Dear Reader, This article is long, some of it is ‘technical’ and deals with The Pulp Mill Permit. It consists actually of an unpublished article written last week (26 Aug 2011) and I’ve now added this introduction, as well as the following initial remarks and information which relate to the issue of the water reservoir, planned for that part of the pulp mill project area which is to the east of the East Tamar highway. While much of the controversy surrounding the imminent expiry of ‘The Permit’ has focused correctly on the issue of ‘substantial commencement’ and to what extent the term ‘The Project’ implies actual work on ground, another matter has till now escaped public attention. It is the matter of the permits relating to the mill’s (emergency) water supply and the water reservoir and associated works.

‘THE PERMIT’

What does the term ‘The Permit’ mean?

It is an umbrella term created by the Parliament to refer give expression to the range of permits that relate to the project and which by virtue of the PMAA (Pulp Mill Assessment Act 2007 ) and of Parliament’s subsequent approval of ‘The Permit’ are taken to exist and have approval as if issued by the appropriate authorities in the usual way. Most of these permits are taken as if they conform to LUPAA (Land Use Planning and Approvals Act 1993 which is the primary planning legislation in Tasmania). However, there are four permits which accrding to the PMAA, are taken as coming under the Water Management Act 1999 . Three of these four permits expire tonight or tomorrow if there is not substantail completion of the works permitted by the permits. Substantial completion…

The water reservoir is one such matter, and it has its own permit (see details below) which requires that it be substantially (commenced) by 30th August. The area designated for this reservoir and for other water works has just been inspected and photographed. There has been no commencement of these works. The bush and dirt tracks through it are still as they were before Gunns acquired the land for their project. Some negligible work relating to testing of groundwater around the solid waste landfill area (not part of the 4 ‘water’ permits) has occurred and now decays silently.

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The photo tells it all. Can you see a dam wall running across the track? Can you see the rockfill embankment with the 5m clay core and tapered so that the somewhere-near 100,000 cubic metres of batter will be (let’s say for the sake of argument) 30m thick at the bottom and (according to Gunns) 370m from left to right? 5m thick at the top? No, I can’t see it either. Other photos that I have seen are similar. No work relating to these four permits has begun. Save for the pre-existing dirt tracks, the natural flora and fauna exist undisturbed.

No bush has been cleared east of the highway, no water diversions, no reservoir works of any description. some groundwater pipe wells for later-on testing and a couple of star pickets in the ground. The reservoir is meant to to have an eastern and a western wall, of 460m and 370m in length, up to 17m above ground with a width at the top of 5m. There is no such thing. No trees cleared, no earthworks of any description.

THE PERMIT

Mill Permits in 2 Bundles:

Section 8 (5) (a) PMAA: the permits relating to the LUPAA lapse only if ‘The Permit’ (as a whole) lapses due to project not substantially commenced.

BUT
Section 8 (5) (b) PMAA: the permits relating to the Water Management Act lapse if the permitted works are not substantially completed.
These water permits depend not on substantial commencement of the project, but on substantial completion of the dam works themselves.

DETAIL:
Section 8 (5) of the PMAA.

(5) A permit that is to be taken, in accordance with section 8(1)(c), to be issued –
(a) under the Land Use Planning and Approvals Act 1993 only lapses under section 53(5) of that Act when the Pulp Mill Permit lapses, if at all, under subsection (4); or
(b) under the Water Management Act 1999 lapses under section 159(8) of that Act at the end of the period of 4 years commencing on the date on which the Pulp Mill Permit comes into force if the dam works within the meaning of that Act are not substantially completed within that 4-year period.

The Pulp Mill Permit lists the following as Permits under the Water Management Act 1999:
WM1 Water licence
WM2 Dam Works Permit – Water Reservoir
WM3 Dam Works Permit – Landfill Pond
WM4 Dam Works Permit – miscellaneous stormwater storage dams and treatment pond dams
[link to document containing schedules WM1 – WM4

WM1: To take water into storage in the dam identified in the DIIS as “Pond at Landfill site” at the approximate coordinates E.494400, N.5444600, from an unnamed tributary of Williams Creek only in accordance with the following:

WM2: To construct a dam of approximately 17 meters in height and approximately 670 megalitres (ML) identified in DIIS as the “Water Reservoir” and the approximate location of which is outlined in the map at Annex 1 only in accordance with the following:.

