Conservation Council of Western Australia (Inc) v The Hon Stephen Dawson MLC - [2018] WASC 34

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CONSERVATION COUNCIL OF WESTERN AUSTRALIA (INC) -v- THE HON STEPHEN DAWSON MLC [2018] WASC 34

CORAM: MARTIN CJ

HEARD: 16 NOVEMBER 2017

DELIVERED : 8 FEBRUARY 2018

FILE NO/S: CIV 2089 of 2017

BETWEEN: CONSERVATION COUNCIL OF WESTERN AUSTRALIA (INC)
First Applicant
SHIRLEY WONYABONG
ELIZABETH WONYABONG
VICKY ABDULLAH
Second Applicants
AND
THE HON STEPHEN DAWSON MLC
First Respondent
CAMECO AUSTRALIA PTY LTD
Second Respondent

Catchwords:

Environment and planning - Environmental impact assessment - Proposal to mine uranium ore

Whether statement of Minister pursuant to s 45 of Environmental Protection Act 1986 (WA) invalid - Whether statement 'otherwise than in accordance with' Minister's decision on appeal from EPA assessment report - Minister can only assess environmental factors relevant to proposal

Construction of conditions specified in statement of Minister - Whether conditions open-ended, ambulatory and uncertain and amount to unauthorised delegation to CEO

Legislation:

Environmental Protection Act 1986 (WA)

Result:

Proceedings dismissed

Category: B

Representation:

Counsel:

First Applicant              :     Dr J Schoombee & Mr D C Doherty
Second Applicants        :     Dr J Schoombee & Mr D C Doherty
First Respondent           :     Mr G Tannin SC & Ms C Taggart
Second Respondent       :     Mr C G Colvin SC & Mr B Wylynko

Solicitors:

First Applicant              :     Environmental Defender's Office (WA) Inc
Second Applicants        :     Environmental Defender's Office (WA) Inc
First Respondent           :     State Solicitor for Western Australia
Second Respondent       :     Clayton Utz

Case(s) referred to in judgment(s):

Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111; (2013) 196 LGERA 372.
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Coastal Waters Alliance of Western Australia Inc v Environmental Protection Authority; Ex parte Coastal Waters Alliance of Western Australia Inc (1996) 90 LGERA 136
Mison v Randwick Municipal Council (1991) 23 NSWLR 734
Re Minister for the Environment; Ex parte Elwood [2007] WASCA 137; (2007) 154 LGERA 366
SZTAL v Minister for Immigration & Border Protection [2017] HCA 34
Transport Action Group Against Motorways Inc v Roads & Traffic Authority [1999] NSWCA 196; (1999) 46 NSWLR 598
MARTIN CJ:

Summary

On 20 January 2017, the then Minister for the Environment, the Honourable Albert Jacob,[1] published a statement pursuant to s 45 of the Environmental Protection Act 1986 (WA) (the Act) to the effect that there had been an agreement under that section of the Act that a proposal by the second respondent, Cameco Australia Pty Ltd (Cameco) to mine uranium ore from the Yeelirrie deposit, approximately 70 km south-west of Wiluna, including the construction of associated mine infrastructure and/or processing facilities could be implemented subject to the conditions specified in the statement.
[1] The current Minister for the Environment is the first respondent to these proceedings.
The Conservation Council of Western Australia (Inc) (the first applicant) is a peak body representing 107 member groups which share the objective of promoting conservation of the natural environment, environmental protection and sustainability throughout Western Australia. Ms Shirley Wonyabong, Ms Elizabeth Wonyabong and Ms Vicky Abdullah (the second applicants) are Aboriginal people with native title rights and cultural custodial duties in relation to country which includes the land at Yeelirrie on which Cameco proposes to mine uranium ore. Each of the applicants has commenced proceedings challenging the validity of the statement published by the Minister on 20 January 2017, and seeks orders to the effect that the statement was unlawful and of no effect.
As both respondents concede that the second applicants have a sufficient particular interest in the subject matter of these proceedings, over and above the interest of the public generally, to give them standing to pursue these proceedings, it is unnecessary to determine whether the first applicant also has standing.
It is important to emphasise that although these proceedings arise from a proposal to mine uranium ore, they do not raise any issue relating to the general desirability or undesirability of that course, and give rise to no need or occasion for the court to form or express a view on that subject.
Rather, the applicants contend that the statement published by the Minister is invalid because:
(a)the statement is not 'in accordance with' his own earlier decision dismissing an appeal from a report presented to him by the Environmental Protection Authority (the EPA), in which it recommended against implementation of Cameco's proposal, with the consequence that the Minister's statement does not comply with s 45(6) of the Act; and
(b)the conditions specified in the statement to which implementation of the proposal is said to be subject are open‑ended, ambulatory and uncertain, and amount to an unauthorised delegation to the CEO of the Minister's Department.
The first issue turns upon the application of the relevant provisions of the Act, properly construed, to the relevant facts, being in particular the ambit of the appeal to the Minister, and the nature of the decision made by the Minister on the appeal. The second issue turns upon the proper construction and characterisation of the conditions specified in the Minister's statement, and the evaluation of the validity of those conditions having regard to the breadth of the power to impose conditions conferred by the Act upon the Minister.
For the reasons which follow, neither the Minister's statement nor the agreement which preceded that statement were 'otherwise than in accordance with' the Minister's decision on the appeal against the EPA's assessment report, and none of the conditions specified in the Minister's statement are invalid. It follows that the proceedings must be dismissed.

The Act

Because the outcome of each of the issues raised by these proceedings turns to a significant extent upon the proper construction and effect of the relevant provisions of the Act, it is desirable to commence with an overview of the structure of the Act and its general operation, providing the context for the proper construction of the particular provisions relevant to the resolution of the issues raised by the applicants.

The object of the Act

Section 4A of the Act provides that its object is to protect the environment of the State having regard to five enunciated principles. Three of those principles are relevant to what became a significant issue in the EPA's assessment of Cameco's proposal - namely, the possible impact of that proposal on subterranean fauna. The principles specified in s 4A relating to the conservation of biological diversity and ecological integrity and what are described as the 'precautionary principle' and the principle of intergenerational equity are particularly pertinent to that issue.

Inconsistent laws

Section 5 of the Act provides that the Act and a policy approved under the Act prevails over any inconsistent provision contained in, or ratified or approved by, any other written law.

The EPA

Part II of the Act continues the existence of the body known as the EPA and which was established under earlier legislation. The EPA consists of five members appointed by the Governor on the recommendation of the Minister on account of their interest in, and experience of, matters affecting the environment generally.[2]

Independence of the EPA

[2] The Act, s 7(2).

Neither the EPA nor its chair are subject to the direction of the Minister.[3]

The functions of the EPA

[3] The Act, s 8.

The functions of the EPA include the conduct of environmental impact assessments.[4]

Delegation

[4] The Act, s 16(a).

Sections 18, 19 and 20 of the Act empower the Minister, the EPA and the Chief Executive Officer of the Department (the CEO), respectively, to delegate any of their powers (other than the power of delegation).

Environmental impact assessment - pt IV of the Act

Part IV of the Act is concerned with environmental impact assessment. In that Part, the term 'significant proposal' is defined to mean a proposal likely, if implemented, to have a significant effect on the environment, and the term 'strategic proposal' is defined to mean a future proposal that will be a significant proposal or future proposals likely, if implemented in combination with each other, to have a significant effect on the environment.[5]
[5] The Act, s 37B.
Section 38 of the Act sets out various ways in which significant proposals, and other proposals, including strategic proposals, may be referred to the EPA. Included in those provisions is the imposition of an obligation upon any decision‑making authority[6] to refer to the EPA any proposal that appears to it to be a significant proposal.[7]
[6] The expression 'decision-making authority' is defined by s 3 of the Act to mean, in effect, a public authority empowered to make a decision in respect of any proposal and includes ministers other than the Minister responsible for the Act.
[7] The Act, s 38(5).
When a proposal has been referred to the EPA, the EPA must decide whether or not to assess the proposal.[8] Notice of the EPA's decision as to whether or not to assess the proposal must be given within 28 days of referral of the proposal to the EPA. Section 100(1) confers a right of appeal to the Minister relating to a decision of the EPA that a proposal is not to be assessed.
[8] The Act, s 39A.
The Act confers various powers upon the EPA for the purpose of undertaking an assessment of a proposal if it decides to do so or is required to do so as a consequence of an appeal to the Minister.[9]
[9] The Act, s 40 ‑ s 40B.
Section 41 and s 41A have the general effect of preventing the lawful implementation of any proposal which has been referred to the EPA until the processes relating to environmental assessment have been completed. Section 41 has the effect that a decision‑making authority is prevented from making any decision that could have the effect of allowing a proposal referred to the EPA to be implemented until it has been definitively determined that the proposal will not be environmentally assessed, or the assessment process has been completed and the Minister has given notice[10] allowing a decision that could have the effect of allowing the proposal to be implemented to be made. Where a proposal is to be assessed, s 41A of the Act prohibits any person from doing anything to implement the proposal before the assessment process is complete.
[10] Pursuant to s 45(7) of the Act.
Section 44 of the Act is of some significance to the issues in this case. It provides, relevantly:[11]
[11] The portions of the section omitted are not material to this case, and relate to the time at which a report must be provided to the Minister.
44.Report by Authority on assessment of proposal
(1)If the Authority assesses a proposal, it is to prepare a report on the outcome of its assessment of the proposal and give that report (the assessment report) to the Minister.
(2)The assessment report must set out -
(a)what the Authority considers to be the key environmental factors identified in the course of the assessment; and
(b)the Authority's recommendations as to whether or not the proposal may be implemented and, if it recommends that implementation be allowed, as to the conditions and procedures, if any, to which implementation should be subject.
(2a)The Authority may, if it thinks fit, include other information, advice and recommendations in the assessment report.
...
(3)The Minister shall, as soon as he is reasonably able to do so after receiving copies of the assessment report, simultaneously cause -
(a)that report to be published; and
(b)copies of that report to be given to -
(i)any other Minister appearing to him to be likely to be concerned in the outcome of the proposal to which that report relates; and
(ii)each decision‑making authority, if any, by which the proposal to which that report relates was referred to the Authority or which had been given notice under section 39A(3)(c) or (4) in relation to the proposal; and
(iii)if the proposal to which that report relates was referred to the Authority by the proponent or another person, to the proponent or the other person.
Section 45 lies at the heart of the first ground upon which the applicants rely. It provides:
45.Procedure for deciding if proposal may be implemented
(1)The Minister shall, after he has caused a report to be published under section 44(3) -
(a)if the decision‑making authority, or one or more of the decision‑making authorities, to which or whom a copy or copies of the report has or have been given under that section is or are another Minister or other Ministers, consult that Minister or those Ministers and, if possible, agree with him or them; or
(b)if neither the decision‑making authority, nor any of the decision‑making authorities, as the case requires, referred to in paragraph (a) is another Minister, consult that decision‑making authority or those decision‑making authorities and, if possible, agree with it or them,
on whether or not the proposal to which the report relates may be implemented and, if that proposal may be implemented, to what conditions and procedures, if any, that implementation should be subject.
(2)If the Minister and the other Minister or Ministers referred to in subsection (1)(a) cannot agree on any of the matters referred to in subsection (1), the Minister shall refer the matter or matters in dispute to the Governor for his decision, and the decision of the Governor on that matter or matters shall be final and without appeal.
(3)If the Minister and the decision‑making authority or decision‑making authorities referred to in subsection (1)(b) cannot agree on any of the matters referred to in subsection (1), the Minister shall appoint an appeals committee to consider and report to him on the matter or matters in dispute.
(4)Sections 106, 107, 108, 109 and 110 apply to and in relation to a matter in respect of which the Minister has appointed an appeals committee under subsection (3) as if that matter were the subject of an appeal from a decision of the Minister.
(5)If the implementation agreement or decision is that the proposal may be implemented, or may be implemented subject to implementation conditions, the Minister is to -
(a)cause copies of a statement setting out the implementation agreement or decision to be served on -
(i)the Authority; and
(ii)each decision‑making authority that was consulted under subsection (1); and
(iii)the proponent of the proposal; and
(iv)the person who referred the proposal (if it was not referred by a person referred to in subparagraph (ii) or (iii));
and
(b)cause the statement to be published as soon as is practicable after it is served under paragraph (a).
(6)Notwithstanding anything in this section, if an appeal is lodged under -
(a)section 100(1)(d) in respect of a report published under section 44(3), the proposal to which that report relates shall not be implemented and conditions and procedures shall not be agreed or decided under this section -
(i)while the appeal is pending; or
(ii)otherwise than in accordance with the decision made on the appeal;
or
(b)section 100(3) in respect of any conditions or procedures agreed or decided under this section, the proposal shall not be implemented -
(i)while the appeal is pending; or
(ii)subject to any conditions or procedures which are not in accordance with the decision made on the appeal.
(7)The Minister may, as soon as he is satisfied that there is no reason why a proposal in respect of which a statement has been published under subsection (5)(b) should not be implemented, cause to be served on the decision‑making authority precluded by section 41 from making any decision that could have the effect of causing or allowing that proposal to be implemented an authority in writing permitting such a decision to be made.
(8)If the implementation agreement or decision is that the proposal may not be implemented, the Minister shall forthwith notify the persons referred to in subsection (5)(a)(i), (ii), (iii) and (iv) in writing accordingly.
Section 46 of the Act empowers the Minister to request the EPA to undertake an enquiry into possible changes to the implementation conditions relating to a proposal. Each of the applicants and Cameco sought to draw inferences favourable to their respective positions from the terms of the section. As, in my view, each of the inferences proposed is both tenuous and peripheral, and there are much surer guides to the proper construction of s 45(6) of the Act,[12] it is unnecessary to deal with those contentions. However, for the sake of completeness, I note that s 46C of the Act empowers the Minister to change the implementation conditions without requesting the EPA to undertake an inquiry and report if the Minister considers that the change is of a minor nature and is necessary or desirable for one or other of a number of purposes specified in the section.

