Public interest litigation and the environment protection and biodiversity conservation act

Environmental and Planning Law Journal

Volumn 25, Issue 6, 2008, Pages 410-424

  Baird, Rachel ^a  

^a NONE

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EID: 84855565287     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (87)

1. Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss 475-476.
2. Booth v Bosworth (2001) 117 LGERA 168.
3. For example, see, Queensland Conservation Council Inc v Minister for the Environment (2004) 134 LGERA 272 (the Nathan Dam case) held that adverse impacts of an action assessed under the EPBC Act include both direct and indirect effects of the action. A proposed 880,000 ML dam on the Dawson River was alleged to have an adverse impact on the Great Barrier Reef World Heritage Area (a matter of national environmental significance) due to downstream irrigation of agricultural land by persons other than the proponents. The court accepted that these indirect offsite effects should be considered by the Environment Minister in deciding whether to approve the action.
4. See also, Mees v Roads Corporation (2003) 128 FCR 418, which examined the issue of what information should be included in referral documentation under the EPBC Act. The court held that the proponent's failure to refer the "strong chance" of a future freeway link was misleading and this decision has guided subsequent proponents.
5. Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8 (15 January 2008). This decision was in relation to the approval decision on 20 December 2008.
6. This application was made under s 487(3) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
7. Statement of Reasons for Grant of Approval under the Environment Protection Biodiversity Conservation Act 1999 (Cth) dated 18 January 2008, [9]-[20].
8. Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8 (15 January 2008) at [8].
9. Environment and Heritage Legislation Amendment Act (No 1) 2006 (Cth).
10. Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8 (15 January 2008) at [42].
11. Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8 (15 January 2008) at [42].
12. Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8 (15 January 2008) at [19].
13. Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8 (15 January 2008) at [22].
14. Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8 (15 January 2008) at [20]-[23].
15. Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8 (15 January 2008) at [59].
16. Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8 (15 January 2008) at [59].
17. Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8 (15 January 2008) at [61].
18. Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8 (15 January 2008) at [65]-[66].
19. Blue Wedges Inc v Minister for Environment, Heritage and the Arts [2008] FCA 399 at [57]-[60].
20. This requirement is stated in s 130(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
21. Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 399 at [78].
22. Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 399 at [88].
23. Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 399 at [99], citing affidavit of Vicki Middleton (Assistant Secretary of Environmental Assessment Branch, Department of Environment, Heritage and the Arts). Departmental officers had formed the view that the impact on local tourism would be of a "temporary nature", and that the Minister for Climate Change "had a broader policy portfolio, rather than any direct regulatory or approval responsibilities in relation to the proposal".
24. Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 399 at [101].
25. Bromley London Borough Council v Greater London Council [1983] 1 AC 768 at 821 and held that the decision of the Minister not to inform certain ministers "was not so unreasonable that a reasonable minister could not have formed the belief".
26. Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 399 at [111]. Section 136(1)(a) gives the Minister discretion to decide what are relevant matters which should be taken into account.
27. Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 399 at [118].
28. Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 399 at [118]-[119]. According to North J, the SEES rated the risk of a major oil spill from collision with the dredger in the Bay "as almost impossible, and the chance of a collision with the dredger in the entrance to the Bay leading to an oil spill as around 3 in 1 million".
29. Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 399 at [121]-[122].
30. Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 399 at [123].
31. Blue Wedges Inc v Minister for the Environment, Heritage and the Arts (No 2) [2008] FCA 1106 (15 July 2008) at [10].
32. Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 399 at [13].
33. Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 399 at [13].
34. The Investors for the Future of Tasmania Inc v Minister for Environment and Water Resources [2007] FCA 1179.
35. However, there was a difference in the grounds in the applications dealing with the allegation that the Minister took into account Gunns' commercial imperatives in making the 2007 assessment approach decision. In the Investors' proceeding, ground nine stated that the decision was invalid or not authorised because the Minister took into account an irrelevant consideration. Ground 10 in the Wilderness Society proceeding alleged that the decision involved an improper exercise of power in that it was made for a purpose, or included a purpose, other than that for which the power was conferred. Marshall J rejected both grounds.
