Who does one believe?…

 

 

 

 

 

Greenwash Tick

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Tuesday 23-Aug-2011:

‘Paper manufacturer loses green credentials’

by Liz Hobday, ABC News, 20110823, ^http://www.abc.net.au/news/2011-08-23/paper-manufacturer-loses-green-credentials/2851982/?site=melbourne, accessed 20110825]

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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.

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Meanwhile the same Shaun Scallan of Australian Paper just the day prior on Monday 22 August 2011 posts his media release:

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‘Australian Paper retains FSC Chain of Custody Certification’…?

by Shaun Scallan, Australian Paper, 20110822, ^http://australianpaper.com.au/media/2478/AP%20FSC%20audit%20release%20FINAL%20Aug%2022_2011.pdf, accessed 20110825

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‘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.

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“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.”

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“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.

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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.

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“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.”

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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]

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Meanwhile, the stated Charter of Nippon Paper Group includes:

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‘6. Active involvement with environmental issues assures that…’

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1. ‘We shall promote afforestation projects, to create and make effective use of sustainable forest resources.’
2. ‘We shall promote energy conservation, the use of wastepaper and other measures to effectively use resources that are limited in quantity.’
3. ‘We shall manage and reduce all types of discharge and waste generated in the course of corporate activities.’
4. ‘We shall research and develop manufacturing technologies, and products and services that are in harmony with the environment.’

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[Source: ^http://www.np-g.com/e/about/charter.html#shead2]

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.

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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.‘

[Source:  ^http://www.mapsofworld.com/japan/japan-tourism/forests-in-japan.html]

Japan’s sacred Aokigahara Forest

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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.

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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:

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‘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.’

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‘Environment East Gippsland Inc v VicForests – The precautionary principle in action’

22 November 2010:

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‘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.’

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The lead-up to the litigation

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‘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.’

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The legislative regime

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‘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).’

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Responsibilities for timber harvesting and forestry management

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‘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.’

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Legal challenge

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‘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.’

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EEG’s standing

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‘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.’

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The precautionary principle     [Ed: once again]

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‘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 stressed that 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 can be the subject of an enforceable obligation.’

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Outcome

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‘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.

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Significance of the decision

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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 can be 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.

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Action points

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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.’

 

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Further Reading:

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[1] >Vicforests’ Ecological Genocide

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[2] ‘Nippon buys Maryvale mill‘, by Ian McIlwraith, The Age newspaper, 20090217, ^http://www.theage.com.au/business/nippon-buys-maryvale-mill-20090216-89bu.html, accessed 20110826]

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‘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?]

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[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/

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[4] Nippon Paper’s Maryvale Mill Upgrade, ^http://www.reflex.com.au/2008-Maryvale-Mill-Upgrade/

‘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.’

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[5] ‘Loggers, activists clash over forest‘,  by Adam Morton, The Age newspaper, 20110817,  August 17, 2011, ^http://www.theage.com.au/victoria/loggers-activists-clash-over-forest-20110816-1iwew.html
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‘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.

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”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.‘

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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.

[6]   Ethical Paper website,  ^http://www.ethicalpaper.com.au/

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[7] My Environment website, ^http://www.myenvironment.net.au/

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– end of article –