Ruth Langford

Since 2014, EDO Tasmania has been representing the Tasmanian Aboriginal Centre (TAC) in their efforts to prevent the Tasmanian government from re-opening of 4WD tracks in the National Heritage listed Western Tasmania Aboriginal Cultural Landscape (WTACL) within takayna / the Tarkine.

The tracks were closed in 2012 in recognition of unacceptable impacts on heritage values, and the coastal area was subsequently included in the National Heritage List to protect the significant indigenous heritage values present. Following their election in 2014, the new Tasmanian Liberal government announced that the tracks would be re-opened.

The TAC argued that the State Government’s decision to allow access to the tracks was an action that would have a significant impact on the indigenous heritage values of the national heritage listed place, and therefore could not proceed without approval from the Federal Commonwealth Minister under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

Original application

On 23 December 2014, the Federal Court granted an interim injunction preventing the government from authorising any vehicle use of the tracks until the Federal Court determines the application.

From 12-16 October 2015, the Federal Court heard evidence and submissions regarding the significance of the area to the Tasmanian Aboriginal community and the consequences of allowing recreational vehicles into the area.   The State government did not call any evidence.  Instead, its case focussed on two issues:

  • that the decision to open the tracks (rather than the actual use of the tracks by individual drivers) was not an “action” under the EPBC Act; and
  • that the indigenous heritage values protected by the heritage listing were limited to physical hut depressions, rather than broader landscape values.

On 1 March 2016, Justice Mortimer made orders declaring that the opening of the tracks was a “controlled action” that would have a significant impact not only on identified heritage sites but on the broad indigenous heritage values of the WTACL.

For a summary of Justice Mortimer’s decision, click here.  For the full decision, click here.

Appeal

The Tasmanian Government appealed against this decision.  The Commonwealth Government joined the appeal.

Both governments challenged Justice Mortimer’s earlier decision, arguing that the decision to open the 4WD tracks does not require approval under the EPBC Act.  They asked the Full Federal Court to find that Justice Mortimer’s interpretation of “indigenous heritage values” was too broad and should be confined to identified hut depressions and seal hides.  They alleged that if indigenous heritage values of the WTACL were confined in that way, the impacts of 4WD on those values will not be significant.

The Full Court released its judgment on 16 September 2016.  The Full Court confirmed that works required to open the tracks were “actions” within the meaning of the EPBC Act.  They considered that “indigenous heritage values” were limited to those included in the listing statement (rather than the broader cultural landscape), but ordered that the case be sent back to Justice Mortimer for further consideration of whether the track opening would impact on more narrowly defined indigenous heritage values.

Following this decision, the Tasmanian Government committed to consulting with the Aboriginal community and 4WD track users regarding planned works, and to referring the proposal to the Federal Minister.  If a referral is made, no further hearing will be required.

Click here to read our media release following the Full Federal Court decision.

TAC will continue to urge the Tasmanian government to abandon the proposal altogether, particularly given the Government’s recent commitments to “resetting the relationship” with Tasmania’s Aboriginal community.

Consultation with the Aboriginal community, heritage experts and off-road drivers led to the closure of the tracks in 2012, and the Aboriginal heritage values of the area have since been formally protected by the WTACL national heritage listing. We hope that when Minister Groom rigorously assesses the impacts of any proposed works on the natural and cultural values of takayna, he recognises that the risks to these nationally significant values are simply too great to proceed with re-opening the tracks.

Unlawful use of tracks

The State government  referral was made in September 2017.  The Minister’s delegate determined on 16 October 2017 that the proposed works are a controlled action and must be assessed by way of Public Environment Report.

Unless and until approval is granted by the Minister under the EPBC Act, the tracks will remain closed under Tasmanian law.  However, there are many reports of 4WDs and off-road vehicles continuing to use the tracks.

TAC and environment groups continue to call on the Minister to take strong action to prevent unlawful use of the tracks.

EDO Tasmania would like to thank our legal team for achieving this outcome – Richard Niall QC, Brian Walters AM QC, Tiphanie Acreman, Adam Beeson (for the original hearing) and Claire Bookless (for the appeal).
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takayna tracks appeal legal team: Barristers, Tiphanie Acreman and Brian Walters QC, Heather Sculthorpe (TAC) and our litigation lawyer, Claire Bookless