Mill plans hit another obstacle

Matthew Denholm Australian

THE Gunns pulp mill proposed for Tasmania has had another setback, with legal advice that itcannot build a vital water pipeline for the project across public land. Gunns had asked the West Tamar Council for permission for the pipeline to cross council-owned land at seven points. Legal advice sought by anti-mill councillor Karl Stevens and obtained by The Weekend Australian concludes it would be illegal for the pipeline to be built on public land. The advice to Mr Stevens, provided by Melbourne-based Bleyer Lawyers, concludes: “We are of the view that the council cannot allow the pipeline to be constructed across its land.” This conflicts with advice thecouncil received from Launceston-based lawyer Shaun McElwaine, who also provides legal advice to Gunns. Mr McElwaine advised council on August 8: “Gunns Ltd has a statutory right to enter land in order to implement the terms of its (pulp mill) permit. Council has no power to refuse consent.” Vanessa Bleyer, who acts for the Lawyers for Forests group, said she believed Mr McElwaine’s advice was wrong. Her firm had concluded that, as the land in question was public land, it could not be used for private purposes, such as a pipeline serving a business. Separate informal advice from University of Tasmania senior law lecturer Michael Stokes suggests that if the council sought to grant Gunns an easement over the land, this would require a full planning process. This would mean an easement would have to be advertised and approved by an absolute majority of council, and could be the subject of an objection and appeal to the Planning Appeals Tribunal. Read more here

Meanwhile, ABC Online: A northern Tasmanian council says it sees no problem getting advice about whether Gunns can acquire council-owned land for its proposed pulp mill, from a lawyer who also works for the timber company. Read more here

And, Sven Wiener’s letter to Jim Cox:
From: Sven Wiener
Sent: Thursday, 9 October 2008 4:27 PM
To: Jim Cox
Cc: ‘Sven Wiener’; ‘WTC Councillor Karl Stevens’
Subject: Formal Complaint regarding West Tamar Council & their breach of Section 60(3) of the Local Govt Act 1993

Dear Minister Cox,

I’m writing to you in your role as Minister Assisting the Premier on Local Government, to complain about West Tamar Council’s recent breach of Section 60(3) of the Local Government Act 1993: In mid-June 2008, a petition requesting a public meeting on the pulp mill, was submitted to West Tamar Council under Section 57 of the Local Government Act 1993. Subsequently the West Tamar Council General Manager put the matter before the councillors at their August council meeting. The extract from the council minutes relating to that meeting, is below. As can be seen from the minutes, the General Manager advised the councillors that under the Local Government Act 1993, a public meeting is required to be held according to advice provided by Local Government Office within Department of Premier & Cabinet. However the councillors would not support a motion to hold the public meeting requested by the petition. The public meeting requested by the petition, has not been held.

Section 60(3) of the Local Government Act 1993 states that:

(3) If the petition complies with section 59, or the council otherwise resolves to hold a public meeting regarding the subject matter of the petition, the council, within 30 days after the meeting referred to in subsection (2), is to hold a public meeting to discuss the subject matter of the petition.

It should be noted too that West Tamar Council was confidentially advised by Gunns’ lawyer, Mr Shaun McElwaine, regarding what course of action to follow. There seems to me to be a conflict of interest on the part of Mr McElwaine. Councillors have since voted down a motion, at their September monthly council meeting, a motion attempting to discontinue council’s use of Mr McElwaine for advising the council when it was to do with any issue relating to Gunns Ltd (see September WTC council meeting minutes and specifically page 59 at http://www.wtc.tas.gov.au/webdata/resources/files/Microsoft_Word_-_WTC_Minutes_SEPT_2008_.pdf )

“Moved Cr Stevens seconded Cr Doddy that council does not take further

legal advice from our current solicitor, Mr Shaun McElwaine on any issue

involving the company Gunns Ltd due to a perceived conflict of interest.”

Motion was defeated.

