Huon Aquaculture Group Limited v Minister for the Environment
[2018] FCA 1011
•6 July 2018
FEDERAL COURT OF AUSTRALIA
Huon Aquaculture Group Limited v Minister for the Environment [2018] FCA 1011
File number: TAD 4 of 2017 Judge: KERR J Date of judgment: 6 July 2018 Catchwords: ENVIRONMENT LAW – application for declaration that a decision of the Minister for the Environment that an action referred to him pursuant to s 69 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) was invalid – Minister determined that the proposed action was not a controlled action if carried out in accordance with specified manner provisions – declaration sought by a company that had proposed to take the relevant “action” – whether relief should be refused assuming invalidity – applicants resiling from seeking to prove that “action” had or would have a significant impact on matters of national environmental significance – principles applying to discretion to grant relief – delay – alternative relief – acquiescence – effect on other parties having ordered their affairs in reliance on the decision – application dismissed Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss 12, 15B, 18, 43A, 43B, 68, 73, 74AA, 75, 76, 77, 77A, 78A, 78B, 475
Judiciary Act 1903 (Cth), s 39B
Marine Farming Planning Act 1995 (Tas), s 23
Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8; (2008) 165 FCR 211
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344
Huon Aquaculture Group Limited v Secretary, Department of Primary Industries, Parks, Water and Environment [2017] FCA 1615
Huon Aquaculture Group Limited v Secretary, Department of Primary Industries, Parks, Water and Environment (No 2) [2018] FCA 89
Jadwan Pty Ltd v Secretary, Department of Health & Aged Care [2003] FCAFC 288; (2003) 145 FCR 1
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309
Lansen v Minister for Environment and Heritage [2008] FCAFC 189; (2008) 174 FCR 14
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
Tooth & Co Ltd v Parramatta City Council [1955] HCA 21; (1955) 97 CLR 492
Triabunna Investments Pty Ltd v Minister for the Environment and Energy [2018] FCA 486
Date of hearing: 19-26 March 2018 Registry: Tasmania Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 294 Counsel for the Applicants: Mr A Galasso SC with Mr A Spence Solicitor for the Applicants: Page Seager Counsel for the Third Respondent: Mr G R Kennett SC with Mr A D Pound Solicitor for the Third Respondent: Clayton Utz Counsel for the Fourth Respondent: Mr C Gunson SC with Ms E A Bennett Solicitor for the Fourth Respondent: Corrs Chambers Westgarth Counsel for the Fifth Respondent: Mr S McElwaine SC with Ms K Cuthbertson Solicitor for the Fifth Respondents: Shaun McElwaine & Associates
Table of Corrections 9 July 2018
At [72], the word “not” has been deleted between “would” and “be”.
9 July 2018
At [120], the word “and” has been deleted between “both” and “Mr”.
9 July 2018
At [169], “curios” has been replaced with “curious”.
9 July 2018
At [274], “their respective clients” has been changed to “the Fourth and Fifth Respondents”.
ORDERS
TAD 4 of 2017 BETWEEN: HUON AQUACULTURE GROUP LIMITED
First Applicant
HUON AQUACULTURE COMPANY PTY LTD
Second Applicant
SOUTHERN OCEAN TROUT PTY LTD
Third Applicant
AND: MINISTER FOR THE ENVIRONMENT (COMMONWEALTH)
Third Respondent
PETUNA AQUACULTURE PTY LTD
Fourth Respondent
TASSAL OPERATIONS PTY LTD (ACN 106 324 127)
Fifth Respondent
JUDGE:
KERR J
DATE OF ORDER:
6 JULY 2018
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The Applicants pay the Fourth and Fifth Respondents’ costs as agreed or assessed.
3.The Applicants pay the Third Respondent’s costs up to and including 27 April 2017 as agreed or assessed.
4.The Third Respondent have leave to file and serve an application to vary Order 3, together with submissions limited to 5 pages, no later than 4.00 pm on Friday 3 August 2018.
5.The Applicants have leave to file and serve responsive submissions, limited to 5 pages, no later than 4.00 pm on Friday 31 August 2018.
6.The Third Respondent have leave to file and serve reply submissions, limited to 2 pages, no later than 4.00 pm on Friday 14 September 2018.
7.The Court will determine any application made pursuant to Order 4 on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
Table of contents
1 Introduction
[1]
1.1 The history of these proceedings
[12]
2 Background
[19]
2.1 Description of Macquarie Harbour
[19]
2.2 Marine farming in Macquarie Harbour was an established use prior to the passage of the EPBC Act in 1999
[21]
2.3 The then system of regulation under Tasmanian law
[24]
2.4 Passage of the EPBC Act 1999
[26]
2.5 Huon, Petuna and Tassal take the view that the expansion of fish farming in Macquarie Harbour was desirable
[29]
2.6 Tasmanian government and DPIPWE agree with Huon, Petuna and Tassal that expanded marine farming in Macquarie Harbour should be facilitated
[31]
2.7 Proposal to expand marine farming in Macquarie Harbour referred to the Minister
[34]
2.8 The nature of the referral mechanism
[40]
2.9 The Minister seeks further information from DPIPWE
[46]
2.10 Department receives legal advice that referral is for an action to be undertaken by Huon, Petuna and Tassal
[53]
2.11 Department submits a Referral Decision Brief to the Minister
[62]
3 The Minister’s decision
[66]
4 Terms of s 77 Notice
[68]
5 The events that followed the Minister’s decision
[71]
5.1 Limits to the relevance of any facts post the date of decision
[71]
5.1.1 Huon, Petuna and Tassal confirm that they will undertake the action in accordance with the manner provisions and commence expanding their fish farming operations
[74]
5.1.2 Mid 2013 passes without new biomass limits being identified and set by the Tasmanian Government
[78]
5.1.3 Conflict arises regarding review
[80]
5.1.4 Tassal proceeds on the basis that the limit on total biomass to be held across all leases had ‘fallen away’ because the Tasmanian Government had not identified any altered level after it had been provided with the Industry Report
[88]
5.1.5 Tassal unilaterally increases its smolt input to 100% of its allocated quota
[92]
5.1.6 Huon and Petuna request DPIPWE to immediately impose a total biomass limit
[97]
5.1.7 Huon seeks legal advice and threatens legal action
[98]
5.1.8 DPIPWE advises Huon and Petuna that it considers the biomass limit provided for in manner provision 2(f) has lapsed
[101]
5.1.9 Huon alerts the Commonwealth to its concerns
[103]
5.1.10 Commonwealth declines to become involved: State is the regulator
[105]
5.1.11 Huon neither applies for a declaration as to the construction of manner provision 2(f) nor seeks reconsideration of referral decision pursuant to s 78A EPBC
[106]
5.1.12 Huon continues to press its concerns
[110]
5.1.13 DPIPWE increases permissible total biomass inequitably on Huon’s assessment
[117]
5.1.14 Huon finally commences legal action
[121]
5.1.15 State regulator subsequently proposes a significant decrease in total biomass – if implemented it will bring stocking levels back to approximate those which existed prior to expansion
[123]
6 Huon’s pleadings
[126]
7 Should relief be refused at the threshold?
[140]
7.1 The Minister’s submissions
[140]
7.2 Petuna’s submissions
[143]
7.3 Tassal’s submissions
[146]
7.4 Huon’s submissions
[147]
8 Findings relevant to discretion
[150]
8.1 Huon’s directors have a reasonable basis for their subjective opinions and concerns
[152]
8.2 Huon abandoned its claim that the action undertaken by marine farmers has had or will have significant impacts on matters of national environmental significance
[156]
8.3 To what degree, if any, would a declaration of invalidity adversely affect the interests of Petuna, Tassal and third parties?
[162]
8.4 Consequences of ceasing marine aquaculture in Macquarie Harbour likely to be significant for Tassal and potentially catastrophic for Petuna
[165]
8.5 Court rejects it is entitled to find that marine farming could be resumed on a business as usual basis after only a short delay
[168]
8.6 Section 43B argument
[180]
8.7 Minister likely to require referral of larger action
[195]
9 Consideration
[197]
9.1 Discretion to refuse relief
[197]
9.2 Delay and the availability of alternative relief
[206]
9.3 Huon has provided no satisfactory explanation for its delay
[232]
9.4 Implausible that Huon expected its subsequent representations to bring about the changes it believed necessary
[238]
9.5 Acquiesce and taking advantage of the decision
[246]
9.6 Detriment likely to be experienced by third parties that have ordered their affairs in reliance on the validity of the decision Huon seeks to impugn
[257]
9.7 Inconsistency of Huon’s position regarding environmental consequences
[265]
9.8 Exposure to risk of prosecution
[274]
9.9 Conclusion with respect to the Court’s exercise of discretion
[275]
9.10 The Hardiman principle
[276]
9.11 Relevance of relief not sought
[284]
10 Disposition and costs
[287]
KERR J:
1. Introduction
The Applicants seek a declaration that a decision made by the Commonwealth Minister for the Environment (the Minister) on 3 October 2012 pursuant to s 75 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) that a proposed action was not a controlled action if undertaken in a particular manner, is invalid. The proposed action was, greatly compressed by way of summary, the expansion of finfish farming in Macquarie Harbour.
The proposed action had been referred to the Minister by Mr Kim Evans, Secretary of the Department of Primary Industries, Parks, Water and Environment (DPIPWE). He did so under cover of a lengthy submission dated 29 May 2012 (Ex A1 pp 2-111).
In that referral, Mr Evans had informed the Minister as follows:
Three separate companies have been working jointly on the proposed expansion of salmonid farming activities in Macquarie Harbour … all three of which have existing salmonid framing operations … [i]t is expected that these companies will take up the expanded lease area.
(Ex A1 p 11)
In response to a question in the referral template asking for the identity of the person proposing to take the action, Mr Evans had advised the Minister:
Given that the three individual companies are jointly involved in the proposed expansion and that DPIPWE will be actively managing both implementation of the amended MFDP [Marine Farming Development Plan], along with the adaptive management framework associated with the proposal … it was considered that one EPBC referral would be the most efficient and effective way of progressing the proposal. For this reason DPIPWE is the proponent for the action rather than each of the individual companies. It is the intent that the management approaches and mitigation measures will be applied by companies through leases and licences that the companies will hold.
(Ex A1 p 107)
An unusual feature of these proceedings is that the challenge to the validity of the Minister’s decision has been brought by one of the three fish farmers named by Mr Evans in the referral as having worked jointly on the proposed expansion, Huon Aquaculture Group Limited (Huon). Although nominally three companies are seeking relief, the two other Applicants are subsidiaries of the First Applicant Huon.
Huon brings these proceedings notwithstanding it later having expanded its own finfish farming operations in Macquarie Harbour in reliance on what it now asserts had been the Minister’s merely purported decision. The Minister is the Third Respondent. The other two fish farmers are the Fourth Respondent, Petuna Aquaculture Pty Ltd (Petuna) and the Fifth Respondent, Tassal Operations Pty Ltd (Tassal).
The Third, Fourth and Fifth Respondents each deny that the Minister’s decision was invalid.
The Minister does not submit that Huon has no arguable grounds for its application. The Minister however submits (and is joined in his submission by the Fourth and Fifth Respondents) that the Court should reject Huon’s entitlement to relief on established principles applying to discretionary remedies without traversing (but assuming for that purpose) the merits of Huon’s application.
The Respondents therefore further plead in their respective defences (although variously differently expressed) that, having regard to Huon’s delay in bringing these proceedings, its prior inconsistent conduct, and that the two other fish farmers, Petuna and Tassal (which had also relied on the validity of the Minister’s decision) would suffer financial and legal detriment if the Court were to make the declaration Huon seeks, Huon is not entitled to declaratory relief.
Huon submits that the Court should reject that proposition. It has adduced evidence that the motivation for Huon bringing these proceedings is that its directors believe on reasonable grounds that the expansion of salmonid aquaculture in Macquarie Harbour pursuant to the Minister’s purported decision has resulted in environmental damage in Macquarie Harbour, including but not limited to a significant reduction in dissolved oxygen levels. It submits that the Court is entitled to accept that evidence and conclude that Huon has reasonable grounds for that belief.
