Tasmanian Aboriginal Centre Inc v Secretary, Department of Primary Industries, Parks, Water and Environment [2014] FCA 1443

Tasmanian Aboriginal Centre Inc v Secretary, Department of Primary Industries, Parks, Water and Environment [2014] FCA 1443

The applicant established a strong prima facie case that permitting vehicular access to tracks 501, 503 and 601 would be likely to have a significant adverse impact on the indigenous heritage values of the Western Tasmania Aboriginal Cultural Landscape, particularly because approved tracks were not clearly marked, mitigation works had not been undertaken, some proposed authorised sections traversed fragile middens, and identified heritage sites overlapped with the tracks. The respondents' s 524(2) argument did not defeat interlocutory relief because it was seriously arguable that the proposed permission was not a "governmental authorisation" of the kind excluded from being an action. The...

Jurisdiction
Australia
Judgment Date
23 December 2014
Procedural Posture
Environment Law Proceeding Concerning the National Heritage List and Alleged Contravention of the Environment Protection and Biodiversity Conservation Act 1999 (cth) / Interlocutory Application for an Interim Injunction
Outcome
Interlocutory injunction granted in part; respondents restrained from giving permission for public vehicular access to the protected tracks until hearing and determination or further order; costs reserved.
Legal Topics
['national Heritage List' 'western Tasmania Aboriginal Cultural Landscape' 'interlocutory Injunction' 'environment Protection and Biodiversity Conservation Act 1999 (cth)' 'governmental Authorisation' 'balance of Convenience' 'aboriginal Cultural Heritage']
['environment Law' 'administrative Law' 'heritage Protection'] ['national Heritage List' 'western Tasmania Aboriginal Cultural Landscape' 'interlocutory Injunction' 'environment Protection and Biodiversity Conservation Act 1999 (cth)' 'governmental Authorisation' 'balance of Convenience' 'aboriginal Cultural Heritage']

Case Brief

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Procedural Posture

Environment Law Proceeding Concerning the National Heritage List and Alleged Contravention of the Environment Protection and Biodiversity Conservation Act 1999 (cth) / Interlocutory Application for an Interim Injunction

Legal Issues

  1. 1 ['Whether opening tracks 501, 503 or 601 in the Western Tasmania Aboriginal Cultural Landscape to recreational vehicles would contravene s 15B(4) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).' 'Whether the respondents\' proposed permission or permit for vehicular access to the tracks was an "action" under the Environment Protection and Biodiversity Conservation Act 1999 (Cth), or was excluded by s 524(2) as a decision to grant a governmental authorisation.' 'Whether the applicant established a sufficient prima facie case and balance of convenience for interlocutory relief restraining vehicular access.' 'Whether interlocutory relief should restrain preparatory or ameliorative works on the tracks.']

Ratio Decidendi

The applicant established a strong prima facie case that permitting vehicular access to tracks 501, 503 and 601 would be likely to have a significant adverse impact on the indigenous heritage values of the Western Tasmania Aboriginal Cultural Landscape, particularly because approved tracks were not clearly marked, mitigation works had not been undertaken, some proposed authorised sections traversed fragile middens, and identified heritage sites overlapped with the tracks. The respondents' s 524(2) argument did not defeat interlocutory relief because it was seriously arguable that the proposed permission was not a "governmental authorisation" of the kind excluded from being an action. The...

Court Disposition

Interlocutory injunction granted in part; respondents restrained from giving permission for public vehicular access to the protected tracks until hearing and determination or further order; costs reserved.

Orders

  • ['The name of the second respondent is amended to Director of National Parks and Wildlife.' 'Until the hearing and determination of this proceeding, or further order the respondents by themselves servants or agents are restrained from giving permission for vehicular access to the Protected Tracks by the public.'...