The ObserverTree in Tasmania’s magnificent Styx Valley below Mount Mueller
(Photo source: Alan Lesheim, Dec 2011, click photo to enlarge)
Click to visit: ^The ObserverTree
.
Ta Ann, industrial logger of Tasmania’s native old growth forests, has been exposed misrepresenting its timber products as environmentally sustainable. It reflects the underhand falsehoods behind the logging propaganda of Tasmanian Sustainable Forest Management.
Forestry Tasmania, which trashes and flogs old growth timber to Ta Ann, spends lots of money concocting glossy brochures claiming forestry (euphemism for ‘logging’) engages in ecologically sustainable forest management. But it is all simply logger language belying old growth clearfell! And the clearfell continues still, this year, this month!
The following video near ‘The ObserverTree‘ shows industrial logging underway in the magnificent Styx Valley on 16th December 2011.
.
.
.
Plywood supplier to London 2012 Olympics stops buying from Ta Ann
.
Recently Jenny Weber from the Huon Valley Environment Centre went to Japan with former Greens leader Peg Putt to meet with the Japanese companies purchasing from Ta Ann. The company representatives showed concern about the environmental destruction taking place to produce the products they are purchasing.
This week, a major British importer of plywood, International Plywood, which is helping to build facilities for the London 2012 Olympics, has publicly stated that it will not be purchasing any more timber from Ta Ann, due to Ta Ann being exposed for sustainable timber misrepresentation and using vital Tasmanian old growth in its plywood veneer timber flooring. Ta Ann has been falsely selling its plywood veneer timber products claiming that the timber is certified as sustainable under the international PEFC scheme and is sourced from plantations and sustainable regrowth forests. Doesn’t say much for the ‘PEFC’ scheme! The Programme for Endorsement of Forest Certification (PEFC) has been widely criticised by international environment groups as it is not an indicator of acceptable environmental standards and does not safeguard high conservation value from ongoing logging. No wonder Ta Ann relies on it. Forest Stewardship Council is the superior forest certification.
Environmental campaigners from Markets for Change and the Huon Valley Environment Centre travelled to England recently to meet with UK companies implicated in forest destruction. They launch a detailed report that traced Ta Ann veneer timber from Tasmania’s high conservation value forests through Malaysia to a London sports hall which will be used in training by Team USA during the 2012 London Olympics.
Tim Birch from Markets for Change was among the delegation – “We went to London to visit a number of companies to inform them of exactly what was happening“.
Ian Attwood, managing director of International Plywood, says his company is now boycotting Ta Ann’s products. Even a recent letter from the Deputy Premier of Tasmania, Brian Green to International Plywood UK urging them to continue buying from Ta Ann Tasmania did not persuade the company to continue purchasing veneer plywood from Ta Ann Tasmania.
Attwood said: “We’re not there to you know, to savage the forests. You know we’re here to try and buy product in a responsible manner.”
And the response spin from Forestry Tasmania (logger of Tasmania old growth and vested interest supplier to Ta Ann) – General Manager Forestry Tasmania’s Corporate Relations and Tourism Ken Jeffreys said:
.
(Logger Logic #1): “Tasmanian timber products represent a sustainable and renewable resource with stringent forest practice standards and certifications.”
(Ed: see video above)
.
(Logger Logic #2): “If you were concerned about the planet, you would buy timber product from Tasmania, because we have the highest level of forest reservation anywhere in the world“
(Ed: have old growth, so we log it)
.
(Logger Logic #3): “If you were going to buy plywood you would buy it from Ta Ann, because Ta Ann is using a raw material that would otherwise be exported as woodchips.”
(Ed: buy old growth for veneer otherwise it’ll end up as woodchips anyway – we’ve gotta find some use for it).
London 2012 Olympics setting sustainability standards
One key reason why International Plywood is rejecting Ta Ann’s old growth plywood is that as building materials supplier to the London 2012 Olympics, International Plywood is obligated to prove its supplies are environmentally sustainable to the Olympic Delivery Authority (ODA). The Olympic Delivery Authority’s Sustainable Development Strategy has the strict objective to identify, source, and use environmentally and socially responsible materials. . ‘Key to delivery of a sustainable development is its design, and the methods used in its construction. Also pivotal is what materials are used to construct the facilities. The materials used in the construction of the Olympic Park and venues are a key aspect of the ODA’s commitment to delivering a sustainable development. The ODA is working closely with industry bodies to allow suppliers to respond positively to the ODA’s requirements. Through this engagement, the ODA hopes to leave a lasting legacy of a more socially and environmentally responsible approach to materials use within development.
Four principles apply when sourcing materials.
Responsible sourcing
Use of secondary materials where possible
Minimising embodied impacts
Healthy materials.
.
Responsible sourcing
.
‘Suppliers will be asked to demonstrate, as appropriate, responsible sourcing of materials by providing evidence of the existence of legal sourcing, environmental management systems, or through the use of chain of custody schemes.’
‘A Timber Supplier Panel has been established for the Olympic Park to support the commitment to source 100 per cent of timber from legal and sustainable sources as defined by CPET (Central Point of Expertise on Timber Procurement) and in line with Government policy. [CPET website: ^http://www.cpet.org.uk/]
To date, all timber used in the construction of the Olympic Park meets this commitment.
The ODA received the ‘Achievement in Sustainability Award’ at the 2009 Timber Trade Journal Awards for the set up and management of the Timber Supplier Panel.
LOCOG’s Sustainable Sourcing Code states that the Forest Stewardship Council (FSC) certification scheme is approved for the purposes of both ‘Legal Timber’ and ‘Sustainable Timber’. Where it can be robustly demonstrated that it is not possible to supply items from FSC-certified sources, then timber and timber products that can be verified with appropriate documentation in respect to their origin and legality are acceptable.’
‘Wood from forests which provide homes to some of the planet’s most endangered species is being used to construct athletes’ training facilities for next year’s London Olympics, it has been alleged. Eucalyptus trees, from forests which date back more than 1,000 years, are being logged, despite the UN World Heritage Committee’s repeated calls for that region of Tasmania to be protected.
