Australian Conservation Foundation Incorporated v Minister for the Environment

Case [2021] FCA 550

FEDERAL COURT OF AUSTRALIA

Australian Conservation Foundation Incorporated v Minister for the Environment [2021] FCA 550  

File number(s): NSD 293 of 2020
Judgment of: PERRY J
Date of judgment: 25 May 2021
Catchwords: ADMINISTRATIVE LAW – statutory construction – application for judicial review – where proposed action for construction of and operation of infrastructure to harvest and supply water to a coal mine by a different but related company – where proposed action intended to provide an alternative source of water from that approved in the initial proposal for the construction and operation of the coal mine – where the delegate of the Minister for the Environment decided under s 75(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) that ss 24D and 24E (the water trigger controlling provisions) were not controlling provisions for the proposed action (the controlled action decision) – whether the delegate erred in construing the phrase involves large coal mining development in ss 24D and 24E and definition of “large coal mining development” in s 528 as encompassing only an activity which forms part of the process of extracting coal from a mine – where so-called definition enacts substantive criteria – whether delegate’s construction supported by the penal nature of the controlling provisions – where contrary to the delegate’s construction an action will involve a large coal mining development if the action is so closely associated with the mining of coal as to be integral to it – application for judicial review granted – controlled action decision to be remitted to the Minister for determination according to law
Legislation:

Acts Interpretation Act 1901 (Cth) ss 13(1), 15AA, 15AB

Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 3, 7, 18, 18A, 24D, 24E, 69–73, 74, 74A, 75, 76, 87, 133, 143, 170A, 304–306, 391, 505C, 527E, 528, Pt 3, Div 1, Pt 19, Div 2B

Environment Protection and Biodiversity Conservation Amendment (Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development) Act 2012 (Cth)

Environment Protection and Biodiversity Conservation Amendment Act 2013 (Cth)

Environment Protection and Biodiversity Conservation Regulations 2000 (Cth)

Water Act 2007 (Cth) s 4(1)

Interpretation Act 1987 (NSW) s 33

Water Act 2000 (Qld)

Commonwealth, Parliamentary Debates, House of Representatives, 13 March 2013 (Tony Burke)
Cases cited:

Aubrey v The Queen [2017] HCA 18

Beckwith v The Queen (1976) 135 CLR 569

Booth v Bosworth [2001] FCA 1453; (2001) 114 FCR 39

Construction, Forestry, Maritime, Mining and Energy Union v Australia Building and Construction Commissioner [2020] FCAFC 192; (2020) 384 ALR 668

Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129

Federal Commissioner of Taxation v Broken Hill Pty Co Ltd (1969) 120 CLR 240

Federal Commissioner of Taxation v Broken Hill Pty Co Ltd (1969) 120 CLR 268

Friends ofLeadbeater’s Possum Inc v VicForests [2018] FCA 178; (2018) 260 FCR 1

Kelly v The Queen [2004] HCA…

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AGLC
Australian Conservation Foundation Incorporated v Minister for the Environment [2021] FCA 550
Case
[2021] FCA 550
Decision Date

CaseChat Overview and Summary

The Australian Conservation Foundation (ACF) sought judicial review of a decision by the delegate of the Minister for the Environment not to apply sections 24D and 24E of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) to a proposal by Adani Infrastructure to construct and operate infrastructure to harvest and supply water to a coal mine operated by a related company, Adani Mining. The crux of the dispute was whether the delegate was correct in his construction of the phrase “involves large coal mining development” in sections 24D and 24E and the definition of “large coal mining development” in section 528 of the EPBC Act. Specifically, the ACF contended that the delegate should have found that sections 24D and 24E were controlling provisions for the proposed action, on the basis that the project was a “large coal mining development” as defined in section 528 of the EPBC Act.

The court found that the delegate erred in his construction of the water trigger controlling provisions. The court held that a narrow approach should not be taken to the interpretation of the EPBC Act, which has a high public policy objective. The court also found that the potentially detrimental impact on water resources from large scale coal mining and coal seam gas extraction is the subject of protection under the EPBC Act because it is regarded as a matter of national environmental significance. The court held that contrary to the delegate’s construction an action will involve a large coal mining development if the action is so closely associated with the mining of coal as to be integral to it. The application for judicial review was granted, and the controlled action decision was to be remitted to the Minister for determination according to law.

The court ordered that the application for judicial review was granted, the first and second respondents were to pay the applicant’s costs as agreed or assessed, and the parties were to endeavour to agree on the orders which otherwise give effect to these reasons. Final orders would be determined on the papers without a further oral hearing.

