Tarkine National Coalition Inc v Minister Administering the Mineral Resources Development Act 1995 - [2016] TASSC 11

[2016] TASSC 11

COURT: SUPREME COURT OF TASMANIA

CITATION: Tarkine National Coalition Inc v Minister Administering the Mineral Resources Development Act 1995 [2016] TASSC 11

PARTIES: TARKINE NATIONAL COALITION INC
v

MINISTER ADMINISTERING THE MINERAL
RESOURCES DEVELOPMENT ACT 1995

FILE NO:  103/2015
DELIVERED ON:  10 March 2016
DELIVERED AT:  Burnie
HEARING DATE:  30 November 2015
JUDGMENT OF:  Wood J

CATCHWORDS:

Administrative Law – Judicial review – Reviewable decisions and conduct – Refusal of request for reasons – Whether Minister obliged to provide reasons for decision to grant mining leases – Effect of decision contingent as mining operations subject to statutory approval process – Whether "adversely affected" by decision.

Judicial Review Act 2000 (Tas), ss 7, 17, 29, 35.
Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development (2014) 254 CLR 394, considered.
HA Bachrach P/L v Minister (1984) 85 LGERA 134, applied.
Aust Dig Administrative Law [1016.5]

REPRESENTATION:

Counsel:
             Applicant:  A Beeson
             Respondent:  P Turner
Solicitors:
             Applicant:  Environmental Defenders Office (Tas) Inc
             Respondent:  Director of Public Prosecutions

Judgment Number: [2016] TASSC 11
Number of paragraphs: 56

Serial No 11/2016
File No 103/2015

TARKINE NATIONAL COALITION INC v MINISTER ADMINISTERING THE MINERAL RESOURCES DEVELOPMENT ACT 1995

REASONS FOR JUDGMENT WOOD J

10 March 2016

An application has been made for an order pursuant to s 35(2) of the Judicial Review Act 2000, requiring a decision-maker to provide a statement of reasons for decisions. The decisions are the granting of applications for two mining leases in an area known as the Tarkine located in the northwest region of Tasmania. Tarkine National Coalition Inc, an incorporated association concerned with the conservation and management of the Tarkine area, requested reasons for those decisions. The decisions were made, in each case, by the incumbent Minister responsible for administering the Mineral Resources Development Act 1995. In both instances, the Minister refused to provide reasons. Tarkine National Coalition Inc now seeks that this Court make an order requiring the Minister to provide a written statement of reasons for the decisions. Whether the order should be made turns on the association's entitlement to reasons and whether it is "adversely affected" by the decisions to grant the mining leases, within the meaning of the Judicial Review Act 2000 ("JR Act").
The Court has power to make the order sought if the applicant has made a request under s 29 for a written statement relating to the decision (JR Act, s 35(1)(a)), the Minister has not complied with the request (s 35(1)(b)), and provided the applicant was entitled to make the request. Section 29 provides that "if a person makes a decision to which this Part applies", a request for a statement of reasons may be made by a person who is "entitled to make an application to the Court under s 17 relating to the decision". In turn, s 17 provides that an application to the Court for an order of review, relating to a decision to which the JR Act applies, may be made by a person who is "aggrieved by a decision". The meaning of "person aggrieved" is set out in s 7 which provides, in part:
"(1) In this Act, a reference to a person aggrieved by a decision is taken to be a reference to —
(a) a person whose interests are adversely affected by the decision …".
Thus, the applicant may seek an order from this Court for reasons if it qualifies as a person whose interests are "adversely affected" by the decisions. Other requirements under the JR Act for the making of the order are satisfied. The Minister's decisions to grant the mining leases are decisions to which the JR Act applies. As stipulated by s 4 of the JR Act, they are administrative in character, made under an enactment, and do not fall within a class of excluded decisions set out in Sch 1 of the JR Act. The further requirements of the Act, that the applicant made a request for a written statement relating to the decision, and the Minister did not comply with the request, have been fulfilled.

