Full Court to deliver decision on Tarkine road battle between mining company and protesters

The battle for the Tarkine continues, with the Bob Brown Foundation now fighting a Full Court appeal against a lease it claims is a “charade” to block protest action. Latest in the case.

Bob Brown Foundation protests in Tasmania’s takayna / Tarkine. Picture: Bob Brown Foundation.

A trio of judges will soon deliver their decision over a controversial mining lease that protesters claim blocks them from a key access road in the Tarkine.

In 2021, former resources minister Guy Barnett granted Chinese-owned mine MMG a mining lease over Helilog Rd, for company access from the Rosebery mine to its proposed – and highly controversial – waste tailings dam.

But the Bob Brown Foundation said the mining lease, over a publicly-owned forestry road that MMG already had access to, was a “charade”.

The environmental group said the lease – which extends 100 metres either side of the road – was in fact strategic, and only granted to block protesters from mobilising along the site.

The groups says with the public road under a private lease, activists protesting the tailings dam road are now increasingly likely to be charged with a range of anti-protest offences like trespass, hindering or obstructing mining operations, or public nuisance.

Bob Brown Foundation protest at tarkine. Picture: Bob Brown Foundation.

In April this year, the foundation lost a Supreme Court challenge to have Mr Barnett’s decision reviewed and overturned.

The organisation returned to court on Monday, fighting a Full Court of the Supreme Court appeal on four grounds, including that the lease had been granted for an “improper purpose” – to thwart, restrict, inhibit or constrain protest activity.

The foundation argued the granting of a lease was not necessary to enable access, as MMG already had access, and also argued the organisation had been denied procedural fairness when the court refused its request to cross-examine Mr Barnett himself.

Barrister Chris Gunson SC, acting for the foundation, argued that granting a lease in a bid to block protesters was an improper purpose, and therefore invalid.

“There’s certainly enough smoke … to suggest this was a rubber-stamping exercise,” he said.

He asked the trio of judges – Justices Gregory Geason, Robert Pearce and Tamara Jago – to either set aside the decision to grant a mining lease, or remit the matter back to the Supreme Court for redetermination.

20/05/2021 Campaigners from the Bob Brown Foundation Jenny Weber and Scott Jordon, Campaigning against mining company MMG building a tailings dam in the Tarkine rainforest, Tasmania. Matthew Newton/The Australian

Michael O’Farrell SC, acting for MMG, said the lease did not grant the company a right to thwart protest.

He said there was no “ulterior motive” behind the road lease other than to give MMG “unobstructed, safe access” to its mining lease.

He said it had been legitimate to consider granting a lease to prevent “illegal, obstructive, unsafe” protest activities that were “not lawful, nor peaceful”.

Mr O’Farrell also said the lease was necessary so MMG could widen the road and improve its access to the South Marionoak site.

Environmentalists have now spent years protesting the proposed tailings dam, in an ongoing, large-scale campaign, arguing the area is home to a number of threatened species including the Tasmanian masked owl, the swift parrot, the Tasmanian devil and the spotted-tailed quoll.

The project was approved by former federal environment minister Sussan Ley in January 2022, but the foundation successfully challenged that decision in the Federal Court.

Current federal environment minister Tanya Plibersek is yet to hand down her final say in the matter under the Environment Protection and Biodiversity Conservation Act.

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