Posted on July 30, 2013 by Frances Tse

Federal Court decision to benefit Tasmanian devils

The Federal Court in Tarkine National Coalition Incorporated v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCA 694 has upheld a challenge to the validity of the Commonwealth Minister’s approval of an iron ore mine near Nelson Bay River in north west Tasmania under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).

The decision is good news for Tasmanian devils for the time being, as the proposed mine would have involved damage to the threatened species’ habitat.

Legislative framework

Under the EPBC Act, a person must not take an action that has or will have or is likely to have a significant impact on a listed threatened species included in the endangered category (controlled action) unless (amongst other things) an approval for the taking of that action is in operation under Part 9 of the Act (see ss18, 19 and 67A).

A person who proposes to take an action that the person thinks may be a controlled action must refer the proposal to the Minister for the Minister’s decision whether or not it is such an action (s68).  If the Minister decides that it is a controlled action, he must decide on the approach to be used for assessment of the relevant impacts of that action (s87(1)).

After receiving the relevant assessment documentation relating to a controlled action, the Minister may approve the taking of the action (s133(1)).

Facts

Shree Minerals Limited proposed to develop and operate an iron ore mine in north west Tasmania. In accordance with the EPBC Act, it referred the proposed action to the then Commonwealth Minister  for Sustainability, Environment, Water, Population and Communities (Minister) who decided that the action was a controlled action and that the approach to be used for assessment was by way of an environmental impact statement under Division 6 of Part 8 of the EPBC Act.

The EIS process then occurred which included various briefings being provided to the Minister and public consultation. On 18 December 2012, the Minister approved the mine under s133(1) of the EPBC Act.

Under the Administrative Decisions (Judicial Review) Act 1977 (Cth), a person aggrieved by particular decisions of an administrative character, including a decision by the Minister under s133(1) of the EPBC Act, may apply to the Federal Court to have the decision reviewed. Tarkine National Coalition Incorporated (TNC) is an association incorporated in Tasmania which had engaged in a series of activities in Tasmania for the protection or conservation of the environment. As such, it fell within the meaning of ‘person aggrieved’ in s487(3) of the EPBC Act and had standing to bring these proceedings.

Grounds of challenge

TNC relied on several grounds of review only one of which was successful. The successful ground was that the Minister failed to have regard to a mandatory consideration listed in s139(2) of the EPBC Act, when determining to approve the mine.

That section provides (my emphasis),

(2)  If:

(a)  the Minister is considering whether to approve, for the purposes of a subsection of section 18 or section 18A, the taking of an action; and

(b)  the action has or will have, or is likely to have, a significant impact on a particular listed threatened species or a particular listed threatened ecological community;

the Minister must, in deciding whether to so approve the taking of the action, have regard to any approved conservation advice for the species or community.

Consideration of approved conservation advice

An ‘approved conservation advice’ is a statement approved by the Minister that sets out the grounds on which a species is eligible to be categorised as threatened, the factors that are the cause of it being eligible to be categorised as such and either information about what could appropriately be done to stop the decline of, or support the recovery of, the specifies, or a statement to the effect that there is nothing that could appropriately be done to stop the decline of, or support the recovery of, the species.

The Minister is obliged to ensure that there is an approved conservation advice for each listed threatened species and there was indeed such an advice for the Tasmanian devil that was approved on 19 May 2009.

The Court found that the approved conservation advice was not contained in the various briefs that were provided to the Minister, and was not provided to the Minister at all for the purposes of making his decision on whether to approve the development of the mine.

In fact, reference to the approved conservation advice was only found in two places in the Minister’s statement of reasons for his decision. The first mention of the advice was to the effect that in deciding whether or not to approve the taking of the proposed action,  he had taken into account ‘any relevant conservation advice’ as required under the EPBC Act.

The second mention of the advice was in similarly general terms where the Minister stated that likely impacts have been considered in light of conservation advices where relevant.

Not surprisingly, TNC submitted that the Minister did no more than pay lip service to the obligation under 139(2) of the EPBC Act and because the Minister did not have the approved conservation advice before him, he could not have had regard to it when making his decision.

Court’s decision

The Court held that the words ‘have regard to’ can have different meanings in different contexts, although generally the weight to be given to the factor is a matter for the decision maker. The Court found that the Minister was obliged to give genuine consideration to the document. It was not enough that most of the material provided to the Minister overlapped with the information that was in the approved conservation advice. The actual approved conservation advice itself needed to be considered.

The Court considered the principles in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335 regarding when a breach of a statutory requirement for the making of a decision is intended to invalidate  the decision. The Court accepted that the test is to determine whether the purpose of the legislation is to invalidate the act done in breach of the statutory requirement. In order to determine the intention of the legislature in that regard, it may not be enough to look at the language of the relevant statutory provisions (even if it is couched in imperative language), and it may also be necessary to look at the scope and object of the Act.

The Court found that the requirement to have regard to any approved conservation advice relevant to a threatened species before approving action which may have impact on that species was a pivotal element of the system of protection under the EPBC Act based on the following:

• the EPBC Act specifically provided that a breach of some other preconditions to the granting of an approval would not lead to invalidity, but consideration of an approved conservation advice was not one of them,
• the approved conservation advice is given an important status in the EPBC Act as it must be approved by the Minister after advice from a scientific committee,
• section 139(2) is couched in mandatory language, it provides that the Minister must have regard to the approved conservation advice,
• one of the objects of the Act is to provide for the protection of the environment and that is achieved by, among other things, adopting environmental assessment and approval processes that will ensure activities that are likely to have significant impacts on the environment are properly assessed,
• the framework of the EPBC Act which requires that each category of threatened species is protected from actions which may significantly impact on it, imposes significant consequences on taking an action that may have significant impact on threatened species without an approval (including civil penalties and offences) and includes a complex statutory process for obtaining an approval, demonstrates the importance of protection of threatened species in the EPBC Act.

As a result, the Court held that the Minister’s failure to consider the approved conservation advice was fatal to the validity of his decision.

The Court’s decision to invalidate the Minister’s approval is a win for Tasmanian devils in the area for the time being.

However, there is nothing to prevent the mining company from seeking a new approval for the mine. It may be that, given the overlapping of the material the Minister did consider with the content of the approved conservation advice, the Minister would come to the same conclusions, and approve the mine, if making his decision in accordance with the legislation, and giving proper consideration to the approved conservation advice.