Public Responses to the Final EIS
Click on links below for Final Environmental Impact Study Responses
Jeremy Tager
Charlie McColl
Jeremy Tager
North Queensland Conservation Council inc.
Townsville Environment Centre, 340 Flinders Mall
P.O.Box 364 Townsville 4810
Comments on the Final EIS Report for Nelly Bay Harbour
Introduction:
NQCC has participated in this particular process for over 4 years; one has to wonder whether a more flawed process and a more defective document has ever been presented to decision-makers as a completed assessment study. It is with considerable dismay that NQCC considers that this FEIS could serve as a basis for approvals of any sort.
If these EIS reports are considered to constitute an adequate assessment of the proposed Nelly Bay project, one must conclude that impact assessment is functionally useless.
This EIS process has become both a form of promotion for a particular development and a cynical exercise in distortion and omission that serves to confirm political decisions or ratify political positions long since established. There are ways to make the EIS process accountable, stringent, thorough and fair. They are not presently part of the impact assessment process in Australia.
This response will not address every defect that has been noted in other submissions and not addressed. We reiterate those comments and incorporate them herein by reference. This response will only attempt to outline the major inadequacies of the FEIS.
Our purpose here will primarily be to demonstrate five broad failings of the FEIS:
1. Failure to address issues raised in the EIS or SEIS (not a comprehensive list)
2. Failure to consider legally relevant matters
3. Errors or distortion of fact
4. Bias or subjective opinion without support from data or research
5. Arguments based on incorrect logic or premises.
Failure to address issues raised in the EIS or SEIS
(p12) Viability of the project has still not been addressed. The most recent figures we have seen under FOI (prepared by the 'preferred developers' 1997) suggest that the profit of the developers under the new concept plan will be under $250,000. That does not include any provision for cost blow-outs. That represents a 1.5% return on a $20m development. Arthur Anderson and Associates, on the other hand, claim that the subsidy would provide super profit to the developers. The reality is unknown because the economic work has not been done. Either scenario indicates that the project isn't viable - not as a commercial undertaking and not as a government subsidised project.
Viability of the ferry terminal is also an issue, particularly if Picnic Bay remains in operation. Logic says that Island Adventures will not be able to compete with Sunferries if it attempts to run to Nelly Bay while Sunferries operates to Picnic. They were unable to compete when both companies ran into the closer Picnic Bay. If the ferry terminal and landing is not used what effect will that have on the viability of Nelly Bay Harbour? Will the State be stuck with maintaining an unused terminal? Will it subsidise a competing ferry company in order to ensure that it gets a 'return' on its investment in 'public' infrastructure?
Also not considered is whether the much cited equity of Curtain Brothers actually has any significance or substance for this development. FOI documents suggest that Curtain Brothers involvement is contingent on a finalised commercial agreement that guarantees both government monies and those other subsisies that relate to sewage, infrastructure maintenance and repair and the deferred payment of freeholding costs. No documentation suggests Curtain Brothers is prepared to put a cent into the project.
(p13) The TOR specifically require the consideration of prudent and feasible alternatives. That has not occurred.
The consultants continue to refuse to consider a partial restoration of Nelly Bay with a safe landing at Picnic Bay, either using a freestanding breakwall or wave attenuators.
• Costs have still not been considered:
• Increased State subsidies for student and pensioner ferry travel - how much?
• Maintenance dredging - how much? And what costs associated with closure of the harbour?
• Moving all boats out in cyclonic conditions - how much?
• Beach nourishment
• Sediment basin maintenance
• Breakwall insurance
• Public infrastructure maintenance
• Additional sewage costs
• Water quality testing costs
• Internal beach renourishment
• Monitoring
Detailed information: While some information can legitimately be deferred, the consultant's argument that a vast number of issues can be delayed pending detailed plans post approval, deprives the public of the right to informed comment. Once again, the consultant confuses the developer and the proponent in arguing that cost precludes such detail. The developer ('preferred developer') is not paying for these studies. The State as proponent is paying. They can afford to conduct the studies that are essential for informed comment and decision-making. Greater detail is both necessary and justified in terms of ensuring that the public has access to all relevant information for purposes of comment. That has not occurred in relation to:
• Zoning issues
• Costs
• Parking
• Private marina issues
• Boating traffic
• Water quality - only one contaminant modelled.
