Malbena Update

menu_book picture_as_pdf book Tasmanian NPA Environment Australia Tasmania Walls of Jerusalem NP

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Halls Island is about 400 metres from east to west, and 250 metres north to south. It is almost entirely forested and located in Lake Malbena (above) on Tasmania’s Central Plateau. The area is about as remote and isolated as anywhere on the plateau – there are no formal walking tracks in the vicinity and the easiest access route requires several hours of mostly cross-country walking from a former logging road and a packraft or similar to cross the lake.

In the early 1950s a Launceston lawyer named Reg Hall chose the island that now bears his name as the perfect location on which to build a tiny shack to serve as a base for exploring and enjoying some of the most remote parts of the Central Plateau. Being a lawyer, he chose to obtain a lease for his shack, something that few others would have bothered with in those days. Although a private hut, it was open to all comers and treated with respect.

Malbena Update

Tasmanian National Parks Association

Lake MalbenaLoic Auderset

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BackgroundWhen the hut (right) was constructed in the 1950s the island was Unallocated Crown Land but it has subsequently progressed through various categories of reservation until it became part of the Walls of Jerusalem National Park and was incorporated into the Tasmanian Wilderness World Heritage Area (TWWHA) in 1989.

Reg Hall died in 1981 but his daughter continued the lease until she transferred it to professional trout guide Daniel Hackett in 2016 with the intention of ensuring the long-term preservation of her father’s now-historic hut. Mr Hackett has committed to maintaining the old hut but his company, Wild Drake, has applied for permission to construct helicopter-accessed tourist accommodation on the island. His proposal includes three twin-share accommodation buildings and a communal hut, each larger that the historic hut. Despite Mr Hackett’s background as a trout guide the primary theme of this proposal is “cultural immersion”, not fishing. Malbena is not considered to provide good fishing, unlike some of the nearby lakes.

Expression of interest and rezoningWild Drake’s initial application was through the Tasmanian Government’s Expressions of Interest process. In the 1999 Management Plan for the TWWHA Halls Island was zoned ‘Wilderness’, which effectively ruled out any possibility of development. However, it was changed to ‘Self-Reliant Recreation’ in the 2016 plan without the change being foreshadowed in the 2014 draft plan (i.e. there was no opportunity for the public to comment on the proposed change). This rezoning allows the consideration of ‘standing camps’ but not huts. Many objectors questioned the description of the proposed accommodation as a “standing camp”.

The proposal has drawn outrage from a wide range of people for a range of reasons including the alienation of public land within a national park for the benefit of a private developer, but the most common theme is the impact of both the development itself and the helicopter access on the wilderness character of the area.

Approvals requiredThe proposal requires approval under both state and federal legislation, as well as the (Tasmanian) Parks and Wildlife Service’s non-statutory Reserve Activity Assessment (RAA). As a Level 3 RAA, public comment was not required. The RAA was completed to Step 7 where it was signed off as “endorsed for external assessment” on 14 March 2018. It was not made public until July 2018 when it was included in the additional information provided for the Federal Government assessment.

The Federal Government had initially decided that approval under the Environment Protection and Biodiversity Conservation Act, 1999 was not required. This was successfully challenged by The Wilderness Society (TWS). The case was heard in the Federal Court on 26 March 2019 with the decision released on 12 November 2019. The key outcome of this challenge was that the original notice [decision] is to be set aside and reissued with conditions which are to be negotiated between the Commonwealth and TWS. At the time of writing (June 2020), these conditions were still to be finalised.

The other approval required before the development could proceed was from local government. When Central Highlands Council (CHC) advertised the Development Application (DA) it received 1346 submissions; only three supported the proposal!

At a public meeting attended by around 100 representors on 26 February 2019 the CHC decided to refuse the DA. A common theme of comments by the mayor and councillors

Halls Island hut built by Reg Hall

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was inadequacy of the RAA and the failure of process – the state and federal governments had shirked their responsibilities – a small rural council should never have been required to make key decisions about impacts on World Heritage values.

Appeals, up to the Supreme CourtAs anticipated, the proponent, Wild Drake, appealed the council’s decision to refuse a permit in the Resource Management and Planning Appeal Tribunal (RMPAT). The Tasmanian National Parks Association, The Wilderness Society (Tasmania) and two individuals with long connections to the area (the joined parties) made the expensive commitment of joining the appeal to defend Council’s decision (the RMPAT hearing required the engagement of highly experienced lawyers and expert witnesses).

RMPAT heard this appeal from 24-28 June 2019, with an additional hearing on August 8-9 2019 to hear further evidence about wedge-tailed eagles and for the legal representatives to present closing submissions. The decision was released on 21 October 2019. RMPAT’s key finding was that it isn’t required to assess the proposal against the management plan; all that is required is for a Management Plan to exist and that a Reserve Activity Assessment has been completed by the Parks and Wildlife Service up to Step 7. RMPAT’s final decision (18 December 2019) required that CHC’s

refusal of a permit be set aside and replaced with an approval subject to conditions set out in RMPAT’s final decision.

On 14 January 2020 the same appellants as previously filed an appeal to the Supreme Court of Tasmania against the RMPAT decision.

The appeal contended that RMPAT improperly delegated its assessment of the Lake Malbena proposal to Tasmania’s Parks and Wildlife Service and did not undertake its own assessment of the proposal against the Tasmanian Wilderness World Heritage Area Management Plan. Note that the appeal related entirely to this legal question, not the merits of the proposal itself.

The outcome that we had hoped for was an order from the Supreme Court that would require RMPAT to remake its decision in relation to the Lake Malbena proposal, including giving consideration to the substantial volume of evidence on the impacts of the proposal on wilderness and other values presented during the hearings in 2019.

The Supreme Court’s decision was handed down on 6 July 2020. Neither of our grounds of appeal succeeded. Obviously, this was extremely disappointing. We made a media release with The Wilderness Society the following day which can be read here.

Lake MalbenaGrant Dixon

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After considering the merits of a further appeal, TWS and TNPA decided to challenge this decision and filed an appeal to the Full Court on 27 July. Our lawyers will be arguing that the Supreme Court made a number of legal errors in reaching its decision, including its agreement that RMPAT did not have the jurisdiction to assess the proposal against the Tasmanian Wilderness World Heritage Area Management Plan 2016, and in its interpretation of the relevant provision of the Central Highlands Interim Planning Scheme.

If the appeal to the Full Court is upheld, it is expected that the Full Court will order that the RMPAT decision is set aside, and that the Tribunal make a fresh decision in consideration of the extensive evidence relating to the merits of the proposal, including its adverse impacts on the wilderness and ecological values of the area, that was presented by the parties.

The timeframe for the resolution of this appeal is uncertain and, if successful, it is unclear how long RMPAT might need to make a fresh decision. And, as noted previously, the (federal govt) permit conditions resulting from the Wilderness Society’s Federal Court challenge to the Federal Minister’s decision are yet to be finalised.

The cost of this further legal action may be substantial. TNPA would welcome further donations to the Lake Malbena Appeal Fund.

These legal actions have not just been about a single tourism development. We anticipate that the outcome will have significant implications for the processes by which all tourism developments within our national parks and reserves gain approval, particularly the numerous proposals that are currently going through the Tasmanian Government’s controversial Expressions of Interest process, many of which are likely to pose similar threats to Tasmania’s wilderness and our reserve estate.

It will also set a national precedent. The supposed success of the Tasmanian government’s policy of “unlocking our national parks” is often quoted by mainland State Governments and Parks Services seeking to follow suit. A final outcome in our favour may cause them to reconsider.

This article can be found on the TNPA website.