Huon submits that a declaration that the Minister’s decision was invalid would not have the draconian consequences the Respondents hypothesise of causing it and the two other fish farmers, Petuna and Tassal, to cease operating in Macquarie Harbour. Rather, it would restore the position of the three fish farmers to that which pre-existed the expansion purportedly authorised by the Minister’s decision, with much lesser consequences.
Having regard to the terms of the EPBC Act there is, Huon submits, no sound discretionary basis for denying the issue of a declaration. Huon contends that the Court should address the case it advances on the merits. On that basis, Huon submits it can make good its challenge pleaded at [38] of its Third Further Amended Statement of Claim. Huon contends that the Minister’s decision was invalid for reasons of uncertainty and lack of finality, as well as it not being directed to the particular persons undertaking the action, and being dependent on decisions to be made from time by time by a third party, being the Secretary of DPIPWE, the former First Respondent (see at [12]-[15] below).
1.1 The history of these proceedings
Before the Court addresses the evidence and the parties’ respective contentions, it is appropriate first to observe that this litigation has had a complex procedural background.
Huon initially named the Secretary of DPIPWE as the First Respondent and the Director of the Environment Protection Authority (the EPA) as the Second Respondent in its originating application. Huon did so on the premise that DPIPWE, rather than the individual fish farmers (itself, Petuna and Tassal) was the person taking the action that had been referred to the Minister for his decision.
Huon’s pleadings in that regard were later abandoned before the scheduled trial of certain separate questions which the Court had agreed to decide. One of those questions had involved the correct identity of the person taking the action.
Once Huon had amended its pleadings, the First and Second Respondents applied to cease to be parties. The Court gave its reasons for granting their applications in Huon Aquaculture Group Limited v Secretary, Department of Primary Industries, Parks, Water and Environment (No 2) [2018] FCA 89.
In the context of the procedural background to these proceedings it is also appropriate to note that following the Court’s earlier interlocutory decision in Huon Aquaculture Group Limited v Secretary, Department of Primary Industries, Parks, Water and Environment [2017] FCA 1615 (Huon No 1), Huon further amended its pleadings by deleting its earlier contentions that the action as determined by the Minister to not be a controlled action if undertaken in a particular manner has, will have, or is likely to have a significant impact on a declared World Heritage Area and/or a listed threatened species.
In the aftermath of those amendments to Huon’s pleadings, there being no objection from any party, the Court determined not to proceed with a trial of the remaining separate questions. Instead, a full hearing was scheduled and a trial was conducted on all issues. The parties did not further amend their pleadings, and the Court did not consider it necessary to order revised pleadings following the First and Second Respondents ceasing to be parties. Huon’s Third Further Amended Statement of Claim and the Respondents’ several defences thereto, in so far as they refer to the First and Second Respondents, are to be comprehended as references to the Secretary of DPIPWE and the Director of the EPA respectively.
I now set out the background to the Minister’s decision.
2. Background
2.1 Description of Macquarie Harbour
Macquarie Harbour is on the west coast of Tasmania. Both the Harbour and those parts of it subject to existing Tasmanian regulatory control for aquaculture were described in the referral dated 29 May 2012 made by DPIPWE under its Secretary’s signature in the following terms:
… The harbour lies approximately 175 km to the north west and south west of the major Tasmanian cities of Hobart and Launceston respectively. The nearest township to the marine component is Strahan, approximately 11 km to the north of the closest proposed development on the water.
The area covered by the Macquarie Harbour [Marine Farming Development Plan] is the physical extent of the harbour outside the Tasmanian Wilderness World Heritage Area (TWWHA) and includes part of the South West Conservation Area. It consists of all that area bounded by the high water mark between lines drawn from Coal Head and Steadmans Point across the harbour to the south east and the entrance to the harbour to the north west at a line drawn between Braddon Point through Bonnet Island Light to the western shore …
The harbour itself is a large estuary where saline ocean waters mix with freshwaters predominantly from the Gordon and King Rivers and Birchs Inlet. The harbour has a shallow restricted entrance which opens into a long deep basin with depths ranging from 0 – 50 m in the centre of the harbour; an old Gordon River channel follows the southern shoreline before reaching shallow sand banks to the north west of Table Head; and shallow water at the entrance to the Gordon River and a formed delta at the mouth of the Kind River.
The natural harbour is approximately 33 km long and 9 km wide with a total surface area of 276 square km. The water column in the harbour is typically three-layered: fresh, marine, and intermediate, trending to a salt wedge structure near the two rivers. (Ex A1 p 8)
No party submits that that was not an accurate description of the harbour.
2.2 Marine farming in Macquarie Harbour was an established use prior to the passage of the EPBC Act in 1999
The referral also advised (Ex A1 p 25):
… [F]ish farming in Macquarie Harbour commenced prior to the EPBC in the mid 1980s, and incremental changes since then were determined unlikely to have a significant impact on MNES [matters of national environmental significance].
It is not contentious that each of Huon, Petuna and Tassal had individual pre-existing marine leases in Macquarie Harbour and were growing and harvesting fish before the passage of the EPBC Act. Their individual entitlements to continue fish farming in Macquarie Harbour after the passage of the EPBC Act had been “grandfathered” by s 43B of the EPBC Act:
Actions which are lawful continuations of use of land etc.
(1)A person may take an action described in a provision of Part 3 without an approval under Part 9 for the purposes of the provision if the action is a lawful continuation of a use of land, sea or seabed that was occurring immediately before the commencement of this Act.
(2)However, subsection (1) does not apply to an action if:
(a)before the commencement of this Act, the action was authorised by a specific environmental authorisation; and
(b)at the time the action is taken, the specific environmental authorisation continues to be in force.
Note: In that case, section 43A applies instead.
(3)For the purposes of this section, neither of the following is a continuation of a use of land, sea or seabed:
(a) an enlargement, expansion or intensification of use;
(b) either:
(i)any change in the location of where the use of the land, sea or seabed is occurring; or
(ii) any change in the nature of the activities comprising the use;
that results in a substantial increase in the impact of the use on the land, sea or seabed.
The actions of Huon, Petuna and Tassal respectively in connection with growing and harvesting salmon in Macquarie Harbour were a lawful continuation of a use of land, sea or seabed that was occurring immediately before the commencement of the EPBC Act. That use was lawful. It was authorised by and was subject to regulation under Tasmanian law. It is thus uncontentious in these proceedings that each of the then operators (Huon, Petuna and Tassal) had been entitled to continue marine farming in Macquarie Harbour beyond the coming into force of the EPBC Act subject to the qualifications imposed by s 43B(3). Those qualifications included that there be no enlargement, expansion or intensification of use.
2.3 The then system of regulation under Tasmanian law
The then applicable state legislation which regulated finfish farming was described in the referral by Mr Evans as follows:
2.4 Context, planning framework and state/local government requirements
…
Marine farming in Tasmanian waters is subject [to] the provisions of the Marine Farming Planning Act 1995 (MFPA) and the Living Marine Resources Management Act 1995 (LMRMA). Both Acts sit within the overarching Resource Management and Planning System of Tasmania (RMPS) which is made up of a suite of legislation containing the objectives of the RMPS.
The MFPA provides for the preparation of Marine Farming Development Plans, amendments to plans and reviews of plans. Plans use a zoning concept to identify areas that are suitable for marine farming activities. The plans identify the maximum area that can be allocated for a marine farming lease or leases within marine farming zones, broad categories of species that may be farmed within those lease areas and the operational constraints (called management controls) on those operations.
The objectives of the MFPA are to integrate marine farming activities with other marine users, minimise any adverse impacts, take account of land uses and take account of the community’s right to have an interest in those activities.
The MFPA prescribes statutory processes for the preparation of MFDPs, amendment and review of plans. These provisions include environmental assessments, public consultation and consideration of issues by an independent and expertise based Panel established to make recommendations to the Minister of Primary Industries and Water. The Minister is charged with the responsibility to approve or not approve plans or amendments to plans.
Fourteen MFDPs have been prepared to cover the major areas in Tasmania suited to marine farming activities.
While the MFPA provides for the occupation of State waters for marine farming activities and controls the extent of these activities the LMRMA includes provisions to licence a leaseholder to farm specific species and further impose operational constraints on activities.
The regulation of marine farming activities is therefore achieved through multiple controls:
ŸStatutory provisions under the MFPA and LMRMA
ŸManagement controls contained within marine farming development plans
ŸMarine farming licence conditions.
The Macquarie Harbour Marine Farming Development Plan October 2005 provides for the culture of salmonids (Atlantic salmon, rainbow trout and brook trout) in 10 marine farming zones up to a maximum leasable area of 564 hectares. …
The approval of developments and operation of terrestrial components associated with marine farming is regulated primarily through the Land Use and Planning Approvals Act 1993 (LUPAA) and the Environmental Management and Pollution Control Act 1994 (which are both part of the RMPS). Depending on the nature and location of facilities other approvals may be required under State legislation including the following acts: Threatened Species Protection Act 1995, Aboriginal Relics Act 1975 and the Historic Cultural Heritage Act 1995. In addition, activities not covered by leases and licences, occurring within reserved areas should be undertaken in accordance with the State’s Reserve Management Code of Practice. For reserves managed by the Tasmanian Parks and Wildlife Service (PWS) approvals are required under the National Parks and Reserves Management Act 2002 to undertake certain activities. A Reserve Activity Assessment process is used by PWS to ensure any relevant activities are compliant with relevant statutes, policies and plans. In undertaking the assessment the benefits of the proposed activity (social, economic and environmental) are also identified as are any measures taken to maximise benefits to the environment and to minimise impacts upon it.
Activities associated with marine farming that may take place in areas adjacent to that covered by the MFPD may also require regulation under other State legislation, including: Natura Conservation Act 2002: (reservation, wildlife management), Animal Health Act 1995 (introduction or pest species), Weed Management Act 1999 (introduction of weeds), Plant Quarantine Act 1997 (introduction of plant pests) Crown Lands Act 1976 (regulation of activities on Crown Land), Veterinary Chemicals (Control of Use) Act 1995 (safe use of chemicals, including disposal) and Marine and Safety Authority Act 1997 and associated regulations (boat speed and safe handling).
(Ex A1 pp 21-22)
While extensively regulated, no party submits that the fish farmers’ prior individual actions had been the subject of a specific environmental authorisation as defined in s 43A of the EPBC Act.
2.4 Passage of the EPBC Act 1999
The EPBC Act received Royal Assent on 16 July 1999 and came into force on 16 July 2000. The EPBC Act, among other things, established a scheme that required a person proposing to take an action he or she thinks may be a controlled action (that is one that has, will have, or is likely to have a significant impact on a matter of national environmental significance as defined in Pt 3, Div 1) to refer the proposed action to the Minister (s 68).
It is unnecessary for the purposes of these reasons to set out the provisions of Pt 3 of the EPBC Act. It is sufficient to indicate that as relevant to these proceedings Pt 3 includes provisions relating to World Heritage properties, National Heritage places and listed threatened species and communities.
Given the nature of fish farming and Macquarie Harbour’s adjacency to the Tasmanian Wilderness World Heritage Area, it may be thought self-evident that any action involving the enlargement, expansion or intensification of use of Macquarie Harbour for aquaculture after the commencement of the EPBC Act was an action that had to be referred to the Minister.
2.5 Huon, Petuna and Tassal take the view that the expansion of fish farming in Macquarie Harbour was desirable
It is uncontentious that, after the coming into effect of the EPBC Act, the three operators came to share the view that their fish farming operations in Macquarie Harbour could and should be expanded. Despite the concerns Huon has since come to have regarding the pressures increased fish stocking have placed on the general health of Macquarie Harbour, at that time Huon shared the views of Petuna and Tassal that an expansion of fish farming in Macquarie Harbour could be conducted sustainably and was desirable. Huon’s counsel, Mr Galasso SC, in his opening submission accepted that Huon had “participated in the contemplation of the expansion of marine farming in Macquarie Harbour” (transcript p 8 lines 6-7).
