The betrayal of the Tamar Valley

Wednesday, August 27, 2008 may well become the most important day in the political lives of all sitting Labor and Liberal members of Tasmania’s House of Assembly.

On that day, in Launceston, all members of the Bartlett Labor Government and the Hodgman Liberal Opposition in the lower house of the Tasmanian Parliament rejected Kim Booth’s private member’s bill to repeal the Pulp Mill Assessment Act 2007 (PMAA), thereby renewing their commitment to the PMAA in its entirety, endorsing all sections of the legislation as it stands and all associated conditions in the Pulp Mill Permit (PMP).

Now it is no longer possible for any of these politicians to claim unease or discomfort or shame associated with the “fast-tracking” of the legislation in 2007, entailing the abandonment of established planning and parliamentary processes. It is not now possible for them to argue (as some are reported to have done) that a variety of pressures caused them to overlook their responsibilities to proper processes and their responsibilities to the maintenance of democratic parliamentary practices.

Nor is it possible for any of these politicians to escape their personal responsibility for the methods used to prepare the legislation, methods still withheld from public scrutiny. The precedent has now been set by these people for the Tasmanian Parliament to operate without regard for due process in the future, and for legislation to be prepared, influenced and written in ways and means hidden from public view, and then “fast tracked”.

There is no reason at all why these same politicians, or others in the future with similar derelict attitudes and values, will not repeat this legislative pattern, if they believe it suits their interests.

Now that the Tasmanian Parliament has ensured that the PMAA remains law, in all its provisions, and demonstrated clearly that it “is right behind the pulp mill project”, in the words of a Gunns’ spokesman, it is in the interests of Tasmanians, particularly in the Tamar Valley, to understand clearly the position they face into the indefinite future in relation to the PMAA.

An experienced Australian economist, with over 30 years of professional life under his belt, including senior management positions, and in recent years consultancy roles in China, divulged privately, the day after Kim Booth’s bill was thrown out, that the PMAA showed unequivocally that the Tasmanian Labor Government and the Liberal opposition had no interest in the welfare of people living in the Tamar Valley, or of the future prospects of the Valley’s communities or businesses if they were disadvantaged or destroyed by Gunns’ pulp mill.

The economist, who has not been involved in any way in the divisive pulp mill debate, and has given no media interviews and made no public statements either for or against the project, expressed his views in the light of David Bartlett’s comment (in his parliamentary reply opposing Booth’s bill) that he would not allow the pulp mill to be built if he believed “there was any possibility in his heart of hearts” that the mill would cause damage to the Tamar Valley and its people.

The public record shows, as a majority of Tasmanians must surely now know, that no consideration was given to any possible or potential social, economic or environmental impacts of the mill on anything at all in the Tamar Valley. This is not just an opinion. It is a matter of fact.

No base line studies were done on any industry in the Tamar Valley. No independent advice was taken into account about possible adverse effects of the mill, whatever the source. The only advice taken into account was that provided by the proponent or advisers to the proponent. All other advice was ignored, whether it was medical, scientific, engineering or anything else. The most obvious example of this is the advice of the AMA, and the pleas for caution by more than 80 Tasmanian medical practitioners, all dismissed out of hand by Labor and Liberal politicians, including David Bartlett.

As far as the two major parties are concerned, at all levels of government, and as far as a majority of “independent” Tasmanian MLCs are concerned, the people in the Tamar Valley are on their own. What this means in real terms, as UTAS constitutional lawyer Michael Stokes has written, is that “a lack of base line readings will make any challenge difficult except in extreme cases because of the lack of evidence”.

That is just the beginning. In writing, as distinct from simply leaving from consideration, is Section 11 of the PMAA, designed to prevent common law challenges to anything “arising out of or relating to any assessment or approval of the (pulp mill) project”. In this context, it should not be overlooked that Section 11 also applies to the Pulp Mill Permit, and prevents appeals to all future “permits, licences or other approvals as may be necessary for the project”, that are not currently in the PMAA. The full extent and range of this statute bar may or may not be clarified by the Supreme Court action currently undertaken by Environment Tasmania and a group of Tamar Valley farmers.

