Lawyers For Forests Case is now open

This summary was released on 16 June 2008 by Lawyers for Forests as general information for the public. It does not constitute legal opinion or a view as to the merits of the case. The trial started on 18 June before Justice Tracey in the Federal Court in Melbourne.

Case Summary
On 4 October 2007, the then Federal Environment Minister, Malcolm Turnbull, approved the construction and operation of Gunns’ pulp mill in the Tamar Valley, Tasmania, under the Environment Protection and Biodiversity Conservation Act 1999 (“the Act”). The decision imposed 48 conditions on the approval of the mill.

LFF is concerned about the significant impact that the mill will have on the environment, including on the marine environment, native forests and the species that rely on those habitats. LFF is also concerned to ensure that the decision to approve the mill complies with the law.

LFF is challenging the Minister’s decision on 9 grounds, many of which relate to the Minister approving the mill without knowing its environmental impacts. The conditions attached to the decision require further scientific testing to determine the impact of the mill’s toxic effluent (dioxins and furans - which are the most toxic known to science). LFF believes that this testing should have been part of the assessment before the approval decision was made.

The conditions allow the mill to produce a volume of toxic effluent that is simply that set by Gunns, which is absent any proper scientific measurement.

There have been previous proceedings brought by The Wilderness Society and The Investors for the Future of Tasmania relating to the Minister’s earlier decision about the assessment process for the mill. The case brought by LFF is the only case challenging the approval decision.

If the LFF challenge is successful, the approval decision will be set aside. Gunns’ pulp mill would not have Federal government approval and Minister Garrett would need to consider and decide the issue again.

After LFF launched its case in December last year, Gunns Ltd applied for an order that LFF pay “security for costs” (estimated to be in the order of $100,000) before the case be allowed to proceed. If Gunns had been successful in that application, LFF would have been forced to discontinue the case as it did not have the money. On 30 April 2008, Justice Marshall ruled against Gunns, deciding that, in the circumstances, to make the order for security for costs:

“would stifle the litigation and prevent an applicant ... from agitating a matter which it considers to involve questions of public importance and which seems, on the material currently before the Court, to be made bona fide and raises arguable questions of law.”
This was a welcome precedent for public interest cases, and for access to justice. Gunns was ordered to pay LFF’s costs for that hearing.

Gunns and the Minister also sought to prevent LFF from introducing expert evidence from Professor Andrew Wadsley. On 4 June 2008, Justice Tracey ruled against introducing evidence by affidavit, allowing instead some of the evidence to be put by way of submissions from LFF, avoiding the need for Professor Wadsley to attend Court to give evidence.



Summary of Grounds
Lawyers for Forests is seeking judicial review of the Federal Environment Minister’s decision to approve Gunns’ Tamar Valley pulp mill. The judicial review process challenges the way the Minister made the decision to approve the pulp mill. It does not review the merits of the decision. It reviews whether or not the decision was made lawfully on the following grounds:

1. The Act does not allow the Minister to impose the conditions that he did, as the conditions create a scheme that is outside that allowed by the Act.

2. The Minister did not take account of the “precautionary principle” in that he used lack of scientific certainty as a reason for postponing a measure to prevent degradation of the environment when there are threats of serious or irreversible environmental damage.

3. The Minister did not have enough information to make an informed decision as to whether to approve the mill, when the Act requires that he have enough information.

4. The Minister did not seek further information before making his decision, when the Act requires that he seek further information before making the decision.

5. The Minister made the decision before assessing all of the relevant impacts in circumstances where information about those impacts was available, which is inconsistent with the Act.

6. The Minister improperly exercised his powers under the Act because no reasonable person could have made the decision that was made by the Minister in the circumstances in which he made it.

7. The Minister improperly exercised his powers under the Act because the result of the decision was uncertain.

8. There was no evidence before the Minister to justify using a Canadian guideline to set maximum limits for the concentration of toxic chemicals in sediments (Condition 42).

9. The imposition of Condition 42 setting a maximum limit for toxic chemicals in ocean sediments based on a Canadian freshwater guideline was irrational.

Gunns push back construction date

Gunns yet to secure financing for mill.

From Business Spectator

Construction of Gunns Limited’s controversial $2.1 billion pulp mill in Tasmania is set to be delayed after the company pushed back an internal deadline for the finalisation of a banking syndicate, reports The Australian Financial Review.

According to the paper, Gunns was aiming to secure the financing for the project by June 30, but has now conceded that more time will be needed to complete the funding.

A Gunns spokesperson said there was no deadline set on the financing and there was still significant interest for the project in the financial community,

Construction on the project was scheduled to start in September

The project has generated significant opposition from environmentalist and looked in trouble last month when the Australia and New Zealand Banking Group confirmed that it will not be funding the pulp mill.

Gunns has since opted for overseas sources to secure the funding.

