Image for FOI request on ‘substantial commencement’ meaning refused. I have more pressing matters: Alex Schaap

A series of letters confirming there are legal documents related to the definition of substantial commencement of the Tamar Valley pulp mill, which have not been released.

The Original Letter of Request:

Hon Lara Giddings MP
Premier
Parliament House
Hobart Tas 7000

22 June 2011

Dear Premier,

Request for a copy of legal advice in relation to substantial commencement of the Gunns Ltd proposed Tamar Valley pulp mill

Under the conditions of its permit issued pursuant to the Pulp Mill Assessment Act 2007, Gunns Ltd has until the 26 August 2011 to make substantial commencement of its proposed Tamar Valley pulp mill or its permit will expire. We understand that the State Government has given Gunns assurances that its works to date at the Long Reach site do constitute substantial commencement and therefore, in the government’s opinion, Gunns faces no risk of its PMAA permit expiring.

Can you please provide the TCT with all advice possessed, obtained or produced by the state government in relation to the issue of substantial commencement since the enactment of the PMAA?

Yours sincerely,

Peter McGlone
Director

Cc Hon. Nick McKim MP, Leader of the Tasmanian Greens
Hon. Kim Booth MP, Tasmanian Greens Member for Bass

The Response from the Freedom of Information Officer:

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The Response to that letter, from Peter McGlone, Director, the Tasmanian Conservation Trust:

OPEN LETTER

Catherine Vickers
Right to Information Officer
Department of Premier and Cabinet
GPO Box 123
Hobart Tas 7000

18 August 2011

Dear Catherine,

Right to Information request in regard to legal advice in relation to substantial commencement of the Gunns Ltd proposed Tamar Valley pulp mill

We write in reply to your letter of 26 July 2011 in relation to the above matter.

Pursuant to section 43 of the Right to Information Act we seek an internal review of your decision to not release information in relation to the issue of substantial commencement of the Tamar Valley pulp mill.

We challenge your justification for not releasing information on the grounds that it was exempt pursuant to Sections 26 and 31 of the RTI Act.

We believe that due to the extraordinary amount of public interest which surrounds the proposed Tamar Valley pulp mill that the right of the public to have the requested information outweighs your reasons for exempting it.

We also wish to remind you that under Section 26 of the RTI Act, information is not immediately exempt just because it was provided to Cabinet – Point 5 of Section 26 states:             
(5) Nothing in this section prevents the Premier from voluntarily disclosing information that is otherwise exempt information.

Also, we do not need names of those giving advice or details of who was giving advice to whom but just the considerations that are being addressed. This is particularly relevant because the Pulp Mill is being developed not under normal planning conditions that provide for public input and discussion but under its own specific legislation.

Yours sincerely,

Peter McGlone
Director

• A hot topic on ABC Radio: Listen to Lucy Landon-Lane, Lara Giddings, HERE
Tom Baxter’s analysis is particularly interesting: HERE

• It’s not an issue for me, says Lara on pulp mill permits ...

It is unclear who will have the final say on whether Gunns has met the requirements of the its pulp mill permits, allowing the project to proceed.

The timber company has until the end of the month to show it has made substantial progress on the construction of its Bell Bay pulp mill, otherwise its permits will lapse.

Gunns says it has met permit requirements with some roads already built and earth works starting this week.

But opponents claim the project is doomed.

The Premier, Lara Giddings, does not know how much work Gunns has done on the $2.5 billion pulp mill.

“It’s not an issue for me to make a decision upon,” she said.

She says she is yet to ask for information from the relevant regulatory bodies.

Opposition leader Will Hodgman says it is not not good enough for Ms Giddings to be uninformed about such a massive project.

Mr Hodgman would not be drawn on whether he supported an extension for Gunns.

“I am not going to speculate as to what may or may not happen or what may be required,” he said.

The Greens MP Kim Booth has promised to block any attempts to give the timber company extra time.

Gunns says it will meet the permit requirements with some roads already built and earthworks starting within two weeks.

More, ABC Online HERE

• Gunns cannot extend permits, but it’s not necessarily an issue for us, says EPA ...

