Lansen v Minister for Environment and Heritage - [2008] FCA 903

FEDERAL COURT OF AUSTRALIA
Lansen v Minister for Environment and Heritage
[2008] FCA 903
ADMINISTRATIVE LAW – application for approval of “controlled action” under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) – whether assessment of proposal was properly made under a Bilateral Agreement between Commonwealth and Northern Territory when Bilateral Agreement came into force after decision of Minister for Environment and Heritage that proposal was controlled action – whether assessment of proposal should have been made under Pt 8 of EPBC Act – held: assessment of proposal properly made under Bilateral Agreement
ADMINISTRATIVE LAW – assessment of proposal to redevelop mine which required approval of Minister for Environment and Heritage under EPBC Act – proposal assessed under Bilateral Agreement between Commonwealth and Northern Territory – assessment report to Minister expressed concerns about environmental impacts of proposal upon freshwater sawfish and migratory bird species – whether report “assessment report” under EPBC Act – whether it did not contain sufficient information for Minister to decide whether or not to approve proposal – where report adequately presented material in environmental impact statement, public comments, and proponent’s response to public comments – whether Minister sought further information from proponent – held: report was a valid assessment report for Minister’s consideration
ADMINISTRATIVE LAW – decision of Minister for Environment and Heritage to approve proposal constituted a controlled action under EPBC Act – Minister failed to take into account conditions imposed by Northern Territory upon its approval to mine redevelopment comprising proposal – Minister imposed conditions upon approval consistent with conditions imposed by Northern Territory in respect of potential environmental impacts – whether Minister’s decision invalid – held: Minister’s decision valid as consideration of Northern Territory conditions could not have made a material difference to Minister’s decision, and EPBC Act requiring Minister to take into account conditions imposed by Northern Territory did not provide that the failure to do so necessarily led to invalidity of decision
ENVIRONMENTAL LAW – processes for approval of proposal which was a controlled action under the EPBC Act – consideration of whether assessment of proposal under Bilateral Agreement correct, rather than under Pt 8 of EPBC Act, where decision of Minister that proposal was a controlled action was made before Bilateral Agreement came into force – consideration of necessary contents of an assessment report required under EPBC Act – consideration of whether failure of Minister to take into account conditions imposed by Northern Territory upon its approval to mine redevelopment constituting proposal resulted in invalidity of Minister’s decision – consideration of principles of ecologically sustainable development and the precautionary principle and whether Minister had regard to them
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Judiciary Act 1903 (Cth)
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Native Title Act 1993 (Cth)
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
Environmental Assessment Act 1982 (NT)
Inquiries Act (NT)
Mining Management Act 2001 (NT)
Environmental Assessment Act1982 (NT)
Administrative Decisions (Judicial Review Act) 1977 (Cth)
Mining Management Act 2001 (NT)

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] FCA 903
Decision Date: 13 June 2008

CaseChat Overview and Summary

Lansen v Minister for Environment and Heritage involves a challenge to the approval process for a proposed development by MIM Holdings Limited, later Xstrata Queensland Limited, which aimed to change from an underground mine to an open pit mine and divert the McArthur River and Barney Creek. The applicants argued that the assessment procedure was unauthorized or invalid, particularly concerning the impact on listed threatened species and migratory species under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The court had to determine whether the assessment procedure complied with the statutory requirements and the principles of ecologically sustainable development, including the precautionary principle. The primary legal issue was whether the assessment procedure for the proposed development, conducted under an agreement between the Commonwealth and the Northern Territory, adhered to the necessary legislative framework and if the approval process was valid.

The court examined the statutory provisions and the bilateral agreement to ascertain whether the assessment procedure was consistent with the legislative requirements. It found that the assessment procedure followed the modified procedures established under the Environmental Assessment Act 1982 (NT), which were in turn required by the bilateral agreement. The court also considered the notification process and the preparation of the Environmental Impact Statement (EIS) guidelines, which were made available for public comment as required. The court concluded that the assessment procedure was not unauthorized or invalid, as it complied with the legislative framework and the precautionary principle. The court emphasized that the approval process was valid and adhered to the principles of ecologically sustainable development.

The orders of the court were that the applicants were granted leave to amend their application, and the application itself was dismissed. The court found no grounds to support the applicants' contention that the assessment procedure was unauthorized or invalid, thereby upholding the validity of the approval process for the proposed development.

Orders

Orders of the court

1. The applicants have leave to amend their Further Amended Application in terms of the document entitled “Second Further Amended Application for an Order of Review” dated 18 February 2008 and attached to the document entitled “Submission on Additional Issue” filed by the applicants on that date.

