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REPCO Rally injunction raced through court up blind alley

Injunction to prevent suffering to native animals fails in Australian World Heritage National Park

Councillor Katie Milne of Tweed Shire Council, NSW, failed in her attempt to prevent the staging of a 3 day long international car rally through Tweed and Kyogle Shire national parks, state forests, World Heritage areas, nature conservation areas, major koala colonies, core koala habitats and habitat where over 12 nationally-threatened species live. In September 2008, the Minister for the Environment, Peter Garrett dubbed the area as the ‘Green Cauldron’, one of 8 national iconic landscapes.

On 27th August, 2009, in Milne v. Rally Australia Pty Ltd, Federal Court Justice Stone was assigned to hear the case in Sydney for 3 hours. The Judge had only just received the last of the reports an hour before the hearing and admitted she had not had time to read all the material.

Fastest case in the history of Tweed Shire?

“It was the fastest case in the history of Tweed Shire. The Judge was able to somehow determine the case in about 10 mins flat after we began," commented Cr Milne. "We didn’t even have a chance for all the issues to be heard. The rally has assigned 600 police for 5 days including training, but they couldn’t even assign a Judge for a proper full day trial to hear all the evidence."

She said, "We knew we were gone when the Judge said, 'Times up, you’ve got one more issue you can raise’.'"

"We had barely started. We had only just got past our argument when the judge dismissed both our ecologists’ reports."

Ecological expertise wasted

Ecologist Dr Stephen Ambrose was there to present his report which challenged Repco's assertion that there would be no significant impact on any nationally-listed threatened species. Dr Ambrose had presented a 12 page resume of his qualifications, his published papers, committees he had chaired and court cases he was involved with. He had supplied a huge dossier of issues including a comparative study and a raft of arguments refuting Dr Phillip’s methodology and many assumptions made. For instance, he claimed that there is a higher probability of mortality as animals actually frequent roadside verges.

Councillor Milne said it was frustrating that he had been available as a witness but the court wouldn’t interview him.

"Dr Ambrose was the key ecologist in the V8 Homebush Supercar case. He is a bird specialist and familiar with the problems a rally is likely to cause. There is a population 35-45 Black Breasted Button Quails near the Mebbin locality Byrill Creek stage of the rally route and it is believed that the loss of one or disruption to their breeding cycle could be fatal to the viability of the entire population."

She added that another ecologist, Mr Mark Graham, who also presented a damning report "had extensive and specific local experience of the area, having coincidently carried out a 3 month ground survey of the endangered Giant Barred Frogs on the Byrill Creek route. The spray of dust can settle on their eggs and larvae and totally destroy their breeding cycle."

Arcane-seeming technicalities defeated community’s try for justice

“The Judge said we had not presented the argument in the manner required by the Courts. It was our ecologist’s case that this was not possible. She made no attempt to ascertain the validity of the arguments with Dr Ambrose. The whole crux of the ecological case was not even argued. It was absolutely appalling” said Cr Milne.

She went on to say that Repco Rally Australia had employed Dr Stephen Phillips (Biolink Pty Ltd) to conduct an ecological report on the impacts on species living on the rally route in autumn. As a result many species that were not visible at that time were visible in spring, breeding season for many species. Had Dr Phillips found any significant impacts to any of the nationally-listed threatened species, the matter would need to be referred to the Minister for the Environment for assessment as these are matters of national environmental significance.

"In the first report released by Repco in April 2009, Dr Phillips actually did recommend that the rally be referred to Minister Peter Garrett. However Repco claimed in the Court that this was a mistaken release of a draft document. Dr Phillips was not in court to confirm or deny this." Cr Milne said that regardless of whether the document was a draft or not, Dr Phillips had actually stated that the rally should be referred to Minister Garrett up until July and therefore the community had believed this would happen. While Dr Phillips may have changed his mind in his July report, it shows that the matter was in contention and that a precautionary approach should have been taken. The matter of referral to the Minister should have been debated by the ecologists but never was. "It feels like we haven't even had a proper hearing and it feels extremely unjust," said Cr Milne.

Late timing issue a non-sequitur and not our fault

Cr Milne said “The late timing of filing for this injunction was being used as if it was something we were responsible for. The fact that the community has been asking the Environment Minister Garrett to make a decision on this right from the start, and that the Minister had failed to do so, did not seem to worry the Judge at all. Nor did the fact that the community was misled up until July by the Repco report and that a Development Application was also promised up until July, seem to worry the Judge.”

"When were we supposed to take an injunction?" she wondered. "We only had between July and August after the special legislation Motor Sports Bill 2009 was brought into force. The community have done everything in their power to seek a legal outcome including commissioning not one, but two, ecological reports. Minister Garrett has joined with the State government and local Council to ignore this community and this World Heritage environment completely."

She said, "Rally Australia's claims that 'this is going to be the most environmental friendly rally in the world' is a joke. How can this rally be 'environmentally friendly' when it needed to bypass State environmental laws to be held? Many of our environmental laws have had to be extinguished to force this otherwise illegal event through. This race will set a new environmental standard but it’s an absolutely appalling one, one that allows such extreme sports races to run between World heritage corridors and through National Parks and Conservation areas."

