Way, way back on 19 July 2021 I submitted a complaint about NPWS management of the Mount Warning National Park to the NSW Ombudsman. To cut a long story short the Ombudsman's office replied on 14 October 2021 declining to investigate. On October 15, 2021 I requested this decision be reviewed. After more than 12 months I received the outcome of this review on November 8, 2022 (content below). After more than a year the Ombudsman has upheld the earlier decision and has declined to investigate my concerns. The muck to be left under the rug.
The saga raises serious concerns about the capacity the gatekeepers of our democracy have to investigate maladministration in public office. Based on my experience we have a bunch of toothless tigers too scared and frightened of upsetting the cart to do the work the public rely upon to ensure our bureaucracy is acting in accordance with the laws that govern them. It is clear this process is broken. The only avenue available now appears to be recourse to independent legal action. If anyone has a spare million or so to take this further please give me a call!
The full story below...
My complaint to the Ombudsman sent 20 July 2021 alleged the following:
NPWS in mismanaging the Wollumbin (Mt Warning) National Park have:
- Committed serious maladministration in failing to correct misinformation provided to the Minister and public about safety in the park.
- Committed serious maladministration by failing to provide the Minister and public with a full appreciation of Aboriginal views about public access in the park.
- Failed to properly consult with stakeholders about NPWS true intentions.
- Failed to deal properly with complaints
Dear Marc
The Ombudsman Act 1974 provides the Ombudsman with wide discretion on whether to investigate a particular complaint based on various factors including the nature of the complaint and the availability of alternative avenues to pursue the complaint.
As explained, our office has no power to stop the agency or Minister from closing Wollumbin National Park. We cannot advocate for the competing views about the Park’s alleged risks and consultation process.
As we cannot provide you with the outcomes you seek, I am sorry there is no further action we can take. As suggested, you may wish to seek independent advice on the options available to you if the closure of the Park has caused any particular impact.
Regards
"Peter"
Sent 15/10/2021
- Committed serious maladministration in failing to correct misinformation provided to the Minister and public about safety in the park.
- Committed serious maladministration by failing to provide the Minister and public with a full appreciation of Aboriginal views about public access in the park.
- Failed to properly consult with stakeholders about NPWS true intentions.
- Failed to deal properly with complaints
RE: Mismanagement of Wollumbin (Mt Warning) National Park by
NPWS
Dear Sir/Madam,
The role of the NSW Ombudsman is to safeguard the community
in their dealings with government and non-government agencies where there are:
• systemic
(structural or procedural) deficiencies in public administration
• individual
cases of serious abuse of powers
• significant
public interest issues
• an agency
fails to properly deal with complaints
• issues
which, if investigated, are likely to lead to recommendations resulting in
significant changes or amendments to law or policies
• significant
cross-jurisdictional issues (ie. issues involving or concerning the conduct or
policies of two or more agencies or their staff)
• sensitive
issues which are unlikely to be (or be seen to be) properly addressed by the
agencies concerned (due to such factors as the seniority of the staff the subject
of the allegations, conflicts of interest on the part of the agency or its
senior staff, significant sensitivity, etc), or
• serious
maladministration or detrimental action as defined in the Public Interest
Disclosures Act 1994
The complaint I am raising in this letter against the
National Parks and Wildlife Service about their long term mismanagement of the
Wollumbin (Mt Warning) National Park in northern NSW includes the above
criteria. NPWS in mismanaging the Wollumbin (Mt Warning) National Park have:
·
Committed serious maladministration in failing
to correct misinformation provided to the Minister and public about safety in
the park.
·
Committed serious maladministration by failing
to provide the Minister and public with ah full appreciation of Aboriginal
views about public access in the park.
·
Failed to properly consult with stakeholders
about NPWS true intentions.
·
Failed to deal properly with complaints
Details of the above points are provided below. I request
the Ombudsman investigate these sensitive matters that are of considerable
Public interest and have significant cross-jurisdictional issues.