Orders

Orders of the court

1. The application for judicial review is granted.

2. The first and second respondents are to pay the applicant’s costs as agreed or assessed.

3. In the absence of agreement as to the orders otherwise required to give effect to these reasons:

(a) on or before 4:00pm on Tuesday, 1 June 2021, the parties are to file and serve an outline of written submissions not exceeding 3 pages in length in support of their respective proposed orders; and

(b) final orders will be determined on the papers without a further oral hearing.

THE COURT NOTES THAT:

4. The parties are to endeavour in the first instance to agree orders which otherwise give effect to these reasons.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The importance of this is that a significant impact upon any of these aspects of the water resource, including organisms, other water systems, and ecosystems, will engage the prohibition. It is not simply a question of the volume of water being extracted and its potential impact on water supplies. 4. BACKGROUND4.1 The approval for the Carmichael Coal Project The original referral for the Carmichael Coal Project was made by Adani Mining under the EPBC Act before the enactment of ss 24D and 24E. However, it appeared to be common ground that, by force of the transitional provisions to the 2013 Amending Act, the construction and operation of infrastructure for the sourcing of water for the mine, which comprised part of the Carmichael Coal Project, were required to be assessed under ss 24D and 24E. The approval for the Carmichael Coal Project itself was not in evidence.However, it was not disputed, as Mr Lloyd SC explained for Adani Infrastructure, that:… the entirety of the coalmining activity did get to be assessed. Now, that was, I accept, a different proposal. That was a proposal to take, I think, 12.5 gigalitres of water out of the Belyando River. And that was approved. So that was analysed, there was the subject of – that committee’s inquiry. It was – they had – I think my friend said, they had some concerns, but nonetheless it was approved. So that has already been analysed and already been approved. What this particular project does, as my friend indicated, the Belyando River runs into the Suttor River, and so this proposal is to take the water a little bit further down the river system. So instead of taking it out of the Belyando, it takes out of the Suttor after the Suttor and the Belyando have merged.(T6/10/20 at p. 39.7–16.)4.2 State government approvals and the referral for the NGWS Project It will be recalled that an earlier controlled action decision made on 17 September 2018 (EPBC reference no. 2018/8191) with respect to the NGWS Project was set aside on 12 June 2019 by consent orders in earlier proceedings. In the interim, on 29 May 2019 the Queensland Department of Natural Resources, Mines and Energy issued a water licence under the Water Act 2000 (Qld) to Adani Infrastructure for the taking of water from the Suttor River and the transfer of water to off-stream storage via the Belyando River anabranch. The water licence conditions included:(1)authorisation to supply water for the Carmichael Coal Project;(2)a maximum volume extraction limit of 12.5 GL from the Suttor River during a water year (ie a 12 month period);(3)a mean annual volume extraction limit assigned from the strategic reserve as provided in the Water Plan (Burdekin Basin) 2007 (Qld) of 10.8 GL from the Suttor River; (4)permission to take water from the Suttor River only when flow exceeds 2,592 ML/day; and(5)a daily volume extraction limit of 830 ML.(Referral Decision Brief, CB 318.) Subsequently, a valid referral (the Referral) from CDM Smith Australia Pty Ltd on behalf of Adani Infrastructure (the proponent) in respect of the NGWS Project (EPBC reference no. 2019/8508) was received by the Department on 16 September 2019 (controlled action reasons at [2]). In the Referral, Adani Infrastructure stated that it believed that the proposal was not a controlled action for the purposes of the EPBC Act (Referral at [5.2], CB 376–377). The Referral was for an action (the Action) which was substantially similar to that proposed by Adani Infrastructure under the earlier referral decided in September 2018 (Slattery affidavit at [15]).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