Background

The applicant's history can be traced to an alliance that formed between various existing environment groups, including the Australian Conservation Foundation and the Wilderness Society, with the name "Tarkine National Coalition". These groups worked together in the mid-1990s for the protection of the Tarkine region. The applicant was incorporated in 2002. Its objectives relate to protecting and restoring the natural environment of the north west of Tasmania and the Tarkine. The applicant's objectives include achieving National Park status and World Heritage listing for the Tarkine. The activities and work of the applicant include lobbying politicians and policy makers, and educating the wider community regarding the natural and cultural values of the Tarkine. It has developed a detailed proposal for a Tarkine National Park. It has nominated the Tarkine for inclusion on the National Heritage list. The supporting documentation includes extensive reports from experts regarding the cultural and natural values of the region. The applicant is active in promoting tourism in the Tarkine, consistent with the protection of the natural environment. It received substantial Federal Government grants for the construction of walking trails and for the production of a self-guide brochure for the Tarkine. It is a member of the Tarkine Tourism Advisory Committee which developed the "Tarkine Tourism Development Strategy", and the applicant has hosted a forum which promoted the tourism opportunities of the area. The applicant is the only organisation solely dedicated to the protection of the values of the Tarkine. It can be seen that, as asserted by the applicant in its particulars, the applicant "is recognised as the pre-eminent environmental organisation with respect to the management of the natural values of the Tarkine". There is no contention by the respondent to the contrary.
Venture Minerals Limited applied to the Minister for Resources for two mining leases. Both proposed mining operations involve an open cut mine. The proposal for one of the leases, referred to as the Mt Livingstone lease, is for the extraction of iron ore; for the other, referred to as the Mt Lindsay lease, iron ore, tungsten, tin and copper are to be extracted. The Mt Lindsay proposal is for mining operations involving the following: an open cut pit of around 70 hectares; a rock storage facility; a crushing and processing plant; stockpile areas for topsoil, mine ore and processed product; a tailings storage facility, most likely a tailings dam; storage of waste product from the processing of minerals; workshops; a laboratory; offices; an access road network from the highway to the site and to the components of the site; water pipelines; and cut and diversion drains. The proposal for the Mt Livingstone mining operations is a smaller scale operation. It is to involve less processing due to the proposal to mine direct shipping ore.
The decisions granting the applications were made under s 78 of the Mineral Resources Development Act 1995 ("MRDA"). The section provides the Minister administering the MRDA with a discretion, stating the Minister may grant or refuse to grant the application for a mining lease. Section 78A(1) sets out essential criteria which must be met before the Minister may grant the application:
"78A When Minister may grant application
(1)   The Minister may only grant an application for a lease if the Minister is satisfied that the applicant –
(a)has demonstrated that there is a sufficient quantity of minerals to justify mining; and
(b)         intends to carry out mining operations under the lease; and
(c)     intends to comply with this Act; and
(d)         has an appropriate mining plan; and
(e)is likely to have sufficient financial and technical resources to carry out the mining plan; and
(f)has provided the Director with sufficient information relating to the likely impact on the environment; and
(g)         has provided a security deposit."
Section 78A(4) and (5) stipulate factors which may justify a refusal to grant an application for a lease:
"(4) The Minister may refuse to grant an application for a lease by an applicant if the Minister is of the opinion that the application ought to be refused because –
(a)   of significant, or repeated, breaches of this Act or the regulations by –
(i) the applicant; or
(ii)a person, authorised or employed by the applicant, who committed the breach, or breaches, in relation to activities under a licence of any kind, or a lease, of the applicant; or
(b)   the applicant has failed to comply with the conditions subject to which an application under this Act by the applicant for a licence of any kind, or a lease, was granted; or
(c)   the applicant has failed to substantially carry out as much of a work program, development plan, field development plan, or mining plan, in relation to a licence of any kind, or a lease, of the applicant, as ought reasonably to be expected to have been carried out at the time the application is made.
(5)   The Minister may refuse to grant an application for a lease by an applicant if the Minister is of the opinion that the application ought to be refused because –
(a)   taking into account the risks and benefits to the State of allowing mining operations under the lease to occur, it is in the best interests of the State not to grant the application for the lease; or
(b)   it is desirable to preserve the minerals in the area of land to which the lease would relate so as to enable their exploitation at a period in the future other than the period in which mining by the applicant in respect of the area of land would occur."
The decision granting the application for the Mt Livingstone mining lease was made by the Minister for Resources, the Hon Mr Bryan Green. Mining Lease 3M/2012 was duly issued, dated 28 May 2012. The decision granting the Mt Lindsay mining lease was made by the Minister, the Hon Mr Paul Harriss. Mining Lease 7M/2012 was duly issued, dated 3 July 2014. Clause 2 of the mining leases provides that the Minister leases the lease area to the lessee exclusively for the authorised purpose of mining operations in the lease area. Mining operations is defined to mean obtaining and treating of minerals. The lease area for the Mt Lindsay lease is 362 hectares and, for the Mt Livingstone lease, it is 1066 hectares. The areas are adjacent. The mining leases give the lessee the authority within the lease area to clear vegetation, excavate and remove soil and rock, alter the natural water regime, disturb native fauna, and permanently alter the landscape.
The applicant made a number of requests for reasons with respect to the decisions to grant the leases. In refusing to provide reasons for each of the two decisions, the respondent's stance was the same, asserting that the applicant was not entitled to make a request for reasons because the interests of the applicant were not adversely affected by the decision for the purpose of the JR Act. A letter of 10 February 2015 from the Minister provided: "the decisions in these matters (to grant the leases) will not produce any relevant physical effect or damage upon the environment in the Tarkine". In order to understand the respondent's position, it is necessary to have regard to the arguments that were advanced before this Court on the respondent's behalf.