NPWS have committed serious maladministration in failing to correct
misinformation provided to the Minister and public about safety in the park.
• Public information released about the safety issues on the
Mountain by NPWS has a critical error. NPWS have claimed there are
"extreme" and "catastrophic" risks on the mountain from
landslides and other hazards but documents obtained through GIPA show these are
in error and these hazards are assigned a "medium" risk in NPWS own
safety assessment (see “Wollumbin risk assessment 2019- final” attached) . For
the hazards listed the risk is similar to other Grade 4-5 bushwalks in the
state that are currently open, this is based on hazards with a “rare”
likelihood but extreme consequence.
• The medium risk assigned for landslides and rock falls by
NPWS conflicts with a slope stability assessment completed by geotechnical
experts in 2018 (GHD) that found risks to visitors from possible landslides and
rockfalls in the park are very low, effectively lower than traveling anywhere
by train in Australia.(See GHD risk assessment report attached -3 - GHD
Wollumbin Slope Stability Assessment 2018).
• NPWS relied on an engineering report about the post and
chain system to close access to the summit (see attachment Tab 4 Engineering
Assessment of Chain Section 2020), however this report was not independently
checked by another engineer in line with industry practice. A review by me (Engineering
geologist) revealed deficiencies made about key assumptions used to make the
risk assessment. When these are taken into account the risk assessment is found
to be in error. In correspondence (attached - Mt Warning chain assessment
correspondence M Hendrickx P Wallace) with me the engineer acknowledged these
issues and admitted “I agree with your
observations about level of potential injury and also the probability comments
which also have not been rigorously reviewed.”
• NPWS secretly
removed the chain and post system in August 2020. In my correspondence with
NPWS officers in December 2020 at no point did the officer inform me that the
chain had been removed (Jenny.Atkins@environment.nsw.gov.au). I found this
myself when I conducted an independent inspection of the chain and posts in January
2021. My inspection of removed posts and chains did not find signs of excessive
corrosion and the system was found to be in satisfactory working condition and
need not have been removed. The NPWS officer lied to me.
• Following my inspection I wrote an independent report
about safety issues on the summit walk and sent it the Minister (attached). At
no point did the Minister or department acknowledge receipt of the report or
respond to issues raised in that report.
• The chain and post system was installed in the 1970s.
Prior to this there was no chain on the upper rock scramble to the summit. It
is worth noting that when the park was officially opened in 1929, the opening
ceremony was attended by over 200 people including a large contingent of school
children. It is clear that NPWS have exaggerated the safety risks of the climb
for their own purposes.
• The ombudsman should be aware I am an engineering
geologist with almost 30 years professional experience. I have provided expert
opinion for NPWS on previous occasions and currently work closely with
Transport for NSW and other government agencies and private organisations on
Landslide and rock fall risk assessment and management.
Summary:
NPWS have mislead the Minister and Public and
safety risks in the park and they continue to do so. This amounts to serious
maladministration.
The Ombudsman should
consider an independent assessment be made on the safety risks of the Mt
Warning summit walk and compare these to other similar walks in the state.
NPWS have committed serious maladministration by failing to provide the
Minister and public with a full appreciation of Aboriginal views about public
access in the park.
For over 20 years consultations NPWS have had with
Aboriginal groups have not included or considered and paid respect to the
diverse range of indigenous opinions about Mt Warning, some of which encourage
climbing. NPWS have an obligation under the National Parks Act to take the
views of Traditional owners into account. They have failed to do so for many
years. The area of Mt Warning is the traditional area of the
Ngarakwal/Nganduwal peoples - not the
Bundjalung who are a merger of various other northern NSW groups. In its
deliberations, documents obtained through GIPA reveal NPWS have included groups
from interstate with no legitimate claim on the mountain. In an interview in
2007 before she died Ngaraakwal elder and Mount Warning custodian Marlene Boyd.