The forests provide habitats to Tasmanian Devils, the Tasmanian Giant Freshwater Lobster and the Swift Parrot, all of which are listed as endangered species and scientists believe that the wooded area captures and stores the most carbon of any on earth per square mile.
Now though, an Australian environmental group has claimed that products made from trees felled there are being used to make a basketball court for Team USA to train on during the Games. Although the building is not being run by the London 2012 organisers Locog, in 2018 they pledged to only use sustainable timber in the construction of the Games’ venues and infrastructure, as part of a drive to make them a “truly green Games“.
And, while Athens was criticised for making “no requirements for any form of sustainable wood products” in 2004, the organisers of Beijing 2008 banned wood “obtained directly from virgin forest” and, in the run-up to the 2000 Sydney Olympics, organisers pledged to only use wood which was certified by the Forest Stewardship Council.
Wood in the London SportDock facility, construction of which is being lead by the University of East London (UEL), conforms to the rival Programme for the Endorsement of Forest Certification (PEFC) standard, which environmental groups attack for not going far enough to promote ethical logging. The facility will be rented by Team USA for the duration of the Games.
Though it does not contravene any law, the logging is opposed by environmental groups. Tim Birch, Chief executive of Markets for Change, which led a six-month investigation into the trade, tracing the wood from Tasmania to the London 2012 site, said:
“Tasmania’s ancient forests, which offer crucial habitat to endangered species like the Tasmanian Devil and the Tasmanian Wedge-Tailed Eagle, are being trashed so that plywood can be sold on to the international markets. It’s a tragedy that this time the trail of destruction has led to London’s Olympic Games so America’s international sports stars could be forced to play on forest destruction.”
He added that it was “essential” that companies review their procurement policies to ensure that they “end the UK’s part in wrecking some of the world’s last remaining old growth forests”.
Campaigners point to Tasmanian Government documents, which show that the Malaysian manufacturer Ta Ann received timber from logging operations undertaken within old growth areas of the forest. “Whether or not Ta Ann eventually use the old growth trees which are cut down is irrelevant, the habitats have been destroyed all the same,” said Will Mooney of the Huon Valley Environment Centre.
He added: “Even if they do not use the old growth timber to make their products, it is the demand for timber from the Tasmanian forest which means that old growth trees are nevertheless being cut down then discarded.”
But Ta Ann says that no old growth trees are used in their products, pointing out that machinery recently installed by the company is only capable of processing regrowth trees. A spokesman for Ta Ann Tasmania said that its products are produced “from regrowth timber billets harvested strictly in accordance with Australia’s forest policies and laws including the forest practices code”.
.
Greenpeace’s executive director John Sauven said:
“As a proud Londoner, I’m shocked that ancient forests crucial for conserving the world’s tallest flowering plants, the largest hardwood trees in the world, and many endangered animals are being used for flooring in London’s Olympics.
.
“British companies like International Plywood could end the destruction by ensuring they no longer do business” with companies who handle even new growth Tasmanian timber.
Both UEL and Dynamik Sport Surfaces, which installed the wooden flooring, said they were initially unaware that parts of the wood used in the flooring installed in the building was from the Tasmanian forest. UEL said that, had it been aware of the concerns over the source of the material, “it would have been considered. But hindsight is a great thing.”
A spokesman said: “We are totally committed to making sure the £21million Sports Dock facility is an environmentally friendly development and that this new facility has the best mix of sustainable materials and features.
“The International Basketball Federation has very clear specifications about what type of materials should be used when constructing a court, which will be used by professional basketball players. Following this guidance and consultation with the relevant consultant for this development, the material was sourced.”
According to Markets for Change, the wood products destined for the UEL site passed from the Malaysian logging company Ta Ann, entering Europe in the hands of International Plywood. It eventually ended up in the hands of Dynamik, which laid it as flooring.
Anil Batra, Dynamik’s Financial and Marketing Director said he was “interested in the issue, now it has been brought to our attention” but pointed out that no laws had been broken and that the wood was certified by the international PEFC.
A Ta Ann spokesman initially called said: “what a great result for Tasmania, our timber being used in the London Olympics. He claimed that the Tasmanian subsidiary uses regrowth billets of wood and operates strictly in accordance with Australian laws and sustainability requirements. He acknowledged that the Tasmanian forest is “a mosaic of regrowth and some old
growth” and said that the company can only use billets from regrowth”. He later said that the company had not carried out any production of veneer products bound for the UK and cast doubt on whether the wood used at UEL could be proven to be from his company.
Markets for Change produced images it said showed Ta Ann-branded crates at the UEL site which they said also had licence numbers identifying them as containing Ta-Ann-manufactured products.
A spokesman for International Plywood said the company did not have any current contracts with Ta Ann and would review its trading relationship with the firm, if it could be shown it was “acting in a way that would not comply with our purchasing policy standards“. However, the spokesman said it had no reason to believe that were the case and “if Ta Ann were able to supply PEFC certified plywood as they have done previously they would meet our current purchasing policy“.
A spokesman for Team USA refused to comment.’
.
Forest Defender Miranda Gibson
of Tasmanian activist group Still Wild Still Threatened, in ObserverTree
Mount Mueller Forest, Styx Valley South West Tasmania, Australia.
.
The Wilderness Society says Australian Paper cannot meet environmental standards. The manufacturer of Reflex paper has lost part of its international environmental certification, after withdrawing from an audit of its wood supplies.
The Forest Stewardship Council was auditing Australian Paper, to check that the wood used to make Reflex paper is not sourced from high conservation value forests.
Luke Chamberlain from the Wilderness Society says the company withdrew from the process, because it cannot meet environmental standards.
“The makers of Reflex paper get their wood from the Victorian State Government native forest logging arm VicForests,” he said.
