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GARRY STANNUS:

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Malcolm of Hobart, this weekend (17th Sept) in TT published a response received to his FOI request seeking whatever legal advice had been received by the EPA on the question of substantial commencement of the pulp mill. [#29 at ]http://tasmaniantimes.com/index.php?/article/meanwhile-gunns-expects-to-finalise-/]

His starting point had been a Mercury link [http://www.themercury.com.au/article/2011/08/27/256621_todays-news.html] to the 27th Aug, and it had prompted his request under FOI to the EPA. The relevant officer, Bobbie O’Brien replied and included a link to a ‘File note – Gunns permits’, written by Alex Schaap after a discussion with Calton Frame (Gunns Ltd). These documents showed that the EPA had received Malcolm’s request on 29th Aug. It would be interesting to know for certain whether the EPA had not sought advice by the time the nominal expiry date (c.30th Aug) had been reached.  In any case, according to the ‘File note - Gunns Permit’ which Bobbie had released, by 22nd August Alex Schaap had informed Gunns that he would not seek to clarify substantial commencement unless Gunns asked him to approve or issue things such as “a site plan, permit variation or EPN”.

Two days later, on the 24th of Aug, the Minister for Infrastructure, David O’Byrne, said that “It is out of our hands. The regulator and the independent process has been established and needs to run its course.”[http://www.abc.net.au/news/2011-08-24/20110824-pulp-mill-permits-down-to-courts/2853388]

On the same day, the Premier, Lara Giddings is reported as saying:  “Tasmanians have not wanted politicians directly making decisions over the Gunns pulp mill.  They have said they want an independent process, they don’t want this to be a political issue. So it’s absolutely critical that people understand that these issues around permits are issues for independent statutory bodies within government.”  She was stressing a permit process ‘independent of the State Government’:  “I don’t have any say over whether or not those permits are continuing whether or not they’re are conditions within the permits which will need addressing. These are issues which are at arms length from government”.

AT ARMS LENGTH FROM GOVERNMENT:

I now read in the Examiner (17 Sep: http://www.examiner.com.au/news/local/news/business/gunns-could-announce-mill-partner-monday/2294868.aspx) that both Alex Schaap and Greg L’Estrange have been in Canberra this week ‘...talking to federal government bureaucrats’.  The article also referred to an EPA spokeswoman (Bobbie O’Brien?) saying that Mr Schaap was still waiting on advice before making a decision on whether Gunns had met a permit condition requiring substantial commencement on the pulp mill.

Malcolm of Hobart has in a further T.T. comment, revealed that his FOI letter from Bobbie was by email, on the 16th September.  How is is that Mr Schaap was ‘still waiting on advice’ on the 16th, but that this was not disclosed to Malcolm in the O’Brien EPA FOI response?  It’s all a bit confusing.

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LITTLE DAMS ARE LEGAL?

What a state of affairs. Subsequent to Mr Schaap’s phone conversation with Calton Frame, (of Gunns Ltd), it is said that Gunns contractors had commenced a series of ‘little dams’ which didn’t require a permit because they were less than 1ML in size. And yet it is suggested that they are in the same location as two of the three dams whose permits did unquestionably expire last month. Photographs taken on 16th Sept suggests that these ‘mini dams’ are in fact smaller parts of ‘the whole’.  That is, that in two of the pictures that can be seen accompanying this article, twin dams can be seen which seem to share one outer wall, with lesser dividing walls separating them into cells, for want of a better word.

Q&A:

1 The very clear intention of the PMAA 2007 is that the Pulp Mill Permit was to lapse in August 2011 if a substantial commencement of the Project had not occurred by then.

Q Why was Mr Schaap allowing work to subsequently commence in the absence of a Pulp Mill Permit?

2 The very clear intention of the PMAA 2007 is that all LUPAA-related Project permits, taken by the PMAA 2007 to be issued under the LUPAA 1993, were to lapse upon the expiration of the Pulp Mill Permit (which would happen if the Project had not substantially commenced by the expiry date).

Q Was it not incumbent on Mr Schaap, as Director of the EPA, to have informed himself of these matters before the expiry of the Pulp Mill Permit and before the lapsing of the LUPAA-related-permits did actually occur?

3 The very clear intention of the PMAA 2007 is that permits taken to have been issued under the WMA 1999 would expire if substantial completion of the works authorised by those permits (Schedules WM1-4) had not occurred before the end of August 2011.

Q Why did the Director not issue a direction to Gunns to desist from all miscellaneous dam-related earthworks due to the expiration of permits (WM4) which occurred as a result of that company’s failure to substantially complete said works by last month?

It can be seen that Alex Schaap sent/cc’d the ‘File note - Gunns permit’ to 3 Departmental colleagues and also to Brad Arkell, Senior Advisor to Brian Wightman (the Attorney-General, Minister for Justice, Minister for Environment, Parks and Heritage). Publicly the government and the bureaucracy pretend to remain at arms distance. Privately their actions are suggestive of maladroit attempts to manage a way around the expiration of the Permit.

I’m looking down the Tamar Valley from my Balfour perch. It is the morning of the 18th of September. The roofs of houses that John Batman knew, lie before me, just as he might have seen them, glinting in the light of spring. Beyond the Bunya Pine, is Princes Square. On this same corner of Charles St, some weeks ago, I saw a man, quietly dressed, make his way down Canning across Charles. He just looked like any forlorn middle-aged guy, nice cotton shirt, shaved, at the wheel of a 4WD in good condition. He drove gently through the roundabout – he had a little dog by his side. It was on the front seat, front two feet up on the dash below the mirror, close to him. Is he happy, this former Chairman-CEO?  And at the same time, how are we? What more can I say? Fill in the dots yourselves … you know who he is, you know the position we still are in, we suspect the government will never relent. And so we remain condemned to struggle on – the pulp mill being our existential hell.  It seems we can never be free of its threat. 