• Substrate porosity - no detailed site studies
• Contaminants - composition, quantities and effects
• Legal issues
• Safety issues - access channel, harbour mouth, tie-up
The Townsville City Council submission to the EIS expressed serious concerns about costs to the ratepayers:
"Considerable ongoing financial commitments have been imposed on Council by the Eis:
• TCC is to monitor and maintain waterways above MLW
• TCC is to operate/maintain the bilge water and sewage pump-out facilities established by the developer
• TCC is to analyse content of and maintain sediment traps
• TCC is to construct bunding or silt curtains to protect harbour from suspended sediments
• TCC analyse content of sediment traps and re-use sediments to nourish the beach
• TCC in conjunction with the Beach Protection Authority will, after 4 years, take responsibility for the monitoring and renourishment of the beach south of the NB Harbour which may be subject to erosion as a result of the development
• TCC is to "educate residents to assist in improving quality of run-off"
These have not been addressed nor quantified in the FEIS
Is the boat ramp in a safe position in relation to bathers on a public beach. Boat traffic will have to cross the face of the beach. What distances are considered safe?
The reclamation of the Great Barrier Reef Marine Park in order to build a boat ramp and parking lot.
(p24) Sedimentation rates in the harbour, particularly via the Kelly Street breakwall opening has still not been discussed.
Question: Will the 'kidney' canal become part of the Great Barrier Reef Marine Park once dredged and below MLW? If so, then the so-called private marina must be examined in that light.
(p24-25) Since when have private moorings constituted a 'private marina'? Why has the continued refusal to assess the impacts of private boats and private moorings on water quality, flushing, hydrology, health and safety of bathers? It is important to note that a shallower harbour will increase the impacts of pontoons and other structures in the water.
If an outbreak of Zebra Mussels were to occur in Nelly Bay, would it too be treated with tonnes of chlorine and copper sulfate?
(p26-27) The comment made in Appendix C, p.1 that this 'safe' harbour is "not planned as a cyclone haven for vessels" means that in cyclones and in the event of cyclone warnings, evacuation will have to occur. Not a safe harbour. Where will the boats go?
Statements regarding wave action in the harbour, the failure of the breakwater crest and the obvious danger of a standing wave (never discussed) in a harbour that is prone to both floodwater and storm surge needs discussion.
In an FOI note from Lee Benson in response to the removal of the artificial island, Mr Benson suggested to the 'preferred developers' that removal of the island may preclude the inclusion of private boat moorings ("the seaward fringe of precincts 7, 6 and 8 will need to be raised because the sausage no longer protects them from storm surge. I imagine this also means no private boat moorings?") The implication that the harbour would be less safe as a result of removal of the island has never been discussed in the SEIS or FEIS.
The attempt to counter the Marine Modelling Unit's recommendation to move the ferry tie-up, fails because even the SKM model recognises that moving the tie-up location is the "best option" (Appendix C, p. 7). While recommending an exchange of sites with the barge does not go as far as the MMU report, it is interesting to note that even SKM cannot support their own design. The impact of even such a minor - and probably not sufficient - change in ferry tie-up location, is the need to redesign a substantial part of the plan. Again.
Safety within harbour. All of the modelling conducted on wave action within the harbour basin has ignored potential flows from Gustav Creek and the incoming water from the Kelly Street opening.
(p 32-33): The safety of a roundabout at the bottom of a blind corner is questionable and has been raised in a number of submissions.
Increased width of channel: The FEIS suggests that the channel will be widened from 30 to 40 metres. No details are provided. Exactly which portion of the channel will be widened? How? Will breakwalls be moved? Will there be increased amounts of dredge spoil? What impacts? Will this solve safety and boat traffic issues? This throwaway line in the FEIS needs substantial assessment and explication.
(p39): the recent bleaching events at Nelly Bay have resulted in approximately a 40% mortality of corals there. There has been no discussion of whether the proposed project would increase stress on a coral reef ecosystem already under stress. GBRMPA in their statement of reasons for permitting the Quays development acknowledged the likely increase in stress on the fringing reef systems of Nelly and Geoffrey Bay as a result of water quality in the marina. The consultants have not assessed those impacts, the cumulative stresses and the long term prognosis of the fringing reef areas.
• What is the threshold for Nelly Bay and Geoffrey Bay corals?
• What impacts can be expected for associated marine life?
• Will the increased sedimentation, toxins, altered hydrology increase the stresses on the system?
(p39): The Marine Modelling Unit has recommended against the internal beaches based on health considerations. This has been ignored by SKM. This issue was also raised in a number of other submissions and included the aesthetics (smell and visual) of beaches contaminated with faecal matter and smell.
(p39): figures used by SKM from the Townsville City Council omit some of the highest readings of faecal coeliform levels (9000 & 11000 cfu/100mL - 1997). This was noted in the NQCC submission and has been ignored.