Furthermore, Mr McElwaine has also recently in the last several months advised West Tamar Council that they are unable to deny access to Gunns Ltd’s pulp mill water supply pipeline, over council-owned land and council have indicated that they would be relying on that advice. However independent legal experts have concluded that nothing in the Pulp Mill Assessment Act 2007 nor in associated permits, compels West Tamar Council to provide pipeline access to Gunns Ltd over council-owned land.

The August 2007 West Tamar Council pulp mill public meeting passed a motion that an elector poll on the pulp mill would be held at the then upcoming Oct 2007 council elections. This elector poll would have taken place after March 2007 fast-tracking of the pulp mill assessment and allegations post March 2007, of political interference by then Premier Lennon and certain of his DPAC staff, in the pulp mill assessment being conducted by the RPDC. However a week after the August 2007 West Tamar Council pulp mill public meeting passed that motion, West Tamar Council held its August monthly council meeting and councillors did not even vote at that council meeting regarding whether to hold the pulp mill elector poll at then upcoming Oct 2007 council elections. Had it been known that council would ignore this public meeting elector poll motion, an elector poll would have been forced by petition (which would have been required to be lodged within 30 days of the Aug 2007 public meeting) because denial of this opportunity for the electors of the municipality to express their collective opinion regarding the fast-tracked pulp mill is seen as a denial of natural justice by those West Tamar councillors at the August 2007 council meeting.

Based on this overall modus operandi of West Tamar Council since the August 2007 pulp mill public meeting, I feel that there are strong grounds to justify holding of a 2008 West Tamar Council public meeting on the pulp mill. State and Federal approvals of the pulp mill have taken place since the August 2007 West Tamar Council pulp mill public meeting. In spite of Gunns Ltd claims that commencement of construction after September would cost them around one million dollars per day and this argument being used as the basis for justifying fast-tracking of the pulp mill assessment, over a year later since that supposed September 1 deadline, we still have not seen any commencement of construction work. The whole basis for justifying removal of the pulp mill from the state’s accepted planning body, seems to have been without substance and this has only become evident well after the August 2007 West Tamar Council pulp mill public meeting. Based on quite a few polls conducted in 2007, a majority of Tasmanians are unhappy that the pulp mill has not been assessed by the RPDC and understandably this concern is very strong among residents of West Tamar Council area. They would be impacted considerably more so than the vast majority of Tasmanians by virtue of their close proximity to the proposed Long Reach pulp mill in a valley notorious for having problems with dispersal of air pollution.

According to West Tamar councillors Stevens and Allen, a 2008 West Tamar Council pulp mill public meeting would cost around $7k. This does not seem to be a large amount of money considering the extent of concern among West Tamar Municipality residents and the impact of ongoing uncertainty surrounding the pulp mill project on their lives and property values, particularly for those who have had to sell their houses because they were required for whatever reason, to relocate out of the Tamar Valley.

I look forward to hearing from you regarding whether you as Minister Assisting the Premier On Local Government, will direct West Tamar Council to abide by the Local Government Act 1993 and hold the public meeting as requested by the petition. Such a move would help restore public confidence of Tasmanians in the State Government.

Sincerely,

Sven Wiener

Background:

As can be seen in the extract from the Aug19 WTC monthly meeting minutes

(available in full at http://www.wtc.tas.gov.au/webdata/resources/files/Microsoft_Word_-_WTC_Minutes_August_2008.pdf ),

a majority of West Tamar councillors voted on Tuesday Aug19 to knock back a motion to hold a 2008 public meeting regarding the pulp mill. Informally we’ve heard that legal advice was received by the council saying that if councillors voted against holding a public meeting as would in general be legally required under the Local Govt Act 1993 section 59, then nothing could be done to force the council to hold the public meeting. I had to agree with the WTC Acting General Manager that this current situation of council having no clear direction from the councillors on what to do, is quite unusual and interesting.

