Tasmanian Conservation Trust Inc v Minister for Resources

[1996] FCA 25

C A T C H W O R D S
ADMINISTRATIVE LAW - application to review licence to export wood chips pursuant to the Environment Protection (Impact of Proposals) Act 1974 (Cth) - whether approval-in-principle of long-term project must be considered by the Government in acting under the Act - whether review of approval-in-principle available under the Administrative Decisions (Judicial Review) Act 1977 (Cth) - meaning of term "decisions" in s.5(d) of the Act - whether approval-in-principle of long-term project part of decision-making process.

ENVIRONMENT PROTECTION (IMPACT OF PROPOSALS) ACT 1974 (Cth) -whether an unlawful failure to designate a proponent under clause 1.2.1. of the Administrative Procedures made under the Act - what is a "proposed action" for the purposes of the designation of a proponent - whether an unlawful failure to make an environmental impact statement or public environment report in making a designation - meaning of "matters affecting the environment to a significant extent" in s.5(1)

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Environment Protection (Impact of Proposals) Act 1974 (Cth)

Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493
Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516

TASMANIAN CONSERVATION TRUST INC v MINISTER FOR RESOURCES and GUNNS LIMITED

Davies J.
9 February 1996
Sydney

IN THE FEDERAL COURT OF AUSTRALIA                 ) 
  )  
NEW SOUTH WALES DISTRICT REGISTRY                )  No G 735 of 1995
  )     
GENERAL DIVISION  )     

BETWEEN:          TASMANIAN CONSERVATION TRUST INC  

Applicant

AND:                   MINISTER FOR RESOURCES

First Respondent

GUNNS LIMITED

Second Respondent

Coram:        Davies J.
Date:          9 February 1996
Place:         Sydney

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.The application be dismissed. 

2.Each party shall abide his or its own costs of the proceedings.             

NOTE:        Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA                 ) 
  )  
NEW SOUTH WALES DISTRICT REGISTRY                )  No G 735 of 1995
  )     
GENERAL DIVISION  )     

BETWEEN:          TASMANIAN CONSERVATION TRUST INC  

Applicant

AND:                   MINISTER FOR RESOURCES

First Respondent

GUNNS LIMITED

Second Respondent

Coram:        Davies J.
Date:          9 February 1996
Place:         Sydney

REASONS FOR JUDGMENT

This is a continuation of the matters which became the subject of the judgment of a judge of the Court, Sackville J.,  in Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516.

The Environment Protection (Impact of Proposals) Act 1974 (Cth) ("the EP Act") describes itself as:-

"An Act to make provision for Protection of the Environment in relation to Projects and Decisions of, or under the control of, the Australian Government, and for related purposes"

Section 5(1) of the EP Act provides inter alia:-

"5.(1)  The object of this Act is to ensure, to the greatest extent that is practicable, that matters affecting the environment to a significant extent are fully examined and taken into account in and in relation to:

(a)the formulation of proposals;

...

(d)the making of, or the participation in the making of, decisions and recommendations; and

...

by, or on behalf of, the Australian Government and authorities of Australia, either alone or in association with any other government, authority, body or person."

Section 5A(1) provides:-

"5A.(1)  Without limiting the scope of section 5, a matter is taken, for the purposes of that section, to be a matter affecting the environment to a significant extent if it could threaten with extinction, or significantly impede the recovery of, a listed native species or a listed ecological community."

Section 8 provides:-

"8. Each Minister shall give all such directions and do all such things as, consistently with any relevant laws as affected by regulations under this Act, can be given or done by the Minister:

(a)for ensuring that procedures for the time being approved under this Act are given effect to in and in connexion with matters dealt with by the Department administered by the Minister and that any authority of Australia in relation to which the Minister has ministerial responsibilities observes, and assists in giving effect to, those procedures; and

(b)for ensuring that any final environmental impact statement or public environment report formulated in accordance with those procedures, and any suggestions or recommendations made in accordance with those procedures, are taken into account, in matters to which they relate, in the Department administered by the Minister and by any authority of Australia in respect of which the Minister has ministerial responsibilities."

Administrative Procedures made under s.6 of the EP Act on 29 May 1987 provided, inter alia:-

"1.1.In these procedures, unless the contrary intention appears -

`action Minister', in relation to a proposed action, means the Minister of State for the Commonwealth responsible for the proposed action, and includes where appropriate the Minister of State for the Commonwealth for the time being administering the Act;

...

