An invalid EPBC Act approval condition did not bring down the whole approval.
INTRODUCTION AND BACKGROUND
The Full Court of the Federal Court (Full Court) recently handed down its decision in Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities  FCAFC 111 (Buzzacott) an administrative law appeal brought by Mr Buzzacott, an Aboriginal elder, against the April 2012 decision of Justice Besanko in Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (No 2)  FCA 403. Justice Besanko had dismissed the initial appeal brought by Mr Buzzacott to quash the decision of the Federal Minister for Sustainability, Environment, Water, Population and Communities (Minister) approving, with conditions (Approval), BHP Billiton Olympic Dam Corporation Pty Ltd's (BHPB's) proposal to expand the existing Olympic Dam copper, uranium, gold and silver mine and processing plant, including all associated infrastructure in South Australia and the Northern Territory (Expansion Project).
As the Expansion Project involved the mining of uranium, a "nuclear action", it was a "controlled action" requiring the Minister's approval under sections 130(1) and 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).
The existing Olympic Dam mining operation commenced in 1988 and was regulated by the Roxby Downs (Indenture Ratification) Act 1982 (SA) (Indenture Act) and existing Commonwealth and South Australian environmental approvals (relevantly, South Australian Special Water Licences A and B (Water Licences) issued under the Indenture Act).
The appeal raised questions concerning the Minister's power to impose conditions on the Approval under section 134 of the EPBC Act and ultimately challenged the validity of the Approval.
Section 134(4) of the EPBC Act provides that "in deciding whether to attach a condition to an approval, a Minister must consider:
- any relevant conditions that have been imposed, or the Minister considers are likely to be imposed, under a law of a State or self-governing Territory or another law of the Commonwealth on the taking of the action; and ...". (emphasis added)
ISSUES ON APPEAL
Ground 1: Mr Buzzacott argued that the requirement in section 134(4)(a) of the EPBC Act that, when imposing conditions on the Approval, the Minister was required to consider "any relevant conditions that have been imposed...under a law of a State...on the taking of the action" extended to the pre-existing conditions imposed under the Indenture and Water Licences applying to the existing Olympic mine. This required the Full Court to consider:
- the scope of section 134(4)(a) of the EPBC Act, namely whether the pre-existing conditions of approval for the Olympic Dam mine were required to be taken into account by the Minister;
- if so, whether there was a failure by the Minister to consider such conditions; and
- if there was such a failure, whether the approval was invalid.
Relevantly, neither the conditions in the Water Licences nor the Indenture (a Schedule to the Indenture Act) were set out in the assessment materials before the Minister.
Ground 2: Mr Buzzcott also argued that the "totality" of the conditions attached to the Approval under section 134 of the EPBC Act rendered the Approval uncertain (and therefore invalid) within the meaning of section 5(2)(h) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), or were otherwise unauthorised by or in excess of the jurisdiction conferred by sections 133 and 134 of the EPBC Act.
DECISION OF THE FULL COURT
Ground 1: Have regard to pre-existing conditions
The Full Court dismissed Ground 1 of the appeal.
It observed that the EPBC Act contemplates that assessment processes may operate concurrently and collaboratively at State, Territory and Commonwealth levels in respect of a single development proposal. This concurrent approach informs the process of determining conditions under section 134, namely the co-ordination of approvals being granted in respect of the same developments, including by an "accreditation" at Commonwealth level of conditions imposed or soon to be imposed under a State approval.
The Full Court held that section 134(4)(a) is directed towards conditions specifically imposed or soon to be imposed under State law "on" the taking of the action the subject of the Approval. The Full Court specifically noted that the construction of section 134(4) contended for by Mr Buzzacott (ie. that the Minister was also required to consider the conditions of the pre-existing Indenture and Water Licences) would impose "an intolerable burden on the Minister." Given that the Minister had considered as part of his assessment the approval conditions proposed to be imposed by the South Australian government under applicable State laws, the requirements of section 134(4)(a) were met. The Full Court attached no significance to the fact that the Indenture and Water Licences were not before the Minister as they would not have disclosed any "relevant conditions" for the purpose of section 134(4)(a) going beyond what had already been reported to the Minister.
Relevantly, the Full Court also held that even if section 134(4)(a) required the Minister to consider the conditions imposed by the Indenture and/or Water Licences, any failure by the Minister to do so was, on the facts of the case, inconsequential (or immaterial) and would not have invalidated the Approval. The Full Court noted that Mr Buzzacott had not identified any condition(s) contained in the Indenture and/or Water Licences which could realistically have affected the Minister's decision to grant approval having regard to the information before the Minister regarding the Water Licences, impacts of the Expansion Project on the environment and the actual conditions that the Minister had imposed to manage groundwater impacts.
Ground 2: Uncertainty
In considering the "uncertainty" ground, the Full Court noted that care has been taken in drafting section 134 not to empower the Minister to impose conditions generally but to structure the circumstances in which the Minister may attach a condition to any approval under section 133 and to identify the nature or types of conditions that may be attached.
The Full Court held that all of the Approval conditions considered by it, except for condition 71, were sufficiently certain within the meaning of section 5(2)(h) of the ADJR Act and were granted within the Minister's power under section 134 of the EPBC Act. The Full Court noted that the conditions imposed by the Minister reflected the fact that the approved activity was large and complex and that conditions were required to manage impacts or to protect environmental and heritage values identified during the environmental assessment process.
By contrast, condition 71 of the Approval was found to effectively provide the Minister with the power to approve alternative alignments for certain infrastructure and a gas pipeline which were different to those which had been assessed in the Expansion Project's EIS report or the project assessment report. The result was that, by condition 71, the Minister had created an infrastructure approval power to approve identified infrastructure and gas pipeline on a new alignment(s) without any reference to the requirements and mechanisms specified in the EPBC Act that would apply to a fresh infrastructure proposal. Consequently, condition 71 was not authorised by sections 133 and 134 of the EPBC Act and was invalid under the ADJR Act and the general law.
Despite this finding, the whole Approval was held not to be invalid. The Full Court determined that condition 71 was not fundamental to the Approval or the operation of other conditions of the Approval and could be severed from the Approval.
On this basis, the Full Court dismissed the appeal with costs.
The Full Court's decision regarding the scope and requirements of section 134(4) of the EPBC Act can be seen as a win for reducing "green tape" in the assessment and approval of projects which are regulated under both State laws and the EPBC Act.
It will be interesting to follow the future role of provisions such as section 134 of the EPBC Act in light of the new Federal Government's commitment to delivering a 'one stop shop' for environmental approvals. As part of this new policy, the Federal Government is proposing to accredit State planning systems under national environmental law, to create a single environmental assessment and approval process. In the first Memorandum of Understanding (MoU) signed on 18 October 2013 by the Federal and Queensland Governments, the parties have committed to pursue a comprehensive approval bilateral agreement by 18 September 2014 to accredit Queensland to undertake approvals under the EPBC Act. The approval bilateral agreement for major projects "agreed in principle" is to occur by the end of April 2014, followed by statutory consultation periods. The MoU also requires the parties to refresh the existing assessment bilateral agreement by 31 December 2013 to undertake a single assessment process for both Commonwealth and Queensland projects.
The other States have yet to sign similar MoUs. Watch this space.
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