——————Extract from Aug19 WTC monthly meeting minutes follows———————–

99/08 GEN MAN 1 GENERAL MANAGER’S REPORT: PETITION CALLING FOR A PUBLIC

MEETING REGARDING THE IMPACT OF THE PROPOSED GUNNS LTD

PULP MILL ON THE WEST TAMAR

1) Introduction

The purpose of this report is for council to determine what action is to be

taken in respect of the petition tabled at the 15 July 2008 council meeting.

2) Background

A petition was received by the General Manager on 19 June 2008

requesting a public meeting be held on the impact of the proposed Gunns

Ltd pulp mill on the West Tamar. The petition was tabled at the 15 July 2008

council meeting and since that time has been checked to ensure that it

complies with the requirements of section 57 and 59 of the Local

Government Act 1993. Approximately 1958 people signed the petition

however not all signatories were electors in the municipal area but the

petition does meet the requirement of 5% of the electors in the municipal

area. The proposer of the petition Mr Sven Wiener has been advised that

the petition complies with the Local Government Act 1993 and also that at its

19 August 2008 meeting council will consider what action is to be taken.

It should be noted that the petition received contains numerous instances

where the name, address and signature have been crossed out and then reentered

on the next line. No explanation was included in the petition as to

why this has happened.

The petition is as follows:

Petition Calling for a Public Meeting on the Impact of The Proposed Gunns Ltd Pulp Mill on the West Tamar

TO THE COUNCILLORS OF WEST TAMAR COUNCIL

We, the electors of the West Tamar Municipal Area, faced with the

abandonment of the RPDC process as the agreed, due process for

assessing the social, economic, environmental and health impacts of the

proposed Pulp Mill at Long Reach, are left with no option but to petition the

Councillors in accordance with sections 57 & 59 (1) of the Local Government

Act 1993 calling on the West Tamar Council to actively oppose this

proposed substantially taxpayer funded Pulp Mill on the grounds that the

health, safety and wellbeing of the citizens of the West Tamar has been put

at risk by the fast-track approval of the project and can no longer be

adequately protected or ensured.

This petition is exactly the same as the petition tabled at the 19 June 2007

council meeting except for the changing of one word and the inclusion of

three other words. In the petition listed above it states “…..this proposed

substantially taxpayer funded Pulp Mill….” Whereas the 2007 petition stated

“….the proposed Pulp Mill….”.

As a result of the 2007 petition council held a public meeting on the 14

August 2007 and received 99 submissions regarding the proposed

construction of the Pulp Mill. In minute number 115/07 there is a listing of

the main issues stated in the submissions as well as ten motions passed at

the public meeting and a summary of the actions taken by council since

December 2004. The following motions were passed by council 7/0 at its

meeting held on 21 August 2007 (minute number 115/07):

Moved Cr Burr seconded Cr Allen that council pursuant to Section 60A(5) of

the Local Government Act 1993, records and notes:

1. the summary of submissions received for the public meeting held on 14

August 2007 resulting from a petition calling on council to hold a public

meeting regarding the proposed pulp mill (listed under Background of

agenda item GM3); and

2. the resolutions passed by the attendees of the public meeting (listed under Background of agenda item GM3)

For: Crs Easther, Burr, Doddy, Allen, Kearney, Leaver and Gulson.

Against: NIL.

CARRIED 7/0

Mayor Easther vacated the chair.

Deputy Mayor Burr took the chair.

Moved Cr Easther seconded Cr Kearney that council expresses no

confidence in the pulp mill assessment process currently adopted by the

State Government as it denies individual citizens their democratic right to be

heard and consulted.

For: Crs Easther, Burr, Doddy, Allen, Kearney, Leaver and Gulson.

Against: NIL.

CARRIED 7/0

Deputy Mayor Burr vacated the chair.

Mayor Easther resumed the chair.

Moved Cr Burr seconded Cr Allen that council reiterates its decision of 20th

February 2007 that the RPDC is the appropriate body to assess the

proposed pulp mill.

For: Crs Easther, Burr, Doddy, Allen, Kearney, Leaver and Gulson.

