An open letter to friends, supporters and fellow tourism industry

Document Sample
An open letter to friends, supporters and fellow tourism industry Powered By Docstoc
					                                                                                      PO BOX 38 COLES BAY TASMANIA 7215

                                                                                   PHONE: (03) 6257 0018 INT +61 3 6257 0018
26 May 2008                                                                           FAX: (03) 6257 0055 INT +61 3 6257 0055

                                                                                EMAIL: INFO@FREYCINETESCAPE.COM.AU

An open letter to friends, supporters and fellow tourism industry colleagues,

Dear Friends and Industry Colleagues,

We would like to update you of the plight Archana and I continue to face over the State Government’s
forced closure of our wilderness camp in the Freycinet National Park some 11 months ago. We also
wish to alert you to some significant threats to the future of all State Government lease holders.

In April 2005 the Tasmanian Parks and Wildlife Service called for Expression of Interests (EOI) for the
Operation of a Commercial Standing Camp at Bryan’s Corner in the Freycinet National Park. The
provision for such an operation was covered under the National Park’s Management Plan and the
camp would be one of 5 leased commercial camp areas in the National Park. Furthermore the EOI
document stated that all approvals had been met for the site.

After submitting an application All4adventure Pty Ltd, a small family business owned and operated by
Tim and Archana Brammall, was awarded the EOI in June 2005 and the then Minister for Tourism,
Arts and the Environment, Paula Wriedt MHA, finally signed the lease with All4adventure in March

After investing considerably in the new enterprise and following an official launch of the product by the
Minister in November 2006, who described its operators, Tim and Archana, as visionary and the
experience as adding economic value to the environment, the new luxury wilderness camping
experience The Freycinet Escape began tours in March 2007.

A number of successful tours were conducted over the coming few months and the product received
extensive local and international media coverage which included a number of national and
international newspapers, magazines and Catriona Rowntree from Channel Nine’s Getaway amongst

After just a few short months of operation and in fact only a few weeks after an official Parks and
Wildlife Service environmental audit of the camp assessed the camp as exemplary, the Minister
ordered the immediate suspension of All4adventure’s lease in July 2007.

The reason given for the suspension was the existence of a disused white bellied sea eagle’s nest
within the camp’s lease area. The white bellied sea eagle is listed as a threatened species and its
habitat, quite rightfully, is carefully protected by a range of legislation. Whilst All4adventure was bitterly
disappointed by this turn of events as environmentally responsible tourism operators they remain fully
supportive of the need to protect threatened and endangered species.

What concerned All4adventure was that this dormant nest was not newly built and evidence from
experts suggested it had been in existence for sometime and most likely existed prior to the
Tasmanian Government’s advertisement and awarding of its EOI in 2005.

Disappointment soon turned to anger when All4adventure, after gaining documents from the
Tasmanian Government under the Freedom of Information Act, discovered that the Tasmanian
Government had indeed full knowledge of the existence and exact location of the unused Sea
Eagle nest site at all relevant times: – including when the Government called for expressions of
interest, considered public tenders, and granted All4adventure the Lease of our standing camp site
area. In particular it failed to observe the direct advice from its senior rangers that a camp
should not be established in the lease area as it contained the eagle’s nest and there were 3
aboriginal heritage sites in the immediate vicinity.
The Current Situation (May 2008)

All4adventure has been fighting for restitution ever since the forced closure of its luxury wilderness
Camp, The Freycinet Escape, in July 2007. Despite the Minister Michele O’Byrne’s predecessor
stating she was seeking a speedy resolution this battle has now taken All4adventure nine months and
has very recently taken another extremely disturbing twist.

This latest about face involves the Minister’s abandonment of the dispute resolution process as set out
in the Minister’s lease with All4adventure. This dispute resolution as detailed in the lease clearly
specifies the process to be followed when the parties to the lease have a dispute.

This is a standard clause in many commercial leases. In All4adventure’s case this is set out in Clause
22 which expressly provides the agreed dispute resolution process for any dispute about the rights
and obligations of either party under the lease, binding both parties to this process. It sets out 3 stages
of dispute resolution including timeframes and triggers (specifically failure to reach an agreement) for
moving to the next stage. These stages are:

    1. A Managers Level meeting with representatives from each party.
    2. A Committee Level Meeting with representatives from each party to be mediated by an
       appointee from the Law Society of Tasmania.
    3. Arbitration

On 8 November, 2007 the Minister’s representatives:
       ".... instructed that All4adventure has 14 days from the date of this letter …to enter into the
       dispute resolution process outlined in Clause 22 of the Lease."

