Shree Minerals approval: overturned or wobbled?

fake human tas-devilScott Jordan of the Tarkine National Coalition (recently rebranded as “Save the Tarkine”) has had a win in the Federal Court overturning the Federal Environmental Ministers approval of the Shree Minerals Iron Ore mine in the “Tarkine” – my own back yard, and local community/economy/place.

The chronology is: Approval late Dec 12, Court case and injunction mid May 13, decision mid July 13, reapproval (?) forecast early Aug 13. Five months after approval was granted, but almost immediately on site works commencing TNC challenged the decision in the Federal Court, and were granted an injunction stopping work on the site.

It is a “nice point of law” decision, and likely to be speedily corrected. The new Minister is suggesting less than two weeks to fix. A two to three month delay in the build phase of the project has been achieved. TNC are entitled to this action, but it is difficult to see the delay as anything other than a strategic decision to maximise the economic cost to the proponents and contractors of the legal challenge.

The point of law at which the overturning occurs is that “in deciding whether to approve the taking of the action, the Minister MUST (my emphasis) have regard to any approved conservation advice for the species” (Tasmanian Devil in this instance). The minister’s statement of reasons that he took into account “any relevant conservation advice” is insufficient. The legislation defines a “must” the Minster claims “any relevant conservation advice” and in that theoretical gap the TNC action succeeds.

I don’t know how we resolve this sort of legal nonsense. No where can I see where anyone can mount an argument that the Minister’s approval actually acted without consideration of advice. Let me express this a different way what is NOT being argued is that if the minister had conclusively proved that he had regard for the approved conservation advice that the approval decision would have been any different. What has been successfully argued is ONLY that the Minister “must” and it is possible, though not certain, that he may not have. The Minister’s stated reasons did not explicitly conform to the legislative phrasing of “must”. This legal fig leaf is quite obviously just that, the impact on the proponent, contractors, my community and its current and future economic viability is disproportionate. What is the solution? I don’t know, but I continue to ponder what “direct action” could be pointed in the direction of TNC.

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