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The developer, the whistleblower and the minister – ABC News (Australian Broadcasting Corporation)
2018-12-09/the-developer-the- whistleblower-and-the- minister-toondah-harbour/ 10487806
The developer, the whistleblower and the minister
A trip to Switzerland, a legal threat, department staff under pressure. A rare blow-by-blow inside account of how power and influence is wielded in a sensitive environmental approval process.
Photo: The wetlands of Toondah Harbour are protected by an international convention. (ABC News: David Lewis)When you look out at Cleveland’s Toondah Harbour at low tide, the first thing you see is the mudflats.
Photo: The mudflats may look nondescript but they are home to a many bird species. (ABC News: David Lewis)Legend has it, this was meant to be the capital of Queensland.
But back in the 1840s during an exploratory trip, Governor Gipps got stuck in the mud and instead went up the river to what’s now Brisbane.
Photo: Shore Street, Cleveland, ca 1907 is pictured on one of the Valentine’s Series of postcards. (Source: Qld State Library)Cleveland never expanded into a metropolis like Brisbane. Its population sits at around 15,000.
But the local Mayor thinks it’s time the region was transformed into something bigger and more commercially focused.
New premier cuts ‘green tape’
Karen Williams was elected the Mayor of Redland City in 2012 with the support of developers.
It was the same year a one-term Queensland premier who wanted to cut what he called “green tape” was put in charge.
Campbell Newman was elected on a platform of change.
He introduced an Economic Development Act to fast-track new projects in the state.
Under the Act, parcels of land could be declared “priority development areas” — or PDAs — and could bypass old planning and environment laws.
Mayor Williams shared Mr Newman’s zeal for getting things built and was determined to transform the region.
The council voted to back the application for a PDA, and in June 2013 the state government declared Toondah Harbour one of Queensland’s first priority development areas.
Expressions of interest were called for, and Walker Corporation was announced as the preferred partner.
Its $1.4 billion plan for the site included 3,600 apartments, a hotel, convention centre and marina.
Moreton Bay, where Toondah Harbour sits, was declared a Ramsar site in 1993, under an international convention that protects wetlands critical for biodiversity.
Around 40 hectares of the priority development area lies inside that Ramsar-listed wetland.
Enter the developer
In the last 20 years, Lang Walker’s company has donated around $2.5 million to political parties.
The Forbes rich list claims he’s worth over $2 billion, and he is behind a series of high-profile developments including Collins Square in Melbourne, the Finger Wharf in Sydney and Festival Square in Adelaide.
He has even built a luxury resort on his own private island in Fiji.
Photo: Developer Lang Walker bought an island. (Walker Corporation)Bloomberg estimates the resort, near one of the world’s largest coral reefs, cost Lang Walker $100 million to build.
He named it Kokomo.
As a man who knows how to buy an island and has spent decades striking big deals in Australia’s largest cities, Mr Walker had the upper hand when he flew to Queensland to sign a memorandum of understanding with Redland City councillors at the historic Grand View Hotel overlooking Toondah Harbour.
The council gag order
Craig Ogilvie was a councillor at the time.
Photo: Former council member Craig Ogilvie says little time was given to consider the plans. (Supplied: Craig Ogilvie)“My impression of Lang Walker was that he was practised and slick and probably by far the most knowledgeable and smartest guy in the room when it came to doing deals of this type, and that was something to be nervous about,” Mr Ogilvie said.
I think … to a certain degree the councillors were starstruck.
Craig Ogilvie remembers the process as being rushed and secretive, and says the community was barely consulted.
He claims councillors had little time to consider the plans, and were asked to sign confidentiality arrangements that were quite stringent.
Councillor Wendy Boglary has been on council since March 2008 and was the deputy mayor for two years.
She said she felt the confidentiality agreement was preventing her from properly representing her constituents.
“People are actually coming down to me and as they’re finding out what is happening at Toondah Harbour, they have grave concerns,” Cr Boglary said.
“They’re asking me ‘why aren’t I speaking out?’ and ‘why aren’t I representing them?’.
“So I feel like I’m letting my community down, which isn’t something I take lightly.”
Mayor Williams told the ABC confidentiality agreements protected the ratepayers as well as the companies who had signed contracts with the council.
She said the area needed investment in infrastructure, which a large project like the Walker Corporation’s would bring.
“We’re a city of islands, so we need to have transport hubs that connect our mainland to our communities on Russell Island right through to North Stradbroke Island,” Mayor Williams said.
