Supreme Court action regarding the Tamar Valley Pulp Mill

On  25 October 2011 the Tasmanian Conservation Trust commenced proceedings in the Tasmanian Supreme Court in Hobart seeking a determination that the Tamar Valley pulp mill permit has lapsed as the pulp mill was not substantially commenced before midnight on 30 August 2011. It is a matter of the utmost public interest for all Tasmanians and in particular the people of the Tamar Valley, that the legal status of the permit be resolved. We are advised only the Court can determine this.

As the state’s oldest conservation organisation we see it as our duty to resolve this important matter. Why other conservation groups who undoubtedly have standing did not take this case is a question that numerous people have asked us. We truly do not know.

We believe we have strong arguments that substantial commencement was not achieved by the permit deadline of midnight 30 August 2011. Our argument can be put very simply:

if an average person visited the site they would say that no start had been made on the pulp mill.  The TCT will claim that at the end of 30 August there was no evidence of construction of any part of the pulp mill at the Long Reach site or other sites and all that had occurred was clearance of native vegetation. There is a long list of things the proponent should and could have done by the deadline which it failed to do.

While Gunns Ltd has done some preliminary earthworks at the site, there is no evidence of construction. There has also been no start to constructing the nearby export wharf, the effluent pipeline heading to Bass Strait and the freshwater pipeline bringing water from Trevallyn. There is no evidence that we know of that Gunns Ltd has raised the funding for the project, beyond the $20 million it has committed to the earthworks which commenced after 30 August 2011. If Gunns had funding, construction could not start because the workers’ accommodation and on-site amenities have not been built.

If the TCT is successful and the court upholds our claims, then the pulp mill cannot proceed under the permit issued in 2007, pending a successful appeal by Gunns. In that event, this case may put an end to the Tamar Valley pulp mill.

The TCT has only been able to commence this case with the generous financial assistance of many supporters who wish to remain anonymous and we thank them and our legal team. The TCT will be represented by barristers Duncan Kerr SC and Stephen Estcourt QC and lawyer Roland Browne.

A directions hearing has been set down for 2 February 2012.

A summary of the TCT’s statement of claims for the court:

A) To seek a determination that the Tamar Valley Pulp Mill permit has lapsed as the pulp mill was not substantially commenced before midnight on 30 August 2011.

B) To seek a determination that the dam works permits under the Water Management Act lapsed at midnight on 30 August 2011.

C) To seek a determination that the Assessment Committee for Dam Construction has no power to grant a new permit under the Water Management Act for dam works for the purpose of constructing and/or operating the pulp mill.

If the TCT wins the Supreme Court case, does this mean the pulp mill is dead?

The short answer is ‘maybe’: it is definitely not guaranteed. The Tasmanian Parliament could create another permit if the state government was inclined to rescue Gunns.

If the current Labor-Green government does not attempt to create another permit then the next government (probably a majority Liberal government) may do so. But this is too far into the future to attempt to predict whether they would.

If the current government refuses to help Gunns out, then the pulp mill cannot be built unless Gunns wins an appeal to the full bench of the Supreme Court. If unsuccessful in its appeal, Gunns would have to attempt to take it to the High Court.

The Premier Lara Giddings has made a range of unconvincing statements regarding what she may do in the event that a court finds that the pulp mill permit has lapsed. It is our view that these statements are largely irrelevant and the Premier (it may not be Lara Giddings) would decide whether to reissue a permit for the pulp mill based on the circumstances at the time and what political advantage there was. So it is predictable that the government equivocates on this question and keeps its options open.

Winning in the Supreme Court would not necessarily stop the pulp mill but it would increase the doubt over the project while Gunns takes an appeal or until political relief is given in the form of new permit.

If Gunns goes broke, that does not stop another company buying it and the permit. The TCT remains focused on what happens to the pulp mill and not the company. The permit can be sold along with the company’s other assets and Gunns going broke would not necessarily help stop the pulp mill.  But if the permit has lapsed, then there is nothing to be sold (or built) and the Tamar Valley will be off the hook; at least for now.

Peter McGlon