Implementation of proposals

[12] Addressed below.

Section 47 of the Act creates a number of offences which can be committed by proponents after notices have been served pursuant to s 45. The first offence created by the section is failing to implement the proposal in accordance with the implementation conditions. The second offence created by the section is refusing or failing to comply with a requirement from the CEO to provide reports and information with respect to implementation of the proposal or compliance with implementation conditions. The third offence created by the section concerns doing anything to implement the proposal after a notice has been served pursuant to s 45(8) advising of the Minister's decision that the proposal may not be implemented.
Section 48 of the Act provides that the CEO may monitor the implementation of a proposal or cause it to be monitored for the purpose of determining whether the implementation conditions relating to the proposal are being complied with, and confers various powers upon the CEO in the event that he or she finds that any of the implementation conditions has not been complied with. The section confers similar powers on a decision‑making authority if implementation conditions relating to a proposal subject the implementation of the proposal to requirements made by that authority. The same provisions require the CEO, and a decision‑making authority, as the case may be, to report any non‑compliance to the Minister, who is then empowered to take a number of steps specified by the section, generally for the purpose of ensuring compliance with the implementation conditions.

Overview of pt IV

It is desirable at this point to interpose a general, and therefore somewhat imprecise, overview of the general scheme of pt IV of the Act, evident in the provisions to which I have referred.
Some proposals must, and other proposals can, be referred to the EPA in order that the EPA can determine whether or not to undertake an environmental impact assessment and, if so, the nature of the assessment to be undertaken. Once a proposal has been referred to the EPA it is, in effect, put 'on hold' until either it has been definitively determined that the proposal will not be environmentally assessed, or the environmental assessment process has run its course. This effect is achieved by prohibiting any decision‑making authority from making any decision that would cause or allow implementation of the proposal, and by prohibiting any person from taking any action which would have the effect of implementing the proposal before one or other of those milestones in the process under pt IV have been achieved.

When a proposal is assessed by the EPA it must provide a report on the outcome of its assessment to the Minister setting out the key environmental factors identified in the course of the assessment and the EPA's recommendation as to whether or not the proposal may be implemented and, if it recommends implementation, as to the conditions and procedures, if any, to which implementation should be subject. The EPA may include in the report to the Minister other information, advice and recommendations which have been taken, including in this case, to enable the EPA to inform the Minister of the conditions and procedure to which implementation should be subject even if it recommends against implementation of the proposal. The language and scheme of the Act suggest, and the decision of the Full Court of this court in Coastal Waters Alliance of Western Australia Inc v Environmental Protection Authority; Ex parte Coastal Waters Alliance of Western Australia Inc[13] confirms that the EPA's report to the Minister must be limited to environmental matters, and the EPA is not empowered to include in its report reference to considerations which do not have an environmental character - such as broader economic, cultural, social or political considerations pertaining to the proposal.
[13] Coastal Waters Alliance of Western Australia Inc v Environmental Protection Authority; Ex parte Coastal Waters Alliance of Western Australia Inc (1996) 90 LGERA 136 (Coastal Waters Alliance).
However, those broader considerations can properly be taken into account after the assessment report has been presented to the Minister, in the course of the processes pertaining to the decision as to whether implementation of the proposal is to be allowed and, if so, the conditions and procedures to which implementation should be subject. Those processes involve the Minister and all other decision‑making authorities, and the Act contains procedures for the resolution of disagreement between those public authorities.
As will be seen, it is of considerable significance to the applicants' first ground that:
(a)the assessment report, information and recommendations provided to the Minister by the EPA must be confined to environmental matters;
(b)after a report has been provided to the Minister pursuant to s 44 of the Act, the power to decide whether to allow implementation of the proposal the subject of the report does not repose exclusively in the Minister - rather, that decision is to be made by way of agreement between the Minister and other decision‑making authorities (such as, in this case, the Minister for Mines) or in the event of disagreement, through one or other of the processes specified in s 45 of the Act;
(c)in forming a view as to whether implementation of a proposal should be allowed and, if so, as to the conditions and procedures to which implementation should be subject, the Minister and other decision‑making authorities may take account of broader considerations, including economic, cultural, social and political considerations of the kind which fall outside the scope of the process of assessment and report undertaken by the EPA.
If the ultimate decision of the Minister and other decision‑making authorities is to the effect that the implementation of the proposal is not allowed, implementation is prohibited by the Act. If the ultimate decision is to the effect that implementation is allowed subject to conditions and procedures, the Act contains provisions which facilitate enforcement of compliance with those conditions and procedures, including provisions authorising the CEO or any decision‑making authority whose requirements are included in a condition to monitor the extent of compliance.

Appeals - pt VII of the Act

Section 100 of the Act provides, relevantly:
100.Appeals against Authority's decisions etc. as to proposals and schemes
(1)Any decision‑making authority, responsible authority, proponent or other person that disagrees with -
(a)a recorded decision of the Authority that a proposal is not to be assessed, other than a decision that includes a recommendation that the proposal be dealt with under Part V Division 2; or
...
(d)the content of, or any recommendation in, the report prepared under section 44 in respect of a proposal; or
(e)the content of, or any recommendation in, the report prepared under section 48D in respect of a scheme,
may lodge with the Minister an appeal in writing setting out the grounds of the appeal.
(1a)In subsection (1) -
recorded means set out in a public record under section 39(1).
...
(3)Any proponent that disagrees with any conditions or procedures agreed under section 45(1) (or under section 45(1) as applied by section 46(8)) may lodge with the Minister an appeal in writing setting out the grounds of that appeal.
As will be seen, the appeals that were lodged against the assessment report prepared by the EPA were brought pursuant to s 100(1)(d). In respect of appeals brought pursuant to that provision, s 101(1)(d) provides that the Minister may:
(i)remit the proposal to the Authority for assessment, further assessment or reassessment, as the case requires, and for that purpose make a direction under section 43; or
(ii)vary the Authority's recommendations by changing the implementation conditions.
The same section provides[14] that the lodging of an appeal pursuant to s 100(1)(d) has the effect described in s 45(6) of the Act.
[14] The Act, s 101(3)(b).
Section 106 of the Act provides that where an appeal is lodged under s 100, the Appeals Convenor is to request the EPA to report to the Minister on the appeal and, if the decision appealed against is not a decision of the Minister, shall consider and report to the Minister on the appeal. The same section provides that the Minister may appoint an appeals committee to consider and report to the Minister on the appeal, and s 107C of the Act empowers the Appeals Convenor to convene an appeals panel for the purpose of advising him or her with respect to matters arising in an appeal. As will be seen, neither an appeals committee nor an appeals panel were appointed in this case.
Section 107B of the Act provides that s 109 applies to and in relation to the Appeals Convenor as if the Appeals Convenor were an appeals committee, and that a report of the Appeals Convenor made under s 106 has effect as if it were a report of an appeals committee. In that context s 109 relevantly provides:
(1)In considering an appeal, an appeals committee -
(a)shall consult -
(i)the CEO in the case of an appeal against a decision of the CEO; and
(ii)the Authority in the case of an appeal against a decision of the Minister or the Authority; and
(iii)the appellant;
and
(aa)may consult such other persons as it considers necessary; and
(b)shall act according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms, shall not be bound by any rules of evidence and may conduct its inquiries in whatever manner it considers appropriate.
...
(3)On completing its consideration of an appeal, an appeals committee shall, subject to subsection (4), report to the Minister on its findings and recommendations in respect of the appeal, and the Minister shall allow or dismiss the appeal -
(a)if the appeal is from a decision of the Minister, in accordance with; or
(b)if the appeal is from a decision other than a decision of the Minister, having regard to,
those recommendations and the decision of the Minister under this subsection shall be final and without appeal.
As will be seen, the contrasting use of the expressions 'in accordance with' and 'having regard to' in s 109(3) is of potential significance to the proper construction of the expression 'otherwise than in accordance with the decision made on the appeal' used in s 45(6) and which lies at the heart of the applicants' contentions with respect to their first ground.