Stated "I do not oppose the public climbing of Mt Warning - how can the
public experience the spiritual significance of this land if they do not climb
the summit and witness creation!" What a wonderful inspirational
message this is. It is such a joyous affirmation of the awe and wonder we all
experience when we connect with nature and the natural world, and it is
outrageous and insulting that her views have been completely ignored by NPWS.
It is misleading to the Minister and the Public that NPWS do not refer to these
views in Public pronouncement about Aboriginal views about the public climbing
Mt Warning.
In recent public surveys commissioned by NPWS participants have
not been provided with the views of Marlene Boyd (refer attached journal
article Comment on To climb or not to climb) or her mother Mt Warning Custodian
Millie Boyd, instead providing the views only of the Bundjalung Nation. The
complex mythology about Mt Warning as revealed by the late Millie Boyd to NPWS
researcher Howard Creamer through interviews commissioned by NPWS in the 1970s
have been omitted from Management Plans
of the Park (listen to https://www.youtube.com/watch?v=pdXD3TyVJf0).
The Minister and public deserve to be told about these views.
The opinions of other past traditional owners also deserve
to be drawn to the Minister’s and Public’s attention. On January 4 2000 Wijabul
elder Fletcher Roberts (now deceased) released the following press statement:
The statement reads:
PRESS RELEASE
Cultural boundaries, responsibilities have been ignored in
Mt Warning issue, Elder says.
Wijabul elder Fletcher Roberts has criticised moves by a
section of the Aboriginal community to claim that Mt Warning is a sacred site
and to prevent people from climbing the mountain.
"They have had walking tracks up the mountain for
decades, but no one has tried to stop people from climbing it before," Mr
Roberts said.
"This claim is a modern day invention.
"This claim is being perpetuated by someone who is
overstepping his cultural responsibilities and he will have to face the
consequences of Aboriginal lore for what he is doing.
"Claims are being made that this knowledge came from
the very elder who raised me and gave me my own knowledge but he never told me
not to go to Mt Warning.
"The people who are stepping into this from outside
these boundaries will have to face the cultural consequences.
"They should remember the boundaries of their own clan
area and the cultural lore.
"These people should be mindful of the destruction they
are causing to true Aboriginal culture.
"The white community needs to wise up to the Aboriginal
sectors that try to use their lack of understanding of Aboriginal culture for
their own purposes.
"The white community needs to make sure it identifies
the true elders of an area.
"They should realise that elders' responsibilities
apply to their own tribal areas and they have no jurisdiction over another
area.
"It is not unusual for clans to have disputes over
boundaries and this still happens today as it did in the past... but for people
from Mullabugilmah (near Grafton) to claim that they have some jurisdiction
over Mt Warning id too far a stretch of the imagination.
"If they still believe in the culture they should stick
to their own areas.
FOR IMMEDIATE RELEASE signed F Roberts January 4, 2000.
In regard to Bundjalung Claims of ownership over the
mountain Githabel elder Harry Boyd has made numerous submissions to Tweed
Council challenging Bundjalung claims on Mt Warning. For instance this extract from: Unsettling Anthropology: The
Demands of Native Title on Worn Concepts and Changing Lives/ edited by Toni
Bauman and Gaynor MacDonald. ISBN: 9780987135339 (pbk.) P29-30
Another example is
disagreement concerning use of the collective regional label ‘Bundjalung’ in
north coastal New South Wales. Harry Boyd, who identifies as a
Ngarakwal/Githabul elder, has argued in letters to the Federal Minister for the
Environment and to the United Nations Special Rapporteur on the Rights of
Indigenous Peoples James Anaya that the ‘False Bundjalung Nation’ ‘eliminated’ the
distinct peoples of the region (Boyd 2009). He suggests that the term
‘Bundjalung’ was ‘created from’ linguistic texts and the work of local
historians. With recognition of the Bundjalung people in heritage studies and
by local councils, he argues: ‘We (Ngarakwal / Githabul) and the other distinct
peoples of the Northern New South Wales, South East Queensland region are being
subject to forced assimilation as Bundjalung’ (Boyd 2009).