(p45): The notion that bulldozers will be able to enter the basin simply by closing off the culvert seems to ignore the entire history of the Quays and the current knowledge regarding the sheet piling. The porosity of the substrate was recognised (after the fact unfortunately) as being far greater than expected (see Dr David Hopley comments at 1993 Marine Engineering Conference, Magnetic Island; see also GBRMPA statement of reasons in which the construction method which failed is outlined. It is very similar to the current one). Equally, the reliance on bund walls is misplaced. The current design apparently uses fewer bunds than the 1995 design and yet the sheet piling has now become functionally useless. There is no reason to suppose that this will succeed as proposed.
The 'destination theory' has still not been substantiated nor references provided in order to determine whether it even has theoretical validity.
(p57) The reliance on the CAERA input/output study is misplaced. It does not answer a vast array of economic questions that have been raised in submissions since the EIS in 1995. It certainly does not substitute for a properly conducted cost/benefit analysis which still needs to be done. The input/output model measures nothing more than economic activity. It is likely that having an endless assessment process with constantly changing plans would be economically the most beneficial result under this model. Note the comment 1997 in an internal Department of Economic Development and Trade memo:
"In terms of the EIS the economics of the proposal warrant closer examination"
(p57) Every element of supposed public infrastructure is also (and sometimes primarily) for the benefit of the private developers. For instance, the breakwalls, the dredging and the reclamation are not only critical to the developers (and only marginally useful at best to the remainder of the Island community) they represent long term subsidies to the 'preferred developers', which include maintenance, repair, insurance etc.
(p59) SKM is unable to locate the Arthur Anderson comment regarding super - profit. The comment was made in Arthur Anderson's second review, after the subsidy had increased from $5m to $5.5m.
October 22 1997:
"The revised offer appears to be even less attractive than the previous offer"
"The original figure of $5.0 million has not been satisfactorily substantiated and would seem to provide super profit to the developer"
"There appears to be no financial substantiation of the proposal that could in any way justify its acceptance by Government"
"It is our view that the proposal is not commercially acceptable"
It is also worth noting that Arthur Anderson also said;
"The Nelly Bay project....appears not to have been initiated or progressed by any form of robust due process"
Nothing in the SEIS or FEIS clarifies how any of the comments have changed. The only notable change was that the freeholding costs for crown land would change. Instead of a flat fee of $500,000 paid up-front (original agreement), or no fee at all (as urged by the 'preferred developers' in 1997), the process now appears to one which establishes the price after all or some of the freehold blocks have been sold by the developer. This freeholding process appears to be another attempt to allow the developers to avoid commiting any capital or taking any financial risks. (some of the legal questions raised by this are discussed below).
Question: Why is the barge facility to remain in private hands? Why are breakwalls considered infrastructure in the public interest and yet a barge landing that serves a critical function in terms of the Island's economy (cost of goods) is allowed to remain in private hands? Has some agreement been reached with the Curtain Brothers that ensures they retain control of the barge landing?
(p60): It is unlikely that the sewage situation will improve for the remainder of the Island as a result of this development. SKM relies on a wastewater strategy being paid for and implemented. That does not appear likely or even possible in the short term. TCC has admitted (FOI docs) that sewage headwork charges do not cover their costs. This means, ratepayers will be subsidising sewage on site and the remaining sewage capacity in Nelly Bay will go to the project and be unavailable to other residents. Full capacity also increases the likelihood of spills and wet event discharges.
Question: according to the input/output model (unrevised) does the input of $6m of State money represent a negative economic activity? What are the flow-on effects of spending taxpayer money to produce economic activity? What percentage return can we expect according to input/output analysis? How many jobs are lost because $6m isn't spent on job creation schemes or other more economically productive activities?
The discrepancy between TCC and GBRMPA standards for the breakwalls. SKM have consistently claimed they have satisfied TCC standards; have they satisfied (category 4) the standards of the Authority?
Rehabilitation insurance: who will pay and what extent of rehabilitation will be required? Will the developers be allowed to derive a critical benefit of the breakwalls at no cost and yet be permitted not to assume the risk involved in their removal should the project fail?
Question: if the internal beaches require nourishment and there is insufficient sand in the trap to nourish both internal and external beaches, where will additional sand come from? Who pays?
• If the sand in the sediment trap is contaminated will it be dumped?
• Where?
• Where will nourishment sand then come from?
• Who pays?
• If remediated, by what process and where will remediation occur?
• Who pays?
Distortions in survey conclusions still not addressed.
