Scott Jordan quote

EDO Tasmania has represented the Tarkine National Coalition (TNC, also known as Save the Tarkine) in a range of actions challenging mining activities in takayna / the Tarkine.

Livingstone and Mt Lindsay leases

The TNC applied for judicial review of the decisions to grant the Livingstone and Mt Lindsay leases near Tullah.  

In the applications, the TNC alleged that the relevant Minister could not have been satisfied that the criteria for granting the Livingstone and Mt Lindsay leases had been met. In particular, the TNC argued that the Minister did not have a copy of the mining plan or key financial information when making the decision, and did not turn his mind to the risks and benefits of the proposal.

The applications were heard by his Honour Justice Estcourt of the Supreme Court on 19 June 2017. 

On 23 June 2017, Justice Estcourt dismissed the TNC’s applications. In his judgment, his Honour found that the Ministers who granted the mining leases could rely on summaries of the mining lease applications prepared by Departmental staff and, taking into account the information provided in those summaries, it could be inferred that the Ministers were satisfied the relevant legislative criteria were met.

Further, his Honour found that given the content of the material before the Ministers, it could be assumed that the Minister considered  risks and benefits of the mining leases to the State when granting the leases (even where the Ministers’ conclusions on these matters were not evident on the face of the reasons or material provided).

To read a full copy of the Supreme Court decision (which includes copies of the Statements of Reasons provided by the Minister), click here.

This case was the first time the Court had been asked to review decisions relating to the grant of mining leases in Tasmania, and raised important questions of law about the exercise of Ministerial powers under the Mineral Resources Development Act 1995. Given the recognition by the Supreme Court in the earlier matters (see background below) of the environmental, social and economic implications of decisions to grant mining leases, it is critical that such decisions are made in accordance with law.

EDO Tasmania thanks the barristers who represented and advised TNC on these cases –  Jim Delany QC, Juliet Forsyth and Claire Harris.

Barristers, Claire Harris and Juliet Forsyth, with TNC's Scott Jordan

Barristers, Claire Harris and Juliet Forsyth, with TNC’s Scott Jordan outside of the Supreme Court

Background

In 2015, TNC wrote to the Tasmanian Minister for Resources to request reasons for the decision to grant mining leases for Venture Minerals’ Mt Lindsay and Livingstone mines.  The Minister refused to provide reasons, arguing that TNC was a not a “person aggrieved” by the decision, within the meaning of the Judicial Review Act 2000 (that is, TNC did not have “standing” to request reasons).

We represented TNC in their appeal to the Supreme Court against the refusal. On 10 March 2016, Justice Wood held that TNC was entitled to a statement of reasons, noting that a decision authorising mining in the Tarkine would clearly adversely affect TNC’s interests.  The Court ordered the government to provide the statement of reasons.

To read a summary of the case, click here.  To read the full judgment, click here.

The Tasmanian Government appealed against this decision.  The appeal was heard on 19 August 2016, and only one week later the Full Court returned a unanimous judgment upholding Justice Wood’s earlier decision.  In dismissing the appeal, Justice Estcourt observed:

There is no merit in the Minister’s appeal…The present appeal is, in my view, a shining example of an appeal failing to identify an error on the part of the primary judge.”

To read more, click here.  For our thoughts on how this case demonstrates the value of open standing provisions, click here.

Following a review of the Statements of Reasons, TNC believed that the Ministers’ decisions to grant the leases were not valid, as they had not been made in accordance with the relevant legal requirements. TNC filed an application for judicial review, which were heard by the Supreme Court in June 2017.

Tarkine barristers

Huge thanks to our Tarkine legal team: Scott Jordan (TNC), barristers Jim Delany QC and Juliet Forsyth, and EDO litigation lawyer, Claire Bookless

Shree Minerals: Mine Waste Storage

In 2014, we represented TNC in their challenge to a decision of the EPA Director to amend permit conditions regulating storage of potentially acid-forming waste at Shree Minerals’ Nelson Bay River mine.

The Director had authorised temporary above ground storage of waste, after it was revealed that the mine would produce approximately 20 times more waste than originally approved.  However, in considering the original application, the EPA Board had expressly ruled out above ground storage options due to the risk of contamination.

On 17 December 2014, the Supreme Court held that the Director’s decision “fundamentally changed” the mine conditions imposed by the EPA Board.  Justice Estcourt held that the decision went beyond the powers granted to the EPA Director under the Environmental Management and Pollution Control Act 1994 and was therefore invalid.

Shree Minerals was given 12 months to transfer the mine waste from the above-ground storage.

You can read the full decision here.  For more details about the case, click here.

 

Protecting Devil Habitat:  Riley Creek Mine

Devil photoIn 2013, EDO Tasmania represented the TNC in its appeal against approval of Venture Minerals’ Riley Creek iron ore mine.  TNC was concerned that the proposed mine would have a significant impact on local populations of threatened Tasmanian Devil, particularly as a result of increased road fatalities associated with mine traffic.  TNC also raised concerns regarding the adequacy of proposed water and erosion control measures at the mine site.

The Tribunal dismissed the appeal, however more stringent conditions were imposed requiring stricter erosion control and implementing a range of measures to minimise impacts on the Tasmanian Devil.

Click here to read the decision.