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The Federal Court has found the Australian Government erred in allowing Chinese state-owned miner MMG to commence preliminary work on a mining waste dam in Tasmania’s takayna / Tarkine rainforests as the potential impact on a local species of owl was not considered.
Justice Mark Moshinsky yesterday upheld the Bob Brown Foundation’s (BBF) challenge to a decision made by former environment minister Sussan Ley, finding her department hadn’t applied the precautionary principle critical to the environmental assessment of projects.
The BBF says the decision is one of the most significant in environmental law since the inception of the Environment Protection and Biodiversity Conservation (EPBC) Act in 1999.
“This decision tells miners, loggers and other big project proponents that they can no longer profit from the uncertainty that follows a lack of quality scientific investigation,” Bob Brown Foundation’s campaign manager Jenny Weber said.
“The consequence of this decision for MMG’s mine in northwest Tasmania is significant. MMG must cease work, and the new minister, Tanya Plibersek, will need to start the assessment afresh to consider the Tasmania Masked Owl.
“The Masked Owl was not considered at all in Minister Sussan Ley’s assessment decision made on 6 January 2022.”
Bob Brown, the former Greens leader and founder of the BBF, described the judgement as “huge” and predicted the decision would have ramifications far beyond Tasmania to other areas where wildlife and environments are threatened.
“It will bolster Tanya Plibersek’s hand in defending threatened species from the Tarkine to Cape York to the Burrup Peninsula,” Brown said.
“Judge Moshinsky has simply upheld that the precautionary principle, which predicates decisions on the environment by the federal minister, is mandatory. Minister Sussan Ley failed to ensure its application, in particular in relation to the giant Tasmanian Masked Owl.
“In fact, she overlooked the impact of the loss of forest on the threatened Tasmanian Masked Owl altogether. Her delegate did not bring the ‘active intellectual process’ required in applying the precautionary principle. The minister, totally responsible for the delegate’s decision, failed in her obligation.”
Brown has called for the Commonwealth to compensate what he describes as roughly 100 'forest defenders' who were arrested for peacefully protesting MMG’s wrecking operations.
“They are the environmental citizen heroes who stood firm when the minister and government failed them and the law,” Brown said.
Justice Moshinsky did not make any immediate orders, which may mean that MMG might need to submit a new proposal. This would then require a new assessment under national environmental laws.
“Here is a remarkable opportunity for Tanya Plibersek to right the terrible wrong of Sussan Ley’s failure,” Brown said.
“The nation’s environmentalists will be counting on her to apply the law and protect this ancient rainforest and all of its threatened wildlife, trees and ecological communities.
“MMG has options to dispose of its acid mine outside the Tarkine, in particular by pulverising them and returning them as paste fill to the mine spaces below.”
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