The submissions

The arguments for the respondent placed a heavy reliance on the statutory framework that applies with respect to the approval of mining operations. In particular, there was reliance on the MRDA, the Environmental Management and Pollution Control Act 1994 and the Land Use and Planning Appeals Act 1993 ("LUPA Act").
There was reliance on the fact that a consideration of the legislation reveals that the decision to grant the mining leases does not necessarily result in any mining operations impacting on the environment. By virtue of the regime in the LUPA Act, Venture cannot carry out any "mining operations" until it secures the appropriate planning permit. The respondent argued that, in essence, because of the statutory scheme, the effect of the decision falls short of affecting any interests of the applicant. It is for this reason that the applicant is not a person aggrieved within the meaning of the JR Act and falls outside the provision of s 29. It can be seen that the argument is not about the kind of interest held by the applicant, its nexus with the decision, or whether it qualifies for the purpose of the JR Act. In the alternative, it was argued for the respondent that the Court ought not exercise the discretion in s 35(2) of the JR Act, having regard to the statutory regime and the availability of another remedy under that regime.
It was argued on behalf of the applicant that, in light of Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development (2014) 254 CLR 394, the Court should not have regard to the broader statutory context in determining whether the applicant is aggrieved. Only the statute under which the decision was made, in this case the MRDA, is relevant for the purpose of illuminating the nature of the decision and determining the legal and practical effect of the decision. In the alternative, it was contended by the applicant that the mining leases allow exploration and preliminary works to be undertaken merely with the approval of the Director of Mines and without any other approval steps or requirement for a permit. These exploration and preliminary works would have an impact on the environment and an adverse impact on the applicant's interests.
Undoubtedly, in considering the question of standing under the JR Act and equivalent legislation in other jurisdictions, it is necessary to have regard to the legal effect and operation of the decision, the subject of the application, in order to determine how the interests of an applicant may be adversely affected: Argos per French CJ and Keane J at [42], Hayne and Bell JJ at [68] and Gageler J at [76] and [86]. It is necessary to consider the case of Argos and whether it is authority for the proposition advanced by the applicant.

Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development

In Argos, the decision in question was a ministerial decision made under the Planning and Development Act 2007 (ACT) to approve a proposal for a new commercial development for a supermarket and speciality shops at a site near the appellants' premises. The Supreme Court of the Australian Capital Territory, at first instance and on appeal, held that none of the appellants was a "person aggrieved" by the Minister's decision within the meaning of the Administrative Decisions (Judicial Review) Act 1989 (ACT). The High Court accepted the contention that the owner of a business, who is likely to suffer a loss of profitability from a greater exposure to commercial competition as a result of the Minister's decision, is a person aggrieved under the ADJR Act. The High Court considered the criterion of a "person aggrieved" and the necessary approach in determining whether it applied. The case was relied on as authority by both parties, as was a quote from the judgment of French CJ and Keane J at [43]:
"Consistently with that proposition it will be necessary to have regard to the enactment under which the impugned decision is made and the legal effect and operation of the decision in order to determine how the interests of the applicant for review may be adversely affected or the applicant otherwise a person aggrieved."
This uncontroversial passage was relied upon by the applicant in this case as establishing that the approach should be confined to the enactment under which the impugned decision is made. In this context, I note also the judgment of Hayne and Bell JJ at [68] and Gageler J at [86] referring to the statute under which the decision was made for the purpose of determining the standing issue.
Submissions on behalf of the respondent highlighted that the passage requires consideration of the "legal effect and operation of the decision". It was submitted that in order to properly ascertain such effect and operation, it may be necessary to give consideration to the broader statutory framework. There is force in this argument and I do not consider that passage should be read as prescribing the narrow approach contended for by the applicant. The passage must be read in its context of the "facts and circumstances which explain its particular expression": Argos per Hayne and Bell JJ at [59]. The context was an argument that standing was to be determined by reference to the "scope and purpose of the statute under which the decision under review was made" and the objects of the statute conferring power to make the decision. It was in rejecting that argument and concluding that the criterion does not allow for its expansion or contraction according to the scope and purpose of the enactment under which the decision is made, that the quoted remarks were made. The remarks were not addressing whether, in determining the legal and practical effect of the decision, the task is confined to the statute under which the decision was made. The passage emphasises that the task is one of understanding the decision and its reach. I conclude that, while in some cases that is likely to be resolved by consideration of the statute giving rise to the decision, in other cases a broader approach may be required. To take a stark example, there could be a situation where, by operation of statutory provisions, other than the enactment under which the decision was made, the decision is excluded from having an effect, or a category of persons is exempt from its application. I reject the argument that Argos prescribes a narrow approach and will give consideration to the broader context as urged by the respondent.

