takayna tracks court case
Mercury, 13th October:
Tasmanian Aboriginal Centre chief Heather Sculthorpe described the decision as
“a bloody good victory.”
She said the State Government would need to conduct careful studies of the area’s heritage and environmental values before seeking Federal Government approval.
TAC Press Release, 12 October 2016:
EDO Press Release, 12 October 2016:
“The Full Court has confirmed the TAC’s central argument”
– that the works needed to open the 4WD tracks are “actions” and that such actions trigger the cultural heritage protections of the EPBC Act.
EDO Tasmania’s litigation lawyer, Claire Bookless
Advocate Monday 3rd October:
“Although the court has yet to decide what final orders it will make and what it will take into account from the submissions, this provides another opportunity for the state government to back up and not continue with this,” – Heather Sculthorpe.
TAC vs Hodgman Gov, with federal government intervention
Full federal court appeal hearings were 22-23 August 2016,
The judgment was handed down on 16 September 2016.
Full Judgement: HERE
THE COURT ORDERS THAT:
Within seven days the parties provide agreed minutes of proposed orders to give effect to thee reasons (including as to costs) or, if they cannot agree, within a further seven days each party provide minutes of proposed orders to give effect to these reasons (including as to costs) together with a short written submission (no more than two pages) in support of those proposed orders.
the designation of the tracks was not an “action”,
…. the works needed to implement that decision (including re -routing tracks, spreading gravel, installing culverts and rehabilitation works) would be actions.
The Full Court held that the Honourable Justice Mortimer had adopted too broad an approach to identifying indigenous heritage values and instead found thatthe values must be limited to those that are included in the National Heritage List.
(See Official Values in: Official listing of the Western Tasmania Aboriginal Cultural Landscape)
However, their Honours also noted that “some context and background” may be needed to appreciate the nature of a listed indigenous heritage value.
TAC Media Release: TAC TO APPROACH FEDERAL MINISTER FOR ENVIRONMENT
Original decision: takayna Victory! Four Wheel-Drive Tracks remain closed
Advocate, 16 Sept 2016:
Mercury 17 Sept 2016:
Advocate Editorial and letter, 19 Sept 2016:
(Official): filing of appeal, including reasons.
(EDO Tasmania): Briefing note on appeal
The designation of the tracks is not an “action”
Both State and Federal Governments argue that the designation itself (‘these tracks are for vehicles’) is a regulatory step only, rather than an activity that has physical consequences, so isn’t an ‘Action’ under the EPBC Act.
Such an action is exempt.
Both governments argue that even if the designation was an “action”, they argue that it falls within the exemption given to “government authorisations”.
The ‘National Heritage values’ of a National Heritage listed place are limited to just those in the specific listing document.
Both Governments will argue that Justice Mortimer was wrong to assess the values of the WTACL on the basis of evidence as to the broader significance of the area to Aboriginal people.
<- Map (click to see) of several versions of the boundary for the National Heritage Listing, evolving from ‘Tarkine’ to ‘Western Tasmanian Aboriginal Cultural Landscape (WTACL), via decision by environment Minister, Tony Burke (2013), to list the area for Aboriginal Values only (ignoring larger recommendation by Australian Heritage Council).