About a year ago I became aware that Gunns had purchased a 31.79 hectares area on title 152545/1 of Informal Reserve, managed for protection, within Tippogoree Hills State Forest to the east of the East Tamar Highway on which to construct the solid waste disposal facility for its proposed pulp mill.
I have attached a map showing the location of the land sold to Gunns and revoked from State forest informal reserve cross hatched in red.
I fail to understand how a private company could possibly be given the opportunity to buy a public reserve for controversial commercial development without community consultation and my own research failed to provide any evidence that the sale of this land complied with all statutory regulations. I therefore requested further details of the sale under the Right to Information Act on 18 April 2012.
Just over six months later I received a thick bundle of double sided documentation comprising some 312 pages from DPIPWE dated 26 October 2012 in response to my request. However DPIPWE advised me that all the information contained on 165 pages and some of the information contained on 17 pages “is exempt from disclosure … on the ground of legal professional privilege”.
My analysis of the documentation reveals that the entire process has been conducted in secret and its legal validity is open to conjecture.
The documentation shows that the contract to purchase the Crown land was initially prepared on 5 September 2007 prior to it being revoked as State forest on 5 December 2007.
There is no record in the documentation of a draft proclamation as defined in Section 15 (1) and (2) of the Forestry Act 1920 which requires that “(a) a draft of the proclamation referred to in that subsection has been approved by each House of Parliament; or (b) the Tasmanian Planning Commission has recommended that the dedication of the land as State forest be revoked.”
Although there is an email from Forestry Tasmania to DPIPWE dated 3 September 2007 describing the revocation process which requires to be approved by Parliament, there is no evidence from the documentation provided, or from my searches on Hansard, that this process was followed. I can therefore only presume that the Parliamentary approval was considered to be given by virtue of the approval of the Pulp Mill Assessment Act 2007 which was given Royal Assent on 30 April 2007 and the Pulp Mill Permit dated 21 August 2007.
The project description and accompanying map in Volume 1 of Gunns IIS (Volume 1: 6-378) shows the location of the solid waste disposal area/quarry on the area of State forest which was subsequently revoked but fails to mention that it is on Crown land.
Similarly, the description of the landfill and quarry also fails to mention this fact.
I have summarised the main aspects of the information received from DPIPWE in chronological order as follows:
13 September 2005 - Crown Land Services responded to Gunns application to purchase the Crown land by informing them that it would “start considering a draft Sale Agreement”.
24 July 2006 - The Crown land was subsequently valued and the Valuer-General recommended a sale price of $118,788 excl GST. This included a valuation of $13,788 for the standing timber (E. amygdalina on dolerite) at the stumpage rate of $9 per tonne. (NB the current land value for the entire pulp mill site is $3,400,000 comprising 590.70 hectares for the main site and 31.79 hectares for the former Crown land. By apportionment the Crown land would have a value of $173,635 which is considerably more than the sale price).
http://www.thelist.tas.gov.au/thelistprod/list_adjustmentfactor.search?p_dummy=X (Property ID 2936339)
5 September 2007 - Crown Land Management made a recommendation to Minister Llewellyn to approve the sale of the Crown land subject to:
• Forestry Tasmania revoking the land from State forest
• Gunns entering into a conservation covenant over other land owned by Gunns at Ben Lomond in an equivalent area
• Gunns entering an unconditional contract to purchase land from Rio Tinto adjacent to the Crown land
• Gunns pay market value for the Crown land as determined by the Director-General of Lands and any associated sale costs
The background to this recommendation states that “Parliament has approved the Gunns Limited Pulp Mill development at Bell Bay” and “As part of the project the Government negotiated sale of 31.77ha of Crown land (State Forest) adjacent to the proposed mill site”.
5 September 2007 - A draft contract of sale was prepared by Crown Lands Management which required Gunns to enter into a conservation covenant within 60 days.
12 October 2007 - The Director of Mines states in a letter to Forestry Tasmania that he does not support the sale of the Crown land as it has potential to sterilise the bluestone/dolerite resource which may be worth in excess of $600,000 a year for the Retention Licence which covers the property.
7 November 2007 - The Resource Management and Conservation Division informs Gunns by letter of the conservation covenant requirements which may take up to 6 months to implement.
23 November 2007 - A revised contract of sale was prepared by Crown Lands Management which amended the requirements for Gunns to enter into a conservation covenant within 6 months instead of 60 days.
5 December 2007 - The State forest (formerly titled Lot 1 on Plan number 7928 - 31.8 hectares) was revoked by Proclamation.
10 January 2008 - The revised contract agreement was executed by Gunns and a deposit paid.
14 January 2008 - The contract was completed apart from the terms of the conservation covenant.
6 March 2008 - Gunns paid the balance of the purchase price for the Crown land amounting to $118,878.80 incl. GST.
17 March 08 - Gunns paid the Crown law costs and valuation fees amounting to $1,934.90 incl. GST.
11 July 2008 - Gunns emailed DPIPWE informing them it had now satisfied the outstanding condition of the contract by executing the conservation covenant which would be delivered to DPIPWE on 14 July 2008.
28 July 2008 – the tile deeds for the conservation covenant at Patersonia (Ben Lomond) were executed (Plan CPR 8237).
I have also been provided with a copy of the conservation covenant on the pulp mill site itself which was executed on 19 October 2009 (Plan CPR 8623).
Now that Gunns is in administration and is likely to be liquidated I fail to see how the terms of covenants can be upheld and this would breach the conditions of the Federal approval under which the covenant was established.