Note that the noise survey conducted no tests at points more distant from the site. Nelly Bay acts like an amphitheatre and with the slight elevation at the back of the bay, sounds from the water are easily heard and should be assessed.
In their submission to the 1995 DEIS , the World Heritage Unit sought assessment of cumulative impacts on the adjacent reef ecosystems that could cause long term harm. That has not occurred. The World Heritage Unit considered that the project would violate the World Heritage Convention. Nothing has changed in the project that would alter that conclusion.
Failure to consider legally relevant matters
Failure to consider whether the selection of SKM as consultant was based on inappropriate circumvention of the State Purchasing Policy. SKM was selected without tender. At a meeting in January 1995, Department of Land's officer Les Todd agreed to select SKM to do the EIS and pay them from 'emergent expenditure' in order to avoid the one month delay that would be incurred by following proper tendering processes.
• What is the legal effect of the $6m handout?
• Does it violate the terms of the EOI by which the 'preferred developer' was selected
• Does it significantly alter the plan accepted under the original EOI process?
• Does it mean that the publicly owned infrastructure will be built by the 'preferred developers' as contractors to the State?
• Will there be a tender process?
• If not, on what basis will the tendering process be waived?
Failure to consider whether allowing a change in ownership structure of the 'preferred developer' constitutes a de facto selection of a new preferred developer without a proper tendering process.
Failure to assess the validity of the tendering (EOI) process. A 1997 Department of Economic Development and Trade memo makes the following observation: "The basis on which the preferred developers were selected and the terms of that agreement have been substantially altered by this latest proposal and should be reviewed in its entirety"
On Septemper. 18, 1997 the Director General of DG DEDT requested: "details of the EOI process"…
"was the offer to pay for an EIS made known to all tenderers at the time of the initial call for EOI - did the State decide to provide special benefits to this company"
"does the State ordinarily pay for an EIS, if not, why did we do so in this case"
"have we allowed the company to vary its tender (either in writing or by implication)"
None of these questions has been answered, either by the present government or the consultants.
Failure to assess whether significant changes in the plan proposal requires a new tendering process. SKM discusses/dismisses the issue but fails to consider it from a legal perspective. If a plan submitted as part of a tendering process is allowed to change without restriction, and if the parties that submitted the tender are allowed to change without restriction, the entire tendering process is rendered pointless.
Failure to consider whether dredging in the GBRMP for purposes of constructing and facilitating a canal estate conforms to the objects of the zone (noting that only a small portion of the dredging is for purposes of a ferry landing. In 1996 the Attorney General's Department provided legal advice to the Authority in relation to the 'sausage' which may apply equally to this question: "In my view, the fact that the final proposed use of the reclaimed land is for private dwelling lots is clearly relevant to whether the proposed activities are capable of being permitted…For example, I think that reclamation works for beach protection purposes would clearly give rise to different considerations than reclamation works designed to support a residential development". The same can be said of dredging, whose primary purpose is to create private residential land in a World Heritage area.
(p21-22) Excision - The discussion by SKM is completely inadequate from a legal perspective. In 1996, then Environment Minister Tom Barton made the following statement:
"In accordance with the marine park zoning plans, both Commonwealth and state, no approval could be issued for the residential development component on reclaimed land in this location"
This directly contradicts the position of the Director of Coastal Management. The statements made in that regard do not have any legal support, either in the Marine Park Act or in the FEIS. Section 22 clearly sets out the process for excision. It does not give discretion. It does not provide for exision by permit. Reclamation can occur by permit, but reclamation that results in excision would be ruled by the requirements of section 22. Reliance on past practices that have failed to excise according to law does not support the continuation of such practices. The claim by SKM that use of section 22 is "redundant" is indefensible and untrue. It is important to note that the zoning provisions of the Townsville/Whitsunday Marine Park mirror those of the Central Section of the Great Barrier Reef Marine Park. The conclusion that the Authority has made in relation to reclamation for private residential development is that it would not conform to the objects of their zoning. That conclusion was based on advice from the Attorney General.
Equally, the argument that residential development may conform to the objects of the zoning of the Marine Park because the site is disturbed and because the "financial success" of the development may require "some private residential component" would appear to be without legal basis. It is of great concern that the consultants are not relying on legal opinion but on policy statements and opinions from departmental staff that may not be legally supportable.
(p12, 21-22) The issue of the freeholding of crown land is discussed but not examined legally at all, although it is a critical issue. SKM indicates that the freehold price for the land reclaimed from the State Marine Park will be based on the market value of the land. The suggestion that the land will not be paid for by the 'preferred developers' until they have sold the land on to individual or bulk purchasers is very disturbing. If this is the case, it raises serious issues:
• is this legal under the Lands Act?