The facts

The relevant facts are not contentious. They are established by an affidavit of Mr Anthony Sutton, who held the position of Director, Assessment and Compliance Division at the Office of the EPA at all material times. His affidavit was received in evidence without objection and Mr Sutton was not cross‑examined.

Cameco acquires the project from BHP Billiton

After the Government of Western Australia announced a change in policy with respect to the approval of mining for uranium in 2008, BHP Billiton Ltd, the then owner of the Yeelirrie Uranium Project (Yeelirrie Project), referred a proposal to develop that project to the EPA in May 2009. The EPA decided to assess the proposal, and an environmental scoping document was submitted by BHP Billiton to the EPA and approved by the EPA in May 2010. However, the environmental assessment process had not been completed when, in 2012, Cameco acquired the project from BHP Billiton.

Cameco refers the proposal to the EPA

By letter dated 12 November 2014 Cameco referred a revised proposal to develop the Yeelirrie Project to the EPA and requested termination of the earlier assessment process. The referral advised the EPA that Cameco proposed to double the ore processing and production rate of 1.2 million tonnes per annum proposed by BHP Billiton to a rate of 2.4 million tonnes per annum, which would have the effect of reducing the life of the proposed mine from approximately 30 years to approximately 17 years. The ore processed would be derived from mining up to 14 million tonnes per annum of mineralised and non‑mineralised material at an annual average rate of approximately 8 million tonnes. The open pit mine proposed would be about 9 km long, up to 1.5 km wide and about 10 m deep. The mine would involve clearing an area of no more than 726 ha.
The ore extracted from the mine would be processed on site and tailings generated from the processing of ore would be returned to a tailings storage facility in the open pit. The infrastructure associated with the mine and the processing plant would require the clearing of no more than 1,363 ha. The uranium peroxide produced by the project would be trucked to the Port of Adelaide for export.

The assessment process

On 15 December 2014 the Chairman of the EPA published a statement dated 10 December 2014 determining that the proposal would be assessed by the EPA by way of Public Environmental Review (PER).
On 8 May 2015 the EPA published the Environmental Scoping Document for the Yeelirrie Project, which determined the form, content and timing of the PER.[15] In September 2015 Cameco published its PER document for the Yeelirrie Project. That document provides somewhat greater details with respect to the proposed project than were contained in the notice referring the proposal to the EPA. The area proposed to be cleared for infrastructure associated with the mine had increased to a little under 1,700 ha, although the footprint of the open cut mine and the rates of mineral extraction and ore processing were unchanged. The project is described as having an operational life of 22 years, including three years of pre‑production de‑watering, mining and construction, followed by a further 12 years of mining and 15 years of processing, which would in turn be followed by an estimated four years of decommissioning and rehabilitation.[16]
[15] Pursuant to s 40(3) of the Act.
[16] PER, page 55.
The peak construction workforce is estimated at 1,200 personnel, with an average workforce of 500. The peak operational workforce is estimated at 300 personnel, with an average operational workforce of 225. Personnel are to be accommodated in a village some distance from the mine and processing plant.
The PER contains a very detailed assessment of various environmental factors relevant to the proposal. As might be expected, the PER does not go beyond those factors and in particular does not venture into the economic, social, cultural and political considerations to which reference was made in Coastal Waters Alliance.

The EPA report to the Minister

Following publication of Cameco's PER document, the EPA received and considered public submissions relating to that document, and Cameco's response to those submissions. The EPA then provided its report to the Minister on the project. That report was published on 3 August 2016.
In its report to the Minister the EPA described the process which had preceded the report, including the key environmental factors raised in the public submissions received in response to Cameco's PER document. The EPA reported to the Minister that nine key environmental factors were identified in the course of the assessment process, including potential impacts upon subterranean fauna as a result of loss of habitat due to de‑watering and excavation. The report concluded that it was not possible to meet the EPA's environmental objectives in relation to that factor, although it was possible to meet the EPA's environmental objectives in relation to the eight other key environmental factors identified. In particular, the report concluded that in relation to subterranean fauna, the proposal was unable to meet the EPA's environmental objectives having regard to the three principles specified in s 4A of the Act which I identified earlier.[17] As a result of that conclusion, the EPA recommended to the Minister that the proposal should not be implemented.
[17] See [9] above.
However, the report to the Minister observed that it remained open to the EPA to offer other advice in the event that the Minister decided that the proposal may be implemented, and in that context advised the Minister that if he did arrive at that conclusion approval should be subject to the conditions specified in Appendix 6 of the report, together with appropriate conditions regarding the mitigation of impacts on subterranean fauna. In that context the report advised the Minister that:[18]
Uncertainty surrounding the potential for serious or irreversible damage to subterranean fauna species may be mitigated by further scientific investigation, research and study to determine if the restricted species either extend beyond the Impact Area of the proposal, or a compelling case is made that their habitat is continuous and extensive well beyond the Impact Area.
The EPA considers that an industry-funded research program with the long term aim of reducing uncertainty surrounding the conservation of subterranean fauna species in the presence of mining may assist with improving the currently limited scientific understanding of subterranean fauna across the State and inefficient sampling methods. A commitment by the proponent to support such a program could potentially and indirectly offset the local impacts it might have on subterranean fauna at Yeelirrie to the broader benefit of subterranean fauna conservation state-wide.
[18] EPA report to the Minister, pages 4 ‑ 5.
Consistently with the decision in Coastal Waters Alliance, apart from a general summary of the proposal and a description of the processes which had preceded the report, the report is concerned only with, and is restricted to, a consideration of environmental factors relevant to the proposal. No consideration is given in the report to broader economic, cultural, social or political considerations.

The appeals from the EPA report to the Minister

Twenty appeals against the EPA report to the Minister were received by the Appeals Convenor during the appeal period following publication of the report. Cameco was one of the appellants. As I have already noted, the Minister did not appoint an appeal committee, nor did the Appeals Convenor appoint a panel to advise her in relation to the appeals. In December 2016, the Appeals Convenor provided her report to the Minister, which was also published on the website of the Appeals Convenor.

The Appeals Convenor's report to the Minister

The Appeals Convenor commenced her report with a brief summary in which she referred to the process which had been followed, and the issues which had been raised by the appeals received. In the summary she observed:[19]
In relation to subterranean fauna the Appeals Convenor noted the proponent's appeal submission included information related to the potential for the extension of habitat and potential management measures to mitigate impacts to subterranean fauna. However, it is considered that it does not establish that the EPA's objectives for subterranean fauna can be met and on this basis the Appeals Convenor recommended that the proponent's appeals against this factor be dismissed.
In relation to the other grounds of appeal and for the reasons outlined in this report the Appeals Convenor considered that the EPA's assessment was justified, however should it be determined that the proposal may be implemented it is recommended that conditions be amended in relation to Atriplex yeelirrie and the public availability of management plans.
[19] Appeals Convenor's report, page i.
The Appeals Convenor then expressed her recommendation to the Minister in these terms:[20]
For the reasons set out in this report, it is recommended appeals in relation to subterranean fauna be dismissed.
Should it be determined that the proposal may be implemented it is recommended that the appeals be allowed to the extent that the following conditions are amended:
[after which four conditions are specifically identified for amendment]
It is otherwise recommended that the appeals be dismissed.
[20] Appeals Convenor's report, page i.
In the more detailed portion of her report, the Appeals Convenor summarised the environmental assessment process, the EPA report to the Minister and the general nature of the appeals which had been received. She summarised the issues raised by the appeals as relating to 10 specific subjects, all of which directly involve environmental factors relevant to the proposal. She then observed:[21]
Appellants raised a number of other matters that are considered to be beyond the scope of the appeal, however appellants contend these matters are relevant to the Minister's considerations.
[21] Appeals Convenor's report, page 5.
As the appeals and submissions in support of the appeals are not in evidence, there is no direct evidence of the matters to which the Appeals Convenor was referring. However, inferences with respect to those matters can be drawn from a later portion of her report to the Minister in which she summarised, under the heading 'Other matters', a number of matters which she considered to be beyond the scope of the appeal.[22] Those matters included fencing the project to prevent cattle entering the lease, the lifecycle of uranium and nuclear energy, the economics of the uranium industry, the past performance of the proponent, and the transparency of the process subsequent to the appeals.
[22] Appeals Convenor's report, page 47.
In that section of her report the Appeals Convenor noted the EPA's response to the issues raised with respect to fencing, the proponent's past performance and the transparency of the process subsequent to the appeals. In relation to issues raised with respect to the uranium lifecycle and nuclear energy, and the economics of the uranium industry, the Appeals Convenor noted the EPA's response to the effect that such matters were beyond the scope of the environmental assessment process under the Act. In that context the Appeals Convenor noted the advice of the EPA to the effect that:[23]
[T]he object of the EP Act is stated in s 4A of the Act and is to 'protect the environment of the State'. While broader issues associated with proposals can be considered by the Minister under s 45 of the EP Act, it is not the role of the EPA to take into account environmental matters beyond the jurisdiction of the State. The EPA advised that in this case it determined the key environmental factors to assess the environmental acceptability of the proposal.
Lifecycle and global implications of uranium mining such as the generation of nuclear waste, the wider nuclear cycle, nuclear incidents and proliferation of nuclear weapons are issues outside the scope of the EPA assessment for this proposal.
[23] Appeals Convenor's report, page 48.

In relation to economic issues, the Appeals Convenor also noted the EPA's response to the effect that:[24]
[C]ommercial considerations relating to the economic viability of the proposal are outside the scope of the EPA's assessment under the EP Act.
[24] Appeals Convenor's report, page 48.
So, although it is clear from the Appeals Convenor's report to the Minister that a number of appeals raised issues which went beyond environmental factors relevant to the proposal, neither the EPA nor the Appeals Convenor expressed any view in relation to those issues in their respective reports to the Minister.
Unsurprisingly, given the terms of the EPA's report to the Minister, the environmental factor considered in the greatest detail in the Appeals Convenor's report is the factor relating to subterranean fauna. In that context the Appeals Convenor noted that the proponent had submitted that the EPA overestimated the proposal's impact on subterranean fauna and did not apply the right test in order to establish the significance of the identified impacts.[25]
[25] Appeals Convenor's report, page 5.
The Appeals Convenor devoted a significant portion of her report to the Minister to a detailed consideration of the issues raised by this ground of appeal and the submissions provided by Cameco in support of its appeal, together with the EPA's submissions in response to those grounds. For the reasons which she gave, the Appeals Convenor concluded that:[26]
[G]iven the uncertainties raised in the proposal around the potential threat of serious and irreversible harm, the EPA's conclusion that the proposal cannot be managed to meet its objective for subterranean fauna and therefore should not be implemented, is considered to be justifiable having regard to the object of the Act. ...
Taking into account all the information presented in relation to this ground of appeal, it is considered that the EPA's conclusions with respect to subterranean fauna were justified and appropriate. It is specifically considered that the EPA properly assessed the risks associated with the implementation of the proposal, and correctly considered the object of the Act, and the principles relevant to that object.
It is recommended therefore that appeals in relation to subterranean fauna be dismissed.
[26] Appeals Convenor's report, pages 22 ‑ 23.
The Appeals Convenor's report concludes with a recommendation to the Minister expressed in the same terms as the recommendation contained in the summary which precedes her detailed report and which I have set out above. Immediately after that recommendation the Appeals Convenor observed:[27]
Following the determination of these appeals, the decision as to whether or not the proposal may be implemented, and the precise wording of the conditions which apply to any such implementation, is made under s 45 of the Act.
[27] Appeals Convenor's report, page 50.

