Mallacoota fishers win Supreme Court battle to regain rights to reefs

Mallacoota fishers have won a Supreme Court battle to end a pearl producer’s leases of two fishing reefs quietly granted by D’Ambrosio and co.

Abalone divers and other fishers are about to regain their rights to harvest abalone on two of Victoria’s most valuable reefs.

Victoria’s Supreme Court is going to terminate exclusive leases the Andrews government granted an aquaculture operator over two Mallacoota reefs, which had blocked commercial abalone divers from the sites until at least 2039.

Environment Minister Lily D’Ambrosio and her departmental bureaucrats quietly granted the exclusive leases to the Menke family in 2018 and 2019, to grow wild-caught abalone in cages, which had been seeded to produce pearls.

Mallacoota locals have secured the reefs again, where abalone can be harvested.

Locals didn’t find out about the leases until after they had been granted, triggering uproar in the small coastal community, which led four local abalone and one sea urchin harvesting businesses, led by Haliotis Fisheries, to challenge the validity of the leases in the Supreme Court in March 2020.

A major community concern was that the leases gave the Menkes the power to not only exclude abalone divers from the 9ha of reefs, but also local urchin harvesters, recreational anglers and divers.

Victorian Minister Lily D'Ambrosio. Picture: NCA NewsWire / Andrew Henshaw

At the time Fisheries insiders told The Weekly Times the Department of Environment, Land, Water and Planning bureaucrats “never meant to grant them (the Menkes) exclusivity”.

“It was just sloppiness and laziness by the decision makers. They just put it through the DELWP sausage machine.”

But rather than backing down in the face of the 2020 legal challenge Minister D’Ambrosio, MAPA Pearls and the Registrar of Titles tried to defend the leases, arguing they were beyond challenge as a result of their registration under the Transfer of Land Act 1958.

However in his 87-page ruling, released this month, Justice Anthony Cavanough said the Victorian departmental bureaucrats who granted the Menke family’s MAPA pearls exclusive crown land leases over the highly valued Gabo and Tullaberga Island reefs had engaged in “very careless administrative bungling” and the process was a “debacle”.

Justice Cavanough found that during the application process MAPA Pearls had failed to carry out its obligation under the Land Act 1958 to “inform any interested persons of the proposal for the lease and to facilitate the making of any objections”.

“Further, I am comfortably satisfied that the entire debacle would not have even begun to develop had MAPA not, by its assurances, lulled the Department into refraining from consulting the commercial fishers (and others) whose known interests were said by MAPA not to be at risk.

A diver looking for abalone.

“MAPA’s insistence on the rights it acquired on registration of the lease, was unconscientious and even unconscionable. That conduct was equitable fraud, and gave rise to a constructive trust in favour of the plaintiffs.”

His Honour concluded that the plaintiffs – Haliotis Fisheries and other abalone fishers – were entitled to appropriate relief against the state government defendants and MAPA Pearls.

Final orders are yet to be made but will likely include that the purported leases were invalidly granted and are of no force or effect and consequent cancellation of the leases by the Registrar of Titles.

While the case was heard in March 2020, Justice Cavanough took until this month to make his ruling, saying there had never been a “previous case quite like it”.

It was the first time an exclusive crown land lease has been granted over a marine site that was already being harvested by other commercial users.

KEY FACTS FROM THE JUDGEMENT

The first purported lease, which related to the Gabo Island site, was granted and registered in May 2018.

The second one, which related to the Tullaberga Island site, was granted and registered in February 2019.

Each purported lease was expressed to run for a term of 21 years, with an option to renew for a further term of ten years.

It was only in June 2019, after the second purported lease (the Tullaberga Island lease) was registered under the Transfer of Land Act 1958, that MAPA first told the fishers about the purported leases.

MAPA then demanded that the fishers cease including the sites in their fishing operations.