• to what extent does such a process subsidise the developers and indemnify them from risk?
• does it violate the National Competition Policy?
• How can the 'preferred developers' sell land that they have not yet paid for - and presumably do not own?
• If the land does not sell, who bears the costs and risks of such failure?
• What is the status of the land prior to its sale by the 'preferred developers'?
• What are the Native Title implications of such a process?
• Failure to consider the legal impediments to transfer of Marine Park permits from the proponent to the 'preferred developers'.
On what basis would government facilities be leased back to the 'preferred developers'? Is this going to be a private deal subject to commercial in confidence? Will the lease guarantee the profit of the developers? Will the selection of the lessee be by public process or will it be given to the current 'preferred developers'? If so, on what legal basis? John Okely of the Premier's Department made the following commitment to the 'preferred developers' in 1997: "the Government would not be expecting to see a commercial return on the full $5 million coming through its lease agreement..." Would the government accept continuing commercial losses?
Will work for construction of public infrastructure be the result of open tender?
If not, on what basis will it be given to the 'preferred developers'?
What is the current legal relationship between the State and the 'preferred developers'?
Have they entered into a written contractual agreement?
If so, does the agreement ignore the EP(IP) Act and GBRMP Act by imposing obligations on parties before those Acts have authorised such obligations?
Has the State incurred any legal obligations as a result of statements made during the process?
If so, are those obligations void because of the above Acts?
The 'finger' breakwall (easternmost) alters the boundary of the GBRMP. In the original Quays development it was to be separated from the Bright Point land? That no longer appears to be true. What is the legal basis for this change? The breakwall, like the temporary sections of the breakwall alters the boundary of the GBRMP. That has not been accomplished through the established legal mechanisms.
Failure to consider either section 30 of the AHC Act or the test outlined for that section by GBRMPA in the Dalhold Nickel Case.
Failure to conform to the Terms of Reference:
Terms of Reference number 4 explicitly excludes consideration of Picnic Bay as a prudent and feasible alternative. What is the legal basis for such an exlusion in light of section 30's requirement that all prudent and feasible alternatives be considered?
Section 8.2 of the EP(IP) Act requires that any person who made comment on draft assessment documents receive a copy of the Final document. That has not occurred and the proponents have thus deprived the public of an important opportunity to comment on the extent to which the proponents have addressed their concerns.
Factual errors or distortion:
(p1) The present concept is not a "refinement" of the plan presented in the EIS or the EOI process. It is a new plan, with new funding and new 'preferred developers'
(p4) GBRMPA does not have "responsibility for issuing permits to allow works within the GBR". It has responsibility for determining whether such permits should be issued.
(p11) The claim that a safe harbour is being paid for by the sale of residential lots is patently false. The residential development is being subsidised by the State which could construct a safe landing on Magnetic Island for considerably less.
(p11) The $6m subsidy was not provided by the State in order to pay for public infrastructure. It was deemed to be compensation to the 'preferred developers' for removal of the residential island. The absurdity of compensating a developer for land that doesn't exist and which they don't own in any event was eventually recognised and the money was reconstituted as provision of public infrastructure. FOI documents are clear, however, that the State money is to ensure a so-called private project doesn't collapse. The characterisation of certain components of the proposal as infrastructure is dubious at best, duplicitous at worst. Most of the so-called infrastructure either is unecessary, already constructed, or serving private needs for profit far more than public needs.
(p13) The Whitehouse review neither supported nor criticised the choice of Nelly Bay as a development location.
(p13) SKM should review the court and AAT documents in order to determine what was actually decided as a matter of law. Necessity may be the mother of invention, but it is not very helpful in an FEIS.
(p15) The claim that water quality would be the same regardless of the development, particularly in relation to Gustav Creek is incorrect. TCC has stated in FOI documents that the water quality problems associated with Gustav Creek are a direct result of the construction of the breakwalls and cannot be attributed primarily to septic or sewage problems (nb all FOI documents can be provided by NQCC if required)
(p15) Claim that this is a low key development. A development that proposes to increase the population of Nelly Bay by 100% in a 13ha area is not low key. A proposal that proposes a dramatic increase in tourism and retail space is not low key. A canal estate is not in keeping with any current element of Island life. A canal estate is not in keeping with mechanisms for protecting coastal values in any other state. The TCC Plan of Development allows such discretion in terms of density, types of activities, height of buildings, and the mix of residential and tourism uses that it is actually impossible to determine what the project will be at this stage.
