An epic two-year court case, focused on the fate of obscure underground creatures in remote Western Australia, has turned our comfortable notion of environmental protection on its head, proving that Australia’s environment laws are powerless to prevent extinction.

TOP: CCWA and EDOWA staff with three members of the Tjiwarl Native Title Group, Shirley and Elizabeth Wonyabong and Vicki Abdullah

BOTTOM: Endemic Yeelirrie stygofauna under threat of extinction 

Very few human activities have no impact at all on the environment. From purchasing your morning coffee, to planning a 9-kilometre long open-pit uranium mine on sacred Aboriginal lands, everything we do has consequences. 

The way we consider those consequences is important. The coffee purchase might take a second or two to contemplate - is it worth the guilt of knowing the single use cup will remain in landfill for thousands of years? In contrast, major developments like the uranium mine require extensive environmental studies, often taking years to complete.

Such decisions inevitably require a balancing of environmental issues with other considerations. Protection of wildlife and cultural heritage, and preservation of the clean air, water, and nature we depend upon are clearly in the public interest. Other considerations relate directly to private benefit or profit. Because of this need to weigh competing private and public interests, such decisions are undertaken by governments and involve complex moral, and political judgements informed by scientific evidence.

Some decades ago, environment laws were passed in most countries around the world to guide governments in making such decisions. In a developed country like Australia, it is reasonable to assume that these laws provide a 'line in the sand' to prevent the very worst forms of damage to our environment. 

Wildlife extinction is the most profound and permanent form of environmental damage and the most extreme example of animal cruelty. From extinction there is no restoration, no recovery, no hope. Extinction is the permanent snuffing out of millions of years of evolutionary heritage. It is the denial of existence, not just to an individual, but to a whole species.

The Yeelirrie case in Western Australia’s Supreme Court has overturned the comfortable notion that Australia’s environment laws can prevent this most permanent form of environmental impact. The fateful decision of the court follows a challenge against the government approval for the Yeelirrie uranium mine by the Conservation Council of WA and three Tjiwarl Traditional Owners, represented by the Environmental Defenders Office WA. For the Tjiwarl country women, it is the latest chapter in their ongoing fight to protect sacred country from uranium mining, a fight which has so far lasted four decades and has already seen off at least two mining companies including BHP.

The details of the Yeelirrie mine proposal are important, but it is the legal decision to uphold its approval that has profound implications for Australia’s environment laws and for the fate of all wildlife across the country. 

The latest proposal to mine Yeelirrie by Canadian company Cameco involves a 9km open pit in sacred Tjiwarl Aboriginal lands, part of the Seven Sisters songline that has been connecting remote parts of WA for hundreds of generations. 36 million tonnes of mine waste are to be dumped into the open pits, and would remain radioactive for thousands of years. The project would require clearing nearly 2,500 hectares of native vegetation, and would use 8.7 million litres of water per day for the life of the mine. 

These are the kinds of impacts that routinely occur with mining operations in Western Australia – albeit not often on this scale. However, it is what lies beneath the ground that has made Yeelirrie different, and has given rise to a two year court battle to see the approval decision overturned.  

Following a public assessment process, the WA Environmental Protection Authority (EPA) concluded that the mining operation would cause the extinction of several species of underground fauna and loss of a unique saltbush. It was on this basis that the EPA recommended against the proposal, noting that extinction of any species, no matter how obscure, went against key principles in the WA Environmental Protection Act - the principles of intergenerational equity, conservation of biological diversity, and the precautionary principle. 

Despite this finding, Western Australia's previous Environment Minister Albert Jacob went ahead and signed an environmental approval for the mine to proceed. Exactly what factors or evidence the Minister took into consideration in making this decision are unknown, because the laws do not require the Minister to disclose them. 

Albert Jacob was an unusual choice for Environment Minister. Famously, Jacob used his role to champion explicit new legal powers for Ministers to approve wildlife extinction, dubbed the “God clause” by scientists at the time. The label was fitting, because as a senior member of an evangelical church, Jacob made no secret of his faith. A central element of this faith is the belief that this world is temporary and it would follow that the features of this world may be considered somewhat expendable.

This context is important, because it is precisely this kind of situation that our laws are supposed to guard against. Laws are passed by parliaments to provide guide rails for governments - no matter who might be elected, what corporate or private influence is brought to bear, or the personal belief system of a particular Minister. 

Perhaps the most basic guard rail that should be provided by environmental law is the prevention of actions that would directly and knowingly cause extinction. Australia’s environment laws were fought for by communities, scientists, and conservationists decades ago. While many concessions were made along the way and in changes since, this fundamental principle of preventing extinction was thought to be preserved.

The Conservation Council was determined to challenge the Yeelirie decision, not just because the project itself is so flawed, but the precedent this decision sets is so important. Even if the obscure underground wildlife beneath Yeelirrie are unseen and unheard by to most Australians, approving the extinction of any species opens a dangerous legal door to Government decisions that would allow the extinction of any species.

Suddenly the growing list of endangered wildlife in Australia looks a lot more vulnerable than ever because the laws we thought protected them are powerless to prevent their extinction.

Clearly, our environmental laws are in need of urgent repair.