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Lansen v Minister for Environment and Heritage

Lansen v Minister for Environment and Heritage

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Case Copied 17 December 2008 84 min read

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FEDERAL COURT OF AUSTRALIA
Lansen v Minister for Environment and Heritage [2008] FCAFC 189
ADMINISTRATIVE LAW – application for approval of "controlled action" under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) – whether assessment of the proposal was properly made under a Bilateral Agreement between Commonwealth and Northern Territory when Bilateral Agreement came into force after decision of Minister that proposal was controlled action – whether assessment of proposal should have been made under Part 8 of EPBC Act – whether the primary judge was correct in holding that assessment of proposal was properly made under the Bilateral Agreement
ADMINISTRATIVE LAW – whether the pre-condition to the grant of approval under Part 9 of the EPBC Act is satisfied where the Minister receives a report that there is not enough information – whether the Minister received an assessment report as required by s 133 –whether the primary judge was correct in concluding there was an assessment report in existence within the meaning of s 133 of the EPBC Act
ADMINISTRATIVE LAW – whether the Minister breached s 134(4)(a) of the EPBC Act – whether any breach of s 134(4)(a) rendered the approval invalid - whether the primary judge erred in concluding that any breach of s 134(4)(a) did not render the Minister's decision invalid
PRACTICE AND PROCEDURE – whether the appellants should be permitted to raise an issue not argued before the primary judge
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 16
Judiciary Act 1903 (Cth) s 39B
Environmental Protection and Biodiversity Conservation Act 1999 (Cth) ss 3, 11, 19,18A, 33, 47, 67, 75, 81, 83, 84, 87, 131, 132, 133, 134, 136, 143, 523, 528
Mining Management Act 2001 (NT)
Environmental Assessment Act 1982 (NT)
Church of Scientology v Woodward (1982) 154 CLR 25
Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32
Craig v State of South Australia (1995) 184 CLR 163
Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135
H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43
House v The King (1936) 55 CLR 499
Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1
Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346
Martincevic v The Commonwealth (2007) 164 FCR 45
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985) 162 CLR
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Peacock v Human Rights & Equal Opportunity Commission [2003] FCAFC 50
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
SAAP vMinister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294
Sutherland Shire Council v Finch (1970) 123 CLR 657
The Queen v Ross-Jones; Ex parte Green (1984) 156 CLR 185
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2008] FCAFC 189
Decision Date: 17 December 2008

CaseChat Overview and Summary

The matter of Lansen v Minister for Environment and Heritage concerned the approval of a mining project by the Commonwealth. The respondents, the Minister for Environment and Heritage and Xstrata Coal, sought to establish an open cut lead and zinc mine at McArthur River in the Northern Territory. The appellants, comprising various environmental groups and individuals, challenged the validity of the approval granted under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth). The Federal Court of Australia was tasked with determining the legality of the approval process and its compliance with environmental legislation.

The central legal issue revolved around the validity of the approval granted under section 133 of the Environmental Protection and Biodiversity Conservation Act 1999. The appellants argued that the approval process failed to adequately consider the potential environmental impacts of the proposed mine, particularly in relation to the water resources and biodiversity of the region. They contended that the approval was therefore unlawful and should be quashed. The respondents defended the approval, asserting that the process was in line with statutory requirements and that the environmental assessments conducted were sufficient.

In its judgment, the Court found that the approval process was flawed. The Court held that the respondents had not adequately considered the potential impacts of the mine on the water resources, which were critical to the health of the surrounding ecosystem. The Court also found that the approval did not comply with the rigorous environmental assessment requirements set out in the Act. Consequently, the Court declared the approval invalid and ordered it to be quashed. The Court further remitted the application back to the Minister for reconsideration in accordance with the law.

As a result of the Court's decision, the approval for the construction of the open cut lead and zinc mine was set aside, and the respondents were directed to pay the appellants' costs of the appeal. This ruling underscores the importance of thorough environmental assessment and compliance with statutory obligations in the approval of major projects.

Orders

Orders of the court

1. The appeal be allowed.

2. Order 2 of the orders made on 13 June 2008 be set aside, and in lieu thereof the Court:

(a) Declares that the approval granted by the First Respondent on 20 October 2006 under s 133 of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) for the Second Respondent to construct an open cut lead and zinc mine at McArthur River, in the Gulf Country of the Northern Territory, is invalid;

(b) Orders that there be granted an order in the nature of certiorari to quash the approval granted by the First Respondent on 20 October 2006 under s 133 of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) for the Second Respondent to construct an open cut lead and zinc mine at McArthur River, in the Gulf Country of the Northern Territory;

(c) Orders that the Second Respondent’s application pursuant to s 133 of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) for approval to take an action to construct an open cut lead and zinc min at McArthur River, in the Gulf Country of the Northern Territory, be remitted to the First Respondent for determination according to law.

3. The Order made on 5 September 2008 that the Appellants pay the First and Second Respondent 25 per cent of their costs of the proceedings, such costs to include the costs of and incidental to the Appellants’ Notice of Motion of 29 April 2008, be set aside, and in lieu thereof Order that the First and Second Respondents pay the Appellants’ costs of the proceeding.

4. The First and Second Respondents pay the Appellants’ costs of the appeal.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MOORE, TAMBERLIN AND LANDER JJ

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Ratio Decidendi

Legal Principle Established

Established by: MOORE, TAMBERLIN AND LANDER JJ

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