WM3: To construct a dam identified in the DIIS as the “Pond at landfill site” the approximate location of which is identified on the map included in Annex 1, only in accordance with the following:

WM4: To construct stormwater storage dams and treatment pond dams within the property boundaries for the pulp mill as identified in the DIIS, only in accordance with the following:

MY READING OF THE ABOVE is that:

By Monday/Tuesday the permits (to allow Gunns to construct their water reservoir and their pond at the landfill site (both east of the highway) and stormwater storage dams and treatment pond dams) will have lapsed.

This is because these works have not begun (even as I write this) and yet they are required to be substantially completed as in 8(5) (b) above. It is possible that the licence to take water from the Williams Creek tributary might also lapse along with the other permits.

image

How inept of the government!

The Permit had expired in August 2009. Warren Jones (then EPA Director) sought and received advice from the Solicitor General on the status of the permits (otherwise known as The Permit). This advice has never been released to the parliament or to the public.

Warren Jones then advised Kim Evans (Secretary of DPIWE) that it was ‘not self-evident’ that substantial commencement of the activities authorised by the permits had been undertaken. Using this as a first premise, and citing LUPAA 53(5), Jones informed Evans:

“… of my current view that there is significant doubt that the permits survive”.

As a result, David Bartlett (then Premier) quickly introduced the Clarification Bill, even though the permits had already expired. Instead of clarifying matters, the purpose of this Bill was to obscure the fact that the permits had lapsed. It retrospectively attempted to revive them. For this reason, I would think that the validity of this legislation in itself must be extremely questionable. There is widespread realisation now that the so-called Clarification Bill did not live up to its name because it avoided the question of ‘substantial commencement’ and simply asserted D-Day was two years in the future, next Tuesday 30th August 2011. The 31st August 2011 will be our Day 1 PPE. (Post Permit Expiry) (or Day 2?)

THE UNPUBLISHED LEGAL ADVICE:
We know what the advice was, though we don’t have copies of it. How do we know? We know what we have been grudgingly told, by David Llewellyn (then Minister for Planning) in the Lower House and by Doug Parkinson (Leader of the Government in the Legislative Council).

If we read the Jones to Evans letter, [EPA advice to DPIWE re PULP MILL PERMIT, On TT, HERE ] we see that the legal advice is blacked out, but that Jones has drawn from it “three key points” and as a consequence recommends seeking a Supreme Court ruling or an amendment to the PMAA “to clarify its intent and operation”. It is history now that the Govt choose the legislative, rather than the judicial path. Hoist on their own Section 11 petard?

David Llewellyn, in speaking to the Clarification Bill, told the Parliament that the legal advice included the following three points:

1. The Solicitor-General believed that it was unlikely that Gunns had met the test of substantial commencement in relation to any of the four land-use permits.

2. The advice noted that Gunns legal representatives had put arguments to the effect that either section 53(5) did not apply to LU1-4 or, alternatively, that there had been substantial commencement. The principal Crown Counsel did not agree with this interpretation but in discussions has noted that ultimately the question may only be resolved by a court.

3. In the first instance, the principal Crown Counsel suggested that, if they agreed with the view that the permits had expired, the relevant councils would have the primary obligation to take action to enforce their planning schemes.

Clearly, the advice of the Crown Counsel was that the permits had expired.

What else was in the Crown Counsel advice? I would suggest that the matter of the High Court judgement involving ‘substantial commencement’ was also referred to. Quite clearly in the following Hansard extract, Doug Parkinson was referring to the High Court ruling [Day v Pinglen Pty Ltd [1981] HCA 23; (1981) 148 CLR 289 (26 May 1981)] when he told the Leg. Council that substantial commencement meant:

“The facts must be such as to lead naturally to the conclusion that the commencement of the development is not merely evident but a commitment of resources of such proportion relative to the approved project as to carry the assurance that the work has really commenced”

Compare that statement of his to the High Court judgement:

“The facts must be such as to lead naturally to the conclusion that the commencement is not merely evident, but is substantial, that is, of considerable amount. The statutory purpose must be borne in mind. A substantial commencement involves a commitment of resources of such proportions relative to the approved project as to carry the assurance that the work has really commenced.”