Political heavyweights bear down
With the council locked in, the Queensland Labor government endorsed the project in 2015.
But because the proposed development was on Ramsar-listed wetland, it had to be referred to the federal government for approval.
A development of this scale or impact had never been approved on a Ramsar-listed site in Australia.
Inside the federal environment department, which is required to provide impartial, expert advice on environmental issues, the alarm bells were going off.
In April 2016 Matt Cahill, one of the most senior bureaucrats in the department, wrote to Walker Corporation executive Peter Saba making clear what his experts thought of the project.
“The Department intends to advise the Minister to make a decision that the proposal in its current form is clearly unacceptable,” the letter said.
In other words, the department’s key advisers believed the proposal should be struck out immediately.
In response, Walker Corporation intensified its lobbying efforts:
- In August, Lang Walker wrote to newly-elected prime minister Malcolm Turnbull congratulating him and asking for a meeting about the Toondah project. Mr Turnbull did not appear to take up that offer, but encouraged him to continue working with then-environment minister Josh Frydenberg and his department.
- According to Queensland’s The Courier Mail, a special adviser to Mr Turnbull and a staffer were spotted that same month having lunch with Mr Walker at celebrity chef Matt Moran’s upscale eatery Aria.
- According to departmental documents, Mr Walker met with Mr Frydenberg that same month.
- Queensland’s then-environment minister Steven Miles and Deputy Premier Jackie Trad also wrote to Mr Frydenberg expressing their government’s support.
- The ABC understands there were discussions in the department about whether the Ramsar boundaries could be changed so the project could go through and still meet Australia’s treaty obligations.
The Australian Government Solicitor responded with confidential legal advice that the boundaries could be changed if Australia invoked the “urgent national interest test” in the convention but warned that process could take years and involve international scrutiny.
FOI documents show over a 12-month period Walker Corporation convinced the department to delay the decision six times.
In the same financial year the development was sent to the Federal Government for approval, Walker Corporation donated $225,000 to the federal Liberal Party and $23,000 to Queensland Labor.
Walker Corporation’s Craig Addley, the project designer for Toondah Harbour, told the ABC the development’s processes were not influenced by political donations.
“I don’t make the payments or are not aware of the details around them but I think the important point is that this project will not be influenced by those things,” Mr Addley said.
Inside the political maelstrom
A departmental insider, who asked we not disclose their identity, said the pressure inside the department was intense.
“Those of us who hoped the minister would accept the advice, that carefully constructed expert advice, were disappointed,” they said.
“But then the department moved to accommodate the minister’s desires — so still providing advice to the minister about the range of impediments, still pointing out it was clearly inconsistent with Australia’s obligations under the Ramsar convention, but also searching for a pathway to accommodate that development.”
The insider also said the company and the man behind the project were important.
“It’s not some tin-pot development run by some small no-name company,” they said.
“This is Lang Walker. Everyone knows who Lang Walker is.
“Everyone knows he’s politically connected, there were stories he could pick up the phone and talk anytime to the prime minister. I don’t know whether that happened or not. That was certainly the view held.”
Minister rejects department’s advice
In May 2017, after 18 months of delays, Walker Corporation withdrew its original plan and submitted a smaller proposal, which still encroached on around 50 hectares of the Ramsar site.
A month later the department provided formal advice to Mr Frydenberg.
Despite all the back-room wrangling, the department said the second proposal remained “clearly unacceptable” because it would “result in permanent and irreversible damage to the ecological character of the Moreton Bay Ramsar wetland”.
However, Mr Frydenberg rejected that advice in June 2017.
Mr Frydenberg told the ABC he acted within the relevant legislation by sending the project for assessment by an Environmental Impact Statement (EIS):
“Under the Environment Protection and Biodiversity Act, the minister has the opportunity to enable his department to undertake a full assessment of the project, and in doing so, get more information, which may lead to mitigation or offsets of any significant environmental impact that the project would have.”
He also said Walker Corporation’s donation history had nothing to do with his decision.
Referral a good outcome for Walker Corporation
The decision was a significant victory for Walker Corporation.
The project hadn’t been approved by the Minister, but it had cleared a significant first hurdle.
Figures from the Department of the Environment up to 30 June 2018 show that of the 96 projects that have been assessed by Environmental Impact Statement under the EPBC Act, only one has been refused approval.
Since that decision, Walker’s pursuit of the project has even gone international.
Its corporate adviser Stephen Davis, and Walker executive Mr Saba met with the Ramsar secretary general in Switzerland. The ABC understands they discussed the project.
