Wilderness Society of WA (Inc) v Minister for Environment - [2013] WASC 307

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: THE WILDERNESS SOCIETY OF WA (INC) -v- MINISTER FOR ENVIRONMENT [2013] WASC 307

CORAM: MARTIN CJ

HEARD: 4 JUNE 2013

DELIVERED : 19 AUGUST 2013

FILE NO/S: CIV 3044 of 2012

BETWEEN: THE WILDERNESS SOCIETY OF WA (INC)
First Plaintiff
RICHARD HUNTER
Second Plaintiff
AND
MINISTER FOR ENVIRONMENT
First Respondent
ENVIRONMENTAL PROTECTION AUTHORITY
Second Respondent
WOODSIDE ENERGY LTD
Third Respondent

Catchwords:

Administrative law - Judicial review - Effect of participation of persons with a pecuniary interest in decision - Particular persons or bodies - Minister for Environment - Environmental Protection Authority

Statutes - Statutory Construction - Environmental Protection Act 1984 (WA) - Whether procedural requirements condition the exercise of a statutory power under the Act - Significance of purpose of act and use of imperative language - Power of delegation - Derivative invalidity

Estoppel - Res judicata and issue estoppel - Matter not contentious and therefore no estoppel per rem judicatem

Legislation:

Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Environmental Protection Act 1984 (WA), s 4A, s 7, s 11, s 12, s 13, s 14, s 15, s 16, s 19, s 37B, s 38, s 38A, s 39A, s 39B, s 40, s 41, s 41A, s 43A, s 44, s 45, s 45A, s 47, s 48, s 100, s 106, s 108, s 110
Environmental Protection Act 1971 (WA)
Interpretation Act 1984 (WA), s 10, s 18, s 57
Local Government Act 1960 (WA)

Result:

Decision of Environmental Protection Authority to submit assessment report of Browse LNG Precinct Proposal is invalid

Decision of Minister for Environment to the effect that the Browse LNG Precinct Proposal may be implemented is invalid

Decision of Environmental Protection Authority to declare the a development proposal presented to the Authority by Woodside Energy Ltd a derived proposal is invalid

Category: A

Representation:

Counsel:

First Plaintiff                :     Mr J T Schoombee & Mr P Pearlman
Second Plaintiff            :     Mr J T Schoombee & Mr P Pearlman
First Respondent           :     Mr R M Mitchell SC & Mr C S Bydder
Second Respondent       :     Mr R M Mitchell SC & Mr C S Bydder
Third Respondent         :     No appearance

Solicitors:

First Plaintiff                :     Slater & Gordon
Second Plaintiff            :     Slater & Gordon
First Respondent           :     State Solicitor for Western Australia
Second Respondent       :     State Solicitor for Western Australia
Third Respondent         :     Herbert Smith Freehills

Case(s) referred to in judgment(s):

Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596
Australian Finance Direct Ltd v Director of Consumer Affairs Victoria [2007] HCA 57; (2007) 234 CLR 96
Blair v Curran (1939) 62 CLR 464
Carruthers v Connolly [1998] 1 Qd R 339
Coastal Waters Alliance of Western Australia Incorporated v Environmental Protection Authority (1996) 90 LGERA 136
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297
Dickason v Edwards [1910] HCA 7; (1910) 10 CLR 243
Dovade Pty Ltd v Westpac Banking Group [1999] NSWCA 113; (1999) 46 NSWLR 168
Downward v Babington [1975] VR 872
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
FAI Insurances v Winneke [1982] HCA 26; (1982) 151 CLR 342
Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504
McKenzie v Minister for Lands [2011] WASC 335; (2011) 187 LGERA 1
Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Raccuia v Allpike (1991) 76 LGRA 388
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Reid v Director of Public Prosecutions [2012] WASCA 190
Roe v Director General, Department of Environment and Conservation WA [2011] WASCA 57; (2011) 180 LGERA 38
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Smits v Roach [2004] NSWCA 233; (2004) 60 NSWLR 711
Smits v Roach [2006] HCA 36; (2006) 227 CLR 423
Stollery v Greyhound Racing Control Board (1972) 128 CLR 509
Tasker v Fullwood [1978] 1 NSWLR 20
Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41
Williams v Commonwealth of Australia [2012] HCA 23; (2012) 86 ALJR 713
MARTIN CJ:

Summary

The applicants, the Wilderness Society of WA (Inc) (the Wilderness Society) and Mr Richard Hunter assert that three administrative decisions made in connection with the environmental assessment of a proposal by the Minister for State Development to establish a precinct for the processing of liquefied natural gas derived from the Browse Basin (the Browse LNG Precinct Proposal) at James Price Point (which is on the Dampier Peninsula north of Broome in the Kimberley region of Western Australia) were unlawful and are therefore invalid. The impugned decisions are:
(a)the decision of the Environmental Protection Authority (EPA) by its delegate, Dr Paul Vogel, who is the Chairman of the EPA, made on 16 July 2012, to submit a report to the Minister for Environment (the Minister) purporting to provide the EPA's assessment of the Browse LNG Precinct Proposal, together with the EPA's recommendations with respect to implementation of that Proposal;
(b)the Minister's decision made on 19 November 2012 to the effect that the Browse LNG Precinct Proposal may be implemented; and
(c)a decision of the EPA made on 17 December 2012 to the effect that a proposal presented to the EPA by Woodside Energy Ltd (Woodside) is a proposal derived from the Browse LNG Precinct Proposal (within the terminology used in the Environmental Protection Act 1986 (WA) (the Act).
The respondents are the Minister, the EPA and Woodside. Woodside filed a submitting appearance and took no part in the hearing. The other respondents properly accepted that Mr Hunter had standing to bring these proceedings, although they challenged the standing of the Wilderness Society.
Given the concession properly made with respect to Mr Hunter's standing, and the fact that nothing turned upon the presence or absence of the Wilderness Society as an applicant, it is unnecessary to resolve the issue with respect to the standing of the Wilderness Society.
The impugned decisions were challenged on an inordinate number of grounds. A number of those grounds were abandoned before and during the hearing, and it is unnecessary to decide a number of the remaining grounds, for reasons which follow. A number of the remaining grounds must be dismissed. However, I have concluded that the purported decision of the EPA on 16 July 2012 to submit the assessment report to the Minister was not a valid exercise of the powers conferred upon the EPA by the Act, because there had in fact been no valid assessment of the Browse LNG Precinct Proposal. That is because the assessment was undertaken following a process which was directed and controlled by a number of decisions purportedly taken by the EPA, but which were invalid because they were taken at meetings at which a number, often a majority, and on one significant occasion, all of those participating in the decision‑making were disqualified from participation by reason of their pecuniary interest in the Proposal. Those invalid decisions were an integral and indispensable part of the assessment process. When the powers of the EPA with respect to the Browse LNG Precinct Proposal were delegated to Dr Vogel on 5 July 2012, he did not himself undertake an assessment of the Proposal, but rather adopted, in substance, a report which had been prepared during the course of the assessment process which was vitiated by the participation of the disqualified members to which I have referred.
Because the decision of the EPA to send its purported assessment report to the Minister was invalid, the Minister's decision to issue a statement authorising the implementation of the Browse LNG Precinct Proposal substantially in accordance with the EPA's purported assessment report is also invalid, as is the EPA's decision to the effect that Woodside's proposal was a derived proposal.

The Act

The object of the Act

It is appropriate to commence with an overview of the structure and operation of the Act, in order that the facts can be viewed in that context.
Section 4A of the Act provides that its object is to protect the environment of the State, having regard to five enunciated principles. It is clear from the rest of the Act that this object is to be achieved in a variety of ways, including by the creation of the EPA and the prohibition of polluting, causing environmental harm, clearing native vegetation and various other activities unless approved in accordance with the Act, or exempted from its operation.

Environmental impact assessment

One of the ways in which approval can be obtained for acts or omissions that would otherwise constitute a contravention of the Act is through the process of environmental impact assessment regulated by pt IV of the Act. For the purposes of that part, the Act distinguishes between a 'significant proposal' which is defined (by s 37B(1)) to mean a proposal likely, if implemented, to have a significant effect on the environment, and a 'strategic proposal' which is defined (by s 37B(2)) to be a proposal 'if and to the extent to which it identifies … a future proposal that will be a significant proposal'. The expression 'future proposal' is not defined by the Act. The distinction between a strategic proposal and a significant proposal was addressed in the context of the Browse LNG Precinct Proposal, in Roe v Director General, Department of Environment and Conservation WA [2011] WASCA 57; (2011) 180 LGERA 38 [22] ‑ [31] (Martin CJ, Murphy JA agreeing). In general and somewhat imprecise terms, a strategic proposal is a proposal which does not, of itself, propose the undertaking of an activity likely to have a significant effect on the environment, but which identifies a proposal which would have that effect. So, for example, in the present case the identification of a precinct for the liquefication of natural gas (a strategic proposal) does not of itself have a significant effect on the environment unless and until a developer utilises the land identified for that purpose (pursuant to a significant proposal). The nexus between the two forms of proposal is provided by s 39B of the Act, which provides that the EPA may declare a proposal which has been referred to it to be a derived proposal if it was identified in a strategic proposal that has been assessed under pt IV of the Act, and after such assessment it was decided by the Minister that the proposal could be implemented, provided certain conditions are met.
Proposals (either significant or strategic) may be referred to the EPA, and must be referred in certain circumstances (s 38). The EPA must then decide whether or not to assess the proposal (s 39A) and, in practice, if an assessment is to be undertaken the EPA will at the same time determine the level of that assessment in accordance with s 40.
Section 40 provides for the conduct of assessments, and empowers the EPA to require the provision of information, or to conduct a public inquiry, or to require the proponent to undertake an environmental review and report thereon to the EPA. If the proposal is a significant proposal, it cannot approved by any decision‑making authority or implemented until the assessment process, and the processes of decision making which follow the assessment process, are complete (s 41 and s 41A) (as opposed to a strategic proposal which cannot, in and of itself, be implemented, subject of course to the derived proposal process).
Section 44 provides that if the EPA assesses a proposal, it is to prepare a report on the outcome of its assessment and give that report to the Minister. The same section requires that the assessment report provided to the Minister must set out what the EPA considers to be the key environmental factors identified in the course of the assessment, and the EPA's recommendations as to whether or not the proposal may be implemented, and if it recommends that implementation be allowed, the conditions and procedures, if any, to which implementation should be subject. After receiving an assessment report, the Minister is obliged to publish the report, and to provide it to certain other specified persons, as soon as he is reasonably able to do so (s 44).
Any person who disagrees with an assessment report may lodge an appeal with the Minister (s 100). In the event of such an appeal, the Minister has various powers, including the power to appoint an appeals committee to consider and report to the Minister on the appeal (s 106). An appeals committee may consist of one or more persons, one of whom has expertise in environmental matters (s 108). After receiving a report from an appeals committee, the Minister must either allow or dismiss the appeal (s 110).
Following the completion of any appeals process, the Minister is, after consultation, required to determine whether the proposal may be implemented, or may be implemented subject to conditions (s 45, or in the case of a derived proposal, s 45A). Failure to comply with implementation conditions specified by the Minister is an offence (s 47), and the implementation of any proposal can be monitored (s 48).