“VicForests log in endangered species habitat. They log old growth forests in East Gippsland and the central highlands”
Australian Paper says its products are not sourced from high conservations value forests threatened by logging.
Shaun Scallan from Australian Paper says they withdrew because the audit process changed while it was underway.
“We pulled out because of a change in the definition of part of the standard late in the piece, which did not allow us enough time to then satisfy that changed definition,” he said.
.
.
Meanwhile the same Shaun Scallan of Australian Paper just the day prior on Monday 22 August 2011 posts his media release:
.
‘Australian Paper retains FSC Chain of Custody Certification’…?
‘Australian Paper has successfully retained Forest Stewardship Council (FSC) Chain of Custody certification (FSC-C002059) in its latest audit. Auditor Rainforest Alliance confirmed that under the certification Australian Paper may continue to produce FSC-certified product based on sourcing of material from FSC-certified operations and recycled content, as allowed under the FSC rules for Mixed and Recycled product.
.
“We are pleased to have retained our FSC Chain of Custody certification,” Australian Paper CEO Mr Jim Henneberry said.
“Australian Paper has held Chain of Custody certification since 2006. However, we have decided to remove the Controlled Wood component from our certification at this time as there has been uncertainty around the interpretation of key elements of the standards.”
.
“Advice received by Rainforest Alliance from FSC International around the interpretation of the Standard was received after the physical audit had been completed. This left insufficient time for us to address and so we elected to withdraw Controlled Wood from our certification.” Mr Henneberry said.
.
Australian Paper remains committed to ensuring that fibre supplies come from internationally recognised, third party certified sources and also regards the Australian Forestry Standard and PEFC as benchmark certifications under this policy. The majority of wood supplied to Australian Paper is certified to the Australian Forestry Standard.
.
“We are also continuing to consult with a wide range of stakeholders as part of our Future Fibre Strategy review,” Mr Henneberry said.
“It is vital that we achieve the best balance between the environment, the health of regional communities and our ongoing competitiveness. We look forward to sharing outcomes from this review in due course.”
.
.
Meanwhile, we have the boss of Nippon Paper (the Japanese company that owns the misnomer ‘Australian Paper’) declaring Nippon Paper is going gang-busters to become a top global pulp and paper company…(at any cost?)
‘Since I was appointed president of Nippon Paper Group, Inc. in 2008, I have been pursuing “growth-oriented management.” This means exploring every possibility with a consistently positive stance, actively seizing opportunities, achieving the growth needed to become one of the top pulp and paper companies worldwide, as set out in the Group Vision 2015, and developing corporate value that meets the expectations of all stakeholders.’ ~ President of Nippon Paper Group, Yoshio Haga. [Source: ^http://www.np-g.com/e/about/president.html]
.
.
Meanwhile, the stated Charter of Nippon Paper Group includes:
.
‘6. Active involvement with environmental issues assures that…’
.
‘We shall promote afforestation projects, to create and make effective use of sustainable forest resources.’
‘We shall promote energy conservation, the use of wastepaper and other measures to effectively use resources that are limited in quantity.’
‘We shall manage and reduce all types of discharge and waste generated in the course of corporate activities.’
‘We shall research and develop manufacturing technologies, and products and services that are in harmony with the environment.’
Editor: It is suspicious when a Japanese company is more than content to log and irrevocably destroy another country’s old growth forests, while Japan’s own old growth forests around Mt Fuji remain sacrosanct.
‘In spite of the abundant natural resources, logging is not commonly practiced in the forests of Japan. Japan Forests are venerated and protected since they provide essential soil cover and help in water conservation. All Species are encouraged to grow in the Forests in Japan , from the broad-leaved deciduous to the evergreen coniferous types. There are also many forests which grow near volcanic areas, destroyed and then rejuvenated every time an eruption occurs. The Aokigahara Forest at the base of Mount Fuji is one such forest. Locals as well as tourist camp, trek and hike through these dense forests of Japan to explore their unusual natural beauty.
‘Some Japan Forests are designated as Sacred Forests . These forests generally contain an ancient religious Shrine, usually worshiping the Shinto religion and are protected from trespassing and destruction. These forest shrines are still venerated as national treasures.
.
Some of the sacred forests in Japan are-
The Forest of the Yahiko Jinja has many trees like the Cedar, Cypress and Oaks. The Shrine has a sacred Chinquapin tree as well.
The Forest of Atsuta Jinja is an important Shinto Shrine, housing one the three important Shinto relics – the holy sword of Kusanagi-no-tsurugi. The forest has evergreens like the Japanese Camellia Sakaki, camphor trees, Ilex and Japanese Honeysuckle.
The Forest of Kashima Jingu has over 800 species of trees like varieties of Cedar, Fir and Oak. The Kashima Jingu is an important shrine of the Kanto Area. The forest has been designated as a Wildlife Protection area for the rare birds in the region.
The Forest of Shimogamo Jinja covers over 495 hectares and has many different species of deciduous trees like the Zelkova, the Elm and the Hackberry. The Shrine itself has 53 buildings which have been designated as National Heritage Architecture.
The Forest of the Kirishima Jingu covers and area of 887 hectares. Located near the Mount Kirishima Volcano, the forest has been destroyed and then recovered for over 60 times.
The Forest of the Kasuga Taisha is home to the beautiful podocarpus Nagi. The forest also contains many species of evergreens and shrubs. Trees like the Kasuga, the Andromeda and the Ichii also grow there. People from all over Japan visit the venerated shrine in the quarterly pilgrimages.‘
Ethics question for Yoshio Haga (President of Nippon Paper Group):
What moral right do the Japanese have to consider their own native old growth Aokigahara Forest more sacred than Australia’s sacred native old growth forests such as those across East Gippland?
Stump of Brown Mountain’s sacred 600 year old Mountain Ash old growth tree.
It was logged by VicForests in November 2008 for Nippon Paper’s Reflex Paper.
.
.