`proposed action' means a matter referred to in any of the paragraphs of section 5 of the Act;

...

`the proponent', in relation to a proposed action, means the proponent of the proposed action under paragraph 1.2.1. or 1.2.3. and includes any person acting on behalf of the proponent."

"1.2.1.  Subject to these procedures, the action Minister, or a person on behalf of the action Minister, shall, as soon as possible after any initiative has been taken in relation to a proposed action designate a person or Department as the proponent of the proposed action and shall ensure that the Department is thereupon informed of the proposed action and of the name and address of the person or Department so designated."

"1.2.2.  In designating the proponent of a proposed action under paragraph 1.2.1., the action Minister, or a person on behalf of the action Minister, shall have regard to the general principle that, as far as convenient, the person or Department responsible for the proposed action should be designated as the proponent."

...

"2.1.  As soon as possible after the Department has been informed of a proposed action under paragraph 1.2.1. or 1.2.4., the proponent shall supply to the Minister, or the Department, such information as is required by these procedures, or is otherwise necessary, for the purpose of consideration, by the Minister or on the Minister's behalf, of the necessity of an environmental impact statement or a public environment report in relation to the proposed action."

"3.1.1.  Subject to the Act and these procedures, the Department shall, as soon as possible after the information referred to in paragraph 2.1., and any further information required under paragraph 2.3., has been received in relation to a proposed action -

(a)determine, on behalf of the Minister, that the preparation or obtaining, and submission to the Minister, of an environmental impact statement or a public environment report in relation to the proposed action is not required for the purpose of achieving the object of the Act; or

(b)refer the question whether the preparation or obtaining, and submission to the Minister, of an environmental impact statement or a public environment report in relation to the proposed action is required for the purpose of achieving the object of the Act to the Minister who shall forthwith determine the question and shall make a direction accordingly."

"3.1.2. Subject to the Act, the Minister, or the Department on behalf of the Minister, shall, in making a determination under paragraph 3.1.1. take into account -

(a)whether, and to what extent, the proposed action may result in -

(i)a substantial environmental effect on a community;

(ii)the transformation of a substantial area;

(iii)a substantial impact on the eco-systems of an area;

(iv)a significant diminution of the aesthetic, recreational, scientific or other environmental quality, or value, of an area;

(v)an adverse effect upon an area, or structure, that has an aesthetic, anthropologic, archaeologic, architectural, cultural, historical, scientific or social significance or other special value for the present or future generations;

(vi)the endangering, or further endangering, of any species of fauna or flora;

(vii)important long-term effects on the environment;

(viii)the degradation of the quality of the environment;

(ix)the curtailing of the range of beneficial uses of the environment;

(x)the pollution of the environment;

(xi)environmental problems associated with the disposal of waste; or

(xii)increased demands on natural resources which are, or are likely to be, in short supply; and

(b)any environmental assessment action taken relevant to the proposed action by any State or the Northern Territory or authority of a State or the Northern Territory."

Those procedures were substantially amended on 5 May 1995.  I need not set out the new provisions.

For many years, Gunns' Limited and Gunns' Kiln Dried Timber Industries Ltd (both of which will be referred to as "Gunns") were involved in the production of wood chips from timber resources in Tasmania.  However, at first, Gunns sold the wood chips to other companies which held licences to export wood chips from Australia.  On 4 October 1993, Gunns wrote to the Minister for Resources making application for the issue of a licence to export approximately 475,000 green tonnes per annum of eucalyptus wood chips.  The application outlined an "Integrated Sawmill and Chip" proposal which involved, inter alia, the redirecting of the better pulp wood logs into a milling process so that there would be a better recovery of sawn wood whilst adding to the volume of chip production.  Two stages were proposed.  Stage one was a proposal in which Gunns was to increase the production in its existing plants directing the best of the pulp logs, capable of producing sawn timber, directly through the company's existing saw mills.  It was proposed to introduce second shifts into the plants.  Stage two involved the establishment of a dedicated chipping facility within close proximity of the resource base and port facilities in northwestern Tasmania.  The annual output of wood chips from stage one was estimated to be 175,000 green tonnes and that of stage two to be a further 300,000 green tonnes to give a total annual output of wood chips of 475,000 green tonnes.  The total proposal was a long term proposal and, apart from planning for the construction of a dedicated chipping mill at Stanley in the northwest of Tasmania, spoke of resources available "at least in the first 10 years".  A further development of the proposal, called an "Integrated Sawmill" proposal was issued in November, 1993.