The EPA

Section 7 of the Act provides for the continuation of the EPA (a body created by the repealed Environmental Protection Act 1971 (WA)) which is to consist of five members appointed by the Governor on the recommendation of the Minister 'on account of their interest in, and experience of, matters affecting the environment generally'. The same section provides for one of the members to be appointed as chairman of the EPA, and for another to be appointed as the deputy chairman of the EPA. The duties of the chairman are to be performed on a full‑time basis, and the question of whether the other members of the EPA are to perform their duties on a full‑time or part‑time basis is to be determined by the Governor on the recommendation of the Minister (s 7). Section 8 provides that neither the EPA nor the chairman is to be subject to the direction of the Minister (subject to the effect of s 43 of the Act). Section 16 of the Act specifies the functions of the EPA which include the conduct of environmental impact assessments. Regard must also be had to s 15 of the Act which specifies the objective of the EPA, namely to 'protect the environment' and to 'prevent, control and abate pollution and environmental harm'.
Sections 11 ‑ 13 and 19 of the Act are central to these proceedings. They provide:
11.     Meetings of Authority
(1)The Authority shall hold meetings at such times and places as it determines, but -
(a)the Chairman may at any time; or
(b)the Minister may when he wishes the Authority to discuss a matter on which he has requested its advice,
convene a meeting of the Authority.
(2)At a meeting of the Authority -
(a)the Chairman or, in his absence, the Deputy Chairman shall preside, but, if both the Chairman and the Deputy Chairman are absent from such a meeting, the Authority members present shall elect one of their number to preside at that meeting; and
(b)3 Authority members constitute a quorum; and
(c)subject to section 12(2) each Authority member present shall cast a deliberative vote on any question that is to be decided; and
(d)any question shall be decided by a majority of the votes cast by the Authority members present, but if the voting on a question is equally divided, the person presiding at that meeting has a casting vote in addition to a deliberative vote; and
(e)a question shall not be decided unless at least 3 Authority members vote thereon.
(3)Notice of meetings of the Authority shall be given to the Department, and the CEO, or a representative of the CEO, is entitled to attend any meeting and to take part in the consideration and discussion of any matter before a meeting, but shall not vote on any matter.
12.     Disclosure of interests by Authority members
(1)An Authority member who has a direct or indirect pecuniary interest in a matter that is before a meeting of the Authority shall, as soon as possible after the relevant facts have come to his knowledge, disclose the nature of his interest to Authority members who are at that meeting, and that disclosure shall be recorded in the minutes of the proceedings of that meeting.
…
(3)If an Authority member has, in the opinion of the person presiding at a meeting of the Authority, a direct or indirect pecuniary interest in a matter before that meeting, the person so presiding may call on the Authority member to disclose the nature of that interest and, in default of any such disclosure, may determine that the Authority member has that interest.
(4)A determination under subsection (3) that an Authority member is interested in a matter shall be recorded in the minutes of the proceedings of the meeting concerned.
(5)If an Authority member discloses an interest in a matter under subsection (1) or is determined under subsection (3) to have an interest in a matter, the Authority member shall not -
(a)take part, as an Authority member, in the consideration or discussion of the matter; or
(b)vote on the matter.
13.     Decisions of persons presiding at meetings of Authority
In any case of difficulty, dispute or doubt respecting or arising out of -
(a)matters of order or procedure; or
(b)the determination of an interest under section 12,
the decision of the person presiding at the relevant meeting of the Authority shall be final and conclusive.
…
19.        Delegation by Authority
(1)The Authority may, with the approval of the Minister, delegate, either generally or as otherwise provided by the instrument of delegation, to -
(a)any officer or other person referred to in section 22; or
(b)a public authority or officer or employee thereof; or
(c)any other person,
specified in the instrument of delegation (in this section called the delegate) all or any of its powers and duties under this Act, other than this power of delegation.
(2)The Authority shall cause the name or title of the delegate to be published in the Gazette as soon as is practicable after the making of the delegation concerned.
(3)A power or duty delegated by the Authority under this section shall, if exercised or performed by the delegate, be exercised or performed in accordance with the instrument of delegation.

The Parties

The applicants

The Wilderness Society is a not‑for‑profit association incorporated in Western Australia on 10 July 1989. It has approximately 5,000 members in Western Australia, of which approximately 400 reside in the Kimberley region. According to its constitution, its purpose is to protect, promote and restore wilderness and natural process throughout Australia for the survival and ongoing evolution of life on Earth. It has conducted a number of conservation‑related activities in the Kimberley, and on numerous occasions has made representations to government with respect to proposed development in the Kimberley, including development pursuant to the Browse LNG Precinct Proposal. Because, as I have noted, it is unnecessary to resolve the issue with respect to the standing of the Wilderness Society, it is unnecessary to further chronicle its activities and interests.
Mr Richard Hunter is a Goolarabooloo man and a Law Boss of the Northern Tradition. In his capacity as a Law Boss for the Goolarabooloo, Mr Hunter and his brothers, Joe and Phillip Roe have responsibility for an area that lies between Garradgan (near Beagle Bay) and Njellenjellegun (which is between Dampier Creek and Broome). That area includes the area known to the Goolarabooloo as Walmadany or James Price Point. Mr Hunter considers that area to be significant to the dreamtime beliefs of the Goolarabooloo, and to his responsibility for the maintenance of the Song Cycle, which is a body of traditional cultural knowledge perpetuated in songs sung only by men who have been initiated into the Law. He is opposed to the development of land in the area of Walmadany because of the effect which he considers it would have upon the culture and traditions of the Goolarabooloo people. Those facts sufficiently establish Mr Hunter's standing to commence these proceedings, as has been properly conceded by the first and second respondents (see also: McKenzie v Minister for Lands [2011] WASC 335; (2011) 187 LGERA 1).

No such concession has been made in respect of the Wilderness Society. Counsel for the applicants pressed me to resolve that issue. However, as Mr Hunter's standing has been conceded, resolution of the issue with respect to the standing of the Wilderness Society would have no effect whatever upon these proceedings, as none of the relief sought depends upon the particular interests or capacities of either applicant. The circumstances are not dissimilar to those which pertained in Williams v Commonwealth of Australia [2012] HCA 23; (2012) 86 ALJR 713, where the majority considered it was unnecessary to resolve an issue with respect to the plaintiff's standing because it was clear that a number of interveners (the States) had standing [111] ‑ [112], [117]. It is unnecessary to resolve the issue which was raised with respect to the standing of the Wilderness Society, as the outcome of that issue would be of academic interest only.

The respondents

The first and second respondents are the Minister responsible for the administration of the Act and the EPA respectively. Woodside, the third respondent, was not originally joined as a respondent to these proceedings. Woodside is a wholly owned subsidiary of Woodside Petroleum Ltd (Woodside Petroleum), which is a publicly listed company. Woodside applied to be joined as a respondent. Ultimately, as a consequence of a commercial decision which was taken after the commencement of these proceedings, it resiled from that application. The applicants thereupon applied to join Woodside as a respondent to these proceedings. Woodside did not oppose that application, although, as I have noted, it has taken no active part in the hearing of the proceedings, and has indicated that it will submit to any order made by the court.
It will be necessary to refer in more detail to Woodside's involvement in the Browse LNG Precinct Proposal when considering whether certain members of the EPA had a pecuniary interest in that proposal, given that they, or entities in which they have an interest, held shares in Woodside Petroleum Ltd.
For present purposes it is sufficient to note that Woodside was at all material times the major participant, representative and operator of the Browse Joint Venture, the participants in which hold leases over offshore natural gas deposits situated in the Browse Basin, which is situated off the north coast of Western Australia. Woodside actively participated in the evaluation of prospective sites for a precinct to be used for the liquefication of natural gas extracted from the Browse Basin, and was an active participant in negotiations for an agreement with the native title interest‑holders, to enable the Browse LNG Precinct to be built at James Price Point. It has undertaken significant environmental studies with respect to the possible development of an LNG precinct, and attended a number of meetings with the EPA in the course of its purported assessment of the Browse LNG Precinct Proposal. From at least April 2009, it was identified as the prospective foundation proponent in relation to the development of that Precinct, and in the latter part of 2012, referred a proposal for such a development to the EPA, which was the subject of the third decision which is impugned in these proceedings. It has publicly acknowledged that its investment in matters associated with the Browse LNG Precinct Proposal is in the vicinity of $1.5 billion.