In light of VicForests recent civil prosecution in the Victorian Supreme Court, Nippon Paper Group’s association with VicForests calls into question the reputation of Nippon Paper Group and its brand Reflex Paper:
.
‘VicForests has been stopped from harvesting certain coupes in the Brown Mountain forest in East Gippsland containing old growth forest
– habitat for rare and threatened species – until the completion of steps implementing the precautionary principle.’
.
.
.
‘Environment East Gippsland Inc v VicForests – The precautionary principle in action’
‘The Victorian Supreme Court decision in Environment East Gippsland Inc v VicForests firmly embeds the approach to the precautionary principle laid down in Telstra Corporation Limited v Hornsby Shire Council (2006).’
‘The case makes it clear that the precautionary principle can be the subject of an enforceable obligation.’
‘The case also makes it clear that the precautionary principle applies both at the strategic and operational stages of a project or undertaking.’
‘The fact that VicForests complied with its forestry approvals was not enough to satisfy the Court that it had met its obligations with regard to the precautionary principle.’
.
‘In Environment East Gippsland Inc v VicForests [2010] VSC 335 conservation group Environment East Gippsland (EEG) won a landmark injunction against VicForests, a state-owned timber business with responsibility for commercial timber harvesting in Victoria’s state forests.
VicForests has been stopped from harvesting certain coupes in the Brown Mountain forest in East Gippsland containing old growth forest – habitat for rare and threatened species – until the completion of steps implementing the precautionary principle.
In this case, Justice Osborn of the Supreme Court of Victoria undertook a thorough analysis of the application of the precautionary principle in the context of a detailed legislative regime aimed at balancing biodiversity protection and commercial timber harvesting. The case embeds the approach to the precautionary principle laid down by Chief Justice Preston of the Land and Environment Court of New South Wales, in Telstra Corporation Limited v Hornsby Shire Council (2006) 67 NSWLR 256.’
.
The lead-up to the litigation
.
‘The Brown Mountain forests in Victoria’s East Gippsland contain old growth forests and provide habitat for rare and threatened species such as the Powerful Owl, the Spotted-tailed Quoll (mainland Australia’s largest marsupial carnivore) and the Long-footed Potoroo. However, these areas are also amongst the most productive timber harvesting forests in Victoria and play a crucial role in Victoria’s sustainable timber industry.
In 2006, the Victorian State Government committed to increasing the conservation parks and reserves within the broader Brown Mountain area. Nevertheless, in 2008 commercial logging in the Brown Mountain area began.
After numerous studies of the area indicated the presence of important threatened and rare species, EEG requested the Minister for Environment and Climate Change, Gavin Jennings, to make an interim conservation order to conserve critical habitat of the endangered Long-footed Potoroo, Spot-tailed Quoll, Sooty Owl, Powerful Owl and Orbost Spiny Crayfish at Brown Mountain. The Minister did not grant a conservation order, but instead increased the conservation area surrounding Brown Mountain.
Having failed to obtain undertakings from VicForests that it would not proceed to log the Brown Mountain coupes, EEG sought interlocutory injunctive relief. An interlocutory injunction restraining logging was granted by Justice Forrest on 14 September 2009 (see our article Environmental litigation heats up with some significant wins for public interest litigants in our 2 October 2010 edition of Environment Matters ), pending the outcome of the full proceedings before Justice Osborn in the Supreme Court of Victoria.’
.
The legislative regime
.
‘Logging of state forests in Victoria is regulated by a complex scheme of legislation, codes of practice, management plans and procedures, described by Osborn J as “labyrinthine”. The principal legislation includes the Forests Act 1958 (Vic) (Forests Act), Sustainable Forests (Timber) Act 2004 (Vic) (SFT Act), Flora and Fauna Guarantee Act 1988 (Vic) and Conservation, Forests and Lands Act 1987 (Vic).’
.
Responsibilities for timber harvesting and forestry management
.
‘VicForests is a state-owned corporation, established in 2004 to undertake the harvesting of timber in Victoria’s state forests. The Secretary to the Department of Sustainability and Environment (DSE) has overarching responsibility for managing state forests and timber harvesting within forests under the Forests Act.’
.
Legal challenge
.
‘EEG sought an injunction restraining VicForests from harvesting four coupes at Brown Mountain containing old growth forest. It also sought declarations that timber harvesting within the coupes by VicForests in accordance with the current forestry regime would be unlawful.
EEG argued that the current conservation measures for the Brown Mountain coupes did not meet the requirements of the regulatory system, which addresses the preservation of conservation values and in particular the protection of endangered species. EEG also argued that VicForests had failed to implement the precautionary principle.
VicForests took issue with EEG’s standing to sue. Further, it denied the presence of a number of endangered species and argued that the logging of the Brown Mountain coupes would take place under a legislative framework that adequately protects endangered species and would, therefore, be lawful. It also argued that it was DSE’s responsibility to stipulate any further requirements for habitat protection in accordance with the regulatory regime.’
.
EEG’s standing
.
‘Following the settled High Court authority that standing to bring such proceedings depends on the plaintiff’s “special interest” in the subject matter of the litigation (Australian Conservation Foundation v Commonwealth (2000) 200 CLR 591), Osborn J was satisfied that EEG had a relevant “special interest” because:
EEG uses the coupes to a greater degree than the general public (for example, the group has a “Valley of the Giants Old Growth Forests Walk” through the affected coupes);
EEG’s predecessor was involved in the consultative process for the formulation of the applicable forest management plan; and
the government has previously recognised EEG’s status as a body representing this sector of the public interest.’
.
The precautionary principle [Ed: once again]
.
‘The VicForests case firmly embeds in Australian environmental jurisprudence the approach to the precautionary principle laid down by Chief Justice Preston of the Land and Environment Court of New South Wales, in Telstra Corporation Limited v Hornsby Shire Council (2006) 67 NSWLR 256 (Telstra). Justice Osborn’s decision in VicForests is the first Supreme Court application of the Telstra principles.
The precautionary principle is integrated throughout the Victorian forestry regime’s many instruments.