Back at Toondah Harbour, there are competing views on what should happen next.
Mayor Williams said she hoped the EIS process would scientifically address environmental impacts.
That’s what the process is all about,” Mayor Williams said.
“Council’s done their bit.
“We’ve looked for a solution, we’ve got a tool, we’ve asked [the] community and now we wait for the Federal Government to go through that process if it stacks up.
“If it doesn’t then we’re back to square one.”
Birdlife Australia spokesman Robert Clemens said he hoped the development site would be reconsidered.
“This would be one of the last places you would choose to do something,” Mr Clemens said.
“It’s one of the jewels in this council region.
“If we take a step back and look at all the areas where we could put an apartment complex this would come out at the bottom of the list, surely.”
Consultation on proposed changes to the management of gastropod and bivalve molluscs in Moreton Bay
BIEPA considers this an important enough issue to send you the Survey sent by the Queensland Government Department of Agriculture and Fisheries (DAF).
You will recall our October daytime meeting held at the Seaside Museum, where our Guest Speaker from DAF talked about the over-harvesting of gastropod and bivalve molluscs in Moreton Bay, some of it to supply restaurants illegally. DAF has been investigating and gathering evidence over a number of years to ensure the over-harvesting can be addressed. Many are asking for a total ban on harvesting these species to allow their numbers to return to normal and improve the health of the Moreton Bay Marine Park ecosystems.
The Survey can be found at this link: https://www.daf.qld.gov.au/business-priorities/fisheries/consultations-and-legislation/reviews-surveys-and-consultations.
Follow the prompts to take part.
Consultation on proposed changes to the management of gastropod and bivalve molluscs in Moreton Bay.
Fishing pressure directed at gastropods and bivalve molluscs in Moreton Bay has increased significantly in recent years resulting in concern about the sustainability of key species (mud ark and mud whelks). A key issue is limited compliance with current in-possession limits (50 per person) with large organised groups of people targeting these species excessively.
Gastropods and bivalve mollusc species are highly susceptible to localised depletion because of their sedentary nature and the ease of access to fishing grounds adjacent to urban centres.
Fisheries Queensland anticipates that fishing pressure and demand for these fisheries resources will continue and management action is required to protect intertidal shellfish populations and support rebuilding of populations to sustainable levels.
Initial consultation with some local stakeholders, the Moreton Bay Working Group and the Sustainable Fisheries Expert Panel has been undertaken. Communiques are available online athttps://www.daf.qld.gov.au/business-priorities/fisheries/sustainable-fisheries-strategy. Fisheries Queensland is now seeking additional feedback through public consultation on the following management changes to the Fisheries Regulation 2008:
- Prohibit the take of gastropods and bivalve mollusc, excluding pipis, in Moreton Bay;
- Clarify the definition of mollusc to assist compliance activities:
- Gastropod means any invertebrate species belonging to taxonomic Class Gastropoda
- Bivalve Mollusc means any invertebrate species belonging to taxonomic Class Bivalvia
iii. Pipi means any invertebrate species belonging to taxonomic Family Donacidae.
- Clarify that shell collecting (i.e. empty shells, no live organisms) is not a regulated activity.
It is proposed that the closure will apply to the waters of Moreton Bay following the boundary coordinates of the northern, eastern and southern boundaries of the Moreton Bay Marine Park and all tidal waters of rivers flowing into this region and encompass the existing foreshore closures at Wynnum, Nudgee Beach, Bramble Bay and Deception Bay.
The closure would not apply to pipis or worms, and would only apply to bivalve molluscs and gastropods such as mud welks, cockles and mud arks.
There will be no changes to the harvesting of gastropods and bivalve mollusc outside the Moreton Bay area (i.e. outside Moreton Bay a person is allowed to be in possession of 50).
An online survey is regarding the proposed management action is available at https://www.daf.qld.gov.au/business-priorities/fisheries/consultations-and-legislation/reviews-surveys-and-consultations and will be open for comment until 6 January 2019.
If you have any questions please contact John Kung, Senior Fisheries Manager, on 3087 8027 or by email at John.Kung@daf.qld.gov.au.
Executive Director (Fisheries and Forestry)
Department of Agriculture and Fisheries
Disturbing Toondah Harbour revelations
6 December 2018
Shocking revelations about the national assessment process for the proposed Toondah Harbour development in Queensland is further evidence Australia needs stronger national environment laws and an independent umpire for project approvals, leading conservation organisations have declared.