These (and other) comparisons, show that the Leader of the Govt, in the Legislative Council was intimately aware of the judgement of the High Court, when speaking in support of the so-called Clarification Bill. We can conclude that the High Court judgement formed the other essential part of the Solicitor-General’s advice to the Cabinet. If it did not, it would have been critically deficient.

Recently, a number of ‘expiry deniers’ have made public comments about the permits / The Permit.
LARA GIDDINGS: The Premier has affected the ‘Pontius Pilate’ approach. She has washed her hands of any involvement or responsibility for this question of expiration of the permits. According to the Examiner’s Dinah Arndt (Sat 20 Aug 2011 – Legal standoff over pulp mill) she said that: “Legal advice has not been sought by government on what would constitute substantial commencement of the project …” and said that such a question was a matter for the responsible authority.

ALEX SCHAAP: According to the Examiner, the Director of the ‘responsible authority, advised The Examiner on Friday 19th Aug that ‘the authority hadn’t yet deemed it necessary to define “substantially commenced” or decided whether that had occurred. ’ and that he had said that ‘it wasn’t appropriate to speculate on what may happen and named a number of planning authorities and regulators involved in the project that could take action.’ Mr Schaap separately advised TT correspondent John Hawkins in writing that “It is possible that I (or indeed any of a number of regulators) may need to determine if a valid permit exists and if that situation occurs I will take advice on the matter. In the meantime I have many more pressing issues of environmental management to occupy me and I have no thoughts or opinions to offer on the matter” [TCT FOI refused: Meaning of substantial commencement]

And in Mr Schaap’s own self nomination for the ‘Pontius Pilate of the Year’ Award we learn:

• Nick Clark, Mercury:
ENVIRONMENT Protection Authority director Alex Schaap will allow Gunns Limited to do work at the pulp mill site until it is decided what constitutes substantial commencement.

Mr Schaap’s ruling came as Gunns announced yesterday it had let tenders for earthworks at the Bell Bay site near Launceston worth about $20 million.

The company said work would begin this month.

“I do not believe that the permit could be considered as lapsed until a determination is made regarding substantial commencement,” Mr Schaap said.

He said it may be a matter for a court to determine.

The Pulp Mill Assessment Act 2007 says: “The pulp mill permit lapses if the project is not substantially commenced before the end of the period of four years commencing on the date on which the pulp mill permit comes into force (August 30 2007).” Mr Schaap said he had not yet had cause to take advice regarding the question of substantial commencement.

“But that may occur if I am required to approve any plan or action under the permit after August 30,” he said.

BRYAN GREEN: Ominously, on 8th August, our then Acting Premier spoke with ABC’s Leon Compton:

Q When do they have to show demonstrable progress on the establishment of the pulp mill or have they already shown you enough?
A Well I think that if you look at what Gunns have done over the time that they have been working on this project – I think that they’ve expended about $140m to get the project to this point. The requirements as I understand it, is there needs to be significant progress made on the project, there was a change as a result of legislation whereas I think it was construction before but significant progress on the project, but you know, it can be determined that they’ve done an enormous amount of work to get it to this point.

Q Do you feel satisfied that they’ve done enough?
A Well it’s not me that needs to be satisfied with respect to the permit process Leon, it’s the EPA and the processes associated with that. Bryan Green speaks with Leon Compton

CONCLUSION
We can see from Bryan Green’s remark that he (speaking on behalf of the Government) is trying to sell the line that the Clarification Bill took the focus of substantial commencement from ‘construction’ and directed it to ‘the project’. That is, Green was claiming that it is not construction that has to be substantially commenced by next Tuesday, but ‘the project’. He made mention of $140m that Gunns had already spent and ‘an enormous amount of work that Gunns had done to get the project to that point. His use of the word ‘significant’ rather than ‘substantial’ was clumsy and showed how he was blurring the facts to try and convince listeners that you can have made substantial commencement of a project without having any tangible thing to show for it.

I wrote elsewhere of the ‘creative language’ that would be used in these final days.