No doubt as a result of discussions which took place, Gunns wrote to the Minister of Resources on 23 May 1994 to say that it would accept a licence for stage 1.  The letter read, inter alia:-

"Gunns' Integrated Sawmill proposal is structured in two stages.

We are comfortable to have a licence issued for stage one only, but request that the figure of 175,000 green tonnes indicated in our previously supplied data be increased to 200,000 green tonnes, allowing stage one to maximise the use of low grade logs."

On 10 June 1994, the Minister for Resources granted a licence to Gunns to export up to 200,000 green tonnes of hardwood chips during the period commencing on 10 June 1994 and ending on 31 December 1994.  Conditions of the licence were:-

"3(b)The volume of woodchips exported under this licence shall not exceed 200 000 green tonnes unless a variation to this volume has been specifically authorised in accordance with the Memorandum of Understanding.

...

5(a)Source material for the production of woodchips for export under this licence shall be limited to sawmill residues, obtained in the State of Tasmania."

On the same day, the Minister wrote giving an in-principle approval to the stage one proposal.  The letter read, inter alia:-

"I refer to your application of 4 October 1993 for a licence to export hardwood woodchips from Tasmania and your letter of 23 May 1994 revising certain aspects of your application.

I am pleased to advise that I have granted in-principle approval to allow Gunns Limited to export up to 200 000 green tonnes of hardwood chips derived solely from sawmill residues each year until the end of 1999, subject to the issue of annual export licences.

This in-principle approval is subject to the requirements of the attached Memorandum of Understanding agreed between the Commonwealth and Tasmania in 1986.  The
main purpose of that agreement is to implement Commonwealth recommendations flowing from the Tasmanian woodchip industry environmental impact statement.

I have also approved the enclosed licence (MEPWOOD 919) for the period 10 June 1994 to 31 December 1994 authorising Gunns Limited to export up to 200 000 green tones of hardwood chips from Bell Bay or Burnie.  This licence is subject to my approval of price and to you forwarding a copy of your contract of sale to the Department of Primary Industries and Energy prior to export."

However, no step had been taken under clause 1.2.1. of the Administrative Procedures to designate a person or Department as the proponent of this action, the grant of the in-principle approval and the grant of the first annual licence.  The reason for this appears to be that set out in a letter from the Minister to the Tasmanian Conservation Trust of 24 August 1994, which is set out in Sackville J.'s judgment at 539.  The letter read:-

"It was not necessary to designate Gunns as a proponent under the Environment Protection (Impact of Proposals) Act 1974 as their export proposal did not raise any issues of environmental significance not already taken into account under the current environmental impact statement (EIS) on the Tasmanian woodchip industry. The Commonwealth requirements which flow from that EIS are embodied in a Memorandum of Understanding between the Commonwealth and State (MOU) to which the export woodchip industry, including Gunns, must conform as a condition of export approval."

The issue of the licence and the steps relating to it were challenged in this Court.  Sackville J. held that the "proposed action" was one which would have a significant effect on the environment.  His Honour concluded that, in the circumstances, the Minister had been bound to designate a proponent of the proposed action.  At 540, his Honour said:-

"I therefore conclude that the Minister erred in law in determining that there was no occasion to designate a proponent of the proposed action, under the terms of par 1.2.1 of the Administrative Procedures."

His Honour accordingly set aside the licence granted on 10 June 1994.  His Honour made no order with respect to the approval-in-principle of that date.  I shall return to that point later. 

Before his Honour gave judgment, a licence for the 1995 year had been issued on 19 December 1994.  This was a licence to export up to 200,000 green tonnes of wood chips.  After his Honour had handed down his judgment, the Minister for Resources invited Gunns to submit a new application for a licence for the 1995 year. 

On 10 March 1995, Gunns entered into a contract with an overseas company for the export to it of wood chips for a period of five years, the tonnage being 100,000 tonnes for 1995 and thereafter 200,000 tonnes for each calendar year.

On 3 April 1995, Gunns made an application for a licence for 1995 which would permit it to export out of Bell Bay and Birnie up to 200,000 tonnes of wood chips.  The proposal was for the export of "Sawmill Residue Woodchip", and was within stage one of the project.  The proposal noted, inter alia:-

"Gunns Limited has established a sawmill residue chip pile at the Bell Bay Port. 

