The Age, August 29, 2006
The Tasmanian timber giant is adamant it will sue environmental protesters, despite a legal setback yesterday. Is free speech in the firing line? By Andrew Darby.
As pirate ships go, the Weld Ark is more feral Australian than Jack Sparrow's Black Pearl. The Jolly Roger up the mast is where the similarities end. The Ark is built of poles and corrugated iron, and has no hull to speak of. Then there's the location at the end of a forest road - a long way from the Caribbean. But against the odds this "ship" is still causing trouble, nearly eight months after it was rigged to block access in one of Tasmania's more tenacious forest protests.
Through a sub-zero winter, a small crew of activists have stuck to the ark despite worries that opponents who wrecked a car, fired shots nearby, and offered verbal abuse, were returning more often to intimidate them.
Behind the camp, a flowing blanket of tall eucalypt rises up mountain foothills to the boundary of the Tasmanian Wilderness World Heritage Area. About 5000 hectares of this forest outside the heritage area is earmarked for logging. The environmentalists, mainly from the nearby Huon Valley, have blocked access for more than 20 months.
For a similar time, 20 people and organisations have been prosecuted by the timber industry giant, Gunns Ltd, and a logging contractor, in a landmark case at the Victorian Supreme Court. In its latest claim, thrown out yesterday, Gunns sought $6.9 million in damages from the environmentalists over protests they made against it.
Earlier this year, 40 British lawyers wrote to The Guardian newspaper to express their concern at Gunns' decision to sue the 20, an act that they said could financially cripple individual defendants, and have a chilling impact on freedom to protest.
Australian lawyers also warned that increased litigation against community participation in public issues silenced voices that should be heard. Led by eminent figures such as the Australian National University's Professor Hilary Charlesworth, dozens signed a statement in support of law reform.
Out in the Weld Valley, the pirate ship stands as evidence that Tasmania's forest debate is entrenched. As Gunns confirmed yesterday that it would pursue the action, what effect has the case had?
When it was lodged in December 2004, the Gunns writ was a surprise, even though the company had sued before, over a protest at one of its woodchip mills. Another forest contractor had also started a damages case over an action near the Weld, but the scale of the Gunns' writ was unprecedented.
The massive suit covered 10 different protest actions, in the state and overseas, over four years. Greens leaders Bob Brown had a $1.7 million claim against him. Four people from the Wilderness Society each faced claims in excess of $1.3 million, and the organisation itself a further $3.9 million. Those sued range from a country grandmother to a town dentist, and a filmmaker to a law student. Some had assets, others not.
Since the case began, the world has changed for both plaintiff and defendant. Prime Minister John Howard's Tasmanian forests protection package took the fire out of the hottest protests. Gunns moved further down the track towards a goahead for its contentious $1.4 billion Tasmanian pulp mill at Bell Bay on the Tamar River, spending $11 million to reach the public assessment stage, but its share price has plunged.
Some of those sued said the case was causing anguish, others claim to be disregarding it and one opponent of Gunns' pulp mill plan had prepared for prosecution, though it hasn't happened. Others were said to have been deterred from joining protest.
The Burnie dentist, Peter Pullinger, his wife Leonie and their four grown children, have much at stake. Locals for 30 years, they campaigned to protect one of the southern hemisphere's largest remaining tracts of temperate rainforest, the Tarkine, and largely won.
But there is now a $784,000 claim against Dr Pullinger for action he is alleged to have taken against Gunns, linked to a protest at a woodchip mill, and over a stockpile on the wharf at Burnie.
"I ignore this case, and literally don't think about it day to day," said Pullinger. "It's almost as if I made a conscious decision to say: 'well stuff this for a game of darts'."
The legal action seems to have made little difference to his general standing. He recently went to Canberra to meet John Howard and the Environment Minister, Ian Campbell, to talk about federal plans for protecting the Tarkine.
But in the Pullinger marriage, Leonie has always been the administrator, and the burden of dealing with the case has fallen to her. She went to the last Gunns shareholders' meeting, where she took the floor, held up a large photograph, and explained to the directors what sort of people her family were.
"We are not ratbags. That's the message I was trying to get across. We are ordinary, everyday Tasmanians who became involved in the environment because of what was happening on our doorstep."
She said the board did not respond. Outside the meeting, Gunns executive chairman, John Gay, told a reporter for the Hobart Mercury he regretted Mrs Pullinger had been affected - a sorrow that extended to his employees and their families who had been damaged by the green movement, and indeed, even to his own family.
"I'm very sorry that she is in there, but they should have thought about what they did before they did it," he said.
Jenny Weber and her partner Adam Burling are in a different phase of life. Burling is one of the 20, prosecuted over his alleged role in a road blockade at Lucaston in the Huon Valley.
Plans they had to marry have been postponed, as have those of buying a house. Burling now works in Senator Brown's offi ce. Weber remains an activist - the spokeswoman for the Weld protest. "Some people say I have courage, and they're the nice ones," Weber said.
In recent months, 10 people have been arrested in this protest as they chained themselves to logging machines and the gates of a nearby timber plant. She said threats had been made of further law suits.