Disputes over the
Bundjalung label, and difficulties in choosing acceptable alternatives, have
held up the erection of local council signage and other proposals for
recognising Aboriginal people in the Tweed Heads area in particular (Caton
2009; Sapwell 2009).
Another dispute in
this region concerns use of the name ‘Arakwal’, a term associated with native
title claims and several agreements in the Byron Bay area, including one
resulting in the creation of the Arakwal National Park in 2001. In the wake of
these agreements the name ‘Arakwal’ has become more or less fixed, in both
popular and official use for the area. The valid usage of ‘Arakwal’ has,
however, been a point of contention. Members of the Boyd family objected to
‘Arakwal’ as a ‘misuse’ of the name ‘Ngaragbal’ (or Ngarak(g)wal), which they
associate with their own family (Byron Shire Echo 2003, 6). The Arakwal native title claim was also at times
partially overlapped by the Ngyabul People claim and the Gnargbaul Clan claim
(Neate 2002, 136), and there have been several other differently identifying
indigenous respondents involved (see also discussion in Hansard, Joint
Committee 2003 at Byron Bay; and Stewart2008, 365). One objection to the Byron
Bay claim received publicity in 2007 (Lyons 2007, 5). It was reported that ‘the
challengers claim that they are the real Arakwal’. The Byron Bay claimants, a
spokesperson said, were ‘attempting a corporate takeover of the Arakwal name’
(Lyons 2007, 5). Although the Byron Bay claim group had by then adopted the
relatively neutral term, ‘Bundjalung People of Byron Bay’ (Bundjalung of Byron
Bay 2009, 16), the name Arakwal was and is still in use and remains
contentious. Also, as noted above, ‘Bundjalung’ is not universally accepted as
a regional collective label.
None of this information critical to understanding
Aboriginal cultural history of the mountain
has been provided to the Minister or public nor included in Park Management
plans as required under the ACT.
Summary:
For 20 years NPWS
have mislead the Minister and Public about the diversity of Aboriginal mythology
and opinion about the public climbing Mt Warning.
NPWS have for many
years deliberately ignored any alternate indigenous claims. This represents a
systemic (structural or procedural) deficiency in public administration and
raises questions of a serious abuse of powers.
NPWS is in breach of
section 30k 2(a) of their managing ACT:
National Parks and Wildlife Act 1974 No 80 Section 30K:
(2) An Aboriginal area is to be
managed in accordance with the following principles—
(a) the conservation of natural values,
buildings, places, objects, features and landscapes of cultural value to Aboriginal people in accordance with the cultural values
of the Aboriginal people to whose heritage the buildings,
places, objects, features or landscapes belong,
NPWS are not managing the park in
accordance “with the with the cultural
values of the Aboriginal people to whose heritage the buildings, places,
objects, features or landscapes belong”
I
recommend the ombudsman insist NPWS include the views of Marlene Boyd, Millie
Boyd, Fletcher Roberts and Harry Boyd in management plans for the park and give
them equal weight to views of the group it currently consults with. It is
cultural vandalism on the part of NPWS to omit the rich cultural history
revealed by Millie Boyd from the Minister and deny it the Public’s attention
and appreciation.
Failed to properly consult with stakeholders about NPWS true intentions.
NPWS have not provided a mechanism or
consulted with the business groups and individuals over compensation for losses
incurred over many years due to NPWS active "demarketing" of the park
that has reduced visitation. It has not provided a means for businesses to gain
compensation for losses due to NPWS planned permanent closure of the Park that
was revealed in documents released through GIPA.
These documents reveal a "Final
Wollumbin Closure Event" is planned by NPWS for 25 November 2022 (see
attachment – Attachment 4 Wollumbin Closure Strategy - Implementation Plan).