The Federal Minister has the power to revoke the approval in accordance with the grounds stated in Sub-Section 2B of Section 145 of the EPBC Act as follows:
The Minister may, by written instrument, revoke an approval under this Part for the purposes of a specified provision of Part 3 if:
(i) the Minister believes on reasonable grounds that there has been a contravention of a condition attached to the approval; or
(ii) if a condition attached to the approval is to the effect that the approval is subject to a thing being done within a particular time—the Minister believes on reasonable grounds that the thing has not been done within that time; and
(b) the Minister is satisfied that:
(i) the approval would not have been granted without that condition being attached; or
(ii) because of the failure to comply with the requirement, the revocation is reasonably necessary to protect a matter protected by a provision of Part 3 for which the approval has effect.
Furthermore, the Minister may also revoke the approval under the Condition 45 of the Federal Approval:
“If, at any time after five years from the date of this approval (4 October 2007), the Minister notifies Gunns Limited in writing that the Minister is not satisfied that there has been substantial commencement of construction of the pulp mill, then this approval lapses and the action must not thereafter be commenced.”
Although the area of the former Cown land comprises a relatively small portion of the overall site for the proposed pulp mill it should be noted that the main site was formerly a Private Conservation Area (Sanctuary) and classified as IUCN Category V where the interaction of people and nature over time has produced an area of distinct character with significant ecological, biological, cultural and scenic value: and where safeguarding the integrity of this interaction is vital to protecting and sustaining the area and its associated nature conservation and other values.
However, this status was revoked by the Tasmanian State Government in 2007 (under section 21 of the Nature Conservation Act 2002).
I have been unable to determine whether due process was followed but have found the following proclamation to revoke part of the area made by then Governor, William Cox and David Llewellyn on 17 September 2007:
When Gunn’s referred the proposal under the provisions of the EPBC Act on 30 March 2007 the site was described by Gunns as follows:
4.2 (k) Other important or unique values of the environment
The Project Area is in the vicinity of the Tippogoree Hills Forest Reserve.
The Pulp Mill Site is identified as being within the Long Reach Private Sanctuary and Long Reach Conservation Area pursuant to the Nature Conservation Act 2002. The Long Reach Conservation Area comprises the narrow coastal area along the foreshore and the existing rail line. The Long Reach Private Sanctuary comprises 607 ha, which includes the woodchip mill, thermal power station, railway line and golf course. The area was first declared a sanctuary in 1952 under the Animals and Birds Protection Act 1928 at the request of the owners, the then Australian Aluminium Production Commission (now Comalco).
Comalco subsequently approached the then National Parks and Wildlife Service (PWS) in 1986 and again following the rezoning of the site to Major Industrial Zone under the Planning Scheme with the intent to revoke the conservation status. This is yet to occur.
The State Forest area for the solid waste disposal area is an Informal Reserve. Informal Reserves are areas on State Forest, other than a Forest Reserve, that are managed as a protection zone under the Management Decision Classification System. An informal reserve can also be an administrative reserve on public land that is managed to protect CAR values.
In my opinion the circumstances regarding this matter should be subject to a comprehensive independent investigation such as that being carried out by ICAC in NSW in respect of the Obeid case. Tasmania’s Integrity Commission has neither the power nor the willing to carry out such an investigation. I also consider that all the permits relating to the pulp mill should be extinguished and the land returned to the public for community benefit.
Finally, I have been advised that DPIPWE is working on a routine disclosure register that would include copies of RTI Assessed Disclosures, where there is no legal impediment to publication of the information. However, until that is up and running Tim Eldridge of DPIPWE has advised me that he would be happy to provide any other interested parties with a copy of the information released to me.
His email address is:
RTI decision dated 26 October 2012
List Map and Land Value
Terms of Covenant – Pecks Hill Patersonia (Ben Lomond)
CPR8237 – Pecks Hill Patersonia (Ben Lomond)
Terms of Covenant – Pulp Mill Site
CPR8623 – Pulp Mill Site
Since compiling this article the http://www.gunnspulpmill.com.au website and all associated links have been removed from the public domain. Hopefully the permits will soon also end up being extinguished.
However, full details of the Federal assessment under the EPBC Act, including Gunns’ Referral can be found here:
Malcolm Mars is a Chartered Quantity Surveyor who lives in Taroona
• ABC Online: Gunns creditors unlikely to recover debts
A report by the administrators of collapsed Tasmanian timber company Gunns says unsecured creditors are unlikely to recover their debts.
PPB Advisory’s report says it is also unlikely banks will recover the $440 million owed to them by the failed company.
The report was released to creditors on Monday afternoon.
It says the downturn in the woodchip industry contributed to Gunns’ collapse in September.
But PPB Advisory notes the company was insolvent for at least four days before it was appointed and may have had solvency problems six months before the collapse.
The administrators are yet to decide exactly when the company became insolvent and say more investigation is needed.
But they say they have found three instances where funds from plantation growers or other companies may have been used to keep Gunns running.
• Ed: For years TT 2011 Tasmanian of the Year John Lawrence ( TT Archive here ), ( John Lawrence blog, Tasfintalk, here ) warned of the pending MIS and Gunns Ltd disaster. Then there were Jarvis Cocker’s extensive analyses, going back to 2006, TT HERE. Then there was The definitive Richard Flanagan article, Gunns Out of Control, published in 2009, HERE
Few listened ...