Footnotes

Chapter 1 - Overview

[1]           The inquiries referred to were conducted by the Senate ECITA Legislation Committee as well as the ECITA References Committee. The committees share secretariat resources and most committee members.

[2]           The Commonwealth's submissions were made variously by Environment Australia (the Department of the Environment; now the Department of the Environment and Heritage) and by the Great Barrier Reef Marine Park Authority (GBRMPA). In the Port Hinchinbrook matter GBRMPA has no statutory role but has been acting as the agent of the Minister.

[3]           Cardwell Properties P/L, Submission 83, annexure C.

[4]           See paragraphs 3.42ff.

[5]           For example R Walker, Submission 137, p 617; L Hallam, Evidence 30 July 1998, p 12.

[6]           Cardwell Properties P/L, Submission 83, p 16 & attachment A, p 3; Friends of Hinchinbrook, Submission 129, p 591;  L Hallam (Cardwell Chamber of Commerce), Evidence 30 July 1998, p 3; C Kuskopf, Evidence 30 July 1998, p 81.

[7]           Cardwell Properties P/L, Submission 83, p 6. L Hallam, Submission 106, p 427. For example G Bateman, Submission 73, p 247; K Williams (Cardwell Properties P/L), Evidence 10 August 1998, p 303.

[8]           For example: North Queensland Conservation Council, Submission 112, p 451, further information 17 March 1999, p 350,352 & 19 June 1999, p 785; Cairns & Far North Environment Centre, Submission 50, p 144.

[9]           Cardwell Properties P/L, Submission 83, annexure C. See also, for example, M Prior, Evidence 30 July 1998, p 110: ‘... It was only when Keith Williams actually bought the site with all the permits in place that people started objecting ... I think it is some personal political agenda - that people do not like Keith Williams perhaps.’ On the other hand, the Wildlife Preservation Society of Qld (Tully & District Branch) gave evidence that it was expressing concern about the development, and urging the authorities to make an environmental impact study, as early as 1987. Wildlife Preservation Society of Qld (Tully & District Branch), Submission 49, p 136-7.

[10]         K Williams (Cardwell Properties P/L), Evidence 10 August 1998, p 309ff; 24 August 1998, p 332.

Chapter 2 - Description of Port Hinchinbrook

[1]           Cardwell Properties P/L, further information 24 February 1999, p 110.

[2]           It was pointed out that strictly the Hinchinbrook Passage is the whole waterway between the mainland and Hinchinbrook Island, and the Hinchinbrook Channel is the navigable route in the centre of the passage. But most witnesses spoke of the Hinchinbrook Channel indiscriminately (as do topographic maps), and for simplicity this report will follow that lead.

[3]           For example, North Queensland Conservation Council, further information 8 March 1999, p 197.

[4]           Environment Australia, Submission 157, p 16.

[5]           Cummings & Burns plan of Oyster Point, August 1987.

[6]           Cardwell Properties P/L, Masterplan Port Hinchinbrook, 931084 CP3 1, March 1994.

[7]           The rezoning was supported by Cardwell Shire Council (with conditions) at a meeting of 27 May 1999, and is now (August 1999) being considered by the Queensland Department of Communication and Information, Local Government and Planning. Cardwell Shire Council, further information 4 August 1999, p 824.

[8]           Cardwell Shire Council, Submission 158, p 790.

[9]           Environment Australia, Submission 157, attachment A, p 2.

[10]         Cardwell Properties P/L, further information 9 February 1999, p 4. Similarly K Williams (Cardwell Properties P/L), Evidence 24 August 1998, p 326: ‘If you multiply out the various things on the Tekin plan, it comes to about 2,600 people...’

[11]         Cardno & Davies, Port Hinchinbrook Resort at Cardwell - compilation of information, March 1994, p 7.

[12]         Queensland Department of Environment and Heritage, Environmental Review Report - Port Hinchinbrook, May 1994, p 1.

[13]         Under the EPIP Act, a Commonwealth authority proposing an action that is likely to affect the environment to a significant extent must refer the matter to the Environment Minister, and the Environment Minister may require an Environmental Impact Statement or (typically in less important cases) a Public Environment Report. ‘Action’ includes decision, and therefore would have encompassed GBRMPA’s decision on the application to do work in the Great Barrier Reef Marine Park.

[14]         Cardno & Davies, Port Hinchinbrook Resort at Cardwell - compilation of information..., March 1994, p 12ff,20,23.

[15]         The boundary of the Great Barrier Reef Marine Park at this point is ‘the mainland at low water’. The legal advice concerned whether Hinchinbrook Island was so closely aligned with the mainland as to be effectively part of it in common law. The North Queensland Conservation Council argued to this inquiry that GBRMPA prompted a positive answer (which would have the effect of excluding the island and channel from the GBRMP). GBRMPA’s position at the time was ‘...the opinion of the most senior legal advisor in the Commonwealth government, the Solicitor-General, was sought and his view was that a court would most likely find that the Hinchinbrook Channel is internal waters of Queensland’ [emphasis added]. North Queensland Conservation Council, further information 30 March 1999, p 462-3, p 487 quoting GBRMPA to D Haigh 17 November 1993.

[16]         ‘It may have been open to the GBRMPA to make regulations under s66(2)(e) of the GBRMP Act, which allows regulations to be made for the purpose of prohibiting or regulating acts, whether inside or outside the Marine Park, that may pollute waters in a manner harmful to animals and plants in the Park. However, no such action was taken by the GBRMPA.’ Sackville J, Friends of Hinchinbrook Society Inc. v. Minister for Environment & others, 55 FCA (14 February 1997), p 9, 69 FCR 28 at 40. GBRMPA’s position at the time was ‘there is no reason for the authority to invoke this power.’ North Queensland Conservation Council, further information 30 March 1999, p 487, quoting GBRMPA to D Haigh, 17 November 1993.

[17]         Queensland Department of Environment and Heritage, Environmental Review Report - Port Hinchinbrook, May 1994, p 1,14.

[18]         DEST, minute to Minister 14 October 1994, p 2; G Early (DEST) to J Bimrose (Qld Office of the Co-ordinator General), 3 June 1994, p 8.

[19]         G Early (DEST) to J Bimrose (Qld Office of the Co-ordinator General), 3 June 1994.

[20]         P Valentine, Hinchinbrook Area - World Heritage Values and the Oyster Point Proposal - a report to DEST, August 1994, p ii-iii.

[21]         Senator Faulkner, letter to Qld Minister for Environment and Heritage, Molly Robson, 29 September 1994, précised in Environment Australia, Submission 157, Attachment A, p 3.

[22]         World Heritage Properties Conservation Act 1983, sections 7,9,10. The Act gives a court power to grant an injunction restraining a person from doing an unlawful act (section 14), but creates no other penalties for doing an unlawful act.

[23]         Formally, the Governor-General on Senator Faulkner’s advice.

[24]         The Hon. J Faulkner, Minister for the Environment, Commonwealth proclaims Hinchinbrook to protect world heritage values, media release 15 November 1994.

[25]         Sinclair Knight Merz, Port Hinchinbrook - Environmental Risk Assessment with reference to activities requiring Ministerial Consent, April 1996.

[26]         Sinclair Knight Merz, Oyster Point Baseline Water Quality and Turbidity Studies, report for [Qld] Office of Major Projects, May 1996.

[27]         R Reichelt, Overview of the scientific reviews of “Port Hinchinbrook Environmental Risk Assessment with reference to activities requiring Ministerial Consent”, 9 June 1996, p 1.

