INFORMATION SHEET ON TOONDAH HARBOUR FOR ENVM7123 GROUP

ASSIGNMENT, SEMESTER 1, 2024

TASK (EPBC ACT ASSESSMENT):

In a group of 3-4 students acting as officers of the Australian Government department

administering the Environment Protection and Biodiversity Conservation Act 1999 (Cth)

(EPBC Act), prepare a report for the Federal Environment Minister advising whether the

Toondah Harbour proposal (EPBC Referral No 2018/8225) in the Moreton Bay Ramsar Site

(MBRS) at Cleveland should be refused or approved subject to conditions.

The report should consist of the following parts:

1. A report (of 3,000 - 4,000 words in total1) setting out the background to the proposal and

assessing it against the statutory requirements of the EPBC Act, with a recommendation to

the Minister on whether the proposal should be refused or approved subject to conditions.

2. Draft two or more conditions (of up to 800 words2) to be imposed on any approval requiring

environmental offsets for the impacts on the MBRS (you are not required to draft conditions

on other issues).

3. Peer Assessment - A declaration signed by each member of the group on a final page that

the assignment is their own work and that the group has collaborated effectively & shared

the workload fairly.

BACKGROUND

The MBRS was entered on the Ramsar List in 1993. As required by Art 2(1) of the Ramsar

Convention, its boundaries were and are “precisely described and also delimited on a map”,

including, relevantly, the area shown in yellow hatching in Figure 1 and a blue line in Figure 3.

As shown in Figure 1 and Figure 3, the area designated for the MBRS in 1993 excluded an area

for the Cleveland ferry terminal, which existed at the time of listing.

The Toondah Harbour proposal has been referred three times under the EPBC Act:

(a) the first referral (EPBC No 2015/7612), made on 23 November 2015, was withdrawn on

4 May 2017;

(b) the second referral (EPBC No 2017/7939), made on 11 May 2017, was determined to be a

controlled action but has not progressed beyond the referral stage; and

(c) the third referral (EPBC No 2018/8225), made on 4 June 2018, was determined to be a

controlled action requiring assessment by an environmental impact statement (EIS) under

the Act and is now awaiting final decision by the Minister.

In summary, the Toondah Harbour proposal comprises three main components shown in more

detail in Figure 1 and Figure 2:

(a) a proposed residential development for 3,600 apartments, with a marina, parklands, hotel,

retail, commercial and educational uses and roads involving extensive reclamation of

intertidal areas on the boundary of, and within, the MBRS (the residential development);

(b) redevelopment of the existing ferry terminal in an area largely outside the MBRS (the

ferry terminal redevelopment); and

(c) dredging of a long (>2 km) channel through the MBRS, which will widen, deepen,

straighten and lengthen an existing navigation channel and provide a large volume of cheap

fill for the reclamation works for the residential development (the associated dredging).3

1 Undergraduate students in ENVM3103 have a word limit of 2,000-3,000 words for this report.

2 Undergraduate students in ENVM3103 have a word limit of up to 500 words for the offset conditions.

3 As described in section 2.4 (Dredging and Reclamation Works) of the Draft EIS for Toondah Harbour.

2

Figure 1: The residential development and ferry terminal redevelopment components of

the Toondah Harbour proposal, overlaid with the boundaries of the MBRS

3

Figure 2: Toondah Harbour proposal and associate dredging4

4 Source: Toondah Harbour Project Environmental Impact Statement Supplementary Report, prepared for Walker Group, 24 November 2023, Figure ES-1.

4

Key

Figure 3: MBRS boundary along the coastline at Cleveland (the area to the east/right of the blue line is within the MBRS).5

5 Source: Queensland Government, Wetland Maps, available online at https://wetlandinfo.des.qld.gov.au/wetlandmaps/?extent=153.283,-27.556,153.334,-27.51

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On 24 May 2017 the Secretariat to the Ramsar Convention made a submission in response to

the public notice of the second referral (EPBC No 2017/7939) (the Ramsar Secretariat’s

submission), which stated, amongst other matters (highlighting added):

On 5 June 2017 the Department administering the EPBC Act recommended to the Minister that

the second referral (EPBC No 2017/7939) be rejected as “clearly unacceptable” under s 74B

of the EPBC Act because “the impacts of the proposed development will result in permanent

and irreversible damage to the ecological character of the [MBRS]”. These impacts included

“a permanent impact to approximately 40 hectares of shorebird feeding habitat as a result of

dredging and reclamation works.”6 Legal advice to the Department from the Australian

Government Solicitor was that the proposal was inconsistent Australia’s obligations under the

Ramsar Convention, in part because “there is a Convention resolution that boundary

6 The Department’s briefing note and draft statement of reasons for this decision is available at

https://www.abc.net.au/news/2018-12-06/developer-issues-legal-threat-to-minister-over-protected-

wetland/10581734 and/or https://www.documentcloud.org/documents/5427735-Toondah-Harbour-

Development-FOI-Documents.html

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restrictions will not be supported to facilitate development”.7 This resolution (IX.6), is

discussed further below.

