Revealing Toondah Harbour Advice to Environment Minister

The publication last week of the Federal Environment Department’s strong advice to its Minister, Tanya Plibersek, on the controversial Toondah Harbour proposal, reveals the Minister had no alternative but to reject the scheme proposed by Walker Group/Corporation (Walker). She announced her proposed rejection on 9 April, but the public was not told the full story.

The Department’s advice, contained in its ‘Recommendation Report’, was released under Freedom of Information laws. The Report is devasting for Walker. Their Environmental Impact Statement (EIS) failed comprehensively to persuade Government experts its real estate proposal was anything other than clearly unacceptable.

Tanya Plibersek and her proposed Toondah decision - letters
Tanya Plibersek announcing her proposed Toondah Harbour decision on 9 April.

Walker withdrew its application for approval shortly after Plibersek published her proposed decision. (Walker received a copy of the Recommendation Report at the same time as the Minister’s proposed decision).

Following Walker’s withdrawal, Federal Environment Minister Tanya Plibersek indicated the Toondah Harbour Priority Development Area (PDA) should never have been declared by the Newman Government. She could have added “or continued by the Palaszczuk Government.”  

After referring in the radio interview to the proposal’s negative impacts on migratory shorebirds, dugongs, dolphins, and loggerhead turtles, she said:
here’s a really good example of an area that it should have been clear from the beginning was not an area suitable to develop …because it was always obvious that it was going to have this sort of unacceptable impact.”

Impacts on Ramsar sites and migratory shorebirds

Two critical impacts integral to the Report’s recommended rejection of the proposal related to the Ramsar site and its ecological character, and migratory shorebirds and their foraging and roosting sites.

But the advice also stated there would be unacceptable impacts on other migratory species including the marine species mentioned by the Minister in her radio interview referred to earlier.

As expected, the Department completely rejected Walker’s ‘wise use’ and ‘offsets’ arguments. The Department also dealt with Walker’s curious attempt in its EIS to ignore the Ramsar Convention obligation not to delete or restrict a Ramsar site boundary unless for urgent national interests.

Minister’s duty to not act inconsistently with Ramsar obligations

The Department referred at some length to the legislative requirement on the Minister under Section 138 of the Environment Protection and Biodiversity Conservation (EPBC) Act –
“the Minister must not act inconsistently with Australia’s obligations under the Ramsar Convention”.

It discussed Australia’s obligations of ‘conservation” and “wise use’ (Article 3(1)) and our obligation not to delete or restrict Ramsar site boundaries (absent urgent national interests) (Article 2(5)) of the Ramsar Convention. It also referred to the legal requirement to interpret our Convention obligations in “good faith”.

The Department concluded its advice on section 138 of the EPBC Act, at paragraph 830 of the Report:
The department considers that if you made the decision to approve the proposed action, whether on the basis that it constitutes a ‘wise use’ or through the deletion or restriction of boundaries on the basis of ‘urgent national interest’, you would be acting inconsistently with Articles 3(1) or 2(5), respectively, of the Ramsar Convention.”

This is consistent with the Toondah Alliance’s submission on the Final EIS and the legal advice attached to that submission from Dr Chris McGrath, barrister and renowned environmental law expert.

The Department’s conclusion on the Minister’s section 138 duty is also consistent with previous official legal advice to the Department referred to in Steve Cannane’s 2018 Background Briefing Report on Toondah Harbour (the legal advice was leaked to the ABC at the time).

Indirect impacts understated by Walker

The report indicates the Department disagreed with most of what Walker put forward in its EIS, including in relation to many of the indirect impacts of the proposal. The Department’s view was indirect impacts would be more substantial than Walker claimed.

For example, the Department considered the impacts on migratory shorebird roosting sites at Cassim Island, Nandeebie, and Oyster Point, including through construction noise and increased human activity from the large increase in the local population, were unacceptable.