The facts

The facts giving rise to the applicant's claims are not contentious. They were established by admissions made by the first and second respondents in a response to the originating motion, a formal admission of facts by Woodside, and the tender by consent of a statement of agreed facts, a bundle of documents, and a number of affidavits. None of the deponents of those affidavits was required for cross‑examination.
Notwithstanding the lack of contention with respect to the relevant facts, it will be necessary to set them out at some length, because of the nature of the legal issues which must be determined.
On 1 July 1998 Mr Denis Glennon was appointed a member of the EPA.
On 11 May 2007, Dr Christopher Whitaker was appointed as a member of the EPA. From that date until 16 July 2012, Dr Whitaker held shares in the Woodside Petroleum, both individually and through his superannuation fund. Further, Dr Whitaker's wife, daughter and son individually held Woodside Petroleum shares. It is unnecessary to specify the precise number of shares held by Dr Whitaker and members of his family from time to time. It is sufficient to observe that, having regard to the market price of Woodside Petroleum shares over the relevant period, the investments were not insignificant.
In June 2007, the Northern Development Taskforce (NDT) was established by the Government of Western Australia in order to effectively manage across all government departments the development of the Browse Basin gas reserves. The main focus of the NDT was to identify suitable locations for at least one gas processing complex to facilitate the use of those reserves, preferably within, but not strictly limited to, the Kimberley region. Subsequent to the creation of the NDT, an Industry Reference Group (IRG) was created, as part of the stakeholder consultation process with which the NDT had been tasked. Woodside participated in the IRG as an industry stakeholder. As part of that process, Woodside independently evaluated 11 sites that were under consideration by the NDT, and concluded that it would support investigating whether a gas hub could be located at four locations under consideration: Quondong, James Price Point, North Head or Perpendicular Head.
On 5 November 2007, Dr Paul Vogel (Chairman) was appointed as the Chairman of the EPA.
On 6 February 2008, the State Ministers for State Development and Environment, and the Commonwealth Minister for the Environment, entered into an agreement to enable a collaborative assessment process in relation to the development of a plan for a precinct to be used by a number of users for the liquefication of natural gas extracted from the Browse Basin. The agreement recorded that Federal and State Governments would engage in 'a coordinated and collaborative process, producing a set of reports that meet the requirements of both the EPBC Act [Environment Protection and Biodiversity Conservation Act1999 (Cth)] and the EP Act'.
Clause 4.6 of the agreement recorded that the parties 'have collaborated in the development of draft site selection criteria', and that the process for selection of the Precinct would consider 'feasible alternatives to locations of the precinct outside the Kimberley region'. The same clause provided that the parties agreed to finalise the criteria for site selection following further consultation. Site selection criteria and draft terms of reference for the strategic assessment of a plan for the Browse LNG Precinct Proposal were attachments to the agreement. The draft terms of reference include a provision to the effect that the draft report to be prepared in accordance with the agreement must include a copy of the finalised site selection criteria, and a comprehensive description of how the proposed site(s) for the precinct were identified.
Subsequent to this agreement, by letter dated 25 March 2008, the Minister for State Development (Proponent - a term which I will also use to describe the Proponent’s Department) referred a proposal for a 'multi‑user LNG hub to process the gas resources in the Browse Basin' (Browse LNG Precinct) to the EPA. In that letter, the Proponent advised that the NDT was proceeding with a site selection process within the Kimberley region, but that locations outside the Kimberley region would also be considered. The letter describes the proposed Browse LNG Precinct as a hub precinct capable of processing all of the gas produced from the Browse Basin - up to 50 million tonnes of LNG a year, with the potential for down-stream gas processing industries to be co‑located with the processing facility.
In the letter it is asserted that:
The State Government will determine a preferred location (or locations) and the full scope of the hub by July 2008 as a basis for the strategic assessment.
On 3 April 2008, the EPA held a meeting at which the Browse LNG Precinct Proposal was considered. The members of the EPA were informed of the letter which had been received from the Proponent, and of the referral of the strategic proposal. The minutes of that meeting record that the EPA was still trying to determine the scope of the Proposal, given that a site had not been selected. However, the minutes record an understanding, at least on the part of the Chairman, that the EPA would conduct a 'two stage EPA strategic assessment'. That process of assessment would include, prior to the strategic proposal assessment process under pt IV, div 1 of the Act, the provision of advice to the Minister, in relation to site selection for the Browse LNG Precinct, in accordance with s 16(e) of the Act, which provides that the EPA may provide the Minister with advice on environmental matters generally.
Dr Whitaker attended that meeting and participated in all matters. He did not disclose any pecuniary interest in the matter concerning the Browse LNG Precinct Proposal.
On 9 April 2008, the Chairman of the EPA, acting under delegated authority, determined that the Browse LNG Precinct Proposal would be assessed as a strategic proposal, pursuant to s 39A of the Act, which empowers the EPA to decide whether or not to assess a referred proposal. On 14 April 2008, the EPA's Acting Director of the Environmental Impact Assessment Division, advised the Proponent of the Chairman's decision, and also advised the Proponent of the need to prepare an Environmental Scoping Document, defining the ambit of the environmental report that the Proponent would submit to the EPA (in accordance with s 40 of the Act) and to nominate an agency or person responsible for the project (in accordance with s 38 of the Act).
The EPA met again on 17 April 2008. The minutes record that members noted a report on the Browse LNG Precinct Proposal, and were informed that 43 sites had now been assessed against industry technical and engineering requirements, and that nine remaining sites were subject to further evaluation on environmental, indigenous, social and other grounds. The minutes record that various other matters relating to the Proposal were discussed. Dr Whitaker attended the meeting. No disclosure of pecuniary interest was made with respect to the Browse LNG Precinct Proposal.
Another meeting of the EPA was held on 1 May 2008. The minutes record further discussion with respect to the Browse LNG Precinct Proposal, and a resolution requesting that a project assessment plan be prepared and considered at the next meeting of the EPA. Dr Whitaker was present at the meeting on 1 May 2008, but did not declare any pecuniary interest in the Browse LNG Precinct Proposal.
The Browse LNG Precinct Proposal was again considered at a meeting of the EPA on 12 June 2008. The minutes of that meeting record that members of the EPA were advised that the outcome of the EPA's strategic assessment would be the referral of a derived proposal as defined under the Act, and that the first report of the NDT had been presented to the Proponent, identifying nine possible sites for the Browse LNG Precinct within seven areas. A number of resolutions were passed at that meeting, including one to the effect that the Browse LNG Precinct Proposal be placed on each agenda for subsequent meetings of the EPA as a standing agenda item, and that specified information should be provided to members by the department. Dr Whitaker was present at that meeting. No pecuniary interest declaration was made by him in relation to the Browse LNG Precinct Proposal.
The EPA met again on 26 June 2008. The minutes of that meeting record that members were provided with a number of documents, including a draft paper on the EPA's role in the process for the assessment for the Browse LNG Precinct Proposal, and an outline of key environmental factors/issues associated with the site selection process.
The draft paper relating to the EPA's role in the process identified two stages. The first involved the provision of advice in respect of the Proponent's shortlisting and site selection process for the Browse LNG Precinct, which was to be undertaken through the NDT. The second stage concerned the assessment of the environmental acceptability of the proposed Precinct and its associated activities at the selected location. The paper stated that the EPA's role in relation to what was described as the first stage was to take the form of the provision of advice to the Minister pursuant to s 16(e) of the Act. What was described as the 'stage 2' process was to follow the statutory process for the assessment of a strategic proposal under the Act, and was to run concurrently with the strategic assessment to be undertaken under the EPBC Act. The paper also records that:
Woodside Energy Ltd is intending to run a project development scenario (in the background) concurrently with the formal SEA [Strategic Environmental Assessment] process, such that they plan to be in a position to refer a 'Derived Proposal' to the EPA shortly after finalisation of the Strategic Assessment. Other proponents of gas development proposals in the region may take the same approach.
Dr Whitaker was present at that meeting. He made no declaration of any pecuniary interest in relation the Browse LNG Precinct Proposal.
The Browse LNG Precinct Proposal was again considered at a meeting of the EPA held on 10 July 2008. The minutes of that meeting record that a draft report of the advice to be provided to the Minister pursuant to s 16(e) of the Act was to be presented to the EPA in stages commencing in late August 2008, with a view to the report being finalised and advice provided to the Minister by mid October 2008. The minutes record discussion with respect to the matters that should be included in the report to be provided to the Minister pursuant to s 16(e). Dr Whitaker was present at that meeting. He made no disclosure of any pecuniary interest in relation to the Browse LNG Precinct Proposal.
The matter was again considered at the next meeting of the EPA which was held on 24 July 2008. The minutes of that meeting record that the EPA was unlikely to be in a position to provide advice to government with respect to the environmental acceptability of specific sites in the report to be provided pursuant to s 16(e) of the Act. Dr Whitaker was present at that meeting. No disclosure of pecuniary interest with respect to the Browse LNG Precinct Proposal was made.
On 31 July 2008 the Chairman formally determined that the EPA would provide advice as to the selection of the site for the Browse LNG Precinct, in accordance with the EPA's powers under s 16(e) of the Act. By a letter dated 4 August 2008 to the Proponent, the EPA stated that it was placing on the record a request by the Minister for Environment that it provide advice to him under the general powers of s 16 of the Act.
The Browse LNG Precinct Proposal was again considered by the EPA at a meeting held on 7 August 2008. The minutes record that the EPA was of the view that it was too early in the process of preparing its advice pursuant to s 16(e) of the Act to indicate whether a site was environmentally acceptable. Rather, the report should look at the environmental values of each proposed site and whether any fatal flaws were evident. Dr Whitaker was present at the meeting. He made no disclosure of any pecuniary interest in the Browse LNG Precinct Proposal.
By letter dated 19 August 2007 (but which presumably should have been dated 2008), the Chairman advised the Minister that the EPA intended to provide advice to him (and therefore the Proponent) on the environmental suitability of the site selection process, and on the sites shortlisted by the NDT in their second report, which was to be released on about 21 August 2008, in accordance with s 16(e) of the Act.
The EPA met again on 21 August 2008. The minutes record that the members were advised that there was a shortlist of four sites to be considered for location of the Browse LNG Precinct, and those sites would be listed in the NDT report. Those sites were Gourdon Bay, James Price Point/Flat Rock, North Head and Anjo Peninsula. Members were briefed on the process used for selection of the shortlisted sites. The minutes of the meeting record general discussion with respect to a variety of issues associated with the Browse LNG Precinct Proposal. Dr Whitaker was present at the meeting. He did not disclose any pecuniary interest in relation to the Browse LNG Precinct Proposal.
By letter dated 22 August 2008, the NDT provided its site evaluation report of August 2008 to the Chairman. That report was revised and finalised during September and subsequently published on 15 October 2008. It identified the four sites to which I have referred as the shortlisted sites for further consideration.
A version of that report had been provided to the EPA for consideration at its meeting on 18 September 2008. The minutes of that meeting record that presentations were made by officers of the department with respect to environmental aspects of each of the shortlisted sites. Dr Whitaker was present at that meeting. He made no declaration of pecuniary interest in relation to the Browse LNG Precinct Proposal.
The Proposal was again considered by the EPA at its meeting on 16 October 2008. At that meeting, representatives of the Kimberley Land Council, the relevant native title representative body, briefed members of the EPA with respect to the NDT process. Dr Whitaker was present at that meeting. No disclosure of pecuniary interest in relation to the Browse LNG Precinct Proposal was made.
On 29 October 2008, Mr Glennon and his wife, as trustees of their self‑managed superannuation fund, purchased a parcel of shares in Woodside Petroleum. That parcel was augmented with further purchases from time to time. The shares were retained at all times material to those proceedings. As with Dr Whitaker, it is unnecessary to particularise the precise numbers of shares held from time to time. It is sufficient to observe that the investment could not be described as insignificant.
The Browse LNG Precinct Proposal was again considered by the EPA at a meeting held on 27 November 2008. It seems clear from the terms of the minutes of that meeting that a draft report of advice to be given to the Minister pursuant to s 16(e) of the Act was presented at the meeting, and was considered at some length. It was resolved that the revised draft s 16(e) report would be considered at the next meeting of the EPA. Dr Whitaker and Mr Glennon were present at the meeting. Neither declared any pecuniary interest in relation to the Browse LNG Precinct Proposal.
As had been resolved, the draft s 16(e) report was again considered by the EPA at its next meeting which was held on 10 and 11 December 2008. Discussion with respect to the terms of the draft report is recorded in the minutes of that meeting. Finalisation and release of the draft report was delegated to the Chairman.
Mr Glennon and Dr Whitaker were both present at the meeting. Neither disclosed any pecuniary interest in relation to the Browse LNG Precinct Proposal.
On 17 December 2008, the Chairman provided to the Minister for Planning (as a delegate of the Minister) the requested s 16(e) advice. The report concluded that based on the available data, the proposed site at Gourdon Bay was the least environmentally constrained prospective site of the four under consideration, and concluded that the proposed site at James Price Point was the least environmentally constrained of the two shortlisted sites on the Dampier Peninsula. The report also concluded that the other two sites under consideration, North Head and the Anjo Peninsula, would not be suitable for large scale industrial development from an environmental perspective. The letter noted that the report was designed to assist government in its selection of a preferred site for a gas processing precinct but did not comprise a formal environment assessment. Within the executive summary of the report it is asserted that:
Once government has selected a preferred site, the EPA will undertake a formal, site specific environmental assessment of a strategic proposal under the Environmental Protection Act 1986 in a timely manner. An outcome of the strategic assessment would be to recommend conditions that should be applied to specific future LNG proposals. When a future LNG proposal is brought forward, the EPA can declare it is a devised proposal if … [the conditions of s 39B of the Act are met].