In response All4adventure clearly stated that it would enter into the dispute resolution process and
began to prepare, at considerable expense, material demanded by the Minister in order for her to
participate in the process.

On 18 December 2007 the Minister’s representatives wrote to All4adventure detailing:
       “The Department also requires the parties to be clear about what happens if the management
       level discussions fail to see a resolution to the matter…our view is that in the event that
       management level meetings fail to resolve the dispute, the remainder of the dispute resolution
       provisions in clause 22 be pursued by the parties. That requires firstly a committee being
       established to resolve the dispute (clause 22.2), and failing that, arbitration in accordance with
       clause 22.3”

The Minister’s representatives repeatedly detailed the stages of the dispute resolution to
All4adventure and assured All4adventure of their intent to undertake the process during meetings and
        “Accordingly it is the State’s intention to abide by the terms outlined in our letter of 18
        December 2007 and Clause 22 of the lease.”

All4adventure attended the first stage of the dispute resolution, a Managers Meeting, on 1 April 2008.
After numerous adjournments by the Minister’s representatives, All4adventure was then instructed that
the Minister’s representatives no longer wished to continue the meeting thereby triggering the second
stage of the dispute resolution: a Committee Level meeting mediated by a member of the Tasmanian
Law Society. According to the lease this committee must be established within 15 business days and
the failure of the parties to reach agreement at this next meeting triggers the third and final stage

On the final day by which this Committee was required to be established, 2 May 2008, and after
repeated requests from All4adventure to be notified of the Government’s representative for the
meeting, All4adventure received correspondence asserting that the Minister did not consider herself
bound by Clause 22 of the Lease, and as such no longer felt obliged to continue the agreed dispute
resolution process.

This latest moving of the goal posts by the Minister is the final straw in what would appear to
be a campaign of bullying, intimidation and obfuscation by the Department. It appears the
Minister is effectively rewriting our lease because it no longer suits her purpose and removing
from it our right to engage in the dispute resolution as detailed in the lease and as the
Minister’s representatives demanded we do.

In what is described as a show of good faith the Minister stated in her correspondence of 2 May 2008
that whilst she would not continue to follow the dispute resolution process she would however
participate in a process “akin” to Stage 2 the Committee Level meeting but without the recourse to the
3rd stage Arbitration, if required.

The Minister also demanded that should we choose to take up her “offer” we must also agree to
commit to a timeframe for completion of the negotiations after which she will no longer participate in
any negotiations over the matter.

In taking this extraordinary step the Minister has decided that, rather than this being negotiations
between two equal parties, she can in fact set all the terms for the negotiations in complete disregard
of the lease held between her and All4adventure. In doings so the Minister removes a fundamental
right from the contractual agreement, the right to have this matter decided by an independent

The Minister’s behaviour could be construed as suggesting that the Minister is concerned that
arbitration may not go in her favour and whilst still wishing to be seen to be doing the right thing would
prefer to force us, a small family business suffering severe financial hardship directly because of the
Minister’s actions, to seek redress through All4adventure’s only remaining avenue, the court system,
in the apparent hope that All4adventure could not afford to do so.

Further there is an underlying and implied threat contained in the Minister’s latest
correspondence, one which has been expressed in correspondence and meetings previously,
that the Minister believes she has no obligation to All4adventure and can and will simply
terminate our lease, thereby removing access to the dispute resolution process in Clause 22.

Clearly such action exposes a significant sovereign risk issue in dealing with the Tasmanian
Government and presents a very real threat to all current and future Tasmanian investors who have
contracts with the Parks and Wildlife Service and the Tasmanian Government.

Sovereign Risk arises when for instance the Tasmanian Government knowingly invites
persons to lease an area which the Tasmanian Government knows contravenes its legislative
obligations and then terminates the lease because it contravenes those legislative
requirements. It goes further when the Government, despite its statements and obligations,
seeks to remove itself from a clearly outlined contractual arrangement, especially when this
involves the dispute resolution clause of its lease.

All4adventure contends that when faced with clear evidence suggesting that an error has been made,
instead of the Minister continuing on a pre-agreed process, a decision has been made to sidestep the
process, for the simple fact that it is believed that as small business operators we can be forced to
accept such a move.

