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

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  • #758733

    Greg French
    Participant

    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.

    #758865

    Greg French
    Participant

    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.

    #759983

    Tocs
    Participant

    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.

     

    #762406

    Greg French
    Participant

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

    #763641

    BarryJ
    Participant
    #781564

    Johnrs
    Participant

    Shooters Fishers and Farmers party lines up to oppose the proposal😃😃

    http://bushwalk.com/forum/viewtopic.php?f=3&t=27619&start=360#p374321

    #781810

    BarryJ
    Participant

    For all those able to make it, there is a rally in Hobart on Saturday 11th May (this coming Saturday) at Parliament Lawns from 12pm to 2pm.

    Please make an effort to come along to support the campaign.

    #781903

    flylife
    Moderator

    Thanks BJ. A lot has been happening with the Premier and Attorney General now attacking the validity of local councils (or anyone else it seems) having any say in what happens on crown land. Sounds like the Premier and fellow government members (if they even have a majority at present) regard themselves as the only people in the community with the planning credentials to assess the project, and an assurance from the proponents that the environment ‘won’t be harmed’ is all that’s needed…

    #781908

    woody-wood
    Participant

    Unfortunately it seems that when money is involved and to be made, ethics and morals are expendable.

    #781912

    BarryJ
    Participant

    We should not lose sight of the fact that Lake Malbena (until a couple of years ago) was classified as a “Wilderness Zone” within the WHA. It has now been designated as a “Self Reliant Recreation Zone” within the WHA; he State Government surreptitiously changed its designation without any consultation with stakeholders to assist with the approval process.

    #782989

    flylife
    Moderator

    An update from Greg French:

    Hi everyone

    As you are probably aware, the proponent of the Malbena development, in cahoots with the state government, has lodged an appeal against the Central Highlands Council’s decision to reject the development application (DA). So much for the proponents’ insistence that we must learn to respect the umpire’s decision. The appeal is scheduled for 24-28 June 2019.

    The tribunal hearing is essentially the same as a court case. It will involve barristers and expert witnesses, and all parties will be forced to spend tens of thousands of dollars to defend themselves.

    The CHC will be defending their decision. Moreover, a partnership of interested parties including the Tasmanian National Parks Association (TNPA) and several independent individuals will be supporting the council (with different barristers and expert witnesses).

    The cases to be presented by the CHC and the Partners are very strong, and it seems that the state government is very scared. The Malbena development was always going to be a test case for privatising other places in the TWWHA, including the Western Lakes, and now the whole of the government’s Expressions of Interest (EOI) program is in jeopardy. Consequently the government has sought leave to argue that the CHC should never have been consulted in the first place, that developments in national parks and World Heritage areas should not be subjected to development applications at all, implying that everything should be at the minister’s discretion. The government has also sought to have the PWS support the proponent of the Malbena development should the appeal be deemed necessary. (This should be interesting as the PWS actually mandated that a DA or other consultative process be undertaken.)

    Now, to the pointy bit:

    The Partners helping the CHC defend its position will need at least $50,000 (perhaps much more) to run their case. To this end, the Tasmanian National Parks Association has launched its Lake Malbena Appeal Fund (https://tnpa.org.au/donate/). If the CHC loses its case, it’s open slather on privatisation of the Western Lakes. Also, no matter whether the case is won or lost, the independent voices in the partnership will be well out of pocket if donations are not forthcoming. These independents are colleagues of mine, and have been instrumental in getting the case as far as it’s got. We owe them a debt of gratitude.

    The Tasmanian National Parks Association (https://tnpa.org.au/) is a non-profit, non-government organisation committed to the protection of Tasmania’s national parks and reserved lands. It aims to give park users a voice and involve the community in matters affecting these important and invaluable areas. I wholeheartedly support the TNPA.

    If you care about the future of the Western Lakes, please donate generously.

    Sincere thanks

    Greg

     

    #783913

    garygreene
    Participant

    Thanks for the update. Hopefully the donations will come rolling in. As you say…this really is about the future of the Western Lakes.

    #784043

    Tocs
    Participant

    A modest amount tipped in.

     

     

     

     

    #784055

    chf
    Participant

    Donation made !

     

    #784059

    DrGraham
    Participant

    Many thanks to Flylife and Greg French for continuing to push this issue and providing the TNPA link to donate to the legal fund. I’ve made my donation, I wish it could be much more as the TNPA seems well short of its target. This issue is not just confined to Hall’s Island/Lake Malbena, or the Tasmanian Wilderness World Heritage Area, or just relevant to Tasmania. If this proposal gets up, the rest of the TWWHA and other Tasmanian National Parks will not be safe from development, contrary to the whole purpose of national parks. A precedence will be set for other states and the federal government to follow. I don’t expect Kosciusko, Flinders Chase, Ningaloo, Great Barrier etc will be safe. I see Lake Malbena as the line in the sand. This type of development must be stopped here.

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