Under the Tasmanian regulatory system a change of that kind required an amendment to the Macquarie Harbour Marine Farming Development Plan October 2005 (MHMFDP). The operators’ application for such an amendment was required to be accompanied by an Environmental Impact Statement (EIS) pursuant to s 23 of the Marine Farming Planning Act 1995 (Tas) (Ex A1 p 22). Accordingly Huon, Petuna and Tassal cooperated in preparing and producing an EIS (Ex A2 pp 85-1176) to accompany draft amendments to the MHMFDP. They also were responsible for the preparation and production of an Addendum to that EIS (Ex A2 pp 1-1176). The introduction to the Executive Summary of the EIS states (Ex A2 p 106):
The Tasmanian salmonid (Atlantic salmon and rainbow trout) industry provides significant economic benefits to the State and has contributed to Tasmania’s reputation as a quality producer of fine foods. Within 20 years of the first commercial harvests, farmed salmonids have become the leading farming activity in Tasmania ahead of dairy, vegetables, poppies, pyrethrum, beef, fine wool, wine and the once iconic apple industry. In the 2010-2011 financial year the industry produced 32,328 T of salmonids with a farm gate value of $379 million. It has become a standout Tasmanian brand icon.
The industry continues to experience strong sales momentum despite the current challenging economic environment. Sales are proving resilient with sales approaching $400 million at wholesale levels. The salmon and trout farming industry currently create over 1,200 direct jobs and $150 million to the Tasmanian Gross State Product.
The purpose of this proposal is to expand existing salmon farming operations in Macquarie Harbour by 362 ha of leasable area, with a view to maximising sustainable production in the harbour. This proposal is in line with the industry’s 2010-2030 strategic plans to double total salmon production in Tasmania by 2030 and to strategically enable ongoing growth in the industry.
A Social Return on Investment (SROI) analysis has been conducted on this proposed expansion. The SROI analysis suggests that the proposed expansion will deliver, during the first five years, an additional $24.2 million in social value in areas identified by the local community.
This means that, on top of the actual capital and operating investment by the proponent and within the constraints of the models used, the combined increases in social return and Gross Regional Product could be expected to provide an additional $88.6 million in benefit to the North West region in the first five years following the start of the proposed expansion phase.
The three companies currently growing salmonids in Macquarie Harbour, Tassal Operations Pty Ltd (Tassal), Huon Aquaculture Group Pty Ltd (Huon) and Petuna Aquaculture Pty Ltd (Petuna), collectively the Proponent, are collaborating in the sustainable development of the harbour and subsequently in the development of this proposal and the accompanying EIS.
2.6 Tasmanian government and DPIPWE agree with Huon, Petuna and Tassal that expanded marine farming in Macquarie Harbour should be facilitated
Following receipt of that EIS and its Addendum, the state government amended the MHMFDP in May 2012. The amendment increased the leasable area for fish farming in Macquarie Harbour to facilitate increased production.
However, the planned expansion required Commonwealth approval. Section 42B(3) of the EPBC Act expressly excluded (inter alia) the expansion of an action from the exemption provided for an existing use.
Section 69 of the EPBC Act provides a mechanism for a state or an agency of a state with administrative responsibilities for matters for which it is responsible to refer a proposed action a party is proposing to take that requires the Minister’s decision as to whether or not it is a controlled action:
State or Territory may refer proposal to Minister
(1)A State, self-governing Territory or agency of a State or self-governing Territory that is aware of a proposal by a person to take an action may refer the proposal to the Minister for a decision whether or not the action is a controlled action, if the State, Territory or agency has administrative responsibilities relating to the action.
(2)This section does not apply in relation to a proposal by a State, self-governing Territory or agency of a State or self-governing Territory to take an action.
Note: Section 68 applies instead.
2.7 Proposal to expand marine farming in Macquarie Harbour referred to the Minister
On 29 May 2012, DPIPWE referred the proposed expansion of marine farming activity in Macquarie Harbour to the Minister for determination pursuant to the EPBC Act. The referral, together with 12 appendices, is at pp 2-354 of Ex A1.
A “short description” of the proposed action is set out at p 6 of Ex A1:
The proposed action is:
ŸThe expansion of marine farming operations, that will occur consistent with the 2012 amendment to the Macquarie Harbour Marine Farming Development Plan, which will include the following activities:
ŸThe arrangement and securing of sea pens for fish farming;
ŸThe construction of associated water based infrastructure;
ŸThe operation of fish farms including:
ŸServicing and maintenance of sea pens and associated water and land based infrastructure;
ŸFeeding and managing the health, waste, processing and predators of fish in the farms;
ŸTransportation of fish to and from the farms across water and land.
(Footnote omitted.)
The referral provided a more detailed description of the proposed action (Ex A1 pp 11-20):
Background – Expansion of Marine Farming
The approval of the amendment to the MFDP has paved the way for the following to occur:
Ÿchange in location of existing marine farming zones and lease areas
Ÿincrease in leasable area within zones
Ÿaddition of a new zone
Ÿchanges to management controls/operations which apply to zones
Changes to Lease Areas and Locations
To progress expansion of salmonid farming activities in Macquarie Harbour the Marine Farming Planning Act 1995 required an amendment to the existing Macquarie Harbour Marine Farming Development Plan October 2005. A full description of the amendment as it was initially proposed can be seen in Appendix 2 with the final amendment provided in Appendix 3. The marine farming review panel (MFRP) recommended further modifications to management controls post public consultation which, whilst not changing the intent of the management controls proposed in Appendix 2, did clarify wording around a number of issues.
The area covered by the Macquarie Harbour Marine Farming Development Plan October 2005 (DPIPWE 2005) is the physical extent of the harbour outside of the Tasmanian Wilderness World Heritage Area (TWWHA) and consists of all that area bounded by the high water mark between a line drawn from Coal Head and Steadmans Point across the harbour to the south east (being the Western Boundary of the TWWHA) and the entrance to the harbour to the west at a line drawn between Braddon Point through Bonnet Island Light to the western shore. …
The Act provides for the preparation of MFDPs that designate areas of State waters as marine farming zones and the maximum area that may be used for marine farming operations within zones. The Act also provides for provisions for operational constraints on marine farming activities.
The Macquarie Harbour MFDP prescribes 10 marine farming zones within the plan area which provide for the culture of salmonids in 564 hectares of marine farming lease area.
The amendment to the Macquarie Harbour MFDP has resulted in moving some zones to areas better suited to salmonid culture and expanding the maximum leasable area by 362 hectares to 926 hectares – this expansion includes the addition of a farming zone.
Variations to zone locations and sizes (including maximum leasable areas) has taken effect with the approval of the amendment, however new lease areas and variations to existing leases (including sizes and locations) will need to be approved consistent with the amendment. It is the intention of industry and the Planning Authority that these steps occur within quick succession. The specific changes to each zone are discussed in Appendix 1. … Table 2.1 indicates changes to locations and leasable areas.
Three separate companies have been working jointly on the proposed expansion of salmonid farming activities in Macquarie Harbour. These include Tassal Operations Pty Ltd (Tassal), Huon Aquaculture Group Pty Ltd (Huon) and Petuna Aquaculture Pty Ltd (Petuna), all three of which have existing salmonid farming operations within the MFDP area as it existed prior to the 2012 Amendment. It is expected that these companies will take up the expanded lease area. …
Changes to Management Controls
Section 3 of the Macquarie Harbour Marine Farming Development Plan October 2005 contains management controls to manage and mitigate negative effects that marine farm operations may have within the plan area.
The MFDP as amended has a number of existing management controls that will remain unchanged. Eleven new management controls have been inserted and 5 controls have been amended to cater for the proposed expansion. Appendix 3 illustrates the revised management controls and Appendix 4 provides context around new versus amended controls.
The Proposed Action
The proposed action is:
Ÿthe expansion of marine farming operations, that will occur consistent with the 2012 amendment to the Macquarie Harbour Marine Farming Development Plan, including the following activities:
ŸThe arrangement and securing of sea pens for fish farming;
ŸThe construction of associated water based infrastructure;
ŸThe operation of fish farms including:
ŸServicing and maintenance of sea pens and associated water and land based infrastructure;
ŸFeeding and managing the health, waste, processing and predators of fish in the farms;
ŸTransportation of fish to and from the farms across water and land.
The following components of each aspect of the action are described below, with specific details on activities to occur within each marine farming zone provided in Appendix 1 and Appendix 2:
Salmon Farming Operations Consistent with the MFDP
ŸConstruction and Infrastructure Development
ŸMooring and Grid System
ŸSize and Configuration of Sea Pens
ŸOther Infrastructure/Construction
ŸOperation of fish farms
ŸServicing and Maintenance of Sea Pens and Associated Infrastructure
ŸBoat Movements
ŸInfrastructure Maintenance
ŸFeeding and Managing Health, Waste, Processing and Predators of fish in the Farms
ŸFish size/stocking density
ŸFish Health
ŸPredator Control
ŸWaste Management
ŸEnvironmental Management
ŸTransportation of fish to and from the farms across water and land
Salmonid Farming Operations Consistent with the MFDP
The expansion of salmon farming operations within Macquarie Harbour, consistent with the 2012 Amendment of the MFDP will include activities associated with the construction of aquatic components of marine farms and ongoing operation of both terrestrial and aquatic components of marine farms. These include:
ŸThe construction, arrangement and securing of sea pens for fish farming;
ŸThe construction of associated land and water based infrastructure;
ŸThe operation of fish farms including:
ŸServicing and maintenance of sea pens and associated water and existing land based infrastructure;
ŸFeeding and managing the health, waste, processing and predators of fish in the farms;
ŸTransportation of fish to and from the farms across water and land.
Construction and Infrastructure Development
In order to operate, the expansion of fish farms in Macquarie Harbour requires the construction and placement of new and existing infrastructure.
New mooring and grid structures are required to moor existing, and additional sea pens to. The size of these pens varies across leases, as does their configuration and locations. Additional on water structures are also required for servicing expanded farms (e.g. barges).
Mooring and Grid system
Each company will use their own mooring system to attached sea pens/cages to. There are currently approximately 132 cages in Macquarie Harbour across 5 leases. Planned expansion of the industry under the amendment to the MFDP will see an increase in cage numbers to approximately 211. The mooring systems to be used across zones are described in Appendices 1 and 2. Baseline surveys which establish whether there will be any impacts from mooring and grid systems are not part of this action.
Size and configuration of Sea Pens
The location and configuration of pens associated with the amendment of the MFDP for each company are described in Appendices 1 and 2. … There are no change[s] to Zones 7 and 8 as a result of this proposal.
Other Infrastructure/Construction Aspects
Additional land and water based infrastructure will be required in order to operate fish farms associated with the proposed expansion. There is likely to be a need for some improvements to land based facilities over time.
Huon aquaculture immediately require a new centralised feeding system barge, with a view to a centralised feeding system involving dedicated feed barges proposed for each zone into the future. Additional power generators will be associated with new barges.
Two additional feeding boats are also likely to be required in the next 7 years.
Tassal’s feed storage shed is inadequate to cater for current needs and is in a poor state of repair – in addition access to the site is restricted (Appendix 2).
It is estimated that traffic movements will increase from around 90 to a maximum of 228 within 5 years – to manage this impost on Strahan township, and to streamline operations an aquaculture hub away from the Strahan township has been proposed.
Operation of Fish Farms
The operation of fish farms in Macquarie Harbour requires a range of activities within the key areas listed below:
ŸServicing and maintenance of sea pens and associated water and land based infrastructure;
ŸFeeding and managing the health, waste, processing and predators of fish in the farms;
ŸTransportation of fish to and from the farms across water and land.
Servicing and Maintenance of Sea Pens and Associated Infrastructure
Servicing of on water infrastructure involves the movement by boat of maintenance teams multiple times a day to sea pens to undertake a range of maintenance (and stock husbandry) tasks. Boat movements and maintenance tasks are described in detail below.
Boat Movements
Boat movements associated with marine farming activities in Macquarie Harbor can be placed into two categories; vessel movements from shore based operations to marine based operations and vessel movements within lease areas. Table 2.2 illustrates current and proposed boat movements by type.
Vessel movements from shore based operations to marine based operations consist of staff transfers to lease areas, feed transfer, net and equipment transfer, dive team movements and harvest vessels (Table 2.2). The proposed increase in movements represents an increase from 59 movements to 158 movements per week. Table 2.2 does not include movements undertaken by smaller vessels within lease areas.
Companies in Macquarie Harbour usually moor a number of vessels within the lease areas which are used to service the lease during operational hours. These vessels generally do not leave the lease area but travel between cages and mother barges.