The Minister's determination on appeal

On 14 December 2016 the Minister published his reasons for decision in respect of the appeals against the EPA's report to him. Those reasons are relatively brief and commence with a description of the EPA's report to the Minister in general, and with respect to subterranean fauna in particular. This description is followed by a summary of the submissions advanced by Cameco in support of its appeal challenging the EPA's conclusion with respect to subterranean fauna, including new and additional information which it had supplied in relation to that topic. The Minister expressed his conclusion in relation to that issue in the following terms:[28]
Based on the foregoing, the new and additional information provided by the proponent suggested the level of impact to some stygofauna species may be reduced or avoided from what was considered in the EPA's report, but is not considered sufficient to meet the EPA's objectives for subterranean fauna. As such, it appears the basis for the EPA's conclusions in respect to subterranean fauna remains valid. It follows that the Minister determined to dismiss the proponent's appeal in respect to subterranean fauna.
[28] Minister's appeal determination, page 2.
The Minister then observed:[29]
In relation to concerns raised by appellants on other aspects of the EPA's report, the Minister concurred with the recommendations of the Appeals Convenor in respect to strengthening some of the implementation conditions recommended by the EPA should it be determined that the proposal may be implemented.
[29] Minister's appeal determination, page 2.
The Minister's reasons then refer to the specific conditions identified in the report of the Appeals Convenor, and adopt the recommendations made with respect to the amendment of those conditions.
The Minister's determination concludes:[30]
The Minister otherwise determined the appeals in accordance with the Appeals Convenor's recommendations.
The decision as to whether or not the proposal may be implemented, and the conditions which apply to any such implementation, is made under section 45 of the Act following the determination of these appeals. The Minister noted in this regard that the final decision making process will have regard to the EPA's report and broader commercial and economic considerations relevant to the proposal. This process will be commenced as soon as possible following this appeal decision.
[30] Minister's appeal determination, pages 2 ‑ 3.

The agreement that the proposal may be implemented

On 16 January 2017 the Minister published a statement on the website maintained by the EPA to the effect that the Yeelirrie Project may be implemented subject to stated conditions, purportedly pursuant to s 45 of the Act. The statement contained a clerical error in the transcription of one of the conditions to which implementation was to be subject. That error was corrected by the publication of an amended version of the statement on 20 January 2017 (the Ministerial Statement).
The Ministerial Statement briefly describes the Yeelirrie Project and reports that:[31]
Pursuant to section 45 of the EP Act it has been agreed that the proposal ... may be implemented and that the implementation of the proposal is subject to the following implementation conditions and procedures.
[31] Ministerial Statement, page 1.
The Ministerial Statement then sets out many detailed conditions to which implementation of the proposal is subject, grouped under 17 headings. As the applicants impugn the validity of a number of these conditions, it will be necessary to consider those conditions in some detail when dealing with the second ground of the application.
The Ministerial Statement does not identify the other decision‑making authorities with whom agreement had been reached.

Ground 1

The first ground upon which the applicants impugn the validity of the Ministerial Statement is expressed in the following terms:
1.The statement was issued in breach of s 45(6)(a)(ii) of the EP Act.
Particulars
(1)The report of the EPA dated August 2016, report 1574, concluded that the proposal cannot meet the EPA's environmental objectives for Subterranean Fauna and therefore should not be implemented - the relevant EPA recommendation.
(2)The Minister rejected an appeal in terms of s 100(1)(d) against the relevant EPA recommendation, in his Appeal Determination dated 14 December 2016.
(3)In the result, and in terms of s 45(6)(a)(ii) of the EP Act, the decision made by the Minister on the appeal was in terms of the relevant EPA recommendation, namely that the proposal should not be implemented (the decision made on appeal).
(4)The Minister subsequently and on 20 January 2017, nevertheless issued a statement (the Statement) that the proposal may be implemented, purportedly under s 45 of the EP Act.
(5)The statement was otherwise then in accordance with his decision made on appeal and thus in breach of s 45(6)(a)(ii) of the EP Act.
There are two essential elements in the process of reasoning which underpins this ground. The first element is the assertion that the Minister made a decision on the appeal[32] to the effect that the proposal should not be implemented. This involves questions of fact and law. The question of fact is whether the Minister did decide, by publication of the Ministerial Statement, that the proposal may not be implemented. The question of law is whether the Minister could lawfully make such a decision in the exercise of his power to determine appeals from the EPA's report to him.
[32] Within the meaning of that expression in s 45(6)(a)(ii) of the Act.
The second essential element, which only arises if the first element is established, is the assertion that a decision made by the Minister in determining an appeal against a report from the EPA to him can, in effect, dictate the manner in which the Minister and other decision‑making authorities can exercise the power to determine whether or not a proposal may be implemented and, if so, the conditions or procedures to which implementation should be subject. This is essentially a question of law.
It is convenient to address the applicants' first ground by reference to this analysis of its constituent elements, and in the order set out above.

The question of fact - did the Minister decide on appeal that the proposal should not be implemented

Although this is a question of fact, the evidence relevant to the question must be evaluated in the context of the scheme created by the Act and explained by the court in Coastal Waters Alliance. I have provided an overview of that scheme at [8] - [36] above. It is clear from the evidence to which I have referred that each of the EPA, the Appeals Convenor, the Minister, Cameco and, inferentially, at least some of those who appealed from the EPA's report to the Minister, were aware of that scheme and acted in accordance with their understanding of it.
Consistently with that scheme, and the understanding of it by the participants in the process which I have described, each of:
(a)Cameco's referral of the proposal to the EPA;
(b)the Environmental Scoping Document approved by the EPA;
(c)the PER prepared by Cameco in accordance with the Environmental Scoping Document;
(d)the EPA's report to the Minister;
(e)the Appeals Convenor's report to the Minister; and
(f)the Minister's decision on the appeals,
only address, and in some cases are expressly restricted to the consideration of, environmental factors relevant to the proposal.
More specifically, consistently with the decision in Coastal Waters Alliance, the PER prepared by Cameco in accordance with the Environmental Scoping Document approved by the EPA and the EPA's report to the Minister are concerned only with environmental factors relevant to the proposal and make no mention of the broader economic, cultural, social or political considerations which can properly be taken into account by the Minister and other decision‑making authorities when deciding whether or not a proposal may be implemented and if so, the conditions or procedures to which implementation should be subject, after the process of environmental assessment has been completed and any appeal brought during that process has been determined.
As I have noted, it can be inferred from the Appeals Convenor's report to the Minister that at least some of the appeals from the EPA's report to the Minister raised issues which went beyond the environmental factors relevant to the proposal. However, other than noting that such matters fell outside the scope of the environmental assessment process undertaken by the EPA, and the scope of an appeal from that process, the Appeals Convenor made no comment upon those matters in her report to the Minister.
Significantly, it is clear that the Appeals Convenor's report to the Minister provided no advice or recommendation to the Minister on the question of whether or not the proposal should be implemented. On the contrary, it is clear from the final paragraph of her report to the Minister that the report had been prepared on the assumption that the decision of the Minister and other decision‑making authorities on the question of whether or not the proposal should be implemented was a decision to be made following the completion of the appeal process - that is to say, following the Minister's determination of the appeals. That express reservation is unequivocally inconsistent with any suggestion that the Appeals Convenor's report to the Minister on the appeals should be construed as any form of advice or recommendation to the Minister on the question of whether the proposal should or should not be implemented.
The decision of the Minister on the appeals can only be characterised in the same way. Apart from the introductory narrative describing the processes preceding the Statement, the decision of the Minister on the appeals has four components. The first component addresses Cameco's ground of appeal relating to that aspect of the EPA's report to the Minister concerned with subterranean fauna. In respect of that component, after briefly summarising Cameco's contentions, the Minister determined that to the extent they included new and additional information, that information was 'not considered sufficient to meet the EPA's objectives for subterranean fauna' with the result that 'the basis for the EPA's conclusions in respect to subterranean fauna remains valid'. The decision of the Minister in this respect is expressly enunciated as a decision 'to dismiss the proponent's appeal in respect to subterranean fauna'.
The second component of the Minister's decision on the appeals concerns the grounds of appeal relating to the strengthening of some of the implementation conditions recommended by the EPA in the event that it was determined the proposal may be implemented. In respect of this component, the Minister essentially accepted the recommendations of the Appeals Convenor, and upheld the appeals to that extent.
I digress to observe that, of course, a decision to uphold the appeals relating to the terms of the conditions to which implementation of the proposal would be subject would be utterly pointless, and entirely inconsistent with the proposition that the Minister's decision on the appeals was a decision to the effect that the proposal should not be implemented.
The third component of the Minister's determination evident in the Ministerial Statement concerns the other aspects of the appeals not addressed specifically by the first two components. In respect of those matters the Minister 'otherwise determined the appeals in accordance with the Appeals Convenor's recommendations'. As the Appeals Convenor made no recommendation on the question of whether or not the proposal should be implemented, this component of the Ministerial Statement cannot support any inference to the effect that the Minister was addressing that question in his determination on the appeals.
The fourth component of the Ministerial Statement is the Minister's express exclusion of any assertion to the effect that his decision addressed, or could be construed as addressing, the question of whether or not the proposal may be implemented or the conditions which would apply to any such implementation. In that context the Minister expressly noted that the decision which remained to be made pursuant to s 45 of the Act would be made having regard to the EPA's report and 'broader commercial and economic considerations relevant to the proposal' and that the process of making that decision would 'be commenced as soon as possible following [the] appeal decision'.
In summary, the applicants' assertion that the Minister made a decision on the appeal to the effect that the proposal should not be implemented is entirely unsupported by any evidence. On the contrary, the evidence which I have set out and reviewed above establishes unequivocally that the Minister made no such decision on the appeal.
Neither the written nor the oral submissions of the applicants squarely addressed this factual issue. As best I can understand the position adopted on behalf of the applicants with respect to these issues, it is to the effect that whatever views the Minister may have expressed in the Ministerial Statement,[33] the actual[34] decision made by the Minister on the appeals is to be determined essentially by reference to the proper construction of the Act, rather than by reference to a detailed analysis of the evidence which I have set out. In particular, the appellants' argument as I would understand it, has the following steps:
(a)in the EPA's report to the Minister the EPA concluded that the proposal could not be implemented consistently with its objectives with respect to the preservation of subterranean fauna;
(b)for that reason the EPA recommended to the Minister that the proposal should not be implemented;
(c)appeals were brought against the EPA's report to the Minister;
(d)those appeals included a ground which challenged the EPA's conclusion that the proposal could not be implemented in conformity with its objectives with respect to the preservation of subterranean fauna;
(e)that ground of appeal was dismissed by the Minister;
(f)pursuant to s 109(3) of the Act the Minister must allow or dismiss an appeal;
(g)because the Minister dismissed Cameco's appeal against the EPA's report to the Minister, and in particular Cameco's ground of appeal relating to the preservation of subterranean fauna, by the operation of the Act the decision took effect as a determination that the proposal should not be implemented; and
(h)the Act created this effect irrespective of the words used by the Minister, or the intention of the Minister to be derived from the words he used in determining the appeals.
[33] ts 49.
[34] ts 49.
This process of deduction cannot be accepted for the following reasons. First and foremost, the best evidence of the 'decision' which the Minister 'made on the appeal'[35] is the Ministerial Statement. As I have already observed, it is unequivocally clear from the terms of that statement, viewed in the context of all that preceded it, that the Minister was not deciding whether or not the proposal should be implemented in his determination of the appeal.
[35] Using the terminology of s 45(6)(a)(ii) of the Act.
Second, the process of reasoning set out above elides the distinction between the conclusion that the proposal could not be implemented in conformity with the EPA's objectives for the preservation of subterranean fauna and the broader question of whether, having regard to that conclusion, the proposal should be implemented. That distinction is of vital significance having regard to the general scheme of the Act to which I have referred.
Pursuant to the general scheme of the Act, the EPA's report to the Minister can only address environmental factors relevant to the proposal. Accordingly, if the EPA concludes, as it did, that the proposal cannot be implemented in conformity with the achievement of its environmental objectives, it is difficult to see any basis upon which the EPA could do anything other than recommend to the Minister that the proposal not be implemented. That is because the EPA is precluded from taking into account the broader economic, cultural, social or political considerations which might justify a decision to allow the proposal to be implemented irrespective of its environmental consequences. Those broader considerations can only be taken into account in the course of the decision‑making process in which the Minister and other decision‑making authorities engage following the completion of the environmental assessment process, including the completion of any appeal forming part of that process.
So, although there will very likely be a connection between the EPA's conclusions with respect to the adverse environmental consequences of any proposal and its recommendation to the Minister with respect to the implementation of the proposal, as there was in this case, it does not follow that the Minister's dismissal of an appeal from the EPA's report with respect to the adverse environmental consequences of the implementation of a proposal is equivalent to a determination that the proposal should not be implemented. That is because the EPA's recommendation in its report to the Minister as to implementation can only be based upon environmental factors. By contrast, the decision of the Minister and other decision‑making authorities with respect to implementation, which can only be made after the environmental assessment process is complete, is based on a decision‑making process separate and distinct from the process of environmental assessment, in which a significantly broader range of considerations can be taken into account. In that context, the Minister's decision on appeal to the effect that the EPA's conclusion that the proposal could not be implemented in conformity with its environmental objectives should be upheld is not to be equated with a decision under s 45 of the Act to the effect that the proposal should not be implemented.