Statute bars such as this, deliberately designed to weaken or prevent the capacity of people to seek legal redress, also weaken democracy at a fundamental level, always eroding the already flimsy fabric of the separation of judicial and executive power in the Tasmanian political system.

This is not all. Less well known, because less well publicised, are other sections of the legislation that could limit further the normal democratic rights of people under the law. Michael Stokes has said that he is “as worried about conditions 8 and 9 of the PMP as much as Section 11 of the PMAA”. Let us see what he says in more detail:

Conditions 8 and 9 of the PMP attempt to remove the duty of the agency responsible for enforcing each condition to the extent of its powers (specified in Section 8 of the PMAA) by effectively stating that a breach of the condition only occurs if the enforcement agency is of the opinion that it has occurred and notifies Gunns to that effect. Although that opinion must be reasonable, it gives a discretion to enforcement agencies which the PMAA did not give.

Equally importantly, it undermines the right of members of the public to seek civil enforcement remedies under the Land Use Planning and Approvals Act (LUPAA section 64) and the Environmental Management and Pollution Act (EMPCA section 48). These remedies are much cheaper and quicker than Supreme Court action. Conditions 8 and 9 of the PMP mean that the public can only exercise these rights after the relevant agency has formed the opinion that there has been a breach and served notice to that effect on Gunns. Therefore the public’s rights under section 48 of EMPCA and section 64 of LUPAA are made to depend upon the agency’s having issued a notice.

In other words, instead of protecting people, property and business in the Tamar Valley from the possibility of damage to the health and livelihood of communities there, for example by specifying in the PMAA and the PMP that baseline studies be carried out for those purposes, and by ensuring that people had proper avenues for redress, the Tasmanian Parliament has done the opposite.

The Tasmanian Parliament has gone out of its way to place major obstacles before the people of the Tamar Valley in the pulp mill legislation of 2007, having deliberately designed it, in a variety of ways, to deny access to the courts for individuals seeking redress for loss, and by ensuring the virtual impossibility of civil enforcement actions for conditions in the PMP.

As it becomes more and more certain that Gunns will not be able to finance the mill alone, it is worth looking at the definition in the legislation for the project proponent, called “person responsible”. Here it is:

Person responsible means Gunns Limited, including its officers, employees, agents and contractors, or any body corporate, or joint venture, or other person, their officers, employees, agents and contractors, to which Gunns Limited sells, assigns or otherwise transfers in whole or in part its rights and obligations under the PMAA.

This part of the legislation is significant, because just as Gunns has moved from its public position of building the mill on the back of credit to a joint venture operation, so it will move to sell when it thinks the time is right. The PMAA is designed for exactly that scenario, clearly and thoroughly endorsed by the Bartlett Government and Hodgman Opposition in Launceston on August 27 this year.

The groundwork in the Tasmanian mainstream print media to prepare the public for a transition to a joint venture or sale has begun in earnest, with Mercury columnist Greg Barns leading the charge, spruiking the benefits of an alliance between Gunns and the Indian or Chinese paper industries. Other commentators, such as Piers Akerman and Robert Gottliebsen, have ramped up their efforts in other ways on Gunns’ behalf, and both the Tasmanian and federal Labor governments have allowed timelines to be extended for Gunns into 2009, and no doubt will continue to do so at Gunns’ request, or by invitation.

In particular, the tendentiousness of David Bartlett’s “line in the sand” claim that the sovereign risk agreement with Gunns would not be renewed after November 30, 2008, has been amplified by his willingness to allow the wood supply deal for the pulp mill to continue into 2009, when Gunns will be better positioned, especially in relation to permit approvals from Peter Garrett, to launch a joint venture or sell the project.

It’s all there in the Pulp Mill Assessment Act and the Pulp Mill Permit.

So we must work to continue the democratic fight against forgetting, against silence, against unjust law, and against politicians and political parties who/which elevate private gain over public good. For they were given an opportunity to look back, to see what they legislated in the PMAA in 2007, and to insist on knowing the truth.

That’s the least they might have done. But they are genuinely, in their “heart of hearts”, totally unconcerned about the possible social, environmental and economic costs of the PMAA.