Against: NIL.

CARRIED 7/0

Moved Cr Kearney seconded Cr Burr that council writes to the Premier and

President of the Legislative Council insisting that any approval of the

proposed Tamar Valley Pulp Mill must include provisions for a rigorous real

time monitoring regime that matches the conditions under which the mill will

operate, including requirements for direct reporting to an independent

environment protection authority and that significant penalties be prescribed

for breaches of the operating conditions including shut down of the mill until

compliance with operating conditions can be achieved.

For: Crs Easther, Burr, Doddy, Allen, Kearney, Leaver and Gulson.

Against: NIL.

CARRIED 7/0

Moved Cr Gulson seconded Cr Kearney that council writes to all members of

State Parliament, Federal Environment Minister, Mr Turnbull, and all

members of Federal Parliament representing Tasmania informing them of

the outcome of the public meeting held on 14th August; and

a delegation consisting of the Mayor, Deputy Mayor, General Manager and

two residents of West Tamar who signed the petition calling for a public

meeting be formed to meet with members of State Parliament.

For: Crs Easther, Burr, Doddy, Allen, Kearney, Leaver and Gulson.

Against: NIL.

CARRIED 7/0

Moved Cr Allen seconded Cr Gulson that council requests the State

Government to conduct a risk assessment for the West Tamar Municipal

Area into all matters relating to the proposed pulp mill.

For: Crs Easther, Burr, Doddy, Allen, Kearney, Leaver and Gulson.

Against: NIL.

CARRIED 7/0

Moved Cr Leaver seconded Cr Gulson that council requests the State

Government to amend legislation to further restrict the load height and

speed of log trucks to improve safety and reduce death and injury from road

accidents.

For: Crs Easther, Burr, Doddy, Allen, Kearney, Leaver and Gulson.

Against: NIL.

CARRIED 7/0

Moved Cr Doddy seconded Cr Leaver that council demands of the Premier

and the Minister for Infrastructure that the proposed Tamar Valley Pulp Mill

not be approved until a binding commitment is made by the State

Government to address all of the issues raised in council’s submission to the

Resource Planning and Development Commission on the Transport and

Traffic Impact Assessment for the proposed pulp mill.

For: Crs Easther, Burr, Doddy, Allen, Kearney, Leaver and Gulson.

Against: NIL.

CARRIED 7/0

Moved Cr Kearney seconded Cr Allen that council review its environmental

health obligations if the proposed pulp mill proceeds to construction and

operation.

For: Crs Easther, Burr, Doddy, Allen, Kearney, Leaver and Gulson.

Against: NIL.

CARRIED 7/0

3) Strategic/Annual Plan/Council Policy

Not applicable.

4) Statutory Requirements

Section 57 and 59 of the Local Government Act 1993.

5) Government Departments

Not applicable.

6) Community Consultation

The petition is from the community.

7) Alternative Options

Not applicable.

8) Financial Impact

Not known at this time.

9) Officer’s Comments

Council is required to hold a public meeting within 30 days of the 19 August

2008 council meeting to discuss the subject matter of the petition. Council

must also, in a notice publicly displayed, state the date, time and place at

which the public meeting is to be held also state the details of the subject

matter and invite written submissions for a period of 21 days. The notice is

to be published at least twice in the daily newspaper and sent to the persons

who lodged the petition.

The Local Government Office was requested to advise on the requirement

for council to hold the public meeting given that this matter had been

addressed last year. The advice received was that under the Local

Government Act 1993 council was required to hold a public meeting. Advice

was also sought form our solicitor and that confidential advice has been sent

to councillors under separate cover.

Ian Pearce

GENERAL MANAGER

DECISION

Moved Cr Stevens seconded Cr Doddy that council carries out what was

requested in the petition and holds a public meeting.

For: Nil.

Against: Crs Easther, Kearney, Shegog, Doddy, Allen, Roach and Tyson

Abstained: Cr Stevens

LOST 0/8