One can only question the integrity of a Government that enters into a binding legal agreement with its
citizens and then seeks to reverse that agreement when it does not suit its end. A Government that
seeks to do is rotten, rotten to the core.

All4adventure simply wishes to continue the dispute resolution process as outlined in our lease. This
process provides effective timeframes and opportunities for parties to discuss and come to agreement
on the issues facing them with the assistance of trained mediators and arbitrators. We say to the
Minister, just because that process does now not suit your purpose, it does not remove your
moral or legal obligations to us and the Tasmanian people to follow your stated intentions, due
process and the rights enshrined in your leases. In our case, a clearly defined dispute resolution
process designed to handle disputes about the rights of parties under the lease.

The Minister’s likely media response to this matter will be that they have offered “mediation” and that
All4adventure are being unreasonable. What in fact the Minister has done is withdrawn from the
dispute resolution process thereby evading a fundamental right of our and many other leases, namely
to have a dispute arbitrated on, if required.

The simple question to ask here is why? If the Minister is so keen to resolve the issue why
move away from the designated and agreed dispute resolution process? What does the State
Government seek to gain from doing this?

It is quite simple. By removing our right to have the matter arbitrated the Minister can continue to claim
she is offering “mediation” but without any ramifications if the parties cannot reach agreement. This is
clearly designed to force us to accept whatever they offer or nothing. This is not negotiation. This is
bullying and it is clearly not the actions of a State Government “…keen to see the dispute
resolved to the satisfaction of all concerned”.
To interpret the Minister’s offer of a new mediation process as a good step is missing a very important
point one that sets a dangerous precendent and sovereign risk for all licence holders. There is
already a clear 3 stage process set down in our lease which includes mediatiion as the second
stage. We simply wish that 3 stage process to be observed and if the 2 stage - mediation
fails to arrive at a settlement, which we truly hope would not be the case, then, and only then,
that we have the right to undertake the 3 stage - arbitration so that we can see and end to this

All this because the State Government committed a grave error of judgement which contradicted both
its legislative and management plan requirements when, despite protests from its staff, it ordered that
a lease area containing the nest of a threatened bird species be put out for an Expression of Interest.
At the end of the day it is Archana and I as two young small business operators who have to carry the
full burden of this bureaucratic bungle.

How Can You Help?
We ask that if you disagree with or have any concerns about the Ministers decision to withdraw
from her stated intentions (as evidenced above) and the obligations of her lease to please write
directly to the Minister asking her to immediately resume the dispute resolution process as set
down in the Minister’s lease with All4adventure.

Due to the urgency of the matter please petition the Minister directly by email or fax:

Michelle O'Byrne MP, Minister for Environment, Parks, Heritage and the Arts
Fax: (03) 6336 2767 Phone: (03) 6233 6756
Mail: Level 10, 15 Murray St, Hobart 7000

You may also wish to copy in to your correspondence:
Paul Lennon MP, Premier or his replacement.
Paula Wriedt MP, Minister for Economic Development & Tourism
David Bartlett MP, Deputy Premier

Members of the Tourism Industry Council may wish to include:
Daniel Hanna, CEO TCIT Telephone: (03) 6224 1930 Email:

You may wish to note your concerns to the State Opposition Parties, your local newspapers
and radio commentators. You may also wish to include wording such as:

        Re: Minister’s abandonment of agreed dispute resolution process with All4adventure!
        We request the Minister to comply with her agreed obligations and stated intentions including
        the dispute resolution process expressly agreed in Clause 22 of the Minister’s lease with
        All4adventure and to immediately and without delay re-establish the full dispute resolution
        process with All4adventure as set down in the Minister’s Lease with All4adventure.

        We also call on the Minister to examine how the granting of a lease area containing the nest of
        a threatened bird species occurred and to establish policy and procedure that will ensure that
        mistakes of this magnitude to not occur again in the management of our National Parks which
        the Minister holds in custodianship on behalf of us and all Tasmanians..

        We make this request out of our concern for the Brammall’s, our National Parks and because
        of the effects the sovereign risk contained in the Minster’s current actions would have on all
        current and future investors in Tasmania.

Kind regards and in hope of your assistance,

Tim and Archana Brammall
Pty Ltd and The Freycinet Escape

Shared By:
Description: An open letter to friends, supporters and fellow tourism industry ...