The statutory context

The submissions for the respondent relied on the effect of the statutory regime in terms of mining operations and the approval process. I will refer to some of the key provisions and some of the central points made with respect to them.

Mineral Resources Development Act

Relevant provisions include:
•   "Mining" (as defined in s 3) is prohibited unless a person holds a lease: s 69(a).
•   Before the Minister makes a decision about the granting of an application for a mining lease, the Director of Mines is to consider an application for a lease: s 75(1).
•   If the Director intends to recommend to the Minister that the application be granted, the Director is to notify that intention by notice in writing as required under s 75(2).
•   Objections to the granting of an application for a mining lease may only be made by a person with a proprietary interest in the area of land in respect of which a lease is sought: s 76 and Stow v Mineral Holdings (Australia) Pty Ltd (1979) 180 CLR 295.
• The Minister may grant or refuse to grant the application after considering the application, any recommendation of the Director, and subject to any decision of the Mining Tribunal: s 78
• As mentioned earlier, the Minister may only grant an application for a lease if the Minister is satisfied of the statutory requirements in s 78A(1)(a)–(g).
•   The Minister may refuse to grant an application for a lease if the Minister is of the opinion that the application ought to be refused because of matters in s 78A(4) (a)–(c) or s 78A(5) (a)–(b).
•   Once an application for a mining lease is granted, the lease is to be issued (s 81(1)) and the Minister has discretion to impose conditions: s 80.
•   The authority of the mining lease to carry out mining operations is set out in s 84. In part, it allows the lessee to carry out mining operations on the land specified in the lease.

It was submitted for the respondent that whilst mining leases are expressed as being inter partes, they simply comprise a grant, and are not property in the conventional sense (TEC Desert Pty Ltd v Commissioner of State Revenue (WA) (2010) 241 CLR 576). The conditions of the leases cannot be enforced, rather, any breach exposes the lessee to revocation of the lease. The proper characterisation of a mining lease is that it is purely permissive. The decision to grant the application for a mining lease, and the subsequent issue of the lease, constitutes nothing more than permission to Venture to conduct "mining operations" on the subject land.

Land Use and Planning Approvals Act

The lessee must comply with the relevant provisions of the LUPA Act. It must not conduct any activities which are in breach of the applicable planning scheme, the West Coast Interim Planning Scheme 2013: LUPA Act, ss 20(2)(b), 63(2).
Under the Planning Scheme, whether a use or development is prohibited, permitted or discretionary is determined by the type of use and the zone in which the use will take place. Under the Scheme, uses and developments are categorised into use classes. Some uses or developments do not require a permit to be carried out (cl 8.6.1); some uses are permitted and a permit must be granted (cl 8.7.1); some uses are discretionary (cl 8.8.1); and some are prohibited and a permit must not be granted (cl 8.9.1).
Clause 8.8.1 of the Scheme provides that the planning authority has a discretion to refuse or permit a use or development if it is a use which is classified as discretionary within the Scheme, or it is discretionary under any other provision of the Planning Scheme. Mining operations are categorised as "Extractive Industry": cl 8.2. The boundaries of the mining leases 3M/2012 and 7M/2012 are within the Environmental Management Zone where extractive industry is discretionary: cl 29.2. Thus, the planning authority has a discretion whether or not to grant a permit.
The respondent drew on the statutory regime and submitted that the terms of the Planning Scheme are such that it is not lawful for "mining operations" to be performed without a permit being granted by the West Coast Council: cl 8.4.1. Venture cannot conduct any mining operations or related activities, such as clearing vegetation, without a permit. A person is precluded from carrying out any activities which constitute use and development under the LUPA Act. It was submitted by the respondent that the legal effect or practical operation of the decision to grant the leases is nil until the West Coast Council exercises its discretion to grant the permit. If a permit is granted, conditions may attach, provided they are within s 51(4) or (3A) and are for "proper planning purposes": Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30. Absent a permit, the lessee is unable to lawfully do anything which would materially adversely affect any interest of the applicant.

