Responses to the decision

Introduction

A proclamation was made in 1994 that banned certain activities related to the Port Hinchinbrook development (refer to Chapter Three). A change of power at the federal government level two years later, however, saw this situation change. When the Liberal/National Party Coalition was elected in 1996, the new Minister for the Environment, Senator Hill, reversed the proclamation. Many opponents of the Port Hinchinbrook resort criticised Senator Hill's actions, claiming it was contradictory to provisions of the World Heritage Properties Conservation Act 1983 (Cth) (the Act). It was under provisions of this Act that the Governor-General had two years earlier proscribed (banned) mangrove removal and dredging activities. Other stakeholders, however, were very pleased with the decision because, as discussed in Chapter Two, they believed that the social and economic benefits of the development far outweighed the potential negative impacts on the environment. This chapter will explore how this decision was challenged in the Federal Court of Australia, the outcomes of this process and the conclusions that were drawn from the Hinchinbrook Channel Senate Inquiry conducted in 1998.

Federal court appeal

One group that launched a strong campaign against Senator Hill's decision to reverse the 1994 proclamation against dredging and mangrove removal was the non-government organisation the Friends of Hinchinbrook(FOH). Under provisions of the World Heritage Properties Conservation Act 1983 (Cth) (the WHPC Act), this group responded by challenging the lawfulness of Senator Hill's decision in the Federal Court of Australia. FOH argued that Senator Hill had not considered all relevant factors when making his decision and thereby acted unreasonably, because no 'reasonable person' could have made such a decision. See image 1

The 1994 proclamation against dredging and mangrove removal was made under the WHPC Act (refer to Chapter Three). Under this Act, FOH were able to appeal Senator Hill's decision via a 'judicial review' to the Federal Court. This is the process by which the Federal Court assesses the manner in which a decision has been made, to determine whether or not the decision is 'lawful' (or legally valid). FOH was unsuccessful in their appeal to the Federal Court because it was found that the decision to reverse the proclamation had been lawful.

FOH subsequently lost their case against Senator Hill, and consent for dredging and mangrove removal activities was not withdrawn. It is important to note, however, that the Federal Court's verdict was reached not because of an assessment of whether or not Senator Hill's decision was a commendable decision, but rather because the decision he made was determined to be lawful. See animation 1

An alternative outcome

Had the WHPC Act allowed for a merits review, the FOH could have challenged the value of Senator Hill's decision at the AAT. The AAT may have deemed the Senator's actions to have been incorrect, because of the impact they were likely to have on the environment. Given that the WHPC Act did not allow for this type of review, however, the merit of Senator Hill's decision could not be assessed.

The 1999 Hinchinbrook Channel Inquiry

In 1988 the Commonwealth Government called for the Senate Environmental, Communications, Information Technology and Arts Reference Committee (SECITARC) to conduct an inquiry into the processes of management that had determined the decision to allow the development of Port Hinchinbrook. The inquiry, conducted over a period of 15 months, invited stakeholders to present written submissions (documents outlining their viewpoints) and provide evidence of their claims at hearings that were held. By the time 'The 'Hinchinbrook Channel Inquiry' was completed in September 1999, SECITARC had received 166 written submissions and heard the viewpoints of 60 stakeholders at the numerous hearings that were held in the local area and in Canberra.

When it was released, the inquiry described the process of management determining the development of Port Hinchinbrook as a 'tragedy of errors'. It found that any further development would threaten the World Heritage values of Hinchinbrook Channel, Hinchinbrook Island and the Great Barrier Reef, and that the assessments undertaken by the governments involved in the decision-making processes had been inadequate on a number of grounds. See image 2

Developments since the late 1990s

Given federal government consent to resume work in 1996, and State government approval to dredge an access passage in the channel that same year, the Port Hinchinbrook development proceeded. By early 2004, Stage One of the development (which includes the Marina, the hotel accommodation, and the residential and commercial areas) had been completed. Seventy million dollars was invested into housing, infrastructure and enhancing business opportunities in the area during Stage One.

The fate of Stage Two, known as 'The Lakes' proposal, was at this time still to be determined, pending approval from the local, State and federal governments. 'The Lakes' proposal included the construction of an 18-hole golf course, sporting facilities, more berths in the marina and over 200 new waterfront houses.

While ownership of the development has changed hands since the 1996 approval, the proposal itself has not changed all that markedly. The property development company Meridian purchased the site from Williams Corporation Pty Ltd (operated by the same family that owned CP) in early 2006.

Port Hinchinbrook is now open for visitors and many of the residential dwellings have been sold. Despite the fact that Stage Two is still undetermined, Port Hinchinbrook is now the host site for sporting competitions, yachting and canoeing events. It is also intended to be a potential host site for professional golf tournaments, pending completion of the golf course. In 2006 Meridian announced plans to continue the project into its second stage.