[28]         Four of the six reviewers, though not specifically asked, raised broader issues, and in the Committee’s view Dr Reichelt reported their comments fairly and prominently in his summary. The complaint is essentially that the Minister, in making his decision, seized on the one sentence in Dr Reichelt’s summary most favourable to the development (‘... could go ahead without significant impact on the immediate environment around Oyster Point, that is, within a few hundred metres ...’) and passed over all the cautions.

[29]         The Hon. R Hill, Minister for the Environment, Port Hinchinbrook, press release 9 July 1996.

[30]         The Hon. R Hill, Minister for the Environment, Strict conditions set for Port Hinchinbrook, press release, 22 August 1996.

Chapter 3 - Discussion of Port Hinchbrook approval processes

[1]           Wildlife Preservation Society of Queensland (Tully & District Branch), Submission 49, p 136-7.

[2]           Similarly, the Wildlife Preservation Society of Queensland said: ‘Queensland Department of Harbours and Marine had already stated that “the area at Oyster Point should not be developed as a boat harbour” (p 9, chapter 2, Boat Harbour Feasibility Study for Cardwell Shire and Nearby Areas, 1980). ‘The site at Oyster Point would be expensive to develop and would provide only limited areas for future expansion and development”, and “the boat harbour mooring area and entrance channel would be subject to severe siltation.”  and “a high capital investment would be required before any vessel could be moored at all” (ibid, p13).’ Submission 121, p 501.

[3]           Environment Australia, Submission 157, attachment A, p 1; D Haigh, Submission 57, p 172.

[4]           Local Government Act 1936-1988 (Qld) as at 1987, s32A(1): ‘A Local Authority, when considering an application for its approval, consent, permission or authority for the implementation of a proposal under this Act or any other Act, shall take into consideration whether any deleterious effect on the environment would be occasioned ...’  s32A(2): [a Local Authority may adopt a policy prescribing environmental impact studies, and the matters they should deal with, for certain types of proposals as described in the policy] ... s32A(5) ‘[In the absence of a policy relevant to a particular proposal] where ... the Local Authority is of the opinion that the implementation of such proposal may have a deleterious effect on the environment, it may cause the applicant, at his expense, to submit an environmental impact study report and statement of impact in respect of his application and in that event shall specify the matters and things which shall be dealt with in such report and statement.’ Section 32A was inserted by Act no. 83 of 1973. Similar provisions were in the Act’s successor, the Local Government (Planning and Environment) Act 1990): sections 8.2(1), 8.2(12). Now the Integrated Planning Act 1997 applies.

[5]           In the 1990 Act designated developments included ‘tourist resort development with accommodation for more than 1,000 people (including staff)’. Local Government (Planning and Environment) Act 1990, section 8.2.  Local Government (Planning and Environment) Regulation 1991, section 16 & schedule 1. However, even under the 1990 Act, environmental assessment of designated developments was not mandatory: under certain conditions the Minister could decide that it was not necessary: section 8.2(4).

[6]           Queensland Department of Environment and Heritage, Environmental Review Report - Port Hinchinbrook, May 1994, p 1,14.

[7]           Questions by the Committee: further information p 64ff; replies of Qld Department of Premier & Cabinet, further information, p 702ff. The question which the State passed over in silence was: ‘Did the State have the power to demand an Environmental Impact Statement in 1993-94; if so, why did it not do so?’

[8]           J Mickel, Office of the Premier, to North Queensland Conservation Council, 21 October 1994.

[9]           We are uncertain of the source for ‘EIS only required when the proposed development was to accommodate more than 2,000 guests’. In fact the Local Government (Planning and Environment) Act 1990 cast a broad duty on local councils deciding development applications to take into account environmental effects. Where a council considered that a proposal might have ‘a deleterious effect on the environment’, the Act imposed a duty on the council to ‘require the applicant to submit an environmental impact statement’ (this was a duty, not merely a discretion, as in the previous Local Government Act 1936 - see paragraph 3.2 above, footnote).  The Act prescribed a list of ‘designated [types of] developments’ which the State government had a role in assessing. These  included ‘tourist resort development with accommodation for more than 1,000 people ...’. The Act was not at issue in the case of Port Hinchinbrook in 1994 because Cardwell Shire Council had decided that no further town planning application was necessary - see paragraph 2.19. Local Government (Planning and Environment) Act 1990, section 8.2; Local Government (Planning and Environment) Regulation 1991, section 16 & schedule 1.

[10]         For example, Wildlife Preservation Society of Queensland (Tully & District Branch), Submission 49, Appendix 1; North Queensland Conservation Council, further information 10 March 1999, p 234.

[11]         For example, Environment Protection and Biodiversity Conservation Act 1999 (Cth), sections 158(4) & 303A; Australian Heritage Commission Act 1975 (Cth), section 30(1). An exception is in section 13 of the World Heritage Properties Conservation Act 1983: ‘In determining whether or not to give a consent pursuant to section 9 ... the Minister shall have regard only to the protection, conservation and presentation, within the meaning of the [World Heritage] Convention, of the property.’

[12]         Marine Parks Regulation 1991 (Qld), section 9. We say ‘the prime purpose of the Act is implicitly nature conservation’ deliberately. The Marine Parks Act 1982 contains no purpose clause. Its gist is simply, ‘The Governor-in-Council may declare marine parks.’ A ‘marine park’ is simply ‘an area ... declared under this Act as a marine park.’ Criteria for declaring a marine park are uninformative (for example, section 12(1)(a) ‘the suitability of the area for the purposes of a marine park ...’). Most of the Act is administrative and procedural matters.

[13]         The developer says that Tekin ‘only had approval in principle for the [access] channel...’ (Cardwell Properties, Submission 83, p 7; emphasis added). We are uncertain what this refers to. The 1994 Environmental Review Report (p 1) says, ‘Approvals pursuant to section 86 of the Harbours Act 1955 were granted in 1988 for excavation of a marina basin and associated bund walls and, in 1989, for plans for construction of revetment walls, boardwalks and a boat ramp within the above marina. Approval from Department of Primary Industries was also given for mangrove removal in the marina basin. These approvals did not include construction of any access channel to the basin.’

[14]         The 1988 rezoning was conditional on development being ‘generally in accordance’ with Tekin’s 1987 Cummings and Burns Masterplan. Cardwell Shire Council had decided that the 1994 plan was ‘generally in accordance’, and so did not require any further town planning application - see paragraph 2.19.  Some environment groups argued that the 1994 project was significantly different and the Council should not have so decided.

[15]         Marine Parks Regulation 1990 (Qld), section 9(4): ‘The chief executive [of the Department of Environment and Heritage] may request an applicant for permission to give the chief executive further written particulars (including an environmental impact statement) as the chief executive may reasonably require to properly consider the application.’ The argument would turn on the meaning of ‘reasonably’.

[16]         J Mickel, Office of the Premier, to North Queensland Conservation Council, 21 October 1994.

[17]         See particularly North Queensland Conservation Council, submission 112a, p 40ff; also for example, Wildlife Society of Queensland, Submission 121, p 502ff.

[18]         For example, P Sutton (Wildlife Preservation Society of Queensland, Hinchinbrook Branch), Evidence 30 July 1998, p 120.

[19]         North Queensland Conservation Council, Submission 112, p 450.

[20]         Judicial Review Act 1991 (Qld), sections 21, 23.

[21]         D Haigh, Submission 57, p 174.

[22]         Marine Parks Regulation 1990, section 9(6).