* Tassal uses two existing marine farming leases in Macquarie Harbour which will be serviced by the same vessels on the one trip, therefore the traffic from Strahan to the leases will not change considerably but the distance travelled by the vessels will increase.
It should also be noted that harvesting will not occur all year round and from the same lease each year, for example, Tassal will harvested for 6 months of the year from Zone 9 every second year. The figures above have included harvest vessel movements all year round. Appendix 1 contains detailed descriptions of boat movements by zone.
Infrastructure Maintenance
A variety of maintenance tasks are undertaken either routinely or for a specific purpose. These tasks include:
ŸChecking of cage nets via scuba diving
ŸInspection of bird nets
ŸRepair of nets
ŸVessel maintenance for barges
ŸRoutine generator and other equipment maintenance
ŸInspection of moorings (divers and ROV)
Off water infrastructure maintenance, including maintenance on large barges occurs either at land based sites or in specialised workshop environments in Devonport and Burnie. Boat servicing, outboard servicing etc occurs at the slip yard in Strahan. Net maintenance and construction occur at land based net areas.
Specific maintenance activities are described by zone in Appendix 1. There will be no change to activities occurring at Zone 7 and Zone 8.
Feeding and managing the health, waste, processing and predators of fish in the farms
The management of fish farming activities includes the management of:
Ÿfish size and stocking densities;
Ÿfish feeding;
Ÿfish health;
Ÿpredator control;
Ÿwaste management;
Ÿenvironmental management.
Fish Size/Stocking Density
It is the intention that two species will be cultivated in the expanded marine farming operations in Macquarie Harbour: rainbow trout (Oncorhynchus mykiss) and atlantic salmon (Salmo salar).
Sites would be stocked with intake fish ranging in size from 80g – 300g depending on species and company. Harvest size would range from over 4kg to 5kg.
Current estimates are that around 3.2 million smolt are used in the harbour per year – this figure is expected to increase to around 6.3 million smolt with the expansion.
The maximum stocking density of fish would increase from 15 kg/m³ to 17 kg/m³ of cage volume.
Species and stocking approaches by zone can be seen in Appendix 1.
Information regarding fish size and number, stocking density (also biomass limits on an area basis i.e. tonnes/ha) and feed volume all have links to the modelling used to determine the sustainable carrying capacity (total biomass and stocking density) of Macquarie Harbour for this development. They are also associated with the adaptive management framework that is proposed. Of these, the potential to prescribe stocking density and biomass limits have been incorporated into management controls.
Fish Feeding
Feeding is currently undertaken via boats using water cannons as well as by centralised feed systems with the operator either using camera feedback systems to control the feeding or, the system responding to appetite ingestion rate of the fish to feed to satiation without waste.
The feed used is commercial extruded feed and dry extruded sinking pellets sourced from both within Tasmania and interstate. There is no change to the types of feed to be used in the expansion from currently farmed area. The volumes of feed will vary depending on market expansion, smolt type, smolt size, transfer date, photoperiod regime, water temperature, fish health, and harvest profile.
Sediment monitoring is carried out during the Annual Video Surveys as required by marine farming licence conditions, as well as during routine internal environmental monitoring programs companies run. Monitoring methods follow those employed to assess seafloor condition as outlined in the Monitoring Protocols of the Fish farm licences.
Details of each company’s approach can be seen in Appendix 1.
Fish Health
Currently, there are no serious disease issues in Macquarie Harbour. Previously, a number of diseases have been identified in Macquarie Harbour; these have included yersiniosis, marine aeromonad disease of salmonoids (MAS) and vibriosis. In 2006, Ichthyophonus caused mortality in rainbow trout. In addition, Aquabirnavirus, Reovirus and a rickettsia-like organism (RLO) have also been detected.
The key component in the preventative disease program for Macquarie Harbour is vaccination against Marine Aeromonad Disease and vibriosis. Since the introduction of the vaccination process, there have been no outbreaks of these diseases. Additionally, there is mandatory health surveillance carried out by Department of Primary Industries, Parks, Water and Environment (DPIPWE) personnel within the framework of the Tasmanian Salmonid Health Surveillance Program (Tas SHSP) which is a joint Industry and Government Program.
Further, the current operators within the plan area have developed a Fish Health Management Plan (FHMP) which will provide a specific detailed strategy for the ongoing management of fish health in Macquarie Harbour (See Appendix 2). The operators have signed off on the strategies outlined in the FHMP which consists of a combination of compliance, best practice and regulation through management controls and marine farming licence conditions. The FHMP addresses detailed, standard operating practices to prevent disease from entering the harbour, to prevent spread and impact of disease in the harbour and to respond to emergency disease situations. The FHMP will be reviewed annually or more frequently if needed.
Under expanded operations there will be an associated increase in the real amount of vaccinations being administered to smolt – currently trout and salmon have one vaccination by injection and one by bath in the hatchery and this will continue.
Chemical Usage
Chemical use in the marine environment will be restricted to fuels and oil based lubricants associated with boats, and disinfectants, cleaning agents and antibiotics. Fuels would constitute by far the majority, by volume, of the total amount of chemicals proposed to be used. Small volumes of disinfectants are used in a variety of manners for hygiene purposes, and cleaning agents are used on harvest infrastructure following harvesting operations. Antibiotics would only be prescribed over short periods to address illness and animal welfare issues. It is not possible to forecast antibiotic use, but it is expected that antibiotic use will remain low, if not absent, due to improved husbandry practices and effective vaccines.
It is proposed that most chemical usage will continue across the expansion area proportional to the increase in biomass being farmed. Based on this, it is predicted that a 263% increase will occur in the chemical use associated with the expansion.
Predator Control
Australian and New Zealand Fur Seals are a potential predator of salmon and trout in marine farms. The main means of controlling seal predation will be via exclusion, by means of heavily weighted sinker ring and tensioned cage nets and above water predator nets. Net barriers may also be required above the handrails to prevent seals from jumping into the cages. There is ongoing investigation and trialling of new exclusion and deterrent technologies. Under the DPIPWE’s seal management protocols, marine farmers can apply to the Department to relocate problem seals.
Birds are also a potential problem. The means of control to be used is prevention of access to the fish or to feed pellets, by means of properly designed and supported bird nets. See Appendix 1 for further zone specific details.
Waste Management
Both solid and liquid wastes are produced by marine farms and are managed by different means. It is expected that there will be a net increase in most waste streams generated commensurate with an increase in stocked cage numbers. Whilst this will not be realised during the first year of the expansion, there will be a gradual staged increase over time until all sites are fully stocked, at which point a 62% increase from current levels of land-based disposal of waste will be realised. Fish mortality wastes are expected to increase by 60% from current levels (see below).
Solid wastes include fish bodies (mortalities), waste from the harvesting process (including body parts and bloodwater), wastes on nets and uneaten feed.
Mortalities are collected and buried at an approved mort lease site or mort pit. Bloodwater and solid waste from the harvest process is contained in harvest bins during the harvest and either delivered to a processing facility at Devonport or, the waste is separated with the solid component going to mort pits, and the liquid component released in to the municipal sewerage scheme through a Trade Waste Agreement with Cradle Mountain Water Authority depending on the marine farming company (Appendix 1).
Current levels of fish mortalities across the industry in Macquarie Harbour are generally around 1.97% (approx 63000 fish) of stocked numbers by live weight. It is expected that this rate would remain comparable following the expansion resulting in approx 124000 dead fish at full production. This would be an increase from current totals of around 60%.
Local government approval is required for fish waste volumes <100 tonnes to mort landfill sites. Currently three mort pits located around Strahan (Table 1.1). At full production levels this approval would be exceeded. It is not anticipated that this approved tonnage of mortality disposal would be exceeded within the first two years of the proposed amendment. Once the Council approval is exceeded the companies would need to gain Tasmanian Environmental Protection Authority approval for an alternative disposal option.
Discussions with a third party who currently render all fish mortalities from the east coast of Tasmanian have commenced to investigate ensilage options available for the collection and disposal of mortalities. The increased number of fish mortalities as a result of the proposed expansion would mean that the ensiling of this waste would be economically viable for the third party to the extent that transport costs would be off set. Initial discussions have revealed that it is likely that the third party would employ a local site Manager to ensure that the ensilage facility was run to the Environment Protection Authority approved standards.
Nets are, in general, simply hung to dry at the net processing sites. The dry bio-solids fall off the nets and are swept up and collected in bags and disposed of to landfill.
Uneaten feed is minimised through the use of underwater-video camera feedback systems and additional tools such as electronic pellet sensors. Any pellets that do fall through the cages are detected in routine video surveys, and the information is used to continuously improve feed management.
Fish faeces fall through the bottom of the fish cages and are deposited on the seabed below the cages. The cage positions are routinely fallowed to allow the biological processes in the sediment to process the organic matter, and for the sediments to recover.
All inputs into the marine environment that arise from the present amendment are to be mitigated through the adaptive management framework. This process drives the harbour Fish Farming Environmental Management Plan (FFEMP) which uses as its basis the modelling and a comprehensive regulatory and industry based monitoring program targeting both water quality and benthic parameters.
Targeted monitoring of benthic and water column parameters will be used to validate the model into the future and results for the validation will support the decision making process for fish farm stocking levels in the harbour.
At present environmental standards for substrate deposition are contained under Marine Farming Licence Conditions, Compliance with Environmental Standards. Recovery and accumulation rates are being addressed through the FFEMP using modelling and the results from the benthic part of the monitoring program and other related research will be used to inform future modelling. For remineralisation the Proponent is collaborating with Institute of Marine and Antarctic Studies (IMAS) and DHI consultants to initiate a research project to elucidate these processes in the harbour.
In terms of mitigation measures that may be implemented through farm operations year class fallowing is considered integral to any sustainable farming to allow regeneration of benthic communities and facilitate good environmental maintenance procedures for the production environment. Fallowing is assessed on a regular basis by the Proponent through the use of ROVs below the pens, both as part of the annual regulatory requirements (licence conditions) for substrate assessment and as an operational tool for assessing feed wastage and substrate impact.
In the future the fallowing period implemented will be based initially on the results of the benthic monitoring (directed through the FFEMP) as production increases. Appropriate management responses will be implemented if unacceptable changes are observed.
Liquid wastes include black and grey water from barges. Black water is either treated with an approved sewage treatment system and discharged after prescribed water quality parameters stipulated in marine farming licence conditions have been met or, it is transported to Strahan and released into the municipal sewage system. Grey water is either discharged within lease areas or released into the municipal sewage system depending on the company (Appendix 1).
Environmental Management
Biogeochemical and hydrological modelling has been used to determine a sustainable maximum carrying capacity of farmed salmonids in Macquarie Harbour of 35 T/ha of total lease area or subleased area held by a leaseholder, based on the planned expansion area.
The modelling that has been undertaken is considered to be contemporary. It is however acknowledged that the modelling, as with any form of predictive assessment, has limitations. To balance any potential limitations of the model a FFEMP will be implemented, which will provide an adaptive monitoring and modelling approach to track the initial predictions of the model over time and refine future modelling. See section 4 for further details. Continuing measurements of information to inform the benthic monitoring program and establishment of water quality baseline environmental data are not part of this action.
Transportation of fish to and from the farms across water and land
Significant increases in on and off water vehicular movements are likely to occur as a result of expansion of farming in Macquarie Harbour.
Boat movements are described in detail in Appendix 1 and represented in Table 2.2. Overall movements will increase from 59 movements to 158 movements per week.
The change in traffic movements one way into Strahan from Hobart and the North West coast by operator are outlined in Appendix 1 – these figures include passenger vehicles and small delivery/service type vehicles.
Existing farming operations are not considered to be part of the current action as fish farming in Macquarie Harbour commenced prior to the EPBCA in the mid 1980s, and incremental changes since then were determined unlikely to have a significant impact on MNES. In addition ongoing measurements associated with the benthic monitoring program and the establishment of water quality baseline environmental information are not included in the action.
(Footnotes omitted, emphasis in original.)
The involvement of Huon, Petuna and Tassal in requesting an amendment to the MHMFDP was identified in the referral as follows (Ex A1 p 22):
The three companies currently farming salmonids in the harbour have jointly requested an amendment to the Macquarie Harbour MFDP under section 33 of the MFPA to move and expand existing marine farming zones and leasable area and to create a new zone with leasable area. The requested amendment has resulted in an increase in leasable area of 362 hectares. Specific detains are contained in section 2.1 of this referral.