Environmental Management and Pollution Control Act

As noted, mining operations pursuant to the mining leases would require a permit before any work may be carried out, on application to the West Coast Council as the relevant planning authority. The Environmental Management and Pollution ControlAct imposes further steps in the process once an application is made for a permit. Section 25 provides that when an application has been made to a planning authority for a permit in respect to the use or development of land, which comprises a "permissible level 2 activity", the planning authority must (save for minor exceptions) refer the application to the Board of the Environment Protection Authority ("EPA"). By virtue of s 3 and cl 5 in Sch 2, the proposed mining operations are a level 2 activity (noting that the proposed mining operations each involve producing more than 1,000 tonnes of minerals per year). The EPA may determine that it does not need to assess the activity. If the activity is assessed, the EPA must notify the planning authority of any condition or restriction required to be contained in the permit and the reasons, or the EPA must direct the planning authority to refuse to grant the permit and notify the authority of the reasons for that: s 25(5). The sorts of conditions which the EPA may require to be contained in a permit are set out in s 25(6).
The assessment process undertaken by the EPA involves advertising of the application and calling for public submissions: s 27G. Any person may make representation (s 27G(1)(a) and s 27(2)) and, if made, it must be taken into account by the EPA: s 27H.
The opportunity for objection is supplemented by provisions under the LUPA Act. The applicant must provide notice of an application for a permit, and any person may make representations relating to the application: LUPA Act, s 57(5). A person who has made such representation may appeal the decision of the planning authority to the Appeal Tribunal: LUPA Act, s 61(5). After hearing the appeal, the Appeal Tribunal may direct the planning authority to grant the permit; or direct the planning authority that the permit must, or must not, contain any specified conditions; or direct the planning authority not to grant a permit: LUPA Act, s 62(c).
It was reiterated, in submissions for the respondent, that until such time as Venture secures the appropriate planning permit, it cannot carry out any "mining operations". It was highlighted that, in order to obtain the permit, there must be an assessment by the EPA and, once a permit has been applied for, there is an opportunity to object and, upon the granting of the permit, the applicant is entitled to appeal the decision to the Appeal Tribunal which involves a merits based hearing. It is submitted that, given the statutory regime, a mining lease falls short of adversely affecting an interest of the applicant.

"Adversely affected by the decision"