[23]         Cairns & Far North Environment Centre, Submission 50, p 144; Wildlife Preservation Society of Qld (Townsville Branch), Submission 97, p 395; North Queensland Conservation Council, Submission 112, p 450, further information 17 March 1999, p 342ff, further information 30 March 1999, p 557ff.

[24]         Queensland Conservation Council, Submission 117, p 477.

[25]         North Queensland Conservation Council, Submission 112, p 457; see also Wildlife Preservation Society of Queensland (Bayside Branch), Submission 3, p 11; Wildlife Preservation Society of Queensland (Townsville Branch), Submission 97, p 396.

[26]         The Hon. R Welford, Minister for Heritage and Minister for Natural Resources, to North Queensland Conservation Council, 1 April 1999. NQCC, further information 21 April 1999, p 658-9.

[27]         ‘While we agree with the findings of the Valentine report regarding the inadequacies of the EIS process; the lack of adequate baseline data; the lack of project detail; the nature of the likely impacts; and that most of the impact associated with the resort detail with better knowledge and management, could be overcome - we disagree with the findings regarding the inappropriate location of the proposed development at Oyster Point (we believe that existing planning strategies and documents produced by the Federal and State Authorities have recognised Cardwell and Oyster Point as a potential tourist node and have zoned adjacent World Heritage areas accordingly); and we question the implication that all of the impacts listed as critical are the responsibility of the developer. We believe that most of the concerns could be overcome or managed more effectively by an open and frank discussion by all interested parties, and tabling of an agreed environmental monitoring and proactive management programme which has appropriate incentives and disincentives to ensure its compliance, and adequate resourcing to ensure its effectiveness.’ Loder & Bayly (J Wood & R Ison), A Review of the Draft Valentine Report Regarding World Heritage Values and the Oyster Point Proposal, 8 July 1994, p 8.

[28]         Queensland Department of Premier and Cabinet, further information 21 April 1999, p 704.

[29]         The Deed of Agreement (1994), and the Deed of Variation which joined the Commonwealth to the Deed (1996), are reproduced in Environment Australia, Submission 157 attachments D & E.

[30]         This refers to considerations such as: whether administrative decisions were within power in terms of the enabling statute; whether they followed correct procedures; whether they considered relevant matters and not irrelevant matters, having regard to the statutory limits of the decision-maker’s discretion; whether they afforded natural justice to applicants.

[31]         J Mickel, Office of the Premier, to North Queensland Conservation Council, 21 October 1994.

[32]         Queensland Conservation Council, Submission 117, p 477; North Queensland Conservation Council, Submission 112, p 454.

[33]         Cardwell Properties P/L, Submission 83, Annexure A, p 2.

[34]         ‘GBRMPA have advised that the Deed is not being complied with in that an Independent Monitor has not been appointed and certain works are occurring before the Turbidity Control Plan has been approved by the Commonwealth ... (the Hon. R Hill, Minister for the Environment, Port Hinchinbrook, press release 27 November 1996)

[35]         Environment Australia, Submission 157, p 22-3.

[36]         Queensland Acid Sulfate Soils Investigation Team, A Report of the Acid Sulfate Soil Situation, Port Hinchinbrook Development Site, March 1999.

[37]         Environment Protection and Biodiversity Conservation Act 1999, sections 11,12.

[38]         See Senate Environment, Communications, Information Technology and the Arts References Committee, Commonwealth Environment Powers, May 1999, Recommendations 11 &12.

[39]         R Reichelt, Overview of the scientific reviews of “Port Hinchinbrook Environmental Risk Assessment with reference to activities requiring Ministerial Consent”, 9 June 1996, p 1. Dr A Preen, Evidence to Senate ECITA References Committee Commonwealth Environment Powers inquiry, 24 April 1998, p 207-8.

[40]         D Haigh, Submission 57, p 181-2. Similarly North Queensland Conservation Council, Submission 112, p 446; Queensland Conservation Council, Submission 117, p 475; P Valentine, Submission 136, p 612.

[41]         The Hon. R Hill, Statement of Reasons for my decisions under ... the World Heritage Properties Conservation Act 1983 (attachment K to Environment Australia, Submission 157), p 4. Senator Hill’s reasons quote verbatim the key sentence of Dr Reichelt’s summary (‘... could go ahead without significant impact on the immediate environment around Oyster Point, that is, within a few hundred metres ...’) and make no reference to any other part of it.

[42]         D Haigh, Submission 57,  p 176,183; North Queensland Conservation Council, Submission 112, p 447-8. The Great Barrier Reef is listed in the Register of the National Estate, so section 30 of the Australian Heritage Commission Act 1975 applies: a Commonwealth decision-maker may not take any action (including, make a decision) that adversely affects a listed place unless there is no feasible and prudent alternative.

[43]         Cairns & Far North Environment Centre, Submission 50, p 144,149; D Haigh, Submission 57, p 180; Queensland Conservation Council, Submission 117, p 476; Environmental Defender’s Office Ltd, Submission 144, p 662.

[44]         D Haigh, Submission 57, p 174.

[45]         P Valentine, Submission 136, p 612. The Prime Minister, Mr Howard, was quoted in the Townsville Bulletin of 24 July 1996 as saying: ‘I got personally involved in the decision because I knew it was a real sort of test of whether or not we could deliver in real terms to regional areas.’ Both he and the Deputy Prime Minister, Mr Fischer, made several public statements around this time (in advance of Senator Hill’s 22 August consent) supporting the development. In fairness it should be noted that Senator Hill had already (by press release of 9 July) announced that he was ‘inclined to consent’ providing he could be satisfied that best engineering practices could be ensured. The Hon. J Faulkner, Senate Hansard 8 October 1996, p3632. The Hon. J Howard, A.M. [radio program], 11 July 1996; Herbert electorate dinner: transcript of address, 19 July 1996. The Hon. T Fischer, A.M., 10 July 1996. The Hon. R Hill, Port Hinchinbrook, 9 July 1996.

[46]         For example, Prof. I White, Submission 127, p 573, Evidence 10 August 1998, p 256.

[47]         Environment Australia, Submission 157, p 18.

[48]         Environment Australia, Submission 157, Attachment K, statement of reasons.

[49]         Environment Australia, Submission 157, Attachment K, statement of reasons.

[50]         Comments by Prime Minister, Mr Howard, at a press conference 10 July 1996, A.M., 11 July 1998; and at a Herbert electorate dinner on 19 July. Comments by Deputy Prime Minister, Mr Fischer, A.M., 10 July 1996.

[51]         As far as we are aware a connection between the lack of power to impose conditions under the World Heritage Properties Conservation Act 1983 and the Commonwealth’s decision to join the Deed of Agreement was never publicly stated at the time. In his press release of 22 August 1996 announcing his consent, Senator Hill made no allusion to this point. The connection is suggested by minutes of a meeting of 16-17 July 1996 between Commonwealth and State officials and the developer, as quoted during the Friends of Hinchinbrook court case challenging Senator Hill’s consent (see paragraph 3.44), and the court accepted it. The court agreed that the Minister did not have power to impose conditions on his consent. Federal Court: Friends of Hinchinbrook Society Inc. v. Minister for Environment and others [1997] 55FCA (14 February 1997), p 36; 69 FCR 28 at 69.

[52]         Administrative Decisions (Judicial Review) Act 1977, section 5(2).

[53]         Federal Court: Friends of Hinchinbrook Society Inc. v. Minister for Environment and others [1997] 55FCA (14 February 1997), 69 FCR 28; on appeal Friends of Hinchinbrook Society Inc. v. Minister for Environment and others [1997] 789 FCA (6 August 1997), 77 FCR 153. See also A Fleming, ‘Friends of Hinchinbrook Society Inc. v. Minister for Environment and Management of World Heritage’, Environmental and Planning Law Journal, vol. 14 no. 4, August 1997, p 295ff.