Following Preston CJ’s two-fold test in Telstra, Osborn J stressedthat the precautionary principle is a test of common sense. There must be:
a threat of serious or irreversible environmental damage; and
scientific uncertainty as to the environmental damage.
Justice Osborn stated:
Once both of these conditions or thresholds are satisfied, a precautionary measure may be taken to avert the anticipated threat of environmental damage, but it should be proportionate … [The] degree of precaution appropriate will depend on the combined effect of the seriousness of the threat and the degree of uncertainty.
It is a “wherever practicable” test.
In practice, this meant that once the two-fold test was satisfied by EEG, VicForests had the onus of proving that the threat posed by logging the coupes did not exist or was negligible. Because it could not do this, the question then became:
whether the threat was able to be addressed by adaptive management measures (in this case the requirement for surveys and management zone reviews); and
whether the measure alleged to be required (here the permanent injunction against logging the coupes) was proportionate to the threat in issue.
Justice Osborn carefully examined the legislative regime and held that it is not intended that VicForests only apply the precautionary principle at the strategic planning stage:
VicForests is specifically required to apply it [the precautionary principle] having regard to the results of monitoring and research as they come to light during operations. … The requirements of the precautionary principle fall to be considered in the light of the whole of the evidence bearing on these matters as it now is and not as it was at the time VicForests completed planning.
Justice Osborn stressed, however, that the precautionary principle sits within a wider statutory regime that takes into account principles of sustainable development.
He held that unless VicForests complied with the requirements of the applicable Flora and Fauna Guarantee Act Statements and with conditions stated in the relevant allocation order (under the Forests Act) and the Timber Release Plan (under the SFT Act), logging at Brown Mountain would be unlawful.
This meant that VicForests could not rely on its current approvals to log the coupes because DSE had not, for example, changed zonings in the coupes to reflect the presence of threatened species. VicForests had an ongoing, active duty to apply the precautionary principle, which included responding to new information as it became available.
Importantly, Osborn J stressed that the precautionary principle canbe the subject of an enforceable obligation.’
.
Outcome
.
‘Justice Osborn ordered that VicForests stop harvesting until various measures had been completed to respond to the detection of endangered species and to implement a precautionary approach with respect to their potential extinction. The required measures included:
creating or amending special management zones, special protection zones and retained habitat areas to protect the Long-footed Potoroo, Greater Gliders and Yellow-bellied Gliders (as relevant);
undertaking further surveys for the Giant Burrowing Frog, Large Brown Tree Frog and Spotted-tailed Quoll; and
completing a current review of the Powerful Owl and Sooty Owl Management Areas,
to the satisfaction of the Director, Biodiversity Policy and Programs, DSE.
The difficulty for the Court in formulating its orders was that the power to act on the evidence of rare and endangered species and implement the required legislative and policy changes lies not with VicForests, against whom the injunction was sought, but with DSE.
Justice Osborn overcame this difficulty by stopping VicForests from logging until certain actions are undertaken, these actions being DSE responsibilities. VicForests had maintained throughout proceedings that it would comply with any changes to the regulatory regime made by DSE, and this was accepted by the Court.
.
Significance of the decision
.
This case firmly embeds the approach to the precautionary principle laid down by Chief Justice Preston in Telstra Corporation Limited v Hornsby Shire Council (2006) 67 NSWLR 256.
Justice Osborn’s decision makes it clear that:
The precautionary principle canbe the subject of an enforceable obligation.
Parties having an obligation to apply the precautionary principle cannot demonstrate compliance with the principle solely through departmental approval of their actions or relevant approvals under the regulatory regime; the precautionary principle is an active obligation that applies throughout operations, requiring parties to respond to new information as it arises.
The precautionary principle applies throughout all stages of operation, not just the strategic planning (or approvals) stage.
The decision has broader implications because:
The precautionary principle is embedded in many other statutory regimes in Victoria and around Australia, apart from the Victorian legislative regime for forestry and the protection of endangered species. The decision has implications for any statutory regime in which the principle is enshrined.
Although VicForest is a state-owned enterprise operating within a highly regulated environment, there is scope for the decision to be applied to other types of entities operating within industries where the precautionary principle is relevant.
Furthermore, a decision of the Supreme Court of Victoria has strong precedent value, and is likely to be adopted by the Supreme Courts of other States, and perhaps even higher courts or courts with federal jurisdiction.
.
Action points
.
Parties under an obligation to apply the precautionary principle need to be aware that:
to implement the precautionary principle as per the principles laid down in Telstra, parties need to ask:
is there a real threat of serious or irreversible damage to the environment?
if yes, is it attended by a lack of full scientific certainty (in the sense of material uncertainty)?
if yes, is the threat non-existent or negligible?
if no, is the threat able to be addressed by adaptive management and is the measure alleged to be required proportionate to the threat in issue?
the principle must be applied at both the strategic decision making stage of a project, and throughout the operational stage; and
it may not be sufficient to simply obtain and comply with project approvals – parties need to proactively respond to new information as it arises throughout the operational stage.’
‘Paperlinx will take a $600 million hit on its half year results and the future of its Tasmanian operations is under review after last night unveiling the partial sale of its Australian papermaking business.
Japan’s Nippon Paper Group will buy most of Australian Paper, which includes the Maryvale pulp mill in Gippsland, for more than $700 million, including taking on attached debt and a three-year profit share agreement.
Money from the sale, expected to be completed in June, will go to reducing PaperlinX’s debt burden to about $340 million…’
[Editor: So Paperlinx was in debt to the Australian Tax Office by over a billion dollars? How can Australia’s pulp industry be profitable then?]
.
