Tasmanian Pulp Mill assessment process vindicated by the Federal court
The Federal court confirmed today that the Assessment of Tasmania’s proposed pulp mill was fair and reasonable and that the public had ample opportunity to state their views.
A Federal Court judge rejected the claims by the Wilderness Society and a group calling itself Investors for Tasmania’s future and dismissed their application to overturn the Commonwealth assessment process.
The Federal Court was asked to review two decisions made by the Commonwealth Minister for the Environment and Water Resources.
The first decision was to make the mill a controlled action in relation to threatened and migratory species and Commonwealth Marine Waters. The second decision was that the relevant impacts of the proposed action be assessed on preliminary documentation (eg all the documentation created under the failed RPDC process, including the Draft Integrated Impact statement, Peer reviewed reports, Supplementary information and 700 odd public submissions that had been gathered since 2004.)
The Wilderness Society made the following allegations:
• there is no valid referral of the proposal to support either decision;
• in making the first decision, the Minister misconstrued the EPBC Act, failed to take into account for the potential adverse impact of sourcing timber from Tasmanian forests to supply the pulp mill;
• in making the first decision, the Minister failed to consider whether the pulp mill would have or is likely to have a significant impact on the environment on Commonwealth land;
• the Minister misconstrued and/or misapplied the EPBC Act in making the second decision;
• in making the second decision, the Minister denied members of the public interested in the assessment procedural fairness;
• the second decision is invalid because it is affected by apprehended bias in the Minister;
• the second decision involved an improper exercise of power by the Minister; and
• the second decision was manifestly unreasonable.
The Investors appear to have also alleged that the Minister took into account Gunns’ commercial imperatives in making his decision.
The Federal Court rejected all allegations.
This means to me that the Assessment approach and decisions leading to it are valid.
The Judge was satisfied that the Minister acted in accordance with the Law, with fairness and without bias in making his decision on the assessment process that was demonstrably reasonable.
That there is no need to assess the impact of the mill on Tasmanian forests as these and the species of flora and fauna are protected by the Regional Forest Agreement.
That is was entirely appropriate for the Minister not to consider Commonwealth land. In relation to World Heritage Values the green groups did not even raise this as an issue, thus claims to UNESCO that WHA will be impacted are clearly unsubstantiated.
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Many people in Tasmania have been concerned about the process of assessment since the developer withdrew from the RPDC assessment in February, some 2 years three months after the start of the “18 month” assessment. However much of the challenges raised with the Federal Court would have applied to the RPDC process, in fact one member resigned due to a claim of bias by the Greens.
The decision now means that Tasmania can get on with the assessment process and have a decision by both the Federal Minister and the State Parliament based on the scientific evidence.
Copies of the Federal Court’s Judgment are available here.
Jennifer Marohasy BSc PhD is a critical thinker with expertise in the scientific method.
Cinders: As much to be expected regarding this decision but I reckon this statement is a bit curious –
“The Investors appear to have also alleged that the Minister took into account Gunns’ commercial imperatives in making his decision”.
Can you please expand on ‘commercial imperatives’ in your terms
Sigh, here we go again.
Cinders again complains that Gunns pulled out of the RPDC process “some 2 years three months after the start of the “18 month” assessment”, trying to imply that this was the fault of the process. This is despite Julian Green and Christopher Wright, as respective heads of the assessment process, clearly and publicly stating that the delays were due to Gunns’ own inability and unwillingness to comply with the deadlines and requirements that were placed on it.
THE ASSESSMENT TIMELINE BLEW OUT BECAUSE OF THE PROPONENT.
It’s like a student complaining he hasn’t got marks for his assignment, despite having not submitted his assignment in the first place. Actually, it’s even worse than that: it’s a student complaining after having been handed back a rough draft of the assignment and being told it won’t pass. Despite being given a fair opportunity to correct it, the student instead gets his powerful political ‘family’ to bring pressure to bear to change the process rather than the work.
Despite the fact that Cinders will again try to paint me as an anti-mill greenie, I will repeat that my concern is over due process. I don’t care whether we do or don’t have a mill, but I do care that proper process is followed. And that means proper process as would apply to anyone else.
I readily accept the Federal Court decision: the Commonwealth assessment process has been reviewed and found to be legal, so no argument there. The State assessment, and what has been craftily omitted in the new process, is a different story.
Recent polls are showing the high level of community disquiet about the State fast-track process. Whether Cinders chooses to ignore my views, he cannot deny that the pulp mill project has unfortunately drawn greater opposition and concern than it need have. The PERCEIVED favouritism and bypassing of the original process (whether real or otherwise), as well as the extremely generous support provided by the government from public $$$, has ensured that the mill is being questioned by more than just the green sector. The proponent has further widened the social divide by crying that it’s hard done by, despite the clear political support and opportunities that it has been given over and above anyone else.
The more such concerns are glossed over as “green scaremongering”, the more divisive the mill issue will become. Sustainable development is about properly assessing and balancing issues, not simply which side comes up with the better spin.
The Federal Court, as does Cherax, points out that the RPDC blamed the developer for delays to the 18 month process.
But is this fair?
It was 26 November 2004 that the RPDC was directed to start an integrated assessment of the project.
In February 2007 the then head of the assessment panel stated that date for that assessment may be completed “An approximate, and I think very optimistic, completion date has now been forecast for late November of this year.”
The RPDC detailed a delay by Gunns between 15 Dec 2006 and 16 February 2007 a period of two months out of a process optimistically to take 35 months!
When the process was first announced in 2004, it was criticized for being “fast tracked” and not having appeal rights and only to take 18 months. Unlike the EPBC Act with strict time limits for action, the RPDC had no such restrictions.
For any developer proposing to build a factory worth $1.5 to $2 Billion dollars a delay of this magnitude causes real financial and commercial disadvantages. No business, let alone a relatively small company such as Gunns, could afford such uncertainty.
Then of course there were the legal arguments first by the Greens, and then the current fiasco, many parts of this challenge could have been applied to the RPDC who were not to assess the impacts on Forests or Commonwealth land.