Gunns’ proposed pulp mill in the picturesque tourist region of the Tamar Valley in Tasmania, Australia is in the Courts again.

There has been a litigation revolution in Australia in recent years.  Court cases are more often bringing an end to proposed environmentally-damaging actions.

In September 2010, the Supreme Court in Victoria, Australia restrained the State’s logging arm from clear-felling native forest following evidence that it is home to endangered species.  A non-government, not-for-profit organisation named Environment East Gippsland Inc brought the case after the government refused to follow the law and stop the logging.

Again, in September 2011, another non-government, not-for-profit organisation named MyEnvironment Inc achieved an injunction in the Supreme Court to stop logging of habitat that it says contains endangered species in the Central Highlands of Victoria, Australia. 

There have been a number of Court cases brought against the environmentally-destructive proposed pulp mill.  Those cases criticised components of various government decisions.  For the first time, a case is now on foot which attacks the absolute ability of the pulp mill to proceed.

The law in Tasmania is very clear.  The project had to have “substantially commenced” by 30 August 2011.  The government has said it will not change the law.  Even if it tried, it might have difficulty getting a change through parliament. 

The definition of “substantial commencement” has been determined by Australian Courts in previous cases.  It is difficult to comprehend how a project like the proposed pulp mill could have substantially commenced when, at 30 August 2011, the site had been cleared of some trees and subsequently re-vegetated. 

It is also hard to understand how spending money on applying for a permit, as Gunns said it did, forms part of substantial commencement.  As a matter of law, it commonly does not. 

Just like when the government refused to accept that endangered species were present in native forest scheduled for logging, the government has refused to accept that substantial commencement of the proposed pulp mill has not been met.  The government basically said it is a matter for the Supreme Court.  The government then buried its head in the sand and did not ask the Court to make the decision. 

Now, the not-for-profit, non-government organisation named the Tasmanian Conservation Trust Inc has performed that duty and commenced a case in the Supreme Court of Tasmania, Australia.  The case asks the Supreme Court to determine that substantial commencement has not been met. 

The Supreme Court’s decision could be appealed to the High Court of Australia.  The case is so decisive to the determination of the proposed pulp mill that it is likely to get to the High Court.  The case could be in Court for years. 

With its history of litigation, the pulp mill proposal is likely the most litigated proposed project in Australia’s history and more Court cases could follow.

The signs say that if a Court finds that the project was not substantially commenced by 30 August 2011, the project is over. 

The case demonstrates genuine uncertainty for any future for the project.