The betrayal of the Tamar Valley

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.