Third, there is no provision in the Act which would give the Minister's decision the effect for which the applicants contend. In particular, the provision in s 109(3) to the effect that the Minister must either dismiss or allow an appeal tells one nothing of the ambit or effect of such a decision in any particular case. Clearly the Minister complied with that provision in this case, by dismissing that part of Cameco's appeal which challenged the EPA's conclusion that the proposal could not be implemented consistently with its environmental objectives. However, there is no provision in the Act which gives that decision some other effect such as the effect that the proposal should not be implemented.
Fourth, the process of reasoning set out above would seriously subvert a number of important aspects of the scheme evident in the terms of the Act. As counsel for the applicants submitted, if their reasoning process is correct, it would follow that on any occasion upon which an appeal was brought from a report by the EPA to the Minister, the Minister would have to take into account all of the broader economic, cultural, social or political considerations which might be taken into account in the course of the decision‑making process for which provision is made in s 45, prior to his determination of the appeal. The Minister would have to take this course notwithstanding that the report from which the appeal is brought is limited to environmental factors. If this were the course which the Minister was required to follow, difficult issues of procedural fairness would arise, given that the Act contains no process by which appellants can be informed of any broader economic, cultural, social or political considerations which the Minister might wish to take into account in the determination of the appeal. Nor would it be appropriate for the EPA to provide any advice to the Minister with respect to such matters in the course of the appellate process, given the constraints upon its powers and functions, which are essentially limited to the consideration of environmental factors relevant to any proposal.
Another consequence of the reasoning process for which the applicants contend would be that the decision with respect to implementation would be made prior to the completion of the environmental assessment process and as a necessary element of any appeal forming part of that process. This is as opposed to the decision as to whether a proposal should or should not be implemented being made after the completion of the environmental assessment process, including any appeal forming part of that process, on the basis of the EPA report as finalised by any appellate process, as a process of decision quite separate and distinct from the environmental assessment process.
Yet another consequence of the process of reasoning for which the applicants contend would be to entirely subvert the evident scheme of s 45 of the Act to the effect that decisions with respect to implementation are made by agreement between the Minister and other decision‑making authorities or, in the event of disagreement, pursuant to the mechanisms specified in s 45. On the applicants' case, in any case in which an appeal is brought from a report by the EPA to the Minister, those processes would have no application and instead the decision with respect to implementation would be made exclusively by the Minister.
This conclusion is sufficient in itself to result in the dismissal of the applicants' first ground. However, for the sake of completeness, I will address the other elements of that ground.
In support of their submission that the Minister is required to take considerations other than environmental considerations into account prior to deciding an appeal against a report from the EPA, the applicants referred me to a previous decision of a Minister and a previous decision of an appeals committee where it is asserted that this occurred.[36] Those previous decisions were not tendered in evidence, and when they were produced to the court I made it clear to counsel for the applicants that I could not see how evidence of any past actions by a Minister or appeals committee could be admissible as relevant to the proper construction of the Act. Counsel submitted that the previous decisions demonstrated that the construction of the Act for which the applicants contended was not unworkable. However, I remain firmly of the view that the past actions of any Minister or appeals committee cannot shed any light upon the proper construction of the Act.
[36] Applicant's written submissions [19].
The decision of the Minister upon which the applicants relied does not support the submission advanced. The Minister's decision was on an appeal from a report of the EPA relating to a proposal by Griffin Energy Pty Ltd to construct the Bluewaters Power Station at Collie. The Minister's decision on appeal does not refer to any factors other than environmental factors.
The other decision to which the applicants referred me, the decision of an appeals committee, was in relation to a proposal by the Gorgon Joint Venture Partners to develop a LNG processing plant on Barrow Island. In its report to the Minister, the appeals committee refers to a ground of appeal advanced, as it happens, by the first applicant in these proceedings, to the effect that siting the LNG plant on the mainland, rather than on Barrow Island would have significant economic advantages for downstream processing and value adding. The appeals committee noted that the EPA submitted that it was unable to comment on matters other than environmental matters and expressed the view that this ground of appeal was beyond the scope of the appeal process, with the consequence that no view was expressed in relation to the proposition advanced.
So, even if either of the instances to which the applicants referred were admissible as a guide to the proper construction of the Act, they do not sustain the submission advanced in reliance upon them.
For these many reasons the process of reasoning for which the applicants contend cannot overcome or diminish in any way the clear and unequivocal effect of the evidence to which I have referred. This evidence establishes conclusively that the Minister did not decide that the Yeelirrie proposal should not be implemented in determining the appeals from the EPA's report.

The legal question - could the Minister decide that a proposal should not be implemented in deciding an appeal from an EPA report

As I have noted, the first essential element of the reasoning which underpins the applicants' first ground of appeal involves both the factual question which I have just addressed, and the legal question of whether the Minister could lawfully decide whether or not a proposal should or should not be implemented in the course of deciding an appeal brought against a report from the EPA pursuant to s 100(1)(d) of the Act. As I have noted in my review of the Act[37] s 101(1)(d) specifies the Minister's powers in the case of such an appeal. That provision confers only two powers upon the Minister, namely:
(a)the power to remit the proposal to the EPA for assessment, further assessment or reassessment; and
(b)the power to vary the EPA's recommendations by changing the implementation conditions.
[37] See [32] above.
There is no reason to suppose that the legislature intended that the Minister should have some other power in respect of such appeals, being a power not included within the provision, or that the provision was not to constitute an exhaustive enunciation of the powers of the Minister in respect of such appeals.
Significantly, s 101(1)(d) confers no power upon the Minister to vary the EPA's recommendation as to whether or not the proposal may be implemented. Section 44 of the Act expressly requires that the EPA's report to the Minister set out the EPA's recommendations as to whether or not the proposal may be implemented. In such a context, the failure to confer upon the Minister power to vary such a recommendation cannot be attributed to legislative oversight - especially when s 101(1)(d)(ii) expressly empowers the Minister to change the implementation conditions recommended by the EPA.
The Minister's lack of statutory power to vary, on appeal, the recommendations which the EPA must include in a report to him as to whether or not the proposal may be implemented is entirely consistent with the evident scheme of the Act. As I have noted[38] it is evident from the scheme of the Act that a decision as to whether or not a proposal should be implemented is not to be made as part of the process of environmental assessment, but only after that process is complete. Nor is the decision to be made exclusively by the Minister - rather, it is a decision to be made by the Minister in conjunction with other decision‑making authorities in a decision‑making process which is separate and discrete to the environmental assessment process. Nor is the decision as to whether a proposal should or should not be implemented to be made by reference only to the environmental factors which may be the subject of the EPA's report to the Minister, and therefore the subject of an appeal from that report - rather, the decision can be made taking into account broader considerations of a kind not properly included within the EPA report or within any process of appeal from that report.
[38] With perhaps tedious repetition.
For these reasons the failure to confer any statutory power upon the Minister to vary, on appeal, recommendations made by the EPA with respect to the implementation of a proposal, and which are an essential component of any report by the EPA to the Minister, is entirely consistent with the scheme evident in the Act. The conferral of any such power upon the Minister would seriously subvert the evident legislative scheme in the various ways I have described.
For these reasons the Minister cannot lawfully decide, in the course of determining an appeal from a report of the EPA, whether or not the EPA's recommendations with respect to implementation of the proposal should be varied. Any decision of the Minister in the course of deciding an appeal from a report of the EPA purporting to have that effect would exceed the jurisdiction conferred upon the Minister and, for that reason, be of no legal effect.
This conclusion with respect to the scope of the Minister's powers on an appeal from a report of the EPA is also, of itself, sufficient to result in the dismissal of the applicants' first ground. However, again for the sake of completeness, I will turn to address the second element of the process of reasoning which underpins that ground.