(p15) The EOI process did not seek "private developer input" - it sought a wholly privately funded development. It required that the tenderers would assume all risks and costs associated with their project. That has not been true for some time - the State subsidies began almost immediately after the selection of the 'preferred developers'.
The comment that "once the land is converted to freehold title it is no longer public land so in effect public land will not be sold" is as bizarre as it is dishonest. Both now and upon reclamation, should it ever occur, the land is in public hands. When title passes into freehold it must do so under the Lands Act for fair market value. It is public land being sold into private hands.
(p32) As (to our knowledge) no commercial agreement yet exists between the State and the proposed lessees, Nelly Bay Harbour, it is incorrect to say that Nelly Bay Harbour will have no power to dictate charges to ferry operators. It must be assumed that any commercial lease entered into by NBH will be for profit purposes. It must be assumed that NBH p/l would not enter into a lease if the provisions left no room to increase fees in order to cover costs.
If a commercial agreement does exist, does it attempt to supercede the EP(IP) and GBRMP Acts by imposing obligations not yet authorised under those Acts?
(p35) Total occupation of the proposed development could result in an increase of population of over 600 people (tourism zoning in the Plan of Development does not preclude residential use). It may be higher because of the high level of 'flexibility' in the current Plan. No equivalent population figures are provided in the SEIS or FEIS. A 600+ person increase (derived from claims in FOI documents) represents a 100% increase in the population of Nelly Bay and approximately a 25%-30% increase for the entire Island. Not a minor increase by any standard. It does however, represent only a small increase in total potential population based on current zonings. It is widely held on the Island that current potential population far exceeds the capacity of the Island. (see TCC Wastewater Strategy which offer a technological population cap of 5000 based on resident concerns re population).
(p53) The so-called 'commitment' regarding water quality and stormwater discharge is absolutely unenforceable and virtually meaningless as worded. To claim that this commits anyone to anything is simply delusional or dishonest.
(p53) The conclusion that the effect of stormwater discharges on water quality would be 'relatively innocuous' has still not been substantiated with any data. The proposed discharge of stormwater directly into Nelly Bay in order to protect water quality within the harbour has not been assessed, and such method of controlling 'water quality' enjoys "surprising popularity, despite its resemblance to tidying the car by tipping the ash tray out of the window" (Marina Technology, Proceedings of the Second International Conference, UK, 1992, Editor W.R. Blain) It is clear that the consultants promote assimilationist theories in relation to water quality despite the fact that this is no longer considered either ecologically sound or best practice.
(p53) The claim that other activities would result in 'neglible impacts' on water quality is not based on any data or any empirical evidence. Instead the consultants seem to rely on proclamation as a substitute for analysis.
• Why is there no information on how these measures work in other marinas - which are notorious for water quality problems regardless of the putative measures in place?
• Why is there no data on how contaminants will effect oxygen demand in an area of Nelly Bay already notorious for eutrophication?
• What are the estimated figures for oil, petroleum, organotin, copper in solution, sewage and other contaminants in the harbour basin?
• Will decreased flushing rates actually increase the pulses of contaminants into Nelly Bay reefs?
• With what effect?
• Will shallower harbour depths increase eutrophication within the harbour?
Arguments based on incorrect logic or premises:
(p12) The argument that the risk of failure is reduced by government subsidy is to suggest that all developments should be propped up by State funds.
(p14) The notion that somehow the current scheme will cost the taxpayer less than a government provided safe landing is incomprehensible. The costs of a safe landing at Picnic Bay are demonstrably less than at Nelly Bay without any of the ongoing costs.
(p38): recovery of species from disturbance is treated as a single homogenous event. In fact, recovery rates differ markedly depending on the species and the nature of the disturbance. The corals that have colonised the breakwall cannot be the basis for concluding rapid recovery unless it can be shown that it is in fact recovery of those species that suffered from the original work.. Equally, the consultants confuse the presence of life with the fact of ecological health. By that logic the zebra mussel outbreak in Darwin represents a healthy harbour environment.
Issues not addressed (p40): The question of surface contaminants is not adequately answered. The source of contaminants is varied and are outlined in the various documents - with the exception of private moorings which are not discussed. However, the fate of those contaminants is unknown. Will they flush through the Kelly Street opening? If so, what will there movements be? Will they remain inshore or wash up on the beach areas outside the project area? Could they include toxics such as solvents, chemicals or petroleum based products? How long will contaminants reside over the coral reefs? What impacts? What impacts of increased phosphate and nutrient imput over the reef flats?
