Posted on September 16, 2015 by Anna Sinclair
Considering cumulative environmental impacts – Tasmanian Devils and mining
Vulture Mineral Ltd’s controversial iron ore mine in the Tarkine region of north-western Tasmania has been given the go-ahead by the Full Federal Court of Australia. The Court’s decision in Tarkine National Coalition v Minister for the Environment  FCAFC 89 confirms that the Commonwealth Environment Minister (Minister) is not required to consider the “cumulative impacts” of proposals… approved under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The Minister is only required to consider “relevant impacts” of an action.
This decision is of relevance to any proposal, such as a mine or property development, that must be approved under the EPBC Act in addition to an approval under a local environmental plan or State environmental impact assessment process. A proposal must be approved under the EPBC Act if it has, or is likely to have, a significant impact on a matter of national environmental significance (e.g. a listed threatened species and ecological community, migratory species or Ramsar wetland).
This decision also makes it clear that the Minister does not need to reach a level of perfection in considering and assessing “relevant impacts” of an action.
In July 2012, Venture Mineral Ltd (Vulture Minerals) proposed Riley Creek iron ore mine located in the Tarkine region was declared a “controlled action” under the EPBC Act, because it was likely to have a significant impact on matters of national environmental significance, including the Tasmanian devils and their habitat. The Tarkine region is said to be of high environmental significance as it is one of the world’s largest temperate rainforests, and home to a population of healthy Tasmanian devils.
The proposed mine was assessed pursuant to the bilateral agreement between the Commonwealth and Tasmania, which required assessment under the accredited Tasmanian process, and then final approval from the Minister under s133 of the EPBC Act.
In May 2013, the proposal was approved by the relevant local council, subject to conditions recommended by the Tasmanian EPA Board (Board). In July 2014, the Minister approved the proposal, subject to conditions. In August 2014, Tarkine National Coalition (now Save the Tarkine) (TNC), appealed the Minister’s approval to the Federal Court of Australia, on four grounds, including that the Minister failed to take into account the cumulative impact of relevant projects or actions in the area, the impact of which might accumulate with Venture Mineral’s proposed mine. This appeal was dismissed.
Appeal to the Full Federal Court – Requirement to Consider “Cumulative Impacts”
TNC subsequently appealed this decision to the Full Federal Court, including on the ground that the primary Judge wrongly determined that the EPBC Act did not require the Minister, in deciding whether to give his approval under s133 of the EPBC Act, to consider the “cumulative impacts” of the action.
At the heart of TNC’s contention was a perceived failure of the Minister to properly consider the impacts of this proposed mine cumulated with the impacts of neighbouring mines and forestry operations on the local Tasmanian devil population and its habitat.
After a thorough analysis of the statutory framework which governed the Minister’s decision, the Court stated that it was “a detailed and prescriptive one” with “little, if any, room… for implication” (at ).
The Court found that under s136 of the EPBC Act, which set out the Minister’s ‘mandatory considerations’ and ‘factors to be taken into account’ before making a decision, the Minister was under no express or implied obligation to take account of the consequences of any other action, present or anticipated. Rather, under s 136(2)(e) the Minister is required to consider the “relevant impacts” of the action.
This term is defined under the EPBC Act to include the actual or likely direct, or indirect consequences of the action. Any indirect consequences must be substantially caused by the action. This may include the impacts of a secondary action.
The Court did not consider that the requirement of the Minister to take into account the ‘principles of ecologically sustainable development’ or ‘economic and social matters’ under s 136(1)(a) and (b) as a source of any obligation to consider “cumulative impacts”.
Whether the Minister was required to consider impacts of neighbouring mines
In the alternative, TNC argued that the Minister had in fact considered the “cumulative impacts” of the proposal, but that was deficient as he failed to consider all of the relevant cumulative impacts.
Under the state assessment process Venture Mineral’s had in its environmental impact assessment considered the cumulative impacts of its proposal with two existing mines located 5km and 10km away, forestry operations in the area, as well as 3 of its own proposed mines. The Board reviewed this assessment and prepared a report for the Minister. The Board did not refer to the cumulative impacts of the two existing mines in its report.
In his statement of reasons for granting the approval the Minister considered the “cumulative impacts” of the 3 proposed mines and forestry operations, but also did not mention the two existing mines.
TNC submitted that the Minister was presumably either actually or constructively aware of these mines, but because he did not consider these projects he had not complied with the “implicit statutory injunction to consider cumulative impacts” (at ).
The Court again turned to the express words of s136, particularly subsection (2)(e) of the EPBC Act and found that it was a question for the Minister whether these projects were “relevant impacts” which needed to be considered under the EPBC Act. Only if the Minister considered the existing mines to be “relevant impacts” would he be required to take account of their cumulative impacts.
The Court did not consider that the Minister’s failure to mention these existing projects in his statement of reasons led to a reviewable error.
In the previous decisions the Federal Court has been prepared to apply a broad reading to the provisions of the EPBC Act. This decision illustrates that the Court will not go as far as reading into the EPBC Act that the Minister is required to consider “cumulative impacts”. TNC described this as a deficiency in national environmental laws. Following this case, it is a “deficiency” that will need to be corrected through legislative change.
This decision also makes it clear that the Minister does not need to reach a level of perfection in considering and assessing “relevant impacts” of an action, and a failure of the Minister to take into account a “relevant impact” may not give rise to a reviewable error. This is particularly the case where enough information has been given to make an informed decision and there is evidence that the decision maker turned its mind to such impacts.