Non-profit organization well-provided for in legal counsel

Repco Rally had five lawyers present in court at a cost of $40,000 in three days. “They won on legal technicalities, not on issues”, said Councillor Milne. She added that she was surprised that a non profit organisation could afford such representation. "They have threatened that they will vigorously pursue costs. The costs order case is going to be rushed through as well, in less than a week for this Wednesday", she concluded.

This rally is intended to become a bi-annual event until 2027.

Not a good look for the Fédération internationale de l'automobile

These political and environmental impacts must also be doing great harm to La Fédération Internationale de l'automobile and the road safety and green reputation it promotes on its pages:

"Formula for the Environment: As the governing body of motor sport and the representative of more than 100 million consumers worldwide, the FIA has been actively putting the environment on the top of its dual agendas. Formula for the environment outlines the FIA’s environmental efforts, from proposals for global emission benchmarks by policy makers to forward thinking environmentally relevant initiatives in motor sport such as the introduction of energy recovery systems in Formula One, highlighting what the FIA is doing to reduce the impact of motoring on the environment." Source: http://www.fia.com/en-GB/mobility/policy/Pages/FIAPolicyCentre.aspx

Residents of the community are reportedly devastated.

One has written to candobetter: I am so sad!! Today I drove on most of the rally routes and saw so many beautiful animals, right by the road. Many kangaroos mostly, wedgetail eagles, low-flying little birds, lots of snakes, very sad looking cows and sheep and horses all looking at me as if to say 'please save me, take me away from here' .... the grief is so deep inside me right now....I am utterly inconsolable."

The making of a new law to disempower environmental laws and local government powers in order to hold the rally means that democracy has been extinguished in Tweed Shire. Environmental damage and loss of democracy always seem to go together. This is surely a matter which should concern judges all over the land.

How to make donations to court costs

Something just as bad could easily happen to a place you love, now that it has happened in Tweed Shire. Downsizing democracy is a pernicious trend in Australia. Australians need to fight these trends as hard as they can and prevent communities from being destroyed by financial costs. Perhaps there will be an appeal. People can make donations towards the $40,000 court costs. It has been suggested that if 200 people can donate $200 each the shire will be able to pay.

Bank details are:
No Rally Group
BSB 062 580
A/C 10275161
Commonwealth Bank

See also: Repco Rally route - the calm before the storm of 26 Aug 09, URGENT! Contact Peter Garrett re Injunction to stop Repco Rally of 29 Aug 09.

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Comments

Regrettably, a noble cause has flopped due to lack of legal representation able to concisely present the argument in the manner required by the Court. The NSW Environmental Defenders Office, one would assume could have been capable of meeting this requirement.

One possible option now is to appeal on a point of law. Grounds of appeal must argue that the original Judge that heard the case made an error of law.
According the the Federal Court website, appeals from final judgments must be made within 21 days of the decision, completing and submitting a Form 55 by the appellant. Provided the Court rules are in relation to documentation necessary for an 'appeal book', a hearing may be granted in whch the appellant will have an opportunity to argue his/her case.

Without legal representation with special expertise in such matters in the Federal Court, the risk of wasting time and money again remains. Regrettably, the law serves the rich, who can afford representation to satisfy court rules.

Another option is to disrupt the race.

When entering the home of another person or people, we enter with silence and respect. This should be the same for a national park. Would these petrol-heads like to have a highway built through their homes and have to clean up the mess after? I don't think so! Let them put the race in their own backyards.

Australian Government cultural portal: National parks are usually large areas of land that are protected because they have unspoilt landscapes and a diverse number of native plants and animals. This means that commercial activities such as farming are prohibited and human activity is strictly monitored. Like zoos, national parks have several purposes. The foremost of these is to protect native flora and fauna. But national parks are also there so Australians and foreign visitors can enjoy and learn about our unique environment, heritage and culture.

This is the heart of Australia’s Green Cauldron, nominated by Tourism Australia as a ‘National Landscape’ and a must-see destination for travellers who want to get off the beaten tourist track to discover the real Australia.

Which part of these aims are compatible with motor racing, the World Rally? Of course, tourist income, jobs and entertainment values can over-ride any policies according to the NSW government! It is pure idiocy and rampant commercialism at its worst! Even the Shooters Party is considered a valid political party!

With the forces of globalisation and massive corporations like Repco, the people of Australia, and even Federal government policies, are easily dismissed. These powerful businesses lure the crowds with entertainment, profits, jobs, convenience and products, but justice for environmental and wildlife issues is the cost.

As populations grow, each person has less say and influence in any debate. With corrupt governments such as that of NSW, it is just the formula for destruction and manipulation. Surely this Repco rally is an excellent argument for the abandoning of State governments? They are irrelevant, expensive and open to corruption. The Brumby government is also an excellent example of wastage of public money and resources, and corporate powers.

We should have a democratic Federal government with local representatives. Why not form some blockades during the races? The people need to take power!