Paul Lennon was right

GARRY STANNUS
On 20 Aug 2009 Barnaby Drake published in TT ( ‘Paul Lennon on Section 11’: Here ) his letter from Paul Lennon (3 Dec 2007,) in which the then Premier writing about the meaning of Section 11 of the PMAA, stated: “It does not, however, apply to any other action that may arise outside the assessment and approvals process i.e. an action that arises during the construction or operational phase of the pulp mill”] Maddie in the accompanying thread asked: “So… is this true? I thought that Section 11 was also going to apply when the mill was operating” Maddie, my answer is that Paul Lennon was right.

The following extract from the PMAA 2007 states:
“(a) a person is not entitled to appeal to a body or other person, court or tribunal; or
(b) no order or review may be made under the Judicial Review Act 2000; or
(c) no declaratory judgment may be given; or
(d) no other action or proceeding may be brought –
in respect of any action, decision, process, matter or thing arising out of or relating to any assessment or approval of the project under this Act.”

From my own reading and re-reading of it, I can only see it as meaning that it does not, however, apply to any other action that may arise outside the assessment and approvals process i.e. an action that arises during the construction or operational phase of the pulp mill. From the bits and pieces that I’ve collected, and which follow, I’m of the opinion that Lennon’s view is correct.

It does not do our cause any good to infer otherwise. The pulpmill proposal is wrong, wrong because of its location, wrong because it would not be closed-loop, wrong because it would use chlorine, wrong because it would use native forests, wrong because Gunns would be the operators, wrong because the process was wrong, wrong because the PMAA is wrong, wrong because its Section 11 is wrong and wrong because of the lies we have been told. We know this and more, but this claim about not being able to get damages etc when the pulp mill was operating? It too is wrong.

YOU BE THE JUDGE:

In Mar 2007, The Pulp Mill Assessment Bill was introduced into Parliament. Its section (‘clause’) 11(1) was different to today’s version and read: “Limitation of rights of appeal … in respect of any action, decision, process, matter or thing arising out of or relating to this Act.”

26Mar 2007 Michael Stokes and Tom Baxter (‘Comments on Pulp Mill Assessment Bill 2007’) in TT offered two interpretations of s 11(1) of the then Pulp Mill Assessment Bill 2007 and appeared to give more weight to the second interpretation, where people are left with “no protection against the mill as long as it complied with its permit.”

28 Mar 2007 Ivan Dean, MLC, speaking to the Bill in the Upper House, says he supported section 11 (as it then read) because he “could see appeal after appeal after appeal being taken specifically for the purposes of delaying … building, in this instance, of the pulp mill.” He added however that he thought the then s 11 had gone too far and referred to an amendment that had been drawn up for later attention.

29 Mar 2007 Jim Wilkinson, MLC, moved that amendment to s 11(1) of the Bill informing the House that the intent/effect of the amendment was to guarantee maintenance of people’s rights to bring actions at common law for loss or damage. The amendment was the addition of the words ‘any assessment or approval of the project under’ to the then s 11(1) so that it read: “Limitation of rights of appeal …in respect of any action, decision, process, matter or thing arising out of or relating to any assessment or approval of the project under this Act.”

30 Apr 2007 The Governor gave Royal Assent to the PMAA 2007

18 Aug 2007 Barnaby Drake wrote to the then Deputy Premier Steven Kons, with regard to rights of appeal under Section 11 of the PMAA, once the mill were to proceed.

21 Aug 2007 The Pulp Mill Permit was introduced into the Tasmanian Parliament.

03 Dec 2007 Paul Lennon answered Barnaby Drake’s 18Aug07 letter to Kons, writing that “It does not, however, apply to any other action that may arise outside the assessment and approvals process i.e. an action that arises during the construction or operational phase of the pulp mill”

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16 May 2008 Peter Henning wrote “the PMAA would prevent any person seeking any form of legal redress if their health … is affected by emissions that can be traced back to the mill.” This was followed by comments from Mike Bolan “Section 11 virtually gives ‘carte blanche’ to the pulp mill operators to pollute and harm the population,” Barnaby Drake “…denying all rights of redress for the citizens against ANYTHING that the pulp mill can or will do…” and Bob McMahon “all legal avenues for redress have been systematically closed off to the people.”

12 Jun 2008 Garry Stannus commented: “it seems to me that what are limited under the Act, are appeals etc arising out of the assessment and approval of this project. I don’t see that appeals etc, arising out of the actual construction and operation of the pulp mill etc, are included in this section.”

In Jul 2008 Paula Wriedt, then Minister for Economic Development and Tourism wrote: “I am advised that clause 11 of the PMAA makes it very clear that rights of appeal are only limited in relation to the assessment and approval of the project under the PMAA. The limitation of appeal rights does not extend to any other matters that may arise after assessment and approval”.