[54]         Federal Court: Friends of Hinchinbrook Society Inc. v. Minister for Environment and others [1997] 55FCA (14 February 1997), p 5; 69 FCR 28 at 36.

[55]         North Queensland Conservation Council, Submission 366 to Senate ECITA References Committee, Commonwealth Environment Powers inquiry 1998, p 2.

[56]         Queensland Conservation Council, Submission 117, p 476.

[57]         North Queensland Conservation Council, further information 8 April 1999, p 659.

[58]         Cardno & Davies, Port Hinchinbrook Development at Cardwell - compilation of information ..., March 1994, p 2; Deed of Agreement 1994, clause 1.1.

[59]         Deed of Agreement 1994, clause 1.1.

[60]         Deed of Agreement 1994, clause 7.6; Cardwell Properties P/L, Port Hinchinbrook Acid Sulphate Management Plan - Long Term Acid Sulfate Management Plan, 11 April 1997, p 2.

[61]         The land for which rezoning is sought is nominally lots 1,2&3 SP105672 (about 14.6ha) and part of lot 3 CP889261 (apparently about 4.5ha; the balance of lot 3 to become the permanent maintenance dredge spoil pond). Part of this land is now occupied by canals. Part of it (former Hare property between the railway, One Mile Creek and Stoney Creek) is now functionally part of the Port Hinchinbrook site (that is, it is north of the main canal) but, because of the oddities of the original lot boundaries, is not part of ‘the Development Site’ defined in the Deed. The developer proposes to adjust the boundary between ‘the Development Site’ and ‘the Land’ to follow the centre of the canal. This would transfer about 4.5ha from ‘the Land’ to ‘the Development Site’. Buckley Vann Pty Ltd, Cardwell Properties Pty Ltd Proposed Rezoning - planning report, November 1998, quoted in North Queensland Conservation Council, further information 10 March 1999, p 203ff; Cardwell Properties P/L, further information 9 February 1999, p 98.

[62]         Dept of Local Government and Planning, 2 October 1997, quoted in North Queensland Conservation Council, further information 10 March 1999, p 219.

[63]         North Queensland Conservation Council, further information 10 March 1999, p 222ff.

[64]         Cardwell Shire Council, further information 4 August 1999, p 824.

[65]         The application was made under the Local Government (Planning and Environment) Act 1990. Under this Act a rezoning is made by the Governor in Council, advised by the Minister for Local Government and Planning. Now the Integrated Planning Act 1997  applies.

[66]         For example, North Queensland Conservation Council, further information 17 March 1999, p 350.

[67]         Cardwell Properties P/L, Port Hinchinbrook Masterplan  931084 CP3 1, March 1994.

[68]         Prof. E Scott, Townsville Enterprise Ltd, Evidence 31 July 1998, p 161.

[69]         Cardwell Properties P/L, further information 9 February 1999, p 99,101.

[70]         J Pettigrew, Cardwell Shire Council, Evidence 30 July 1998, p 102.

[71]         North Queensland Conservation Council, Submission 112b, p 3. Under the Deed of Agreement sewage may be treated by septic systems until the site population reaches 200, beyond which the developer must build a package treatment plant. J Pettigrew (Cardwell Shire Council), Evidence 30 July 1998, p 97.

[72]         Some considerations are: • In what proportion does the impact increase as the size of the development increases? • In changed economic circumstances, is a change to the development necessary to secure its viability, such that some environmental detriment from the change is less than that which would result from the failure of a half-built development?  This raises the question of how consideration of the initial application should take account of that risk.

[73]         At Port Hinchinbrook in 1994, the development was already approved in principle by the local council but the developer still needed a State permit to build the vital access channel to the Hinchinbrook Channel. In evidence the developer argued that this allowed the State  to ‘blackmail’ him into further environmental conditions via the Deed of Agreement (Cardwell Properties, Submission 83, p 7). On the other hand, the environmental impacts of the access channel had never been considered and there was every reason to think that they might be different from those of the already approved marina work. In this situation arguably the State did not need to feel any obligation to approve the access channel. ‘Consequential’ applications, in the argument of this section, are matters whose environmental effects have already been taken into account in a whole-project assessment.

[74]         Detailed conditions will typically relate to things like health and building regulations, provision of utilities, traffic management ... The point is that, if up-front whole-project environmental assessment has been done, authorities should be confident that the possible environmental effects of the detailed matters are insignificant or  have already been allowed for.

[75]         Planning laws commonly include provisions that approvals lapse if the approved work is not started within a certain time. Such provisions implicitly assert that the approval is not a permanent and unconditional gift; and they implicitly acknowledge that if circumstances change, and it happens that non-commencement gives the approving authority the opportunity to revisit the matter, the authority does have the right to revisit the matter.

[76]         Environment Protection and Biodiversity Conservation Act 1999, section 12.

[77]         Where interests conflict, any individual decision will inevitably leave one interest group happy and a conflicting one unhappy. The point of the comment is that a transparent process of public consultation is less likely to be habitually captured by a particular interest group.

Chapter 4 - Environmental impacts of Port Hinchinbrook

[1]           For example, Great Barrier Reef Marine Park Authority, Submission 157a, p 1.

[2]           For example, Prof. I White, Evidence 10 August 1998, p 258; Dr G Bowman, Evidence 10 August 1998, p 278.

[3]           Hicks W S, Bowman G M & Fitzpatrick R W, East Trinity Acid Sulfate Soils - Part 1: Environmental Hazards, CSIRO Land & Water Technical Report 14/99, April 1999, p 17,34. Acid sulfate soils are rich in organic carbon, which reacts with oxygen from the air to give off carbon dioxide. This is additional to the reaction of iron sulfide with oxygen to give off sulfuric acid.

[4]           ‘In the Netherlands they [acid sulfate soils] were discovered 276 years ago. The first detailed work in Australia was only done 30 years ago and interest really only started in 1987 when massive fish kills occurred on the Tweed River. Since that time, we have developed research expertise and professional practice in the consulting industry on using and managing acid sulfate soils.’  Prof. I White, Evidence 10 August 1998, p 246.

[5]           CSIRO, Submission 111, p 442. See also  Hicks W S, Bowman G M & Fitzpatrick R W, East Trinity Acid Sulfate Soils - Part 1: Environmental Hazards, CSIRO Land & Water Technical Report 14/99, April 1999.

[6]           Kaly U L, Eugelink G & Robertson A L, ‘Soil Conditions in Damaged North Queensland Mangroves’, 1994; Estuaries, vol. 20 no. 2,  June 1997, p 291-300. ‘The methods used could only provide results on surface soil pH, and although chosen as an indicator of acid sulphate conditions were not appropriate for detecting potential acid sulphate soils. To do that would have required more detailed geochemical work on pyritic sediment layers deeper in the soil. Our paper should not therefore be used to argue that there is no possibility of acid sulphate soils or acidic groundwater at the Oyster Point site.’ A Robertson, pers. comm. 27 May 1999. Further information p 735a.

[7]           Australian Society of Soil Science Inc., Submission 126, p 566.

[8]           Prof. I White, Submission 127, p 572-3.

[9]           CSIRO (Dr G Bowman) to GBRMPA, 25 October 1996, Peer Review of “Acid Sulfate Management Plan - Port Hinchinbrook”, p 8.