However, on 8 June 2017, the Minister at the time, Josh Frydenberg, refused to follow the

Department’s recommendation and decided that the second referral should be declared a

controlled action requiring assessment under the EPBC Act.8

On 4 August 2017, Minister Frydenberg wrote to the Queensland Government seeking its

support for the two governments to develop a case to change the boundary of the MBRS if they

could demonstrate it was in the “urgent national interest” to allow the Toondah Harbour

proposal to proceed.9 He wrote:10

On 25 August 2017, then Queensland Environment Minister (and now Queensland Premier),

Steven Miles, replied, concluding with an acknowledgement that “any boundary amendment

proposal associated with the Toondah Harbour … needs to be in the ‘urgent national

interest’”.11 Subsequently, a later Queensland Environment Minister acknowledged, “a

subsequent comprehensive mapping review … concluded that there was no justification to

7 Based on documents leaked to ABC Background Briefing discussed in the recording at 26:30-20:00, available

at https://www.abc.net.au/listen/programs/backgroundbriefing/the-bird-and-the-businessman/10588700

8 Steve Cannane and Rebecca Trigger, “Liberal Party donor issues legal threat to minister over development on

sensitive bird habitat”, ABC News, 6 December 2018, https://www.abc.net.au/news/2018-12-06/developer-

issues-legal-threat-to-minister-over-protected-wetland/10581734

9 “Frydenberg proposed delisting part of wetland to allow Queensland's Toondah Harbour development” The

Guardian, 3 December 2020, https://www.theguardian.com/environment/2020/dec/03/frydenberg-proposed-

delisting-wetland-to-allow-queenslands-toondah-harbour-development

10 A PDF of the letter released under FOI is available online at Savestraddie, “Mnisters’ letters expose fatal

Toondah flaw”, 6 November 2022, https://savestraddie.com/ministers-letters-expose-fatal-toondah-flaw/

11 A PDF of the letter released under FOI is available online at Savestraddie, “Mnisters’ letters expose fatal

Toondah flaw”, 6 November 2022, https://savestraddie.com/ministers-letters-expose-fatal-toondah-flaw/.

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amend the Ramsar boundary”.12 Based on the publicly available information, the proposed

boundary change did not proceed further.

On 4 June 2018 the proponent, Walker Group Holdings Pty Ltd (Walker Group), referred the

project a third time (EPBC No 2018/8225). On 23 July 2018, a delegate of the Minister decided

that the third referral of the project was a controlled action and should be assessed by an EIS

under the EPBC Act.

An EIS for the third referral of the project was prepared by consultants for Walker Group and

published in draft in 2022.13

On 13 December 2023, the time in which to make a decision under s 133 of Part 9 of the EPBC

Act whether to approve or refuse the project was extended to 23 April 2024. No final decision

had been announced at the time of writing.

LEGISLATIVE CONTEXT

In summary, the relevant legislative framework of the EPBC Act14 is:

(a) Part 3 creates a series of civil and criminal offences for actions that have, will have or are

likely to have a significant impact on matters of national environmental significance,

including, in ss 16 and 17B, the ecological character of a declared Ramsar Wetland, unless

an exemption applies or approval is obtained under the Act;

(b) Part 5 provides for bilateral agreements between the Commonwealth and a State or

Territory government to, amongst other things, accredit State and Territory environmental

impact assessment processes for assessment of actions under the Act;

(c) Part 7 provides for referrals by, amongst others, proponents of proposed actions, for a

decision on whether the proposed action is a “controlled action” (i.e. it requires approval

under the Act) and, if so, which controlling provisions under Part 3 apply (e.g. for impacts

on Ramsar Wetlands, ss 16 and 17B);

(d) Part 8 provides numerous methods of assessing a proposed action that has been determined

to be a controlled action, including by EIS, but does not apply if a controlled action is to

be assessed under a bilateral agreement with a State or Territory; and

(e) Part 9 provides for a decision by the Minister (or their delegate) on whether to approve,

refuse or approve subject to conditions, a controlled action assessed under Part 8 or a

bilateral agreement.

The legislative context for an approval under Part 9 includes a requirement in s 138 that:

138 Requirements for decisions about Ramsar wetlands

In deciding whether or not to approve for the purposes of section 16 or 17B the taking of an

action, and what conditions to attach to such an approval, the Minister must not act inconsistently

with Australia's obligations under the Ramsar Convention.

Sections 16 and 17B are controlling provisions for the Toondah Harbour proposal and,

therefore, Australia’s obligations under the Ramsar Convention constrains the Minister’s

decision under s 133 to approve or refuse the project.

12 Hon L Enoch, Queensland Environment Minister, Answer to Question on Notice No 241 asked 27/2/19,

available at https://savestraddie.com/ministers-letters-expose-fatal-toondah-flaw/

13 Available at https://www.toondah.com.au/

14 See generally McGrath C, “Key concepts of the Environment Protection and Biodiversity Conservation Act

1999 (Cth)” (2005) 22 Environmental and Planning Law Journal 20-39.