“FUTURE TREACHERY:

If Gunns survive their share price crash and trading halt, what can we expect? We can expect Bryan Green, as the responsible Minister, to tell us on August 31st that a substantial commencement has been made to the construction of the mill: he will tell us that a few bulldozers and trucks slithering in the mud do represent a substantial commitment of resources. Then Lara Giddings, our Premier-for-the-time-being will tell us, ‘gopher wheels whirring’ that construction has substantially commenced. We will hear it. It will come too from the mouths of your Ivan Deans, your Greg L’Estranges and your Michael Fields of this world.

We have been lied to for years now. The lies and spin won’t stop.”
[http://oldtt.pixelkey.biz/index.php?/weblog/article/it-was-not-self-evident-to-me-that-the-works-that-gunns-had-undertaken-/…]

Bryan Green’s attempt to suggest that the PMAA requires only substantial progress in planning the project, belongs to the ‘lies and spin’ just mentioned.

Gunns’ Greg L’Estrange who this Fri 26th Aug is reported [Examiner HERE] as claiming the awarding of a bulk earth works contract is “clearly substantial progress towards bringing the mill to reality” Note the desire to suggest that works regarded marginally as pertaining to construction are cited here by the chief of Gunns. This is tacit acceptance of the legal situation – Gunns have less than 100 hours by the time you read this of demonstrating that they have made a substantial commencement to the construction of the mill. Mr L’Estrange is trying to suggest that awarding a contract is evidence that a substantial commencement of construction has occurred. The previous Premier, who introduced the so-called Clarification Bill, was also the man who told us that there would have to be more than a few holes in the ground – that was over two years ago, and thankfully we don’t even have that.

Q Has the project got off the drawing board?
A No.

Q Apart from a short section of road, and an area of clear-felled bush, what has been done?
A Nothing.

Q Has the company demonstrated it is actually starting the project?
A No, it’s been suspended from trading on the ASX, it has no financial JVP, it has admitted making the largest loss in Tasmanian corporate history, it share price has been destroyed, it has ‘sold off the farm’ to clear debt, yet it remains in debt and it has pretended that awarding a contract for earthworks to begin ‘soon’ is not a simple stalling device – a device to assist in the spurious claim that something is progressing.

The High Court can have the final say:
“The facts must be such as to lead naturally to the conclusion that the commencement is not merely evident, but is substantial, that is, of considerable amount. … A substantial commencement involves a commitment of resources of such proportions relative to the approved project as to carry the assurance that the work has really commenced.”

POSTSCRIPT
“project” means the project declared by the Administrator to be a project of State significance on 22 November 2004 in Statutory Rules 2004, No. 111, being the proposal by Gunns Limited (ACN 009 478 148), as amended, for the development and operation of a bleached kraft pulp mill in northern Tasmania including any use or development which is necessary or convenient for the implementation of the project, including but not limited to the development and operation of any facility or infrastructure for –
(a) the supply or distribution of energy to or from the mill; and
(b) the collection, treatment or supply of water; and
(c) the treatment, disposal or storage of waste or effluent; and
(d) access to or from the mill; and
(e) transport to or from the mill; and
(f) the storage of pulp at, or transport of pulp from, a sea port in the northern region or the north-western region; and
(g) the production of materials for use in association with the operation of the mill;
[from the Pulp Mill Assessment Act 2007 and the then State Policies and Projects (Project of State Significance) Order 2004]

Clearly this definition of “project” is concerned with the physical development (construction) of the pulp mill, in its various constituent parts and places. Its expression “including but not limited to” should be understood in the context of other physical developments potentially overlooked by (a)-(g). An example of such a development would be the workers’ village to be constructed in George Town. As you see, its development (construction) is not mentioned in the definition, but would be included by the ‘but not limited to’ phrase.

There is nothing in this definition however to indicate that development of the Draft IIS, the gaining of legislative approval, the issuing of planning permits and the like are envisaged as belonging within the legal definition of “project”, as defined above.

PPS At 20 to 6pm, this Friday the 26th of August, it looks as though Gunns has missed another deadline … they promised a Market Update today [PDF] and it’s not in evidence… perhaps it was ‘hearsay’!

PPPS I hope anyone who got this far was able to distinguish the two sections of the article, the long second bit was written on Friday and concerned the pulp mill permit in its entirety, while the first part, written this Monday morning (29th Aug) deals with the four ‘water’ permits that require substantial completion any moment now.