[10]         Dr G Bowman, Evidence 10 August 1998, p 272.

[11]         QASSIT advised that, contrary to some claims in evidence, it is not the ‘independent monitor for acid sulfate soils’ (a position which does not exist in the Deed of Agreement) and has no formal role in monitoring Port Hinchinbrook pursuant to the Deed of Agreement. Rather QASSIT provides technical advice on specific issues as requested. QASSIT, Submission 163, p 2. Environment Australia, Submission 157, p 21. K Williams (Cardwell Properties P/L), Evidence 10 August 1998, p 310.

[12]         Prof. I White, Submission 127, p 573.

[13]         Prof. I White, Submission 127, p 573, Evidence 10 August 1998, p 256.

[14]         Other acid sulfate experts who gave evidence relevant to acid sulfate management at Port Hinchinbrook were Prof. M Melville (Submission 150, Evidence 10 August 1998 p 222ff) and Mr J Sammut (Evidence 10 August 1998, p 222ff).

[15]         Queensland Acid Sulfate Soils Investigation Team, A Report of the Acid Sulfate Soil Situation, Port Hinchinbrook Development Site, March 1999. Further information p 853ff.

[16]         QASSIT, An assessment of the revised ‘Acid Sulfate Management Plan’ 13/3/97 ...  March 1997, p2, in further information 1 April 1999, p 447ff.

[17]         Cardwell Properties P/L, Submission 83, Annexure A, p 2.

[18]         Cardwell Properties P/L, further information 9 February 1999, p 102.

[19]         K Williams (Cardwell Properties P/L), Evidence 10 August 1998, p 310, 24 August 1998, p 331.

[20]         Prof. P Saenger, Evidence 8 December 1998, p 401. See also Environment Australia, Submission 157, p 749-50.

[21]         North Queensland Conservation Council, further information March 1999, p 135.

[22]         The dredge spoil pond is on lot 17. The Crown land is lot 33. See Figure 5.

[23]         K Williams (Cardwell Properties P/L), Evidence to Senate ECITA References Committee Commonwealth Environment Powers inquiry, 24 April 1998, p 241.

[24]         Environment Australia, Submission 157, p 752.

[25]         ‘proposed to become national park’: the Hon. R Welford, Minister for Heritage and Minister for Natural Resources, to North Queensland Conservation Council, 1 April 1999. Further information 21 April 1999, p 658-9.

[26]         ‘... data from site visits together with limited soil data [from] Cardwell Properties is substantially less that QASSIT would normally expect to be available to make informed comments on the site for a development of this type and size.’ Queensland Acid Sulfate Soils Investigation Team, A Report of the Acid Sulfate Soil Situation, Port Hinchinbrook Development Site, March 1999, p5; further information p 862.

[27]         Queensland Acid Sulfate Soils Investigation Team, A Report of the Acid Sulfate Soil Situation, Port Hinchinbrook Development Site, March 1999: p 7: marina excavation spoil dumped untreated as above ground fill; p 10: certain pumping facilities not in place; p 11: release of acidic water from dredge spoil ponds into Unallocated State Land to the east;  p 15: additional ASS spoil dumped east of the burial pit. Further information p 853ff.

[28]         Topics are the stability of slopes (particularly around the marina), and the acidity of foundation soils.

[29]         Further information, p 915ff: AGC Woodward Clyde Pty Ltd, Port Hinchinbrook Eastern Precinct - Site Environmental Audit,  9 August 1999; Port Hinchinbrook Site Environmental Audit for Acid Sulfate Soil Potential - Phase 2, 6 August 1999, p 5-1.

[30]         The Hon. R Hill, Minister for the Environment and Heritage, further information 12 August 1998, p 852.

[31]         North Queensland Conservation Council, further information March 1999, p 136.

[32]         For example, Qld Dept of Premier and Cabinet, further information 21 April 1999, p 705; Environment Australia, further information 25 March 1999, p418-9.

[33]         K Williams (Cardwell Properties P/L), Evidence 10 August 1998, p 309.

[34]         J Sammut, Evidence 10 August 1998, p 230.

[35]         CSIRO (Dr G Bowman) to GBRMPA, 25 October 1996, Peer Review of “Acid Sulfate Management Plan - Port Hinchinbrook”, p 3.

[36]         Prof. P Saenger, Evidence 8 December 1998, p 405.

[37]         North Queensland Conservation Council, further information March 1999, p 132.

[38]         J Sammut, Evidence 10 August 1998, p 230; V Young (The Wilderness Society), Evidence 10 August 1998, p 205; Dr R Morris, further information 14 February 1999, p 78ff.

[39]         Dr R Morris, further information 14 February 1999, p 80ff.

[40]         Dr I McPhail (GBRMPA), Evidence 24 August 1998, p 389.

[41]         Queensland Acid Sulfate Soils Investigation Team, A Report of the Acid Sulfate Soil Situation, Port Hinchinbrook Development Site, March 1999, p 10. Further information p 867.

[42]         Queensland Acid Sulfate Soils Investigation Team, A Report of the Acid Sulfate Soil Situation, Port Hinchinbrook Development Site, March 1999, p 11. Further information p 868.

[43]         QASSIT, further information 1 April 1999, p 439.

[44]         P Valentine, Hinchinbrook Area World Heritage Values and the Oyster Point Proposal, August 1994, p 18.

[45]         Cooperative Research Centre for the Ecologically Sustainable Development of the Great Barrier Reef, Dugongs in the Great Barrier Reef - the current state of research, August 1998. P Valentine, Hinchinbrook Area World Heritage Values and the Oyster Point Proposal, August 1994, p 19. H Marsh et al, The Status of the Dugong in the Southern Great Barrier Reef Marine Park, GBRMPA research paper no. 41, 1996, p 1.

[46]         Cooperative Research Centre for the Ecologically Sustainable Development of the Great Barrier Reef, Dugongs in the Great Barrier Reef - the current state of research, August 1998. Bonn Convention on the Conservation of Migratory Species of Wild Animals, 23 June 1979. Dugongs are not listed under the Commonwealth Endangered Species Act 1992 - a point which some supporters of Port Hinchinbrook stressed. Prof. Marsh comments: ‘The classification of species as ‘endangered’, ‘vulnerable to extinction’ etc. is technically complex and depends on the legislation which applies in the relevant political jurisdiction ... These considerations were not central to the decision to establish Dugong Protection Areas between Hinchinbrook Island and Hervey Bay in January 1998. These Areas were established in an effort to halt the decline of the dugong in the southern Great Barrier Reef World Heritage Area and Hervey Bay.’ Prof. H Marsh, notes tabled at public hearing, Townsville 31 July 1999. Cardwell Chamber of Commerce, Submission 123, p 537. Cardwell Properties P/L, Submission 83, annexure A1.

[47]         P Valentine, Hinchinbrook Area World Heritage Values and the Oyster Point Proposal, August 1994, p 18; Prof. H Marsh, Submission 125, p 557; H Marsh, Breen B & Morissette N, Shoalwater Bay Queensland: a report on the importance of the marine environment of Shoalwater Bay with particular reference to mangroves, seagrasses, sea turtles, shorebirds, dugongs and dolphins, James Cook University, 1992. Cooperative Research Centre for the Ecologically Sustainable Development of the Great Barrier Reef, Dugongs in the Great Barrier Reef - the current state of research, August 1998.

[48]         Prof. H Marsh, Submission 125, p 552,557. Cooperative Research Centre for the Ecologically Sustainable Development of the Great Barrier Reef, Dugongs in the Great Barrier Reef - the current state of research, August 1998.