Could s 45(6)(a)(ii) of the Act in effect determine the decision to be made pursuant to s 45 with respect to whether a proposal should be implemented and, if so, the conditions and procedures to which implementation should be subject

The thrust of the applicants' proposition in respect of this element of ground 1 is relatively straightforward. It is to the effect that because s 45(6) qualifies everything else in that section - by the opening words 'notwithstanding anything in this section' - if a decision is made on an appeal from a report of the EPA to the Minister to the effect that the proposal shall not be implemented it is not lawfully possible for any agreement to be made pursuant to s 45 to the effect that the proposal shall be implemented, because such an agreement would be 'otherwise than in accordance with the decision made on the appeal'.
The applicants' submissions rely heavily on the decision in Coastal Waters Alliance, which is said to compel acceptance of the applicants' proposition. It is therefore necessary to consider that decision in some detail.

Coastal Waters Alliance

The facts

Two proposals by Cockburn Cement Ltd (Cockburn) to dredge and use shell sand from Cockburn Sound were referred to the EPA. One proposal related to a period of two years, and the other related to a period of 15 years. The EPA assessed the proposals and published its report and recommendations to the Minister. In that report it took into account commercial considerations, including the effect which curtailing dredging operations would have on the commercial activities of Cockburn, its workforce and its land based factories and treatment plant. In particular, the EPA took into account, for the purposes of its report, the employment of the workforce of Cockburn, Cockburn's commitment to large contracts to supply lime, and the obligations of the State of Western Australia under agreements with Cockburn embodied in legislation. Appeals were lodged against the EPA's report. The Minister decided those appeals, allowing some in part and dismissing others. On the same day he decided the appeals, the Minister published a statement pursuant to s 45(5) to the effect that the proposals could be implemented, specifying the conditions and procedures to which implementation was subject. It is not clear whether there were any other decision‑making authorities which concurred in that course.

The proceedings

Following publication of the Minister's statement permitting implementation of the proposals, proceedings were brought challenging the validity of that statement. In those proceedings it was contended that the EPA's report to the Minister was invalid and of no force or effect because the EPA had taken into account irrelevant considerations, being the social and commercial considerations to which I have referred. It was further contended that the Minister's power to issue a valid statement pursuant to s 45(5) authorising implementation of a proposal which had been assessed by the EPA depended upon the presentation of a valid report from the EPA to the Minister. Those contentions were upheld by all members of the Full Court, for reasons expressed in somewhat different terms.
Although s 45 of the Act has been amended since the decision in Coastal Waters Alliance, no party to these proceedings contends that the amendments are material to the issues in this case, and the reasons given can be applied to the statutory provisions in their current form. However, there is a clear inference from those reasons to the effect that no argument of the kind now under consideration, based upon the consequences of the determination of an appeal, was presented to the court in support of the contention of invalidity, nor was issue joined in relation to the issues which would have arisen if such an argument had been presented. Rather, the focus of the argument, and of the reasons of the court, was upon the asserted invalidity of the EPA's report to the Minister, and its consequences. It follows that any observation by any member of the court which bears upon the issue under present consideration must be regarded as obiter.
Malcolm CJ noted that he had read in draft the reasons for judgment of the other members of the court, and expressed the opinion that the orders nisi relating to the validity of the Minister's statement should be made absolute for the reasons to be given by Rowland J. However, he added observations of his own, which included agreement with the general proposition that the EPA's report was not a report on the environmental factors relevant to the proposal and the conditions and procedures if any to which implementation of the proposal should be subject, with the result that it was not a report upon which the Minister was entitled to rely. Malcolm CJ expressed no view on the effect of the decision of the Minister on an appeal. Because the reasons of Rowland J do not rely upon the effect of such a decision for the conclusion that the Minister's statement was invalid, it may be doubted that Malcolm CJ's concurrence with the reasons published by Rowland J includes agreement to the obiter observations made in the course of those reasons.
The applicants in this case rely upon the following observations made by Rowland J in the course of his reasons:[39]
Section 45(6)(a) leads to several consequences. The first is that, pending the resolution of the appeal, the proposal cannot be implemented, nor can any of the conditions and procedures be agreed pursuant to s 45. Secondly, it is only after the appeal is decided that the conditions and procedures that may be required under s 45 can be agreed or decided, but they cannot be agreed or decided otherwise than in accordance with the decision made on the appeal. I have some difficulty in understanding how s 45(5) works in practice when there are differences between Ministers or other decision making authorities. It appears that, even after the appeal process under s 100 is completed and a decision made, the processes of resolving differences between Ministers and other decision making authorities has to be agreed or decided; but, in so far as other Ministers and the decision making authorities are concerned, they will be bound by the decision of the Minister pursuant to s 45(6)(a).
The only method by which a proposal of this type can be implemented is in accordance with s 45(5), which is in the following terms:
...
These rather strange procedures were not debated before us and I am not confident that there is any practical solution to some difficulties which could occur. In the end, in this case we were not told of any difficulties with other Ministers and decision-making authorities. All parties seemed to hold the opinion that the decision of the Minister was a decision to implement the proposal under s 45(5). I will assume that to be the case. I also assume that the Minister responsible for implementing the Agreement Act is satisfied with the result.
What is reasonably clear from all of this is that, because of the operation of s 101 or s 107(2), the ultimate decision is for the Minister, and his ultimate decision which is to be implemented under s 45(5) must accord with his decision on the appeal, and his decision is final. It follows that he is bound to consider the Environmental Protection Authority report and recommendations and the appeal, but he is not necessarily bound to support any recommendations or any grounds of appeal.
[39] Coastal Waters Alliance (146) (Rowland J).
I digress to observe that the meaning of his Honour's observation to the effect that other Ministers and decision‑making authorities will be 'bound by the decision of the Minister' on appeal turns, of course, upon the terms of the Minister's decision on appeal and upon the part played by the EPA's report to the Minister and appeals from that report, in the decision‑making process. These are matters to which I will return.
After setting out s 45 of the Act in its then current form, Franklyn J observed:[40]
That section is not without difficulty in construction. It is clear that the effect of subs (6) is to prevent the operation of sub (1)- subs (5) inclusive until determination of any appeal under s 100(2) in respect of the Authority's s 44(3) report and then only in accordance with the decision made on the appeal.
In this passage his Honour has, in effect, merely repeated the words of s 45(6) with the consequence that no inference can be drawn as to his Honour's view with respect to the meaning of those words. The same observation may be made with respect to a later passage in the reasons of Franklyn J, where he observes that:[41]
It was contended that the Minister's statement under s 45(5) consequently proceeds on the basis of his decision on the appeal and not on the basis of the s 44(1) reports. As to this, see also s 45(6)(a)(ii) that the 'proposal to which that report [under s 44(1)] relates shall not be implemented and conditions and procedures shall not be agreed or decided under this section otherwise than in accordance with the decision made on the appeal'. It is clear however, that the Minister's decisions on appeal accepted the basis of the s 44(1) report whereby the environmental factors were reported on subject to the impact on them of irrelevant commercial factors.
[40] Coastal Waters Alliance (154) (Franklyn J).
[41] Coastal Waters Alliance (158) (Franklyn J).

However, in assessing whether a condition:
(a)would have the effect of significantly altering the development for which approval was sought, or leaving open that possibility; or
(b)is insufficiently certain; or
(c)has the consequence that the approval lacks finality; or
(d)impermissibly delegates the authority to grant or refuse approval to some other person or agency,
questions of fact and degree are involved. So, as the court observed in Buzzacott, neither the approval nor a condition of the approval will 'necessarily be considered invalid because a condition retains in the decision‑maker some ongoing flexibility in relation to the implementation of an approved activity or because it delegates some authority in relation to the implementation of the decision to some other person or agency'.[54]
[54] Buzzacott [179].
Further, the cases expressly recognise that conditions which retain a degree of flexibility with respect to a development, or which involve a third party in the supervision of a stage of the development, should be taken to be within the contemplation of a legislature conferring a power to impose conditions with respect to a complex development, given that it cannot be supposed that an application prepared prior to the commencement of a complex development can contain all details or predict with certainty the course which the development might take over what may be a long lifetime.[55]
[55] See, for example, Transport Action Group Against Motorways Inc v Roads & Traffic Authority [1999] NSWCA 196; (1999) 46 NSWLR 598 [117].
In this State, that approach has been specifically adopted in relation to the imposition of conditions under the Act. In Re Minister for the Environment; Ex parte Elwood,[56] Buss JA observed:[57]
The actual or potential impact of a project, plan or programme etc on the environment may not be appreciated, adequately or at all, before the commencement of the implementation of the project, plan or programme etc. The rationale for the Authority assessing a proposal, and for the requirement that the assessed proposal be authorised and made subject, if appropriate, to implementation conditions, is to regulate the future conduct of the proposal in accordance with any such conditions which, under s 47(1), become statutory obligations of the proponent.
[56] Re Minister for the Environment; Ex parte Elwood [2007] WASCA 137; (2007) 154 LGERA 366.
[57] Elwood [100].
Turning now to apply these principles to the conditions impugned under ground 2, some of the submissions in support of that ground were cast at a level of generality, using rhetorical language which I did not find particularly helpful. Rather than deal with submissions at that level of generality, it seems to me to be preferable to focus upon the detailed propositions advanced with respect to the invalidity of each impugned condition, notwithstanding the tedium involved. For that purpose, conditions 6 ‑ 15 are contained in a schedule to these reasons, as the conditions impugned all fall within those conditions.

Condition 6‑1

Condition 6‑1 requires the proponent to prepare and submit Condition Environmental Management Plans (Management Plans) prior to the commencement of 'ground disturbing activities' or as otherwise agreed in writing by the CEO in order to demonstrate that the environmental objectives in six other specified conditions will be met. The applicants submit that the portion of the condition which enables the CEO to amend the time at which the Management Plans have to be provided creates uncertainty and a lack of finality. That proposition must be rejected. The Management Plans must be submitted prior to the commencement of ground disturbing activity or at some other time specified by the CEO. The expression 'ground disturbing activities' is defined in Table 3 of the conditions to mean:
Activities that are associated with the substantial implementation of a proposal including but not limited to, digging (with mechanised equipment), blasting, earthmoving, vegetation clearance, grading, gravel extraction, construction of new or widening of existing roads and tracks.
Given the breadth of this definition, in the context of a substantial mining development like the Yeelirrie Project, it is very likely that activities falling within the scope of that definition might take place at a very preliminary stage in the development of the project. For example, the construction of a track to enable more detailed investigation of the site for planning purposes would appear to fall within the scope of 'ground disturbing activities'. In these circumstances it is entirely reasonable to confer upon a nominated official the capacity to alter the time at which the Management Plans have to be provided in order to accommodate the conduct of preparatory and investigative work prior to the submission of detailed plans. This is precisely the type of flexibility and involvement of officials contemplated by the previous cases and that one would expect in conditions attached to the development of a substantial mining project with a 22 year life.