"I don't want to be intimidated by a company who might want to silence me or what I work for," she said. "This is about free speech rights."
Brown believes the democratic implications of Gunns' action are as great as those of forest protection. "We're in the main getting on with life and trying to save Tasmania's forests with no less vim and vigour," he said.
"People are worried about the huge expenses involved, but it's made world news and certainly attracted support . . . It's helped make the protest more durable."
He felt no constraint in speaking out. Recently he issued a media release pointing out that Gunns' share price had fallen from $4.35 to $2.54, refl ecting the investment advisory service CommSec's prediction of $2.56 a share and an even lower $2.38 if the company proceeded with the pulp mill. Yesterday the shares closed at $2.56.
Near the mill site, the main community opponent of Australia's largest single timber industry investment has hung up his spurs. Les Rochester cited a feud with the Greens for the demise of the Tamar Residents Action Committee. It had absolutely nothing to do with Gunns, he said. "When I started this . . . I divested myself of anything I owned," he said. "I'm not worth a zac."
But he believes others in the community were still frightened of speaking out against the mill.
John Gay broke a lengthy silence on the case as he confi rmed yesterday it would be pursued, at least against some of the individuals. "Gunns isn't about silencing the Greens," he said. "What we're sick of is the malicious damage some people are doing to us. We will continue to chase that down to the nth degree."
Terry Edwards, the chief executive of the Forest Industries Association of Tasmania, believes the case hasn't prevented people from "expressing their opinions, however ill-founded those opinions might be".
"A contractor was picketed out of a coupe in the Denison forest, there are those people with the pirate ship in the Weld, and it hasn't resulted in any attempt to shut them up," he said. "They have done that with complete impunity.
"I don't think Gunns has tried to trammel free speech. In fact, quite the contrary. Gunns has been quite genuine about opening the company up to debate, particularly with the pulp mill."
The loggers - the small businessmen who contract their men and machines to supply Gunns - are currently in a pinch. Their contracts are lapsing in a depressed market for old growth chips.
"The high Australian dollar's competitiveness is contributing to that," said Rodney Bishop, chairman of the Forest Contractors Association. "And our (overseas) customers are telling us they have been told what we are doing is environmentally wrong."
Bishop defended his members' decision to commence legal action. "Not being specific to any case, we have a legal right to do what we do."
Louise Morris is one of the Gunns 20. She also discovered, a year after the event, that she had been separately sued by a logging contractor for a protest in the Denison Valley in January 2004, when she acted as media spokeswoman.
"If life ground to a halt around this I would be a rather useless campaigner," said the 29-year-old who now lives in Melbourne, where she is continuing with a university course, and becoming involved in anti-nuclear work. "In 10 years' time this will all be a lovely chapter in the story of how we managed to get free speech legislation enshrined in the constitution."
HOW THE CASE UNFOLDED
DECEMBER 14, 2004 Process servers working on behalf of Gunns hand writs to 20 environmentalists and organisations involved in Tasmanian forests campaigns, over alleged conspiracy, interference with contracts, and interference with trade and business.
APRIL 9, 2005 Counsel for six defendants, Mark Dreyfus, QC, foreshadows applications to strike out parts of Gunns’ statement of claim in the Victorian Supreme Court, describing it as embarrassing and confused.
JULY 18, 2005 Justice Bernard Bongiorno dismisses the first and second statements of claim saying: "It would be a singularly unprofi table exercise to attempt to describe every defect in it which needs correction." The court allows the claim to be refi led.
MARCH 9, 2006 The defence argues for the third statement of claim to be struck out, saying it is substantially the same as the earlier statements. Justice Bongiorno asks Gunns to provide a single document for his consideration, which runs to 641 pages. He reserves his decision.
AUGUST 28, 2006 The third statement of claim is thrown out, being ruled "too general" by Justice Bongiorno. "Too much is sought to be alleged against too many," he says. Gunns has until October 19 to tell the court if it will attempt to introduce another statement of claim.
THE GUNNS 20
1. ALEC MARR, national director of The Wilderness Society (TWS)
2. GEOFF LAW, Tasmanian forest campaigner, TWS
3. RUSSELL HANSON, chief executive, TWS
4. LEANNE MINSHULL, business analyst, former TWS
5. HEIDI DOUGLAS, filmmaker, TWS
6. THE WILDERNESS SOCIETY INC
7. ADAM BURLING, Huon Valley environmentalist
8. LOUISE MORRIS, environmentalist, student
9. SIMON BROWN, new media artist
10. SENATOR BOB BROWN, Greens leader
11. PEG PUTT, Tasmanian Greens leader
12. HELEN GEE, environmentalist
13. BEN MORROW, environmentalist
14. LOU GERAGHTY, cafe owner
15. NEAL FUNNELL, law student
16. BRIAN DIMMICK, filmmaker
17. HUON VALLEY ENVIRONMENT CENTRE
18. DR PETER PULLINGER, dentist
19. DR FRANK NICKLASON, physician
20. DOCTORS FOR NATIVE FORESTS INC.