Legal Perspectives from EDO Tasmania
UPDATE: On 1 March 2016, the Federal Court ruled in favour of the Tasmanian Aboriginal Centre, finding that opening 4WD tracks 501, 503 and 601 would be a controlled action under the EPBC Act, and would have a significant impact on indigenous heritage values (even with the mitigation measures proposed by the government).
Full hearing of application for injunction
On 12 – 16 October 2015, the Federal Court heard the application by the Tasmanian Aboriginal Centre (TAC) to prevent recreational vehicles using an area on Tasmania’s west coast within national heritage listed the Western Tasmania Aboriginal Cultural Landscape (WTACL). EDO Tasmania represented TAC, and briefed barristers Brian Walters QC and Tiphanie Acreman to present the case in Court. See below for details of the application.
During the five day hearing, the Court heard evidence that the area is rich in Aboriginal heritage from experts in archaeology, geomorphology and history. Members of the Tasmanian Aboriginal community also spoke on the significance of the area to the community and the consequences of allowing recreational vehicles into the area. Evidence was also submitted in relation to GPS accuracy and road engineering.
The Tasmanian government did not call any witnesses. Instead, the government’s case focussed on two key submissions:
- That the opening of off-road vehicle tracks (as opposed to the use of the tracks by individual drivers) is not an “action” under the Environment Protection and Biodiversity Conservation Act 1999, and therefore does not require approval from the Federal Minister.
- That the indigenous heritage values for which the WTACL was listed on the National Heritage List relied on the presence of “hut depressions”. Hut depressions occur where there once existed huts built by Tasmanian Aborigines. The hut depressions recorded in the WTACL occur in the northern part of the WTACL only, with no hut depressions recorded in the area relevant to the case.
The government argued that, in the absence of direct impacts on hut depressions, no significant impact on national heritage values could be demonstrated.
TAC challenged those submissions. In particular, it was argued that the values of the WTACL encompassed the broader landscape. Archaeologist, Stuart Huys, also gave evidence that there is a high probability hut depressions would be found in the area of the proposed vehicle tracks if a comprehensive study was carried out.
What happens now?
Justice Mortimer reserved her judgment – it could be several months before a final decision is made.
23 December 2014 – Federal Court issues interim injunction to prevent 4WD track re-opening
In November 2014, the Tasmanian government announced that it would re-open a number of off-road vehicle tracks in the Arthur Pieman Conservation Area before Christmas. The controversial announcement followed:
- A decision in 2012 by the then Tasmanian Labor government to close the tracks, following extensive consultation and a number of reports indicating that the tracks were causing irreparable damage to significant Aboriginal heritage sites;
- A decision in 2013 by the Federal government to include the coastal strip (in which all the tracks are located) on the National Heritage List, as the Western Tasmania Aboriginal Cultural Landscape.
The government announcement stated that $300,000 would be invested to ensure that “globally significant Aboriginal cultural heritage values are protected”.
After unsuccessful efforts to get more details about what was planned, and confirmation that no mitigation works had yet been undertaken, on 19 December 2014 the Tasmanian Aboriginal Centre Inc (TAC) applied for an injunction to prevent the Director of National Parks and Wildlife from re-opening three tracks between Johnsons Head and Sandy Cape (501, 503 and 601) before an assessment of the proposal was made under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). TAC also sought an interim injunction to prevent any works being undertaken until the matter was heard by the Federal Court.
The application for an interim injunction was heard on 22 December 2014. On 23 December 2014, His Honour Justice Kerr granted the interim injunction to prevent the Tasmanian government from giving permission for vehicular access to the tracks until the Federal Court determines the TAC’s application.
TAC relied on cultural heritage assessments undertaken as part of the 2012 review which concluded that “numerous natural and cultural values are at threat from 4WDs” and recommended closure of the tracks to protect those significant values.
TAC argued that any works to re-open the tracks, conduct preparatory works or grant any permits to authorise off-road vehicles on the tracks were “actions” that would have a significant impact on the indigenous heritage values of the Western Tasmania Aboriginal Cultural Landscape. Therefore, the action required approval from the Federal Minister under the EPBC Act.
TAC argued that, given the risk to cultural heritage values, the Federal Court should preserve the status quo (that is, the tracks should remain closed) pending the full court hearing.
Click here to see TAC’s submissions.
Tasmanian Government’s arguments
The Tasmanian Government argued that the decision to re-open the tracks was a matter of high level policy which was not an “action” for the purposes of the EPBC Act. In particular, the government argued that granting permits was a “governmental authorisation” that was specifically excluded from the definition of “action” by s.524 of the EPBC Act.
The government noted that no preparatory works had been undertaken to date, and the money allocated for mitigation works would not be available until the following financial year, therefore it was difficult to identify an “action” which could be relied upon to challenge the proposed re-opening of the tracks.
The Tasmanian Government also queried the significance of any impact, noting that the permits would be required under the Aboriginal Relics Act 1975 for preparatory works and conditions restricting vehicle numbers and requiring drivers to install GPS to ensure that they stayed on-track were designed to minimise impacts.
Counsel for the government submitted that, even if the Director’s decision was an “action”, the Federal Court should not exercise its discretion in favour of an interim injunction given the “inchoate” losses that would be suffered by the government, including loss of tourism potential, permit fees forgone and the inconvenience of changing government policy.
Federal Court decision
Justice Kerr found that mitigation efforts to date were restricted to limiting vehicle numbers and requiring GPS – while matting, improved signage, fencing and rerouting of tracks to avoid significant areas have been considered, no action has been taken in that regard. In light of that finding, His Honour was satisfied that there was a “strong prima facie case” that re-opening the tracks would have a significant impact on indigenous heritage values.
However, Justice Kerr was not satisfied that there was sufficiently strong evidence that preparatory works themselves would have a significant impact, or that permit requirements under the Aboriginal Relics Act 1975 would not be complied with.
His Honour reviewed a range of authorities in relation to statutory interpretation, and cases considering s.524 (including Forestry Tasmania v Brown and Save the Ridge). He concluded that it was open to argue that the Director’s actions in re-opening the tracks and issuing permits authorising drivers to use the tracks were an “action” for the purposes of the EPBC Act. His Honour was not required to reach a firm conclusion on whether it was an action, only that there is a serious case to be tried that it is an action that requires approval under the EPBC Act.
His Honour acknowledged the ‘inchoate’ impacts referred to by the Government, but was satisfied that the balance of convenience favoured the protection of heritage values while the legal matters were resolved.
Justice Kerr made orders preventing the Director from giving permission for vehicles to drive on the tracks, but did not prevent the Director from carrying out preparatory works on the tracks. You can read the full judgment here.
What happens now?
The interim injunction will remain in force until the hearing for the application to permanently prevent the tracks being opened concludes. The parties will seek a date for this hearing in early 2015.
In the meantime, no off-road recreational vehicles can use the tracks.
EDO Tasmania thanks our wonderful legal team – Richard Niall QC, Tiphanie Acreman, Adam Beeson and Sarah Wilson – for all their work in achieving this outcome.