Residue chips are currently being delivered to this facility at the rate of 500 Green Tonnes per work day.  On current estimates, this facility will be full by the end of June 1995.

Chip pile establishment costs are ongoing and include base preparation, fencing and administration infrastructure.  The Port of Launceston Authority will be constructing a causeway over the next three months.

This causeway will allow us to efficiently link our chip pile by a conveyor constructed on the causeway to existing Port facilities.  The cost of the causeway and conveyor is estimated to be A$1.3 million.

The Company will be upgrading its sawmill facilities at Waverley, in Launceston, over the next six months to allow full implementation of the `low grade log proposal' detailed in Attachment (2).

The estimated cost of this upgrade is A$3 million."

Accompanying this application was also a proposal called a "Low Grade Sawlog" proposal.  This proposal related to pulp wood which the proposal said had been under-utilised for many years and of which there was a large surplus available in Crown forests.  The proposal said, inter alia:-

"The surplus could be used over a period of five years (at 500,000 tonnes per year) or over a period of ten years (at 400,000 tonnes per year), after which harvest levels would return to a base level of about 260,000 tonnes per year.  The available quantities consist predominantly of Eucalypt, but also include other species.

In addition, the following volumes of eucalypt pulpwood are available from other sources:

(i)about 35,000 tonnes per year of sawmill residues from the region;

(ii)up to 50,000 tonnes per year from private forests in the region; and

(iii)an unspecified amount from outside the region.

The proposal includes significant amounts of pulpwood from a `backlog' of areas that have already been harvested for sawlog only, as well as from forests to be cleared over the next few years for plantation establishment.

...

Gunns have three mill sites in the north of the State:

a)Lindsay Street, Launceston

b)Waverley, Launceston

c)Deloraine.

Lindsay Street is currently operating two shifts and Deloraine one shift.  Waverley has been temporarily closed for refurbishment and modification.  It is proposed that Waverley be designed to efficiently handle low grade logs as its prime function.  This facility will then be run on a two shift basis.  Resource will be sourced primarily from crown land approx. 65,000 m/3 and supplemented with low grade logs from the company's own freehold.

Refurbishment and upgrading of the Waverley Mill is expected to commence within the next three months, and have a works program of a similar duration.  Expectations are that Waverley will be in full production by September 1995."

Gunns did not, however, seek to export more than 200,000 green tonnes during the year.

On 24 April 1995, Gunns was designated as the proponent of the proposal with respect to the reissue of a licence for 1995. 

Following this designation, the Environmental Protection Agency ("EPA") examined the matter.  Details of the coupes from which the timber would be obtained were supplied.  The subsequent environmental report of the EPA noted, inter alia:-

"The original proposal submitted by Gunns in 1993 was for a two stage development.  This report deals only with Stage 1 which involves operating second shifts at the existing sawmills to process additional low grade sawlogs.  This will double Gunns' production of woodchips from 80,000 tpa to 170,000 tpa.  For the Stage 1 development, Gunns' sought a woodchip export licence in its own right.  A licence for 200,000 tpa was issued to Gunns on 10 June 1994.  This licence was challenged by the Tasmanian Conservation Trust in the Federal Court and overturned in the 10 January 1995 decision of Sackville J.  Previously, woodchips produced by Gunns were sold to North Forest Resources and Boral and exported under their licences, and exported by North Forest Products and Boral.

At present, woodchips from the Circular Head sawmill are transported by truck to Bell Bay Port, near Launceston, where they are stockpiled and exported along with woodchips produced at Launceston.  The woodchips are exported to Japan as raw material for paper pulp manufacture.  The application by Gunns for reissue of its licence seeks to export from the port of Burnie as well as Launceston to reduce transport costs.

The 1993 proposal included exporting at some stage through the port of Stanley and the construction of a new berth, overhead conveyors and loading facilities.  Stanley is on the Register of the National Estate because of its historical values.  Stage 2 of the proposal, involves a substantial increase in Gunns operation.  Neither proposal is going ahead for the present and neither is addressed in the application for the remainder of 1995.

...

