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National Heritage Values Questioned before the Federal Court of Australia Full Court

Secretary, Department of Primary Industries, Parks, Water and Environment v Tasmanian Aboriginal Centre Incorporated [2016] FCAFC 129 (16 September 2016)

The judicial review case examined the ministerial decision made under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) to include an area of land known as the Western Tasmanian Aboriginal Cultural Landscape in the National Heritage List. The Tasmanian Department of Primary Industries, Parks, Water and Environment intended to develop three vehicle tracks to through the area. The respondent to this appeal was granted an injunction against the development in the primary judgement.

The respondent argued the development of the tracks would likely impact the National Heritage value imposed by the Department under the EPBC Act 1999 (Cth). The Court did not support the primary finding, rather finding for the Department. The Court found the primary judge erred in adopting an overly narrow construction of s 524(2) of the EPBC Act 1999 (Cth), rather finding the decision to grant the tracks was not an action of the government body under this section. Further, the primary finding incorrectly interpreted National Heritage Values to be based on the broader statutory concept of indigenous heritage values. The court found this contrary to s 324D(2) of the EPBC Act 1999 (Cth) and that national heritage values were listed in the ministerial reasons and the National Heritage List.

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