36. The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCA 1179 (9 August 2007) at [91].
37. The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCA 1179 (9 August 2007) at [245].
38. The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCAFC 175.
39. Section 42(c) excludes the operation of s 38 where RFA forestry operations are "incidental to another action whose primary purpose does not relate to forestry".
40. The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCAFC 175 at [111]-[112].
41. The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCAFC 175 at [112].
42. The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCAFC 175 at [117].
43. The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCAFC 175 at [122].
44. Wilderness Society Inc v Malcolm Turnbull, Minister for Environment and Water Resources [2008] FCAFC 19 (4 March 2008) per Branson, Tamberlin and Finn JJ.
45. Further Amended Application filed on behalf of Lawyers For Forests in the Federal Court of Australia Victoria Registry. No VID 1112 of 2007 (dated 18 June 2008).
46. Federal Court of Australia Victoria Registry. No VID 1112 of 2007 (dated 18 June 2008) at [1]-[4], [9].
47. Lawyers for Forests Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 588. Note that this hearing was initially scheduled for 18 May 2008.
48. Lawyers for Forests Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 588 at [14].
49. Lawyers for Forests Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 588 at [14].
50. Your Water Your Say Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 670 at [3].
51. Your Water Your Say Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 670 at [4].
52. Your Water Your Say Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 670 at [3]-[5].
53. Your Water Your Say Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 670 at [12].
54. Your Water Your Say Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 670 at [15].
55. Your Water Your Say Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 670 at [9].
56. Your Water Your Say Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 670 at [17].
57. Your Water Your Say Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 670 at [17].
58. Your Water Your Say Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 670 at [19].
59. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [22].
60. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39.
61. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [22].
62. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39.
63. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [24].
64. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [24].
65. Your Water Your Say Inc v Minister for the Environment, Heritage and the Arts (No 2) [2008] FCA 900 at [3].
66. Lansen v Minister for Environment and Heritage [2008] FCA 903 at [21].
67. Lansen v Minister for Environment and Heritage [2008] FCA 903 at [26].
68. Lansen v Minister for Environment and Heritage [2008] FCA 903 at [27].
69. Environment Protection and Biodiversity Conservation Act 1999 (Cth).
70. Section 47(4) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) recognises that bilateral agreements must contain terms which fulfil the expectations of the Act and thereby the assessment report must contain information necessary for the Minister to make an informed decision.
71. This was said to lead to a breach of s 134(4)(a) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), which requires the Minister to consider any relevant condition that has been imposed under a State or self-governing Territory.
72. Lansen v Minister for Environment and Heritage [2008] FCA 903 at [112].
73. Lansen v Minister for Environment and Heritage [2008] FCA 903 at [113].
74. Lansen v Minister for Environment and Heritage [2008] FCA 903 at [118].
75. Lansen v Minister for Environment and Heritage [2008] FCA 903 at [119].
76. Lansen v Minister for Environment and Heritage [2008] FCA 903 at [123].
77. Lansen v Minister for Environment and Heritage [2008] FCA 903 at [150].
78. Lansen v Minister for Environment and Heritage [2008] FCA 903 at [148]-[151].
79. Lansen v Minister for Environment and Heritage [2008] FCA 903 at [151]-[152].
80. Lansen v Minister for Environment and Heritage [2008] FCA 903 at [168].
81. Lansen v Minister for Environment and Heritage [2008] FCA 903 at [182].
82. Lansen v Minister for Environment and Heritage [2008] FCA 903 at [182].
83. Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 392.
84. Lansen v Minister for Environment and Heritage [2008] FCA 903 at [184]. Condition 2 required an ongoing freshwater sawfish management and monitoring plan, which had to be approved by the Minister at least one wet season before the realigned channel could be connected to the McArthur River. Condition 7 allowed the Minister to request a revised plan where appropriate. Further, if the Minister in future formed the view that the potential impact on the population was unacceptable, he has the power to vary the conditions under s 143(1) or revoke the approval under s 145.
85. Lansen v Minister for Environment and Heritage [2008] FCA 903 at [184].
86. Mees v Roads Corporation (2003) 128 FCR 418 at [454].
87. Mees v Roads Corporation (2003) 128 FCR 418 at [456].