At the same time, the delegate decided pursuant to s 87(1) of the EPBC Act that the approach to be used for the assessment of impacts was assessment on preliminary documentation under Part 8, Div 4 of the EPBC Act (the assessment approach decision). These decisions were made by the Minister’s delegate on remittal after an earlier controlled action decision made pursuant to s 75(1) of the EPBC Act on 17 September 2018 (EPBC reference no. 2018/8191) with respect to the NGWS Project was set aside on 12 June 2019 by consent orders in earlier proceedings in this Court (proceeding no. NSD 2268 of 2018). Those consent orders were expressly made on the basis that there had been a material failure by the Minister’s delegate to consider some of the public comments received in respect of the proposed action when considering whether the proposed action was a controlled action under s 75(1) of the EPBC Act. The NGWS Project will involve the construction and operation of infrastructure to harvest and store up to 12.5 gigalitres (GL) of water from the Suttor River in order to provide “a secure and reliable water supply” to the Carmichael Coal Mine and Rail Project (the Carmichael Coal Project). In this regard, it was not in issue that Adani Infrastructure is a separate but related company to Adani Mining Pty Ltd (Adani Mining) which was the proponent for the Carmichael Coal Project approved in a separate earlier decision (the Carmichael Coal Project approval). It is intended that Adani Mining will operate the coal mine. Nor was it in issue that the Carmichael Coal Project approval included approval for water to be supplied from the Belyando River flood harvesting structure put forward by Adani Mining in its proposal although the terms and conditions of that approval were not in evidence. The NGWS Project is intended to provide an alternative water source for the Carmichael Coal Project and required, as the parties agreed, a separate referral under the EPBC Act. As I explain further below, a “controlled action” is an action which is prohibited by the EPBC Act save relevantly where an approval for the taking of the action by the person is in operation under Part 9 of the Act or there is a decision of the Minister in force under Div 2 of Part 7 that the statutory prohibition “is not a controlling provision for the action”. Division 1 of Part 3 of the EPBC Act contains the “controlling provisions” with respect to specified matters of national environmental significance. These include prohibitions under ss 18 and 18A on an action which is likely to have a significant impact on listed threatened species or listed threatened ecological communities, which the Minister found were engaged here. They also include prohibitions under ss 24D and 24E on an action involving coal seam gas development or large coal mining development which is likely to have a significant impact on a water resource (the so-called “water trigger” controlling provisions). ACF contends that the delegate should have found that ss 24D and 24E of the EPBC Act were also controlling provisions for the NGWS Project on the basis that the project is a “large coal mining development” as defined in s 528 of the EPBC Act. Specifically, by the second further amended originating application filed on 14 October 2020, ACF contends that the delegate erred in construing the phrase “coal mining activity” in the statutory definition and the phrase “involves [or involving] large coal mining development” in ss 24D and 24E of the Act as encompassing only “an activity which forms part of the process of extracting coal from a mine”. In written submissions filed in advance of the hearing, ACF contended that those phrases encompass the “construction and operation of infrastructure that will supply an input (i.e. water) to a mining operation”. The construction advanced by ACF in its oral submissions was more nuanced in nature and accords in my view with the correct construction of the provisions, as I shortly explain.

Ratio Decidendi

Legal Principle Established

For the following reasons, ACF correctly contends that the delegate erred in his construction of the water trigger controlling provisions. 6.1 Textual and contextual considerations First, it is clear that no narrow approach should be taken to the interpretation of legislation having the high public policy apparent in the objects of the Act, as Kiefel J said in Queensland Conservation Council (FCA) at [40]. That said, I accept that the task is “not [to] simply construe everything as broadly as conceivably possible because the Act is broadly about protecting things” (as Mr Lloyd SC submitted for Adani Infrastructure at T6/10/20 at p. 42.34–45; see also the Minister’s submissions in chief at [34]). Rather, as Gageler J observed in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232:92. The principle that beneficial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively. Application of that more general principle to New South Wales legislation is mandated by the requirement of s 33 of the Interpretation Act 1987 (NSW) that a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not. Neither in its general application nor in its particular manifestation can that principle be applied other than on the understanding that legislation “rarely pursues a single purpose at all costs” and that “[u]ltimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling”.(Citations omitted.)(I note that s 33 of the Interpretation Act 1987 (NSW) to which Gageler J refers is in substantially similar terms to s 15AA of the Acts Interpretation Act.) Secondly, the potentially detrimental impact on water resources (as defined under the Water Act) from large scale coal mining and coal seam gas extraction is the subject of protection under the EPBC Act because it is regarded as a matter of national environmental significance. This is apparent from the location of ss 24D and 24E in Division 1 of Part 3 which is headed “Requirements relating to matters of national environmental significance” (bearing in mind that the heading comprises part of the Act by reason of s 13(1) of the Acts Interpretation Act). This is also apparent from the objects of the EPBC Act in s 3(1)(a) and the focus of ss 24D and 24E upon “significant impact”. Thus the environmental assessment and approval process applying to the subject matter of ss 24D and 24E is no less rigorous than that afforded to any other protected subject matter in Part 3 of the EPBC Act, including the requirement to take into account the precautionary principle in deciding whether an action is a controlled action (s 391, EPBC Act; see also ss 3(1) and (2)). Indeed, in the case of ss 24D and 24E, the assessment and approval processes are more rigorous insofar as the advice of the independent Expert Committee on coal seam gas and large coal mining developments must be sought and taken into account.