[49]         ‘The [aerial] surveys are designed to measure trends at this [Dunk Island-Bundaberg] regional scale and interpretation at a more localised scale must be cautious. Accepting this limitation, the surveys suggest that the decline has mainly occurred south of Townsville and that dugong numbers have not declined in the Hinchinbrook region since the mid-1980s.’ Prof. H Marsh, Submission 125, p 552. 1986-7 and 1992 surveys were from Cooktown to the southern boundary of the GBRMP near Bundaberg. In the 1994 survey the sector from Cooktown to Dunk Island was omitted since it has little dugong habitat and few animals had been seen. H Marsh et al, The Status of the Dugong in the Southern Great Barrier Reef Marine Park, GBRMPA research paper no. 41, 1996, p 5-6.

[50]         Dr A Preen, Evidence to Senate ECITA References Committee Commonwealth Environment Powers inquiry, 24 April 1998, p206. Prof. H Marsh, Submission 125, p 552-3, Evidence 31 July 1998, p 173.

[51]         P Illidge, Recommended operational guidelines for QDE vessels in waterways in the Hinchinbrook Island area,  30 August 1996.

[52]         Prof. H Marsh, Submission 125, p 552, 557. H Marsh et al, The Status of the Dugong in the Southern Great Barrier Reef Marine Park, GBRMPA research paper no. 41, 1996. Dr A Preen, Evidence to Senate ECITA References Committee Commonwealth Environment Powers inquiry, 24 April 1998, p207.

[53]         Great Barrier Reef Ministerial Council, Dugong Communique, 14 August 1997; reproduced in Environment Australia, Submission 157, attachment I.

[54]         Prof. H Marsh, Submission 125, p 553.

[55]         Prof. H Marsh, Submission 125, p 552-3,557ff.

[56]         Aerial surveys suggest, in the Torres Strait, a stable population of at least 30,000; in the northern reef, a stable population of at least 10,000; in the southern reef (Dunk Island to Bundaberg) a population declining from at least 3,500 in 1986 to at least 1,700 in 1994. Estimates are ‘at least’ because aerial surveys under-count by a proportion which is uncertain. However the surveys do reliably show percentage changes in population over time because they are done in a standard way. Cooperative Research Centre for the Ecologically Sustainable Development of the Great Barrier Reef, Dugongs in the Great Barrier Reef - the current state of research, August 1998. Prof. H Marsh, notes tabled at public hearing, Townsville 31 July 1998.

[57]         Cardwell Chamber of Commerce, Submission 123, p 537. Similarly Cardwell Properties P/L, Submission 83, annexure A1: ‘Vulnerable species may sound ominous but in fact it only requires that attempts must be made to maintain the species throughout its entire range but it does not mean that it must be maintained in every location.’

[58]         Prof. H Marsh, notes tabled at public hearing, Townsville 31 July 1998. Prof. Marsh estimates that the present rate of indigenous hunting in the Torres Strait is not sustainable ‘... but a [long-term] decline will be difficult to prove statistically until it is very large.’

[59]         Queensland Department of Premier and Cabinet, further information 21 April 1999, p 706-7.

[60]         The Hon. R Hill, Minister for the Environment and Heritage, New measures announced to protect dugong, media release 5 August 1999.

[61]         Queensland Department of Premier and Cabinet, further information 21 April 1999, p 706.

[62]         Great Barrier Reef Marine Park Authority, further information August 1999, p 1013.

[63]         Depending on the point of view of different witnesses, the ‘artificial beach’ was also called ‘a test site to measure the effectiveness of foreshore stabilisation techniques’ (which is required by the Deed of Agreement) or ‘dumping material on the foreshore’. It extended outside the developer’s property and covered some regrowth mangroves (contrary to the Deed), and in evidence there was some argument about whether it was allowed by the Deed. GBRMPA disputed with the developer about it at the time. Environment Australia, Submission 157, p 25-26, Evidence 24 August 1998, p 374; North Queensland Conservation Council, further information 11 March 1999, p 14; Deed of Variation August 1996, clause 7.10 & schedule 3, Beach and Foreshore Management Plan.

[64]         GBRMPA to D Kay (DEST), 14 November 1994, in Cardwell Properties P/L, Submission 83b, attachment 4.

[65]         K Williams (Cardwell Properties P/L), Evidence 10 August 1998, p 308.

[66]         Environment Australia, Submission 157, p 751.

[67]         Prof. P Saenger, Evidence 8 December 1998, p 410.

[68]         R J Coles et al, Distribution of Seagrasses at Oyster Point, Cardwell - a reconnaissance survey, September 1994, Qld Dept of Primary Industries; R J Coles et al, Distribution and Abundance of Seagrasses at Oyster Point, Cardwell, Spring (November) 1995 & Winter (August) 1996, Qld Dept of Primary Industries; W J Lee Long et al, Baseline Survey of Hinchinbrook Region Seagrasses - October (Spring) 1996, GBRMPA; W J Lee Long et al, Oyster Point Post-Dredging Seagrass Distribution, December 1997, Qld Dept of Primary Industries.

[69]         Dr R Coles, further information 23 March, p 411.

[70]         North Queensland Conservation Council, further information March 1999, p 138.

[71]         Dr A Preen, Evidence to Senate ECITA References Committee Commonwealth Environment Powers inquiry, 24 April 1998, p 206.

[72]         Prof. H Marsh, Submission 125, p 559ff.

[73]         ‘It is easier for animals to get out of the way of big, slow-going boats than it is for very small, fast boats.’ Prof. H Marsh, Evidence 31 July 1998, p 166.

[74]         Queensland Department of Premier and Cabinet, further information 21 April 1999, p 706-7. Great Barrier Reef Marine Park Authority, further information August 1999, p 1013.

[75]         Cardwell Chamber of Commerce, Submission 123, p 540.

[76]         J Tanzer (GBRMPA), Evidence 31 July 1998, p 151.

[77]         Prof. H Marsh, Submission 125, p 561.

[78]         Prof. H Marsh, Evidence 31 July 1998, p 167.

[79]         For example, Wildlife Preservation Society of Queensland, Submission 121, p 494ff; Cairns & Far North Environment Centre, Submission 50, p 147; M Moorhouse (North Queensland Conservation Society), Evidence 31 July 1998, p 195; North Queensland Conservation Society, further information 8 October 1998, p 40. See also P Valentine, Hinchinbrook Area World Heritage Values and the Oyster Point Proposal, August 1994, p 20ff.

[80]         The Hon. R Welford, Minister for Heritage and Minister for Natural Resources, to North Queensland Conservation Council, 1 April 1999. Further information 21 April 1999, p 658-9.

[81]         North Queensland Conservation Council, further information March 1999, p 137; Qld Dept of Premier and Cabinet, further information 21 April 1999, p 708.

[82]         North Queensland Conservation Council, further information March 1999, p 137.

[83]         P Valentine, Hinchinbrook Area World Heritage Values and the Oyster Point Proposal, August 1994, p 16-17.

[84]         Qld Department of Environment, Hinchinbrook Island National Park - draft management plan, August 1996, pp 6,18.

[85]         Queensland Department of Environment and Heritage, Environmental Review Report - Port Hinchinbrook, May 1994, p 1,4,26.

