Environmental Law and Regulation Society
Saving the Tarkine: The Fight to Protect Tasmanian Rainforest
Written by: Elektra Birchall
Monday, January 30, 2022
The Tarkine—or takayna, its aboriginal name—is a rainforest located in the northwest of Tasmania, which holds vital ecological importance. Unfortunately, it is under threat from a number of factors, most important being the proposed tailings dam and toxic waste pipeline that the mining giant MMG is proposing to build inside of the forest. This article will discuss the significance of the Tarkine, the threats it faces, the response to those threats, and the various legal issues involved, such as how to regulate the protection of the forest and how to better defend protestors’ rights.
(The Tarkine Rainforest)
The Tarkine is the second largest temperate rainforest in the world; although its borders are loosely defined, it covers at least 439,000 hectares. As such, it is also one of Australia’s richest natural carbon sinks, holding 100 million tonnes of carbon.  Natural features such as this means that it contains, according to a UN survey, the cleanest air in the world.  On top of contributing to a healthy Australian climate, the Tarkine is also important for its biodiversity. It is home to animals that exist nowhere else in the world, and need protection. Sixty species of rare, threatened, and endangered species live there, including the wedge-tailed eagle and the Tasmanian masked owl. Additionally, some of the last Tasmanian devils not infected with the face cancer epidemic currently threatening this species have a home in the Tarkine. 
The Tarkine also holds historical and cultural significance. It was once a part of the ancient supercontinent of Gondwanaland—which incorporated South America, Africa, Antarctica and the Indian subcontinent between a period of 600 and 180 million years ago—thus making it a living piece of natural history.  It also holds a National Heritage listed strip of land which holds the greatest number, diversity and density of Aboriginal hut sites in Australia, with archaeologically and culturally significant middens and burial grounds. 
Besides these specific local issues, rainforests are generally known to have a plethora of benefits for health and climate. More than 25% of modern medicines include ingredients that come from rainforests, while their destruction can release a plethora of diseases and pathogens.  They also prevent erosion and flooding while preserving the water cycle which is significant in maintaining local climates.  Thus, rainforest preservation has a host of benefits for humans, animals, and the climate.
The Threats and the Protests
Despite the clear environmental and cultural significance of the Tarkine, logging, mining, and off-road vehicle access is permitted in 295,700 hectares of the forest, with a permanent logging zone occupying a zone of 30,000 hectares.  The Aboriginal Heritage Landscape is particularly at risk from off-road vehicles and four wheel drives that cross middens and other important sites, damaging irreplaceable locations. 
(This midden site, although fenced off, has still been accessed by off-road motorists)
At the moment, all eyes are turned to the dispute between the Bob Brown Foundation, an environmental nonprofit operating in Tasmania, and the mining company MMG, which plans to clear 285 hectares of old growth forest to create a toxic, acid-producing tailings dam and a pipeline to transport its waste within the Tarkine. More than 400 people have joined a blockade led by the Bob Brown Foundation to stop this piece of the forest from being cleared away; almost seventy protestors have been arrested. The blockade has been running since 2020. 
(Bob Brown Foundation blockade)
While the Minister for the Environment under the Liberal government, Sussan Ley, approved the dam and pipeline project, the election of a Labour government this year raised hopes that the protestors would gain support over the mining company. Unfortunately for them, the current Minister, Tanya Pilbersek, visited Tarkine only at the invitation of MMG and dined with their senior officials without meeting with the Bob Brown Foundation, before she is is set to make a decision on whether MMG will be able to build the dam within the forest or force them to use the alternate locations available. 
There are two issues at play here: the protection of the Tarkine and the treatment of the protests, both of which have huge implications for the future of the Australian environment.
Ten years ago, the Australian heritage council recommended that the rainforest had “outstanding national heritage significance” and should be declared a World Heritage site. This recommendation was not followed by the then-Labour government which cordoned off only a 2km strip of land for its importance to Aboriginal culture.  The Bob Brown Foundation has continued fighting for this designation for the whole of the territory that the forest covers, arguing that it should be given National Park protection and be added to Tasmania’s Wilderness World Heritage Area, which covers about 25% of the state. This would provide the rainforest with greater state protection.  Unfortunately, seeing as Minister Pilbersek is still entertaining the possibility that MMG will continue its works in the forest, it seems that World Heritage status is far off for the Tarkine.
However, it is not all bad news legally. In July, a judge ruled that the previous Liberal government erred when they approved the preliminary work on the dam. Federal court justice Mark Moshinsky determined that then-Minister Ley did not consider the possible damage to the endangered Tasmanian masked owl when she agreed to the opening of dam works.  The Bob Brown Foundation stated that this was the most important environmental law decision made in Australia since the inception of 1999 Environmental Protection and Biodiversity Conservation Act because of its application of the precautionary principle, found in this act, to situations where the environmental impact of a development is uncertain. The foundation’s campaign manager, Jenny Weber, stated, “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.”  Therefore, there is hope that, even if the government supports profit and private interests, the courts will uphold key environmental legislation.
Another legal issue surrounding the fight for Tarkine is the role of protest law. As mentioned earlier, dozens of protestors have been arrested for their role in the blockade. Unfortunately, this is part of a larger trend in Australian policy towards anti-protest laws, especially targeting climate activism. The Tarkine will be specifically affected by the Tasmanian Government’s recent attempts to pass the Police Offenses Amendment (Workplace Protection) Bill 2022 which would increase fines for public annoyance, make it an offense to obstruct vehicle or pedestrian movement or to obstruct a business while trespassing, and increase the fine for when corporations—like the Bob Brown Foundation—obstruct businesses.  The act has not yet been passed, but poses a serious potential threat to protest activity. And even without this law, in October, Tasmania’s workplace safety regulator, at the referral of the government, banned anti-logging protestors from the Bob Brown Foundation from further disruption of logging activity under the premise of “unsafe behavior.” The Foundation is seeking legal action, and the Australian Lawyers Alliance has claimed that the actions of the Tasmanian government are an abuse of their power.  The issue of climate protest rights has now occupied the global stage with controversy over the treatment of demonstrators at COP27 in Sharm-el Sheik, Egypt.
While the issue of habitat protection in the face of environmentally extractive economic activity persists around the world, we must consider the particular political and geographical contexts of these disputes, for this can shape what legal and regulatory action can or cannot be taken. It is also important to examine how the varying levers of action are intertwined and work together; protestors and lawyers should support each other to further efforts towards environmental justice.
 https://www.coolearth.org/news/rainforest-health/; https://www.rainforestconcern.org/forest-facts/why-are-rainforests-important
 https://www.theguardian.com/australia-news/2021/jun/06/where-mining-meets-rainforest-the-battle-for-tasmanias-tarkine; https://bobbrown.org.au/campaigns/takayna/
 https://australiainstitute.org.au/post/anti-protest-laws-are-undemocratic/; https://www.theguardian.com/commentisfree/2022/jun/22/anti-protest-laws-are-an-affront-to-democracy-they-have-no-place-in-australia