BY DINAH ARNDT
20 Aug, 2011 08:41 AM

GUNNS Ltd won’t be able to extend state permits for its $2.3 billion Bell Bay pulp mill that expire at the end of this month, according to the Environment Protection Authority.
However, what and who determines “substantial work” - which must be done by August 31 under the permits - is unclear.

Authority director Alex Schaap said yesterday that he was unaware “of any process by which the pulp mill permit can be extended in the event that it would otherwise lapse”.

When asked who defined and decided whether the criterion of “substantial works” had been met by Gunns, Mr Schaap said that would be dealt with if and when the matter arose.

“It has not been necessary yet for the purposes of administration of the EMPCA (Environmental Management and Pollution Control Act) to determine whether the pulp mill project has substantially commenced and no definition of substantial commencement has been developed for that purpose,” he said.

“If such a determination does become necessary then it will be made in accordance with legal advice relevant to the circumstances that pertain at that time.”

Mr Schaap said it was inappropriate for him to speculate on how such a determination would be made, but said it was possible that would be done by any of the planning authorities or regulators involved with the major project.

These include the West Tamar, Launceston City and George Town councils; the Justice Department; the Infrastructure, Energy and Resources Department; the Health and Human Services Department; and the Primary Industries, Parks, Water and Environment Department.

On Thursday, Gunns managing director Greg L’Estrange accused the state government of misleading it over a commercial settlement and criticised continuing delays.

Premier Lara Giddings said yesterday that a commercial settlement would only be offered after the probity process by Wise, Lord and Ferguson had finished - as was announced on Thursday.

“The appropriate course of action is to reach a commercial settlement with the company,” she said.

Examiner HERE

• John Hawkins: My letter to Alex Schaap ...

I have written to and received this reply from the Director of the EPA , Alex Schaap (see below).

This is the most important matter to confront his Authority in recent times. In my opinion his flippant reply lacks any understanding of the importance and seriousness of his position and his power to affect the lives of thousands: For Gunns it is life or death;  for the ANZ with a mortgage over the Permits who will need to sell the project as a going concern; for the Government who could lose power should his decision force the extension of Permits to come before Parliament;  and for the future of the Timber industry and its Employees in this State.

All these people will literally hang on his every word.

Schaap “has no thoughts or opinions on the matter”, and in other forums he is quoted that “he has not sought advice”.

It was his Authority that asked the Government to extend the Permits for another 2 years. He will be the man of the moment when the Premier asks him to make an independent thumbs up or thumbs down decision based on the wording “Substantial Commencement” and ” The Permits will Lapse “ which no one can appeal under Section 11!

It is untrue to say nobody has formed a view: the Premier has two commissioned legal views that she will not release under FOI .

This toxic and corrupt matter has brought down Lennon and Bartlett and will soon see the end of Giddings.

The Mill will always shelter under Section 11: for example the Chief Justice Crawford has recently allowed his Court to illustrate the power of Section 11 over good governance at great cost to those involved.

Schaap, should he give the thumbs up, will make his EPA powerless under Section 11 now and for ever to protect the people of this state from the Mill and its pollutants.

As Dave Groves says: The show is not over yet

The response from Alex Schaap

Dear Mr Hawkins,

It is possible that I (or indeed any of a number of regulators) may need to determine if a valid permit exists and if that situation occurs I will take advice on the matter.  In the meantime I have many more pressing issues of environmental management to occupy me and I have no thoughts or opinions to offer on the matter.

The letter to Alex Schaap
 
Dear Mr Schaap,

You are the Director of the Environment Protection Authority and I wish you to determine and define the words “Substantially Commenced” in reference to the Gunns Pulp Mill Clarification Bill passed through the Parliament on the 30th August 2009. These permits will lapse after the 30th August 2011 should “Substantial Commencement” have not taken place.

You as the Director of the EPA will be the chief regulating officer of the Gunns Pulp Mill if it goes ahead. Your Authority raised the matter of the pulp mill permits lapsing in 2009 which resulted in the Clarification Bill, as the prime mover then, you presumably, are the prime mover now.

Your thoughts will oblige, preferably by return email as time is short.

John Hawkins