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Lake Malbena Federal Court Decision

Cassy O'Connor MP  -  Wednesday, 13 November 2019

Tags: Reserve Activity Assessments, Parks EOIs, Lake Malbena

Lake Malbena Federal Court Decision: Cassy O'Connor, 13 November, 2019


Ms O'CONNOR (Clark - Leader of the Greens) - Madam Deputy Speaker, an ad has appeared on Gumtree today, or maybe it appeared yesterday, but it says, 'Islands, islands, islands - $1'. It is an ad that is based in Hobart. I do not know if it has come out of the minister's office, but it says:

Islands for sale in Tasmania. Perfect for development. Located in picturesque wilderness protected for decades for their natural values, now up for grabs.

I have $1 here. That is what it cost Daniel Hackett to get a lease over Halls Island. We are wondering, if we pay $20, could we get a lease over the whole TWWHA and look after it for future generations?

I wanted to go into some of the detail of the Federal Court's decision in relation to the Lake Malbena proposal. It is very clear, despite the Parks minister's histrionics this morning, that the decision handed down by the Federal Court yesterday is a mess that is all of this Government's making. The federal decision was based on a Reserve Activity Assessment which was written by the proponent, lodged at level 3 in a secretive process. A level 3 RAA means there is no requirement for public consultation, which promised a world of mitigation measures.

Standing there arm in arm with the proponent, the sadly politicised Parks and Wildlife Service said at every stage the risk to World Heritage values was low to moderate and could be mitigated. Guided by this Reserve Activity Assessment, the federal Environment department decided that the Lake Malbena proposal was not a controlled action so it was not captured by the EPBC Act. Justice Mortimer made it clear in her judgment that the federal Department of Environment should not have counted on the RAA in making its determination that the Lake Malbena proposal was not a controlled action because the RAA has no statutory weight. The RAA has no weight in law.

There were many promises contained within the Reserve Activity Assessment at level 3 that was lodged with the Commonwealth which was not made public. It was leaked to the Tasmanian Greens. It would not have been seen by the people of Tasmania unless someone had leaked it to us but, as Justice Mortimer confirms, because it is an RAA with no statutory weight, any number of the promises for mitigation can be broken within it. The crime against nature here is that the Tasmanian Parks and Wildlife Service split that proposal in two and lodged a level 3 Reserve Activity Assessment just for the activities around Halls Island. It did not lodge with the federal Environment department any information on what he had created as a stage 2 which would have significant impact on Aboriginal cultural heritage values. This was a politicised Parks and Wildlife Service doing a national environmental law workaround for a private developer after this Government, in a process that was not made public, handed over a lease of not only Reg Hall's hut but the entirety of Halls Island to Daniel Hackett and Wild Drake Pty Ltd.

The Parks and Wildlife Service is at the heart of corrupting this process. Of course they have done that for their masters, the same masters that directed them to rewrite the Tasmanian Wilderness World Heritage Area Management Plan to enable the EOI process and the developments and specifically, the proposal for Lake Malbena. It is a fact and it is now clear that matters of national environmental significance were not assessed by the federal Environment department. The impact of Aboriginal cultural heritage was not assessed by the federal Environment department because that information was withheld by the proponent under guidance from the Parks and Wildlife Service in order not to have that proposal elevated to a higher level of assessment under the EPBC Act. There was no impact on the wilderness values of the Tasmanian Wilderness World Heritage Area under that flawed proposal.

Mr Gutwein absolutely did his lolly this morning when we accused him of being part of a process that was a stitch-up that shut Tasmanians out of having a say over developments in their public protected lands. He accused me of not knowing what was in this judgment. By his answer I can only gather that he either half-read this judgment or he really got a briefing on it, because if he read this judgment he would know it is a damning indictment on the expressions of interest process. It is a damning indictment on the way the Parks and Wildlife Service has been politicised.

There are chapters in here about the Parks and Wildlife Service where Justice Mortimer says:

Separating an action into components may affect the length and complexity of any process under the EPBC Act. It may also lead the minister or delegate in the department failing to appreciate the true level of impact of an action, or failing to understand how mitigation measures proposed to be taken or which might be imposed will operate in a context where further and subsequent action are planned or approved.

Again, 168 - it was the Parks and Wildlife Service, not Wild Drake, which split the proposal for the purposes of the RAA into two parts. A copy of the RAA documentation in the court book indicates the proposal was divided into two stages under that process, in particular at step 8, draft final determination, where it is stated:

This RAA proposal has been broken into two stages of activities. Stage 1 has been approved while stage 2 activities require additional assessment and approval.

It was the Parks and Wildlife Service which split the action into two stages during the RAA process.

There are other really truly damning statements in here by the Justice. For any member of this House also concerned about the privatisation of Tasmania's public protected areas, I highly recommend that you have a look at this. The decision not to assess the Lake Malbena as a controlled action under the EPBC Act has been condemned by the Federal Court. It does not matter what spin this Government puts on it, it is a damning judgment, regardless of the hysteria we saw from the Minister for Parks today. The judge found the federal government's decision was not sound because, in shorthand, it was politicised and a corrupted process. I still have $1 on the table for any island the minister for Parks wants to sell the Greens.