On 16 September 2016, the Full Federal Court handed down a unanimous decision in the Tasmanian Government’s appeal against Justice Mortimer’s earlier decision that the proposed re-opening of 4WD tracks in the Western Tasmania Aboriginal Cultural Landscape (WTACL) was an action that was likely to have a significant impact on indigenous heritage values. Justice Mortimer’s ruling meant that the action could not proceed without approval from the Federal Environment Minister under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).
The Full Court upheld the appeal, in that they found that Justice Mortimer had interpreted both “action” and the indigenous heritage values protected by the listing of the WTACL too broadly. However, the Full Court also found that the approach advocated by the State Government was far too narrow. The Full Court considered that, while declaration of the tracks was not an action under the EPBC Act, the works needed to open the tracks (including remediation works, re-routing tracks and installing culverts) would be actions. The Full Court held that the values protected were limited to those values described in the listing documents, but acknowledged that other material could be referred to to give context to those values.
The Full Court directed the parties (the State Government, the Commonwealth Government (as intervener) and the Tasmanian Aboriginal Centre) to try to reach agreement on orders to give effect to its findings. The Full Court noted that nothing in its judgment should discourage the State Government from pro-actively referring the proposal to the Federal Minister for assessment under the EPBC Act.
The Tasmanian Aboriginal Centre Inc has consistently argued that the proposed works should be referred to the Federal Minister prior to any activity to re-open the tracks, and has urged the State government to take that course.
EDO Tasmania thanks our wonderful legal team in this matter – Brian Walters QC, Tiphanie Acreman and Claire Bookless.