Chilling the Environment Movement
by Greg Ogle*In December 2004 the Tasmanian forestry giant, Gunns Ltd, sued one of Australia’s major conservation groups, The Wilderness Society, 5 of its staff, and 14 other conservation groups and individuals (including Green Members of Parliament, Bob Brown and Peg Putt). In a huge suit claiming some $6.3m damages, Gunns alleged that the defendants had interfered with their trade and business and contractual relations, and had conspired to injure Gunns. These claims arise from a series of alleged actions including disruptions to logging operations, defamatory media statements, and what they claim is unlawful lobbying of shareholders, customers and business contacts. And overlaying all these actions has been the notion of a broad campaign (or conspiracy) against Gunns which makes all defendants liable for all actions - even where no direct involvement in particular actions is alleged. The case obviously has huge implications for the defendants and the environment movement, but it is more than an isolated piece of civil litigation. The case has serious implications for free speech and the ability of the community to participate in protest, and it is one part of a wider struggle for the environment movement and a generational struggle for civil society.
Silencing debate
The most obvious civil liberties concern raised by the Gunns case is the possible effect of scaring people into silence. This "chilling effect" of large law suits on public debate has been noted in a variety of other cases, and cases which have that effect have been called SLAPP suits by American authors George Pring and Penelope Canaan (SLAPPs: Getting Sued for Speaking Out). Many jurisdictions in the US have introduced anti-SLAPP legislation to protect the political process and discourage such litigation.
There is no such legislation in Australia, but the Gunns case is particularly problematic because of the sheer size of the case. The sums of money involved and the numbers of people joined as defendants (with a perceived element of randomness as to who was sued and who wasn’t) are truly scary. But the size of the case also means that the resource implications of fighting the case are huge. Some of the individual defendants face huge legal bills for defending fairly simple claims because they are wrapped into a large case, and the time it takes to fight such a case means that even the most robust campaigners may be silenced simply by no longer having the time to engage in campaigning.
As the European court recently found in relation to the McLibel case, situations where individuals with few resources are pitted against large companies are inherently unjust. Even if the defendants eventually win, a costs award is unlikely to cover anywhere near all the expense. Fortunately, despite the fear and the occasional actual silencings, the campaign to protect the remaining unprotected forests has continued thusfar.
The Big Conspiracy
Various media commentators have raised concerns over the silencing potential of the Gunns case, but less noticed are the implications arising from the core argument in the writ. When the case was originally brought it had an overarching claim that the defendants and others were engaged in a conspiracy to harm Gunns. While Gunns’ pleadings were often short on details of the alleged conspiracy, at its most extreme, it was asserted that all the defendants (who come from a variety of environmental groups – or none at all) all acted on the instruction and behalf of The Wilderness Society.
The claims were revised in July 2005 and the word conspiracy was replaced with the claim of an overarching "campaign against Gunns". This "campaign" included not just the alleged unlawful actions in the writ, but as Gunns’ lawyer explained to court, it also involved other interwoven actions like communicating to the media and "representations to government, [and] attacks on government" (Court transcript, 6 July, 2005, p51). Various defendants allegedly took part in this campaign often simply by attending meetings, or because the defendants and others were claimed to be agents" for other defendants or had a common understanding of how they should protest. According to Gunns’ lawyers, this common understanding triggered action at a "direction or a signal from one of the Generals" of The Wilderness Society or other groups (Court transcript, 6 July 2005, p 15).
This centralised "command-control" view of a social movement may be at odds with most people’s experience of the anarchy of movements, but a number of politically concerning issues come out of this legal attack. The alleged unlawful campaign against Gunns includes a whole range of actions which are not only legal in themselves, but are also core to our democratic rights (eg. lobbying government). Yet these things suddenly become suable when viewed as part of an overall campaign which includes other allegedly unlawful acts – even when those acts are done by other people.
This notion of a grand campaign, or its earlier version as an overarching conspiracy, would effectively make public protest a legal minefield. It is one thing for the law to make fellow conspirators responsible where there is an agreement to do a particular action. It is quite another to hold political activists responsible for any and all actions done in the name of the cause they espouse, simply because they were movement leaders, or they did some [other] quite legal actions together.
The logic of these claims would make most political actions problematic. Any notion of a coalition of groups becomes impossible as any group could be held liable for the actions of any other group or person. Creating networks (as suggested by Kerry Brown in the Autumn 2005 issue of Options), sharing skills, spreading news of an issue into other relevant community groups, in short, all the things which are generally regarded as building a successful community campaign, would expose organisations to potential liabilities for the actions of other groups or individuals who may have participated in those campaigns. Further, on this logic, any community organisation would have to vet its volunteers and staff to ensure that they did not communicate with anyone likely to commit an unlawful act in a similar political cause (something already implied by at least one judge in a different case - Chapman & Ors v the Conservation Council of SA).
...Any notion of a coalition of groups becomes impossible as any group could be held liable for the actions of any other group or person...