Gunns has stated that the export of woodchips under its licence has not led to the logging of forest areas additional to those scheduled for logging for sawlogs or veneer logs by Forestry Tasmania.  Additional timber put through its mills comprised low grade logs from integrated logging operations which, otherwise, would be left in the forest and burnt.  In this case, it could be argued that the only additional impacts
related to the removal of logs and road transportation were minimal.  This is said to be true of operations involving both Crown and private forestry.

It is considered that, for the remainder of 1995, this situation and any minor departure from it would be unlikely to cause long term impacts on the environment.  Gunns operations should, however, be examined in more detail in the assessment of 1996 woodchip licence applications, in particular, the effects of cable logging in areas with highly erodable soil and the impacts on adjacent vegetation.

The principal environmental values of forests are being examined within the DFA process as a basis for identifying those areas that should receive interim protection.  It is important that the integrity and environmental values of areas identified for interim protection in the DFA process are not impaired in any way.

It is also important that Gunns private property operations be incorporated into the CRA/RFA process.  Unless this occurs, a substantial part of the forest estate would not be covered by an assessment acceptable to the Commonwealth, raising the prospect of a possible reduction in exports under the Government's policy or the need for further assessment under the EP(IP) Act if future exports of private property-sourced woodchips were to be contemplated.

...

Under normal circumstances there may be a case to require assessment with public review (an EIS or PER) of Gunns operation, particularly if export through Stanley or progress with the implementation of State 2 of the proposal is contemplated.  There is also some doubt about the extent to which the 1985 EIS contemplated forestry operations related to Gunns.  However, in view of the assessments being conducted under the DFA and of 1996 export licence applications, and provided that all forests from which Gunns derive pulpwood are included in the CRA/RFA process, there would be little justification to conduct an EIS or PER.

As the licence only relates to the final six months of the year prior to other assessments taking effect, it is unlikely that long term impacts would result from re-issuing the licence.  Areas given interim protection through the DFA process should be protected during this period however."

It will be seen that the assessment report concluded that Gunns' activities during 1995 would be unlikely to have any significant effect upon the environment and that detailed consideration of the particular areas from which Gunns drew its timber would be sufficiently undertaken in "the CRA/RFA process" which was then on foot.  The assessment report described this process as follows:-

"In April 1995 Tasmania signed the National Forest Policy Statement (NFPS) and a joint Commonwealth/Tasmanian Statement of Intent on forestry matters which included an invitation to the Commonwealth to enter into a Regional Forest
Agreement (RFA) with Tasmania.  Consultations with Tasmanian officials on the preparation of a scoping agreement are proceeding.

Deferred forest assessments (DFAs) are being conducted as a central part of the assessment of 1996 woodchip export licences to identify forest areas of high conservation value that have potential for inclusion in a comprehensive, adequate and representative (CAR) reserve system.  Areas identified will be given interim protection pending completion of RFA's.  DFA's are expected to be completed by August 1995."

The Acting Minister for the Environment, Sport & Territories received this assessment and other advice including a memorandum dated 11 July 1995 which read, inter alia:-

"13.  The basis of woodchip exports from Tasmania in recent years, including the overall export quota, has been the 1985 EIS conducted by the Commonwealth, the Memorandum of Understanding following the EIS and the 1988 Heads of Agreement.  Areas of forest warranting protection were examined in the high conservation value exercise conducted in 1994 and in the assessment of forest coupes placed on the interim protection list announced on 27 January 1995.  Significant progress is also being made in the DFA process.

14.   Tasmania has recently signed the National Forest Policy Statement and a Statement of Intent on the future management of forests.  The Statement of Intent included an invitation to the Commonwealth to engage in an RFA in regard to Tasmanian forests and forestry and consultations are in progress towards a scoping agreement for the RFA.  It is considered important that the RFA examine private as well  as Crown forests as the former contain a significant part of the timber resource used by Tasmanian timber products companies.

15.   The source areas used by Gunns either have undergone or will undergo environmental assessment.  Operations during the 6 month life of the reissued licence are unlikely to cause long term impacts if precautions are taken to protect the environment.  These are provided by prescriptions under which timber is harvested and licence conditions.

16.   The EPA has concluded, therefore, that neither an EIS nor a PER is warranted prior to reissue of the licence provided that the conditions contained in the licence issued on 19 December 1994 are retained and an additional condition is added to protect deferred forest areas from the time of their identification in draft DFAs."

