Ombudsman Refuses Release of Gunns Pulp Mill Appendices

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After a delay of 15 months the Tasmanian Ombudsman has notified me of his decision to refuse the release of Appendices 1-4 in respect ofGunns’ submission in support of its claim that “substantial commencement” of Gunns Pulp Mill Project took place before 30 August 2011” on the grounds that the information is exempt under s 39 (1) (b) (information obtained in confidence) of the Right to Information Act 2009.

( Download attached letter from Ombudsman dated 4 February 2013: http://cdn-src.tasmaniantimes.com.s3.amazonaws.com/Ombudsman%20decison%20re%20pulp%20mill%20appendices.pdf )

These Appendices are contained within Gunns’ Bell Bay Pulp Mill Project
Project Status Report as at 30 August 2011(Download here: http://cdn-src.tasmaniantimes.com.s3.amazonaws.com/Gunns%20Project%20Status%20Report%2030%20Aug%2011.pdf )

The Appendices contain information (claimed by Gunns to be commercial in confidence) that was sought by the Director of the EPA in order for him to determine if Gunnshad substantially commenced the pulp mill by 30 August 2011 as required under the terms of the Pulp Mill Assessment Act otherwise the Pulp Mill Permit would lapse.

It has been documented in detail on Tasmanian Times by Garry Stannus that Gunns only commenced earthworks on site after the Pulp Mill Permit expired on 30 August.

http://oldtt.pixelkey.biz/index.php?/weblog/article/this-has-got-to-stop/

http://oldtt.pixelkey.biz/index.php?/article/sitting-outside-the-long-reach-site-…-copping-abuse-and-encouragement-/

It is also on the public record that Gunns breached the Pulp Mill Permit by failing to commence, let alone substantially complete, the water dam works by 30 August 2011 as required by Section 8 (5) (b) of the Pulp Mill Assessment Act.

http://www.austlii.edu.au/au/legis/tas/consol_act/pmaa2007248/s8.html

However, the Director of the EPA,Alex Schaap, allowed Gunns to carry out work without a valid permit saying“I do not believe that the permit could be considered as lapsed until a determination is made regarding substantial commencement.”

http://www.themercury.com.au/article/2011/08/27/256621_tasmania-news.html

On 5 September 2011, the Integrity Commission dismissed my complaint that the work should not be allowed to proceed in breach of the permit claiming that the Director’s “intended course of action is unremarkable and not unreasonable.”

Gunns made a new permit application to undertake dam works on the pulp mill site which was notified in the Examiner on 10 September 2011:

http://oldtt.pixelkey.biz/index.php?/weblog/article/gunns-ad/

A media release by Wes Ford, General Manager – Water and Marine Resources – DPIPWE dated Monday, 12 September 2011 stated:

The General Manager of Water and Marine Resources, Mr Wes Ford, today confirmed that Gunns Ltd has lodged applications for three dam permits for the storm water ponds at its pulp mill site and they have been advertised in accordance with Section 145 of the Water Management Act 1999.

“The new permits are required as the dam construction schedules under the Pulp Mill Act lapsed on 30 August,” Mr Ford said.

Mr Ford said the dam works permit applications were lodged on 1 September and will be assessed by the Assessment Committee for Dam Construction (ACDC) in accordance with the Water Management Act.

“The Crown has determined that the ACDC is able to assess any applications lodged by Gunns Ltd under the Water Management Act,” Mr Ford said.

These applications also triggered a request from Gunns to approve the variation of a condition under the Pulp Mill Permit and finally forced the Director of the EPA to make a determination.

On 28 September 2011 the Director of the EPA determined that Gunns had substantially commenced the project and that the Pulp Mill Permit would remain valid “until or unless a court determines otherwise (perhaps as a consequence of an order or declaration sought by another party).”

http://epa.tas.gov.au/epa/document?docid=899

In his determination Mr Schaap abdicated his regulatory responsibility with regards to the dam works situation by expressly stating “It is also worth noting that the test is not about “substantial completion” as it is in relation to the permits under the Water Management Act 1999.”

With specific reference to the documentation provided by Gunns, Mr Schaap stated:

“I have sought to inform myself on matters of fact by seeking a submission from Gunns Ltd as to the reasons why the company believes substantialcommencement has occurred. An abridged version of that submission is attached to this statement. The full submission provided information about actual expenses on individual services, works or materials which the company asserted as project activities and expenses (which the company regards as „commercial in confidence‟ material). I subsequently obtained extracts from company records, invoices, payment notes, inventory reports and evidence from the company’s independent auditors to satisfy myself of the veracity of the information provided. I have also sought information regarding the assets, valuation and capacity of the company. This additional material is also regarded as “commercial in confidence” material by the company.

“I then sought legal advice from the office of the Solicitor General. That advice is subject to client legal privilege and I am not able to waive that privilege and release the advice.”

Mr Schaap’s determination has subsequently been challenged in the Supreme Court by the Tasmanian Conservation Trust but the case appears to be in abeyance as a result of Gunns falling into the hands of receivers.

http://www.tct.org.au/media/documents/8.8.2012GunnsLosesCostsAppeal.pdf

I requested a copy of Gunns’ submission in support of its claim that ”substantial commencement” of the project took place before 30 August 2011 and on 13 October 2011 I received a copy of the submission which was made available for public release with Appendices 1-4 removed.

In view of the public interest I therefore requested release of the information contained within the Appendices under the Right to Information Act on 14 October 2011 which the Ombudsman has now finally determined is exempt from release.

I find it extraordinary and extremely concerning that as a member of the public seeking information to assess the capacity of the relevant public decision-making body (EPA) I am finally informed 15 months later that the information cannot be released because it would have “a significant detrimental effect on the ability of the Director (of the EPA) to perform the range of his statutory duties.”

This also demonstrates that the EPA is a toothless regulator if it is reliant on the voluntary co-operation of commercial entities to meet its statutory obligations.

I also fail to comprehend how the provision of information by a company which is in administration could affect the future ability of the EPA to acquire information from other entities and it doesn’t reconcile with the Ombudsman’s statement that each case must be decided on the material presented.

Unfortunately there doesnot appear to be any further avenue for appeal under the Right to Information Act which gives the Ombudsman the final say on the matter unless challenged in the Supreme Court.

Finally, as Gunns has clearly failed to comply with the following Condition 45 of the Federal approval Minister Tony Burke should bring this ongoing saga to an end by revoking the 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.”

http://www.environment.gov.au/epbc/notices/assessments/2007/3385/pubs/approval-decision.pdf