Review of 2003 EPBC Act Cases

By John Taberner, Mark Dwyer, Tim Power, Tony van Merwyk and Michael Back

The Federal Court considered various aspects of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) in 2003. Although this publication summarised case briefs at the time of the hearings, it now seems an appropriate time to recap on the key jurisprudence that is beginning to emerge regarding the EPBC Act and developments which will need to be closely monitored in the new year.

[2003] FCA 64 (12 February 2003)

In Humane Society International Inc v Minister for the Environment & Heritage, outlined in the May 2003 edition of Environment Quarterly, the Federal Court considered the validity of the Administrative Guidelines on Significance: Supplement for the Grey-headed Flying-fox and the Administrative Guidelines on Significance: Supplement for the Spectacled Flying-fox (Guidelines). The Guidelines were published by the Minister for Environment and Heritage in November 2002.

The Guidelines declared that a person holding a valid State licence or permit to cull grey-headed or spectacled flying-foxes, a listed vulnerable species under the EPBC Act, was exempt from the need to refer their proposed actions to the Minister as required by section 68 of the EPBC Act. The Federal Court held that the Guidelines were not authorised by law and could not exempt a person from their statutory responsibility to refer a proposed action to the Minister under section 68.

The Minister for Environment and Heritage re-published the Administrative Guidelines on Significance: Supplement for the Grey-headed Flying-fox in November 2003. This guideline clearly emphasises that it is a requirement of the EPBC Act that individual orchardists consider the particular facts and circumstances of their activities in deciding whether they need to make a referral under the EPBC Act. However, the guideline states that the Minister is of the view that if an individual is complying with a current 2003–04 State permit or licence to shoot a specific number of grey-headed flying-foxes, the limited number of flying-foxes the individual will be permitted to shoot is not likely to have a significant impact on the species.

Based on this decision, other guidelines, including the October 2001 guidelines regarding offshore seismic operations, should not be relied upon as a substitute for complying with the statutory obligation to refer proposed actions that will have or are likely to have a significant impact on a matter of national environmental significance.

The Minister for Environment and Heritage brought an application against Mr Ronald Greentree (and others) for failing to obtain approval of activities which had a significant impact on a declared Ramsar wetland. The Minister brought his action after 99 per cent of the 100 hectares of Gwydir wetlands, a declared Ramsar wetland, on the Greentree's property was ploughed. The Minister for Environment and Heritage is seeking an injunction and orders to repair and mitigate damages under section 475, and penalties under section 481, of the EPBC Act.

On 31 July 2003 the Federal Court granted an interim injunction to restrain the further ploughing of the portion of the declared Ramsar wetland on the Greentree's property. Mr Greentree sought a dissolution of this interim injunction on 8 August 2003, claiming the damage to the wetlands area on the property had 'already been done'. The Federal Court dismissed the application for dissolution. In dismissing the application, Justice Sackville considered the deliberate contravention of the EPBC Act by the respondents and the reasonable possibility of remediation on the site.

The area of the Gwydir wetlands located on the Greentree's property had enjoyed a reasonable standard of health until 2002, when a report showed the wetlands had suffered considerably from the effects of drought. In July 2003, an inspection discovered that only one per cent of the area of the Gwydir wetlands on the property remained intact, with the remaining portion having been ploughed. Evidence was presented before the court by Environment Australia which suggested that notwithstanding the ploughing of the soil and the effects of the drought, there exists at least a possibility, and probably a reasonable possibility, of a substantial degree of remediation of the wetlands.

Although the judge noted that the continuation of the injunction would prevent the respondents from making economic use of this area, he did not regard the detriment to the respondents as to be a factor which outweighs the potential to remediate the wetlands. His Honour stated that steps that would or could significantly prejudice the outcome of rehabilitation should not be permitted. It was considered that the prospects of remediation would be significantly impaired if the land was further cultivated. The judge however called for an expedited hearing of the issue, as he acknowledged a prolonged injunction may cause significant detriment to the respondents who are unable to cultivate this portion of their land. The hearing was scheduled to be heard on 12 December 2003.

In the May 2003 edition of Environment Quarterly we considered the Federal Court decision of Mees v Roads Corporation. In this case, Mr Mees challenged the validity of a referral made by the Victorian Government to the Commonwealth Minister for Environment and Heritage under section 68 of the EPBC Act in respect of the Mitcham Frankston Motorway. The substance of Mr Mees' claim was that the Victorian Government, in failing to acknowledge the 'strong chance' of a future freeway link that would affect environmentally sensitive areas, provided a misleading and deceptive referral upon which the Commonwealth Minister for Environment and Heritage could not rely. The substance of Mr Mees' claim was upheld, although the Court declined to make an order for the declarations sought by Mr Mees. Since that decision, Mr Mees has filed a further application with the Federal Court in his fight against the Mitcham Frankston Freeway.

Mr Mees has applied to the Federal Court for judicial review of the decision of the Commonwealth Minister for Environment and Heritage that the proposed construction, operation and maintenance of a section of the freeway is not a controlled action under the EPBC Act, and a review of the decision of the Commonwealth Minister for Environment and Heritage not to reconsider that decision under section 78 of the EPBC Act. The basis for the application is that the Minister failed to take into account all relevant considerations when making these decisions by failing to consider the secondary or indirect impacts of the construction of the Greensborough–Eastern freeway link on important habitat areas.

The application is to be heard on a date to be fixed.

A proposal to construct and operate a dam on the Dawson River in Central Queensland was referred to the Minister for Environment and Heritage under section 68 of the EPBC Act. The proposed dam, if constructed, would have linkages through various rivers and tributaries to the Great Barrier Reef World Heritage Area. A number of parties, including the applicant, expressed concern that construction of the dam would enable cotton farming, which uses irrigation, and that the chemicals used in that farming could travel downstream and into the World Heritage Area. While the Minister determined that the construction and operation of the dam was a 'controlled action' with respect to its likely impact on listed threatened species and listed threatened ecological communities, he did not determine the dam was a controlled action with respect to its potential impacts on the Great Barrier Reef World Heritage Area.

The applicant sought a review of the Minister's decision, arguing that he was obliged to have regard not just to the immediate impacts of the dam, but all of the likely consequential impacts arising from the dam's operations.

In a judgment handed down on 19 December 2003, Justice Keifel set aside the Minister's decision that the proposed action was not a controlled action with respect to its potential impacts on the World Heritage Area, and remitted this aspect of the decision back to the Minister for further consideration and decision. Her Honour concluded that the Minister's obligation under section 75 of the EPBC Act to consider 'all adverse impacts' of the proposed action means that the widest possible consideration must be given to those potential adverse impacts, 'limited only by considerations of the likelihood of it [the impact] happening'. Her Honour endorsed the comments of Justice Cripps in Kivi v New South Wales Forestry Commission (1982) 47 LGRA 38 that the obligation under section 75 requires a consideration of the 'whole, cumulated and continuing effect' of the proposed activity.

There should perhaps be no surprises in these decisions of the Federal Court. Guidelines are just that, and are no substitute for complying with the requirements of legislation. Equally, it is apparent that the Court will take a dim view of parties that deliberately breach the EPBC Act by causing damage to species or areas protected under the Act, and parties that do not disclose information in its section 68 referral materials that are potentially relevant to the Minister's decision. The Court's decision in the Queensland Conservation Council case clarifies the obligation of the Minister, and hence any developer preparing a section 68 referral, to consider consequential and cumulative impacts of the proposed action. The judgments reinforce the onus upon developers and project proponents to be prudent, and on occasion perhaps conservative, in assessing their responsibilities under the EPBC Act.