Since the commencement of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) in 2000, green groups have made various legal challenges to the assessment of contentious projects throughout Australia.
In the latest case, brought by The Wilderness Society (TWS) and a group of small business people called The Investors for the Future of Tasmania (IFT) as part of a campaign against the proposal by Gunns Ltd to build a pulp mill north of Launceston in Tasmania, the Federal Court gave guidance on a number of issues associated with environmental impact assessment under Commonwealth law. Freehills acted for Gunns Ltd in this case.
While the court made some important findings in relation to the exclusion of some forestry impacts from assessment under the EPBC Act, the court made a number of findings of more general application to project proponents.
In particular, the court found:
- the Department of Environment and Water Resources, in its role of aiding proponents throughout the assessment process, is not acting improperly by meeting with, and providing information to, project proponents
- a proponent can lawfully withdraw a referral and submit a later referral for substantially the same project, and
- procedural fairness entitlements of third party opponents to a project are limited by the EPBC Act itself.
The court dismissed the applications by TWS and IFT on all grounds. TWS has appealed the decision, and is awaiting a hearing before the Full Federal Court.
Background
On 9 August 2007 the court handed down its decision in the cases of The Wilderness Society Inc v Minister for the Environment and Water Resources & Ors [2007] FCA 1178 and The Investors for the Future of Tasmania Inc v Minister for Environment and Water Resources & Ors [2007] FCA 1179. The two cases were heard together.
TWS and IFT challenged two decisions made by the Commonwealth Minister for the Environment (minister) Malcolm Turnbull, in relation to Gunns’ proposed bleached Kraft eucalypt pulp mill at Bell Bay, in northern Tasmania. The two decisions under challenge were:
- whether the pulp mill was a ‘controlled action’ and which controlling provisions applied to the pulp mill, and
- the assessment approach for the pulp mill.
Was the impact of forestry operations a relevant consideration?
If approved, the pulp mill is projected to use up to 4 million GMt of woodchips each year, sourced from native forests and plantations in Tasmania.
The Tasmanian Regional Forest Agreement (RFA) sets out the arrangements between the Commonwealth and Tasmanian Governments to regulate the harvesting of native forests in Tasmania. Gunns has committed to sourcing all of the native forest for the pulp mill from forests managed in accordance with the RFA.
Forestry operations that are undertaken in accordance with the RFA are excluded by section 38 from the referral, assessment and approval procedures contained in the EPBC Act.
In February 2007 the EPBC Act was amended to include section 75(2B), which provides that, when assessing whether an action is a controlled action for the purposes of the Act, the minister must not consider the adverse impacts of certain forestry operations conducted under a RFA.
TWS and IFT submitted that section 75(2B) only applies where the action being assessed is itself a forestry operation, and therefore does not apply to the assessment and approval of forestry operations that will be undertaken to supply feedstock to the proposed pulp mill. The minister and Gunns responded by arguing that section 75(2B) excludes consideration of forestry operations undertaken in accordance with an RFA, even where such operations are related to another action (in this case, a pulp mill).
The court found that:
- the applicants’ interpretation would deprive section 75(2B) of any purpose
- forestry operations undertaken in accordance with an RFA are exempt by section 38, and
- as such, it cannot be said that section 75(2B) only applies where the proposed action is forestry operations and does not apply where forestry operations are related to another action.
Dealings with the Department of Environment and Water Resources
TWS and IFT alleged that the dealings between Gunns and the Department of Environment and Water Resources (department) affected the minister’s decisions in relation to the pulp mill, which gave rise to a reasonable apprehension of bias on the part of the minister.
Evidence from the department indicated that it was departmental practice to assist proponents with referrals and to meet and discuss the referral and assessment process with them. The court stated that it was understandable that opponents of the project might be suspicious of assistance given by the department in its preparation of the referral, and of meetings where officers of the department discussed timelines with Gunns for the completion of the EPBC Act assessment.
However, the court found that the department’s conduct did not create an apprehension of bias in the minister, in the context of (among other things):
- there was no guarantee that the assessment process would be concluded by any particular time, and
- the minister questioned the department why different assessment approaches, which might have required longer assessment timeframes, were not recommended.
Could Gunns withdraw its referral and submit a new referral?
Between December 2004 and March 2007 Gunns submitted three referrals to the minister. The project described in the first and second referrals were quite different to each other, especially because the first referral contemplated more than one site for the project and proposed a different water supply arrangement for the pulp mill. In each case, the minister accredited the assessment of the project by the Tasmanian Resource Planning and Development Commission (RPDC) under the State Policies and Projects Act 1993 (Tas).
The description of the proposal in the third referral was very similar to the second referral. Furthermore, the third referral could not be assessed by the RPDC under the accredited assessment process for the second referral due to legislation that had been passed by the Tasmanian Parliament which removed the project from the RPDC’s jurisdiction.
TWS and IFT argued that section 170C of the EPBC Act meant that once a referral is withdrawn the minister cannot make decisions in relation to a subsequent referral where the proposed action is essentially the same as that the subject of an earlier referral. The court rejected this argument, stating that if the section intended that no further referral may be made concerning the same action, intention would be clearly stated in the Act.
Procedural fairness in the EPBC Act
TWS and IFT alleged that the minister had denied them procedural fairness by deciding that the proposal would be assessed on preliminary documentation. The public was given 20 business days to comment on the preliminary documentation. TWS and IFT argued that the minister must accord members of the public a reasonable opportunity to be heard about whether the action should be approved, and that 20 business days was insufficient.
The court found that there was no general obligation to accord procedural fairness, finding that any obligation to the public that exists can only be found in the EPBC Act itself, which is very specific in setting out when the public can have input into the referral and assessment process. In addition, even if there was a general obligation to afford procedural fairness, the court considered that it would be very difficult to establish a denial of procedural fairness in the circumstances of this case.
The court found that in practice it was difficult to assess whether there had been any unfairness until after the minister has decided whether or not to approve the action, as an approval decision may include conditions addressing the concerns of objectors.
Appeal hearing
No date has yet been set for the hearing of the appeal filed by TWS.
The minister has now sought public comment in the period 20–31 August 2007 concerning a proposed decision to approve the pulp mill subject to conditions. It is anticipated the minister will make a final decision in relation to the referral in September 2007.
This article was written by Tim Power, Partner, and Fiona Curl, Senior Associate, Melbourne.
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