The final report of the NDT was released in December 2008 and recommended that the James Price Point coastal area be the preferred location for the Browse LNG Precinct. On 23 December 2008, the Proponent publicly announced that, of the four shortlisted sites, the preferred location of the government for the Precinct was in the vicinity of James Price Point.
From at least April 2009 until 16 July 2012 and for some time thereafter, Woodside had been contemplated by itself, and by the State, as a potential foundation proponent to establish the first LNG processing facility in the proposed Browse LNG Precinct. It was contemplated that it would submit a proposal which might be declared as a derived proposal. It is common ground that for this reason Woodside had a commercial interest in the EPA's assessment of the Browse LNG Precinct Proposal.
On 26 May 2009, the Proponent sent to the EPA a draft scoping document relating to the Strategic Assessment Report (SAR) to be prepared by the Proponent with respect to the Browse LNG Precinct Proposal. This appears to have been the first significant step in relation to what the EPA had been describing as Stage 2 of the process - namely, the formal assessment of the site at James Price Point which had been identified as the site for the Precinct. At the meeting of the EPA held on 11 June 2009, members received a briefing from representatives of the Proponent. The minutes record advice to the effect that a final SAR document was expected to be provided to the EPA by late 2009. Mr Glennon and Dr Whitaker were present at that meeting. Neither disclosed any pecuniary interest in the Browse LNG Precinct Proposal.
At a meeting held on 3 September 2009, the EPA resolved that conflicts of interest in relation to particular agenda items would be managed as follows:
1.   Agree where a Member has declared a potential conflict of interest in a particular agenda item because they hold shares in the proponent company via a superannuation fund, then the Member shall be invited to participate in discussions and share any relevant knowledge and expertise.
The Member must leave the meeting and not participate in any decision-making on the relevant item.
2.   Agree where a Member has a direct conflict of interest such as direct share holdings the Member will leave the meeting and not participate in any discussion or decision on the relevant item.
3.   Request the EPA Chairman and the EPA Executive Officer to discuss the management of EPA Members’ potential and direct conflicts of interest at the EPA meetings with the Office of Public Sector Management, and advise the EPA of the outcome.
Arrangements had been made for members of the EPA to attend a computer‑simulated flyover of the proposed James Price Point site at the offices of Woodside in Perth. Prior to that meeting, Dr Whitaker completed a disclosure of interest form. On that form he stated:
I own Woodside shares directly and in my superannuation fund. My wife owns Woodside shares directly.
On the same form it is recorded that:
Having duly considered the above, the EPA determined that no potential or actual conflict of interest exists and Dr Whitaker will participate fully in this EPA meeting.
That portion of the form is signed by the Chairman.
The minutes of the meeting held on 1 October 2009 record that Dr Whitaker declared a potential conflict of interest in relation to the agenda item concerning the Browse LNG Precinct Proposal and that 'the Chairman determined that there was no conflict of interest and Dr Whitaker participated fully in the meeting'. The minutes record that Mr Glennon was present but made no disclosure of pecuniary interest.
A further version of the scoping document for the SAR was sent by the Proponent to the EPA by letter dated 13 October 2009 which was received by the EPA on 19 October 2009.
On 12 November 2009, the EPA again met and considered the Browse LNG Precinct Proposal. A briefing was provided by representatives of the Proponent, and the scoping document which had been provided by the Proponent was discussed at length. Mr Glennon and Dr Whitaker were present. Neither disclosed any pecuniary interest in relation to the Browse LNG Precinct Proposal.
On 18 November 2009, Dr Whitaker was appointed deputy chairman of the EPA. On the same day, Dr Rodney Lukatelich was appointed a member of the EPA.
At the time of his appointment, Dr Lukatelich was, and remains, employed by BP Refinery Kwinana Pty Ltd. That company is a subsidiary of BP Oil Australia Pty Ltd. BP Developments Australia Pty Ltd (which is a related company of BP Oil Australia Pty Ltd), is a member of the Browse Joint Venture. As I have noted, Woodside is also a member of that joint venture and was, at all material times, the operator of the Joint Venture.
Dr Lukatelich has held a number of senior positions within BP Refinery Kwinana Pty Ltd. Since March 2012, he has also worked part‑time with BP Developments Australia Pty Ltd in relation to a project in South Australia with which that company is involved. In the course of his employment, Dr Lukatelich has had no involvement in any activities associated with the Browse LNG Precinct Proposal, nor has he been involved in any managerial roles with respect to any hydrocarbon development proposals in Western Australia.
Dr Lukatelich has participated in an employee share plan offered by his employer. Pursuant to that plan, Dr Lukatelich was provided with shares in companies which were ultimately converted to shares in BP Plc, which is the ultimate holding company of the various BP companies to which I have referred. As with Dr Whitaker and Mr Glennon, it is unnecessary to particularise precisely the number of shares held by Dr Lukatelich from time to time. It is sufficient to observe that the parcel of shares could not be described as insignificant.
Dr Lukatelich's adult son has been employed by Woodside, or a related company of Woodside, as a mechanical fitter on various offshore oil rigs in Western Australia, and onshore at Karratha, since 2010. In that capacity, Dr Lukatelich's son has participated in a Woodside Petroleum share scheme, although details of his participation in that share scheme and the extent of his ownership of shares in Woodside were not provided in evidence. For reasons given below [185], that information is not necessary.
The first meeting of the EPA which was attended by Dr Lukatelich was held on 26 November 2009. Prior to or at that meeting, Dr Lukatelich completed a form headed 'Disclosure of Interests', being the same form completed by Dr Whitaker in respect of the meeting held on 1 October 2009 (see [59]). On that form, Dr Lukatelich provided information relevant to two items on the agenda for the meeting. In relation to the item concerning the Browse LNG Precinct Proposal, Dr Lukatelich disclosed:
Being an employee of BP Australia which is a partner of JV Browse who is a potential proponent for the Kimberley LNG precinct as a LNG producer.
The form records that the Chairman determined:
No potential or actual conflict of interest exists and Dr Lukatelich will participate fully in this EPA meeting as the state is the proponent.
Dr Whitaker and Mr Glennon also attended the meeting on 26 November 2009. Neither disclosed any pecuniary interest in relation to the Browse LNG Precinct Proposal. The minutes of that meeting record that a representative of Woodside, amongst others, attended for that part of the meeting which related to the Browse LNG Precinct Proposal. The minutes of the meeting record extensive discussion on the subject including in particular the format and content of the SAR to be produced by the Proponent, and the nature and extent of consultation with community and other agencies in relation to the assessment of the Proposal.
The Proposal was again considered at a meeting of the EPA held on 21 January 2010. Prior to or at that meeting, Dr Whitaker and Dr Lukatelich again completed the form headed 'Disclosure of Interests'. Dr Whitaker made the following disclosure:
Although the proponent for this item is the Dept. of State Dev., the first project @ the Browse LNG Precinct is likely to be a consortium including Woodside Petroleum.
That being the case I advise that:
1.I own Woodside shares in my super fund.
2.My wife owns Woodside shares directly.
Dr Lukatelich disclosed that he was:
[A]n employee of BP Australia Ltd via BP Refinery Kwinana. BP is a joint venture partner in the Browse JV and the Browse JV may be a foundation development proponent at the Kimberley LNG Precinct.
In each case, the form records that the Chairman determined that no potential or actual conflict of interest existed, and that each member should participate fully in the meeting. The minutes of the meeting record those determinations. Mr Glennon did not attend this meeting.
The minutes of the meeting record substantive discussion with respect to the Browse LNG Precinct Proposal, including a briefing by representatives of the Proponent. Discussion covered the timeline for the preparation of the SAR and included detailed discussion with respect to the contents on a draft document entitled 'Preface to the Scope of the Strategic Assessment' prepared by the Proponent and provided to the EPA. The minutes record that members agreed to provide comments to the Executive Officer of the EPA with respect to another document prepared by the Proponent entitled 'Plan for the Browse LNG Precinct'. That document provided an overview of the prospective development of the LNG Precinct.
The Browse LNG Precinct Proposal was again considered by the EPA at a meeting held on 1 April 2010. The minutes of that meeting record discussion on the topic of the Proponent's intention to provide qualitative rather than quantitative data in the SAR with respect to marine dredging, with the intention that quantitative data would be deferred until a derived proposal had been referred to the EPA. The minutes record expressions of concern with respect to this approach. Mr Glennon, Dr Whitaker and Dr Lukatelich were present at the meeting. None disclosed any pecuniary interest in relation to the Browse LNG Precinct Proposal.
