The Federal Court has found that the Commonwealth Government’s decision that no approval is required under Commonwealth environmental law for the Halls Island helicopter-accessed luxury tourism proposal in the Tasmanian wilderness was invalid. The Court has ordered that the Government remake its decision under the national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).
This important outcome was achieved by EDO Tasmania, acting for the Wilderness Society (Tasmania), following its successful Federal Court challenge to the Commonwealth decision that the tourism accommodation proposal was not a controlled action.
The Federal Court ruling of 12 November 2019 found that the Government’s decision was flawed, with the legal challenge successful on two of three of its grounds of review. Now both parties have reached agreement on the Court orders to give effect to that ruling. The Commonwealth has agreed to a Court order that the original decision be quashed and a new decision made. These orders were made by the Court yesterday.
“The concession by the Commonwealth Government that its decision was invalid and must be remade under the EPBC Act shows that our client was right to take this legal action,” said Nicole Sommer, Principal Lawyer at EDO.
“Our client, the Wilderness Society, today submitted new evidence to the Environment Minister about this project’s noise and wilderness impacts on World Heritage values, evidence that was not before the Department when the first decision was made. This new evidence demonstrates that the project is clearly unacceptable because of the significant impact it will have on wilderness values. It should be rejected by the Minister under the EPBC Act.
“At the very least, this project must now go through a full and detailed assessment, allowing Tasmanians to have a say on what happens in their World Heritage Area. The Environment Minister’s new decision will be a test as to whether the Government will wave through development in World Heritage Areas.
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Nicole Sommer continued: “If private development of a World Heritage Area, on public land and in the heart of the wilderness, is not deemed to be clearly unacceptable, or doesn’t even need approval to proceed, then we have to ask serious questions about the process.”
“The Court’s ruling and this outcome to remake the decision have national implications, beyond this development. The Court makes very clear comment on the need for the Commonwealth to ensure it is adhering to its international obligations, as implemented in our national environmental laws, when assessing developments within World Heritage areas.
“We are really lucky to have such a unique, wild, and remote World Heritage Area in Tasmania. It is internationally significant. National laws are there to protect our wildest places and keep their values intact for current and future generations.
“These places belong to all of us, and the World Heritage Convention, which Australia has signed up to, recognises that the public must be involved in decisions about their future. The Court’s decision reinforces the importance of public participation as integral to decisions about development of World Heritage Areas and we hope this is manifest in the Minister’s new decision-making process.”
Background to the case
The Wilderness Society (Tasmania) Inc challenged the Commonwealth Government’s decision that no detailed assessment was required under the EPBC Act for this development on Halls Island on Lake Malbena in central Tasmania.
Halls Island is within the Walls of Jerusalem National Park and forms part of the Tasmanian Wilderness World Heritage Area (TWWHA). The tourism proposal involves an accommodation complex and board-walking on the island, a helicopter landing site off-island and up to 240 helicopter flights a year between Derwent Bridge and Lake Malbena.
The TWWHA is an internationally listed World Heritage site and a listed national heritage place. The EPBC Act requires actions which are likely to have a significant impact on a matter of national environmental significance, such as World Heritage or national heritage values, to be subject to rigorous and transparent assessment process with public participation. The EPBC Act also empowers the Minister for Environment to decide that the action would have clearly unacceptable impacts.
The EPBC Act is the legislation which implements Australia’s international obligations under the World Heritage Convention to protect World Heritage properties like the TWWHA.
TWS was represented by barrister Emrys Nekvapil and lawyer Claire Bookless from Environmental Defenders Office (Tasmania) Inc.
EDO Tasmania is the legal entity acting in these cases. EDO Tasmania merged with EDO Ltd in 2020.