On 12 July 1995, the Acting Minister of the Environment, Sport & Territories, determined, in accordance with para 3.1.1(b) of the Administrative Procedures, that neither an environmental impact statement nor a public environment report was
required in relation to the proposal to reissue the wood chip export licence to Gunns for the period ending 31 December 1995.  Following consideration of the Acting Minister's advice, on 18 July 1995, the Minister for Resources granted a licence to Gunns to export up to 200,000 tonnes of wood chips during the period 18 July 1995 to 31 December 1995.  The conditions attached to the licence were not precisely the same as those attached to the 1994 licence but I need not set them out.

The last matter of fact which I should mention is that, on 19 April 1995, the Assistant Secretary of the Forests Branch of the Commonwealth Department of Primary Industries & Energy requested that Gunns provide an early indication of its intentions with regard to the export of hardwood chips in 1996 and, if appropriate, follow this with an application for a wood chip export licence.  On 24 April 1995, the Assistant Secretary advised the Commonwealth Environment Protection Agency that the invitation to reapply for the 1995 licence may constitute an initiative in relation to a proposed action.  Accordingly, he designated Gunns as the proponent of the proposed action.

The present proceedings, commenced on 26 September 1995, seek orders of review with respect to the grant of the 1995 licence and with respect to the designation of Gunns in relation to the 1996 licence.  The Administrative Procedures were amended on 5 May 1995, as I have mentioned.  Later in 1995, there was a further designation of Gunns as the proponent of the proposed action.  On 1 December 1995, the 1996 licence, again limited to 200,000 tonnes, was granted.  The actions and decisions which have occurred since the institution of these proceedings
are not within the compass of the proceedings and I shall make no comment on them. 
         In his reasons for judgment, Sackville J. made observations as the operation of the EP Act and Administrative Procedures, with not all of which I would agree, though I do not query in any way the order which his Honour made.  His Honour also described certain of the events with which we are now concerned.  As the matter has come before me, I consider that I am obliged to make my own findings of fact and that, in applying the EP Act and the Administrative Procedures, I am obliged to apply their terms unless I perceive an ambiguity in them, in which case I should give great weight to his Honour's observations.

The EP Act is concerned with projects and decisions of, or under the control of, the Australian government.  That is the description which the EP Act has given to itself. Moreover, s.5 of the EP Act requires that "matters affecting the environment to a significant extent are fully examined and taken into account in and in relation to ... the making of, or participation in the making of, decisions and recommendations ... by, or on behalf of, the Australian Government"  The EP Act and the Administrative Procedures contain no provisions imposing obligations on individuals and companies or penalties on non-complying persons and companies. Moreover, no placitum of s.51 of the Constitution directly confers power upon the federal Parliament to legislate with respect to the environment. The EP Act draws upon s.51(xxxix), the incidental power. The EP Act deals with matters "incidental to the execution of any power vested by this Constitution in the Parliament ... or in the Government of the Commonwealth ... or any department or officer of the Commonwealth". The subject
matter of the Act is action taken or proposed by or under the control of the Commonwealth, its Parliament, its Executive or its officers.

Paragraphs 1.2.1. and 1.2.2. and other paragraphs of the Administrative Procedures used the terms "proposed action" and "the action Minister".  The former term was defined in para 1.1. to mean "a matter referred to in any of the paragraphs of section 5 of the Act" and the latter term to mean "the Minister of State for the Commonwealth responsible for the proposed action, and includes where appropriate the Minister of State for the Commonwealth for the time being administering the Act".  I consider the proposed action in the present case to be, therefore, the licence for 1995 which the Minister for Resources was considering whether or not to grant.  Of course, in considering the manner in which the proposed action might affect the environment, attention had to be given to all those actions on the part of Gunns which might flow from the grant of the licence to export.  The EP Act and the Administrative Procedures required that attention be given to all those activities which the grant of the licence would be likely to generate and the effect which those actions would have upon the environment.  Paragraph 3.1.2. of the Administrative Procedures, which is set out above, specified in some detail the types of matters which must be considered.

In his judgment, at 536, Sackville J. expressed the view that the "proposed action" was the action proposed by or on behalf of Gunns and not the action proposed by or on behalf of the Commonwealth.  His Honour rejected the view of
the EP Act and the Administrative Procedures which I have expressed and which had been put to him by senior counsel for the Minister for Resources and said:-

"Accordingly, I think that the better view is that, in the circumstances of the present case, if there were a `proposed action' for the purposes of par 1.2.1 of the Administrative Procedures, it was the proposal by or on behalf of Gunns in its application of October 1993, identifying its intended activities in obtaining and processing logs and transporting and exporting woodchips."