The Court notes that the detailed statement of the proposed action expressly excluded “[c]ontinuing measurements of information to inform the benthic monitoring program and establishment of water quality baseline environmental data” from the action (Ex A1 p 20). The reason for that is not apparent. It may be because DPIPWE had regarded those matters as within its own regulatory responsibilities rather than as a component of the action, but the documentation is silent on that.
As the history of this matter reveals, the way the referral had been expressed, as set out above, led the Department of Sustainability, Environment, Water, Population and Communities (the Department) initially to treat the action as having been referred under s 68, that is as an action proposed to be undertaken by DPIPWE itself (see below at [46]-[61]).
2.8 The nature of the referral mechanism
Subject to other provisions of the EPBC Act, including those relating to the Minister’s obligations to invite and consider comment and the Minister’s power to request further information (see s 76), none of which are contentious in these proceedings, the Minister is required, within 20 business days, to determine whether or not the proposed action is a controlled action or not: see s 75(5).
As was noted in Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8; (2008) 165 FCR 211 by Heerey J at [22], the referral mechanism thus operates as a kind of “triage system”.
The Minister, in undertaking that function, is required to consider all adverse impacts the referred action has, will have, or is likely to have on the matters of national environmental significance protected by each of the provisions of Pt 3 of the EPBC Act (s 75(2)(a)). He or she is required to exclude from his or her consideration any beneficial impacts the action has, will have, or is likely to have on those matters (s 75(2)(b)).
The Minister is thus charged with the task of determining within a relatively short timeframe which one of the following is to apply to a referred proposed action: (a) the proposed action is not a controlled action because it would not have a significant impact on any matter of national environmental significance; (b) that the proposed action is not a controlled action because the Minister believes it will be taken in a particular manner; or (c) it is a controlled action.
A controlled action is required to be evaluated pursuant to one or other of the assessment processes prescribed by Pt 8 of the EPBC Act.
For completeness, I note that those three options do not exhaust the possible outcomes: within the same short timeframe the Minister may determine that a proposed action is clearly unacceptable (s 74B).
2.9 The Minister seeks further information from DPIPWE
I am satisfied that, upon receiving the referral, the Department understandably, but in error, proceeded initially on the basis that DPIPWE itself was proposing to take the action.
On 6 June 2012, after receiving the referral, on the Minister’s behalf the Department sought further information regarding the proposed action from DPIPWE (Ex A1 pp 357-358). Nothing in that correspondence suggests the Department at that stage regarded Huon, Petuna and Tassal as being (collectively) the proponent of the action. That the Department sought further information only from DPIPWE entitles the Court to draw the inference that at that time the Department was operating under the apprehension that DPIPWE was the person proposing to the action. Section 75(5) provides that the time in which the Minister is required to make a decision in respect of a referral does not run while further information is sought pursuant to subs 76(1) or (2). Those subsections “stop the clock” only if the information has been sought from “the person proposing to take the action”.
On 27 June 2012, DPIPWE provided additional information in response to the Minister’s request (Ex A1 pp 359-367).
It is apparent that that further information failed to satisfy the Department that it should advise the Minister that the action would not be a controlled action. On 5 July 2012, Mr Andrew Tankey, Acting Assistant Director of the Environment Assessments Branch emailed Ms Fionna Bourne of DPIPWE regarding “outstanding issues for the Macquarie Harbour referral” (Ex A1 pp 368-369). In his email, Mr Tankey identified that the Department still had concerns regarding issues in relation to the Maugean Skate and the Tasmanian Wilderness World Heritage Area.
Mr Tankey told DPIPWE that the information it had provided at that stage was inadequate. There was an absence of detail regarding commitments. He exampled that trigger levels for ammonia, nitrate and dissolved oxygen had not been provided. Mr Tankey advised DPIPWE that “Not Controlled Action – Particular Manner” outcomes “are only possible where there are specific, quantified commitments that bind the referring party to undertaking the action in a specific way”.
On 5 September 2012 Mr Evans responded on behalf of DPIPWE to Mr Tankey’s request of 5 July 2102 that DPIPWE provide additional information about the proposed action.
Mr Evan’s response contained the following statements and undertakings:
The proposed expansion of marine farming activities under the Macquarie Harbour Marine Farming Development Plan as amended will result in the relocation of 59 percent of the existing marine farming lease area that currently occurs in less than 20 metres into the central, deeper water region of the Harbour. This will effectively reduce the lease area in regions where the Maugean Skate have been identified.
In relation to benthic impacts, and their possible impact on MNES – Maugean Skate, as previously outlined, baseline environmental surveys must be undertaken by lease holders prior to the commencement of marine farming operations within any marine farming lease area. Assessment includes the collection of information on the physical, chemical and biological characteristics of sediments, current flow, bathymentry and habitat assessment. The information is used as a benchmark against which marine farming operations are monitored.
In addition to the baseline monitoring assessment, marine farm licence conditions require leaseholders to undertake annual benthic video assessments of lease areas and compliance sites located 35 metres outside lease areas (See Attachment 1 standard monitoring methods and requirements). Compliance monitoring reports are assessed against marine farming licence conditions specific to benthic impacts associated with particulate organic deposition from finfish farming operations.
All marine farming operations in Tasmanian waters have the same licence conditions relating to unacceptable benthic impacts. The licence conditions are based on extensive international and local research, with the local research particularly focusing on the effects of marine farming derived organic enrichment on sediment condition and recovery processes. The following licence conditions relating to unacceptable benthic impact are currently in all marine farming licences for operations in Macquarie Harbour. These conditions will also be included in the licences granted for the operation of the proposed expanded marine farming operations.
There must be no significant visual, physio-chemical or biological impacts at or extending beyond 35 metres from the boundary of the Lease Area. The following impacts may be regarded as significant:
Visual Impacts:
ŸPresence of fish feed pellets;
ŸPresence of bacterial mats (e.g. Beggiatoa spp.);
ŸPresence of gas bubbling arising from sediment, either with or without disturbance of the sediment;
ŸPresence of numerous opportunistic polychaetes (e.g. Capitella sppp., Dovilleid spp.) on the sediment surface.
In the event that a significant visual impact is detected at any point 35 metres or more from the leave boundary the licence holder may be required to undertake a triggered environmental survey or other remedial activity determined by the Director.
Physio-chemical:
ŸRedox: A corrected redox value which differs significantly from the reference site(s) or is <O mV at a depth of 3cm within a core sample.
ŸSulphide: A corrected sulphide level which differs significantly from the reference site(s) or is >250µM at a depth of 3cm within a core sample.
Biological:
ŸA 20 times increase in the total abundance of any individual taxonomic family relative to reference sites.
ŸAn increase at any compliance site of greater than 50 times the total Annelid abundance at reference sites.
ŸA reduction in the number of families by 50 per cent or more relative to reference sites complete absence of fauna.
There must be no significant impacts within the Lease Area. The following impacts may be regarded as significant:
Visual impacts within Lease Area:
ŸExcessive feed dumping.
ŸExtensive bacterial mats (e.g. Beggiatoa spp.) on the sediment surface prior to restocking.
ŸSpontaneous gas bubbling from the sediment.
lf a significant impact (as defined in the licence conditions and outlined above) is detected within or outside the lease areas, during annual compliance monitoring surveys, targeted management responses are required, in addition to possible further investigation and depositional modelling.
Targeted management responses are implemented by way of management controls outlined in the Macquarie Harbour Marine Farming Development Plan as amended, by the Secretary of the Department of Primary Industries, Parks, Water and Environment and involve one or more of the following actions:
Ÿreduction in biomass,
Ÿreduction in nitrogen output, or
Ÿredistribution of biomass.
These management controls ore designed to regulate the stressor, both soluble and particulate, loads. Given that organic enrichment effects are lease specific, direction by the Secretary to reduce input is primarily focused on reducing biomass load, or redistributing biomass load within a specific marine farming lease area, including fallowing a particular pen bay or pen bays.
Where a significant impact, as defined, is observed, and specific management actions are required by the Secretary to be implemented, the leaseholder is required to undertake a follow-up benthic video assessment to m on it or benthic recovery.
The regulation of benthic impact from marine farming operations, as described above, has been in place for all marine farming operations in Tasmanian waters for the last 16 years. During this period it has been demonstrated that organic loading effect s from farming operations can be effectively managed using the environmental management framework outline above. This, together with the information regarding the distribution of Maugean Skate within Macquarie Harbour, including in close proximity to existing marine farm operations, leads the Department to the view that the expansion of marine farming activities in Macquarie Harbour will not have a significant impact on the MNES – Maugean Skate.
Tasmanian Wilderness World Heritage Area and Maugean Skate
Issues associated with water quality have the potential to impact on two MNES – the Tasmanian Wilderness World Heritage Area and the Maugean Skate. The Department has worked closely with representatives of the three companies who will be undertaking the marine farming expansion activities to develop an appropriate water quality monitoring program and water quality limits to ensure that the proposed expanded marine farming activities do not have a significant impact on these matters of MNES.
As you are aware, as part of the ongoing development of the model which was used by the State Government to assess the amendment to the Macquarie Harbour Marine Farming Development Plan, the three companies have been collecting monthly water quality data since September 2011. The model will be recalibrated during the first review cycle of the adaptive management framework, using at least 12 months of water quality data within the harbour that reflects the current extent of marine farming activities.
Marine farming licences will contain conditions that require the licence holders to undertake a water quality program to monitor changes in indicator levels relative to prescribed limits within Macquarie Harbour.
The monitoring program will involve continued assessment of the water quality indicators – ammonia, nitrate and dissolved oxygen, at 11 sites throughout the Harbour (refer Map 2 for sample locations) until mid 2013 after which the number of monitoring sites will be reviewed. In addition the marine farming licences will require quarterly reporting and interpretation of the results of the water quality monitoring program.
Water quality limits will be contained within marine farming licences, and will be based on the 80th/20th percentile values of the water quality indicators, based on the predictive biogeochemical and hydrological model outputs. The percentage values of the water quality indicators will be:
ŸAmmonia - 80th percentile;
ŸNitrate - 80th percentile;
ŸOxygen - 20th percentile.
As a precautionary measure to ensure that expansion of salmonid production in the harbour does not significantly impact on water quality, interim water quality limits have been established for the above water quality indicators. These interim limits will be in place until the first review of the adaptive management framework is completed in mid 2013, and will be included as mandatory conditions within the marine farming licences.
In mid 2013 the interim water quality limit levels will be reviewed. The approach to water quality limits after the review will be based on the 80th/20th percentile as is the case for the interim levels outlined above. The reviewed figures will be derived from a recalibrated biogeochemical and hydrological model that will be informed, amongst other things, by at least 12 months of water quality data collected from the harbour, and further predictive modelling.
The interim water quality limits and the water quality monitoring requirements contained within marine farming licences will not be updated, and additional finfish biomass above and beyond that indicated in the Secretary’s letter of 27 June 2012 will not be able to be added to the harbour until such time as the review is completed, and the marine farming licence conditions amended to reflect the outcome of the review.
The environmental condition of Macquarie Harbour has undergone a number of assessments, and in each of those assessments it has been determined that the harbour is not pristine, and has had some level of impact from past activities.
For example the Australian Natural Resource Atlas describes Macquarie Harbour as being of modified condition, and under the Conservation Significance of Tasmanian Estuaries project of my Department the harbour is classified as having low conservation significance as a result of being moderately degraded. (See Attachment 2 for further information).
In addition, if the ANZECC Classifications and Recommendations framework is used Macquarie Harbour would be described as a slightly to moderately disturbed ecosystem in which biological diversity may have been adversely affected to a relatively small but measurable degree by human activity.
The ANZECC Guidelines 2000 recommended that guidelines be developed on the basis of biological effects data, where such data is not available, or alternatively use base guidelines on the 80th and/or 20th percentiles of data from reference sites. In particular for slightly to moderately disturbed ecosystems such as Macquarie Harbour it is recommended that:
The trigger values are derived from the 80th and/or 20th percentile values obtained from an appropriate reference system. For stressors that cause problems at high concentrations (eg. nutrients, salinity), that the 80th percentile of the reference distribution as the low-risk trigger value. For stressors that cause problems at low levels (eg. low dissolved oxygen in waterbodies), use the 20th percentile of the reference distribution as a low-risk trigger value.