This morning the ABC revealed then-Environment Minister Josh Frydenberg was advised by his department on multiple occasions the Toondah Harbour apartment and marina proposal should be rejected outright because of the damage it would do to an internationally protected wetland.
Only a handful of developments have ever been rejected under current national environment laws.
Documents show Minister Frydenberg in at least one instance rejected this advice and instead sent the development to the next stage of assessment. Other documents obtained by the ABC reveal the Queensland Government was also willing to remove areas from the internationally protected wetland to facilitate the development.
Donor Annual Returns lodged with the Australian Electoral Commission show the Toondah Harbour proponent, Walker Corporation, gave $225,000 to the Federal Liberal Party and $23,000 to the Queensland ALP in 2015-16 – the year the initial development proposal was submitted for national assessment. Documents obtained by the ABC suggest Walker Corporation also engaged in a campaign of legal challenges and lobbying to keep the project alive.
The Toondah Harbour development would destroy approximately 40 hectares of the internationally protected Moreton Bay Ramsar site – one of Australia’s most important migratory shorebird feeding and breeding wetland habitats. A third version of the development is currently at the second-stage of assessment under national environment law.
Australian Conservation Foundation (ACF) Chief Executive Officer, Kelly O’Shanassy, said Australians should question whether state and federal elected representatives have been acting in the best interests of nature or those of a significant donor, in not striking out the Toondah Harbour development.
“There needs to be an independent probe into this matter. Australians have the right to be confident the natural world is being protected from irresponsible development, especially places as important as the Moreton Bay Ramsar site,” Ms O’Shanassy said.
BirdLife Australia Chief Executive Officer, Paul Sullivan, said the project should never have proceeded to this stage.
“The proposal to build 3,600 waterside apartments and a marina on a Ramsar site flies in the face of Australia’s international obligations. The Minister should have followed the advice of his own department and rejected this project outright,” Mr Sullivan said.
“Critically endangered migratory shorebirds like the Eastern Curlew rely on this important wetland for their survival. If approved, Toondah will set a dangerous precedent for 2,331 Ramsar sites around the world. The international community is watching what happens next.”
Humane Society International Australia Chief Executive Officer, Erica Martin, said the revelations highlight the urgent need for new environment laws in Australia.
“It is unacceptable that matters of national environmental significance are being ignored in the decision making process for major developments like Toondah Harbour. Australia needs stronger nature laws and a national Environment Protection Authority to take the politics out of these decisions and to ensure native wildlife and their habitats are given the protection they truly deserve,” Ms Martin said.
“The Department was right on the money in saying this proposal should be rejected outright, and it’s disturbing that Minister Frydenberg ignored this advice and opened the door to removing international protections for the sake of development. The Moreton Bay Ramsar site is priceless, and Australia must respect the conventions we’ve committed to.”
Liberal Party donor issues legal threat to minister over development on sensitive bird habitat
The former federal environment minister rejected advice from his own department that a $1.4 billion development on protected wetlands being proposed by a major Liberal Party donor was “clearly unacceptable”, documents obtained under Freedom of Information (FOI) show.
- The proposed development overlaps with wetlands that are home to endangered migratory birds
- Experts within the federal Department of Environment have consistently said the project is clearly unacceptable
- Minister referred proposal for formal environmental assessment, which peak environment group says increases chances of it going ahead
Walker Corporation, which describes itself as Australia’s largest private diversified development company, wants to build a precinct that includes 3,600 apartments, a hotel, convention centre and marina on a stretch of coastline south-east of Brisbane.
Toondah Harbour is on a wetland listed under the RAMSAR convention, which protects important habitats for migratory birds. Australia was one of the first signatories to the convention.
FOI documents obtained by Australian Conservation Foundation show former environment minister and current Treasurer Josh Frydenberg rejected advice from his own department to strike out the proposed development at the first hurdle.
Today, Mr Frydenberg said his decision was not an approval of the development, but an opportunity for proper assessment under the Environment Protection and Biodiversity Conservation (EPBC) Act.
The department had consistently argued the proposal was “clearly unacceptable” because of the permanent impact it would have on the ecological character of the wetlands.
Further documents obtained by the ABC show his department was subject to sustained pressure to approve the development including a legal threat against the minister and environment department by Walker Corporation.
Moreton Bay became a RAMSAR-listed site in 1993. Toondah Harbour sits inside it, across the bay from the popular tourism destination of Stradbroke Island.
It is home to critically endangered shorebirds, such as the eastern curlew, which rely on these mudflats to fatten up before their journey back to breeding grounds in Russia and China.