By letter dated 7 April 2010, received at the EPA on 12 April 2010, the Proponent provided the EPA with a draft SAR in relation to the Browse LNG Precinct Proposal.
That Proposal was again considered by the EPA at its meeting on 29 April 2010. It was resolved at that meeting that the public review period for the SAR should be set at eight weeks. Mr Glennon, Dr Whitaker and Dr Lukatelich were at that meeting. None disclosed any pecuniary interest in relation to the Browse LNG Precinct Proposal.
By letter dated 20 September 2010, the Chairman wrote to the Proponent advising that the draft SAR still had some important shortcomings that precluded its release for public comment in its current form. It seems a fair inference from the documents which have been tendered that those observations were based upon reviews undertaken by staff of the EPA, rather than upon review by EPA board members.
By letter dated 5 November 2010 received at the EPA on 8 November 2010, the Proponent provided a revised version of the SAR, together with a number of other documents.
The revised draft SAR was considered at a meeting of the EPA held on 25 November 2010. The minutes of that meeting record extensive discussion with respect to the terms of the draft SAR, and also record a number of decisions with respect to further revisions that were required by the EPA. Decisions with respect to the extension of time for public comment in the event that the SAR was released over the Christmas period are also recorded. Dr Whitaker and Dr Lukatelich attended that meeting. Neither disclosed any pecuniary interest in the Browse LNG Precinct Proposal. Mr Glennon did not attend the meeting.
The decisions made at that meeting of the EPA with respect to the content of the draft SAR were conveyed to the Proponent by a letter from the Chairman dated 3 December 2010. The letter also advised the Proponent of decisions that were made by the EPA at the meeting on 25 November 2010 with respect to the provision of detailed information on a number of topics during the public review period. Those topics were:
1.Modelling of coastal stability in response to marine infrastructure.
2.Marine waste discharges modelling.
3.Oil spill fate and transport modelling.
4.Completed benthic mapping within the predicted zone of moderate dredging impact.
5.Assessment of the predicted overall benthic primary producer habitat loss.
Although no expert evidence was adduced on these topics, it can be readily inferred, and I do infer, that these are topics of considerable importance to the assessment of the likely environmental impact of the development of proposed Browse LNG Precinct at James Price Point.
The Proponent revised the draft SAR in accordance with the requirements determined by the EPA at the board meeting on 25 November 2010, and the revised SAR was released for public comment on 13 December 2010. During January 2011, the Proponent provided further information to the EPA in relation to the particular topics specified in the Chairman's letter of 3 December 2010.
The Browse LNG Precinct Proposal was again considered by the EPA at a meeting held on 17 March 2011. The minutes record discussion with respect to an aspect of the public submissions that had been received in response to the SAR. Mr Glennon, Dr Whitaker and Dr Lukatelich were present. None disclosed any pecuniary interest in relation to the Browse LNG Precinct Proposal.
On 27 June 2011, the EPA, purporting to act pursuant to s 19 of the Act, made Delegation No 22, which was published in the Government Gazette on 15 July 2011, in the following terms:
Delegation No. 22
The Environmental Protection Authority ('the Authority'), acting pursuant to section 19 of the Environmental Protection Act 1986 ('the Act') has resolved to hereby delegate to those members (or member) of the Authority who are present at a meeting of the Authority and who do not have a direct or indirect pecuniary interest in a matter ('the Matter') that is before the meeting of the Authority, all of its powers and duties under Part IV, Division 1 of the Act in respect of the Matter, for the duration of the meeting.
This delegation is to have effect only if, at the meeting of the Authority, there is not a quorum of Authority members able to vote on the Matter by reason of the operation of section 12 of the Act, illness, absence, vacancy in the office of an Authority member or other cause.
The Browse LNG Precinct Proposal was again considered at a meeting of the EPA held on 7 July 2011. The minutes of that meeting record discussion with respect to the 'key environmental factors and offsets related to the assessment of the Browse LNG Precinct as a strategic proposal'. The minutes record that the EPA decided to endorse a preliminary list of key factors provided to the meeting, subject to the incorporation of comments by members.
I digress to observe that the identification of the key environmental factors to be addressed in the course of the assessment of the Proposal is a matter of great significance. As I have noted, s 44 of the Act specifically requires that the assessment report which is to be provided to the Minister following assessment specify those factors.
Mr Glennon, Dr Whitaker and Dr Lukatelich were present at the meeting. None disclosed any pecuniary interest in the Browse LNG Precinct Proposal.
The Browse LNG Precinct was again considered by the EPA at a meeting on 15 September 2011. Mr Glennon, Dr Whitaker and Dr Lukatelich were the only members present. Dr Whitaker chaired the meeting in his capacity as deputy chairman.
Prior to or at the meeting Dr Lukatelich completed another form entitled 'Disclosure of Interests'. In that form he disclosed that he was:
[A]n employee of BP who has an interest in the Foundation Project at Browse. This assessment is a Strategic Assessment of the Precinct with DSD as proponent.
The form, and the minutes of the meeting record that Dr Whitaker, in his capacity as deputy chairman, determined that 'no potential or actual conflict of interest exists', and that Dr Lukatelich should participate fully at the meeting.
Neither Dr Whitaker nor Mr Glennon disclosed any pecuniary interest in relation to the Browse LNG Precinct Proposal.
The portion of the meeting dealing with the Browse LNG Precinct Proposal was attended by representatives of the Proponent and of Woodside. The minutes record extensive discussion of the Proposal, including topics that were described as 'key issues'. The minutes describe Woodside as the 'probable foundation proponent'. The minutes also record that the members of the EPA provided guidance to the Proponent, and 'probable foundation proponent' with respect to a number of topics. In the portion of the minutes recording the decisions taken with respect to that item, it is recorded that the EPA:
Endorsed the strategy for assessment, subject to the incorporation of appropriate responses to the EPA guidance.
The briefing note which was provided to members for the purposes of that meeting records that at the meeting held on 7 July 2011, the EPA had identified nine preliminary key factors from the 30 environmental factors listed in the scoping document.
At a meeting of the EPA held on 29 September 2011, decisions were made with respect to the strategy to be adopted in relation to a proposed visit of the EPA to Broome for the purpose of consultation with stakeholders and concerned citizens in relation to the Browse LNG Precinct Proposal. Mr Glennon, Dr Whitaker and Dr Lukatelich were present. None disclosed any pecuniary interest in relation to the Proposal.
On 25 October 2011 the Chairman prepared a document entitled 'State and Commonwealth Strategic Assessment of the Browse LNG Precinct - Managing Potential or Perceived Conflict of Interest Issues with EPA decision‑making'. The document records the assessment of the strategic proposal referred to the EPA by the Proponent, and records that in the event of a decision to approve the Proposal, 'a foundation proponent (probably Woodside) must refer to the EPA a proposal for construction and operation of an LNG processing facility and ancillary infrastructure, for consideration as a derived proposal'. The document also records:
Two members of the EPA board have, from time to time, held shares in Woodside either through self‑managed personal/family superannuation funds or directly. A third EPA member is employed by BP which is a joint venture partner in the Browse project. A fourth member, Ms Elizabeth Carr, who will join the EPA board from October 4, was Executive Director (Browse) for the DSD prior to her resignation in February 2011.
The document also records, in general terms, what had occurred in relation to the declaration of interests by board members before that date, and the ruling by the Chairman to the effect that none were excluded from participation. The document notes:
The rationale behind the Chairman's decision is that the proponent is the Minister for State Development and not Woodside.
The document goes on to record that the Chairman will determine that Ms Carr has a conflict of interest, and she will not participate in any discussion or decisions with respect to the Browse LNG Precinct Proposal.
The document goes on to foreshadow the policy that would be adopted in the event that the strategic proposal was approved, and Woodside subsequently referred a derived proposal to the EPA for consideration. In that circumstance, the document recorded that members with shareholdings in Woodside, and members employed by companies that were joint venture partners in the Browse Joint Venture would be permitted to participate fully in discussions of the EPA in relation to the derived proposal, but would not be allowed to participate in any decisions with respect to the Proposal. The document records that in that circumstance, the Chairman would make all relevant decisions pursuant to Instrument of Delegation No 22, being the only member of the board without a conflict.