Biogeochemical and hydrological modelling has been used to consider the effects on water quality arising from the expanded salmonid farming activities. The modelling has predicted that certain parameters will be elevated with increased production. Assessment of the effects of the modelled outputs predicts that at the maximum level of modelled production there will be no significant impact on the environment and ecosystems of Macquarie Harbour, and that the expected effects fall within an ‘acceptable’ level of change.
The predictive biogeochemical and hydrological model output has been adopted for use for establishing the values of the water quality indicators because it is a specific tool that has been developed for Macquarie Harbour, taking account of the existing knowledge as it relates to the hydrodynamics of the harbour, and the existing environmental conditions, rather than applying a generic set of environmental guidelines. The model defines the limits of predicted change within acceptable ecological and toxicological levels as discussed in relevant literature and environmental guidelines. As such, the model will be used as the reference system when setting the water quality limits.
The interim limit levels for each of the water quality indicators are as follows:
Indicator Limit Ammonia (at 2 metres) 0.033 mg/L Ammonia (at 20 metres) 0.024 mg/L Nitrate (at 2 metres) 0.053 mg/L Oxygen (at 2 metres) 6.82 mg/L It is noted that the above limit levels for ammonia are significantly below the level of 0.460 mg/L outlined by Batley and Simpson (2009) as representing a low risk of acute or toxic effects in a slightly to moderately disturbed system. Given that nitrate is significantly less toxic than ammonia the Canadian Water Quality Guidelines: Nitrate Ion, Scientific Criteria Document (2012) recommends a long-term exposure guideline of 45 mg/L for nitrate for the protect ion of temperate marine species. The interim limit levels for nitrate proposed above is significantly less than this. Finally for oxygen, the interim limit level is well above that recommended by the US Environment Protection Authority as a safe/low risk chronic protective value. (See Attachment 3 for further information).
As with benthic impacts, the above interim water quality limit levels will be included as a mandatory condition of all marine farming licences. Specifically, marine farming licences will state that:
The regional annual rolling median value of any of the following indicators where directly attributable to marine farming operations, must not exceed the limits specified in the following table:
Indicators and Limits:
Indicator Limit Ammonia (at 2 metres) 0.033 mg/L Ammonia (at 20 metres) 0.024 mg/L Nitrate (at 2 metres) 0.053 mg/L Oxygen (at 2 metres) 6.82 mg/L Reporting of biomass and nitrogen inputs will also be a requirement of licence conditions, with quarterly reporting required for each marine farming lease area.
The assessment of indicators will be made on pooled results from the regional compliance monitoring stations … If the observed regional annual rolling median value for an indicator exceeds the specific limit prescribed in the marine farming licence condition, a management response will be required. Again, as with benthic impacts the management actions required by the Secretary would involve one or more of the following actions:
Ÿreduction in biomass,
Ÿreduction in nitrogen output, or
Ÿredistribution of biomass.
The final point on water quality as it relates to the MNES - Maugean Skate is to note that the listing statement or the species indicates that it inhabits low-nutrient brackish water, 5-7 metres deep. Recent and historical water quality data from Macquarie Harbour suggests that the water within the harbour is not low in nutrients, for example datasets from the 1980’s (Creswell et al., 1989) and (DPIPWE 2011) and the present indicate that water in Macquarie Harbour for nitrate and ammonia exceed the ANZECC Guidelines recommended low risk trigger values for environmental protection of estuaries. This data provides evidence that would suggest that a low nutrient environment is not a requirement for the Maugean Skate’s survival.
The regulation of water quality parameters for marine farming operations, as described above, will ensure that a reduction in water quality arising from the expansion of marine farming activities in the harbour will be effectively managed using the environmental management framework outlined above. As a result the Department is of the view that the expansion of marine farming activities in Macquarie Harbour will not have a significant impact on water quality within the harbour nor a concomitant significant impact on the MNES – Tasmanian Wilderness World Heritage Area or the Maugean Skate.
I hope the above, together with the attached documents provides sufficient information for you to make an assessment as to whether the proposed marine farming expansion activities within Macquarie Harbour are a controlled action. …
(Ex A1 pp 381-387)
2.10 Department receives legal advice that referral is for an action to be undertaken by Huon, Petuna and Tassal
I infer that late in its consideration of the referral the Department received legal advice that, properly understood, the action would in fact be undertaken by Huon, Petuna and Tassal. The substance of that advice is referred to in a document entitled “Supporting advice from the Heritage Branches” reproduced in the departmental brief later submitted to the Minister. It contains the following (Ex A1 p 465):
The referral has been made by the Tasmanian Department of Primary Industries, Parks, Water and Environment (Heritage understands that legal advice has been obtained by EACD as to the proponent … as activities carried out under the MFDP would be undertaken by one of three aquaculture companies expected to operate under the plan: Petuna Aquaculture Pty Ltd, Huon Aquaculture Group Pty Ltd and Tassal Operations Pty Ltd.
Note that, at the request of EACD, this advice assumes an “Action” that is comprised of the operation of one or more of these three companies under the revised MFDP.
On 5 September 2012 (coincidentally the same day as Mr Evans had respondent to Mr Tankey’s earlier email seeking specific, quantified commitments binding on the referring party) Mr Tankey sent an email to Ms Bourne containing the following (Ex A2 pp 1179 – 1180):
Following our recent conversation on Monday I wanted to confirm our approach for this referral process that we will need to follow to progress to a statutory decision (once the adequate additional information has been received).
Our advice on evaluation of this referral, is that this referral is most appropriately considered under section 69 of our Act, whereby DPIPWE has referred the action on behalf of the operators. To ensure a legally robust decision we will need to write to the operators and ask them to provide the additional information that you are currently preparing. This formality is necessary to ensure that we meet the relevant procedural fairness requirements for administrative decision-making.
To cover off on this, we will be writing to the operators to confirm they have received the original referral which you have submitted, and also the [department’s] additional information request.
To assist us in this, can you please provide contact details (both post and email) for each of the operators? We would like to send this letter to each company as soon as possible, and we will copy you into these letters.
The subsequent step will be for us [to] have formal sign-off from the operators on the final additional information to be provided to DSEWPAC (for example, to confirm that they can and will undertake any specific commitments in this documentation). To ensure this happens as efficiently as possible, we suggest that DPIPWE coordinates the submission of the additional information through the operators. (For example, you may wish to submit the information to DSEWPAC with a cover letter signed by all parties that binds the operators to the material you have prepared).
In order “[t]o cover this off on this” (to use the language of that email), on 7 September 2012, Mr James Tregurtha, the Assistant Secretary of the South-Eastern Australia Environment Assessments, Environment Assessment and Compliance Division of the Department, wrote to each of the operators to inform them that a referral had been made by DPIPWE, which was “being considered in accordance with section 69 of the EPBC Act” (Ex A1 pp 370-375).
Mr Tregurtha’s correspondence, sent in identical terms save as to addressees, identified Huon, Petuna and Tassal as proposing to “jointly undertake the action”.
Each letter informed its recipient that the Department had received a referral under the EPBC Act from DPIPWE. Each letter attached the Department’s correspondence of 4 June 2102 as had been previously sent to DPIPWE requesting further information. As addressed to Huon, Mr Tregurtha’s letter was as follows:
In considering the referral, we understand that the following persons (‘the operators’) are proposing to jointly undertake the action:
1.Yourself, (Huon Aquaculture Group Pty Ltd ABN; 79 114 456 781)
2.Tassal Operations Pty Ltd; ABN 38 106 324 127; and
3.Petuna Aquaculture Pty Ltd, ABN 62 009 485 581.
In accordance with section 73(a) of the EPBC Act you are hereby notified of the referral submitted to the Department in accordance with section 69 of the EPBC Act. If you are not proposing to undertake the action as referred, we would be grateful if you could please advise the Department as soon as possible.
Request to provide information
In accordance with section 75 of the EPBC Act, the Minister must decide whether the referred action is likely to have a significant impact on one or more matters protected by the EPBC Act, that is, whether the action is a ‘controlled action’ (“the controlled action decision”).
However, the referral does not provide sufficient information for the Minister to be able to determine whether or not the action is likely to have a significant impact on one or more matters protected by the EPBC Act. As such, in accordance with section 73(b) of the EPBC Act you are requested to provide the Minister with relevant information about the proposed action, to enable the Minister to make a decision with respect to section 75 of the EPBC Act. The specific information required is identified in the correspondence enclosed.
I infer Mr Tregurtha proceeded in that way because, the Department having received legal advice, it had become apparent to it that the requirements of s 73 of the EPBC Act had not earlier been complied with. It is also available to infer that the three companies were sent copies of the request for further information earlier made by DPIPWE and asked to provide “the specific information required” because s 76(1) of the EPBC Act provided that a request for more information in respect of a referral is to be made to the person proposing to take the action.
The Department received replies from each of Huon, Petuna and Tassal by 17 September 2012. Each of their replies were in materially identical terms (Ex A1 pp 376-378). That which was received from Huon was as follows:
I refer to your letter of 7 September 2012 notifying that the Department of Sustainability, Environment, Water, Population and Communities (SEWPAC) has received the above referral from the Department of Primary Industries, Parks, Water and Environment (DPIPWE), the state agency with administrative responsibilities for the proposed action, which is being considered under section 69 of the Environment Protection and Biodiversity Conservation Act 1999.
I can advise that Huon Aquaculture Group Pty Ltd (HUON) is fully aware of the referral submitted to SEWPAC by DPIPWE on 29 May 2012 and has had considerable input into the preparation of the referral.
Huon has also been forwarded subsequent correspondence from SEWPAC to DPIPWE, dated 6 June 2012 and 5 July 2012, requesting further information in relation to the proposed action. Again, Huon has had considerable input into the preparation of responses to SEWPAC’s requests.
As requested in your letter of 7 September 2012 please find attached correspondence dated 27 June 2012 and 5 September 2012 which provides further information to address SEWPAC’s requests for further information.
Please do not hesitate to contact Huon should you require further information.
It is apparent that none of the “operators” (Huon, Petuna and Tassal) took issue with Mr Tregurtha having referred to them as “proposing to jointly undertake the action”.
There is nothing in the materials before the Court to suggest the Minister sought any further information from them.
2.11 Department submits a Referral Decision Brief to the Minister
On 1 October 2012 Mr Tregurtha signed a Referral Decision Brief for the purpose of providing advice to the Minister in relation to the proposed action that had been referred to him for decision. The brief is at Ex A1 pp 431-537.
The brief provided to the Minister contained a “Recommended Decision” (Ex A1 pp 435 – 436):
Under section 75 of the EPBC Act you must decide whether the action that is the subject of the proposal referred is a controlled action, and which provisions of Part 3 (if any) are controlling provisions for the action. In making your decision you must consider all adverse impacts the action has, will have, or is likely to have, on the matter protected by each provision of Part 3. You must not consider any beneficial impacts the action has, will have or is likely to have on the matter protected by each provision of Part 3.
The department recommends that you decide that the proposal is not a controlled action for the purpose of the following controlling provisions, provided it is undertaken in the particular manner specified in the notice attached for your signature. The reasons for this recommendation are further detailed below in relation to the relevant protected matters.
ŸListed threatened species and communities (sections 18 and 18A);
ŸThe world heritage values of a declared World Heritage property (sections 12 and 15A);
ŸThe heritage values of a National Heritage place (sections 15B and 15C).
The advice provided to the Minister specifically with respect to the Maugean Skate in that brief is set out at pp 436 – 437 of Ex A1:
Maugean Skate (Zearaja maugeana) – Endangered
The Maugean Skate is a medium-sized skate with a broad, slightly depressed tail, an elongated snout and spatula-like claspers. The species is grey-brown above and dark with dark-edged pores underneath. The species is restricted to two biologically unique estuarine systems in western Tasmania; the Bathurst and Macquarie Harbours. These estuaries are relatively small systems and habitat for this species is generally in shallow water (only about 10% of the harbour). The total area of occupancy for the Maugean Skate is around 100 km², with 60 kmin Macquarie Harbour and 40km² in Bathurst Harbour. The total population size is estimated to be approximately 1000 individuals, although this figure is uncertain. The ecology and distribution of the species is not well known, however research suggests that the species is restricted to brackish, estuarine water, 5-7 metres in depth and low in nutrients.
