takayna tracks case

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:

Land Returns and Heritage Protection not hollow words Aboriginal Community says.



EDO Press Release, 12 October 2016:

Government commits to referring 4WD tracks proposal following Full Court decision

“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:

Tasmanian Government committed to reopening Tarkine tracks

“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


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.

EDO Tasmania:  Full Federal Court hands down decision in takayna/ Tarkine tracks case.

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 that
the values must be limited to those that are included in the National Heritage List.
However, their Honours also noted that “some context and background” may be needed to appreciate the nature of a listed indigenous heritage value.



Original decision:  takayna Victory!  Four Wheel-Drive Tracks remain closed


Advocate, 16 Sept 2016:

Four-wheel-drive tracks will remain closed in the Tarkine for now

Mercury 17 Sept 2016:


Advocate Editorial and letter, 19 Sept 2016:


Appeal reasons:

(Official): filing of appeal, including reasons.

(EDO Tasmania):  Briefing note on appeal

(In summary):

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.

See:  Official listing of the Western Tasmania Aboriginal Cultural Landscape

takayna_national-heritage<- 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).