Before considering the argument raised by the applicant, it is useful to have regard to the meaning of "decision" under the JR Act. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, the High Court gave consideration to the meaning of the word "decision" as it is used in the Administrative Decisions (Judicial Review) Act 1977 (Cth). The reasoning in Bond has application to the meaning of the word "decision" in the JR Act. For the application of Bond, see King v Director of Housing [2013] TASFC 9 and State of Tasmania v Anti-Discrimination Tribunal (2009) 19 Tas R 54 at [21]-[24]. The court in Bond was concerned with a finding, made under s 88(2) of the Broadcasting Act 1942 (Cth), that a licensee was no longer a fit and proper person to hold the licence. The finding was an essential preliminary to the making of the ultimate decision under s 88(2)(b)(i) to revoke, suspend or impose conditions on a licence.
The question that arose in Bond was whether a narrow approach was required, such that it must be a determination which effectively resolves an actual substantive issue, final or intermediate or, even more narrowly again, a decision which effectively disposes of the matter in hand. Mason CJ gave the leading majority judgment and stated that generally, a decision needs to be "final", but is not limited to a final decision disposing of the controversy between the parties. At 337, the judgment provided that, speaking generally, a reviewable decision entails "a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact calling for consideration". Ordinarily, and subject to the statutory context, "a conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision" would not amount to a reviewable decision (at 337). Another essential quality is that it must be a substantive decision. It was held that, although the tribunal's decision was an "intermediate determination made on the way to deciding whether to revoke or suspend the licences or to impose conditions on them, it was a decision on a matter of substance for which the statute provided as an essential preliminary to the making of the ultimate decision" (at 339). Thus, the tribunal's decision was reviewable.
Applying that reasoning to this case, the Minister's decision to grant the mining leases qualifies as a reviewable decision. A substantive issue of whether to grant the mining leases was resolved and the decision was, in fact, an ultimate, not an intermediate decision as to the granting of leases. The fact that the decision is an intermediate step in the process required before mining operations can commence, is not to the point. A final decision is not to be equated with a decision which is the final step in effecting or achieving the objective of a party to that decision. A final decision may well be an intermediate step in achieving a particular outcome.
The argument advanced by the respondent, as I understand it, is that, even if the decision has the quality of finality, the decision would nonetheless fall outside the JR Act because of the effect of the applicable statutory regime. It means that a person's interests could not be "adversely affected". The meaning of a "person aggrieved" under the Act is taken to be a person whose interests "are adversely affected" (emphasis added) by the decision, and the test is not merely a person whose interests may be or could be adversely affected. This begs the question what is required for interests to be adversely affected and whether there needs to be certainty that the decision will be carried into effect. On a plain interpretation, it seems to me that a person's interests could be said to be "adversely affected" by a decision if it opens the way for an outcome which will have a detrimental impact. A question which may be posed, correctly reflecting the task of deciding whether a person's interests are adversely affected by a decision, is "If the Minister's decision stands and is carried into effect, what will the impact be upon the applicant" (these words are borrowed from the appellants' submissions in Argos referred to in Argos at [62]). The case law in this area is replete with examples where, for any number of reasons, the decision might not be carried into effect and yet, this is not treated by the courts as fatal. That is hardly surprising given that whether a particular proposal, the subject of a decision, would go ahead or not, would often turn on imponderables that could not be known at the time of the decision in question. It cannot have been envisaged by Parliament that the JR Act would have such a limited operation as to only apply where there is certainty that the decision will be carried into effect.
In HA Bachrach P/L v Minister (1984) 85 LGERA 134, there were proceedings for judicial review of a decision of the Governor-in-Council in relation to an amendment to a strategic plan. The Minister sought to have the proceedings summarily dismissed. The amendment to a strategic plan was to provide for additional regional retail centres. The applicant's contention was that the development of another regional shopping centre might result in a loss of tenants, custom or value of the applicant's shopping centre. The statutory test of a "person aggrieved" in the Judicial Review Act 1991 (Qld) was under consideration. That provision stated:
"a person aggrieved by a decision includes a reference to –
(a) a person whose interests are adversely affected by the decision".
A preliminary point was taken as to the applicant's standing. Kiefel J referred to the requirement that an applicant be a person whose interests are "adversely affected". Her Honour noted that the same statutory test, in legislation from other jurisdictions, has been consistently given a broad interpretation: Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 at 437-438; Rothmans of Pall Mall (Aust) Ltd v Australian Broadcasting Tribunal (1985) 5 FCR 330. In Queensland Newsagents Federation Ltd v Trade Practices Commission (1993) 46 FCR 38, it was held that the interests identified must be exposed to peril by the decision.
It was argued for the respondent that the decision amending the strategic plan was contingent, since the decision only brings the strategic plan into operation, and does not itself affect the approval of the development. This argument is analogous to the argument presented on behalf of the respondent in this case. Dealing with that argument, Kiefel J stated at 137:
"I do not however consider that the sections require that an applicant show an immediate adverse effect, or that a decision be the final link in a chain of causative events. If the decision has potential for such damage, a person's interests are exposed to peril, and are adversely affected within the meaning of the section. To construe the section as narrowly as the Minister would contend for would be to read the words as limited to interests which are thereby injured." (My emphasis.)
It was argued for the respondent that Bachrach can be distinguished because of the difference in the wording of the Queensland provision. The Queensland legislation, like the Commonwealth ADJR Act and similar legislation from other jurisdictions, is couched in inclusive terms and does not employ the deeming words "taken to be", appearing in the Tasmanian provision. However, as can be seen from the judgment, the inclusive nature of the definition did not assume any significance and the focus was on the words "interests are adversely affected".
As noted, the respondent's argument in this case is similar to that advanced in Bachrach, that the decision falls outside the JR Act because of the contingent quality of the decision and that, in that sense, it is not final in nature. I see nothing in the JR Act which indicates, expressly or by implication, that the section should be construed more stringently than the construction adopted in Bachrach. For the reasons stated by Kiefel J, the respondent's argument should be rejected. The contingent quality of the decision is not fatal. The words "are adversely affected" are to be equated with exposing interests to peril.
I add an observation regarding the respondent's argument. Taken to its logical conclusion, if the argument is correct, no person could have an interest and no person could be aggrieved by the decision to issue a mining lease because of its contingent quality. Fundamentally, this seems wrong due to the significance of the decision.
I conclude that a decision to issue a mining lease is a decision about which a person may be aggrieved. The legal effect of the decisions is to authorise mining operations. The authorisation is essential to the proposed mining operations and, in the context of the stages of the approval process governing proposed mining operations, it is, of itself, a significant decision. The fact that there are other procedural stages before the decision can be carried into effect does not deprive the decision of its inherent importance.
It is my conclusion that the decision falls within the definition of s 7 and it could adversely affect a person's interests. It is not necessary for me to consider the applicant's alternative argument. It remains for me to consider whether the applicant is a person who is in fact aggrieved by the decision.