The department considers that the proposed action may potentially impact the species through:
Ÿnutrient loading in the water column from fish feed and fish waste; and
Ÿchanges to the benthic environment in the immediate vicinity of each marine farming lease as a result of fish feed and fish waste accumulating on the sediment surface that may be habitat for Maugean Skate.
The department notes that fish feed is a substantial, operational expense and that the proponents have extensive controls in place to prevent its excessive use and waste. Also, fish that have died are regularly removed and stored on land in buried puts, to avoid contamination of the harbour environment.
On 17 September 2012, the proponent [sic] provided additional information about the Maugean Skate, including details of survey efforts in Macquarie Harbour. These surveys include marine farming compliance video monitoring of the seabed that have been conducted since 1997, as well as targeted gillnet surveys carried out in 2003-2004 and 2011-2012. This information states that since compliance-based underwater video assessment commenced, over 1450 spot dives and 18 kilometres of strip transects have been filmed in depths ranging from 3 to 45 metres …
The most recent gillnet surveys for skate were undertaken for a separate research project by the Institute of Marine and Antarctic Studies which netted 63 individuals in shallow water, in close proximity to existing marine farming activities. Individuals were also netted in popular recreational fishing areas near where the King River enters Macquarie Harbour (an area which is known form historic upstream legacy mining issues and associated water quality contamination). These results indicate the presence of the skate in relatively disturbed areas.
Advice provided by the department’s Marine Division highlighted the need to quantify and minimise impacts to this species. The department considers that the additional information provides a higher level of certainty (in relation to the original referral information) regarding the likely impacts of the proposed action on this species. The information demonstrates that populations are utilising habitat in close proximity to existing marine farming activities and may be resilient to associated water quality changes and benthic impacts.
It is unlikely that the proposed activity will result in the direct mortality of individuals; rather, it may place pressure of the species by potentially reducing the amount of available habitat in the harbour, which appears to be locally confined to shallow waters. The survey data provided by the proponent suggests a level of resilience to nearby marine farming activities, potentially including changes in nutrient levels and changes in the benthic environment. The department believes that this is evidence that with appropriate controls (as per the particular manner requirements), the proposed activity is unlikely to permanently impact suitable habitat.
The idea that the species is resilient to marine farming activities is further supported by data from current marine farming activities, including instances where individuals have been caught directly underneath, or in close proximity to farming operations. It can be assumed that if individuals were sensitive to nutrient loading associated with marine farming, alternative habitat would be favoured, away from existing leases. The department considers this is unlikely to be the case, as there are records from within existing leases. Given individuals have also been caught in popular recreational fishing areas, in close proximity to the Kind River that contains many heavy metals and pollutants associated with legacy mining issues, the department believes that the species is somewhat resilient to both localised and broader water quality changes in Macquarie Harbour.
The department also notes that the proposed activity will primarily occur in waters deeper than 20 metres. The information provided by the proponent [sic], as well as independent research suggests that skate individuals are unlikely to occur in deeper waters. Extensive video monitoring undertaken in Macquarie Harbour has only identified two records in waters deeper than 20 metres, one inside and one approximately 35 metres outside a marine farming lease area.
Conclusion
The department recommends that the particular manner requirements at Attachment F be required to ensure that project activities do not have a significant impact on the Maugean Skate. Considering the information provided by the proponent about the presence of individuals in close proximity to existing marine farming activities, and the strict controls recommended by the department, it is very unlikely that project activities will modify, destroy, remove, isolate or decrease the availability or quality of habitat to the extent that the species is likely to decline. Therefore the department considers that with the recommended particular manner requirements imposed, the proposed action is unlikely to significantly impact the species.
(Emphasis in original.)
The advice provided to the Minister with respect to the World Heritage properties and National Heritage places is set out at pp 441 – 449 of Ex A1:
Tasmanian Wilderness World Heritage Area
The proposed marine farming activities are to be undertaken within close proximity to the Tasmanian Wilderness World Heritage Area, which was listed in 1982 for both its natural and cultural {indigenous) outstanding universal values. The listed area was extended in 1989 in recognition of additional natural values, extended again to include 21 adjacent formal reserves in 2010, and to include the Southwest Conservation Area (Melaleuca to Cox Bight) in July 2012.
The proposed expansion of marine farming is contained within Macquarie Harbour. The proposed project borders the Tasmanian Wilderness World Heritage Area, with the nearest proposed marine farming zone and associated lease being approximately 375 m and 520 m respectively from the World Heritage area boundary. No proposed terrestrial activities are immediately adjacent to the Tasmanian Wilderness World Heritage Area.
The National Heritage values of this property are taken to be the same as those of the World Heritage property. The values most relevant to this proposal include:
Ÿundisturbed river systems which show particular geomorphological processes;
Ÿecosystems which are relatively free of introduced plant and animal species: and
Ÿundisturbed catchments, lakes and streams.
Listed natural and cultural heritage values of the Tasmanian Wilderness World Heritage Area which have the potential to be impacted include the relatively undisturbed nature of the property (as represented by the near-natural waterways of that part of Macquarie Harbour within the World Heritage Area), the population of the Maugean Skate (an ancient taxon with Gondwanan links) and other endemic fauna, including benthic taxa and ecosystems that are almost free of introduced species.
Potential impacts on the Tasmanian Wilderness World Heritage Area from changes to water quality
The department notes that there is the potential that proposed activities will impact on values of the Tasmanian Wilderness World Heritage Area. Potential impacts may result from changes to water quality as a result of nutrient loading in the water column and benthic changes that may also affect threatened species habitat.
Information provided by the Tasmanian Government states that operators will develop a water quality monitoring program and establish water quality limits. Monthly water quality data has been collected since September 2011 and the model developed for the State assessment process will be recalibrated during the first review cycle of an adaptive management framework using at least 12 months of water quality data within the harbour. The department notes the importance of maintaining an adaptive framework where modelling is based on substantial baseline information (at least 12 months). These requirements are recommended in the particular manner notice at Attachment F.
Referral information states that the monitoring program will involve continued assessment of the water quality indicators ammonia, nitrate and dissolved oxygen at 11 sites throughout the harbour (including the Tasmanian Wilderness World Heritage Area). Sites will be set until mid 2013 after which specific locations will be reviewed. State marine farming licences will require quarterly reporting and interpretation of the results of the water quality monitoring program. The department considers that this proposed approach is reasonable, as it is appropriate and desirable that the model is adaptive and reviewed regularly as additional information becomes available. The department also considers that the reporting and interpretation requirements of state marine farming licences are adequate, in relation to the protection of protected matters.
Referral information confirms that water quality limits will be based on the 80th/20th percentile values of the water quality indicators based on the predictive biogeochemical and hydrological model outputs (the model developed to assess the proposed action at the State level). This process is generally in accordance with the ANZECC Guidelines 2000. The tables below describe the key water quality limits to be applied, at depths of 2 metres and 20 metres.
The Court does not qualify its acceptance of Huon’s primary motivation for taking these proceedings was as Mr and Ms Bender gave evidence. However that provides no explanation as to why, after Huon had threatened to take legal action, it persisted with “working with the government” for approximately three years before taking that step.
Huon was told on 29 September 2014 that DPIPWE intended to proceed on the basis that the biomass limit set by manner provision 2(f) had lapsed on 18 October 2013. Three days later Huon was told by the Commonwealth Parliamentary Secretary that he did not wish to become involved; it was an issue better resolved at the state level.
It is implausible that after those events Huon had any actual expectation that further similar representations would yield the result it was pressing for.
Neither Mr nor Ms Bender, nor any other witness for Huon, pointed to any reason why the Court should find that Huon had any hope, let alone a positive belief, that such representations might be heeded. Notwithstanding, Huon continued to press fruitlessly for one or both of the Commonwealth and Tasmanian regulators to intervene (a) to place a reduced overall total biomass limit on the harbour; and (b) redistribute that biomass limit equitably (as Huon perceived it) as between the three companies.
Huon’s pursuit of what by then it must have known to be an improbable outcome does not explain its delay in commencing judicial review proceedings.
Moreover, not only did Huon not seek judicial review of the Minister’s decision (as Huon had been explicitly advised by its solicitors it could have then taken), it did not make an application for a declaration as to the construction of manner provision 2(f) (as Mr McElwaine correctly observed would then have been available to Huon), nor did it seek review of the Minister’s decision by way of an application pursuant to s 78A of the EPBC Act (which was, as the Court has concluded, an alternative course open for Huon to have pursued).
Ordinarily a party contesting the validity of an administrative decision has 28 days (which can be extended by the Court) to bring proceedings pursuant to the ADJR Act. There are also time limits (which also can be extended) prescribed for the alternative of seeking one or other of the constitutional writs. As Wilcox J noted in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at 348-350, in applying the relevant principles that influence whether or not a court should grant an extension of time in cases involving public administration, the public interest may well dictate refusal of an extension even after only a short delay. All such limitation periods expired long ago.
Mr Kennett properly acknowledges that there is no prescribed limitation period for declaratory relief pursuant to s 39B of the Judiciary Act 1903 (Cth) but submits that there is a well-recognised public interest in finality. I accept that submission.
9.5 Acquiesce and taking advantage of the decision
I reject that that the Court should find that Huon acquiesced in a course of conduct in the sense of calculated (that is, deliberate and informed) inaction by a person, or standing by encouraging another to reasonably believe the omissions were accepted or not opposed.
However it is incontestable that Huon was one of the original sponsors of the proposal that marine farming in Macquarie Harbour be permitted to expand. It worked jointly with Petuna and Tassal to prepare an EIS for that purpose and put forward that proposal to DPIPWE. The MHMFDP was amended to permit that to occur. It was at their joint instigation that that proposal was then referred on their behalf to the Minister for decision.
Huon expressly accepted the terms of the Minister’s decision that the proposed action was not a controlled action provided it was undertaken in the manner the Minister set out in his s 77 Notice. Huon was specifically asked whether it could comply with the manner provisions, and gave the Minister its assurance that it could.
Notwithstanding Huon’s concern for the environment and its threats to take legal action in 2014, Huon continued to take economic advantage of that decision to make substantial additional profits until it commenced these proceedings.
On behalf of Petuna Mr Gunson submits (at [14] of his written submissions) that Huon:
a.continued to take the benefit of the Decision, presumably on the basis that they were complying with all necessary regulatory obligations; and
b.were aware of all of the facts and matters necessary to commence proceedings, but decided not to do so, presumably because of their own strategic and commercial interests.
The Court accepts Mr Gunson’s propositions to have been established. As to the first limb, there is no evidence of Huon ever asserting that it had been unable to comply with the Minister’s decision prior to it writing to the Commonwealth on 30 November 2016 to foreshadow these proceedings. That had been the first time Huon expressed any concern that it could not comply with the Minister’s decision. Prior to that point, Huon had asserted that it had been concerned that Tassal’s conduct was non-compliant.
As to the second limb, the Court has concluded at [241] that Huon has advanced no plausible explanation of why it delayed beyond September 2014 taking any action which might have put the concern the Court has accepted its directors had regarding environmental damage to the fore.
In the absence of an alternative explanation the Court infers that the reason for Huon’s years of delay was that its directors, while primarily concerned about the consequences to the environment, hesitated to risk the consequences for Huon’s commercial interests that might arise (see [161]-[190] above) were it to successfully challenge the validity of the Minister’s decision in judicial review proceedings. It continued to press the regulators to find a solution on its terms without risking its commercial interests.
Huon had been making, and continued to make, substantial profits from the exploitation of the harbour on the back of the approval it knew it could, but chose not to, impugn.
Mr and Ms Bender did not dispute that Huon had been conscious of its commercial interests in later bringing these proceedings. It is implausible that Huon was not also earlier conscious of those interests. As was the case in Hamlet, Huon’s resolve was followed by indecision and inaction. Huon knew it had cause to act as from September 2014. It knew it had legal entitlement to do so. Yet it did nothing to force the issue.
