On 6 June 2011, the Tasmanian Conservation Trust commenced a case in the Federal Court of Australia against the Minister for Sustainability, Environment, Water, Population and Communities, Tony Burke. The case seeks a judicial review of decisions made by the Minister on 10 March 2011 relating to the proposed pulp mill in the Tamar Valley, Tasmania.
The TCT wants the court to overturn the Minister’s approval of a new freshwater pipeline route and strike out a new condition (Condition No. 49) that would allow fast-tracking of future changes to the environment management plan for the pulp mill.
The TCT believes that the Minister did not comply with the law in making his decisions and we seek the intervention of the court to reverse a number of important changes made to the proposed pulp mill.
The TCT believes approval of the new pipeline route is invalid and should be overturned as the Minister incorrectly accepted reasons which relate to landowner approvals, while failing to consider the impact the new pipeline route would have on nationally listed threatened species, as the law required him to do.
If the TCT succeeds in overturning thia approval, the previously approved route will be reinstated. That route goes through properties whose owners did not agree to the pipeline going through their land.
The Minister also approved a new ‘fast-tracking’ condition, ‘Condition No. 49’, which would allow changes to the environment impact management plan relating to the proposed pulp mill, without any public knowledge or public input; the law does not allow him to make such a condition.
On 1 July 2011 the Federal Court of Australia made an order in relation to legal costs, time frames and location for the TCT’s case. The court order established the dates for the TCT and the Minister for Environment to finalise affidavits and agreed to the Minister’s request to move the case to Melbourne. The order also establishes that the maximum costs that may be recovered by either party is $30,000.
It is very significant that this protective costs order was agreed upon by the consent of both parties. This decision opens the door for environmentally protective public-interest litigation, if the federal government has set its own precedent that it will agree to capping the costs of the unsuccessful applicant.
We have forwarded copies of our media releases regarding this case to the Australian Stock Exchange and to the seven companies said to be most interested in funding construction of the Tamar Valley pulp mill. We felt compelled to do this because it appears from the Gunns website that they have not issued a statement to the ASX nor made any media announcement regarding this legal action. The TCT believes that potential investors should be aware of this court case and the possible implications.
It is possible that the case will not be decided until the end of 2011 (the directions hearing will be on 4 November 2011) and the proponent will not know until then whether it has approval for its preferred freshwater pipeline route. If the TCT wins this case then we cannot see how Gunns can get fresh water to the pulp mill site. Until the case is decided we believe it would be unwise for Gunns to commence construction of any part of the pulp mill.
Summary of the TCT’s case:
1. The Minister decided to vary the route of the pipeline needed to transport fresh water to the pulp mill. The Minister varied the route because Gunns Limited asked him to and Gunns made this request because a number of private landowners refused to let Gunns construct the pipeline across their land. The TCT believes that the relevant federal environment law does not allow the Minister to make decisions for these reasons and therefore the new pipeline route is invalid and should be set aside.
2. When deciding to vary the pipeline route, the Minister did not consider the impact that the new route will have on threatened species. The TCT believes the law requires the Minister to consider this impact. Because the Minister did not do so, the decision to vary the pipeline route is invalid and should be set aside.
3. The Minister also decided to create a condition that allows the Minister to seamlessly make changes to the environment impact management plan relating to the proposed pulp mill. The new condition enables changes to the EIMP to be made without transparency. The TCT believes the law does not allow the Minister to make the new condition. As a result, the decision to make the new condition is invalid and should be set aside.
Peter McGlone