The nature of the interest

Before the order sought can be made, I need to be satisfied that the applicant is a person aggrieved in the sense that its interests are adversely affected by the decisions, and that there is the necessary nexus with the interests of the applicant. Having examined the legal and practical operation of the decisions, it is necessary to consider whether the legal or practical operation of the decisions has adversely affected identified interests of the applicant.
In Argos, Gageler J at [76] set out the approach to be taken:
"To draw a conclusion that a person meets the statutory description of 'a person whose interests are adversely affected' by a decision requires: first, identification of a decision of the designated kind; second, examination of the legal or practical operation of that decision; and, third, the making of a judgment that the legal or practical operation of the decision has been to result in an adverse effect on identified interests of the person. The nature of the requisite interests, and the nature and degree of the requisite adverse effect, depend on the statutory context in which the description appears."
Relevant principles that assist with determining whether interests of the applicant fall within the terms of s 7(1)(a), "a person whose interests are adversely affected by the decision", are as follows. These words are expressed very generally (Argos at [60]) and should be construed as an enabling, not a restrictive, procedural stipulation: Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at [50]; Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50 per Lockhart J at 65. As stated by Hayne and Bell JJ in Argos at [61]:
"The focus of the inquiry required by the words is upon the connection between the decision and interests of the person who claims to be aggrieved. The interests that may be adversely affected by a decision may take any of a variety of forms. They include, but are not confined to, legal rights, privileges, permissions or interests. And the central notion conveyed by the words is that the person claiming to be aggrieved can show that the decision will have an effect on his or her interests which is different from ('beyond') its effect on the public at large."
It is well established that environment groups may qualify as having standing: Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70 at [74]; North Coast Environment Council Incorporated v Minister of Resources [1994] FCA 1556. In Tasmanian Conservation Trust Inc v Minister of Resources and Gunns Ltd (1995) 55 FCR 516, the Trust was held to be a person aggrieved for the purpose of the Administrative Decisions (Judicial Review) Act 1977. The factors which led to that conclusion were set out in the judgment of Sackville J at [137] and included the following: the Trust was the peak environmental organisation for Tasmania, recognised as such by the State and Commonwealth governments; it had been recognised by the Commonwealth as a significant and responsible environmental organisation, and recognised by the Tasmanian Government as a body that should represent environmental interests on advisory or consultative bodies; the research and advisory activities of the Trust involved detailed considerations of woodchipping and the preservation of Tasmanian forests, the very subject-matter of the litigation; and, the Trust had demonstrated its commitment to conservation values.
In Tarkine National Coalition Inc v Alex Schapp unreported, Supreme Court of Tasmania, 18 June 2014, Blow CJ held that the applicant was a person aggrieved under the JR Act. The decision concerned a purported authority to change the nature of the operation of a previously approved mine in the Tarkine. Of course, this case must be resolved on the evidence presented for the purpose of this application.
The nature of the interest of the applicant, and its proximity to the decision made, is not contentious. There is ample evidence that the applicant qualifies as a person aggrieved. It possesses an interest greater than an ordinary member of the public. Its interest in the Tarkine is long-standing and has not been generated by the present proceedings. The applicant's reason for existing is to protect the natural values of the Tarkine. As I have mentioned, its objectives include achieving World Heritage status and National Park status for the Tarkine. It has engaged in activities that demonstrate its commitment to conservation and protection of the natural values of the Tarkine. The mining operations will affect its objectives. The operations are large in scale and the environmental footprint of these operations and impact on the natural environment within the lease areas will be substantive. Both mining leases fall within the boundaries of the proposed National Park. Clearly, the decisions authorising mining in the Tarkine adversely affect the applicant's interests. I conclude that the applicant is a person aggrieved for the purpose of s 7 of the JR Act.

The exercise of discretion

The submissions for the respondent draw attention to the fact that the Court has a discretion and may decline to make the order sought. It is submitted that, even if the Court is satisfied that the applicant is a person aggrieved, the order should not be made. Reliance is placed on the availability of an alternative remedy. It was submitted that the process by which a permit is issued affords to the applicant the right to make a representation and, ultimately, to appeal to the Appeal Tribunal resulting in a merits based review.
However, this overlooks the fact that the applicant has an interest in the particular decisions made by the Minister to grant the applications for mining leases, not just an interest in the ultimate result with respect to mining operations and any conditions that may be imposed. The applicant has an interest in knowing why the decisions granting the leases were made and in seeing that they were correctly made. The right to appeal to the Appeal Tribunal does not provide a remedy specific to grievances about ministerial decisions in granting the mining leases. If the decisions to grant the applications for leases were flawed with reference to any of the grounds in s 17(2) of the JR Act, then judicial review under the JR Act is an appropriate remedy. Moreover, reasons are essential to enable those decisions to properly be reviewed: Landon–Lane v Minister for Economic Development and Tourism and Premier of Tasmania (2009) 19 Tas R 72 at [14].
A further consideration, weighing in favour of the exercise of discretion to make the order sought, lies in the purpose of the JR Act. Judicial review of administrative decisions has an important practical benefit for the community, as well as vindicating the interests of persons affected by the decision. In Argos, French CJ and Keane J referred to the intention of the ACT legislation in the following terms at [48]:
"It must be borne in mind that the ADJR Act is intended to facilitate judicial review of administrative decisions made under a wide range of statutes and having a wide range of practical effects upon members of the community. The availability of judicial review serves to promote the rule of law and to improve the quality of administrative decision-making as well as vindicating the interests of persons affected in a practical way by administrative decision-making. Accordingly, the scope of s 3B(1)(a) of the ADJR Act should not be artificially narrowed by glosses upon its broad language."
The purpose of promoting the rule of law and improving the quality of administrative decision-making, as well as vindicating the interests of persons, are important considerations in the Court's exercise of its discretion and weigh heavily in favour of making the order sought. There are practical considerations too; it is desirable that the process involved in approving mining operations proceed on a correct footing and, if the initial granting of an application is flawed because legal procedures were not observed, or there was error of law in the making of the decision, or a lack of material to justify making the decision for some reason, then that should be revealed before the lessee and interested persons have invested considerable resources in later stages of the approval process. There are compelling reasons for making the order.There remains the ultra vires issue.