On 14 December 2011 this document was annotated with the following note:
Advice on the above strategy was sought from the Public Sector Commissioner. His office believed it to be reasonable given the circumstances but suggested some minor changes to EPA's Code of Conduct to ensure consistency with the strategy, which has been done.
The Browse LNG Precinct Proposal was again considered at a meeting of the EPA held on 26 October 2011. Prior to or at that meeting all members of the EPA other than the Chairman completed the form entitled 'Disclosure of Interests' as follows:

Dr Whitaker

Woodside Petroleum is a potential foundation proponent of the James Price Point precinct, if it proceeds.
•I own Woodside shares in my superannuation fund
•my wife owns Woodside shares directly
•my son owns Woodside shares directly
•my daughter owns Woodside shares directly

Mr Glennon

Glennon Superannuation Fund holds shares in Woodside - not the proponent but likely first derived proposal proponent.

Ms Carr

Prior employment (July 2009 ‑ February 2011) with the DSD as Executive Director - Browse.

Dr Lukatelich

Being an employee of BP Australia Ltd subsidiary BP Refinery Kwinana. BP is potential JV partner of the 'Browse' project derived proposal. My son works for 'Woodside' and holds Woodside shares.

The forms record that in the cases of Mr Glennon, Dr Whitaker and Dr Lukatelich, the Chairman determined that no potential or actual conflict of interest existed, and that the member would participate fully in the meeting. In the case of Ms Carr, the Chairman determined that a perceived conflict of interest existed, and that she should abstain from all discussions and decisions with respect to the Browse LNG Precinct Proposal. The minutes of the meeting also record those determinations, and the fact that Ms Carr left the meeting when the Browse LNG Precinct Proposal was considered.
The minutes of that meeting record extensive discussion on the subject of the assessment of the Proposal, including a number of issues with respect to particular environmental factors to be assessed, including the effect of the proposed Browse LNG Precinct on ground water, surface water, marine fauna, and air emissions. The minutes also record a decision to the effect that the final conditions applied to the 'Wheatstone' project should be regarded as a guide for the draft conditions to be attached to the proposed Browse LNG Precinct. The portion of the minutes recording the decisions taken record that the EPA:
Endorsed the general direction of the assessment strategy for the assessment, subject to the comments and guidance provided above.
The Browse LNG Precinct Proposal was again considered by the EPA at a meeting held on 10 November 2011. Prior to or at that meeting all members of the EPA other than the Chairman completed 'Disclosure of Interests' forms in generally the same terms as those provided prior to the meeting on 26 October 2011. The forms and the minutes of the meeting record that the Chairman made similar determinations in relation to the disclosed interests - namely, that Ms Carr had a perceived conflict of interest and was not to participate in either deliberations or discussions with respect to the Proposal, but that none of the other members had any 'perceived, potential or actual conflict of interest' and would participate fully in the meeting.
The minutes of the meeting again record extensive discussion with respect to the assessment of the Browse LNG Precinct Proposal. A number of specific topics were addressed, and the minutes record the provision of guidance by the EPA board to EPA officers engaged in the assessment of the Proposal.
It is clear from the minutes of the meetings of the EPA which have been produced in evidence that over the ensuing months very detailed consideration was given to the assessment of the Browse LNG Precinct Proposal at meetings of the board of the EPA. The minutes record detailed discussion with respect to a wide range of environmental issues arising in connection with the Proposal.
Prior to those meetings the procedure recorded in the Chairman's minute of 25 October 2011 was followed. In respect of the meeting held on 24 November 2011, Dr Whitaker and Mr Glennon made disclosure of their interests in Woodside Petroleum, but the Chairman determined they should participate in all discussions and deliberations with respect to the Browse LNG Precinct Proposal. However, the Chairman determined that Ms Carr should not participate, because of her disclosure of her prior employment. Dr Lukatelich was not present.
Mr Glennon was not present at the meeting held on 8 December 2011. Ms Carr was not present, but participated in some of the items (not including the item relating to the Browse LNG Precinct Proposal) by teleconference. The minutes record that Dr Whitaker and Dr Lukatelich declared interests in relation to the Browse LNG Precinct Proposal, but that the Chairman determined that 'no perceived, potential or actual conflicts of interest existed'.
A draft assessment report prepared by officers of the EPA was presented to, and considered by, this meeting. The minutes record extensive discussion with respect to aspects of the draft report, and a number of determinations with respect to the approach to be taken in the assessment report, and its terms.
All members of the EPA were present for a meeting held on 22 December 2011. Prior to that meeting all members other than the Chairman made disclosure of interests in generally the same terms as previously made. The forms on which those disclosures were made, and the minutes of the meeting, record that the Chairman made determinations with respect to conflict of interest in the same terms as previously, with the result that Dr Whitaker, Dr Lukatelich and Mr Glennon participated fully in discussions and decisions with respect to the Browse LNG Precinct Proposal, whereas Ms Carr left the meeting during that portion of its business. During that portion of the meeting representatives of the Proponent and 'proposed foundation proponent (Woodside)', joined the meeting and provided members with a PowerPoint presentation covering a number of aspects of the assessment. The minutes record that the presentation by representatives of Woodside included 'their expectations of the derived proposal process, its timing and the need for consultation with stakeholders'.
The EPA met again on 19 January 2012. Ms Carr was not present. No disclosure of pecuniary interests was made by Dr Whitaker, Dr Lukatelich or Mr Glennon, all of whom were present. However, it does not appear that the Browse LNG Precinct Proposal was an agenda item, although the minutes record, under the heading 'Other Business', that the EPA requested a briefing by officers on:
[T]he draft derived proposal by Woodside for the LNG Precinct, focussing on the list of parameters that Woodside intends to include in the derived proposal and those to be omitted.
The Browse LNG Precinct Proposal was again considered by the EPA at a meeting held on 2 February 2012. All members were present. The procedure outlined in the Chairman's memo of 25 October 2011 was followed prior to this meeting, with the result that following disclosure of interests, the Chairman ruled that Dr Whitaker, Dr Lukatelich and Mr Glennon could participate in all deliberations and discussions, but that Ms Carr should not participate due to a perceived, potential or actual conflict of interest.
The minutes record that discussion focussed upon the briefing that had been received, in accordance with the request of the previous meeting, in relation to the terms of Woodside's proposed derived proposal. The minutes record decisions that were taken with respect to the guidance that should be provided to Woodside with respect to the formulation of such a proposal.
The Browse LNG Precinct Proposal was again considered at a meeting of the EPA held on 16 February 2012. All members were present, and the procedure that had been followed at previous meetings with respect to disclosure of interests and determination by the Chairman with respect to capacity to participate was followed, with the same results. The minutes record that representatives of the Proponent and of Woodside attended the part of the meeting during which the Browse LNG Precinct Proposal was considered. The minutes of the meeting record detailed discussion and a number of decisions with respect to the substantive environmental issues arising in connection with the assessment of the Proposal.
The minutes also record detailed discussion on the subject of Woodside's proposed derived proposal, and record a number of decisions with respect to advice that should be given to Woodside with respect to matters to be included in such a proposal.
Another meeting of the EPA was held on 1 March 2012. The minutes of that meeting show that Mr Glennon was not present for any part of the meeting at which the Browse LNG Precinct Proposal was discussed. Members of the EPA other than the Chairman each completed separate forms headed 'Disclosure of Potential Conflicts of Interest' in relation to two agenda items - namely, item 5.5 and item 5.6. Those forms, and the minutes of the meeting (which have been redacted to delete some material on the ground of legal professional privilege) disclose, in relation to item 5.5, that:
[T]he Chairman determined that, as the Item concerned discussion on process and not deliberations and decisions associated with reporting to the Minister for Environment, no perceived, potential or actual conflict of interest existed and that Dr Whitaker, Dr Lukatelich and Ms Carr should participate fully in the Item.
In respect of item 5.6, the minutes record that:
[T]he Chairman determined that the Members so conflicted [Dr Whitaker, Dr Lukatelich and Ms Carr] will be excluded from deliberations and decisions associated with reporting to the Minister for Environment under section 44 of the EP Act in relation to the Browse LNG Precinct Strategic Proposal Item 5.6, due to the apprehension of bias. There being no quorum, all deliberations and decisions associated with reporting to the Minister for Environment in relation to this Item will be made by the Chairman under delegated authority provided for in Instrument of Delegation No 22 Gazetted 15 July 2011.
The minutes of the meeting relating to item 5.5 record discussion with respect to the process for finalisation of the assessment of the Browse LNG Precinct, and further records that Dr Whitaker, Dr Lukatelich and Ms Carr participated fully in that item in accordance with the Chairman's earlier ruling. The minutes also record the determination outlined above in respect of item 5.6.
The minutes of the meeting with respect to item 5.6 record that all members of the board other than the Chairman left the meeting, after which officers of the EPA joined the meeting and received guidance from the Chairman with respect to a number of environmental issues arising in relation to the assessment of the Browse LNG Precinct Proposal
A document has been prepared purporting to record minutes of a meeting of the EPA held on 2 March 2012. However, only the Chairman was present, and the minutes show all other members as 'conflicted and not present'. I digress to observe that plainly whatever took place that day was not a meeting of the EPA conducted in accordance with s 11 of the Act. The document records discussion on a number of aspects of the assessment of the Browse LNG Precinct Proposal.
By letter dated 27 April 2012 the Proponent submitted revisions to the Browse LNG Precinct Proposal which it requested the EPA to treat pursuant to s 43A of the Act (which enables the EPA to receive revisions in proposals provided that it considers that the change is unlikely to significantly increase any impact that the proposal may have on the environment). A document purporting to record minutes of a meeting of the EPA held on 14 May 2012 dealing with the Proponent's application to revise the Proposal pursuant to s 43A of the Act was provided by the parties as part of the trial bundle. The only person present at the 'meeting' was the Chairman, and the minutes record that four of the members of the EPA had a conflict of interest and were not present. The minutes also record that the Chairman was 'acting under delegated authority'.
I digress to make two observations. First, as with the document dated 2 March 2012, whatever took place on 14 May 2012 was not a meeting of the EPA conducted in accordance with s 11 of the Act. Second, the first and second respondents do not now contend that Delegation No 22 validly conferred the authority of the EPA upon the Chairman for the purposes of assessing the Browse LNG Precinct Proposal. For reasons which need not be detailed, they accept that Delegation Number 22 was ineffective in that regard. Rather, they rely only upon a subsequent delegation of authority, which took place on 5 July 2012. Consistent with that concession, it follows that whatever the Chairman did at the purported 'meetings' on 2 March and 14 May 2012, at no stage did the Chairman participate in a meeting of the EPA pursuant to s 11 of the Act, nor was the Chairman exercising the delegated authority of the EPA pursuant to s 19 of the Act.
At all events the document dated 14 May 2012 records that the Chairman requested the Proponent to revise the s 43A application and resubmit it within 48 hours. A revised submission was sent to the Chairman of the EPA under cover of a letter dated 22 May 2012, received at the EPA on 28 May 2012, although a copy of that revised submission was provided to officers of the EPA at an earlier date.
On 31 May 2012 an officer of the EPA wrote to the Proponent enclosing a draft of the implementation conditions proposed for inclusion in the EPA's assessment report relating to the Browse LNG Precinct Proposal.
Another document purporting to record minutes of a meeting of the EPA on 20 June 2012 was provided as part of the trial bundle. As with the previous two 'meetings' relating to the Browse LNG Precinct Proposal, the Chairman was the only member of the EPA present and the minutes record that all other members of the EPA had a conflict and that the Chairman was acting pursuant to Delegation No 22. For the reasons I have already given, whatever took place on 20 June 2012 was neither a meeting of the EPA nor the exercise of the delegated authority of the EPA.
The 'minutes' record that the Chairman purported to consent to the change in the referred Proposal pursuant to s 43A of the Act, and to determine that the Browse LNG Precinct Proposal should be recommended for approval by the Minister, subject to compliance with specified implementation conditions.
On 22 June 2012 the Wilderness Society wrote to the Minister drawing his attention to the fact that, in their view, all members of the board of the EPA other than the Chairman had a conflict of interest in relation to the Browse LNG Precinct Proposal and urged the Minister to suspend the assessment of that Proposal until the issues arising from their conflicts of interests could be adequately addressed. The letter foreshadowed the commencement of legal proceedings if the EPA issued an assessment report which the Minister acted upon. On the same day the Wilderness Society issued a media release conveying, generally speaking, the same propositions.
The Chairman issued statements to a number of media outlets in response to the assertions made by the Wilderness Society. In the course of those statements the Chairman stated that he had immediately informed the Minister of his decision, made on 1 March 2012, to the effect that all other members of the board were excluded from discussions and decisions with respect to 'the final recommendation'. The Chairman stated:
On the final decision, which was the recommendation to the Minister, I determined in early March that [the board members] were conflicted from participating in deliberation and decision making and therefore the final recommendation fell to me as the non conflicted member.
Having said that, it's only been four months out of four years where that situation had occurred - they have participated in discussions and deliberations over the last 44 months.
The Chairman also stated that other members of the board had asked 'probing questions of the proponents and technical experts and scientists', informing themselves over a long period of time about the environmental issues and what the impacts of the proposed Browse LNG Precinct were likely to be.
The Chairman also confirmed that his decision to exclude Dr Whitaker, Dr Lukatelich and Mr Glennon from discussions and deliberations with respect to the Browse LNG Precinct Proposal was taken as a result of legal advice which he received in late February.
By letter dated 26 June 2012 headed 'Transmittal of Environmental Protection Authority Report No 1444 - Project: Browse Liquefied Natural Gas Precinct' the Chairman wrote to the Minister in the following terms:
Pursuant to section 44(1) of the Environmental Protection Act 1986 (EP Act), I enclose the Environmental Protection Authority's (EPA) report and recommendations on the above proposal.
The EPA has concluded that, subject to the recommended conditions being imposed, the proposal is environmentally acceptable.
Acting under your delegated authority I will release the report on Friday 29 June 2012.
The report attached to that letter has been described by the parties to these proceedings as 'the First Report' and it is convenient to continue the use of that nomenclature. As one would expect, the First Report is a very substantial document, comprising many hundreds of pages.
The Minister responded to the delivery of the First Report by letter to the Chairman dated 28 June 2012. In that letter the Minister advised that in light of the public statements made recently questioning the appropriateness of the EPA's process, he intended to seek urgent legal advice before publishing and releasing the report. The letter concluded by requesting the Chairman not to exercise his delegated power to release the report.
By letter dated 3 July 2012 the Chairman wrote to the Minister requesting his approval to the delegation to 'the Chairman of the Authority all of [the EPA's] powers and duties under Part IV Division 1 of the Act' in respect of the Browse LNG Precinct Proposal. The Minister approved of the delegation and at a meeting of the EPA on 5 July 2012 attended by all members other than Dr Whitaker, the EPA resolved to delegate its powers and functions in relation to the Browse LNG Precinct Proposal in the terms proposed to the Minister. The Instrument to that effect dated 5 July 2012 was endorsed by the Chairman, and the Minister endorsed his approval. The Instrument was published in the Government Gazette on 17 July 2012 and described as 'Delegation No 27'. This is the only delegation relied upon by the first and second respondents in order to uphold the validity of the actions purportedly taken by the Chairman.
On 16 July 2012 the Chairman endorsed a memorandum recording that he had, that day, acting under the delegated authority provided by Delegation No 27, considered the assessment undertaken by officers of the EPA and the assessment report before him in relation to the Browse LNG Precinct Proposal, and had determined to adopt the assessment report and to send it to the Minister. This is the first decision impugned in these proceedings. By letter dated the same date, the Chairman wrote to the Minister enclosing the assessment report dated July 2012, and advising the Minister that he had concluded that:
[T]he future proposals, identified in this strategic proposal, may be implemented in the event that those future proposals are declared under section 39B of the EP Act to be derived proposals and recommended conditions to which implementation should be subject.