15 Aug 2008 Michael Stokes on ABC Stateline said about Section 11 “I think what it was designed to do was to prevent challenges to actions taken specifically under the Pulp Mill Assessment Act like the assessment process, the validity of the permit, but I don’t think it’s intended to rule out requests for reasons which is under another piece of legislation. ” and more to the point “I think Section 11 is really about protecting the process, the assessment process and the validity of the permit, not about preventing legal actions by people who might be damaged by the pulp mill’s operations. ”

08 Jan 2009 King Romeo commented “…that Section 11 of the Pulp Mill Assessment Act was not written by the Government, not even by Gunns. It was the result of an amendment in the Legislative council and forced upon the Government. The amendment was designed to guarantee the common law rights of Tasmanians and was only voted on after legal advice…”

13 May 2009 Michael Stokes (‘Validity of the Pulp Mill Permit’) in an opinion published in TT and dealing with the failure to assess the mill proposal against all the guidelines and whether Section 11 was a general bar to actions etc, wrote “As a general rule, … a privative clause which ‘only provides that a decision [or in this case things arising out of an assessment and an approval] may not be called into question in a court of law is construed as not excluding review on the grounds of jurisdictional error,” and “Similarly, the approval of the permit under section 7 of the Act was conditional upon a favourable report. As there was not a report for the purposes of the Act, the condition was not met and the approval was invalid. Accordingly, the purported exercise of the power was invalid and not protected from review by section 11.”

17 July 2009 Justice Evans (Landon-Lane v Minister for Economic Development and Tourism and Premier of Tasmania [2009] TASSC 50 (17 July 2009)) dismissed the Landon-Lane ‘application-on-the-basis-of-typographical-error’, saying he was “unable to discern any obvious mistake in the printing or drafting of the Pulp Mill Assessment Act, s11(1)(b), or any absurdity, repugnance or inconsistency between that paragraph and the rest of that Act,” that he rejected “the contention that par11(1)(b) contains a drafting error.” and consequentially “As the applicants’ applications seek orders under the Judicial Review Act , in respect of decisions relating to the assessment or approval of the project, they are barred and should be dismissed.” The judge also accepted [see Wilkinson] that the intent of the PMAA 2007, s 11 was “that the assessment and approval of the project should not be delayed.”

17 Jul 2009 ABC News reported that regarding the application by Landon-Lane to be given reasons “Justice Peter Evans dismissed the application, saying section 11 of the government’s Pulp Mill Assessment Act prevents any legal application about the assessment process”

18 Aug 2009 Peter Henning (‘Tasmanian political Rot: The PMAA Revisited’) wrote in TT: “Imagine the plethora of opportunities for aggrieved persons against the PMAA if Section 11 in its thoroughness had not been part of the pulp mill legislation.” (vide Dean 28Mar07!) and “The PMAA was carefully framed. It was quite deliberately written to ensure that any common law legal rights were obliterated as far as that could be done, and as thoroughly as that could be done”

20 Aug 2009 Barnaby Drake published in TT his letter from Paul Lennon (3 Dec 2007) [Section 11: “It does not, however, apply to any other action that may arise outside the assessment and approvals process i.e. an action that arises during the construction or operational phase of the pulp mill”] Maddie commented “So… is this true? I thought that Section 11 was also going to apply when the mill was operating.

21 Aug 2009 Peter Henning wrote in TT (“Section 11 Once More”) : “Do what Lennon and Wriedt have written (and what Bartlett has said) fit the wording of the legislation? Where does it specify clearly where the limitation on appeal rights ends? It certainly doesn’t say, in any way, shape or form, that appeal rights are limited to the assessment and approval process, and do not apply more broadly. Does the phrase “arising out of or relating to any assessment or approval” mean “only during the assessment and approval” process?”

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Yes Maddie, it is true. What Paul Lennon said is correct. Some of what we have been given to understand for the last two and a half years has been incorrect. Section 11 of the PMAA 2007 was never about stopping people seeking redress for injury or damage as a result of the construction or operation of the pulp mill. Many claims have been made about the effects of Section 11, some are correct, some are not.

The original PMA Bill which was introduced into Parliament contained a different Section 11(1) where any action etc relating to or arising from the PMA Act was precluded. In order to guarantee the people’s access to common-law rights for actions etc to do with injury or damages, the Bill was amended in the Legislative Council so that these rights were provided for while yet limiting the ability to attack the assessment/approval process with the object of delaying or stopping the project.

It’s important that the general public has the correct understanding about their rights to go to law if sustaining loss or damage as a result of the construction and operation of the pulp mill. The Landon-Lane case has in a sense clouded the issue. This case was not about directly challenging the power of the Section 11(1) that we know, it sought to suggest that (unsuccessfully) that there was a significant typographical error in the wording of the Act. Yet if the Landon-Lane case has had the effect that more people believe that no court actions will be possible during or relating to the construction and operation phase, then this will be unfortunate.

Peter Whish-Wilson, Stephanie Taylor, Lucy Landon-Lane and others are to be commended for their commitment and guts in fighting against the rotten mill proposal. However, under the headline “Legal action is virtually useless”, Peter’s written words appear: ” if the mill is operating within its permit guidelines or regulations … legal action is virtually useless. ”

I am suggesting Annie, that this is not the case. I am suggesting that if construction of the mill commences, actions for damages and injury etc related to construction will be possible, and that (God help us) if the mill were ever to operate, similar actions relating to the operation of the mill would also be possible, i.e., Section 11 would not apply. I hope this answers your question and that my long-winded piece has not contained any errors. We need to see some daylight in all this.

Gary Stannus