For the reasons I have given, I am unable to accept this view of the legislation and of the Administrative Procedures.  The view which I prefer seems to me to flow clearly from the terms of the legislation and the Procedures.  It was also the view expressed by Stephen J. in Australian Conservation Foundation Incorporated v The Commonwealth (1980) 146 CLR 493 where his Honour said at 545:-

"That this is so is no more than a consequence of the nature of the proposed actions with which the Act and Procedures are concerned.  As the terms of s.5 of the Act and the definition of `proposed action' in the Procedures makes clear, it is action proposed by the Executive arm of government with which an E.I.S. is concerned.  Occasionally, as in the present case, that executive action will consist of the granting of some executive consent, the grant of which is itself incapable of direct environmental detriment but which may produce that result at second-hand, by permitting some development by private enterprise which could not proceed without it.  But it is executive action generally that is aimed at.  As the long title to the Act describes it, this is legislation `to make provision for Protection of the Environment in relation to Projects and Decisions of, or under the control of, the Australian Government'.  The Minister's concern is to ensure that, `to the greatest extent that is practicable', matters affecting the environment are taken into account in the taking of executive action."

Gunns' proposal for the export of 475,000 of wood chips per annum had involved two stages, the second stage being the construction and establishment of a dedicated chip mill at Stanley on the northwest coast of Tasmania.  Nothing in the material before me suggests that the Australian Government has given any serious consideration to approving that proposal.  It was a proposal put forward by Gunns
and it may still be a proposal which Gunns would like to progress if circumstances become favourable.  But the fact that a company such as Gunns has a proposal which it may wish to progress does not, in my opinion, mean that in 1995 the Australian Government had to concern itself with that proposal's environmental impact.  The Government was required to act under the EP Act and the Administrative Procedures only when a matter affecting the Government's decision-making and actions arose.  The letter from Gunns to the Minister for Resources of 23 May 1994 recognised that stage one of the project, for an export of up to 200,000 green tonnes of wood chips per annum, was all that need be considered.

It is not in dispute, or not seriously in dispute, that, if all the Minister for Resources had to consider was the effect of the grant of the licence to export up to 200,000 tonnes of wood chips during the period 18 July 1995 to 31 December 1995, the environmental procedures under the EP Act and the Administrative Procedures were properly carried out.  Thus, it plainly appears that consideration was given by the Minister not merely to the fact that the licence would be a limited one for six months but also to the effect which the grant of the licence would be likely to have in relation to Gunns' operations and upon the timber resources.   Indeed, the claim which was first made in these proceedings against the Minister for the Environment, Sport and Territories was subsequently discontinued.

The designation of Gunns as the proponent of the proposed action encompassed a consideration of all the matters which Gunns raised in its application for the licence.  The application and the accompanying documents including the Low
Grade Sawlog proposal of March 1995 were sent to the EPA with the designation.  Although the report of the EPA did not expressly turn its attention to all the matters raised in that proposal, there were many matters which would have had no relevant environmental impact.  Thus, Gunns' intention to derive a proportion of sawn timber from logs which previously would have been used only for pulp would not seem to have any adverse environmental impact.  And the references to two shifts at the Lindsay Street, Launceston plant and to the upgrading of the Waverley mill would seem to be matters relevant to the State authorities.  The matters which would have been of particular concern to the Commonwealth EPA were the volume of the exports, up to 200,000 green tonnes, the coupes from which the timber would be obtained and the period of the licence.  These, and like matters which paragraph 3.1.2. of the Administrative Procedures required to be considered, were given attention.

The substantial point that is relied upon on behalf of the applicant is that there was no designation of a proponent in respect of Gunns' 1993 proposal to export 475,000 tonnes per annum or in respect of Gunns' long term project to export 200,000 tonnes of wood chips per year and there was no environmental assessment as to the effect of those proposals.  I have already dealt with the 1993 proposal.  The grant of a licence to export 475,000 tonnes per annum was not being considered by the Minister for Resources in 1995. 