[3]Australian Paper Watch website (providing information about the logging of Victoria’s forests to make paper products such as Reflex by Nippon Paper and their ‘subsidiary’ Australian Paper), ^http://www.australianpaper.forests.org.au/
‘Australian Paper has a long history in the La Trobe Valley in Gippsland, Victoria, dating back to 1937 when established. Today, the Mill is Australia’s largest integrated pulp and paper operation. In response to global paper trends and changing consumer expectations for our products, Australian Paper (Nippon Paper subsidiary) embarked on a major upgrade of the Maryvale Pulp Mill in 2006 which was completed in December 2008. With an investment of $350 million, the upgrade significantly expanded the Mill’s production of bleached pulp capacity and delivered a range of safety, health and environmental benefits.’
‘Conservationists have held up timber workers in a fiercely contested area of native forest on Melbourne’s fringe for nearly a month, chaining themselves to bulldozers and climbing trees scheduled for logging.
The protest, which has led to at least 10 arrests, is expected to reach a climax today as activists and local residents march into the logging coupe outside Toolangi in Victoria’s central highlands.
Protest organisers claim they have evidence the coupe is home to the endangered Leadbeaters Possum, which scientists say is under threat after Black Saturday bushfires wiped out up to half its habitat. But the Department of Sustainability and Environment says there has been no sign of live possums. Department spokeswoman Kim Payne said one tree in the coupe had hollows that showed evidence of possum use. That tree would be left standing, but the coupe did not meet the legal criteria of prime possum habitat and could otherwise be logged.
Sarah Rees, director of Healesville-based group My Environment, said it was cruel to think a possum could be protected by retaining a single tree while taking away the forest around it. She said logging was hurting central highlands communities.
.
”Tourism based on the state forest is far more important to the local economy than forestry and the two cannot co-exist,” she said.
The conflict over the Toolangi State Forest was the focus of a public meeting in the area late last week when logging opponents verbally clashed with forestry workers, who accused the activists of restraint of trade. One contractor said he had lost about $80,000 due to the protests.
David Walsh, spokesman for state commercial timber agency VicForests, said the Toolangi protests had cost forest workers significant time. Only about a quarter of the 19-hectare coupe had been harvested. He said gates raised to ensure public safety had been damaged. ”VicForests believes these are legal harvesting operations which comply with the detailed legislative framework governing native timber harvesting in Victoria,” he said.‘
.
Editor: The legal doctrine of ‘restraint of trade’ sought to be applied in the commercial exploitation and destruction of old growth forests, is an invalid excuse. It is a contemptible euphemism for a ‘right to rape’ old growth ecology that is being contrived by commercial lawyers profiting from the exploiters ~ a case of the morally bankrupt collaborating with the damned.
Gunns’ must really be loaded to commit $2.2 billion on a pulp mill in Tasmania’s Tamar Valley.
Not many companies have that sort of money and certainly not in cash-strapped Tasy. But with access to so much financial capital, why waste it on 20th Century logging? Tasmania has so much economic potential using 21st Century thinking and think what a smart $2.2 billion could otherwise benefit Tasmania’s future, without 19th Century exploitation?
The money to build such a pulp mill has to come from somewhere and it appears Gunns’ may have found a financial joint venture backer in Finnish pulp giant, UPM-Kymmene Oyj.
Gunns tries to claim that it’s motive is all about forestry jobs for Tasmanians. But once UPM gets a foothold in Tasmania, check UPM’s record with jobs…
.
“In September 2008 UPM announced another cost reduction program that includes layoffs thousands of employees, and its Kajaani paper mill and Tervasaari pulp mill will be closed altogether. These will be the largest layoffs ever in Finland. In March 2006 UPM announced a cost reduction program that includes layoffs approximately 3,600 employees, nearly 3,000 of those in Finland, and its Voikkaa paper mill in Kuusankoski was closed altogether. This was the largest single layoff ever in Finland. This is attributed[by whom?] to the worldwide overproduction of paper. UPM announced the permanent closure of a large mill complex in Miramichi, New Brunswick on December 17 2007, citing economic pressures in the North American forest industry.”
[Source: http://en.wikipedia.org/wiki/UPM_%28company%29 ]
.
Greg L’Estrange, Gunns’ replacement CEO for John Gay since July 2009, seems to be tasked with getting the pulp mill up and running no matter what the cost, no matter what spin doctoring efforts are employed to secure government approval. Somehow his deal making has succeeded in government fast-tracking of the assessment process.
.
On 25th November 2010, Gunns released a statement to the Australian Stock Exchange stating that the pulp mill project remained on track. This is Gunn’s ‘do-or-die‘ single corporate strategy. It has no plan B. . L’Estrange’s initial ploy was to remove the motive driving Gunns’ key enemies. Gunns’ declared a moratorium on native forest logging across Tasmania. It was clearly a bid to secure Forestry Standard Certification, to comply with new Japanese buyer benchmarks; rather than any noble recognition of native forest conservation values.
.
Then L’Estrange concocted Gunn’s Forest Statement of Principles and armed with this did a secret forest peace deal late last year with local greenie groups. L’Estrange sold it as a new greener Gunns’ “working with environment groups to create a future without conflict.” Consistent with strategy, the ‘Tassie Talks’ deal it was all about quelling Tasmanian public dissent and he quickly branded the deal pivotal to the Tasmanian forest industry and ‘historic’. Be seen to be green! Whatever it takes! Except environmental groups deny they have given the green light to Gunns Tamar valley pulp mill by signing the deal. There’s that greenwashing term again – ‘sustainable‘. It’s become an abused and hollow marketing euphemism really about corporate ‘financial viability‘ in the exploitation of natural resources. Such corporations shy from using the term ‘triple bottom line’ any more, because it is harder to promote when one is only focused on the bottom line. And there’s fresh water demand of the mill and the marine effluent it will spew, which L’Estrange has tried to allay concerns claiming new pulp bleaching technology promises to reduced toxic outflow of chlorine dioxide by some 40%. Despite the promise of ‘stricter controls’ an expected 64,000 tonnes of effluent will still be released by the pulp mill into Bass Strait daily. And it won’t harm marine life?