I accept Mr Gunson’s characterisation of Huon’s conduct as smacking of approbation and reprobation: Huon sought and obtained a decision that gave it, together with Petuna and Tassal, significant financial benefit on terms they had jointly sought. Huon thereafter took commercial advantage of the same decision it now seeks to impugn. It continued to take commercial advantage of that decision long after it had become aware of all of the facts and matters necessary to commence proceedings.
9.6 Detriment likely to be experienced by third parties that have ordered their affairs in reliance on the validity of the decision Huon seeks to impugn
The Court is satisfied that in 2012 each of the marine farmers altered their positions in good faith in reliance upon the Minister’s decision (or purported decision) that the action that had been referred to him was not a controlled action if undertaken in the manner he later specified in his s 77 Notice. All three companies acted in reliance on the validity of the decision Huon now seeks to impugn. Each of Huon, Petuna and Tassal made significant investments after they had been given approval to expand their operations in Macquarie Harbour.
Huon does not dispute that if the consequence of this Court granting the declaration it seeks will be to require marine farming operations in Macquarie Harbour to cease permanently or for a protracted period, that each of Petuna and Tassal would suffer significant adverse economic detriment. The Court has noted that those impacts would disproportionately disadvantage Petuna because its marine farming leases are, save for one exception, exclusively within Macquarie Harbour. Those adverse consequences can reasonably be anticipated to spread to Petuna and Tassal’s local employees and contractors.
However, Mr Galasso submits that because the referral specifically excluded the pre-expansion marine farming from the action, and that the EPBC Act provides broad protection for the continuation of an action that occurred prior to the EPBC Act coming into existence, it does not necessarily follow that marine farming will need to cease (or necessarily reduce) whilst a new decision is pending.
By contrast, the Minister submits (at [6] of his supplementary submissions):
Huon’s delay has the potential to give rise to significant prejudice to Petuna and Tassal. Huon accepts that a declaration of invalidity would have adverse economic consequences for Petuna and Tassal, but submits that the impact would be lessened because, under s 43B of the EPBC Act, the marine farmers can continue farming while a new decision is pending. On the contrary, s 74AA of the EPBC Act makes it an offence for a person to take an action that has been referred to the Minister under s 69 until the referral has been dealt with. Further, the action that was referred included varying the locations and areas of the existing marine farming zones. Thus, even if the marine farmers could quickly reduce the scale of their operations to pre-2012 levels, it cannot be assumed that that would avoid continued non-compliance with s 74AA or be protected by s 43B. A declaration of invalidity would at the least result in a period of regulatory uncertainty and a reduction in operations may have economic consequences for Petuna and Tassal.
While no criticism can be made of Mr Kennett’s submission, the analysis the Court has earlier undertaken suggests the Minister significantly understates rather than overstates the likely adverse consequences Petuna and Tassal would be exposed to were this Court were to make the declaration Huon seeks.
For the reasons set out at [162]-[179] and [180]-[194], the Court has concluded (a) that it is not open to the Court to find that marine farming would be likely to be authorised to resume on a business as usual basis after only a short delay; and (b) that Petuna and Tassal would not be entitled to revive their respective previous existing user entitlements.
The Court finds that Petuna and Tassal, in good faith, ordered their affairs on the basis of what was originally the view shared by Huon regarding the validity of the Minister’s decision. They would be greatly adversely affected were the Court to make the declaration Huon now seeks.
The proper construction of manner provision 2(f) stands independently of that conclusion. The circumstances in which it became contentious occurred later in time. The position taken by Tassal in that regard and the application of the manner provision by DPIPWE may well have been, as Huon believes, unfair and legally unsound. However Huon had the opportunity to seek a declaration as to its proper construction when that issue arose and became contentious but did not.
9.7 Inconsistency of Huon’s position regarding environmental consequences
The Court has already acknowledged it accepts that Huon advances these proceedings to vindicate the public purposes of the EPBC Act. That is a factor in favour of exercising its discretion to make a declaration. Those purposes are, in summary, to protect matters of national environmental significance.
In Huon’s written submissions Mr Galasso put the proposition thus (at [32]):
…[E]ven if the Court is satisfied that the evidence establishes that there are factors weighing against the exercise of the discretion, the public purpose of ensuring that the purpose of the EPBC Act, being to protect the environment, is furthered is the most significant factor in this case and one which deserves paramount importance. That purpose, properly applied, serves to modify what might conventionally be taken to be factors relevant to the exercise of discretion in light of the nature and purpose of the Act under which the Decision was made.
However, not only has Huon abandoned seeking to prove the fact of past, present or future environmental damage but Mr Galasso, on its behalf, now submits that, having regard to the operation of s 43B of the EPBC Act, if the Court does grant an injunction it will not necessarily follow that marine farming will need to cease (or necessarily reduce) whilst a new decision is pending.
The Court has not accepted that submission.
But assuming the Court is in error in that regard, Mr Galasso’s response to the case made against Huon that the other operators will suffer significant detriment is that they will be able to continue their marine farming operations in Macquarie Harbour largely unaffected, notwithstanding the Court making the declaration Huon seeks. The intensity of marine farming may not even necessarily need to be reduced.
Mr Galasso’s submission is advanced on the basis that the draft biomass for Macquarie Harbour determined by the Tasmanian regulator (now the EPA) for 1 June 2018 to 31 May 2020 (see at [123] above) approximates the biomass in the harbour before the expansion (see at [125] above).
However if the required foundation for that submission is that the Court is entitled to find that the state regulator now intends to, and will, reduce the total biomass limit in Macquarie Harbour to no more than the (collective) level which each of Huon, Petuna and Tassal are (individually but in aggregate) already entitled to exploit by reason of their pre-EPBC Act protected user rights, that must cut both ways. As a factual proposition, it removes much of the reason Mr Galasso submits to be of paramount importance for the Court to find the balance of discretionary factors is in favour of making the declaration Huon seeks.
Huon’s case ceases to be that its directors believe (albeit without pleadings or evidence to support a finding) that, but for the making of a declaration, significant environmental harm will occur.
Huon’s position shrinks to asking the Court to accept and proceed on the basis that, notwithstanding any declaration, the existing operators will be entitled to, and will, continue their fish farming activities at pre-expansion levels without any approval from the Minister, notwithstanding the harm that that intensity of aquaculture might entail for any matters of national environmental significance. That is a less persuasive factor in favour of exercising the Court’s discretion in Huon’s favour.
9.8 Exposure to risk of prosecution
For completeness the Court should record that, having regard to the Full Court’s reasoning in Lansen, it places no weight in the exercise of its discretion on the submissions made by Mr Kennett, Mr Gunson and Mr McElwaine that the Fourth and Fifth Respondents would be exposed to the risk of criminal prosecution for their past conduct were the Court to make a declaration of invalidity.
9.9 Conclusion with respect to the Court’s exercise of discretion
The Court is persuaded that it is proper for it to accept the submission advanced by the Minister and joined in by Petuna and Tassal that the relief sought by Huon (a declaration that the decision of the First Respondent made on 3 October 2012 that the action referred to him was not a controlled action for the purposes of the EPBC Act provided it is undertaken in the manner set out in the s 77 Notice) must be refused on discretionary grounds even on the assumption that Huon might succeed on the grounds it has advanced (see submission at [141] point 7). Even on that assumption, the cumulative weight of the factors discussed above in favour of refusing relief, in the specific facts of this case, significantly outweigh the reasons to the contrary. They collectively justify the Court exercising its discretion to refuse Huon the relief it seeks.
9.10 The Hardiman principle
The Court has come to that conclusion notwithstanding the question posed by Mr Galasso as to whether the submissions advanced by the Minister fell within the Hardiman principle.
In R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 (Hardiman) at 35-36 the High Court of Australia (Gibbs, Stephen, Mason, Aickin and Wilson JJ) unanimously took issue with the role played by the then Australian Broadcasting Tribunal in proceedings in which prerogative writs were being sought against it. The court stated:
In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal.
Mr Galasso questioned whether, in advancing submissions that relief should be refused on discretionary grounds and taking an active positon effectively in support of Petuna and Tassal, the Minister was acting inconsistently with the High Court’s disapprobation of a regulator taking other than a neutral and facilitative role.
On behalf of the Minister, Mr Kennett indicated that that question had been thought about. The Minister did not dispute that Huon had arguable grounds for contending the decision was invalid. The Minister had taken a neutral position on that question – he had made no submissions one way or the other. The Minister did not intend to descend into the factual fray between the operators.
However the Minister was entitled to be heard on whether the Court should exercise its discretion to grant relief. The Minister had an interest in the efficient operation of the Act he administered, including the finality and reliability of decisions. A decision challenged more than four years after it was made was one that excited concern in that respect.
Mr Kennett further submitted that the Hardiman principle was really directed to tribunals and bodies which had to adjudicate what are, in effect, inter partes disputes, not a Minister dealing with an application of this kind (transcript p 349 lines 17-23).
The Minister taking the position he did with respect to discretion would not give rise to difficulties if the Court ultimately made the declaration Huon sought:
MR KENNETT: Were it remitted, it would be – and if the existing referral is persisted with, it has three proponents, all of whom are in the room, and all of whom are equally proponents. Anything bad we might say about Huon wouldn’t give rise to any concern, we would say, about the Minister’s ability to deal with that.
(transcript p 349 lines 26-29)
Be that as it may, the law is clear that the Minister is not prohibited by the Hardiman principle, assuming it applies, from taking the course pursued in these proceedings. Any disapprobation, if warranted, is to be expressed in the costs orders made by the Court rather than by the Court declining to have regard to the propositions advanced by Mr Kennett on the Minister’s behalf. In any event, the Minister’s submissions were later adopted by Petuna and Tassal. There is no basis for the Court to do other than address them on their merits.
9.11 Relevance of relief not sought
The Court has also come to its conclusions notwithstanding it being aware that s 475 of the EPBC Act provides the capacity for an “interested person” to apply to the Federal Court for an injunction in respect of conduct that constitutes an offence or other contravention of the EPBC Act. Two responses may be made in respect of that provision.
First, assuming that an injunction might have been an available remedy for Huon to have sought where its own conduct (as one of three marine farmers in Macquarie Harbour) would necessarily be a component of the relevant offence or contravention, it might be thought that a judicial order is not required for a person to cease their own conduct. Moreover, Huon sought no such order.
Second, nothing the Court states in these reasons relating to why it has exercised its discretion has relevance to that quite differently expressed statutory provision. The Court’s conclusions are confined to the particular relief sought by Huon in the specific matrix of factual and legal circumstances in which its application has been advanced. The Court’s decision creates no res judicata or estoppel that would apply to an application brought under s 475 assuming the circumstances provided for in that provision of the EPBC Act can be established.
10. Disposition and costs
For the above reasons the Court dismisses the application brought by Huon.
The Applicants are to pay the Fourth and Fifth Respondents’ (Petuna and Tassal) costs as agreed or assessed.
Mr Galasso having raised the Hardiman principle, the Court is persuaded it ought not to make an immediately operating identical order for costs in favour of the Minister in the absence of submissions.
I should make clear that until Mr Galasso raised the Hardiman question during the hearing, the Court gave no attention to whether the Minister’s taking that approach should be questioned.
I make no criticism of Mr Kennett or previous counsel for the Minister, who at all stages have acted entirely consistently with their duties to the Court.
Neither the Minister nor Huon have had the opportunity to be heard in relation to whether the Court should apply the Hardiman principle in relation to costs. The very limited research I have undertaken suggests the scope and application of the Hardiman principle is contentious.
For that reason I would make an order that Huon pay the Minister’s costs as agreed or assessed up to and including 27 April 2017, when Petuna and Tassal were joined to these proceedings. At that point, if I understand Mr Galasso’s submission correctly, those parties became appropriate contradictors and the Minister should have become a submitting party.
I will give leave to the Minister to file and serve, within 28 days of the publication of these reasons, an application to vary the costs order the Court has made supported by submissions limited to 5 pages. I would give leave to Huon to file and serve, within a further 28 days, responsive submissions limited to 5 pages and to the Minister, within a further 14 days, to file and serve any reply submissions limited to 2 pages. The Court will determine any application so made on the papers. It will of course be open to the respective parties to settle the costs issue on agreed terms, without recourse to that procedure.
I certify that the preceding two hundred and ninety-four (294) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr. Associate:
Dated: 6 July 2018
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