Documents show NPWS have NO intention of re-opening the park to the public
before that time. It’s clear the permanent closure has been planned for many
years, despite NPWS indicating a review will be undertaken in May 2021. NPWS
have been concealing their plans to permanently close the park for many years
and have lied to local land holders, the public and misinformed the Minister.
Summary:
NPWS deceptive behaviour in hiding their plans to
permanently close the park from the Public and Minister represent serious
maladministration as defined in the Public Interest Disclosures Act 1994. The damage done to local businesses who have
made plans on the basis of continued park visitation are immense and have not
been considered by NPWS. Not one of the businesses I have spoken with have been
consulted on this by NPWS.
The ombudsman must put an injunction on NPWS
further mismanagement of the park and move to recommend management of the park
be transferred to an independent board. Compensation should eb offered to local
businesses impacted by NPWS secret “demarketing “campaign based on lies that
has impacted visitor numbers.
Failed to deal properly with complaints
I sent a formal complaint to the
Premier, Minister and Department officers on 18 February 2021. This was ignored
by the Premier, Minister and Department officers and it was only after
involvement of the Ombudsman office (complaint reference C/2021/5953) that the
Department and Minister was forced into providing a
response. This is attached.
Despite having my complaint for
almost 5 months the response is brief and unsatisfactory. It does not deal with
the substance on my complaint on any of the issues raised.
Summary: NPWS and the Minister have Failed
to deal properly with complaints. NPWS need ot address each of the issues
raised in a serious and considered manner.
Officers I named in an ICAC complaint have been involved in the reply
and have a strong conflict of interest in continuing their involvement in
relying to me and further management of the park.
ACTIONS
In my view NPWS mismanagement of the
park for 20 years is so severe the following actions are warranted to restore
proper management of the park.
1. NPWS have misled the public and the
Minister about safety and the true nature of indigenous opinions in the Park,
and have actively “demarketed” the park for many years. The Government must
strip NPWS of management of the park and appoint an independent management
board to restore common sense and balance to looking after this outstanding
natural resource that belongs to all of us. We all have the right to use the
walking track built by volunteers in 1909 to access those remarkable summit
views.
2. Immediately withdraw erroneous
safety information and provide a corrected safety assessment that shows the
summit track is no less safe than any other grade 4-5 walks in the state that
are currently open.
3. Inform the public that the views of
traditional owners of Mt Warning have been ignored in providing visitors with
information about Indigenous views about the park, and ensure they are included
in any further deliberations about the Park's Management.
4. Withdraw the results of a visitation
survey that did not include the views of Ngaraakwal elder and Mount Warning
custodian Marlene Boyd and other elders supportive of public climbing to the
summit.
5. Fix a sign in honour of Ngaraakwal
elder and Mount Warning custodians Marlene Boyd and Millie Boyd to the summit
of the Mountain inscribed with Marlene Boyd’s inspirational message: "I do not oppose the public climbing of
Mt Warning - how can the public experience the spiritual significance of this
land if they do not climb the summit and witness creation!"
6. Provide compensation to businesses
affected by NPWS long-term "demarketing" campaign and its planned
permanent closure of Wollumbin National Park should the permanent closure go
ahead.
7. As soon as practicable, reopen the
park and summit track to the public.
8. Provide a new management plan that
provides for proper maintenance of park infrastructure respectful of the many
volunteers who have contributed to the construction and maintenance of the
summit track over many decades, including replacement of the chain leading to
the summit and care and maintenance of summit lookouts. This must include the
full range of Aboriginal views about the summit walk, including those that
permit climbing.
9. In regard to Management plans for
Aboriginal places "Bushwalking" and "rock climbing" to be
removed as harmful activities from all Aboriginal Place management plans
currently in use or planned for other Aboriginal Places in NSW. Inclusion of
these innocuous activities threatens public access to many other places of
wonder in New South Wales.
10. NPWS to provide a formal apology to the people of NSW for breaching the public's trust and misleading the Government.
Yours Faithfully
Marc Hendrickx
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