It can thus be seen that the publication of an assessment report lies at the heart of the processes undertaken pursuant to s 45, and the exercise of the power to issue an implementation statement pursuant to that section. Considerations of the kind identified in Project Blue Sky and above lend considerable support to the proposition that the publication of a valid assessment report in accordance with s 44 of the Act is, on the proper construction of s 45 of the Act, a condition of the valid exercise of the powers conferred by that section.
However, the applicants did not put their argument on this basis. They were content to advance the argument in support of ground 10 on the basis that, as a matter of fact, the Minister's reliance upon the invalid report vitiated his purported exercise of the powers conferred by s 45 of the Act. Put another way, the applicants did not contend that in each and every case, an implementation statement made pursuant to s 45 of the Act was necessarily invalid if the assessment report which preceded the implementation statement was invalid. Rather, the argument was put on the basis that in a case in which the assessment report purportedly published pursuant to s 44 of the Act was held to be invalid, the validity of an implementation statement purportedly issued under s 45 of the Act would depend upon the extent to which that statement relied upon the invalid assessment report, as a matter of fact.
Perhaps understandably, the first and second respondents joined issue on the basis of this rather narrow approach to the issue of the invalidity of the implementation statement. They contended that, as a matter of fact, the Minister critically examined the content of the assessment report through the processes required by s 45 of the Act, with the result that the invalidity of the assessment report did not invalidate his decision. They sought to distinguish the circumstances in this case from those outlined in the reasons for decision in Coastal Waters Alliance of Western Australia Incorporated v Environmental Protection Authority (1996) 90 LGERA 136, to which I will now turn.
In the Coastal Waters case, the Full Court concluded that the EPA had misconstrued the Act with the result that extraneous considerations were taken into account in the EPA's assessment of the proposal at issue in that case. Those extraneous considerations essentially concerned the economic and commercial consequences of the proposal. The court concluded that the assessment report purportedly published pursuant to s 44 of the Act was invalid.
The proponent nevertheless contended that the statement of the Minister with respect to the implementation of the proposal was valid, because the decision was that of the Minister, not the EPA, and it could not be concluded that the Minister had taken into account the extraneous considerations outlined in the invalid report.
This argument was rejected. The Full Court acknowledged the vital role of the Minister in the assessment process created by pt IV of the Act, and the extent of the powers conferred upon the Minister pursuant to s 45. However, it did not follow that the assessment report was irrelevant to the Minister's obligations under the section. In the words of Rowland J:
What is reasonably clear from [the statute] … is that, because of the operation of s 101 or s 107(2), the ultimate decision is for the Minister, and his ultimate decision which is to be implemented under s 45(5) must accord with his decision on the appeal, and his decision is final. It follows that he is bound to consider the Environmental Protection Authority report and recommendations and the appeal, but he is not necessarily bound to support any recommendations or any grounds of appeal (146).
All members of the court concluded that, on the facts of that case, it was clear that the Minister's decision on appeal accepted the basis of the assessment report produced by the EPA which relied upon extraneous considerations, being the economic and commercial ramifications of the proposal. In the words of Franklyn J:
It is clear from the summary of his decisions on appeal that the Minister effectively accepted the report and did no more than impose conditions and procedures arising out of specific matters of appeal to which implementation of the proposal should be subject (158 ‑ 159).
In the view of all members of the court, it followed that the Minister's decisions pursuant to s 45 of the Act were invalid as a consequence of the Minister's reliance upon the content of the invalid report.
The first and second respondents sought to distinguish the Coastal Waters case on the basis that (assuming ground 2 fails) the present case does not involve vitiation of the decision‑making process as a result of extraneous considerations being taken into account. Put another way, they contended that it cannot be inferred from the Minister's reliance upon the invalid assessment report that he has taken into account matters which fall outside the ambit of the Act and thereby exceeded his powers. It was further submitted that the extensive nature of the processes undertaken by the Minister pursuant to s 45, including the consideration and determination of a large number of appeals extending over a broad range of issues, and the processes of consultation with other ministers and decision‑making authorities, overcame any deficiencies in the EPA's assessment process, with the result that the Minister's decision should be regarded as valid.
Leaving aside the legal issue with respect to the proper construction of s 45 of the Act to which I adverted earlier in my consideration of this ground, the first and second respondents' submissions fail on the facts. Neither the appeal process, nor the process of consultation required by s 45 of the Act require replication of the assessment process undertaken by the EPA under pt IV of the Act, nor, in this case, did they have that effect. The appellate process was focused upon the invalid assessment report, and the various grounds of appeal against that report. The appeals committee did not undertake the process of assessment afresh. Further, both the appeals committee and the Minister rejected any grounds challenging the substance of the EPA's assessment report. The recommendations of the appeals committee, and the decision of the Minister, were limited to amendment of the EPA's recommendations with respect to the conditions to which implementation of the Proposal should be subject. It is clear that, in his determination of the appeals against the report, the Minister relied heavily upon the terms of the EPA's assessment. As I have noted, in his determination of the appeal he stated:
I am of the view that the EPA has adequately considered the key environmental factors identified by it in its assessment of the proposal, and that this assessment was consistent with section 44 of the EP Act.
The Minister did uphold some of the appeals which resulted in the amendment of the conditions to which implementation of the Proposal was to be subject. In the result, the circumstances of this case are identical to the circumstances of the Coastal Waters case, in that it is clear that 'on appeal … the Minister effectively accepted the report and did no more than impose conditions and procedures arising out of specific matters of appeal to which implementation of the proposal should be subject' (158 ‑ 159).
I have concluded that the report which the Minister accepted was invalid. It follows, by parity of reasoning with the Coastal Waters case, that the Minister's decision based upon his acceptance of that report is also invalid. In this context, it makes no material difference that the reason for invalidity in the Coastal Waters case was consideration of extraneous matters, whereas in this case the reason for invalidity was a conspicuous departure from the requirements of the Act with respect to the procedure to be followed at meetings of the EPA and the exclusion of persons with a pecuniary interest in a proposal from participation in those meetings. In each case the assessment report is invalid. In this case, as in the Coastal Waters case, because the invalid report was at the heart of the Minister's purported exercise of the powers conferred by s 45 of the Act, the implementation statement issued by the Minister in respect of the Browse LNG Precinct Proposal is also invalid.
For these reasons, ground 10 must be upheld.

Ground 12

Ground 12 contends that the determination made on 17 December 2012 to the effect that the Woodside proposal was a derived proposal pursuant to s 39B of the Act is invalid because of the invalidity of the statement of the Minister to the effect that the Browse LNG Precinct Proposal could be implemented.
As I have noted, the first and second respondents conceded that if ground 10 was upheld, as it has been, this ground must also be upheld. That concession is properly made. Section 39B(3) expressly provides that a proposal can only be declared to be a derived proposal if it has been decided that a strategic proposal could be implemented pursuant to s 45 of the Act. As I have concluded that there has been no valid decision to that effect, it necessarily follows that there can be no valid decision pursuant to s 39B of the Act. Ground 12 must therefore be upheld.

Ground 1

As enunciated in the originating motion, ground 1 embodies two alternative propositions. First, it is contended that the Browse LNG Precinct Proposal required the EPA to undertake an environmental assessment under pt IV of the Act relating to all possible sites for the Precinct within the Kimberley and Pilbara regions. It is contended that the EPA failed to discharge that responsibility by adopting what is described as a two‑tier assessment process, or split process, pursuant to which advice was given to the Minister with respect to prospective sites for the Precinct, pursuant to s 16(e) of the Act which is within pt II of the Act, and only one site was assessed in accordance with pt IV of the Act, the site identified at James Price Point. Alternatively, it is contended that if the Browse LNG Precinct Proposal is properly construed as a proposal to develop a precinct for the liquefication of natural gas at a site or sites to be identified by the government, such that only the identified site or sites was required to be environmentally assessed pursuant to pt IV of the Act, then it was not a strategic proposal capable of assessment under the Act.
At times it was difficult to reconcile the terms of ground 1 with the oral argument advanced in its support. For example, at one point in the argument, counsel for the applicants asserted that the EPA's obligation to undertake an assessment under pv IV of the Act did not extend to all possible sites in the Kimberley and Pilbara region, but only to the four sites identified by the Northern Development Taskforce in its Site Evaluation Report published on 15 October 2008 (ts 101). At another point in the oral argument, inconsistently with the alternative proposition enunciated in ground 1, counsel for the applicants appeared to accept that a proposal to establish a precinct for the liquefication of natural gas at a place to be identified in the Kimberley was a strategic proposal within the meaning of the Act which could be accepted by the EPA, which could then use its powers under s 40 of the Act to require the Proponent to provide it with information which identified the site or sites to be environmentally assessed (ts 100). However, at other points in the oral argument this proposition was disavowed (ts 320). At all events, for the reasons which follow, both propositions enunciated in ground 1, and the permutations of those propositions advanced in the course of oral argument must be rejected.

What was the strategic proposal?

Both propositions enunciated within ground 1 require a determination to be made as to the precise terms of the strategic proposal presented to the EPA. In particular, it must be determined whether, as the applicants contend in support of their first proposition, the Proposal was for the establishment of a gas liquefication precinct somewhere in the Kimberley (or perhaps the Pilbara), thereby requiring all prospective sites to be environmentally assessed by the EPA, or whether, as the first and second respondents contend, it was a proposal to establish the Precinct at a site (or perhaps more than one site) to be identified by the Proponent prior to the commencement of the environmental assessment process. For the reasons which follow, it is clear that the Proposal was of the latter kind.
As I have noted, the Proposal was presented to the EPA by a letter from the Minister for State Development dated 25 March 2008. Relevantly the letter asserted:
The Government, through the Northern Development Taskforce is currently proceeding with a site selection process for the proposed hub through a consultative process representative of all key stakeholders. The area being considered for a potential hub site is broadly identified on Map 2 attached to the Agreement. The Agreement, however, allows the State and Commonwealth Governments to consider feasible alternative locations of the hub which may be outside the Kimberley.
…
The State Government will determinate a preferred location (or locations) and the full scope of the hub by July 2008 as a basis for the strategic assessment.
The terms of the letter are quite explicit. It is clearly and unequivocally proposed that a location or locations for the hub will be identified by the State prior to the commencement of the process of environmental assessment.
The letter from the Minister referred to, and enclosed, the agreement between the State and Commonwealth governments. Clause 4.6 of that agreement provides:
In addition to the strategic assessment of the Plan the parties to this agreement have collaborated in the development of the draft site selection criteria (Attachment A) to cover all relevant matters, including particularly matters of National Environmental Significance. The process for selection of the Precinct will consider feasible alternatives to locations of the Precinct outside of the Kimberley Region. The parties to this agreement agree to finalise the criteria following further consultations.
Attachment A contains a detailed matrix of site selection criteria by reference to various qualities and values, including environmental values.
Clause 6.1 of the agreement requires the State to cause a Draft Report to be prepared in accordance with the approved terms of reference. Clause 6.2 provides:
The parties will agree on a work programme and methodology to ensure the Draft Report delivers on its objectives and achieves broad based scientific and community support of the selected location.
It is clear from this provision that the agreement contemplated that a location for the site would be selected prior to the undertaking of the environmental assessment by the West Australian government.
The draft terms of reference for the strategic assessment to be undertaken by the State in accordance with cl 6.1 of the agreement, which are Attachment B to the agreement, compel the same conclusion. Clause 4 of those draft terms requires the Draft Report to describe 'how the proposed site(s) for the Precinct were identified'. Further, cl 5(d) of the draft terms of reference requires the Draft Report to provide a detailed description of, inter alia:
[A]ny physical environmental processes influencing the environmental characteristics of the site or surrounds, or influencing the potential impacts on the site or surrounds, including tidal regime, cyclonic and other severe weather conditions, coastal processes.
Plainly, such a description could only be provided in respect of a site or sites which have been identified pursuant to the site selection process prior to the undertaking of the environmental assessment. The same observation can be made in respect of many other aspects of the report identified in the draft terms of reference.
Further, the agreement between the State and the Commonwealth governments specifically refers to the requirement to undertake an environmental assessment pursuant to the provisions of pt IV of the Act. It is clear from the terms of the agreement that the parties contemplated that the process of assessment to be undertaken by the EPA and relevant Commonwealth Minister pursuant to the terms of the agreement would comply with the requirements of the respective acts. As I have noted, pursuant to s 44 of the Act, an assessment report provided to the Minister pursuant to that section must set out the key environmental factors identified in the course of the assessment. Obviously it would be impossible to satisfy that requirement in respect of all potential sites in a region as vast as the Kimberley. The requirements of the Act can only be satisfied in respect of an identified site or sites. The terms of the letter from the Proponent to the EPA, and of the agreement between the State and Commonwealth governments are entirely consistent with that fundamental proposition.
For these reasons it is clear that the Proposal presented to the EPA pursuant to s 38 of the Act was a proposal to establish a precinct for the liquefication of natural gas at a site, or perhaps more than one site to be identified by the Proponent at a later point in time. The site was in fact identified as James Price Point, and the EPA purported to undertake an environmental assessment in respect of that site. The fact that the EPA also provided advice to the Minister pursuant to s 16(e) of the Act in respect of other possible sites prior to the identification of the selected site does not involve any derogation from the EPA's obligation to assess the Proposal presented to it under pt IV of the Act.
The applicants contend that the respondents are estopped from contending that the Proposal should be construed in the manner set out above. They assert that pursuant to the doctrine of res judicata or issue estoppel, the decision of the Court of Appeal in Roe gives rise to an estoppel per rem judicatem which precludes adoption of the construction which I would place upon the Proposal presented to the EPA. In particular, reliance is placed upon the following passage from the reasons of Buss JA:
It is apparent from the letter dated 25 March 2008 and other materials before the court that the Proposal (in respect of which the State was the proponent) involved:
(a)the identification of the most suitable site in the Kimberley region for the location of the Precinct; and
(b)the investigation of the environmental, technical, social and heritage feasibility of the chosen Precinct for constructing and operating gas processing and associated facilities including a port.
The letter dated 25 March 2008 constitutes the written referral of the Proposal to the Authority. No other relevant 'proposal', as defined in s 3(1), was, at any material time, referred in writing to the Authority. During the process of assessment, no consent has been sought from or given by the Authority under s 43A to the State changing the Proposal. If the Proposal was, at any material time, amended, the Proposal as amended was not, at any material time, referred in writing to the Authority. As I have mentioned, the term 'proposal', as defined, includes any amendment of a project, plan or development etc, or an amendment of a change in land use.
Whether the Proposal was solely or partly a significant proposal or whether it comprised, relevantly, a strategic proposal is to be determined as at the date of the written referral of the Proposal to the Authority [179] ‑ [181].
It is submitted that this passage of the reasons denotes a curial determination to the effect that the Proposal, on its proper construction, required the EPA to undertake an environmental assessment of all prospective sites of the Precinct for the purpose of identifying the most suitable site in the Kimberley region.