[86]         The much-mentioned ‘esplanade’ seems to refer to the 40m-wide zone of apparently communal waterfront open space, shown on the 1994 Masterplan. As far as the Committee is aware the word ‘esplanade’ does not occur in any of the primary sources describing this land, and the Committee has no evidence on what the intended treatment of this land was. The developer stresses that ‘reference to the original Tekin plans [by Cummings and Burns, 1987] will show clearly that there was no boulevard along the foreshore.’ Cardwell Properties P/L, Submission 83A, p 4. See Figures 6, 7 & 8.

[87]         Australian Heritage Commission to Senator Hill, 9 August 1996, attachment, p 1.

[88]         Under the Deed of Agreement ‘The Company must not construct any accommodation buildings on the Development Site with more than 2 levels of accommodation and one level of car park.’ (clause 20.2)

[89]         North Queensland Conservation Council, further information 11 March 1999, p 258.

[90]         For example, Cairns and Far North Environment Centre, Submission 50, p 148; Wildlife Preservation Society of Queensland (Townsville Branch), Submission 79a, p 296.

[91]         Queensland Department of Environment & Heritage, Hinchinbrook Island National Park Draft Management Plan, August 1996, p 20.

[92]         Environment Australia, Submission 157, p 752 & attachment K (statement of reasons for consent under World Heritage Properties Conservation Act 1983), p 8.

[93]         Cairns & Far North Environment Centre, Submission 50, p 144,149; Queensland Conservation Council, Submission 117, p 476; Environmental Defender’s Office Ltd, Submission 144, p 662.

[94]         D Haigh, Submission 57, p 185.

[95]         Environment Australia, Submission 157, p 757.

[96]         Queensland Acid Sulfate Soils Investigation Team, A Report of the Acid Sulfate Soil Situation, Port Hinchinbrook Development Site, March 1999. Further information p 853ff.

[97]         Dr R Coles, further information 23 March, p 411.

Chapter 5 - Other issues

[1]           For example Kookaburra Holiday Park, submission 72, p 242; R Walker, Submission 137, p 617; L Hallam (Cardwell Chamber of Commerce), Evidence 30 July 1998, p 12,19.

[2]           Friends of Hinchinbrook, Submission 129, p 589 & attachment 6.

[3]           North Queensland Conservation Council, Submission 112, p 452.

[4]           Qld Department of Premier and Cabinet, further information 21 April 1999, p 702ff.

[5]           Wildlife Preservation Society of Queensland (Townsville Branch), Submission 97, p 399. Also D Anderson (Concerned Residents of Cardwell Shire Inc.), Evidence 30 July 1998, p 80.

[6]           J Pettigrew (Cardwell Shire Council), Evidence 30 July 1998, p 93-94.

[7]           Cardno & Davies, Port Hinchinbrook Resort at Cardwell - compilation of information..., March 1994, p 23; Queensland Department of Environment and Heritage, Environmental Review Report - Port Hinchinbrook, May 1994, p 10.

[8]           Cardwell Shire Council, Corporate Plan 1995-99, p 14

[9]           Wildlife Preservation Society of Queensland, Submission 121, p 499. Similarly Wildlife Preservation Society of Queensland (Townsville Branch), Submission 97, p 399.

[10]         The Friends of Hinchinbrook obtained Mr Dransfield’s affidavit to use in their 1996 Federal Court challenge to Senator Hill’s consents under the World Heritage Properties Conservation Act 1983 (see chapter 3). The prime purpose of the affidavit was to describe types of information which, in Mr Dransfield’s opinion, Senator Hill could have and should have obtained before deciding that there was no prudent and feasible alternative to consent (given that his reasons for consent included the expected economic benefits of the development - see paragraph 3.38 above). Contrary to some claims in evidence, the affidavit was not an assessment of the feasibility of Port Hinchinbrook. It made no comments specific to Port Hinchinbrook.

[11]         Department of Primary Industries (Qld), further information 12 March 1999, p 281.

[12]         North Queensland Conservation Council, further information 17 March 1999, p 362-3, quoting a Queensland Dept of Environment briefing paper  25 March 1994.

[13]         National Parks Association of Queensland Inc., Submission 94, p 368.

[14]         Dept of Primary Industries (Qld), Discussion Paper - Sustainable Growth of Coastal Aquaculture Policy, no date [1999], in Dept of Primary Industries, further information 12 March 1999, p 279ff.

[15]         North Queensland Conservation Council, further information 12 March 1999, p 269, 20 March 1999, p 358.

[16]         Qld Department of Premier and Cabinet, further information 21 April 1999, p 712.

[17]         North Queensland Conservation Council, further information 20 March 1999, p 359.

[18]         The Hon. R Welford to NQCC, 20 November 1998, in North Queensland Conservation Council, further information 12 March 1999, p 275.

[19]         We note that licensees must monitor discharges, but this is not the same as researching the environmental effects of discharges.

[20]         Environment Australia, Submission 157, p 757.

[21]         J Tager (North Queensland Conservation Council), Evidence 31 July 1998, p 198.

[22]         P Sheedy (Canegrowers Herbert River District), Evidence 30 July 1998, p 68; Canegrowers Herbert River District, Submission 165, p 3-4, Evidence 24 August 1998, p 348ff.

[23]         V Veitch (Sunfish NQ), Evidence 30 July 1998, p 27.

[24]         Sunfish NQ, Submission 122, p 525.

[25]         Sunfish NQ, Submission 122, p 523-4.

[26]         V Veitch (Sunfish NQ), Evidence 30 July 1998, p 20.

[27]         J Marohasy (Canegrowers Herbert River District), Evidence 24 August 1998, p 355.

[28]         P Sheedy & J Marohasy (Canegrowers Herbert River), Evidence 24  August 1998, p 350,357ff.

[29]         North Queensland Conservation Council, further information 12 March 1999, p 302ff.

[30]         R Silva (Environmental Defender’s Office of North Queensland Inc.), Evidence 31 July 1998, p 200.

[31]         Environment Defender’s Office of North Queensland Inc., Submission 90, p 6.

[32]         North Queensland Conservation Council, further information 18 June 1999, p 745ff. Senate Hansard, 17 November 1994, p 3244.

[33]         Prof. F Talbot, Submission 128, attachment.

[34]         A copy is at A Bunbery, Submission 40, p 103.

[35]         G Nossal, Australian Academy of Science, to Senator the Hon. R Hill, Minister for Environment, 14 January 1997.

[36]         Sinclair Knight Merz, Port Hinchinbrook - environmental risk assessment with reference to activities requiring ministerial consent, March 1996. R Reichelt, Overview of the scientific reviews of “Port Hinchinbrook Environmental Risk Assessment with reference to activities requiring Ministerial Consent”, 9 June 1996.

[37]         R Reichelt, Overview of the scientific reviews of “Port Hinchinbrook Environmental Risk Assessment with reference to activities requiring Ministerial Consent”, 9 June 1996, p 6.

[38]         The Hon. R Hill, Statement of Reasons for my decisions under ... the World Heritage Properties Conservation Act 1983 (attachment K to Environment Australia, Submission 157), p 4. Senator Hill’s reasons quote verbatim the key sentence of Dr Reichelt’s summary (‘... could go ahead without significant impact on the immediate environment around Oyster Point, that is, within a few hundred metres ...’) and make no reference to any other part of it.

[39]         ‘This document only examines issues which are directly relevant to the consent application as all State Government requirements to commence works have been satisfied except for an approval under the EPA (1994) covering discharge of waters from the spoil disposal ponds. The document includes information relevant to that process if such discharge is required.’ Sinclair Knight Merz, Port Hinchinbrook - environmental risk assessment with reference to activities requiring ministerial consent, March 96, p 3.

