Conserve & Manage Why can’t wilderness just be sacred… LAKE MALBENA!

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    Greg French

    Some of you may be aware that last year the Wilderness Society initiated Federal Court proceedings in defence of Lake Malbena. It should be noted that the federal case is separate to the tribunal hearing in defence of the Central Highland Council’s decision to reject the development application.

    For those that don’t know, this is how the federal case came into being and how things now stand:

    In March 2018 the Tasmanian state government tabled its Reserved Activity Assessment (RAA) for the proposed Malbena development. The RAA process did not allow for public submissions and seemed to ignore numerous provisions and regulations tabled in the TWWHA management plan and its subsidiary documents.

    The project then had to be subjected to the provisions of the federal Environment Protection and Biodiversity Conservation Act (EPBC). This time some 950 submissions were received, all arguing against the proposal.

    In August 2018 a delegate from the federal Environment Department, acting for the federal environment minister, deemed that the Malbena development was not a ‘controlled action’ and therefore did not require further assessment other than that already done by the Tasmanian state government. Consequently the minister approved the development and no conditions were attached. The decision ignored professional advice from UNESCO, expert government advisors, environmentalists, Aboriginal representatives and the users of the area, including fly fishers and bushwalkers.

    It was not legally possible to argue against the decision itself, so the Wilderness Society mounted a legal case against the processes that led to the decision.

    The case was heard in the Federal Court in Melbourne on Tuesday 26 March 2019 and streamed live in Hobart.

    The barrister for the Wilderness Society, Emrys Nekvapil, argued that the proposal should have been assessed under the EPBC, and that conditions should have been attached.

    The barrister for the Environment Department, Anna Mitchelmore, argued that assessment was unnecessary because the proponent had ‘promised’ to uphold world heritage values.

    As is normal in such cases, Justice Debra Mortimer reserved her decision. In part this was to allow for the handing down of a similar decision about the approvals process for a fish farm at Okehampton Bay near Triabunna, which may set a precedent.

    Everyone I know who watched the live feed of proceedings at the Supreme Court in Hobart said that the barrister for the Wilderness Society performed very well and that the barrister for the Environment Department performed less well. They were also impressed that Justice Mortimer seemed to be well informed about the Malbena development and familiar with all the big-picture issues presented by the lawyers.

    It is likely that the decision will be handed down in one or two months’ time.

    I am very hopeful that the case will be decided in favour of having the development declared a ‘controlled action’. If so, the development will have to be properly assessed under the EPBC and it is unlikely that it would be approved in its current form.


    Greg French

    As you probably know, the proponent of the Malbena development lodged an appeal against the decision of the Central Highlands Council (CHC) not to approve the development application (DA). This means that the council’s decision now has to be assessed by the Resource Management and Planning Appeal Tribunal (RMPAT).

    Cases that go before RMPAT are essentially the same as court cases. The tribunal itself comprises three scrupulously neutral experts with experience in relevant planning law. Parties appealing and parties defending a planning decision are usually represented by barristers, and expert witnesses are called to give evidence. It is an extremely expensive process for everyone involved.

    The directions hearing for the Malbena case was undertaken on Monday 25 March 2019. Barrister Shaun McElwaine will be representing the proponent. Barrister Adam Beeson will be representing the CHC.

    In addition, the CHC is being supported by a third party which includes the National Parks Association, the Wilderness Society and two independent individuals, who have joined as partners to defend against the appeal. The partners will be represented by the Environmental Defenders Office (EDO), which is yet to nominate its barrister.

    At the hearing the CHC was granted an extra ten days to give its formal reasons for refusing the DA. The partners were given a further week to broaden the grounds of the refusal.

    The appeal hearing itself will run for five days and is currently set for the week beginning 27 May 2019.

    The tribunal will base its decision entirely on whether the proposal violates or accords with the planning scheme. Nothing else will be considered.

    Even though the partners will be supported by (EDO), they will still end up tens of thousands of dollars out of pocket.

    I imagine that many among you will want to help the partners, and am in the process of determining how best to facilitate this.

    Stay tuned.



    Thanks for the updates Greg. Both are positive.

    Any outcomes will be after the federal election.

    If this proposal is declared a ‘controlled action’ – it’s good as dead.


    • This reply was modified 2 weeks, 4 days ago by  Tocs.

    Greg French

    Just for the record, the RMPAT appeal hearing for the Malbena development has been rescheduled for 24-28 June 2019.


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