Toondah developer should get ‘show cause’ notice – by Richard Carew

Senator Larissa Waters (The Greens) asking questions about the Toondah EIS at a Senate Estimates hearing

Common questions at the recent ‘Welcome Back Shorebirds’ event were – What’s happening with the Toondah Harbour proposal? Why is it taking so long to be resolved?

Responses from the Federal Environment Department to questions from a Queensland senator at a parliamentary hearing last week shed some light, but not in a positive way.

It cannot be forgotten, that late last year the public and independent experts came under intense pressure to read and make comments on the 5,400 page Draft Environmental Impact Statement (EIS) from the proponent, the Walker Group (Walker). The Department allowed us less than 2 months to do this.

In contrast, it appears there is no Departmental pressure at all on Walker to finalise its EIS, indicating an unsatisfactory and unbalanced process leading up to a decision by Environment Minister Tanya Plibersek.

This one-sided approach ignores a legislative provision designed to restore some balance when a proponent has not finalised its EIS within a “reasonable period” to enable a decision to be made.

Walker has already had nearly 11 months to finalise its EIS. According to the Department, there is no end in sight.

Department grilled on Toondah timing

Although Department officers were somewhat tight-lipped, the limited answers to questions from Senator Larissa Waters at a Senate Estimates Committee hearing last week were quite revealing. Based on the video recording of the segment, this is a summary of the responding officer’s statements indicating the Department’s approach to Walker finalising its EIS:

Walker is currently considering a large number of comments on its Draft EIS. Once they finalise that process they will give us the final document….there has been no indication from the proponent (Walker) when they might finalise the document…they are working through 26,000 comments.

Walker should not control the process

The Department’s surprising approach of effectively leaving it up to the developer to decide how long it takes to finalise the Toondah EIS does not accord with the Minister’s EPBC Act powers and responsibilities. Nor does it accord with the reality that often people don’t prioritise a task unless there is a time constraint. If there is no pressure to finish, other tasks will be prioritised.

Sure, it would take some time to take into account 26,000 comments in finalising the EIS. But most of these are likely to be generic comments. Few would have taken Walker by surprise. There is a long history of opposition to the Toondah scheme and the public has responded with comments and objections at various previous stages of this saga.

The minister’s power to intervene

Although there is no prescribed time limit accompanying the obligation to finalise an EIS, the obligation commenced when the period for public comments ended, which was 6th December last year.  

Importantly, after Walker has had what Minister Plibersek considers to be a “reasonable period” of time to finalise its EIS, the EPBC Act empowers her to step in and, under section 155, provide Walker with what amounts to a ‘show cause’ notice why the assessment process should continue.

Requests that the Minister use her power

Several environment and community groups have been asking the Minister to use her intervention power since July. A section 155 notice from the Minister would alter the current absence of anything resembling a time constraint on Walker.

But so far, no such notice has been issued by the Minister. In the light of the Department’s Senate hearing responses, a notice is called for.

This is because the Department told the Senate hearing that it does not know when Walker might finalise its EIS. Bear in mind that public servants must be truthful and not mislead at Senate hearings. The public should not have to put up with “rumours” about when Walker might finalise its EIS. We are entitled to reliable information.  

What would a ministerial notice achieve?

It would be in the public interest for a section 155 notice to be given to Walker. This would be a transparent and accountable way to obtain a written explanation for Walker’s delay, or lead to the finalisation of the Toondah EIS.  

If an explanation for the delay is provided which satisfies Minister Plibersek, or if Walker finalises its EIS and delivers it, the assessment process would continue.

But if the EIS is not finalised, and she is not satisfied by Walker’s explanation for further delay, the Minister is empowered to end the assessment process altogether. This would end Walker’s attempt to obtain Federal approval.

A s.155 notice to Walker would provide quite an incentive for it to finalise the EIS.

Issuing Walker with a notice would restore some balance between Walker’s interests in taking unlimited time, perhaps for its own strategic reasons, and the public interest in bringing what most consider a “clearly unacceptable” proposal to an end.

Richard Carew
Secretary
Stradbroke (Terrangeri) Environmental and Cultural Protection Association Inc.

Redlands2030 – 28 October 2023