‘At its annual general meeting in November, Gunns told shareholders that modelling work showed the mill would have no impact on marine ecosystems, but Environment Tasmania said it was still concerned about the effect of up to 51 gigalitres a year of industrial effluent being discharged into the sea.’
Securing Gunns’ shareholder backing, L’Etrange at Gunns’ recent annual general meeting, drew a line in the sand claiming the moratorium on native forest logging (the greenie forest deal) was now conditional on the Tamar Valley pulp mill going ahead. If the greenies want to keep Tasmania’s native forests, they must agree on the pulp mill proceeding. The ‘Tassie Talks’ deal was always a loaded gunn deal.
“We believe that the development of the Bell Bay Pulp Mill will be the centrepiece of this strategy for the modern industry in Tasmania.”
Of course it’s all rather reminiscent of Gunn’s heavy-handed power playing under John Gay. The Gunns’ Board hasing changed; only its front man. This latest greenwashing approach is one of image rebranding and loaded deals, all the while Gunns’ pulp mill strategy remains on track. L’Estrange plays good cop while the pulp mill unswervingly looms as Tasmania’s big bad cop.
.
Tasmania’s natural heritage is Tasmania’s future… whether dead in a museum like its Thylacene or alive and precious…is ultimately an existence decision for local Tasmanians.
Update News Friday 20110311: ‘Contentious pulp mill wins federal approval’
.
Yesterday L’Estrange must have earned his executive performance bonus following Labor’s federal Environment Minister, Tony Burke, announcing government approval for the pulp mill to proceed. L’Estrange’s comment was that the decision brought certainty for proposed investors in the pulp mill project, now estimated to cost $2.3 billion, pre-cost blowout, pre-government subsidies. (‘Contentious pulp mill wins federal approval’, SMH, 20110311)
.
Upon gaining the final three environmental permits Gunns needs for the mill, Gunns shares rose 5.88% to close at $0.63. (Finnewsnetwork.com.au, 20110311). Certainly a ‘sustainable’ result for L’Estrange.
Gunn’s pulp mill will perpetuate 20th Century logging across Tasmania. It will continue to make Tasmanian rural communities dependent on one industry and vulnerable to the whims of one employer – Gunns.
.
Gunns’ spin is that the mill will only use timber from plantations, capitalising on the fact that those plantations were planted as a result of clear felling destruction of Tasmania’s rare native forests. According to The Wilderness Society, Gunns’ wood supply deal with Forestry Tasmania commits it to supplying a million tonnes a year of native forest for the next twenty years. (‘Gunns’ proposed pulp mill, The Wilderness Society, 20110310)
.
So Gunns’ ‘plantation only’ claim is false and misleading.
.
The mill will spew odorous fumes downwind through the Tamar Valley forcing thousands of residents of this rural region to breathe polluted and toxic air and contaminate local horticultural producers such as vineyards. The mill is forecast to consume fresh water equivalent of the combined use of all water users across Northern Tasmania, according to The Wilderness Society there. (‘Gunns’ pulp mill impacts – Environment, heritage, economy and community threatened, The Wilderness Society, 20100530).
.
Gunns’ mill is still set to spill 64,000 litres of toxic chlorine, dioxins and furans a day from its chemical pulping process into the Tamar River and downstream into Bass Strait. That it will obviously pollute the surrounding waters, kill marine wildlife, poison and permanently contaminate marine habitat, and destroy the local fishing industry; Burke has still managed to find a way to approve the bloody mill!
“I’m only doing what my requirements are under the Act. We’ve got some very specific requirements on environmental approvals. I’m delivering on that.” – Tony Burke. (‘Milne: Pulp mill approval a corrupt process’, ABC TV Lateline, 20110310)
Burke in the same week, managed to push through legislation to allow Sydney’s Barrangaroo development avoid the cost of a heavy metals clean up, while at the same time stuck to the letter of the law with his approval of Gunns’ pulp mill. Can there be no clearer display of pro-development bias? Laws for some!
But then Burke’s bias is predicable, given he came to the portfolio from the other side of the fence, as Minister for Agriculture, Forestry and Fisheries; and his quick rise from the NSW right faction. (‘Gunns deal a shedding of responsibility, by Andrew Darby, The Age, 20110311)
According to federal Greens Senator Christine Milne responding on last night’s Lateline programme:
“There has never been a thorough and rigorous assessment (of the pulp mill) because Paul Lennon, former Premier of Tasmania together with John Gay, managed to pull it out of the proper assessment process (at State level), fast-track it through the Tasmanian Parliament…so what we have got here is a project that has been through a corrupt assessment process.”
Milne is factually correct. There was no rigorous assessment of the Bell Bay site. The Tasmanian assessment process was corrupt, the community was denied a say, the democratic process was abused. The mill has no social license to operate. It is illegitimate and Gunns’ development actions are one of a corporate and political bully imposing its selfish shortsighted greed on Tasmania and Tasmanians.
.
Gunn’s Bell Bay pulp mill will not only degrade the region, but dominate the northern heart of Tasmania. On Google Earth it will show up like a festering sore poisoning a diminishing green forested Tasmania.
L’Estrange borrowed Labor’s classic dirty tactic of divide and conquer to stymie opposition and protests from Tasmanian conservation groups. His deal has seeded a split between conservationists and the Greens over the pulp mill. He has lured local conservationists to compromise with the offer to surrender Gunns’ contract rights to 220,000 cubic metres of native forest saw logs a year and to protect an extra 600,000ha of forests. Even Labor’s appointed negotiator Bill Kelty has been brought in to clench a forest peace deal with select conservationists. The Wilderness Society in Tasmania, together with Environment Tasmania and the Australian Conservation Foundation seem to be coming on board backing down on their opposition to the pulp mill. They are now at odds with the Tasmanian Greens who are a little more savvy about the hollow politics and promises.