Students Of Sustainability

Hey everyone. As some of you may have heard, Students of Sustainability is coming up soon and it is a great experience for anyone wanting to get their teeth into some good environmental activities. It is definitely one of the most politically conscious, and well organised student events, and it happens every year.

This year's Conference will be held over the semester break from July 5th to 10th at Newcastle University
The conference will provide some of the following events:
Ø A variety of workshops facilitated by conference participants and guest speakers;
Ø Time for students from different states to convene to discuss pertinent campaigns;
Ø A variety of both international and nationally renowned guest speakers; and
Ø Opportunity to share our own skills with other participants.

For those who are interested, Utas student Jesika Essex is organising funding grants, and is co-ordinating alot of Tasmanian participation. If you want to get involved or just want to find out more, contact her at jes_wif_one_s@yahoo.com.au. The SoS website is www. studentsofsustainability.org.

Alby
SAPM

Questions over pulp mill design work

The firm designing Gunns' $2 billion northern Tasmanian pulp mill has not denied claims it has been asked to stop all work on the project.

Last year Launceston engineering firm, Pitt and Sherry, was looking for 100 staff to design the site infrastructure and buildings for the proposed pulp mill in the Tamar Valley.

But yesterday the firm's managing director, John Pitt, would not comment on speculation Gunns has told the company to stop all design work.

His assistant said Gunns had not authorised Mr Pitt to talk.

Pitt and Sherry's media spokesman did not officially respond to the claims from a number of sources, while Gunns' chairman, John Gay, did not return calls.

Last week Gunns' main banker, the ANZ, announced it would not fund the pulp mill.

Mr Gay is now looking overseas for finance, but some commentators say it will be hard to win backers in the global credit squeeze.

ANZ dumps mill, Lennon quits

Tasmanian Labor Premier Paul Lennon resigned suddenly on May 26, after an opinion poll revealed his popularity had dived to just 17%, and 39% of voters would have preferred Liberal leader Will Hodgman as premier.

The Lennon government has been losing support for a long time as a result of a series of corruption scandals that caused the resignation of two deputy premiers, as well as its entrenched support for the unpopular Gunns’ pulp mill in the Tamar Valley.

The relationship between the state government and woodchipping company Gunns Ltd was widely seen as being too close, with Gunns accused of having an unacceptable amount of influence over the government.

This was typified in a deal made public three weeks ago that guarantees Gunns $15 million of taxpayer-funded compensation if the supply of wood to their pulp mill is restricted as a result of further forest protection by any future government.

The new premier, David Bartlett, is relatively new to politics, having only been in parliament for four years, and in the role of deputy premier for six weeks. He voted in favour of the pulp mill when approval for it came before parliament last year, but he is not as enthusiastic about the mill as Lennon was.

In an interview on ABC’s Lateline, on May 26 — the same day he was sworn in as premier, Bartlett said about the mill, “Some would say we’ve done more than enough as a government. I believe it’s now firmly up to the company and their financiers to see whether this project goes ahead.” He has ruled out spending $65 million of public money on a pipeline for the mill, which the former premier was considering.

Gunns could find it difficult to build this pipeline on the private land of residents in the Tamar Valley, who are bitterly opposed to the mill, without government powers to compulsorily acquire the land. Bartlett also told Lateline that his government might re-examine its position on old-growth logging in Tasmania.

Bob McMahon, spokesperson for Tasmanians Against the Pulp mill, told Green Left Weekly: “Lennon’s government was like the Titanic that hit the iceberg known as the pulp mill. Lennon went down with his ship and it would be very foolish for Bartlett to launch the Titanic 2. Unless Bartlett does a U-turn, and completely redirects Tasmania’s economy away from its reliance on the logging industry then he will follow Lennon.”

In the week leading up to Lennon’s resignation, it was reported that the ANZ Bank had decided not to fund the project. A significant campaign has been waged against ANZ over the past year to pressure them not to fund the pulp mill. They have been Gunns’ chief financial backers for the past 15 years.

On May 29, ANZ released a statement confirming that funding for the mill will not go ahead but the bank will continue to fund Gunns’ other projects.

This is a significant setback for the mill, and it now looks unlikely that construction will begin in July as planned. Gunns is currently seeking funding from international banks but the Wilderness Society, in a May 29 statement warned, “Any bank that steps in to finance the proposed paper mill would risk major negative publicity and becoming the target of concerted civil society organisations’ campaigns”.

McMahon told GLW, “The pulp mill is as good as gone but the battle isn’t over. The pulp mill is just a symptom of a larger problem that needs to be rooted out. That problem is the public subsidies for the logging industry and the sinister way the logging industry controls this state.”

Federal environment minister Peter Garrett has approved another stage of the mill, allowing construction to begin on workers’ accommodation on the outskirts of George Town. The facility is expected to house up to 800 workers for two years.