Illogic (p41): SKM claims that removal of sand from outside the breakwater will restore the original beach profile. Is this a joke? In fact, the sand currently outside the breakwater, which curves increasingly seaward, mimics the original profile and raises issues regarding influx of sand into the harbour basin once the Kelly Street end of the breakwater is removed.
Factual error (p42): Residents have noted - and it is obvious to even casual observation - that there is currently erosion on the foreshore at Nelly Bay.
Factual error (p49): GBRMPA considered the breakwalls to be removable at the time of the AAT hearing and commited to allowing no works which weren't reversible. This directly contradicts the statement made by G Kelleher to Whitehouse in his 1993 review that the breakwalls couldn't be removed because of the likely environmental damage. That claim has now been repeated at various levels of government, however, it is important to know that there is not a single document in GBRMPA that supports that position or that assesses the impacts of removal.
Bias or subjective opinion
(p1) The refusal to assess in the EIS and allow the public to consider a large number of design details leaves a number of difficult publicly important issues unaddressed. It also allows the proponents to defer consideration of such issues until after approvals are granted.
(p1, 7) Rather than referring to the submissions being repetitive, it would be more accurate to say that a limited number of substantive issues were raised by a large number of respondents.
(p7) The attempts to diminish and devalue pro formas is heavily biased and a transparent attempt to avoid the obvious conclusion that the majority of respondents do not favour Nelly Bay harbour.
(p11) If it is "inappropriate to ask the developer to pay for facilities from which they could not make a profit" (notwithstanding the EOI requirement that the developers pay all costs), how is it appropriate for the Government to finance the profit through a $6m dollar subsidy. Numerous FOI documents make it absolutely clear that the developers cannot secure a profit without the assistance of the State. Does this have implications for the National Competition Policy?
(p12) The statement that the use of legal action is simply for purposes of delay is not only biased but reflects a cynical ignorance about the nature, legitimacy and purpose of legal actions generally.
(p13) The 'discussion' of alternatives assumes that in considering Picnic Bay as an alternative, one would necessarily have to include all the parts of the Nelly Bay proposal. This is a transparent attempt to diminish the value of Picnic Bay as an alternative. It does not satisfy GBRMPA's requirements for analysis under section 30 of the AHC Act.
(p13) The reliance on the DEIS and SEIS to support arguments for Nelly Bay as a site is absurd. These documents have been prepared on behalf of proponents and have actively promoted the Nelly Bay proposal. The documents have refused to consider prudent or feasible alternatives in any empirical or analytical fashion. That does not constitute an argument in support of the present location.
(p13) Those who have opposed this project are now subject to open denigration by so-called independent consultants. Those who oppose the project and condemn the EIS include hundreds of people who did not participate in any of the court actions. They include new residents, residents who once believed that such a development would be good for the Island and now know better, business people and non-residents. The level of response to this proposal is extremely high. The level of opposition is extremely high and the quality of the submissions by those opposed, nothwithstanding the disparaging comments of the consultants, has been extremely well-informed.
(p14) Reliance on the Economic Impact Assessment which only measures the amount of economic activity likely to be generated by the proposal as the basis for discounting partial rehabilitation is both an analytical failure, a logical failure and an exhibition of bias. If input/output models are going to be the basis for evaluating alternatives, then perhaps SKM should determine whether the modelling would show full rehabilitation of Nelly and a safe landing at Picnic Bay generating even greater economic benefits. It certainly would result in better environmental and social outcomes.
The argument that tourism and residential facilities would require extra servicing which just a ferry wouldn't require is typical of the sophistry of this FEIS. By this logic any and all development will attract services, will create economic activity and thus is good. There is no consideration of demand, viability, occupancy rates, quality of life, aesthetics, limits to growth etc.
The sewage headworks to be charged by TCC are admitted by TCC to be inadequate - ie they do not cover the full costs associated with providing sewage. It is interesting to note that headwork figures provided indicate a total contribution of $1.2m - which amounts to an equivalent population of 1200 - no change from the DEIS.
The consultants seem unable to differentiat the developers and the proponents.
(p15) SKM which dismisses 'subjective opinion' with such contempt in the FEIS, relies primarily on such opinions to justify its positions. It is extraordinary for a document that is putatively scientific to have so little empirical data and so many conclusions predicated on unsubstantiated claims. For instance (and there are many), the notion that this development will serve as an 'indicator' to the tourism market is oft repeated but never supported. There is substantial evidence that coastal resort developments do not improve the local economy and do not serve as indicators that investment is in good hands. The dismal performance of coastal resorts in Queensland has arguably produced the opposite effect.