“It looks as though somebody wants to save some high conservation value forests, but is sacrificing the Tamar Valley to get them”, says Tamar Valley resident and mill opponent Peter Cundall. (Greens v Greens on Gunns pulp mill, The Australian, 20110304)
Site of proposed Gunns’ pulp mill, Bell Bay, Tamar Valley
Photo: http://www.abc.net.au/news/stories/2011/03/10/3160890.htm
.
.
.
The editor agrees with the following selected comments posted in The Australian to the article ‘Greens v Greens on Gunns pulp mill, 20110304:
.
By James McMaugh’:
“The mill will never be built. The people are opposed and are right not to trust Gunns. There will be a huge outcry and mass protests blockading construction. I will travel to Tasmania and so will many others to make sure of this. The proposal is dead.
It’s about time politicians listened to the people and business should too. You cannot run roughshod over the will of the people and they don’t want this mill. Overwhelmingly they don’t. It will cost more jobs than it creates and destroy the river. No, no and no to this mill.”
.
By ‘Chris B of Australia’:
“The only acceptable outcome is NO Pulp Mill at all in Tasmania. Gunns has no credibility and has proven time and again how they cannot be trusted by the community. I personally believe there is no place for a company like Gunns in Tasmania and they should make transition plans for their workforce to move to a sustainable industry.
The environmental groups willing to compromise the values and allow Gunns to sacrifice the Tamar Valley should be ashamed of themselves. Make no mistake, the pulp mill will completely and utterly degrade the environment of the Tamar Valley and Bass Strait, no matter which form it takes.”
.
By ‘SW’:
“ Senator Milne speaks for me. Thank you, Christine, for maintaining the rage. It certainly hasn’t died down here in the Tamar Valley.”
.
By ‘Robert of Adelaide’:
“ Same old argument of lack of development, growth, jobs, high crime etc. The same attitude is taken in the case of the Brazilian Rainforest as well. Where does it stop and what will we actually be left with in 100 years? Oh, that’s right, we won’t be here, so who cares… If people want employment, go to where the jobs are in the rest of the country and the world like everyone else is doing! And while you are working in places like Sydney, London, Beijing, Tokyo and Bangkok… reflect on how wonderful development has been for these these concrete infested cities! Then maybe we can appreciate what we have here.”
.
.
.
‘Green movement outguns Gunns’ [20110311]
.
…’Gunns had gone so far as to sue an elected politician, the Greens leader, Bob Brown.
“When I got the writ,” says Brown, “I knew better than to call the lawyers. The first thing I did was to call a press conference. Within 24 hours we had a candlelight vigil for democracy, in Hobart. It was like the Prague Spring.”
Ultimately, Gunns underestimated its opposition and its decision to sue backfired spectacularly.
Far from being cowed by the suit, Marr and his colleagues ramped up an environmental campaign the likes of which had not been seen in this country – targeting the Gunns bankers and shareholders, Japanese customers and European partners – which ultimately brought the company to its knees, decimating its market value and ousting its divisive chairman, Gay.
.
..It was left to the new chief executive, Greg L’Estrange, to concede defeat last September, and promise that Gunns would get out of native forest logging altogether. Despite this week’s federal approval of the mill, and the talks over a Tassie forests peace deal, Gunns is by no means out of the woods. A long, painful process of rebuilding trust with former enemies is only beginning.
.
Gunns was once a corporate powerhouse. A series of acquisitions in 2000-01 turned it into Australia’s largest export woodchipper, and No. 1 target for the environment movement.
..’A bulked-up Gunns put the pedal to the metal. This was logging on an industrial scale. Between 2000 and 2006, working with Forestry Tasmania, Gunns clear-felled 110,966 hectares of native forest, 90 per cent of the timber being used for woodchipping and 58% of the land making way for timber plantations.
“Gunns got unlimited amounts of other people’s money and went on a clearing binge,” says Marr.
The forest was clear-felled and waste burnt off using napalm-like incendiaries. Gunns used 1080 poison bait to protect seedlings, inflicting gruesome death on untold native animals and risking the health of forest workers.
.
Whether from strength or desperation, Gunns launched its ill-fated suit. The company’s shares hit their all-time peak a month later, at $4.38, and began to slide downwards. The story of the Gunns 20 suit, which dragged on until last year and was ultimately settled at a cost to the company of $2.8 million – including $1.3 million paid to the Wilderness Society – has been well told. Perhaps less well understood is the international backlash the case triggered.
The decision in 2008 by the new ANZ chief, Mike Smith, to refuse finance for the pulp mill, quickly followed by the other big banks, was unprecedented in this country and followed a strong online petition campaign by the Wilderness Society and the online activist group GetUp!After a decade’s lobbying, Japanese paper-makers decided in February last year not to accept Gunns wood unless it was Forest Stewardship Council- controlled.
.
Shares in Gunns are off their lows but the company’s future remains uncertain. Bob Brown says if Gunns ”doesn’t survive – and I hope it does – it will be nobody’s fault except the board’s”.
.
[Source: ‘Green movement outguns Gunns, by Paddy Manning, Sydney Morning Herald, News Review, p 6,
http://www.watoday.com.au/national/green-movement-outguns-gunns-20110311-1br8m.html]
.
References
.
[1] ‘Contentious pulp mill wins federal approval’, by Andrew Darby and Dylan Welch, 20110311, Sydney Morning Herald, http://www.smh.com.au/environment/contentious-pulp-mill-wins-federal-approval-20110310-1bpt4.html]
[3] Greens v Greens on Gunns pulp mill, by Matthew Denholm and Matthew Franklin, The Australian, 20110304, http://www.theaustralian.com.au/national-affairs/greens-v-greens-on-gunns-pulp-mill/story-fn59niix-1226015622300
The ObserverTree in Tasmania’s magnificent Styx Valley below Mount Mueller
(Photo source: Alan Lesheim, Dec 2011, click photo to enlarge)
Click to visit: ^The ObserverTree
Forest Defender Miranda Gibson
of Tasmanian activist group Still Wild Still Threatened, in ObserverTree
Mount Mueller Forest, Styx Valley South West Tasmania, Australia.