Condition 6‑2

Condition 6‑2 sets out the requirements which the Management Plans must satisfy. In general terms, the Management Plans must demonstrate the manner in which the proponent proposes to satisfy the six other conditions specified in condition 6‑1. In both written and oral submissions, the applicants contend that condition 6, and the Management Plans required to be provided pursuant to its terms, are absolutely critical to the efficacy of the environmental protection regime created by the conditions in general.
That proposition cannot be accepted. The conditions to which the Management Plans must be directed are expressed in absolute terms. So, for example, the first specified condition, condition 8‑1, requires the proponent to manage the implementation of the proposal so as to maintain the Eastern population of the threatened flora species Atriplex yeelirrie. If the proponent fails to achieve that environmental objective the various enforcement mechanisms for which provision is made in the Act can be invoked.
Counsel for the applicants submitted that the extent of the proponent's obligations was determined by the Management Plans provided pursuant to condition 6‑2, and further submitted that so long as the proponent complied with those plans, no enforcement action could be taken, even if other conditions were breached - such as, for example, condition 8‑1. That submission is clearly incorrect. The obligation imposed by conditions like condition 8‑1 is unqualified. If the proposal is not managed so as to maintain the population of the relevant flora species, enforcement action can be taken irrespective of whether or not the proponent has complied with the Management Plans. Contrary to counsel's submissions, condition 6 does not derogate from the obligations imposed by other conditions but augments them, by requiring the proponent to not only satisfy those conditions, but also comply with Management Plans approved by the CEO (see condition 6‑3).
The applicants further submit that condition 6‑2 is replete with uncertainty because, for example, the condition does not specify how some of the matters to be included in the Management Plans (such as measurable management targets) are to be determined. This submission must also be rejected. As I have noted, the cases establish that the requisite degree of certainty and finality required in a condition attached to development approval will be significantly influenced by the nature of the development to be undertaken and the point in the process of development at which the conditions are imposed. In the case of a decision under s 45 of the Act to allow a proposal to be implemented, it is very likely that planning of the proposal will be at a preliminary stage, as it is in this case. In such a circumstance it is impracticable, and probably impossible to attach conditions to an approval which specify, in meticulous detail, the precise manner in which each and every aspect of the proposal will be implemented. It must also be remembered that the Management Plans the subject of condition 6 are simply a means to an end - the end being the achievement of the environmental objectives specified in absolute terms in other conditions. As I have already noted, the applicants' submissions attribute a significance to the Management Plans based on a misconstruction of their role and effect.

Condition 6‑3

Condition 6‑3 requires the proponent to implement the provisions of the Management Plans after receiving notice from the CEO that the Plans satisfy the requirements of condition 6‑2. The applicants submit that this condition is invalid because it constitutes an unauthorised delegation to the CEO, cast in terms which give the CEO an open‑ended discretion to determine whether or not the requirements of condition 6‑2 have been met.
These submissions misconstrue condition 6‑3. The only role served by service of notice by the CEO under condition 6‑3 is to identify the time at which the proponent's obligation to comply with the Management Plans arises. The requirements which must be met by the Management Plans are specified by condition 6‑2 in unqualified terms. If the relevant Plans do not meet those requirements, compliance action can be taken irrespective of the position adopted by the CEO. The role performed by the CEO in identifying the time at which the proponent's obligation to comply with the Management Plans arises is entirely consistent with the functions properly conferred upon officials in accordance with the authorities to which I have referred, and with the specific functions of the CEO pursuant to s 48 of the Act.
Condition 6‑3 also provides that the proponent is obliged to continue to implement the Management Plans until the CEO has given notice that the specified environmental objectives have been met. The applicants impugn this aspect of the condition on the same basis. Their contentions must be rejected for essentially the reasons I have given. In a project with a lifetime of 22 years, the last four of which involve decommissioning of the mine and plant, there will inevitably come a time at which compliance with the Management Plans is no longer necessary or appropriate. A condition which enables an official such as the CEO to determine that time is entirely consistent with the authorities to which I have referred.

Conditions 6‑6 and 6‑7

Conditions 6‑6 and 6‑7 empower the proponent to review and revise the Management Plans and oblige the proponent to review and revise the Management Plans as and when directed by the CEO (condition 6‑6) and require the proponent to implement the latest revision of the Management Plans which the CEO has confirmed by notice satisfy the requirements of condition 6‑2 (condition 6‑7). The applicants submit that these conditions are uncertain because they are 'ambulatory' and that one does not know with certainty what the revised Management Plans might provide.
This submission must also be rejected. During the course of a substantial mining and ore processing project with an expected lifetime of 22 years it is inevitable that circumstances and conditions will change, necessitating changes in the measures necessary to achieve the environmental objectives specified in other conditions. These conditions, which provide the flexibility required to respond to such inevitable changes in conditions and circumstances are precisely the type of conditions contemplated by the authorities to which I have referred.
The applicants further submit that to the extent that condition 6‑7 imposes an obligation to implement the latest revision of the Management Plans the subject of notice from the CEO, it constitutes an authorised delegation of the Minister's power to the CEO. This submission fails for the reasons I have given in relation to condition 6‑3. Reviewing Management Plans revised to take account of changed circumstances and conditions is precisely the sort of role contemplated for administrative officials by the authorities to which I have referred. Conferral of such a role upon the CEO is entirely consistent with s 48 of the Act.

Condition 7‑1

Condition 7‑1 provides that the proponent shall prepare and submit a Subterranean Fauna Survey Plan (Survey Plan) to improve the knowledge of subterranean fauna species and habitat on a local scale prior to the commencement of ground disturbing activities or when otherwise agreed in writing by the CEO. The applicants submit that this condition is invalid because, in effect, it gives the CEO the power to determine whether or not the condition will be enforced. That submission must be rejected for the same reasons as the corresponding submission relating to condition 6‑1 must be rejected. The only role of the CEO under condition 7‑1 is to determine the point in time at which the Survey Plan is to be provided. The conferral of such a capacity upon an appropriate official is entirely reasonable, given the breadth of activities which might be encompassed by the expression 'ground disturbing activities'.

Condition 7‑3

Condition 7‑3 requires the proponent to implement the Survey Plan after receiving notice in writing from the CEO that the Survey Plan meets the requirements of condition 7‑2 (which is not impugned). The applicants submit that condition 7‑3 is invalid for the same reasons that condition 6‑3 is invalid - namely, that the condition makes an unauthorised delegation to the CEO in terms which confer an open‑ended discretion upon the CEO. That proposition must be rejected for the reasons I have given in relation to the equivalent proposition concerning condition 6‑3.

Conditions 7‑4 and 7‑5

Conditions 7‑4 and 7‑5 impose conditions relating to the Survey Plan which correspond to conditions 6‑6 and 6‑7 relating to the Management Plans. The applicants submit that conditions 7‑4 and 7‑5 are invalid for the same reasons that conditions 6‑6 and 6‑7 are invalid. That submission must be rejected for the reasons I have given in relation to conditions 6‑6 and 6‑7.

Condition 8‑1

As I have already noted, condition 8‑1 requires the proponent to manage the implementation of the proposal so as to maintain the Eastern population of the threatened flora species Atriplex yeelirrie. The applicants assert that this condition is uncertain. The applicants' written submissions assert that the uncertainty arises from the vagueness or ambiguity inherent in the expression 'maintain the Eastern population'. However, I do not see any vagueness or ambiguity in that term, and no evidence was adduced to establish that measurement or enforcement of compliance with the condition would be impracticable. In the absence of such evidence, I would infer that measurement of the population of a species of flora would be a relatively straightforward task, with the consequence that enforcement of the condition would be equally straightforward.
In the course of oral submissions counsel contended that the uncertainty in the condition arose from the interaction between condition 8 and condition 6, based on his earlier submission to the effect that compliance by the proponent with Management Plans lodged pursuant to condition 6 would necessarily constitute compliance with condition 8‑1. For the reasons I have already given, that submission must be rejected.

Condition 8‑2

Condition 8‑2 requires the proponent to consult with 'Parks and Wildlife' in relation to the preparation of the Management Plans required by condition 6‑1, in relation to the environmental objective specified in condition 8‑1. The applicants impugn this condition on the basis that the requirement to consult is unclear and unable to be measured. With respect, that submission reflects a measure of desperation. It is entirely reasonable for a condition to require consultation with relevant agencies in relation to the preparation of an environmental management plan, and the question of whether or not consultation has occurred is a question of fact which can be answered without any difficulty.

Condition 8‑3

Condition 8‑3 specifies that the Management Plans required by condition 6 to address impacts on Atriplex yeelirrie must also include plans to address impacts arising from, but not limited to, direct clearing; changes to ground water levels and ground water quality; changes to surface flows; salinity; dust; cattle; and weeds. The applicants' attack on this condition on the ground of uncertainty also reflects a degree of desperation. The specification of particular matters which must be addressed by the Management Plans provides greater rather than less certainty with respect to the requirements of condition 6.

Condition 8‑4

Condition 8‑4 corresponds with, and is impugned by the applicants on the same grounds as, condition 6‑7. Their submission fails for the same reasons.

Condition 9‑2

Condition 9‑2 is impugned because it imposes an obligation to consult with 'Parks and Wildlife'. The applicants' submission fails for the reasons I have given in relation to condition 8‑2.

Condition 9‑3

Condition 9‑3 corresponds to condition 8‑3 and specifies particular matters which must be addressed by the Management Plans to be prepared in accordance with condition 6. The applicants' attack on condition 9‑3 fails for the reasons that I have given in relation to condition 8‑3.

Condition 9‑4

Condition 9‑4 corresponds to conditions 8‑4 and 6‑7. The applicants' attack upon the condition fails for the reasons I have given in relation to those conditions.

Condition 10‑2

Condition 10‑2 requires the proponent to consult with 'Parks and Wildlife' in relation to the preparation of another aspect of the Management Plans required by condition 6. The condition is attacked by the applicants on the same ground as conditions 8‑2 and 9‑2, and fails for the reasons I have given in relation to those conditions.

Condition 10‑3

Condition 10‑3 corresponds with conditions 9‑3 and 8‑3 by specifying particular matters which must be addressed in the Management Plans required by condition 6. The applicants attack that condition on the same grounds. That attack fails for the reasons I have already given.

Condition 10‑4

Condition 10‑4 corresponds with conditions 8‑4, 7‑5 and 6‑7 and is attacked by the applicants on the same grounds. The attack fails for the reasons I have given in relation to those conditions.

Condition 11‑1

Condition 11‑1 requires the proponent to prepare a Baseline Survey Plan to monitor the changes to groundwater levels arising from the implementation of the proposal prior to the commencement of ground disturbing activities or when otherwise agreed in writing by the CEO. The conferral of power upon the CEO to amend the time at which the Plan must be prepared is attacked on the same grounds as the equivalent provision in condition 6‑3 and condition 7‑1, and fails for the reasons I have given in relation to those conditions.
Condition 11‑1 is also attacked on the ground of uncertainty and lack of finality on the basis that the condition does not specify the outcome of certain hypothetical occurrences which might or might not occur in the future. That submission misconceives the legal requirements pertaining to conditions imposed upon a development approval at a very early stage of a complex and lengthy development. Like a number of other conditions to which I have referred, condition 11‑1 contains particulars of the specific matters which must be addressed by the Baseline Survey Plan. Those specifications increase rather than decrease the certainty of the condition.