(p24) Nelly Bay Harbour proposal is a canal estate by definition. It is syllogistic nonsense to argue that it isn't based on a comparison of scale with another canal estate. It would be analogous to saying. Mary is human. John doesn't look like Mary. Therefore John is not human.
(p27) One wonders why SKM felt the need to review wave action in the harbour when it was already subject to review by the MMU. Perhaps it was an attempt to counter any arguments critical of the proposal. Is this their appropriate role? And the taxpayer foots the bill for such 'independence'!
(p31) the notion that a covered terminal is a necessary good for Magnetic Island is a subjective opinion that has no support in the submissions received. It is equally valid to argue that the current jetty and tree lined approach to the Island is far more in keeping with the aesthetics and lifestyle of the Island and that a majority of Islanders would prefer to maintain that atmosphere.
(p33) The attempt by SKM to convert the limitations of Picnic Bay into support for Nelly Bay is spurious at best. The need to ensure disabled access to Magnetic Island has not occurred despite clear need and clear legal requirements to do so because of the 'imminent' status of Nelly Bay harbour. Picnic Bay should be made safe regardless of Nelly Bay harbour. However, if it is made safe as the law requires, it carries major implications for the already suspect viability of Nelly Bay. Who would want to go to Nelly Bay if Picnic Bay was safe?
(p37-38): the majority of environmental harm has already occurred as a result of works conducted as part of the Magnetic Quays project has no basis in fact or data. Reliance on the Whitehouse report is based on a distortion of that document which provides an essential overview of the history of the project but is not a scientific or empirical document. It is a review of process, not of environmental damage.
Miscellaneous matters:
Question: According to Code of Environmental Practice (attachment B, p. 25), a baseline survey was carried out of benthos, tagged corals, water quality and sediment. What changes have occurred in those baseline figures since they were done?
Why wasn't both the baseline and subsequent data included in the EIS documentation? It is critical information, and equally critical for decision-makers and those interested in making informed comment on the EIS.
Conclusion
History seems to suggest that we learn our lessons best when our failures have been the greatest. Perhaps the dismal history that surrounds this project that should never have begun will become the basis for changes to impact assessment that are long overdue. Perhaps what now appears to be a dangerous mix of poor process, bad politics and biased assessment will in the coming months be seen as an opportunity. Perhaps, we have reached a threshold past which this EIS will not be allowed to go. Any other fate is nothing less than another blow to the already ancient and very ill body of impact assessment law in Australia.
Submitted by Jeremy Tager
15 April 1999
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Date: Thu, 22 Apr 1999 10:27:36
To: edilyn.bajracharya@env.qld.gov.au
Subject: Nelly bay harbour Rehab. Indemnity
Dear Edilyn,
I have a couple of comments about that section of the F-EIS which relates to Indemnity (p.58 F-EIS). No matter how many ways the consultant (SKM) tries to explain that the Proponent is not the developer and the developer is subject to a number of State Government mechanisms, the fact is, the Queensland Government (as Proponent - the applicant for a GBRMPA permit) must sign a Deed of Agreement to indemnify the GBRMPA against the cost of rehabilitating the Marine Park and the removal of abandoned structures etc. This is the indemnity matter which so occupied Mr Whitehouse in his Inquiry. He concluded there had been an almighty stuff-up or words to that effect.
Nowhere in any of the EIS docs is there an undertaking from the QG that they will supply this indemnity. SKM imply that most of the work will take place in the State Marine Park and that Queensland will make sure that there are bonds in place for this. But Queensland is not responsible for World Heritage Areas. For that long list of works which takes place in the Great Barrier Reef Marine Park and which threatens parts of the Park outside the project boundaries, there is an unmistakable obligation for the proponent State Government to simply put up and shut up.
It is not up to SKM or NBH P/L to talk the Queensland Government and the Federal government out of this indemnity. This is exactly what happened to GBRMPA when Magnetic Quay failed in 1990. The project completely unravelled when its engineering shortfalls collided with the Tricontinental Bank. The QG has known for years that this matter would be critical in Nelly Bay and the GBRMPA and Environment Australia have unflinchingly reiterated the obligation to provide the indemnity.
So why can't the QG simply state that it will sign for the indemnity and, as Proponent, genuinely pursue its obligations to protect and present the Marine Park, including underwriting the completion of the project. If an untimely cyclone or not-unexpected landslide devastates the site or the company Nelly Bay Harbour P/L unfortunately unravels like some of its predecessors, I need to know that the state will stand squarely beside the World Heritage ruins so as to pick up the tab first for fixing it.
Who else but the Proponent can be held responsible for what the Proponent wants to do?
Regards,
Charlie McColl