Ultra vires

It was argued for the respondent that a consideration of the constitution of the applicant, its objectives and powers, demonstrates that it is acting ultra vires in demanding reasons for the decisions. It was contended that it would be rewarding ultra vires behaviour to make the order sought and that this consideration weighs against the exercise of discretion in favour of the applicant. The objectives and powers of the applicant set out in its constitution are as follows:

"2.0 OBJECTIVES
2.1To protect and restore the natural environment of the North West of Tasmania
2.2To protect and restore the natural environment of the area referred to as the Tarkine, including but not limited to the National Estate Listed Tarkine
2.3To achieve the attainment of World Heritage Listing for the area known as the Tarkine.

2.4 To achieve National Park Status for the area known as the Tarkine.
2.5 To preserve, protect and restore ecosystems.
2.6To establish and maintain a public fund to be called the 'Tarkine Fund', for the specific purpose of supporting the environmental objects of the Tarkine National Coalition Inc.
3.0POWERS OF THE ASSOCIATION
3.1To open and operate bank accounts;
3.2To invest its money as authorised by The Management Committee;
3.3To give such security for the discharge of liabilities incurred by the Association as the Association thinks fit;
3.4To appoint agents to transact any business of the Association on it's [sic] behalf;
3.5To enter into any other contract the Association considers necessary or desirable;
3.6To object to developments or activities that may threaten the natural environment."

There is no reasoned basis for suggesting that the seeking of reasons of the Minister is ultra vires the objectives of the applicant. Seeking reasons for a ministerial decision to issue mining leases in the Tarkine area is intra vires any number of the listed objectives, such as the objective of protecting the natural environment of the Tarkine area. As to the powers of the association, it may be noted that cl 3.6 provides a power "to object to developments or activities that may threaten the natural environment". The natural meaning of the verb "object" includes:
"object / vt 1 Place so as to interrupt, hinder, or intercept something; put in the way, interpose; expose […] 2 State as an objection; adduce as contrary or damaging to a case, contention, etc […] 3 State or have an objection; express or feel opposition, disapproval, or reluctance". The New Shorter Oxford English Dictionary on Historical Principles, vol 2, 4th ed abridged (1993) at 1964.
It may legitimately be said that the act of requesting reasons is an act of objecting, because it is a hindrance in itself or an expression of disapproval. Further, the act of garnering information to support a potential objection may be said to be exercising the power to object. The association's power to object to developments or activities that may threaten the natural environment entails a power to ascertain whether an objection should be pressed, and one aspect of that is ascertaining whether ministerial power in granting a lease has been properly exercised.
The applicant submitted that its powers are supplemented by model rules. The applicant is an association incorporated under the Associations Incorporation Act 1964 (Tas). Model rules, prescribed for associations incorporated under that Act, are deemed to form part of an association's rules providing they are not inconsistent with, excluded by, or modified by the association's rules: s 16(3).
Relevantly, r 4(m) of the model rules provides:
"The objects and purposes of the Association consist of the basic objects of the Association and the following objects and purposes:
[…]
(m) the doing of any lawful thing incidental or conducive to the attainment of the objects or purposes of the Association" (set out in sch 1 of the Associations Incorporation (Model Rules) Regulations 2007).
There is nothing in the applicant's rules of association which is inconsistent with or which excludes or modifies the model rules generally or r 4(m). Thus, the objectives and powers of the applicant are supplemented by r 4(m) and include the doing of any lawful thing incidental or conducive to the attainment of the association's objects and purposes. The act of seeking a statement of reasons for decisions to issue a mining lease with respect to the Tarkine is incidental and conducive to attaining the objectives of the applicant set out in cl 2.1 – 2.5.
It was not argued on behalf of the respondent that the model rules did not apply, or that seeking reasons did not fall within the enlarged objects of the association. I am not persuaded that the making of a request for reasons for the issuing of the two mining leases was ultra vires the applicant's powers, and it has not been shown that the Court might be rewarding ultra vires conduct by making the order sought.

Conclusion

For the abovenamed reasons, I am satisfied that I should make the order sought in these proceedings. The applicant qualifies as a person who is "aggrieved by the decision" and, under the JR Act, was entitled to request reasons. I am satisfied that the Court's discretion should be exercised in favour of making the order. Accordingly, pursuant to s 35(2) of the JR Act, I shall order the Minister to give a statement of reasons to the applicant. Before making the order, I shall hear from the parties as to the time period to allow for the provision of those reasons.