My tentative view is that the approval-in-principle of Gunns long term proposal to export 200,000 tonnes per year, which was expressed by the Minister for Resources
on 10 June 1994, was neither unlawful nor of no practical effect.  At the very least, it amounted to an expression of assurance that the export by Gunns of 200,000 tonnes of wood chips each year until the end of 1999 had the Government's approval, though exports would be subject to the grant of annual export licences.  My tentative view is that this approval-in-principle was reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth) being an "act or thing" within paragraph (g) of s.3(2) of that Act, which expands the meaning of "decision" for the purposes of that Act. The grant of the approval-in-principle in association with the grant of the first licence sufficiently affected the relationship between Gunns and the Australian Government as to constitute the decision then made.

The term "decisions" in s.5(d) of the EP Act should not be read in a limited technical sense.  It is used in the context of the expression "decisions and recommendations" and in association with "the formulation of proposals".  The EP Act is concerned with protection of the environment.  In the grant of licences and authorities, it is common for an applicant which is wishing to establish or to expand or to upgrade a business venture to seek from the Government approval-in-principle to that which is proposed.  Thus, eg., if the proposal involves the establishment of an entirely new enterprise, such as a mine in an isolated area, it is likely that the operator who, ultimately, will require export licences for the product, will seek Government approval-in-principle for the project.  It is a common thing in Commonwealth administration for approvals-in-principle concerning the establishment or the development of an enterprise to be given, thereby conferring long-term assurance or comfort on the operator.  At the same time, it is usual for the actual licences or authorities to be granted only annually or periodically and for the precise terms of the licences or authorities to be reconsidered and adjusted from time to time as the circumstances warrant.

Thus, the better view may be that the giving of an approval-in-principle and the issue of a licence such as an export licence are both steps which are a part of the decision-making process in an industry such as the export of wood chips.  The decision-making process is not limited to the grant of annual licences, for many operators also require, for the purposes of their business, some assurance of tenure and of resource.

However, the giving on 10 June 1994 of the approval-in-principle was an issue which came before Sackville J.  His Honour did not set it aside.  His Honour said at 550:-

"... I do not think the in-principle approval had the effect of creating a substantive entitlement in Gunns beyond 31 December 1994.  In other words the approval was not an ultimate or operative determination in relation to Gunns' application for a licence under the Export Control (Unprocessed Wood) Regulations. Furthermore, it was not authorised by those regulations. Accordingly, I do not think it was a `decision' for the purposes of s 5 of the ADJR Act."

Accordingly, the approval-in-principle stood thereafter for whatever value, if any, it had.  In this circumstance, the issue of approving again Gunns' proposal to export 200,000 tonnes of wood chips annually up to the end of 1999 was not considered in 1995.  In 1995, the matter which was under consideration by the Government was not whether an approval-in-principle should be given to Gunns' stage one project but
simply whether a licence should be granted for the remaining months of 1995.  By 1995, the implementation of stage one was already well under way.

Thus, the EP Act and the Administrative Procedures did not require that, in 1995, there be a designation of Gunns' earlier proposal to export up to 200,000 tonnes per annum up to the end of the year 1999.  In 1995, the giving of approval, in-principle or otherwise, to that proposal, was not under consideration.

For these reasons, the challenge to the licence granted on 10 July 1995 must fail. 

There are possible challenges which may be made to the designation on 24 July 1995 of Gunns as the proponent of the proposal to grant the 1996 licence.  However, all that occurred was a procedural step.  If there was an error and if it was not corrected by whatever occurred later in 1995, then there may be a challenge to the 1996 licence.  But, as counsel for the applicant conceded, it is premature to deal with that matter. 

The result is that the application will be dismissed.  However, as the effect of the case is to confirm the applicant's contention that the procedures required by the EP Act and the Administrative Procedures were not followed in that the environmental effects of Gunns' long term project did not become the subject of an environmental assessment, I think the applicant has had some success.  I shall order that each party abide his or its own costs of the proceedings.                 

I certify that this and the 21 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Davies.

Associate:

Date:   9 February 1996

Counsel for the applicant:                  J. Basten QC,
  J.E. Griffiths        

Solicitors for the applicant:                Environmental Defender's Office Ltd

Counsel for the 1st respondent:          J.S. Hilton SC

Solicitor for the 1st respondent:         Australian Government Solicitor

Counsel for the 2nd respondent:         P.D. McClellan QC

Solicitors for the 2nd respondent:       Dunhill Madden Butler

Date of hearing:  5-6 December 1995

Date of judgment:  9 February 1996