Neil Smith

The fact remains that if the federal approval contains conditions and they are not – or cannot be – complied with, then there is scope for a legal challenge if the political will is there. But … I see one big problem, and that is in the wording of the conditions in Turnbull’s draft approval. That was the purpose of my earlier post ( Instant pulp mill – just add water ). Turnbull sets all limits as amounts of pollutant PER LITRE of water discharged. This gives Gunns a licence to pollute by any amount they like – all they have to do is add sufficient water to keep the concentration below the specified limit. They have a very easy out. The question is, is this deliberate on Turnbull’s part? Does he intend to give them an unlimited licence, with sham conditions that are actually meaningless? If it is, he needs to be exposed in the most public way and forced to make amends or suffer the electoral consequences.

I WANT to stop the Tamar Valley pulp mill. So, obviously, do a lot of others, and for a whole variety of reasons. In my case, whilst I am concerned about many aspects of the proposal – and the process – my biggest concern relates to the accelerated logging of native forests, as anyone who knows about my previous activities in the environment movement might reasonably have predicted.

But since all the authorities, state and federal, continue to hide behind the scandalous environmental exemptions given to RFA operations I don’t see how to move on that front, apart from giving moral and financial help to the legal defence of the Wielangta decision.

This pulp mill saga could end in many ways. The mill could be stopped by a responsible group of Legislative Councillors belatedly finding their spine, or it could be stopped by John Howard riding into town on his white stallion, saddle bags bursting with money. So everyone who is sending their empassioned (and eminently sensible) pleas to the MLCs, and everyone who is trying to foment unrest within the federal Liberal party is doing the right thing. It might work.

But it is also quite possible (indeed, probable) that this thing will end with the mill permit being passed by both Houses of Tasmania’s parliament and then, when Malcolm Turnbull’s 10-day public comment period expires and a little more time passes for his department to do its little bit, with official sanction by Turnbull. Gunns will assemble their bulldozers triumphantly, and we will get a mill!

So I ask the simple question – what is the next best thing to no pulp mill? And the answer would surely have to be – a mill that we can force legally to be shut down (or perhaps just reduced in size) after it has started operations. While we are all currently praying hard for miracles to stop the approval, we can’t afford to ignore the possibility of setting up such a situation.

There doesn’t appear to be a lot of scope for legal challenges to the mill at the State level – section 11 of the Pulp Mill Assessment Act has made sure of that. But the federal situation does not seem quite so bleak. The Minister has declared the establishment and operation of the mill to be a “controlled action” under the EPBC Act, and it is illegal to undertake that action without approval. Of course, the problem is that the Minister is going to approve it! However, in his draft approval document he has placed a few conditions on the approval. If the final approval follows the draft, the mill will have to operate in accordance with those conditions, or else it will be illegal under the EPBC Act. Since the conditions as drafted don’t specify mandatory shutdowns for breaches of conditions (and that is a big pity), it will be up to someone with legal standing to sue Gunns. Turnbull might not feel that such a course is in his interests, but there may be others with the standing (and the money) to take it on. What might a future Environment Minister (Garrett, perhaps) do?

Most of the “conditions” in the draft are fairly meaningless, applying only to the construction phase or being things with which Gunns can readily comply. The only possible exception is the the limitation on the allowable amounts of various pollutants (including dioxins) in the liquid effluent stream. In this regard the purists will say “they shouldn’t be permitted to release ANY dioxins into Bass Strait” and “it breaches the Stockholm Convention” and “the fishing industry will be destroyed” – which are all perfectly sensible things to say. But all such arguments seem to be falling on deaf ears. The more pragmatic and cynical will just say “those limits are just the same values Gunns quote for their expected emissions, and so they’ll meet them anyway”. But will they? I don’t believe that Gunns really understand just what is going to happen once they try to get that behemoth running. A lot of the so-called “science” they have trotted out so far is poor research based on dubious assumptions, dressed up for propaganda purposes.

The fact remains that if the federal approval contains conditions and they are not – or cannot be – complied with, then there is scope for a legal challenge if the political will is there.

But …

I see one big problem, and that is in the wording of the conditions in Turnbull’s draft approval. That was the purpose of my earlier post ( Instant pulp mill – just add water ). Turnbull sets all limits as amounts of pollutant PER LITRE of water discharged. This gives Gunns a licence to pollute by any amount they like – all they have to do is add sufficient water to keep the concentration below the specified limit. They have a very easy out. The question is, is this deliberate on Turnbull’s part? Does he intend to give them an unlimited licence, with sham conditions that are actually meaningless? If it is, he needs to be exposed in the most public way and forced to make amends or suffer the electoral consequences.

On the other hand, if he and his department have just made an honest error, it should only take a few polite submissions before next Friday to persuade them to amend the conditions to turn them into something possibly worthwhile. PLEASE TRY!

Pollutant amounts can easily be expressed in a much more robust manner. For example, if the volume of the effluent stream is really 64,000 tonnes per day as Gunns propose (i.e. 64,000,000 litres, since the density of water is 1 kg/l), and the allowable dioxin level (Lord forgive me for saying that) is 3.4 picograms TEQ per litre, we could instead state the limit as 217 micrograms TEQ per day. They can pump as much water as they like down the pipe but can’t get around the limit if it is expressed that way. The same thing applies to all the other pollutants. I’ll be making that point in my submission to Turnbull’s department, and I urge others to do the same.

No one knows how much dioxin the mill will really produce to any accuracy, although Prof. Andrew Wadsley might have come close. Only time will tell whether specified limits might be breached. But if they are, Mr Gay and his confident cronies could be smiling on the other side of their faces.

I’d like to see that.