Of course it remains to be seen what a court will make of these claims, but the potential danger is huge. The McLibel case which created such bad PR for McDonalds effectively took civil litigation against activists off the agenda for major corporations for more than a decade. Most of the suits against community environmental campaigners (at least in Australia) in the last ten years have been brought by medium size businesses – often developers with all their eggs in one basket. However, if Gunns succeeds in either in tieing up the environment movement in court for years, or worse, in making out its major claims, it will put litigation against political opponents back on the agenda of corporations. This silencing potential, and the nature of the conspiracy/campaign claims, means that what is at stake here is nothing less than the community’s ability to challenge and to hold corporate capital accountable.
Beyond one legal case
We also need to recognise that this is not simply a legal case without a political context. The case came just months after the environment, and particularly the Tasmanian forest issue, was a major issue in a Federal Election where both sides of politics committed to protect the forests (albeit to different degrees). Since the election we have also seen a government attack on the funding base of the environment movement.
In April this year, Federal Environment Minister, Ian Campbell announced that the government was ‘revamping’ government grants to environment organisations. What was core grant funding to a range of organisations, principally the peak Conservation Councils in each state, has been transformed into a small grants program for local groups. Some of these groups have now been refunded, but at the time the Minister spun the new program as ensuring that money went to more groups and to on ground conservation projects – the later being code for a philosophical shift from funding groups which did environmental advocacy to funding weeding and tree planting. It is not that the latter is not valuable, but no amount of replanting River Red Gums along the Murray is going to ensure the survival of the river if the water flows are not fixed – and that can only come about through community education and advocacy!
But it is not just here that the government seeks to divide the environment movement into those that advocate and those that obediently plant trees. Many of the major national environment groups had no government funding to cut, but in February the Minister wrote to a range of these groups "advising them" that their tax deductible status was at risk if they took part in illegal activities or "political activities". In April the Australian Taxation Office began auditing a number of these groups. To be clear, this was not just an audit of payment of income and taxes in the honesty/transparency sense, this was an audit of what activities those groups do and which might be deemed "political" (and therefore not appropriate to their status).
In the first instance any removal of tax deductibility status will punish environmental donors for choosing to suppor environmental advocacy rather than that other non-political environment work. This is an interesting approach for a government which proclaims itself to be about freedom of choice and market outcomes, but the reality is that removing tax deductibility will have a major impact on the budget of advocacy groups as it will be much harder to raise funds.
Even where there is no change in groups’ tax status, or where groups’ funding has been reinstated, the experience and the potential vulnerability of the groups to government action has been acutely felt and lingers as a further chill factor in environmental politics.
...Any notion of a coalition of groups becomes impossible as any group could be held liable for the actions of any other group or person...
These attacks are no coincidence. They are both a response to the success of the environment movement and a result of larger issues being played out. Those larger issues have been flagged most clearly by the rightwing think tank, The Institute of Public Affairs. The IPA held a seminar in parliament house and published a major report last year on "managing" non-government organisations. They argue that NGOs are too powerful and are usurping democratic government, and the reports specifically attack the perceived tax advantages of NGOs. Two Liberal MPs, Senators Brandis and Mason have then spearheaded a parliamentary attack with parliamentary speeches and questions of the Tax Commissioner in Senate Committees.
And in a nice tieing together of loose ends, after the Gunns writ was launched a series of articles appeared in major newspapers around the country quoting chunks of the writ as if it were fact, or just using it to air allegations against environmentalists which were completely unproven. The link was then made explicit: if the green groups did do this activity, they shouldn’t be getting government funding!!
Time for a conspiracy?
Funding cuts, punishing environmental donors, law suits – the environment movement is under attack. But of course it is not just environmental groups in the firing line. Everyone who does not fit the view of the NGOs as compliant service deliverers, that is, everyone from Oxfam and the Brotherhood of St Laurence to local cycling advocates may feel the tax man cometh. And of course the dark clouds of industrial relations ‘reform’ hang over the union movement. If what is at stake in the Gunns case is the right and ability of the community to oppose corporate power, then what is at stake in the broader picture is nothing less than the shape and power of civil society. Without a functioning, organised, civil society, we are left with nothing but the power of state and capital. It may well be time for a real conspiracy of all of civil society to defend our most truly democratic space.\
UPDATE: On 18 July 2005, after this article was submitted to Options, Justice Bongiorno delivered a damning decision and ordered Gunns’ Statement of Claim to be completely rewritten. Gunns has said that it was simply a problem with "procedural matters" and that it would be pursuing the case against all defendants. It remains to be seen whether and how the overarching conspiracy/campaign is put in Version 3 of the claim, but Gunns previous claims and arguments suggest that the general concept is central to their case.
*Greg Ogle works for an environmental organisation in South Australian, although the article is written in his capacity as independent "bush lawyer" (para-legal) with experience of a number of civil liberties cases.
Without a functioning, organised, civil society, we are left with nothing but the power of state and capital. It may well be time for a real conspiracy of all of civil society to defend our most truly democratic space.