Condition 11‑2

Condition 11‑2 requires the proponent to commission a suitably qualified independent expert to review and report on the groundwater monitoring programme described in the Baseline Survey Plan. The applicants impugn the validity of this condition on the ground that:[58]
This condition has been drafted this way because presumably inadequate knowledge exists.
[58] Applicants' written submissions, page 16.

I must confess that I do not understand this objection, which does not appear to correspond to any ground of legal invalidity. The condition, which requires independent expert review of the Plan prepared by the proponent, is entirely unobjectionable.

Condition 11‑4

Condition 11‑4 requires the proponent to submit an amended Baseline Survey Plan and the results of the independent expert review within three months of the proponent receiving the recommendations from the independent expert review. This condition is impugned on the ground that:[59]
[T]his requirement is indicative of undertaking impact assessment work post approval, which results in an approval that lacks finality and certainty in terms of the level of environmental impact approved. It is unclear what will occur if there is disagreement. There appears to be no scope to amend this deadline without a variation to the condition being required (for example under s 46 of the EP Act).
[59] Applicants' written submissions, page 17.
Again, this submission misconceives the legal requirements pertaining to conditions of the kind attached to the environmental approval of a project of this nature. I am quite unable to see any uncertainty or lack of finality in a condition which requires independent expert review of a Plan prepared by the proponent, and which properly requires that review, and any amendments arising from it, to be submitted to the CEO. The fact that more detailed environmental planning work might need to be undertaken in the course of the preparation of detailed plans for the implementation of the approved proposal does not reveal any lack of certainty or finality in the conditions imposed with respect to the proposal. Rather, the conduct of such further investigations is precisely the type of work for which one might expect provision to be made in the conditions attached to an environmental approval.

Conditions 11‑5, 11‑6 and 11‑7

These conditions are attacked on essentially the same ground as condition 11‑4. That attack must fail for the reasons I have already given. Some of the conditions are also impugned on the basis of hypothetical questions about events which may or may not occur in the future, which is said to reveal uncertainty. Those submissions fail for the reasons I have already given. I would add that I see no lack of certainty or finality in any of these conditions.

Condition 12‑3

The component of condition 12‑3 which requires the proponent to consult with 'Parks and Wildlife' is impugned for the same reasons as the equivalent provision in other conditions. The attack fails for the reasons I have already given in relation to those conditions.

Condition 12‑4

Condition 12‑4 specifies particular requirements which must be met by the Hydrological Processes Monitoring and Management Plan required by condition 12‑3. The condition is impugned on the basis that it suggests that environmental impact work is to be undertaken post approval - which corresponds to the argument advanced with respect to condition 11‑4. It fails for the reasons I have given in relation to conditions 11‑4 to 11‑7.

Condition 12‑5

Condition 12‑5 corresponds to condition 7‑5 and is impugned by the applicants for the same reasons. Their attack fails for the reasons I have given in relation to that condition.

Condition 13‑2

Condition 13‑2 requires the proponent to prepare and submit a Surface Water Management and Monitoring Plan and a Groundwater Management and Monitoring Plan in accordance with condition 6 which meets the environmental objectives specified in condition 13‑1 (which is not impugned). The applicants attack this condition on the ground of uncertainty, by reference to hypothetical questions relating to events which may or may not occur in the future. As I have already noted, submissions of that character misconceive the legal requirements attaching to conditions of the kind currently under consideration. This submission must be rejected.

Condition 13‑3

Condition 13‑3 provides that one of the plans to which reference is made in condition 13‑2 must include a particular provision relating to the construction of a surface water diversion bund and associated channel. The condition is attacked on the same ground as advanced in relation to condition 13‑2 and must be rejected for the same reasons.

Condition 13‑4

Condition 13‑4 provides that one of the plans to which reference is made in condition 13‑2 must also include provisions addressing a particular topic. The condition is impugned by the applicants on the ground that it indicates that environmental impact assessment work is being undertaken post approval. That ground must be rejected for the reasons I have already given.

Condition 13‑5

Condition 13‑5 corresponds to conditions 12‑5, 10-4, 9‑4 and 7‑5, and is impugned by the applicants for the same reasons. Their attack on condition 13‑5 fails for the reasons I have given in relation to those other conditions.

Condition 14‑2

The provision within condition 14‑2 requiring the proponent to consult with the Department of Aboriginal Affairs with respect to the preparation of an Aboriginal Heritage Management Plan required by condition 6 is impugned by the applicants for the same reason as the various provisions requiring the proponent to consult with 'Parks and Wildlife'. The attack fails for the reasons I have given in relation to those other conditions.

Condition 14‑3

Condition 14‑3 corresponds to conditions 13‑5, 12‑5, 10‑4, 9‑4 and 7‑5. The applicants' attack upon the condition fails for the reasons I have given in relation to those conditions.

Condition 15‑2

Condition 15‑2 requires the proponent to prepare and submit a Mine Closure Plan in accordance with the Guidelines for Preparing Mine Closure Plans May 2015 (or any subsequent revisions of the Guidelines), to the requirements of the CEO on advice from the Department of Mines and Petroleum, prior to the commencement of ground disturbing activities or when otherwise agreed in writing by the CEO.
The conferral of a power upon the CEO to determine that the Mine Closure Plan that might be provided at some date other than prior to the commencement of ground disturbing activities is impugned for the same reasons as the equivalent provision in other conditions. It fails for the reasons I have given in relation to those conditions. I would also note that, on the projected life of the project, the Mine Closure Plan will not come into operation until 18 years after the project has commenced. In those circumstances, conferral of power upon an official to determine that the Plan will not be required prior to the commencement of any ground disturbing activities is entirely reasonable, and gives rise to no uncertainty or lack of finality.
The condition is also impugned on the basis that the content of the plan is subjected to the requirements of the CEO on the advice of the Department of Mines and Petroleum, which is said to constitute an unauthorised delegation of the Minister's power to the CEO. Again, this submission misconceives the legal requirements pertaining to conditions of this kind. In the case of a plan for the closure of a mine which is not anticipated to come into effect for another 18 years, it is entirely reasonable and appropriate for the Minister to involve an appropriate official in the scrutiny of such a plan, as and when it is prepared. The involvement of officials in functions of this kind is entirely consistent with the authorities to which I have referred. Given s 48 of the Act, the CEO is clearly an appropriate official upon whom the power might be conferred, and there is no uncertainty, lack of finality or unreasonableness in requiring the CEO to take the advice of the Department of Mines and Petroleum in relation to mine closure.

Condition 15‑3

Condition 15‑3 specifies particular requirements which must be met by the Mine Closure Plan which must be provided pursuant to condition 15‑2. It is impugned on the basis that it fails to provide 'clear, certain, final limits on the approved level of impact or standard of closure or rehabilitation'. However, that submission suffers the same flaws as the submissions advanced with respect to condition 6‑2. The environmental objectives which must be satisfied by the proponent with respect to decommissioning of the project and rehabilitation of the area are specified by condition 15‑1, which is not impugned. The obligation to achieve those objectives is not qualified in any way. Conditions 15‑2 and 15‑3 are only concerned with the preparation of a plan to meet the fundamental objectives specified in condition 15‑1. If the plan fails to result in those objectives being achieved, enforcement action can be taken in relation to condition 15‑1.

Condition 15‑4

Condition 15‑4 corresponds to condition 6‑7 and various other equivalent conditions. The applicants attack the condition on the same ground as the attack on those other conditions. The attack fails for the reasons I have already given in relation to those conditions.

Conditions 15‑5, 15‑6, 15‑7 and 15‑8

Conditions 15‑5 to 15‑8 inclusive all relate to the review and revision of the Mine Closure Plan in certain specified circumstances and generally. Each condition is attacked essentially on the ground that the provision for review creates uncertainty. Again, this submission overlooks the limited role played by the Plan in the operation of the conditions - the significant condition being the unqualified obligation imposed by condition 15‑1 (which is not impugned). Further and in any event, provisions for the review and revision of a mine closure plan which is expected to operate over a four year period are entirely appropriate to provide the flexibility required to respond to conditions and circumstances which might emerge during the implementation of the plan. Conditions providing flexibility of this kind are entirely consistent with the authorities to which I have referred.

Condition 15‑9

Condition 15‑9 corresponds with conditions 14‑3, 13‑5, 12‑5, 10‑4, 9‑4, 8‑4 and 7‑5. The applicants attack upon the condition fails for the reasons I have given in relation those other conditions.

The applicants' general submissions with respect to ground 2

In the course of oral submissions counsel for the applicants synthesized the fundamental propositions advanced in support of ground 2 into four basic propositions.[60]
[60] ts 89.
First, it is asserted that condition 6 is the template which governs the operation of all the other conditions imposed and, in effect, delegates to the CEO, without lawful authority, the power to determine whether and to what extent the various other conditions will be satisfied. As I have already noted, this submission misconstrues the conditions in a fundamental respect. The environmental objectives which must be met by the proponent are specified in a number of conditions other than condition 6, in terms which are not generally impugned by the applicants. The obligation of the proponent to satisfy those conditions cannot be met merely through compliance with condition 6. To the contrary, condition 6 imposes obligations over and above those pertaining to the environmental objectives which must be achieved in accordance with other conditions.
Second, the applicants submit that the conferral of power upon the CEO to determine times at which particular plans must be submitted after ground disturbing activities have commenced creates uncertainty and results in an unauthorised delegation of power to the CEO to determine whether or not those conditions must be met. That submission must be rejected for the reasons I have already given.
Third, the applicants submit that the conditions have no material content and are limited to the statement of broad objectives. Obviously a submission cast in those abstract terms cannot be evaluated other than by reference to particular conditions. It will be evident from my review of the conditions which the applicants impugn that almost all of the criticisms of this kind are directed at conditions relating to the preparation and submission of operational plans. As I have noted, a degree of flexibility in relation to the operation of those plans is entirely to be expected and, in any event, the plans are simply a means to an end - namely, the achievement of the environmental objectives specified in other conditions in terms which are not generally impugned by the applicants.
Fourth, the applicants submit that the conditions do not involve objective criteria (other than condition 15‑2 which is, curiously, also impugned). Again, it is impossible to address a submission cast at this level of generality other than by reference to specific conditions, which I have done above. At the risk of repetition, most of the applicants' attacks have been directed at conditions relating to the preparation of operational plans, whereas the critical components within the conditions are those which impose obligations to achieve specified environmental objectives, most of which are not impugned. To the extent that attacks have been made on particular environmental objectives specified in the conditions, those attacks fail for the reasons I have given.

Summary in relation to ground 2

The various propositions advanced by the applicants in support of ground 2 are characterised by:
(a)misconstruction of the terms of the conditions, their operation and effect; and
(b)the attribution of legal qualities which the conditions must bear which are not consistent with established legal principle.
For the reasons I have given, none of the conditions impugned by the applicants are invalid. It follows that this ground must be dismissed. It also follows that none of the issues relating to severance of any invalid conditions, or relating to the effect to which invalidity of one of more conditions may have upon the validity of the environmental approval addressed by the parties in their submissions arise for determination.

Conclusion

For the reasons I have given, these proceedings must be dismissed.

Schedule