Princes Square, beyond the Bunya, is a significant area, which recalls the movement for the abolition of convict transportation and the call for self government. There was yesterday an absolutely wonderful, cloud-free sky over Launceston. Sunday morning. As I looked out over this most beautiful town and valley however, I was lost for words when I read our Attorney-General, Brian Wightman’s abrogation of responsibility, encapsulated in his Media Release of the 31st August:

MEDIA RELEASE
31 Aug 2011:

The Attorney-General, Brian Wightman, said he would not intervene in the issue of pulp mill permits.  “Independent regulators will decide whether the permits for Gunns’ proposed pulp mill are valid and I do not believe that the public want to see politicians meddling in that process,” Mr Wightman said.  He continued:  “The Director of the EPA, Alex Schaap, has received a request from Gunns for a minor variation to the storm water management plan on the pulp mill site. This has triggered the process for determining whether Gunns has a valid permit. Mr Schaap has requested the company make a submission explaining why it believes substantial commencement has occurred and he will seek legal advice before making a determination. This is as it should be – proper process, at arm’s length from Government.”

and in

THE WEEKLY TIMES:
31 Aug:

TASMANIA’S Environmental Protection Authority will make a key decision about the validity of permits issued to Gunns’ northern Tasmanian pulp mill.

The EPA permits for the Tamar Valley mill, which were issued on the condition there was “substantial commencement” on the $2.5 billion project by yesterday, may now have expired. EPA director Alex Schaap said today he had been asked to approve a minor variation on a stormwater management plan.

“In order to establish if the permit has lapsed, I will need to determine if substantial commencement has occurred,” Mr Schaap said.

“I have requested that Gunns provide me with a submission setting out the reasons why the company believes substantial commencement has occurred. “I will then take legal advice on the issues raised before making a determination on whether substantial commencement has occurred and hence whether or not the permit has lapsed.”

Tasmanian Premier Lara Giddings and Attorney-General Brian Wightman have so far declined to intervene in the matter.

and in
THE MERCURY 1st Sep,

http://www.themercury.com.au/article/2011/09/01/257891_tasmania-news.html

TASMANIANS could have an outcome to the seven-year Gunns pulp mill saga within 10 days.
[...]
Now that the Pulp Mill Permit had expired, the Mercury report told us that Alex Schaap as of 31st August was now prepared to try and determine if Gunns had substantially commenced the Project and therefore if permits were still valid. The Mercury wrote that Mr Schaap had noted that the permits to build dams on the site had expired:  “That means that the works on stormwater dams cannot continue, and that may well mean that works come to a halt,” he said. 

MY COMMENT: 

But readers can see with their own eyes that despite Mr Schaap’s words, works on stormwater dams did commence and then continue after the 31 August. 

$Give.00

Ladies and gentlemen, if you disagree with such a concerted government ‘look the other way’ and if you think the EPA has assisted Gunns to now begin earthworks in the absence of a permit, and if you have a wallet commensurate with your attitude, you could do worse than contribute to the court action which challenges this governmental avoidance of duty. Support the court action which calls for the prosecution of Gunns, for working on the project site after the Pulp Mill Permit has expired.

DONATIONS TO:
NAME OF ACCOUNT: “Pulp the Mill - legal fund”
BSB: 633-000
Acc: 138361738

“That means that the works on stormwater dams cannot continue, and that may well mean that [all project] works come to a halt,” he said – while not having told Gunns he would stop them continuing…  (A. Schaap)

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• JOHN HAWKINS: An earlier perspective ...

This important well written letter to Turnbull by Alistair Graham of the TCT contains a principle actionable at this very moment in time despite being 4 years old, I quote:

“ Section 8 of the State Government’s permit states that “Every requirement in a condition of the Pulp Mill Permit is to be read as requiring that the action to which it refers is to be substantially performed…” (our highlighting). “Substantially performed” has not been adequately defined. It therefore appears that the Tasmanian permit conditions do not necessarily place any practical limit on pollution of Bass Strait by effluent from the proposed pulp mill leaving an unhealthy level of discretion in the hands of public servants subject to ministerial influence or direction. Note that this critical weakness is not addressed by the Lennon governments oft-repeated announcement of its intention to create a so-called Environmental Protection Authority – amounting to no more than a cosmetic change to the status quo.”

A situation has now arisen in that Schaap of the EPA has to make a decision independent of Government which can bring down the Pulp Mill, a decision over two words “Substantially Commenced” it is patently obvious to even the school dunce standing in the corner facing the wall wearing his dunce’s hat that building a pulp mill on the Longreach site has not commenced.

Grahams words have come true “…. Leaving an unhealthy level of discretion in the hands of public servants SUBJECT TO MINISTERIAL INFLUENCE OR DIRECTION. Note that this critical weakness is not addressed by the Lennon governments oft-repeated announcement of its intention to create a so-called Environmental Protection Authority – amounting to no more than a cosmetic change to the status quo”.

Which way will Schaap jump, a mill or no mill? That is the question that those breathing down his neck need him to answer.

John Hawkins

Download, read the full document:

a_graham_turnbull.pdf