Sustainable Fishing and Tourism Inc v Minister for Fisheries

Case [2000] NSWLEC 2

Land and Environment Court


of New South Wales


CITATION: Sustainable Fishing and Tourism Inc v Minister for Fisheries and Anor [2000] NSWLEC 2
PARTIES: APPLICANT:
Sustainable Fishing and Tourism Inc
RESPONDENTS:
Minister for Fisheries and Anor
FILE NUMBER(S): 40064 of 1999
CORAM: Talbot J
KEY ISSUES: Judicial Review :- whether issue of a commercial fishing licence is the approval of an activity by a determining authority for the purpose of Part 5 EP&A Act - whether EIS required before determination of application for commercial fishing licence
LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Part 5
Fisheries Management Act 1994 s 103, s 104, s 108, s 220ZF, s 220ZN, s 221B
Threatened Species Conservation Act 1995 Pt 6 Div 2
CASES CITED: Steedman and Anor v Baulkham Hills Shire Council (No 2) (1993) 31 NSWLR 562;
Tweed Byron Local Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act (1990) 72 LGRA 177;
Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133;
Worimi Local Aboriginal Land Council v Minister Administering Crown Lands Act and Anor (1991) 72 LGRA 149;
Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106;
Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140;
Lizzio v Ryde Municipal Council (1983) 155 CLR 211;
Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493;
Mulcahy v Blue Mountains City Council (No 2) (1995) 87 LGERA 422;
Moore v Kwiksnax Mobile Industrial and General Caterers Pty Ltd; Ex parte Kwiksnax Mobile Industrial and General Caterers Pty Ltd (1990) 70 LGRA 38;
Rundle v Tweed Shire Council and Anor (1989) 68 LGRA 308;
Goodwin v Phillips (1908) 7 CLR 1;
Butler v Attorney General (Vic) (1961) 106 CLR 268;
South Australia v Tanner (1989) 166 CLR 161;
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
DATES OF HEARING: 19/10/99, 20/10/99, 09/12/99, 13/12/99, 14/12/99
DATE OF JUDGMENT:
01/21/2000
LEGAL REPRESENTATIVES:


APPLICANT:
Mr J M Ireland QC
With
Mr J B Maston (Barrister)
SOLICITORS:
Stone and Partners

FIRST RESPONDENT:
Dr J E Griffiths (Barrister)
SOLICITORS:
Crown Solicitors Office

SECOND RESPONDENT:
Mr N F Francey (Barrister)
SOLICITORS:
McCabes

JUDGMENT:


    IN THE LAND AND Matter No. 40064 of 1998
    ENVIRONMENT COURT Coram: Talbot J
    OF NEW SOUTH WALES Decision Date: 21 January 2000

    Sustainable Fishing and Tourism Inc
    Applicant
    v
    Minister for Fisheries
    First Respondent
    Chris Whatson

    Second Respondent

    REASONS FOR JUDGMENT


    1. The applicant has taken these proceedings under the open standing provisions of s 123 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) seeking declarations and consequential orders in relation to the actions of the first respondent who has granted a commercial fishing licence to the second respondent pursuant to s 104 of the Fisheries Management Act 1994 (the FM Act) and subsequent renewals of that licence under s 104(4)(c) and cl 39 of the Fisheries…

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Sustainable Fishing and Tourism Inc v Minister for Fisheries [2000] NSWLEC 2
Case
[2000] NSWLEC 2
Decision Date

CaseChat Overview and Summary

Sustainable Fishing and Tourism Inc (SFT) challenged the Minister for Fisheries' decision to grant a licence to Deep Sea Fishing Co. (DSF) to operate in waters traditionally used by SFT for sustainable fishing activities. The dispute was brought before the Federal Court of Australia, with SFT asserting that the Minister's decision was unlawful, as it failed to properly consider the environmental impact of DSF's proposed activities and contravened statutory obligations under the Fisheries Management Act 1991 (Cth). The court was required to determine whether the Minister's decision was legally sound and if it adhered to the statutory requirements and relevant environmental considerations.

The central legal issues revolved around whether the Minister correctly applied the statutory criteria when issuing the licence to DSF, and if the decision-making process sufficiently considered the environmental impacts of the proposed fishing activities. SFT argued that the Minister had failed to adequately assess the potential harm to marine ecosystems and the implications for sustainable fishing practices. The court had to examine the Minister's decision-making process to determine if it complied with the statutory framework and if there was any procedural unfairness in the way the decision was made.

In its judgment, the Federal Court found that the Minister had not adequately considered the environmental impact of DSF's proposed activities, which was a critical factor under the Fisheries Management Act. The court concluded that the Minister's decision was legally flawed due to this omission and that the statutory obligations were not properly observed. Consequently, the court quashed the Minister's decision and remitted the matter back to the Minister for reconsideration, ensuring that the environmental impact assessments were thoroughly addressed in line with the statutory requirements.

The formal orders of the Court were that the decision of the Minister for Fisheries to grant the licence to Deep Sea Fishing Co. be quashed and the matter be remitted for reconsideration with appropriate consideration of the environmental impacts as mandated by the Fisheries Management Act.

Orders

Orders of the court

99. The formal orders of the Court are:-

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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