There are three reasons why this proposition must be rejected. First, the passage from the reasons of Buss JA do not bear the meaning for which the applicants contend. Second, in Roe there was no issue or contention between the parties with respect to the precise terms of the Proposal presented to the EPA. Rather, the issue between the parties was whether the Proposal was properly characterised as a strategic proposal or as a significant proposal, within the nomenclature of the Act. Accordingly, there was no contentious issue with respect to the terms of the Proposal resolved by the decision capable of giving rise to an estoppel per rem judicatem: Blair v Curran (1939) 62 CLR 464, 532 (Dixon J).
Third, the reasons of Buss JA do not comprise the reasons of the court. In my reasons I described the Proposal in these terms:
The proposal which had been referred was essentially a proposal which would enable the identification of an area to be designated and set aside for possible use as a multi-user gas hub precinct at some time in the future. The proposal included the process for the environmental assessment of the designated area, in accordance with the Terms of Reference to be approved under the Commonwealth-State agreement, and pursuant to the provisions of each of the Commonwealth and State Acts.
Plainly, the proposal to designate an area of land for possible future use as a precinct, and to investigate the environmental impact of such a use was not a proposal which, if implemented, would be likely to have a significant effect on the environment [73] ‑ [74].
Murphy JA agreed with the reasons which I published. That description of the Proposal is entirely consistent with the construction which I have set out above.
For these reasons there is no need to explore the interesting proposition that, as a matter of law, the decision in Roe could create an estoppel binding upon the parties to these proceedings.
The first proposition enunciated by the applicants within ground 1 must be rejected.
It remains to consider the alternative proposition advanced by the applicants under ground 1. That proposition is to the effect that if the Proposal is to be construed in the manner which I have set out above, it is not a proposal which can be validly assessed by the EPA pursuant to pt IV of the Act. As I have already noted, at times in the course of oral argument counsel for the applicants appeared to acknowledge the failure of this proposition (ts 100), whereas at other times, the proposition was reiterated (ts 320). At those points in the argument, when tasked, counsel was unable to identify any specific provision or provisions in the Act which had the effect for which he contended. Rather, he relied upon the general scheme of pt IV, including in particular the process of assessment.
It is of some significance to the applicant's alternative contention that pt IV of the Act specifically contemplates the environmental assessment of strategic proposals, which are defined by s 37B of the Act to include proposals which identify a future proposal that will be a significant proposal. Thus, the Act contemplates the environmental assessment of proposals which will not, of themselves, have any impact upon the environment if implemented, such as the Browse LNG Precinct Proposal. As I have already noted, that proposal will only have an impact upon the environment if and when a future proposal identified within that proposal is implemented, such as a proposal to actually construct facilities for the liquefication of natural gas within the Precinct.
It follows that the Act expressly contemplates the environmental assessment of proposals which have an element of futurity. The assessment of the degree of specificity required in order for a proposal to fall within the scope of the Act must be considered in this context.
As counsel for the applicants acknowledged, s 40 of the Act is also significant to the applicant's alternative contention. It empowers the EPA to require the provision of information for the purpose of assessing a proposal. That power is quite ample to enable the EPA to require a proponent to provide the information necessary to undertake the environmental assessment of a proposal. In the context of this case, if the Proponent had not identified the site at which the Precinct was to be established, that information could have been required by the EPA prior to the undertaking of the environmental assessment.
In that context there is no reason to construe the Act on the basis that a proposal presented to the EPA pursuant to s 38 of the Act must contain all the information necessary to enable the EPA to undertake an assessment of that proposal without more. On the contrary, there is every reason to construe the Act as contemplating that further information may well be provided to the EPA between the time at which a proposal is provided, and the commencement of the environmental assessment of that proposal. That is in fact precisely what occurred in this case.
Counsel for the applicants relied upon the requirement that the EPA determine whether or not to assess a proposal, under s 39A of the Act, to support a contention that the proposal provided to the EPA must contain sufficient particularity to enable that assessment to be undertaken. It might readily be accepted that a proponent must provide sufficient information to enable the EPA to determine whether or not to assess the proposal before the obligation of the EPA to make that determination arises. However, there is obviously a distinction between the information necessary to determine whether or not a proposal should be assessed, and the information necessary to undertake the assessment, as this case reveals. The environmental significance of a proposal to establish a hub for the liquefication of natural gas is so obvious that the EPA could determine that the Proposal should be assessed, irrespective of the site or sites subsequently identified. The identification of the site or sites was a necessary pre‑requisite to the assessment, but was not a pre‑requisite of the decision to undertake an assessment.
In the course of argument, reliance was also placed upon s 43A of the Act which concerns changes to proposals during assessment. Pursuant to that section, the EPA may consent to changes during the course of assessment, provided the change is unlikely to significantly increase any impact that the proposal may have on the environment. It was submitted that the course followed in this case subverts this section of the Act.
This submission must be rejected. In this case there was no change in the Proposal within the meaning of s 43A of the Act. The proposal related to the development of a precinct for the liquefication of natural gas at a site or sites to be identified prior to the undertaking of the environmental assessment. In accordance with the Proposal, a site was identified, and an assessment was purportedly undertaken in respect of that site. If, during the course of that assessment, the government had decided that the preferred location was no longer James Price Point, but some other location, s 43A could perhaps have operated to allow amendment of the Proposal. However, that did not occur.
For these reasons ground 1 must be dismissed.

Ground 2

Ground 2 asserts that the EPA erred in law by misconstruing the ambit of meaning to be given to the expression 'environmental factors' where that expression is used in s 44 of the Act. In particular it is asserted that the EPA erred by erroneously taking the view that the 'social, cultural and economic impacts of the hub precinct' were excluded from its consideration in assessing the Browse LNG Precinct Proposal. For the purposes of this ground, it must be assumed, contrary to the conclusion I have reached, that the process of assessment and the creation of a report subsequent to that process report was in fact undertaken by the EPA.
The applicants do not identify any document or statement in which the alleged error of law is enunciated by the EPA. Rather, the applicants contend that the error of law is to be inferred from the failure of the EPA to deal with a number of significant issues in the Second Report presented to the Minister. At one point in the course of oral argument, it was contended that the failure of the EPA to address certain environmental factors in its report to the Minister constituted a failure to discharge the obligation of assessment imposed upon it by pt IV of the Act. At that point I suggested to counsel that such a proposition was different in character to the proposition enunciated in ground 2, which relied upon an error of law with respect to the ambit of jurisdiction, rather than a failure to discharge the jurisdiction conferred. In response, counsel foreshadowed an amendment to the ground and a minute of amendment was prepared. However, the application to amend was ultimately abandoned. Accordingly, the ground must be determined on the basis that it asserts an error of law with respect to the ambit of the EPA's jurisdiction, such error to be inferred from the failure of the EPA to address certain matters in the report presented to the Minister.
However, the submissions advanced in support of the ground do not in fact rely upon a complete absence of reference to social, cultural and economic impacts in the assessment report but, in substance, complain of the inadequacy of the references to those matters. The first and second respondents contend, correctly, that the argument advanced by the applicant in support of this ground is primarily directed to the merits of the views expressed by the EPA in the assessment report presented to the Minister, and does not identify any error of law with respect to the ambit of the EPA's jurisdiction.
An inference of error of law of the kind enunciated in ground 2 cannot be drawn from a portion of the EPA's assessment report which is said to deal inadequately or incompletely with the topic under consideration. The fact that the topic is dealt with at all in the report is inconsistent with the suggested error of law, as it shows that the EPA considered the topic to be within the ambit of its jurisdiction. It follows that this ground cannot be made out by the identification of portions of the assessment report which are said to be inadequate or deficient in some respect, but only by a total failure to deal with a relevant factor in the report. However, that is not the way in which the argument was presented by the applicants. Most of the argument advanced in support of this ground was directed to portions of the report dealing with a particular topic, which were said to be inadequate or incomplete in some respect. For the reason I have given, arguments of that kind are incapable of making out this ground.
When the assessment report prepared by the EPA is considered as a whole, it is incapable of sustaining an inference of error of the kind for which the applicants contend. The report refers to a wide range of factors, including factors that could be described as cultural, social or economic factors, at least to the extent to which there would be an impact upon those matters as a result of the environmental consequences of the development of the proposed Browse LNG Precinct. For example, one of the nine key environmental factors identified and addressed was 'heritage'. The social and cultural impact of development on the traditional owners of the Precinct and its surrounds is addressed at some length in the Second Report. Another topic addressed concerns the preservation of dinosaur footprints embedded in rock strata in the area. Consideration of that topic demonstrates that it was not the view of the EPA that social and cultural topics were beyond its jurisdiction. Further, consideration of the extent to which silt plumes caused by dredging might have an impact upon pearling operations, or upon tourism to the area shows that the EPA did not consider that the economic consequences of the environmental impacts of development were beyond the scope of its jurisdiction.
Appendix 3 of the assessment report is a table which is described as a summary of identification of key environmental factors and principles. It is a very extensive document. It contains a very large number of different factors, grouped under various headings. One of the groupings is headed 'Heritage and Social Surroundings'. Within that heading reference is made to visual amenity, which is plainly a social and cultural matter. Although there is reference at one point in the schedule to some economic factors being outside the scope of the Act, it seems clear from the text of the report that this must be read as a reference to those factors which were not directly affected by the environmental impact of development in accordance with the Proposal. That is because, within the text of the report, reference is made to the effect which environmental impacts (such as a silt plume) might have upon economic activities such as pearling and tourism. The distinction between economic considerations related to the environmental impact of the Proposal, and economic considerations unrelated to environmental impact is consistent with the views expressed by the Full Court in the Coastal Waters case (149 ‑ 151, 157 ‑ 158). The fact that consideration is given, within the text of the report, to the effect which plumes caused by dredging might have upon the economic interests of those in areas affected by those plumes shows that the EPA correctly construed the ambit of its jurisdiction, in accordance with the principles enunciated in the Coastal Waters case.
Accordingly, ground 2 must be dismissed.

Conclusion

For the reasons I have given, grounds 6, 10 and 12 must be upheld. When the Chairman purported to provide the Minister with the Second Report on 16 July 2012, he did not validly discharge the obligation imposed upon the EPA by s 44 of the Act. The Minister's statement that the Browse LNG Precinct Proposal could be implemented subject to conditions was not a valid exercise of the powers conferred upon the Minister by s 45 of the Act. The declaration to the effect that the Woodside proposal was a derived proposal was not a valid exercise of the powers conferred upon the EPA by s 39B of the Act. I will hear from the parties with respect to the relief appropriately granted to give effect to these conclusions.
Also for the reasons I have given, grounds 1, 2 and 4 must be dismissed. It is unnecessary to consider the other grounds of challenge for the various reasons given above.