plantations.

Politics and policy are different even though the polictics is a conflict about the policy.

3.the forestry debate "is an example of mass public self-delusion [and ] it is an interesting, if comparatively benign, analogy of the popular rise of the Third Reich in the 1930’s." Hardly.

The Greens are defending a deliberative democracy.It is Gunns who are defending corporatism in Tasmania.

4.Your phrase "In a democracy we can choose to be emotive and irrational in the administration of our nation and its resources" implies that politics is this.

However, politics is more a conflict or battle to persuade others to adopt one course of action as opposed to others.