[40]         Senator Hill’s reasons for consent were not limited to the matters dealt with by SKM, but also considered broader whole-project effects - effects of increased boating on dugongs; effects of increased tourism in the region; aesthetic effects on the wilderness area (on these matters his consent relied heavily on the proposition that these matters ‘would be addressed by the proposed [Cardwell/Hinchinbrook] Regional [Coastal Management] Plan’). This acknowledges that the effects of a particular action may validly be defined to include not only its local effects (e.g. effects of dredging on seagrass), but also its broader effects in enabling a whole project that may have other impacts.

[41]         Environment Protection and Biodiversity Conservation Act 1999 (Cth), section 489.

[42]         G Giandomenico (Hinchinbrook Shire Council), Evidence 30 July, p 66.

[43]         The precautionary principle: ‘Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.’ National Strategy for Ecologically Sustainable Development, Commonwealth of Australia, December 1992, p 8.

[44]         The precautionary principle may suggest that certain information should ‘obviously’ be gathered, or certain decisions should ‘obviously’ be made a certain way; but the underlying value judgments must still be made, even if by tacit agreement.

[45]         For example, D Haigh, Submission 17, p 171: ‘... the international environmental “precautionary principle” was ignored or set at such a high threshold as to be useless.’

[46]         For example, Cardwell Chamber of Commerce, Submission 123, p 539.

[47]         For example, Queensland Conservation Council, Submission 117, p 477.

[48]         P Valentine, Submission 136, p 614.

[49]         R Power (Townsville Enterprise Ltd), Evidence 31 July 1998, p 156.

[50]         Senate Environment, Communications, Information Technology and the Arts References Committee, Commonwealth Environment Powers, May 1999.

[51]         Coastal Protection and Management Act 1995 (Qld), sections 19,31,48,103. A regional coastal management plan, as well as describing policies for coastal management, may declare ‘control districts’, which may include coastal waters and land up to 400 metres inland from the high water mark. A regional plan may make provisions about anything on which a regulation may be made under the Act. The Governor in Council may make regulations concerning (among other things) ‘the use or development of land in a control district.’ The Integrated Planning Act 1997 (Qld) does not explicitly command local Councils to make their decisions on development applications consistent with a regional coastal management plan, presumably because, by virtue of section 31 of the Coastal Protection and Management Act, this obligation is conferred by the plan itself.

[52]         Also for example, Wildlife Preservation Society of Qld (Tully & District Branch), Submission 41, p 141; Girringun Elders and Reference Group Aboriginal Corporation, Submission 143, p 640.

[53]         Girringun Elders and Reference Group Aboriginal Corporation, Submission 143, p 654.

[54]         Qld Dept of Premier and Cabinet, further information 21 April 1999, p 708. More recent advice: a draft Plain English version of the plan is expected to be released for public comment by December 1999, and the section 34 draft is expected to be released by mid-2000. J McIlwain (Qld Department of Premier & Cabinet), pers. comm. 20 September 1999.

[55]         The draft management plans for Brook Islands National Park and Goold Island National Park raise similar issues, and comment in evidence on the Hinchinbrook Island plan also applies to them implicitly if not explicitly.

[56]         Wildlife Preservation Society of Qld, Tully & District Branch, Submission 49, p 141.

[57]         Hinchinbrook Shire Council, Submission 59a, p 202-3.

[58]         Hinchinbrook Shire Council, Submission 59, p 196.

[59]         Hinchinbrook Shire Council, Submission 59, p 196; Cardwell Shire Council, Submission 158, p 792.

[60]         Hinchinbrook Shire Council, Submission 59, p 195. Cardwell Shire Council, Submission 158, p 792.

[61]         Cardwell Shire Council, Submission 158, p 792

[62]         Hinchinbrook Shire Council, Submission 59, p 196.

[63]         Commonwealth Department of Tourism, National Ecotourism Strategy, 1994, p 15ff.

[64]         P Valentine, ‘Nature-based tourism’ in Special Interest Tourism, eds M Hall & B Weiler, Belhaven Press, London 1991.

[65]         Great Barrier Reef Marine Park Act 1975, section 32(7).

[66]         Friends of Hinchinbrook, Submission 129, p 586. Similarly D Haigh, Submission 57, p 171.

[67]         Prof. H Marsh, Submission 125, p 555.

[68]         Environment Australia, further information 25 March 1999, p 416.

[69]         World Heritage Properties Conservation Act 1983, sections 6,9.

[70]         Environment Australia, Submission 157, p 29-31; further information 25 March 1999, p 416-417.

[71]         Environment Protection and Biodiversity Conservation Act 1999, sections 11,29,46(6).

[72]         Senate Environment, Communications, Information Technology and the Arts References Committee, Commonwealth Environment Powers, May 1999, p 48.

[73]         Prof. H Marsh, Submission 125, p 555.

[74]         P Valentine, Submission 136, p 614-615.

[75]         Convention for the Protection of the World Cultural and Natural Heritage [World Heritage Convention], 1972, article 4.

[76]         An expert group commissioned to assess the World Heritage values of the Great Barrier Reef: Lucas P and others, The Outstanding Universal Value of the Great Barrier Reef World Heritage Area, GBRMPA, 1997.

Government Senators' Report

[1]           presentation: “mise en valeur” within the context of the Convention for the Protection of the World Cultural and Natural Heritage.

[2]           The developer’s report: Sinclair Knight Merz, Port Hinchinbrook - Environmental Risk Assessment with reference to activities requiring Ministerial Consent, April 1996. The six peer reviews: Great Barrier Reef Marine Park Authority, Port Hinchinbrook - scientific review of risk assessment with respect to ministerial consent, June 1996. R Reichelt, Overview of the scientific reviews of “Port Hinchinbrook Environmental Risk Assessment with reference to activities requiring Ministerial Consent”, 9 June 1996.

[3]           The substantive cases: Federal Court: Friends of Hinchinbrook Society Inc. v. Minister for Environment and others [1997] 55 FCA (14 February 1997), 69 FCR 28; on appeal Friends of Hinchinbrook Society Inc. v. Minister for Environment and others [1997] 789 FCA (6 August 1997), 77 FCR 153.

[4]           that is to say, The Commonwealth v/s The State of Tasmania (1983) 158 CLR 1, as against the more liberal test of Mason CJ and Brennan J in Richardson v/s The Forestry Commission (1988) 164 CLR 261]

[5]           Friends of Hinchinbrook Society Inc. v. Minister for Environment and others [1997] 55 FCA (14 February 1997), p26, 69 FCR 28 at 57.

[6]           Friends of Hinchinbrook Society Inc. v. Minister for Environment and others [1997] 55 FCA (14 February 1997), p45, 69 FCR 28 at 79.

[7]           Friends of Hinchinbrook Society Inc. v. Minister for Environment and others [1998] 432 FCA (30 April 1998), 84 FCR 185 at 189.

[8]           S99/1997 (13 March 1998) at p. 6.

[9]           V Young (The Wilderness Society), Evidence 10 August 1998, p 216.

[10]         North Queensland Conservation Council, further information 10 August 1999, p 849.

[11]         AGC Woodward Clyde Pty Ltd, Port Hinchinbrook Eastern Precinct - Site Environmental Audit, 9 August 1999; Port Hinchinbrook Site Environmental Audit for Acid Sulfate Soil Potential - Phase 2, 6 August 1999: further information, p 915ff.  The Hon. R Hill, Minister for the Environment and Heritage, further information 12 August 1998, p 852.

[12]         The Hon. R Hill, Minister for the Environment and Heritage, New measures announced to protect dugong, media release 5 August 1999.