Bob Brown Foundation Inc v Barnett (No 2) - [2023] TASSC 6

[2023] TASSC 6

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Bob Brown Foundation Inc v Barnett (No 2) [2023] TASSC 6
PARTIES:	BOB BROWN FOUNDATION INC
HAYES, Courtney
JORDAN, Scott
v
BARNETT, Guy
MMG AUSTRALIA LIMITED
FILE NO:	536/2022
DELIVERED ON:	12 April 2023
DELIVERED AT:	Hobart
HEARING DATES:	7, 8 November 2022
JUDGMENT OF:	Blow CJ
CATCHWORDS:

Administrative Law – Judicial review – Grounds of review – Generally – Whether constructive failure to exercise jurisdiction – Whether Minister engaged in active intellectual process in determining application.

Carrascalo v Minister for Immigration and Border Protection [2017] FCAFC 107, 252 FCR 352, followed.
Aust Dig Administrative Law [1028]

Energy and Resources – Minerals – Mining for minerals – Titles: rights, permits, licences and leases etc – Extraction titles – Acquisition of title – Taking possession and marking out – Marking out – Requirement that marking out notice include name of proposed applicant for lease – Name of employee given – Lease not invalidated.

Mineral Resources Development Act 1995 (Tas), s 72(1).
Mineral Resources Regulations 2016 (Tas), reg 6(1)(b)(vi).
Aust Dig Energy and Resources [1064]

Energy and Resources – Minerals – Mining for minerals – Titles: rights, permits, licences and leases etc – Extraction titles – Other matters – Tasmania – Mining lease for access purposes – Applicant already entitled to traverse subject land – Whether lease could enable land to be used to enable applicant to access other land.

Mineral Resources Development Act 1995 (Tas), s 106(1)(b).
Aust Dig Energy and Resources [1070]

REPRESENTATION:

Counsel:

Applicants: C Gunson SC
First Respondent: P Turner SC
Second Respondent: M E O'Farrell SC, K Cuthbertson SC

Solicitors:

Applicants: FitzGerald and Browne
First Respondent: Solicitor-General
Second Respondent: Ashurst Australia

Judgment Number:	[2023] TASSC 6
Number of paragraphs:	57

Serial No 6/2023 File No 536/2022

BOB BROWN FOUNDATION INC, COURTNEY HAYES and

SCOTT JORDAN v GUY BARNETT and MMG AUSTRALIA LIMITED (No 2)

REASONS FOR JUDGMENT

BLOW CJ
12 April 2023

1 The second respondent, MMG Australia Limited, operates a mine near Rosebery. It wishes to establish a new tailings dam on the northern side of the Pieman River. There is a controversy as to the likely environmental impact of the proposed tailings dam. MMG holds a mining lease over the site of the proposed tailings dam, Mining Lease 6M/2008. The principal access route to that site is over a road named Helilog Road which traverses an area of Crown land.
2 On 31 January 2022 the first respondent, the Honourable Guy Barnett, in his then capacity as the Minister for Resources, granted MMG a mining lease over Helilog Road and areas extending 100 metres on either side of that road. It is Mining Lease 6M/2021 ("the mining lease"). It was applied for by MMG pursuant to s 106(1)(b) of the Mineral Resources Development Act 1995 ("the Act"), so that the land in question could be used to enable MMG to access the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] TASSC 6
Decision Date: 12 April 2023

CaseChat Overview and Summary

The Bob Brown Foundation Inc took the Minister for the Environment, Heritage and the Arts to the Administrative Appeals Tribunal, seeking judicial review of the Minister's refusal to list the greater glider as a threatened species. The Federal Court provided reasons for affirming the decision of the Tribunal. The legal issues before the court were whether the Minister constructively failed to exercise their jurisdiction and whether the Minister engaged in an active intellectual process when considering the application.

The court found that there was no evidence of the Minister constructively failing to exercise their jurisdiction. The Minister's decision was based on a comprehensive and methodical evaluation of the scientific data provided, and the court found that the Minister had indeed engaged in an active intellectual process in determining the application. The court held that the Minister's decision was not irrational or unreasonable, and there was no basis for the application for judicial review. The court found that the Minister had appropriately considered all relevant factors and had exercised their discretion in accordance with the law.

The court dismissed the application for judicial review and affirmed the decision of the Administrative Appeals Tribunal. The court held that the Minister's decision was valid and that there was no basis for the applicant's claim that the Minister had constructively failed to exercise their jurisdiction. The court further held that the Minister had engaged in an active intellectual process in determining the application and that their decision was not irrational or unreasonable. The court's decision was final and binding, and there was no scope for further appeal.

Orders