Another example is the Department indicated the impacts from the proposed dredging activities, including in relation to the new navigation channel, would likely be substantially more extensive than Walker claimed and would not be confined to the area of direct impact. 

Toondah Harbour
Toondah Harbour and nearby shorebird roosting sites

Aboriginal community opposition to Toondah Harbour proposal

The report illustrates the importance of the opposition to the proposal from indigenous individuals and organisations such as the Minjerribah (Moorgumpin) Elders in Council Aboriginal Corporation. Their submission on the Draft EIS is quoted at some length. A December 2023 letter, signed by 125 indigenous people from Minjerribah/Terrangeri, including many Elders, is also quoted in the report. 

This opposition was important because Walker had significant support from the Quandamooka Yoolooburrabee Aboriginal Corporation (QYAC) right to the end.

The report notes that representatives of QYAC accompanied Walker when they met with Minister Plibersek on the 7 March, 2024, gave a ‘welcome to country’, and spoke positively about Walker’s consultation with them – “they have been satisfied with how issues have been dealt with and the consultation protocols undertaken by the proponent to date.” (paragraph 773). 

However it appears the Department considered the “consultation” between Walker and only QYAC was insufficient. Walker should have consulted more widely with the indigenous community, in accordance with the Department’s indigenous consultation guidance.  

Toondah Harbour proposal was always “clearly unacceptable”

Walker withdrew its application for approval when it realised it had no chance of altering the Minister’s proposed decision. But it should have realised this nine years ago when the Department first advised Walker that its wetland destruction plan was clearly unacceptable – for environmental and legal reasons.

It was obvious there were no “urgent national interests” which could justify the scheme’s restriction of boundaries of the Moreton Bay Ramsar site.

The Toondah saga is not so much about the failure of our environment laws, although they certainly need strengthening. It is more about the failure of Federal and State politicians to respect international agreements and existing environment protection laws.

The law could not be much clearer in stipulating that the Minister, in deciding the Toondah Harbour proposal, “must not act inconsistently with Australia’s obligations under the Ramsar Convention”. The conflicts with the Ramsar Convention obligations were clear from the very beginning, as Plibersek recently observed.

Former Minister Frydenberg was given the “clearly unacceptable” advice (also published under FOI laws). He chose to ignore that advice. He was encouraged to do this by Queensland’s former Deputy Premier Jackie Trad and former Environment Minister, now Premier, Steven Miles.

Premier Miles, the only survivor, should admit his involvement in this sorry saga and make amends by ensuring the Toondah Harbour PDA is revoked well before the State Election. For too long, politicians have been entering into secret agreements to allow corporations to exploit public assets for profit, with little or no genuine return to the community. Toondah Harbour is an example of politicians ignoring the public interest and the law, to favour corporate interests.    

Richard Carew (retired environmental lawyer)
Secretary, Stradbroke (Terrangeri) Environmental and Cultural Protection Association Inc.  

Redlands2030 – 10 July 2024

4 thoughts on “Revealing Toondah Harbour Advice to Environment Minister”

  1. Thank you very much Redlands 2030. Your tireless efforts to bring us the “facts/truth” is greatly appreciated. Q: Is there any part of this report which might be helpful in efforts to scupper the PDA, as you say, before the election?

  2. Today I received Grace Grace’s not to comment reply to the Clerk of Parliament to your petition.

    ” Any alternative proposal will need to be considered against the obligations under a Development Agreement between the Walker Group and Redland City Council and also consistent with relevant state and federal environmental frameworks…..it is not possible to provide any further comment on any alternative options, implications for the state’s commercial agreement with the Walker Group or the current PDA.”

    Well there you have it a commercial agreement or obligatory Develolment Agreement seems more important than the Removal of the PDA over Ramsar Wetlands.

  3. Much admiration for your tenacity and eventual success, also in continuing to provide unbiased info upon other current matters.

  4. Thank You to every one who stood their ground against this outrageous proposal. It clearly was SO flawed – but, the powers that be thought they could squash the defenders of this area. Well done indeed….

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