2. The application be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MANSFIELD J

Section 3A sets of the principles of ecologically sustainable development, including what is referred to as the precautionary principle at s 3A(b):… if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation;Decision that Action is a Controlled Action Section 67 of the Act defines a ‘controlled action’ as any action that is prohibited under a provision of Part 3 of the Act without approval under Part 9. The relevant Part 3 provision is the ‘controlling provision’ for an action. The process of seeking approval for an action that a person thinks might be a controlled action begins with s 68. That section states that if a person thinks that an action may be a controlled action, that person must refer it to the Minister for a decision as to whether or not that is the case. Pursuant to s 68, a referral of the proposed development by changing from an underground mine to open pit mining and the diversion of the McArthur River and Barney Creek was made by MIM Holdings Limited (MIM) to the Minister on 6 February 2003. (The relationship between that company, now Xstrata Queensland Limited, and MRM is unclear, but nothing apparently turns on that. It appears from the material before the Court that MRM took ownership of the proposed action from MIM sometime between 4 March 2003 and 3 August 2005.) The referral by MIM noted that the proposed action may impact members of listed threatened species and members of listed migratory species, but it argued that its proposed action was not considered to be a controlled action for the purposes of the Act so that it required approval under that Act. Section 18 of the Act prohibits an action that has, will have or is likely to have a significant impact on a listed threatened species. Section 18A of the Act makes it an offence to take an action that results or will result in a significant impact on a listed threatened species of a listed threatened ecological community: s 18A(1). It also makes it an offence if an action is likely to have a significant impact on a listed threatened species or listed threatened ecological community if the person taking the action is reckless as to that fact: s 18A(2). Under s 19 of the Act, ss 18 and 18A do not apply if the Minister has approved the action under Part 9 (including an approval under s 133) of the Act. Section 20(1) of the Act prohibits an action that has, will have, or is likely to have a significant impact on a listed migratory species. That sub-section also does not apply if approval of the action under Pt 9 is given by the Minister: s 20(2). Sub-section 20A makes it an offence to take an action that results or will result in a significant impact on a listed migratory species: s 20A(1). It also makes it an offence if an action is likely to have a significant impact on a listed migratory species if the person taking the action is reckless as to that fact: s 20A(2). Actions of those types are also not offences if the Minister has approved the action under Part 9: s 20A(4).

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

For those reasons in my judgment, the assessment procedure in relation to the controlled action undertaken under the Agreement was not of itself unauthorised or invalid.Preparation of Assessment Report 51 Pursuant to cl 1 of Sch 1 of the Agreement, the assessment must be carried out under the Environmental Assessment Act 1982 (NT). Section 7 of that Act allows for administrative procedures to be determined, for the purpose of achieving the objects of that Act. Under that section, the Administrative Procedures were established. As noted above, apparently because the Administrative Procedures were not initially suitable for assessment of actions under the Agreement, cl 4 and cl 5 of the Agreement provided that the Agreement did not enter into force until certain amendments were made to the Administrative Procedures. Those amendments commenced on 19 March 2003. They are referred to in the Administrative Procedures as ‘modified procedures’. Clause 3A of the Administrative Procedures states that:The modified procedures apply in relation to a proposed action when the proposed action is assessed by the Territory in accordance with a bilateral agreement between the Territory and The Commonwealth made under section 45 of the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth. Clause 13.2 of the Agreement and s 77 of the Act require the Commonwealth Minister to give notice of the decision that the proposed action is a controlled action to the relevant Minister of the Northern Territory. Such notice was given by letter to the Territory Minister dated 4 March 2003. Clause 14.2 of the Agreement required the Territory Minister to indicate by written notice to the Commonwealth Minister whether the proposed action would be assessed pursuant to the Agreement. On or about 2 April 2003, an undated letter from the Territory Minister was received by the Commonwealth Minister (the undated letter), which indicated that the assessment of the proposed action would be undertaken pursuant to the terms of the Agreement. In many cases, the requirements of the Administrative Procedures simply mirror explicit requirements of the Agreement. Where such provisions are relevant in the following paragraphs, they are both identified. Clause 2.1 of sch 1 of the Agreement and cl 8 of the Administrative Procedures required the Territory Minister to decide which assessment approach will be used. The possible approaches include the preparation of an Environmental Impact Statement, the preparation of a Public Environment Report, and inquiry carried out under the Inquiries Act (NT). The undated letter of the Territory Minister indicated that the assessment approach would be by the preparation of an Environmental Impact Statement (EIS). The Agreement (at cl 3.1) and the Administrative Procedures (at cl 8(3)-(6)) also required the Territory Minister to produce guidelines relating to the matters that should be dealt with in the EIS, and set out certain requirements for those guidelines, including that a draft be made available for public comment for at least 14 days. The undated letter confirmed that such guidelines had been prepared and that they had been available for public review for a period of 28 days to 14 March 2003. The Territory Minister advised that public comments received would be taken into account in finalising the guidelines. Final guidelines were issued in the second half of March 2003.