I put on the record the ongoing frustration and anger of many Shoalhaven ratepayers about the historical compliance failures of Shoalhaven City Council regarding the Tomerong Quarry and the actions of certain councillors to prevent an investigation into those compliance failures.
These actions have now left ratepayers of the Shoalhaven facing a future costly legal dispute or potentially a multimillion‑dollar rehabilitation bill. For almost two decades the Tomerong community have battled to have council address systemic breaches of the quarry's conditions of consent. These breaches include quarrying and exporting at rates far in excess of approvals, illegal dumping of asbestos, illegal importation of contaminated materials, illegal sale of overburden, failure to suppress dust and illegal construction of a dam.
In January and February 2017, after years of community agitation, council staff conducted an investigation. The quarry ceased operations in July that year. In October 2017, 19 breach notices were issued for offences in 2015 and 2016 only. These fines totalled $114,000 (See page 2 & 3). Councillors were not told about the findings until after the investigation was finalised and fines issued. The investigation report remains secret and sealed from public view under a claim of legal privilege. The community was furious that prosecution was not pursued and the penalties were between just 5 per cent and 10 per cent of the maximum possible.
The council has stated in recent correspondence that these decisions were based on a staff assessment about a low likelihood of success in court because "no prior regulatory action or formal warnings had been given to the operators" (See page 4). That is an extraordinary admission given the long history of community complaints about the quarry's operations (Letter from Paul Green, Mayor, to Tomerong Forum regarding compliance at the Quarry) and (Tomerong Compliance Issues Spreadsheet). Questions on notice were asked by Councillor John Levett in January 2018 regarding the investigation and outcome. A response in May (See the response here) that year triggered the council to agree to commission an independent external investigation.
Shoalhaven Independents Group councillor and former mayor Greg Watson was the only councillor who opposed the investigation [NOTE: Clarification. Greg Watson did not oppose the original investigation motion, that motion passed unopposed; rather it was the motion calling for a report to answer questions on notice that Greg Watson opposed, It was the response to that motion that triggered the investigation motion. See item SA18-119 in these minutes].
A month later a majority of councillors, including all of the Shoalhaven Independents Group councillors who previously supported the investigation, inexplicably reversed their decision and the investigation was blocked (see Ordinary Meeting Minutes from 26 June 2018 and specifically items MM18.12 and CL18.129. Following the rescission, the then General Manager of Shoalhaven City Council wrote to community representatives conveying his apologies (See the apology here) on behalf of staff for their role in not achieving the expectations of the community, citing a lack of compliance staff and budget, and a lack of direction from council. He concluded:
No doubt you would be disappointed … council did not agree to commission an "independent investigation" however you are also aware, I am sure, of other authorities such as the Ombudsman or ICAC that you may wish to contact should you believe that some form of further scrutiny is necessary.
It is worth understanding a little of the background. The quarry was approved in 1990. The land on which the quarry is based was purchased by the Commonwealth Indigenous Land Corporation in 1998 and is leased to In‑Ja‑Ghoondji Lands Incorporated, an Indigenous corporation set up to provide economic opportunity and housing to Indigenous families [NOTE: Clarification, the land title is held by In-Ja-Ghoondji Lands Incorporated subject to a grant of land agreement with the Indigenous Land Corporation. See FOI details here]. The land was sold to the Commonwealth by the quarry operator who then leased the quarry back from In‑Ja‑Ghoondji Lands Incorporated. The quarry has changed hands and the development consent was modified on multiple occasions. My understanding is that the accountant for In‑Ja‑Ghoondji Lands Incorporated is also the accountant for the Shoalhaven Independents Group. I am making no allegation in regards to those circumstances but it is indeed a curious situation.
One of the key compliance issues was the illegal sale of overburden which was to be retained on site for rehabilitation purposes. The council has acknowledged that in August 2012 it instructed the quarry to cease selling this overburden as it had no approval to do so (See page 4). It is understood that approximately 850,000 tonnes of this product was sold and would have netted substantial profits to the operator. I understand that no action was taken by Shoalhaven City Council regarding this breach. The council has confirmed that, now that the quarry operations have ceased, responsibility of rehabilitation falls to In‑Ja‑Ghoondji Lands Incorporated. In the event that In‑Ja‑Ghoondji Lands Incorporated cannot make good the rehabilitation requirements, the council's options are to take court action against them or to complete the works itself (See page 6 & 7). Local residents have put the cost of replacing the sold overburden as high as $15 million.
There remain serious questions about what has happened here. What were the circumstances that led to these calamitous compliance failures? Was it just a lack of resources or something more? Why did the majority of councillors reverse their decision and oppose an external investigation into this matter when the financial risks that are associated with these failures are now so high and expose Shoalhaven ratepayers to future legal bills or massive multimillion-dollar rehabilitation costs?