Is this a good place for a Safe Highway ?
Our long awaited Supreme court case challenging the validity of the initial EES (Environmental Effects Statement) upon which the initial route selection was based is set for March 18th.
If you want to come along and support us, be at the Supreme court by 9.30. Our case will be listed as Mackenzie & Ors v Roads Corporation & Anors. We expect it to run for only 2 days, although it is scheduled for 5 days, Mar 18 - 24.
Our group, KORS, wants a review of route selection that the public can contribute to, not a secret one. We have just requested a meeting with the Premier, a week ago. A Gov’t can avoid the stress and financial expense of the court case if it wants to. No response yet.
Our lawyer, Michael Kennedy also requested a meeting with the Minister for Road Infrastructure, Jacinta Allan, about the contract and payment discrepancies and the benefits of an independent review. She refused to see our him.
Also, in the last week we have become aware the Victorian Ombudsman has commenced an investigation into the planning and delivery of the Western Highway duplication project, with particular regard to concerns raised about the protection of sacred Aboriginal sites.
Our group, KORS, wants the process of route selection to be publicly reviewed.
Following are where the current legal developments are up to..a lot of decisions pending..some of which could change the course of the Highway.
1. KORS Inc’s Supreme Court case. A David-and-Goliath Supreme Court case against Major Road Project Victoria and the Planning Minister challenges the validity of the 2012 Environmental Effects Statement, the official basis for Major Road Projects Victoria’s (MRPV’s) destructive planned route for widening the Western Highway. Scheduled for 18 March, delays for the 2016 case include the defendants claiming a 5- 7day slot is needed in the crowded Court schedule. A win against Government would achieve a review of the route.
2. Application for an emergency declaration. Meanwhile, DjapWurrung people applied on Tuesday 25 February under the Aboriginal and Torres Strait Islander Heritage Protection (ATSIHP) Act, to protect a large old tree (400 - 500 years old), culturally significant to them and threatened unnecessarily by MRPV which has announced its intention to fell the tree that is near their roadworks. Representatives of the Djabwurrung community have been denied access to the tree by MRPV.
3. Intended Breach of EPBC conditions. The tree is also within a “No Go Zone” established by the project’s Threatened Species Management Plan (TSMP), an environmental condition imposed on the project under the federal Environment Protection and Biodiversity Conservation (EPBC) Act. The intention to fell the tree has been reported to the Department of Agriculture, Water and Environment (DAWE).
4. Will the Environment Minister revoke the EPBC approval? More broadly, a 9 January 2019 application to revoke the EPBC approval altogether challenges the project’s planned destruction of patches of Box-Gum Grassy Woodland, a critically endangered community overlooked in MRPV’s earlier approval documents. If the application is upheld, MRPV’s planned route will be unavailable unless a new set of environmental approval conditions is nominated by the Minister. The application is backed by two Expert Witness Statements.
5. Actual breach. MRPV has already cleared two areas of roadside trees in No Go Zones in its interim works area. One of the No Go Zones protects a federally-listed vegetation community, the Grassy Eucalypt Woodland where the old tree is. KORS believes both clearings are breaches of EPBC approval conditions and that DAWE is investigating.
A MRPV employee’s recent affidavit about activity on an interim works area appears to confirm this breach, stating that an “additional” 79 trees have been destroyed. The Tree Goanna, Powerful Owl, Brush Tailed Phascogale and Squirrel Glider are recorded as living within 10 km of the works area and may be impacted by the tree removal.
6. Will the Federal Environment Minister protect the land? A new decision about the June 2018 request from DjapWurrung people under the ATSIHP Act, to protect all the land where the highway would be built, is awaited from Environment Minister Ley. The Federal Court has quashed two successive decisions by the Environment Minister not to protect it. This potent application means that if the Minister protects the land, MRPV would need to find a new route. Under the glare of an imminent Federal Court decision last year, MRPV has held off works on the full length of works planned.
7. Agreement to facilitate Roadworks. In November 2019 it was revealed in the Federal Court that an agreement made between Eastern Maar Aboriginal Corporation (EMAC) and MRPV offered EMAC significant financial, commercial and political incentives by MRPV that resulted in EMAC approving MRPV Option 1 route through sacred Djapwurrung land. This agreement appears to undermine the whole purpose of the ATSIHP Act.
MRPV and the contractor, CPB, are refusing to provide our lawyer, Michael Kennedy, with the unredacted copy of the contract variations even though it has been asked to by the Court. Is there something they don’t want us to know?
And so you can see, there are many reasons for an independent review of the route.