Walker Corporation a generous donor in politics
In the same financial year the development was sent to the Federal Government for approval, Walker Corporation donated $225,000 to the federal Liberal Party and $23,000 to Queensland Labor.
The previous year, Walker Corporation did not donate to either political party, but the company has been a relatively regular donor to both sides of politics over the past 10 years.
Mr Frydenberg said political donations had nothing to do with the decision-making process.
“It’s got nothing to do with the donor,” he told ABC News Breakfast.
From early on in the approval process Walker Corporation was warned the project was problematic.
In April 2016 the federal Department of the Environment wrote to the developer saying it intended to advise the minister the development was “clearly unacceptable”.
Over a year the developer was able to negotiate with the department to get the decision delayed six times.
In February 2017 Walker Corporation’s advisers threatened to take the minister to court, arguing it disagreed with the department’s view that the project was “clearly unacceptable” and making the case that any such decision would entail an error in law.
The ABC has obtained a copy of that confidential letter, which said given the “stalemate of legal views on the ‘clearly unacceptable’ issue, … the best path forward may be to have the Federal Court decide the ‘clearly unacceptable’ point”.
“We have instructions from Lang Walker to file and serve this Originating Application no later than 9 March 2017 if agreement on another process has not been reached prior,” the letter said.
No legal action ensued but the message was clear.
Project referred to next stage
In May last year Walker Corporation withdrew its initial proposal and submitted a smaller one that still encroached on around 50 hectares of the RAMSAR site.
A month later, the department gave the minister formal advice the project remained “clearly unacceptable”.
Mr Frydenberg rejected that advice.
He did not approve the proposal but instead sent it to an assessment process known as an Environmental Impact Statement.
Mr Frydenberg said his decision was not an approval of the development, but an opportunity for proper assessment.
“Under the EPBC Act, the minister has the opportunity to enable his department to undertake a full assessment of the project, and in doing so, get more information, which may lead to mitigation or offsets of any significant environmental impact that the project would have,” Mr Frydenberg said.
When asked why he had rejected advice from his department that the project was “clearly unacceptable”, he said his department had also pointed out there was an opportunity to gather more information under this assessment process.
Mr Frydenberg also pointed out the Queensland Labor Government had been strong proponents of the project, and again stressed the donation record of the Walker Corporation was not relevant to his decision.
“The Walker Corporation are a very well known Australian company with interests right across the country,” he said.
“But the biggest proponents of this or advocates of this was the state Labor Government, the Palaszczuk Government as well as the local council because of the jobs it would create, the marina it would establish, the ferry system and the tourism jobs that it would create for the local area.”
Queensland government letter backs development bid
The ABC has obtained a copy of a letter sent by then Queensland environment minister Steven Miles and Deputy Premier Jackie Trad on August 12, 2016, advocating for the project.
“We acknowledge that the Toondah Harbour Priority Development area (PDA) declared by the then-Queensland government in June 2013 overlaps with part of the Moreton Bay’s listed Convention on Wetlands of International Importance (Ramsar Convention) site,” the letter states.
“Nonetheless, the Queensland Government supports the project now being declared a ‘controlled action’ under the Commonwealth legislation, so as to ensure that its potential impact on matters of national environmental significance can be assessed in detail based on sound evidence.”
This designation, making the project a “controlled action”, was the decision Mr Frydenberg eventually made.
ACF chief executive Kelly O’Shanassy said she was shocked by the decision by then-minister Frydenberg to refer the project for assessment.
“[Of the more than] 1,700 assessments that have been done under the EPBC act, only 11 have been rejected over that time,” Ms O’Shanassy said.
“It’s very unlikely that it’s going to be rejected given the history of the act.”
Lang Walker, the founder and driving force behind Walker Corporation, was unavailable for interview.
Walker Corporation’s Craig Addley, the project designer for Toondah Harbour, told the ABC he was unaware of the legal threat, and conversations around donations were “above my paygrade”.
“I think we’ve always wanted to get to the point where we could start this EIS process,” Mr Addley said.
“That’s a really important part of the project in communicating and illustrating all the issues to it.
“Regardless of some of those issues, all the decisions on this project need to be based on the science and the facts.”
Mr Addley said he hopes the port will be rehabilitated and other infrastructure developed off the back of the project.
Hear the full investigation on Radio National’s Background Briefing program on Sunday, at 8am, or in your podcast feed later today.
You can contact Steve Cannane securely using the Signal app on 0417493087, if you know more about this story.